,77:1) UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PUTERBAUGH'S CHANOEET PLEADING 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. PRACTICE IN THE SUPREME AND APPELLATE COURTS. SABIN D. PUTERBAUGH, LATS ONE OF THE JUDGES OF THE CIRCUIT COURT. SECOND EDITION. PEORIA, ILLINOIS. 1880. Entered according to Act of Congress, in the year 1880, by SABIN D, PUTERBAUGH In the Office of the Librarian of Congress, at Washington. Uni-. rf. INTRODUCTION. The object of the present work is to present, in one volume of convenient size, a practical treatise on pleading and practice in suits in cliancery, and proceedings of like nature ; and to suggest forms for pleading and other papers necessary for preparation by the practitioner. The first 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 chaj)ter 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, effect 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 different sorts of defenses, including exceptions, motions, demurrers, pleas, answers, disclaimers, etc. The eighth con- siders exceptions to answers for insufficiency, and scandal and impertinence. The ninth refers to amendments to bills; and INTRODUCTION. the tenth to replications, the nature and effect of, and when to be tiled. 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 proceeding 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 ot revivor, bills in the nature of bills of revivor, bills of revivor and supplement, and bills of review, are consid- ered in the tit'teenth to twentieth chaptei's 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 perfoi-mance, 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 practical 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. be found applicable to the present practice and times, they have been drawn from the best and most authoritative sources. Others I have ventured 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 1 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, JVIitford'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. 1 have no doubt that many errors and imperfections will be discovered herein. This being the first 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. INTllODUCTION TO THE SECOND EDITION. Since the publication of tlie first edition, the statutes rehiting to several subjects embraced in this work have been amended, and, to include the latest decisions of the courts, a revision has been undertaken. References are made in this edition to the present stat- utes, and decisions of the supreme court down to and in- cluding the 90tli volume of the Illinois Reports, and those of the appellate court to the 4th volume of Brad well's Reports. The subject of practice in the supreme and appellate courts has been added to this edition, covering 75 pages; including the subjects of the jurisdiction of the supreme court, jurisdiction of the appellate court, agreed cases, writ of error, supersedeas^ appeals, records of inferior courts, docket, assignment of error and proceedings thereon, mo- tions, suggestions of diminution of record, original papers, abstract of the record, brief and argument, advance-fee to clerk, cases taken from appellate to the supreme court, judgments, executions, rehearing, licensing attorneys, striking names from the roll, etc. ; all the rules of the supreme court to date, and all the rules of the several dis- tricts of the appellate court, are set forth in order in con- nection with the subjects considered. With the revision and additions it is hoped that this edition will prove acceptable to the profession, and meet with tlie same impartial favor as that given to my Common Law Pleading and Practice, and to the first edition. S. D. PUTERBAUGH. Peoria, Illinois, January 1, 1880. ANALYSIS OF CONTENTS. CHAPTEK I. GENERAL PRINCIPLES OF EQUITY PLEADING 39 CHAPTER II. COMMENCEMENT OF A SUIT IN CHANCERY. Section 1. Ho"w commenced 35 2. Where commenced 36 3. Security for costs 37 When required 37 Forms qf bonds for 3S CHAPTER III. BILLS IN CHANCERY. Section 1. Division op bills 3& 2. Constituent parts of an original bill 40 3. The address 41 4 The introduction 41 5. The premises, or stating part 43 Certainty required 43 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 50 ANALYSIS OF CONTENTS. 11. Pkayer for process 58 12. Frame of bill 59 18. Signing of bills 59 14 Swearing to the bill 60 15. Parties to bills 61 Who should be made parties 63 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. L 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 73 VII. Interrogating part 73 VIII. Prayer for relief 73 IX. Prater foe process 73 CHAPTER V. PROCESS FOR APPEARANCE. Beetion 1. SrrMMONs 74 2. Service and return of summons 75 How served 75 The return 75 8. Notice by publication 77 Time of publication 77 Forms of affidavits for publication 78 Continuance for 79 4. Service by copy of bh.l 79 Form of notice to be served with 80 Form, of affidavit of service 80 6. Unknown persons as defendants 81 ANALYSIS OF CONTENTS. 6. Attachment 81 How obtaiuf'd 83 Form of affidnvit for 84 Form of order for 84 7. Attachment with proclamation 84 8. Commission of rekellion 85 9. Sergeant-at-arms * 85 10. Sec^uestration 86 CHAPTER YI. Section 1. TAKING BILLS AS CONFESSED. Default 87 When it may be taken 87 Rule to answer 87 Effect of default 88 Rights op defendant after default 90 Setting aside a default 90 Form of affidamt m support of motion to 91 Setting aside decree when defendant is not person- ally notified 91 Form of petition for 93 CHAPTER VII. THE DEFENSES TO A SUIT. Section 1. Proceedings by defendant 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 10 ANALYSIS OF CONTENTS. Several causes of demurrer 104 Separate demurrers 104 Speaking demurrer 105 Demurrer, ore temis 105 Demurrer coupled with answer 106 Demurrer to plea or answer not tolerated 107 When to be filed 107 Hearing of 107 Effect of sustaining 107 Effect of overruling 107 Frame of a general demurrer 108 Short form of 109 Form of demurrer to bill in U. 8. court 109 Certificate of counsel to 110 Affidavit to 110 Form 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 113 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 IIL Tothebill 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 120 Of infancy 121 Not administrator 121 Alien enemy 121 Want of prnj-j.r 2^nrti(:s 123 Former suit pending 122 Statute of limitations 123 Of release, toith answer 123 Stated account 124 Plea to part, and answer to residue 125 Signing of plea 126 When to be sworn to 126 When to be filed 126 ANALYSIS OF CONTENTS. 11 Replication 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 bearing 129 Overruling plea 130 When to be supported by answer 130 5. Answer to a bell 132 Nature of 132 Exceptions to 136 Fraud, how alleged 186 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 143 Answer of infants, etc 144 Forms op 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 8. Disclaimer 153 Nature of 153 Form of 154 Form of answer and disclaimer 155 12 ANALYSIS OF COJ^TENTS. CHAPTER YIII. B^tioD 1. 2. 8. EXCEPTIONS TO ANSWER. Nature op 157 For insufficiency 158 In what cases they lie 158 How taken 158 For scANDAii and impertinence 160 What is 160 When to be filed 1G2 Form of, for insuf[iciency 162 For scandal and impertinence 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 amend 167 Form of order for leave to amend 168 FoT'm of amendment 169 CHAPTER X. REPLICATION. Nature of 170 Within what time to be filed 170 Issue made 171 Effect of filing 172 Withdrawing 172 Form of 172 CHAPTER XI. TESTIMONY. Section 1. Production of ijooks, etc 174 Documents in liands of third persons 175 Form of petition for production and inspection of papers 175 Form of order for 176 2. Depositions 176 Of resident witnesses 176 ANALYSIS OF CONTENTS. .13 Of non-resident witnesses 177 Notice, etc 178 Of non-resident witnesses upon oral interrogatories, etc. 179 Manner of taking, etc 180 8. Evidence taken by master in chancery 183 Form of order of reference 183 Form of manter's report 184 Form of ohjections to 185 Form of exceptions to 185 4. Oral testimony 186 CIIAPTEE 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 XIY. DECREES AND DECRETAL ORDERS. Section 1. Nature, uses and kind op decrees 195 Interlocutory decree 195 Final decrees 196 8. Forms of decrees 198 Constituent parts. 198 Caption and title 198 Form of 198 Recitals of 198 Forms of recitals 199 The ordering part 199 Declaratory part 200 Decree by consent 200 Nunc pro tunc clause 200 Drawing of decrees 201 General form of order 202 General form of decree 202 General form of order or decree 202 14 ANALYSIS OF CONTENTS. CHxVPTER XV. SUPPLEMENTAL BILLS. Section 1. Nature of, and when proper 203 2. When to be filed 205 3. Parties to 205 4. Forms op bills 207 Prayer of 207 Form ofUll 208 Form of hill 209 5. Petition for leave to file 210 For7n of 210 6. Process, etc 211 5 r EFENSES 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 DiBmissing bills of 216 CHAPTER XYI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. Section 1. Original bills in the nature op 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 XYII. BILL OF REVIVOR. Section 1. Nature op bill of revivor 225 2. When proper 226 13efore decree 226 After decree 227 ANALYSIS OF CONTENTS. 15 8. Against whom to be filed 228 Before decree 228 After decree 229 4 Frame of bill 230 Must pursue original bill 230 Forms of hill, before decree 280 Form of hill, after decree 231 6. Defenses to 233 Demurrer 233 Plea 233 Answer 234 6. EjEPLICATION 235 7. Order to revive 236 Form of order 236 8. Hearing 237 9. Effect op revivor 338 CHAPTER XYIII. BILLS IN THE NATURE OF BILLS OF REVIVOR. Section 1. Nature and uses 240 2. Parties to 242 3. Frame of bill 242 Formof. 243 4 Defenses to, and proceedings upon 245 CHAPTEE XIX. BILLS OP REVIVOR AND SUPPLEMENT. Nature of, and when proper 246 Practice upon 247 Form of 247 CHAPTER XX. BILLS OF REVIEW. Section 1. Nature of, and when proper 249 Where it lies 249 For error of law 251 Newly discovered evidence 252 2. Parties to 254 8. Leave to file 255 Performance of decree .... 256 Petition for 256 Form of petition for 257 16 ANALYSIS OF CONTENTS. 4. Within what time to be brought 258 Form of order for leave to file 259 6. FOKM OF BILL 259 For error of law 260 For neicly discovered evidence 261 Affidavit to Mil 202 6. Defenses to 262 Plea 262 Demurrer 264 Fm'm of plea to 265 Form of demui'rer to 266 CHAPTER XXI. BILLS OF DISCOVERY. Section 1, Nature of, and when proper 267 3. Frame and form of, 269 Form of hill 270 8. Defenses to 272 Demurrer 273 Form of demurrers 274 Plea to 274 Form of pleas to 375 Answer to 376 Practice upon, generally 377 CHAPTER XXII. BILLS OF INTERPLEADER. Section 1. Nature op, and when proper 879 Nature of 379 2. Form of bill 283 Affidavit of uon-colluaion 383 Form of hill 284 Form of affidavit to 285 8. Defenses to 286 Dem urrer 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 393 ANALYSIS OF CONTENTS. 17 CHAPTER XXIII. BILLS AND PETITIONS TO PERPETUATE TESTIMONY. Section 1. Nature op the proceeding 294 2. Frame of a bill to terpetuatf, 'testimony 294 Form of bill 297 3. Defenses and proceedings 298 Demurrer 299 Answer 299 4. Petition to perpetuate testimony 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 302 Manner of taking testimony 303 Depositions may be used 305 CHAPTER XXIY. Section 1. 2. CEOSS-BILLS. Nature of 305 Frame of bill 307 Forms of bills 308 When to be filed 312 Leave to file 313 Process upon 313 Defenses to 314 Demurrer 814 Pleas 315 Answer 315 Proceedings upon 316 CHAPTER XXY. Section 1. BILLS FOR SPECIFIC PERFORMANCE. Nature op, and when proper 81T Lost instrument 323' Of an award 324 Parol contracts 324 Parties to 325' Frame op bill 32ft Forms of bills 327 18 ANALYSIS OF CONTENTS. 4. Decrees 338 Declaration of right, etc 333 Reference of title 334 Payment of purchase money 335 Delivery of deeds 335 Form of order of reference 385 Form of interlocutory decree for account 336 Form of final decree, etc 336 CHAPTER XXYI. BILLS RELATING TO PARTNERSHIP MATTERS. Section 1. Where dissolution will be decreed 338 2. Account between partners 340 8. Appointment of receiver 341 When appointed 342 4. Forms op bills 342 5. Forms op decrees and orders 347 CHAPTER XXVIl. Section 1. 2. 3. 4. BILLS TO REDEEM. Nature of 350 Deed absolute ou its face, etc 351 Wno may redeem 852 Within what time to be piled 853 Parties to 354 Complainants 354 Defendants 356 Tei{ms of redemption 857 Frame of bill 359 Forms of bills 360 Decrees 367 Form of decree for redemption 368 CHAPTER XXYIII. BILLS TO FORECLOSE MORTGAGES. Section 1. General nature op 870 2. Wuicn proper 371 8. Parties to 372 Complainants 372 Defendants .... 373 4. Frame of bill 375 Forms of Jnlln 376 ANALYSIS OF CONTENTS. 19 Trust deeds and sale mortgages 382 Form of hill to foreclose trust deed 383 Strict foreclosure 384 Parties to 385 Form of hill for strict foreclosure 386 Defenses to 388 Decree of foreclosuke 389 Forms of decree of sale 391 Form of decree of strict foreclosure 394 CHAPTER XXIX. Section 1 CREDITOR'S BILL. When creditor's bill may be filed 396 When proper 397 Justice's j udgment 398 In U. S. courts 398 What may be reached by 398 Parties to the bill 400 Complainants 400 Defendants 401 Priority of liens of bills 403 Frame of bill 40 1 Prayer 405 Swearing to 405 Forms of hills 406 Form of hill in aid of execution 413 Foi'm of hill against executrix 416 Form of order apj)ointing receiver 419 Form of order of reference 420 Form affinal decree 420 Form of decree setting aside fraudulent conveyance .... 432 CHAPTER XXX. PARTITION SUITS. Section 1. Nature op, and how instituted 428 S. Parties to 426 Complainants or petitioners 426 Defendants 427 Unknown defendants 428 Purchaser pendente lite 428 8. Bill or petition 428 Form of petition 428 Forms of hills 429 20 ANALYSIS OF CONTENTS. Forms of hills for partition and dower 433 Form of 2'>etition for 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 437 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 commissioners 445 Form of decree confirminr/ report 447 8. Exceptions to report op commissioners 448 9. Decree op sale 448 Dower interest 449 Interest of unknown owners 4-19 Form of decree for sale 450 10. Exceptions to report op sale . 451 11. Confirmation op sale 451 Form of decree confirming sale 452 CHAPTEE XXXI. PROCEEDINGS FOR DOWER. Section 1. Nature op 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, uow barred 460 By jointure, etc .... 460 By will, etc 461 Renunciation of will 463 Effect of divorce, etc 463 By abandonment and adultery 464 Not by judgment, etc 464 ANALYSIS OF CONTENTS. 21 When by exchange of land 464 Persons selling by order of court 4G5 4. Elements and incidents of dowku 465 Transfer of dower 465 5. Suits for dower 4G6 Duty of heirs to assign 466 Who may file petition 467 Where to be commenced 467 Where infants are petitioners or defendants 467 Guardian ad litem 467 8. Frame op petition 467 Parties to 467 Unknown defendants 468 Answer of defendants 468 Form of petition for, hy widow 468 Affidavit to 469 Form of petition by hushand 469 Form of petition hy heirs 470 7. Process of appearance 471 How summoned 471 Unknown parties 471 Non-resident defendants 471 Service by copy of petition 473 Setting aside decree, when defendant not personally notified 472 8. Interpleader 472 9. Hearing and decree 472 Form 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 of dower 476 12. Damages for refusal to assign dower 477 13. Mode of ascertaining value of dower, etc 478 Dr. Wigglesworth's table 479 Table showing present value of annuity at 5 per cent. 479 Portsmouth or Northampton tables 480 Rule for computing value of life estate, or annuity. . . . 481 14. Miscellaneous provisions of 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 ANALYSIS OF CONTENTS. CHAPTER XXXII. BILLS FOR DIVORCE. Section 1. Nature of 483 2. Causes for divorce 485 3. jurisdiotion of 485 Where commenced 485 Residence of complainant 48(> Effect of divorce 486 4. Natural impotency 486 Form of bill for ' 489 5. Former marriage 490 Form of bill for 490 6. Adultery 491 Circumstantial evidence 492 Frame of bill for 493 Form of bill for, by husband 493 Form of bill for, by loife, praying alimony, etc 494 7. Willful desertion 496 Form of bill for 497 8. Habitual drunkenness 498 Form of bill for, praying for alimony, custody of chil- dren 499 9. Attempting the life of the otuer 501 Form of bill for 501 10. Extreme and repeated cruelty 502 Form of hill for, by husband 503 Form, of bill for, by icife, 'praying for injunction 504 il. 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 > 512 Trial by j ury 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. 23 Form of decree for adultery, and custody of cJiildren . . . 515 Form of decree, extreme and repeated cruelty 516 15. Alimony and expenses pendente lite 516 Leave to prosecute as poor person 518 Form of petition for alimony pendente lite 518 Amount, of allowance 519 Order of reference as to alimony 519 Form of report of m,aster as to alloioance 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 nlirnony 523 CHAPTER XXXIII. SEPARATE MAINTENANCE. Section 1. When granted 525 Grounds for 525 2. Proceedings to obtain 527 Where commenced 527 The bill 527 Injunction 527 Form of hill for 527 8. Defenses to 529 4. Practice in, and decrees 529 Reference to master 529 Form of order of reference 5-50 Form of report of master 530 Amount of allowance 531 Modification of allowance 533 Form of decree for separate VMintenance 533 CHAPTER XXXIV. BILLS TO QUIET TITLE. Section 1. When proper, and nature of 537 2. Forms op bills 540 To quiet title and cancel deed 5^0 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 24 ANALYSIS OF CONTENTS. CHAPTER XXXV. BILLS TO SET ASIDE WILLS. Section 1. Nature of, and -when proper 547 2. What necessary to constitute a valid will 548 3. Fraud in procuring execution op a will 549 4. Want of capacity to make a will 550 5. Form of bill 551 By heirs at law, to set aside a will 551 6. Issue of pacts to be tried by a jury 553 Form 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 8. How obtained 559 Bill for 559 Bonds to be given 559 Order directing writ to issue 560 Form of, by judge 5G0 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, Section 1. 2. CHAPTER XXXYII. BILLS TO RESTRAIN WASTE. Nature op, and when proper 563 Form of bill. . 566 Landlord v. tenant, etc 506 ANALYSIS OF CONTENTS. 25 CHAPTER XXXVIII. BILLS RELATING TO TRUSTS. 'Section 1. Nature of, etc 569 3. Form of bill 571 To remove trustee 571 7'(9 appoint new trustee, etc 573 CHAPTER XXXIX. PROCEEDINGS TO ENFORCE MECHANIC'S LIENS. ;Section 1. Nature op 575 2, Where a lien is given 576 Suits by administrators, etc 577 Estate to which lieu attaches 577 Extent of lien 577 8. 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 op lien 580 5. Limitation of lien 581 As against owner , 581 As against creditor, etc 581 6. Incumbrances and other liens 582 Prior incumbrances 582 Rule for adjusting conflicting claims 582 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 eSect trial of others 584 7. Sub-contractor's lien 585 Notice to be giv^en to owner 586 Copy of contract to be served 586 Notice filed with circuit clerk 586 Extent of lieu 586 Owner may retain money due to pay 587 Statement to be furnished owner 587 When lieu may be enforced 587 Owner may tile bill, etc 5SS Proviug claims, etc 588 Contractor may give bond 589 26 ANALYSIS OF COXTENTS. Where contractor fails to complete contract 58& 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 answer by owner 600 Form of, setting up discharge of lien 603 Form of, setting up another lien 602 13. 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 Eedemption 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, Eevised Statutes of 1874, of Illinois, relating to 613 Judges authorized to grant 613 Master may grant, when 612 Notice of application for 612 To stay judgments, where had 612 Shall operate as a release of errors 613 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. 27 Affidavits may be read 615 Continuance of motion to dissolve 615 Depositions on hearing of motion 615 Depositions on final hearing 616 Eti'ect of appeal on injunction G16 Further bond to be given 616 Granted on Sunday 616 Form of suggestion of damages 617 CHAPTEK 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 answering, 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 sheriff acting as sergeant-at-arms 621 Order for sequestration 622 Order of reference where defendant does not submit to answer exceptions 622^ Order for further answer after report of master 62S Order for attachment on third answer being held insuf- ficient 623- Order for examination of defendant on interrogatories, 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 28 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 the hearing . .• 631 CHAPTEK XLII. PRACTICE IN THE SUPREME AND APPELLATE COURTS. Section 1. Jurisdiction of the supreme court 683 Original jurisdiction 634 In revenue cases 634 Mandamus 636 Habeas corpus 637 Appellate jurisdiction 637 From appellate court 639 ■ From circuit court, etc 641 2. Jurisdiction op appellate courts 641 Appellate jurisdiction only 643 Power of court 642 Practice and pleading 642 May enter judgments in vacation 643 To what district 643 Opinions 643 Appeals to — bond 643 3. Agreed cases 645 As to questions of law 646 4. Writ of error — supersedeas 647 Limitation 647 To whom directed 648 Process on writs of error 648 Form of prcecipe for 649 For scire-facias, etc 650 Return day 650 Notice to non-residents, etc 651 To purchasers and terre-tenants 652 Supersedeas 652 When granted — application for 653 Effect of 655 Security for costs 655 5. Appeals 656 When record to be filed 656 Dismissal of — damages 657 Not for want of sufficient bond 658 Effect of appeal 658 ANALYSIS OF CONTENTS. 29 6. Records of inferior courts 659 How prepared 659 Placita or convening order 6G0 What is not part of record 660 Prcecipe for 661 Forms of 662 Amendment of transcript 663 Additional record 663 Amendments of 664 Removing from clerk's office 664 7. Docket 665 Docketing and hearing 665 Advancing causes on 665 Redocketing cases not decided . . 666 Call of 666 Time for filing abstracts and briefs 666 Effect of failure, etc 669 Rehearing docket. 670 8. Assignment op errors, and proceedings thereon . . . 670 Additional errors may be assigned 673 Form of assignment of errors 673 Cross-errors 673 Joinder in error 673 Form of 674 Release of errors 674 Time of filing ' 676 Form of plea 676 Trial of issues 677 9. Motions 677 When to be made 677 In what order 678 Special motions 678 Affidavits in support of 678 To vacate orders 679 10. Suggestion of diminution op record 679 When to be suggested 679 Costs on certiorari 680 Form of 680 11. Original PAPERS 681 When they will be compelled to be produced 681 13. Abstracts op the record 681 Time for filing 684 Costs of 684 13. Brief and argument 684 Number of copies 685 Oral argument 686 Time allowed for 688 14. Advance-fees to clerk 689 - 30 ANALYSIS OF CONTENTS. 15. Cases taken from appellate to the supreme court 690 Manner of making up records, etc 691 Appeals prayed in vacation 694 16. Judgments 694 Remittitur . 695 Reversal — remanding 696 Special directions 696 Effect of 696 17. Executions 696 18. Rehearing 697 Application for, etc 697 Order staying proceedings 699 Answer to petition 701 19. Licensing attorneys — striking names from roll... 701 Examination 701 In appellate court 702 From other states 703 By whom issued, etc 704 Oath to be taken 704 Roll of attorneys 704 Striking names from roll, etc 704 For refusing to pay over money, etc 705 Notice of complaint 706 Information , 706 20. Library 707 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 1 e used on the ]iearin<;- 631 RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES. Section 1. Preliminary regulations 633 3. Process 635 3. Service op process 636 4. Appearance 637 5. Bills taken pro confesso 637 6. Frame op bill 638 7. Scandal and impertinence in bills 639 8. Amendments op bills 640 9. Demurrers and pleas 641 10. Answers 642 11. Parties to bills 644 12. Nominal parties to bills 646 13. Bills op revivor and supplemental bills 646 14. Answers 647 15. Amendments op answers 647 16. Exceptions to answers 648 17. Replication and issue 649 18. Testimony — how taken 649 19. Testimony de bene esse 653 20. Form op last interrogatory 652 21. Cross-bill 653 22. Reference to, and proceedings before, masters 653 23. Exceptions to report op master 655 24. Decrees 65b 25. Guardians and prochein amis 656 PUTERBAUGH'S OHAKOEEY Pleading and Practice. CHAPTER 1. GENERAL PKINCIPLES OF EQUITY PLEADING. As lias 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 ard 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) (o) Welf. Eq. PI. 3 ; Mout. Digest, 10, and notes, Z. S. and D. .- Co. Litt. 303. 8 34 GENERAL PRINCIPLES. General Principles of Pleading. The pleadings in a suit in equity are commenced on the 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 ;" (J) 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. (&) Mitf, Cli. PI. 177 ; see Coop. Eq. PI. 233 ; Beame's PI. Eq. 1. CHAPTER II. CC>MMENCEMENT OF A SUIT IN CHANCERY. Section 1. How Commenced. 2. Where Comimenced. 3. Secukity for Costs. SECTION I. HOW COMMENOED. By Bill. — A suit in chancery 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. (5) 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 ofiicers 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. {oC) When the («) Story's Eq. PL § 7; Barton's Suit in Eq. 39; Rev. Stat. (1874) 198; Rev. Stat. (1877) 184; Hodgen vs. Glittery, 58 111. 431. (&) Hodgen vs. Guttery, 58 111. 431. (c) Story's Eq. PL § 7; Coop. Eq. PL 101-107; Welf. Eq. PL 58: 1 Dan. Dh. Pr. 1; Lord Red. 7. id) Coop. Eq. PL 101, 102; Welf, Eq. PL 59; Story's Eq. PL § 7. 36 COMMENCEMENT OF SUIT. Where Commenced. suit does not immediately concern 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 bills, 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. WHERE 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, {cj) 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 whi'ch the land is situated ; and (e) Story's Eq. PI. § 8; 1 Dan. Ch. Pr. 2. (/) Underwood 's Stat. Const. 65; Rev. Stat. (1874)198; Rev. Stat. (1877) 184. { In Chancery. CD. ) I do hereby enter myself security for all costs which may accrue in the above cause. Dated this day of , 18—. E. F. If a suit is commenced by a non-resident without filing a bond for costs, the court will, on motion, dismiss the same, and the solicitor tiling the bill will be required to pay all costs accruing thereon, unless the bond shall be tiled within such time as shall be allowed by the court, and when so tiled it will relate back to the commencement of the suit ; and the right to require security for costs shall not be waived by any pro- ceedings in the cause. (V) (?) Rev. Stat. (1874) 297; Rev. Stat. (1877) 295; see Baker vs. Palmer, 83 111. 568. See observations upon bonds for costs in Puterbaugh's Common Law Pleading and Practice, pp. 39-43. CHAPTER III. BILLS m CHANCERY. Section 1. Division of Bills. 2. Constituent Parts of an original Bn.T., 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. Prater for Relief. 11. Prayer for Process. 12. Frame op a Bill. 13. Signing op Bills. 14. Swearing to Bills. 15. Pahties to Bills. 16. Ancient Bills. SECTION I. DIVISION OF BILLS. Bills in chancery are divided into tliose 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 cliancery. 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 purpose of cross-litigation, or of contro- verting, or suspending, or reversing some decree or order of fa) Story's Eq. PI. § 16 ; 1 Barb. Cli. Pr. 34 ; Mitf. Eq. PI. 23 ; Coop. Eq.. PI. 43 ; Barton's Suit in Eq. 41. 40 BIIJ.S 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. (5) 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, (c) Besides the different divisions of bills here enumerated, original bills are usually divided into : ji/rst^ original bills pray- ing relief; and, secondly^ original bills not praying relief. Original bills praying relief, are again subdivided into three heads: firsts original bills, praying the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited ; secondly^ bills of interpleader ; and, thirdly, certiorari bill, {d) Original bills not praying relief, are of two kinds ; first, bills to perpetuate the testimony of witnesses ; and, secondly, bills of discovery. Original bills praying relief are those most usually filed, and they will be more fully considered than those of the other Bort. Bills of every kind will, however, receive consideration under proper heads. SECTION II. CONSTITUENT PARTS OF AN OKIGINAL BILL. The ordinary form and structure of a bill in equity, though not originally prescribed by any positive regulations, has been long established by usage. The rules which have recently been promulgated by the superior courts of chancery in Eng- land, and by the Supreme Court of the United States, {e) have introduced many changes in the ancient precedents, and, if (6) Story's Eq. PI. § 16 ; Coop. Eq. PI. 16. (c) lb. (d) Story's Eq. PI, ^ 18 ; Dau. Oh. Pr. 352. (e) Rules 20-24 of the Su[)remc Court of the U. S., revised and corrected Dec. T. 1870. BILLS IN CHANCERY. 41 The Address — The Introduction. generally followed, will tend to reduce pleading and practice in equity to the simplicity and certainty of a written code ; {/) and prevent unnecessary costs and expenses, and promote brevity, succinctness, and directness in the allegations of bills and answers. It was formerly supposed that nine distinct parts were neces- sary to every bill in equity ; and although some of these are now admitted to be useless, it will be convenient, in analyzing the bill, to retain the ancient divisions. Forms of the constit- uent parts of an original bill will be given in the next chapter. SECTION III. I. THE ADDRESS. In England, the bill is addressed to the Lord Chancellor, or other person having, for the time being, the custody of the great seal. In the United States, the bill is usually addressed to the judge or justices of the court in which the suit is brought, by their proper designation. This address, of course, contains the appropriate and technical description of the court, and must be varied accordingly, {g) A bill is defective, which is not -addressed to the court by its proper and legal style. (A) SECTION IV. n. THE LNTEODUCTION. The introductory part should contain the names and descrip- tion of the persons exhibiting the bill, commonly called, in the bill, by the title of " your orators and oratrixes," according to their sex ; or simply described as the " complainant," at the option of the pleader. The names of the complainants, and their places of residence, should be set out in the bill, with so much certainty, that the court and adverse party may know where to (/) Barton's Suit in Eq. 41. ijg) Story's Eq. PI. § 26 ; Mitf. Eq. PL 42 ; Coop. Eq. PI. 9. (A) Bvw vs. Britten, 3 Chicago Legal News, 33. 42 BILLS IN CHANCERY. The Premises, or Stating Part. resort to compel obedience to any order, rule or process of the court, and also for the payment of costs, (i) By the 20th rule of practice for the courts of equity of the United States, it is required that " every bill, in the introduc- tory 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 jurisdiction of the United States court, in most cases, depends upon the citizenship of the parties ; therefore, such citizenship must appear in the face of the bill ; otherwise, the bill, in any stage of the proceedings, may be dismissed on motion ; (j) nor is it suflficient to describe the complainant as " citizen or resident." {k) The want of a proper averment, in respect of citizenship, in the United States courts, may be taken advantage of by way of demurrer. (Z) SECTION V. rn. THE PKEMISES, OR STATING PAET. This part of the bill will, of course, vary with each particular cause of complaint. It contains a nari-ative of the facts and circumstances of the complainant's case, and of the wrong oi grievance of which he complains, the names of the persons by whom committed, and against whom he seeks redress, (m) All the material facts, of which the complainant proposes to (i) Lord Red. 43 ; Dan. Cli. Pr. 408 ; Story's Eq. PI. § 26 ; Barton's Suit in Eq. 42 ; Smith's Ch. Pr. 82, 83 ; Howe vs. Harvey, 8 Paige, 73 ; Gore vs. Pettis, 4 Sauud. Oh. 403 ; Vose vs. Philhrick, 3 Story, 335. {j) Howe vs. Harvey, 8 Paige, Cli. R. 73; Dodge vs. Perkins, 4 Mason, 435, and cases there cited ; Bingham vs. Cabot, 3 Dall. 382 ; Jackson vs. Ash- ton, 8 Pet. 148. (k) Bingham vs. Cahot, 3 Dall. 382 ; Jackson vs. AsJiton, 8 Pet. 148, 112. (f) Story's Eq. PI. § 49 ; Winnipiseogee Lake Co. vs. Worster, 9 Foster, 433. (m) Barton's Suit in Eq. 27 ; Story's Eq. PI. § 27 ; Mitf. Eq. PI. 43 ; Coop. Eq. PI. 9; Equity Draftsman, 4, note c; Archibald vs. Means, 5 Ired. Eq. R. 220 ; Wright vs. Dame, 22 Pick. 55 ; Lingan vs. Henderson 1 Bland, 236 ; Estep vs. Watkins, Id. 486 ; Oliver vs. Palmer, 11 Gill & J. 426 ; Haywnrd vs. Carroll, 4 Har. & J. 518. BILLS IN CHANCERY. 43 The Premises, or Stating Part — Certainty Required. offer evidence, must be stated, and, as a general rule, he will not be permitted to offer, or require, evidence of any such fact not so stated, {n) The facts, as stated in the bill, constitute the only ground of relief, {o) A general charge or statement, however, of the matter of fact is sufficient ; and it is not neces- sary to charge minutely all the circumstances which may con- duce to prove the general charge ; for these circumstances are properly matters of evidence, which need not be charged in order to let them in as proofs, {j)) This part, constituting the real substance of the bill, upon which the court is called to act, requires great skill and judg- ment to frame it accurately ; and if it has not the proper legal certainty, the defect, as we shall presently see, unless removed, may become fatal in every subsequent stage of the cause, (q) Certainty required. — The bill must have a reasonable cer- tainty, but need not set out the matter with that decisive and catagorical certainty which is requisite in pleading at common law. (r) It should, however, state the right, title, or claim of the complainant, with accuracy and clearness ; and it should in like manner state the injury or grievance complained of, and the relief asked of the court. The other material facts ought to be plainly yet succinctly alleged, and with all necessary and {n) Story's Eq. PI. § 28 ; Iniham vs. Child, 1 Bro. Cli. 94 ; Wilkes vs. Rogers, 6 Jolins. R. 565 ; Gordon vs. Gordon, 3 Swanst. 472 ; Sidney vs. Sidney, 3 P. Wms. 276 ; Watkyns YS.Watkyns,% Atk. 96 ; Peacock vs. Terry, 9 Georgia, 148. {o) Skinner vs. Bailey, 7 Conn. 496; Parker vs. Garter,^ Mnnf. 273; Cowles vs. Buchanan, 3 Ired. Ch. R. 374 ; Miller vs. Furse, 1 Bailey, Ch. R. 187; United States Bank vs. Shultz, ?> Ham. 61; Pinson vs. Williams, 23 Miss. 64. ip) Story's Eq. PI. § 28 ; Chicot vs. Lequnse, 2 Ve.s. 317, 318 ; Wheeler vs. Trotter, 3 Swanst. 177 ; Nesmith vs. Calcert, 1 Wood & Minn. 34 ; Clarke vs. Periam, 2 Atk. 337 ; Dunham vs. Eaton & II. R. R. Co. 1 Bond, 492. - (?) Story's Eq. PI. g 27; Flint vs. Field, 2 Anst. 343; Coop. Eq. PI, 11 ; White vs. Yatc, 7 Vt. R. 357 ; Harrison vs. Nixon, 9 Pet. 483 ; Langdon vs. Goddard, 2 Story, 267. (r) 1 Barb. Cli. Pr. 38 ; 3 Woodes. Lect. 55, p. 870 ; Cockrell vs. Gurley, 26 Ala. 405 ; Birlcy vs. Staley, 5 Gill & J. R. 432 ; Tiernan vs. Poor, 1 Gill & J. R. 216 ; Surget vs. Byers, 1 Hemp. 715. 44 BILLS IN CHANCERY. Tlie Premises, or Stating Part — Certainty Required. convenient certainty as to the essential circumstances of time, place, manner, and other incidents, {s) A party seeking the aid of a court of equity should show distinctly and unambiguously all the facts necessary to entitle him to that aid. (t) The right, title and interest of the complain- ant should be stated with accuracy, clearness and precision, and the proof in the case must correspond with the allegations ; (w) but the claims of the defendant may be stated in general terms.('y) The complainant is not bound to set forth his adversary's rights with the same particularity as his own. And where the extent and character of those rights are more particularly within the knowledge of the adverse party, it is sufficient to allege generally that the defendant has, or claims to have, some rights relative to the subject matter of the controversy, leaving hmi to disclose in his answer the nature and extent of them, {w) Or the complainant may anticipate a defense, and allege any matter necessary to explain or avoid it ; or omitting to do so, on the coming in of the answer he may introduce the new matter into the case by an amendment to the bill, (a?) The material allegations of the bill must be clearly and positively averred ; (■?/) and not by way of recital. And a party cannot have relief upon a case not stated in his bill. (0) (s) Mitf . Eq, PI. 41 ; Coop. Eq. PI. 5 ; Shepard vs. Shepard, 6 Conn. R. 37 ; Egremont vs. Cowell, 5 Beav. 620-623. {t) Shepard vs. Shepard, 6 Conn. R. 37 ; United States Bank vs. Shultz, 9 Ham. R. 61 ; Mercier vs. Lewis, 39 Cal. 532 ; Egremont vs. Cowell, 5 Beav. 620 ; Flint vs. Field, 2 Anst. 543 ; Waugh vs. Bobbins, 33 111. 182. (u) Fitzpatrick vs. Beatty, 1 Gilm. 454 ; Webster vs. Webster, 55 111. 325 ; Oibson vs. Carson, 3 Ala. R. 421 ; Thayer vs. Lane, Walk. Cli. R. 200 ; Knox vs. Smith, 4 How. U. S. R. 298; Tilton vs. Tilton, 9 New Hamp. 385 ; Harris vs. Knickerbocker, 5 Wend. 608 ; Seltz vs. JJnna, 6 Wall. 327. («) Story's Eq. PI. § 255 ; Eq. Draft. 5, note c. (w) Morgan vs. Smith, 11 111. 194 ; Barring vs. Nash, 1 Ves. & B. R. 551 ; 1 Barb. Ch. Pr. 40 ; Aikin vs. Ballard, Rice Ch. 13 ; see Van Antwerp vs. Hulburd, 8 Blatclif. U. S. C. C. 282. {x) White vs. Morrison, 11 111. 361. iy) Primmer vs. Patton, 32 111. 528; Wright vs. Dame, 22 Pick. 55; McElwain v. Willis, 9 Wend. 548 ; McJntyre vs. Trustees etc. 6 Paige, Ch. R. 239; Spense vs. Duren, 3 Ala. 250; Daniels vs. Taggart, 1 Gill & J. 311; Hood vs. Inman, 4 .Johns. Ch. R. 437 ; Edwards vs. Chilton, 4 W. Va. 352. (z) White vs. Yaw, 7 Vt. 357 ; Wood vs. Genet, 8 Paige, Ch. R. 137 ; Page vy. Greeley, 75 111. 400; Morton vs. Smith, 86 111. 117. BILLS IN CHANCERY. 45 The Premises, or Stating Part — Certainty Required. The pleadings should consist of nothing but a clear statement of facts. All matters of inference or argument are impertinent, and will be expunged, and usually with costs, {a) Whatever is intended to' be proved should be alleged, otherwise evidence can- not be received of the facts ; (5) and the facts ought to be so fully and particularly stated that the chancellor can see, from the face of the bill, whether or not he has jurisdiction, and, supposing the same to be true, tell precisely what decree to render, (c) And if a bill, as presented, does not exhibit a case for the interfer- ence of a court of equity, it may be dismissed or demurred to for want of equity ; (d) but it will not be dismissed for that cause, unless it is radically such, so that no discovery or proof can make it a proper subject of equitable jurisdiction, {e) K it shows grounds for relief, but states them imperfectly, it may be aided by the proofs or admissions ; {/) but if the facts are so imperfectly stated that the court cannot decide upon the merits^ from the facts alleged, the bill will be dismissed. (^) A bill must, at the final hearing, show that the matter of it is within the jurisdiction of a court of chancery, [h) The material tacts relied upon for relief must be so distinctly alleged in the bill, that the defendant can readily put them in issue, or the relief cannot be granted, though the facts be (a) Hood vs. Itiman, 4 Johns. Ch. Rep. 437; Chalmers vs. Chalmers, 4 Gill & J. 420 ; Sheldon vs. Bobbins, 2 Root, 190. (6) Hayward vs. Carroll, 4 Har. & J. 518 ; Parker vs. Carter, 4 Munf. 273 ; Eodgins vs. White, 2 Ired. Ch. R. 575 ; Crocket vs. Lee, 7 Wheat. 522 ; Story'sEq. PL §28, 257. (c) Pennebaker vs. Wathan, 2 A. K. Marsh. 315; Dunham vs. Eaton etc. B.B. Co. 1 Bond, 492. {d) Beed vs. Johnson, 24 Maine, 322 ; Morel vs. Houston, Charl. R. M 284 ; Winkler vs. Winkler, 40 111. 179 ; Sheldon vs. Harding, 44 111. 68 ; Vieley vs. Thompson, 44 111. 9 ; Bruen vs. Bruen, 43 111. 409. (e) LeBoy vs. Vecder, 1 Johns. Ch. R. 417 ; Holman vs. Holman, 3 Desau. 210; Wright vs. Dame, 22 Pick. 55. (/) Edwards vs. Massey, 1 Hawks, 359 ; Msher vs. Stone, 8 Scam. 68. (g) Fowler vs. Sanders, 4 Call. 361 ; Wliittaker vs. Degraffenreid, 6 Ala. 303; yfhite vs. Lewis, 2 A. K. Marsh. 123; Clark vs. Bell, 2 B. Monroe 1. (A) Estep vs. Watkins, 1 Bland, 486 ;_ Toicnshend vs. Duncan, 2 Id. 45; Herbert vs. Hobbs, 3 Stewart, 9 ; Moore vs. Dail, Id. 155 ; McOrew vs. Tom- leckbee Bank, 5 Porter, 547 ; Meyer vs. Pfeiffer, 50 111. 485. 46 BILLS IN CHANCERY. The Premises, or Stating Part — Certainty Required. proved ; {i) and no admission in an answer to a bill can, under any circumstances, lay the foundation for relief under any fipeciiic head of equity, unless it be substantially set forth in the bill, {j) And a defect in the charging part of a bill cannot be supplied by a subsequent interrogatory ; and the interrogatories are to be construed by the charging part of the bill ; (k) nor can defects in the charging part be supplied by any subsequent proceedings in the case. (Z) Where the facts stated in the bill are disproved, or are defect- ively stated, relief may be granted in some instances upon the facts stated in the answer, (m) Where a party comes into equity to open a settled account on the ground of error, the bill must contain a precise specifi- cation of the errors, othei'wise the complainant will not be allowed to prove them at the hearing, even though the settle- ment of the account is expressed to be " errors excepted," which is the usual form of settling accounts. {71) Where a party has an adequate remedy at law, a court of equity will not interfere ; (0) except in cases of fraud. Fraud is a matter of chancery jurisdiction, and that court would not (i) Harding vs. Handy, 11 Wheat. U. S. 103 ; Skinner vs. Baily,! Conn. 496 ; Wiggin vs. Mayor etc. 9 Paige, Ch. R. 16 ; Gibson vs. Carson, 3 Ala. 421 ; Knox vs. Smith, 4 How. 298 ; Kidd vs. Manley, 6 Cush. 156. ij) Jackson v3. Ashton, 11 Pet. 229; Thomases. Warner, 15 Vt. 110; Story's Eq. PI. § 28, 257, 263 ; Crocker vs. Lee, 7 Wheat. 522 ; Maury vs. Lewis, 10 Yerger, 115. (Jc) Mechanics' Bank vs. Levy, 3 Paige, Ch. R. 606 ; Cowles vs. Buchanan, 3 Ired. Ch. 374 ; Parker vs. Carter, 4 Munf . 273 ; Kisor vs. Stancifer, Wright, 323; Story's Eq. PI. §27. (J) Lingan vs. Henderson, 1 Bland, 236 ; Townshend vs. Duncan, 2 Id. 45 ; West vs. Hall, 3 Har. & J. 221 ; Edwards vs. Massey, 1 Hawks, 359. (to) Deatley vs. Murphy, 3 A. K. Marsh. 474 ; Maury vs. Lewis, 10 Yerger, 115. But see Jackson vs. Ashton, 11 Pet. 229 ; Thomas vs. Warner, 15 Vt. 110; Story's Eq. PI. § 257, 264; DiUey vs. Barnard,^ QiW & J. 171. {n) Mebane vs. Mebane, 1 Ired. Eq. R. 403 ; Baker vs. Biddle, 1 Bald. 394. (0) Smith vs. Powell, 50 111. 21 ; Thomas vs. Caldwell, Id. 139 ; School etc. vs. Miller, ^i 111. 338; Winkler vs. Winkler, 40 111. 179 ; Gardner vs. Kersey, 39 Geo. 661 ; Bassett vs. Brown, lOU Mass. 355 ; OlUing vs. Luitjens, 32 111. 23 ; Taylor /.s. Turner 87 111. 296. B1LL8 iS CilANCEUV. 47 The Premises, or Stating Part — Certainty Required. lose it merely by the statute conferring a similar jurisdiction upon courts of law. (jf) A complainant must allege in his bill, that he has done, or oflered to do, or is ready to perform, everything necessary to entitle him to the relief he seeks, or a sufficient excuse for its non-performance, {q) It is a maxim of equity, of universal application, that he who seeks equity must do equity, (r) Where the facts are charged in the bill to be, or must, from the necessity of the case, be, within the knowledge of the defendant only, a precise allegation is not necessary. (5) A bill may be framed with a double aspect, so that, if one ground fail, the complainant may rely upon anotlier, which may be inconsistent with the former, (t) Where relief is sought, on the ground of fraud or usury, the charges should not be general, but the facts and circumstances upon which the charge is founded should be fully and speci- fically stated, {u) If an allegation be equivocal, and two mean- ings present themselves, the one most unfavorable to the pleader will be adopted, (y) {p) Babcock vs. McCamant, 53 111. 215 ; Beaugenon vs. Turcotte, Breese, 167; Armstrong vs. Caldwell, % Scam. 418; Weiriek vs. DeZoya,2 Gilm. 388; Scott vs. Whiiloio, 20 111. 310; Glastetibury vs. McDonald, 44 Vt. 450; Freeman vs. Keagan, 26 Ark. 373. (q) Oliver vs. Palmer, 11 Gill & J. 426 ; Walburn vs. Ingilby, 1 Mylne & Keene, 61 ; DeWolfws. Pratt, 42 111. 198 ; Warner vs. Richmond, 53. 111. 52 ; Board of Supervisors vs. Henneberry, 41 111. 179. (r) Corby vs. Bean, 44 Mo. 379 ; Stowe vs. Russell, 36 111. 18, 29. («) Aikin vs. Ballard, Rice, Cli. 13; Morgan vs. Smith, 11 111. 194. {t) Varick vs. Smith, 5 Paige, Ch. R. 137 ; Murphy vs. Clark, 1 S. & M, 221 ; Baines vs. McGee, Id. 208 ; Hart vs. McKeen, Walker's Cli. 417. (u) Newell vs. Bureau Co. 37 111. 253 ; Elston vs. Blanchard, 2 Scam. 420 ; Ilovey vs. Holcomb, 11 111. 660 ; McConnel vs. Gibson, 12 111. 128 ; Klein vs. Horine, 47 111. 430 ; Henry Co. vs. Winnebago Drain Co. 52 111. 299 ; Leicis vs. Lewis, 9 Mo. 183 ; Miller vs. Colton, 5 Geo. 516 ; Witherspoon vs. Carmi- chael, 6 Ired. Eq. 143; Fraser vs. Hart, 2 Strobli. Eq. 250 ; Steed vs. Baker, 13 Gratt. ;i:80 ; Smell vs. Boudinot, 1 Stockt. N. J. 381 ; Moore vs. Green, 19 How. U. S. 69 ; Very vs. Levy, 13 How. U. S. 345 ; Badger vs. Badger, 2 Wall. 87 ; Langdon vs. Goddard, 2 Story, 267 ; Magniac vs. Thompson, 2 Wall. Jr. C. C. 209. (•») Holligan vs. C & R. 1. B. R. Co. 15 111. 558 ; Lemon vs. Stevenson, 36 m. 49 ; Vining vs. Leeman, 45 111. 246 ; Happy vs. Morton, 33 111. 398 ; West vs. Schnebly, 54 111. 523. 48 BILLS IN CHANCERY. 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 — kst> not too MANY SUBJECTS — Matters 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, so 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, (b) 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 oflfense 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 (to) Martin vs. McBryde, 3 Ired. Ch. 531 ; King vs. Trice, 3 Ired, Ch. 568. (x) Gaton vs. Willis, 5 Ired. Ch. 335. {y) Surget vs. Byers, 1 Hemp. 715. (z) Chreen vs. Campbell, 2 Jones' N. C. Eq. R. 446. (a) Mitf. Eq. PI. 133 ; 1 Barb. Ch. Pr. 40. (6) 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, \Q 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 by the same complainant, against the same defendant, for different 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 multifiiriousness. (^') Two good caiTses 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. Qc) But if a claim (d) Oaines vs. Chew, 3 How. U. S. R. 619 ; Warren vs. Warren, 56 Maine, 360 ; Oliver vs. Piatt, 3 How. U. S. 333 ; Id. 2 McLean, 267 ; Shields vs. Thomas, 18 How. U. S.253 ; Fitch vs. Creighton, 24 How. U. S. 159 ; McLean vs. Laf. Bank, 3 McLean, 415 ; Sedam vs. Williams, 4 McLean, 55. (e) Harrison vs. Hogg, 2 Ves. Jr. 323 ; Boyd vs. Hoyt, 5 Paige, Ch. R. 65 ; Ingersoll vs. Kirby, Walk. Ch. 6o ; Ryan vs. Trustees of Shawneetown, 14 111. 20 ; Burnett vs. Lester, 53 111. 325 ; West vs. Randall, 2 Mason, 181 ; see Atwill vs. Ferrett, 2 Blatchf. C. C. 40. (/) Jones vs. Garcia Del Rio, 1 Turn. & Russ. 301 ; 1 Barb. Ch. Pr. 40; Supervisors etc. vs. State's Attorney, 31 111. 74 ; Sheriff vs. Oil Go. 7 Phil. (Pa.) R. 4 ; Barcy vs. Lake, 46 Miss. 109. (g) Kuye vs. Moore, 1 Sim. & Stu. 61 ; 1 Barb. Ch. Pr. 41 ; Clarkson vs. DePcyster, 3 Paige, Ch. R. 320; Bank of Muskingum vs. Carpenter, W Tight, 729 ; Shields vs. Tliomas, 18 How. U. S. 253. {h) Bughee 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 vs. Kirhy, Walk. Ch. 65 ; Burnett vs. Lester, 53 111. 325 ; Walker vs. Taylor, 42 Ala. 297 ; Burling vs. Hammer, 20 N. J. Eq. 220 ; Supervisors etc. vs. State's Attorney, 31 111. 74. (k) Varick vs. Smith, 5 Paige, Ch. R. 137. 4 50 BILLS IN CHANCEKY. 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 ma}^ 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, (w) 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 ;(7i) 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 lieu, 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 only a portion of the case ; in which latter case, multifariousness is not an available objec- tion. {])) 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 boundary, 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 (0 Swift vs. Eckford, 6 Paige, Ch. R. 23. {m) Davone vs. Fanning, 4 Johns. Ch. R. 199 ; Oill vs. Glagett, 2 Gill & J. 14; Bryan vs. Blythe, 4 Blackf. 249. {n) 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. McQee, Id. 208 ; 9 Yerger, 287 ; Whitney vs. Whitney, 5 Dana, 327. {p) Kennedy vs. Kennedy, 2 Ala. 571. (q) Hickman vs. Cooke, 3 Humph. 640. (r) Lynch vs. Johnson, 2 Litt. 98 ; Hart vs. McKeen, Walk. Ch. 417. BILLS IN OHANCEEY. 51 The Premiaes, or Stating Part — Scandal and Impertinence. same title may join in a suit for investigating their equity ; {s) but several coni})lainants clainiing distinct rights, having no community of interests, cannot join in the same action ; (t) nor can several injuries by separate pei'sons be joined in cliancery 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 tlie 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 noj solicitors should be allowed to manifest their personal feel ings upon the records of the court, (s) (s) Tilford vs. Henderson, 1 A. K. Marsh. 483 ; Scrimeyer vs. Buchannon 8 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 ; Clamorgan vs. Guisse, 1 Mo. 131. (®) Mt. Carbon Coal etc. Co. vs. Blanchard, 54 111. 240 ; Harward 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. Holohuah. 11 111. 61. (25) 1 Barb. Ch. Pr. 41 ; Prac. Reg. 388. (y) Coffin vs. Cooper, 6 Ves. 514. (2) McConnell vs. Holobush, 11 111. 61 ; 1 Dan. Ch. Pr. 451. 62 BILLS IN CHANCERY. Constituent Parts — Confederating Part. Impertinence 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, ia) 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. (5) 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 instrumynt of inquisition into the private life of every trustee, (c) SECTION VI. rV. 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 w^itli divers other persons, aa yet to the complainant unknown, but whose names, when (a) Staph, on PI. 422 ; 1 Barb. Ch. Pr. 41. Langdon vs. Pickering, 1& Maine, 214. (6) Seeley vs. Boehm, 2 Mad. 176. (c) Barb. Ch. Pr. 41 ; Earl of Partumouth vs. Felloios, 5 Mad. 450. BILLS IN CHANCERY. 53 Constituent Parts — Charging Parts. discovered, he prays may be inserted in the 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 €omplainant. {/) 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. ig) SECTION VII. V. CUAKGING PABT. 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. (A) 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 demurable. (^) If the complainant can foresee the matter which the defendant will set up to protect {d) Story's Eq. PL § 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. PL 10 ; 1 HofiT. Cli. Pr. 41 ; 1 Dan. Ch. Pr. 375. (/) Eq. Pr. U. S. S. C. 1870, Rule 21; 8 Ves. 404 ; 3 Mad. 11. {g) Barton's Suit in Eq. 33, note ; Story's Eq. PL § 27-29 ; Mitf. Eq. PL 40. Qi) Welf. Eq. PL 102; Parbridge vs. Haycraft, 11 Ves. 575; Story's Eq. PL § 33 ; Eq. Pr. U. S. S. C. Rule 21. {i) Flint vs. Field, 2 Anst. 543 ; Farren's Bill in Cli. 27 ; Oregory vs. Molesworth, 3 Atk. 626. 54 BILLS IN CHANCEKY. 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 eltects, 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. (^ SECTION VIII. VI. JTJKISDICTIONAL 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, {n) and it may be used or not, at the discretion of the complainant, (o) 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. {jf) Barton's Suit in Eq. 34 ; Oregory vs. Molesworth, 3 Atk. 626. {k) Mitf. Eq. PI. by Jeremy, 43 ; Parhridge vs. Haycraft, 11 Ves. 574. {I) Story's Eq. PL § 31 ; Van Heythuysen'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. PL § 34 ; Lord Red. 44 ; 1 Dan. Cli. Pr. 573, note ; Bate man vs. Willoe, 1 Sch. & Lef. 204 ; Welf. Eq. PL 104. (o) Eq. Pr. U. S. S. C. 1870. Rule 21 ; Eq. Draft. 5, note g. (p) Lord Red. 44 ; May vs. Parker, 12 Pick. 34 ; Mitf. Eq. PL 35 ; 1 Barb. Ch. Pr. 30 ; Chase vs. Palmer, 12 Shep. 341. BILLS IN CHANCEEY. 55 Constituent Parts — Introductory Part. SECTION IX. * VII. mT|;RROGATING PART. The interrogating .part of the bill contains a prayer that the defendants may answer all and singidar 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, bnt 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 bill 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 sufficient 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 circumstances 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. (/') 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) Jnques vs. Methodist Church, IJolins. Ch. R. 75 : Story's Eq. PI. § 36, 38. (r) Mechanics' Bank vs. Levy, 3 Paige, Ch. R. 606 ; Gowles vs. Buchanan, 3 Ired. Cli. R. 374; Muckleston vs. Broion, 6 Ves. 63; Parker vs. Carter, 4 Munf. 273 ; Story's Eq. PI. ^ 35. (s) Eberly vs. Oroff, 9 Harris, 256 ; Wigram on Disc. 74 ; 1 Barb. Ch. Pr, 36 ; Kisor vs. Stanscifer, Wright, 323 ; Haythovp vs. Hook, 1 Gill and J. 270;- Story's Eq. PI. i^ 36. (t) 1 Ves. 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 IN CHANCERY. Constituent Parts — Prayer for Relief. ' lutely necessary, though it is generally used, (u) especially where the answer of the defendant is required to be under oath. Where tlie 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 tlie 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 oatli 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. VIII. PRAYER FOR RELIEF. The bill must also contain a prayer for relief. This must depend uj)on the facts of each case, and the nature of the relief sought, and should be framed with great care. Unless (m) Story's Eq. PI. § 38. («) Barton vs. Moss, 32 111. 50 ; Duncan vs. Wilson, Id. 517 ; Wightman vs. Hart, 37 111. 133 ; Maple vs. Seott,4.\ 111. 50 ; Wildey vs. Webster, 42 111. 108; Phelps vs. White, IS lU. 41; Eussell vs. Russell, 54 111. 250; Panton \s. Teft, 22 111. 366. (w) Martin vs. Eversal, 36 111. 222. (x) Willis vs. Henderson, 4 Scam. 13 ; Chambers vs. Howe, 36 111. 171 ; Hopkins vs. Granger, 52 111. 504. iy) Willenborg vs. MurpJi//. 36 111. 344 ; Wallicork vs. Derbi/, 40 111. 527. (2) Wylder vs. Crane, 53 111. 490. BILLS m CHANCERY. 57 Constituent Parts — Prayer for Relief. there is a prayer, there can l.)e 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, {h) The prayer for relief is divided into two kinds : Prayer for specific 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 dilferent decree under the prayer for dift'erent relief, (e) It is never safe to omit the prayer for general relief, for il tlie 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) Mitf. Eq. PI. 133 ; 1 Barb. Cla. Pr. 40 ; Story's Eq. PI. § 40 ; see Gould •vs. Ryon, 14 111. 53 ; Kuckenbeirer 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. Smithsoii, 7 Porter, 144 ; McNah vs. Hcald, 41 111. 326 ; Baper vs. Saunders, 21 Gratt. Va. R. 60. (d) Hohson, vs. McArthur, 16 Pet. 183 ; Gibson vs. McCormiek, 10 Gill & J. 65 ; Lingan vs. Henderson, 1 Bland, 236 ; James vs. Bird, 8 Leigh, 510 ; Danforth vs. Smith, 23 Vt. 247; Broion vs. McDonald, 1 Hill, Cli. R. 297; Jones vs. Bush, A: Harring. 1 ; Kelley vs. Payne, 18 A1&. 371 ; Stone \s. Ander- son, 6 Foster, N. H. 500; Gunndl vs. Coch't-ill, 84 111. 319. ( In Chancery. C. D. and E. F. ) A. B., the above named complainant, on oath states, that E. F., one of the above named defendants, is not a resident of this state, but as affiant is informed and believes, he now resides in, etc. {Here insert the place of residence, if hnoion.) A. B. Subscribed and sworn to before me, this day of , A. D. 18—. , Clerk. No. 6. Affidavit for publication — non-residence of defend- ants — place of residence not hnown. {State the venue and title of cause, as in above form.) A. B., the above-named complainant, on oath- states that the above-named defendants, C. I), and E. F., are not residents of this state; affiant further states that he has made diligent inquiry to learn their place of residence, and has been unable to ascertain the same A. B. Subscribed, etc. No. 7. Affidavit for publication — that the defendant cannot be found. {State the venue and title of cause, as in No. 5, above.) A. B., the above-named complainant, on oath states that he has made due inquiry to learn the place of residence of the said defendants, C. D. and E. F., and is unable to ascertain the same. Affiant further states that the last known place of residence of the said defendants was in , in this state, which place they left about years ago, since which time this afiiant has been unable to obtain any information as to their residence, although he has made inquiries of the former neighbors and acquaintances of the said defendants, and of such PKOCESS FOR APPEARANCE. 79 Affidavits for Publication — Service by Copy of Bill. of their known relatives as would be likely to be knowing to their place of residence. A, B. Subscribed, etc. No. 8. Affidavit for puhlication — that the defendant is con- cealed within this state. {State the venue and title of cause, as in No. 5, ante, jpage 78.) A. B., the above-named complainant, on oath states that the above-named defendant, C. D., resides in in this state ; and that he is concealed within this state, so that process cannot be served upon him. Affiant further states that, etc. {Here state the circumstances which induce a helief that the defendant is concealed.) A. B. Subscribed, etc. Continuance for publication. — " If for want of due publi- cation or service, a cause shall be continued, then the same proceedings shall be had at a subsequent term of the court, in relation to publication, as may have been had at the time to which the summons is returnable." (z«) SECTION IV. SERVICE BY COPY OF BILL. The statute of Illinois provides that "the complainant may cause a copy of the bill or petition, together with a notice of the commencement of the suit, to be delivered to any de- fendant residing or being without this state, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, shall be as eifect- ual as if such' service had been made in the usual form, within the limits of this state. The service by a copy of the bill or petition may be proved by the affidavit of the person serving the same, made before any officer authorized to administer oaths in the place where the affidavit is made ; or in case the service is made in any foreign country, before any United {tv) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. 80 PKOCESS FOR APPEARANCE. Service by Copy of Bill, etc. States minister or consul residing in the country where the same is made, {x) It will be observed that the foregoing section refers only to the service of defendants "residing or being without this state." Parties residing within the state cannot be served with a copy of the bill, (y) and decrees rendered under service by copy of the bill are said to be only binding in this state, or on residents thereof. (2) ]Vo. 9. Notice to he served with a copy of hill on non-resident defendant. State of Illinois, ) County of f In the Court. A. B. ) To the Term, A. D. 18—. vs. ]■ In Chancery. CD.) To C. D., the above-named defendant : You are hereby notified that a bill in chancery, with a copy of which you are herewith served, will be filed against you in the court of county, in the State of Illinois, by the said A. B., complainant, to the term, A. D. 18 — . Now, unless you shall personally be and appear before said court, on the first day of the term thereof, to be held in , in said county, on the day of , A. D. 18 — , and plead, answer or demur to the said bill, the same and the matters and things therein charged and stated, will be taken as confessed, and a decree entered against you according to the prayer of said bill. , Solicitor for the Complainant. No. 10. Affida/vit of the service of copy of hill and notice. State of , ) County of \ G. H., of, etc., upon his oath states, that he served a copy of the foregoing bill in chancery, and notice of the commence- {x) Rev. Stat. (1874) 200; Rev. Stat. (1877) 185. {y) Townsend vs. Townsend, 21 111. 540. {z) Bishop vs. Withered, 9 Wal. U. S. R. 814; W. N. Tel. Co. vs. P. d-A. Tel. Co. 49 111. 94; Cooley on Const. Lim. 403. PKOCESS FOE APPEARANCE. 81 Unknown Defendants — Attachment. ment of suit, upon C. D., of, etc., the defendant named in said bill, by delivering the same to him personally, on the day of , A. D. 18—. G.H. Subscribed, etc. SECTION V. ^ UNKNOWN PERSONS AS DEFENDANTS. The statute of Illinois provides, that " in all suits in chancery, and suits to obtain title to lands, in any of the courts of this state, if there be persons interested in the same, whosernames are unknown, such persons may be made parties to such suits or proceedings by the name and description of unknown owners, or unknown heirs or devisees of any de- ceased person, who may have been interested in the subject matter of the suit previous to his or her death ; but in all such cases an affidavit must be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown, and process shall be issued against all parties by the name and description given ; and notices given by publication shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper names." (a) SECTION VI. ATTACHMENT. The statute of Llinois provides, that " every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days befoi-e 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." (b) (a) Rev. Stat. (1874) 199; Rev. Stat. (1877) 185; see Newlin vs. Snyder, 78 Til. 528. (6) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. 82 PROCESS FOR APPEARANCE. Attacliment of Defendant to Compel an Answer. Where a defendant has been personally served with subpoena or summons, or notified, he is bound to appear and answer to the charges preferred against him in the bill within the time limited by the statute or the practice of the court, or compul- sory process may be awarded against him, for his contempt in neglecting the requisitions of the subpoena or summons. Appearance was formerly absolutely necessary in every case, before any decree could be rendered against him. Where the defendant did not voluntarily obey the injunctions of the writ by entering his appearance on its return, a long chain of process was resorted to, ending in a sequestration of his property, for the purpose of compelling an appearance. There were many cases, however, in which the complainant had no effectual remedy ; as where the defendant could not be served with process at all ; or w^here, notwithstanding the commit- ment of his person, and the sequestration of his j^roperty, he persisted in refusing to appear and put in his answer. To make the process of the court more effectual there are various statutory enactments, both in England and the different states of this country, providing for a decree ])ro confesso founded upon the statements of the complainant's bill. The process for effecting a compulsory appearance has fallen into compara- tive disuse since the passage of these statutes, (c) The first of these processes is an attachment, which is in the nature of a capias, at common law, and is directed to the sheriff, commanding him to attach or take up the person of the defendant, and bring him into court. In ordinary cases, as where the oath of the defendant is waived, the complainant will not necessarily require an answer, but will seek to obtain a decree by default. But where the object of the bill is to obtain a discovery, as in a creditor's bill, and the like, where an answer under oath is requisite, and the defendant fails to put in an answer, further steps must be taken to procure an answer. The statute provides, that, " if a defendant in any proceed- ings in equity, having been served with summons, or personally (c) Barton's Suit in Eq. 83-84. PROCESS FOE APPEARANCE. 83 Attacliment of Defendant to Compel an Answer. notified, as provided in tins act, shall fail or refuse to appear or answer the bill of complaint, he may be attached and otherwise proceeded against according to the practice in equity in cases of contempt." id) now obtained. — Under the old practice, where ser\ace was had by a delivery to the defendant of a copy of the bill, or where the subpoena, was served by the complainant or his solic- itor, it would seem to be necessary to show such service by affidavit, before an attachment would be ordered. But in Illi- nois, where the summons in chancery is served by the sheriff of the county, and the evidence of such service is required to be shown by the officer's return, an affidavit of the service would be unnecessary, as the court will act upon the officer's return. An affidavit showing that a discovery is necessary from the defendant, as to the matters of the bill, may, however, be required. If the defendant appears personally, or is brought into court by the sheriff, on the return of the attachment for not answer- ing, he must put in his answer and pay the costs incurred by his contempt, instanter, or within such time as the court shall appoint, or be committed until he complies, {e) Where a party is in contempt, the court will not grant an application in his favor, which is not a matter of strict right, until he has purged his contempt, {f) He must clear his con- tempt before he can take any effectual proceedings in the cause ; and if he be in custody for want of an answer, he cannot be •liberated therefrom before he has filed his answer, paid or tendered the costs of his contempt, and obtained an order of his discharge, {g) If the complainant amends his bill, he waives his process of contempt ; {h) and if he accepts the defendant's answer, or replies, or moves upon it, which implies acceptance, he oan- {d) Rev. Stat. (1874) 203; Rev. Stat. (1877) 188. [e) 1 Barb. Ch. Pr. 88. (/) Johnson vs. Pinney, 1 Paige, Ch. 646. (g) 1 Barb. Ch. Pr. 88; Gold's Doct. of Eq. 136, {h) Gray vs. Campbell, 1 Russ. & My. 323 84 PEOCESS FOE APPEAEANCE. Attachment — Attachment with Proclamation. not use the process of contempt for the purpose of getting costs. (*) iVb. 11. Affidavit to obtain an attachment against the defend- ant for not answering. {Title of cause as in No. 5, ante, page 78.) A. B., the above named complainant, on oath states, that a discovery is neces- sary in this cause from the defendant, as to the matters of the said bill of complaint, and the several interrogatories therein contained. A. B. Subscribed, etc. No. 12. Order for an attachment for not answering. {Caption, with title of cause.) It appearing to the court, that the defendant herein was duly served with summons in this cause, more than ten days before the first day of the pre- sent term of this court, to appear, except, demur, plead or answer the complainant's said bill of complaint ; and it further appearing to the court that the defendant has failed {or refused) to appear or answer the said bill of complaint, as required bj law ; on motion of Mr. , solicitor for the complainant, it is ordered, that an attachment be, and the same is hereby awarded against the said defendant, C. D., returnable forthwith. SECTION VII. ATTACHMENT WITH PKOCLAMATION. If the sheriff to whom the writ of attachment is directed apprehends the defendant, he is detained in custody until he enters his appearance and puts in an answer to the complain- ant's bill. If the sheriff returns non est inventus, he is not to be found, an additional process is awarded against the defendant, which is termed an attachment with proclamation ; which, besides the ordinary form of attachment, directs the sheriff to cause public proclamations to be made throughout the county, to summons the defendant on his allegiance, per- sonally to appear and answer the charges brought against' him. {J) (t) Anon. 15 Ves. 174. (j) Barton's Suit in Eq. 85; 1 Barb. Ch. Pr. 62, 63; Gilb. For. Rom. 77; 1 Dan Ch. Pr. 606. PROCESS FOK APPEARANCE. 85 Commission of Rebellion — Sergeant-at-Arms. SECTION VIII. COMMISSION OF REBELLION. If the writ of attaclinient witli proclamation be returned non est inventus, and the defendant still remains in contempt, a commission of rebellion is awarded against him for not obey- ing the proclamation according to his allegiance. This com- mission is generally directed to commissioners therein named, who are jointly and severally commanded to attach the defend- ant, wherever he may be found within the state. The reason given for this process being directed to commissioners, and not, like the writ of attachment to the sheriflf, is, " that the defend- ant is a rebel and contemner of the laws, and to be dealt with as such ; and as the sheriff cannot be supposed to be capable of executing all the process directed to him in per- son, it may be inconvenient to trust so great a power with the deputies of his appointment, and therefore the court appoints its own commissioners, who are intrusted to do every- thing very carefully, and are answerable to the court for their miscarriage." (Jc) SECTION IX. SERGEANT-AT-ARMS. By the English practice, if the commission of rebellion is returned no7i est inventus, the court, on motion to that effect, will dispatch a sergeant-at-arms in search of the defendant. It is said, however, that the English course in this respect cannot be pursued here ; our statutes having virtually taken away from the sergeant-at-arms the power of executing the process of the court, {l) The sheriffs of the respective coun- ties are made officers of the court to execute the process thereof. (k) Qilb. For. Rom. 77; Hinde, Ch. Pr. 116; 1 Dan. Cli. 610; Barton's Suit in Eq. 86, note (1) ; 1 Barb. Ch. Pr. 63. (Z) 1 Hoff. Ch. Pr. 126, note ; 1 Barb. Ch. Pr. 66 ; Barton's Suit in Eq. 87. 86 PKOCESS FOR APPEARANCE. Sequestration. SECTION X. SEQUESTRATION. If the defendant is taken upon any of the processes we have mentioned in this chapter, he is committed to the jail, unless he enters his appearance and answers according to the practice of the court; and also clears his contempt, by -paying of the costs and fine imposed by reason of his contumacious behavior. But if he likewise eludes the search of the sherifl while acting as sergeant-at-arms, a sequestration issues. This, like the commission of rebellion, is awarded upon motion, grounded on the return of the sheriff, as sergeant-at-arms, and is directed to certain commissioners therein named, au- thorizing and commanding them to possess themselves of all his personal estate whatever, and the rents and profits of his real estate, until satisfaction is made of the complainant's demands, and the court shall further order, (m) (to) Barton's Suit in Eq. 88 ; 1 Barb. Cli. Pr. 68-75 ; Hinde. Ch. Pr. 127 ; Bee Morrice vs. Bank of Eng. Talb. Cas. 322 ; Kinney vs. Yardley, Dick. 266 ; Lzipton vs. Hercolt, 1 Sim. & Stu. 274; Detillin, vs. Oale, 1 Sim. & Stu. 275, note. CHAPTER VI. TAXING BILLS AS CONFESSED. Section 1. Default. 2. Rights op Dependant after a Default. 3. Setting aside a Default. 4. Setting aside a Decree, when Dependant is not per- sonally notified. SECTION I. default. When it Tnay le taken. — The sixteenth section of the act reguhiting the practice in the court of chancery, in Illinois, provides that " every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required by this act, shall be held to except, demur, plead or answej' 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 return- able, 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." {a) To except., in the section referred to, means to object to the proceedings by motion or suggestion to the court. Bxile to am^swer. — There is no rule of practice in Illinois requirmg the court to enter a rule on defendant duly served with process to answer. It is the duty of the defendant to a bill to appear at the time he is required by the sunmions and interpose his defense, and if he fails to do so, he is in default, and the bill may be taken as confessed against him. If he (a) Rev. Stat. (1874) 200; Rev. Stiit. (1877) 186. -88 TAKING BILLS AS CONFESSED. Default — Effect of a Default. desires further time than the ten days allowed by the statute, after the service, to prepare his defense, he should apply to the ■court for further time ; and if he makes no defense, the prac- tice warrants a decree pro confesso on the return day of the summons, if the service is sufficient . (&) The correct practice, however, on overruling a demurrer to a bill is for the court to enter a rule on the defendant to answer. But the court may render a decree ^ro confesso thereon, (c) But it is regarded as the better practice, when preliminary motions or exceptions to the proceedings are ■disposed of, to enter a rule to answer, {d) Effect of a default. — Where adult defendants permit the bill to be taken as confessed, they thereby admit the truth of the allegations of the bill, and the practice fully warrants the ren- dition of a decree granting relief, without proof, if the bill contains equity. If the court has reason to believe, or from any cause is apprehensive that injustice is likely to result from granting the relief without proof, then it should be required. But this is a matter of sound discretion in the chancellor, and its omission or requirement cannot be assigned for error, ■unless the record discloses that the action has resulted in wrong to the defendants. Where there are non-resident defendants, only served by publication, the courts are more inclined to require proof than in cases where there has been actual service. {e) Where the court determines to hear evidence upon a ■default, it is not necessary that the same should be reduced to writing and Ije preserved in the record of the case, {f) (6) G^ro&& vs. C«s7ima7i, 45 111. 124. (c) Miller vs. Davidson, 3 Gilm. 528; Roacfi vs. Chapiii, 27 111. R. 197. Waugelin vs. Goe, 50 111. 459. (d) Ottawa vs. Walker, 21 111. 610. (e) Moore vs. Litman, 33 111. 358 ; Sullivan vs. Sullivan, 42 111. 316 ; Cronan vs. Frizcll, Id. 319 ; Grubb vs. Crane, 4 Scam. 153 ; Ferguson vs. SutpJien, 3 Gilm. 547 ; Manchester vs. McKee, 4 Gilm. 511 ; Boston vs. Nich- ols, 47 111. 353 ; Douglas vs. Evans, 1 Overton, 82 ; Ward vs. Jetcett, Walker, Ch. R. 45 ; Atterhery vs. Knox, 8 Dana, 282 ; Jackson vs. Iloneycut, 1 Over- ton, 30 ; Piatt vs. Jadnon, 3 Black f. 205 ; Fellows vs. Shelmire, 5 Blackf. 48 ; Jones vs. Beverly, 45 Ala. 161. (/) Smith vs. Trim'dc, 27 ill. 152 ; Uarmon vs. Campbell, 30 111. 25. TAKING BILLS AS CONFESSED. 89 Default — EflFect of a Default. A default admits tliat which is properly alleged in the bill, but nothing further, [y) And if it omits to state the complain- ant's claim speciiically, a Unal decree cannot be rendered, even after a pro confesso order, without proof. (A) It is error to render a decree for more than is claimed in the bill, {i) A decree cannot be taken against a defendant not answering, unless a default has been taken, [j) If the complainant, after a default, amends his bill, or files a supplemental bill, it will have the eifect to vacate the order of default, and the defendant may put in an answer. (A;) Section eighteen of the Statutes of Illinois, relating to chancery- practice, provides that " where a bill is taken for confessed, the court, before a final decree is made, if deemed requisite, may require the complainant to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation touching the facts therein alleged. Such decree €hall be made in either case, as the court shall consider equit- able and proper." {I) The case need not be referred to the master for proof, {m) A bill cannot be taken as confessed as against minors, and the evidence, to be preserved in the record, must warrant a decree against them, (w) {g) Cronan vs. Frizell, 42 111. 319; De Leuw vs. Neeletj, 71 111. 473. {7i) Piatt vs. Judson, 3 Blackf . 237 ; Fellows vs. Shelmire, 5 Blackf . 48 , Cunninffham vs. Stelle, 1 Litt. 52 ; see Thomas vs. Morris, 57 111. 333. (i) Carter vs. Lewis, 29 111. 503 ; Mills vs. Heeney, 35 111. 174 ; Pidgeon vs. Trustees, 44 111. 501 ; Beese vs. Becker, 51 111. 84 ; Oicling vs. Luitgena, 32 111. 23 ; Martin vs. Hargardine, 46 111. 323. {j) Shields vs. Bryant, 3 Bibb, 525 ; Cannon vs. Watson, 1 How. Miss. 333. (A-) Gihfion vs. Reese, 50 111. 383; see Black vs. Lusk, G9 111. 70. (/( Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. (m) Carter vs. Lewis, 29 111. 503. {n) McClay vs. Norris. 4 Gilm. 370; White vs. Morrison, 11 111. 365; Preston vs. Ilodgen, 50 111. 60 ; Willhiie vs. Pierce, 47 111. 413 ; Nichols vs. Thornton, 16 111. 113 ; Bree vs. Bree, 51 111. 372 ; Masterson vs. Wirwold. 18 111. 48; Moore vs. School Tr. 19 111. 83 ; Quigley vs. Roberts, 44 111. 503 ; Martin vs. Hargardine, 46 111. 322; Ingersoll vs. Ligersoll, 42 Miss. lol. 90 TAKING BILLS AS CONFESSED. Right of Defendant after Default — Setting aside Default. SECTION II. RIGHT OF DEFENDANT AFTER DEFAULT. A defendant, being in court, has a right, in a case where the bill is taken as confessed, to appear before the master in case of a reference, if he thinks proper ; although in such case the practice does not require notice to him to appear on the refer- ence. Or, upon the report of the master being made, the defendant may, if he choose, hie exceptions and resist its approval ; {o) or he may, upon a writ of error, insist that the averments of the bill do not justify a decree, (p) SECTION III. SETTING ASIDE A DEFAULT. A motion to set aside a default, for not filing an answer in chancery, should be based upon an affidavit, setting forth clearly and specifically the reasons for setting it aside, and be accompanied by an answer, and an offer to file the same, {q) An application to set aside a default is addressed to the dis- cretion of the court, and an appellate court rarely reviews the exercise of the discretion, and then only to prevent great injustice, (r) The party making application to have a default set aside, must support it by an affidavit, showing that the default was taken without any fault or negligence on his part, and that there is merit in his defense, stating what such defense is, so (o) Moore vs. Titman, 33 111. 358. {p) Gault vs. Hoagland, 25 111. 266 ; Stephens vs. Bichnell 27 111. 444 ; Harman \ 3. Campbell, 30 111. 25. (?) Dunn vs. Keegin, 3 Scam. 292 ; Oruhi vs. Crane, 4 Scam. 153 ; Nor- ton vs. Hixon, 25 111. 440. (r) Bowman vs. Wood, 41 111. 203 ; Bell vs. Mms, 51 111. 171 ; Scales vs. Labor, 51 111. 232 ; see further, Puterbaugh's Com. Law PI. and Pr. 809-810, and authorities there cited ; Wooster vs. Woodhull, 1 Johns. Ch. 539 ; Parker vs. Grant, 1 Jolins. Ch. G30 ; Oioin vs. Ilnrris, 1 S. & M. Ch. 528 ; Graham vs. Elmore, Marring. Ch. 205 ; Russell vs. Wnite, Id. 31 ; Uart vs. Lindsay, Id. 72; Terry vs. Eureka College, 70 111. 236. TAKING BILLS AS CONFESSED. 91 Setting aside Default — Setting aside Decree, etc. that the court may see whether it is sufficient, {s) The motion should be made at the term at which the default is entered, {t) No. 13. Ajfidavit in support of motion to set aside a default. In the Court. C. D. ) Term, 18 — . ats. \ In Chancery. A. B. ) C. D., the above named defendant, makes oath and says, that, etc. {Here state facts showing the absence of negligence in not putting in oai answer in apt time.) Alfiant further states, etc. {Here state such fads as show a meritorious defense to the hill.) Affiant, therefore, prays that the default heretofore entered in this cause, against him, may be set aside; and that he may be permitted to iile his' answer herewith exhibited, and which he now otiers to hie in this cause. C. D. Subscribed and sworn, etc. SECTION IV. SETTING ASroE DECREE WHEN DEFENDANT IS NOT PEKSONALLY NOTIFIED. The nineteenth section of the Chancery Act of Illinois, pro- vides, that, "when any final decree shall be entered against any defendant who shall not have been summoned, or been served with a copy of the bill, or received the notice required to be sent him by mail, any such person, his heirs, devisees, executor or administrator, or other legal representative, as the case may require, shall, within one year after notice in writing given him of such decree, or within three ^^ears after such decree, if no such notice shall have been given as aforesaid, appear in open court, and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reason- able in that behalf; the person so petitioning may appear and answer the complainant's bill, and thereupon such proceeding (s) Rich vs. Hathoway, 18 111. 548 ; Hunt v.s. Wallis, 6 Paige, Cli. 11. 371 ; see Stockton vs. Williams, Harriug. C'li. 241 ; Ilart vs. Lindsay, Id. 72. (t) Messervey vs. Beckirith, 41 111. 452 ; Cook vs. Wood, 24 111. 295 ; Smith vs. Wilson, 26 111. 186 ; Scales vs. Labor. 51 111. 232. 92 TAKING BILLS AS CONFESSED. Setting aside Decree when Defendant is not Personally Notified. shall be had as if the defendant had appeared in due season, and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall ajDpear just ; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done subsequent to the commencement of such suit ; and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect." (u) When a petition is filed under the statute referred to, the correct practice is, to let the forme}- decree stand until the final hearing, and then make such decree, either setting aside the former one, and dismissing the bill, or confirming or modifying the decree, as the equities of the case may require, {v) Such decrees are interlocutory onlj. {w) It would be a technical error to vacate the decree, upon the filing of the petition, and before the final hearing ; {x) yet if by so doing no injury is occasioned to any one, the proceedings will not be reversed and set aside for that reason ; {y) nor can such irregularities be attacked collaterally, {z) (w) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186; MaHin vs. Gilmore, 73 111. 193. (i'j Southern Bank vs. Humphreys, 47 111. 227; Lawrence vs. Lawrence, 73 111. 577. (w) Id. ; Lyon vs. Bobbins, 46 111. 276 ; Sale vs. FisJce, 54 111. 292 ; Tomp- kins vs. Wiltberger, 56 111. 385 ; Hodgen vs. Quttery, 58 111. 431. (a;) Buck vs. Beekley, 45 111. 100; Mulford vs. Stahenback, 46 111. 803; Southern. Bank vs. Rtimphi-eys, 47 111. 227. (y) Mulford vs. Stahenback, 46 111. 303. (e) Southern Bank vs. llumphreys, 47 111. 227. TAKING BILLS AS CONFESSED. 93 Petition to set aside Decree by Defendant not Personally Notified. No. IJp. Petition to set aside decree hy a defendant not jpersonally notified. In the Court. In Chancery. Term, 18 To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : The petitioner, C. D., of, etc., the above named defendant, respectfully represents unto your honor, that on, etc., the above named complainant, A. B., exhibited his bill of complaint against the petitioner as defendant, in this honorable court, in this suit, and on making affidavit of the non-residence of the petitioner, procured publication to be made to notify him of the commencement and pendency thereof; and that on, etc., being at the term of this lionorable court, a jpro con- fesso decree in said entitled suit, was rendered against the petitioner, as by the record and proceedings in this cause will more fully and at large appear. And the petitioner further represents unto your honor, that he has not been summoned, or served with a copy of the said bill of complaint, or re- ceived the notice of the pendency of the suit, required to be sent him by mail, by the clerk of this court, and has received no notice in writing of such decree. The petitioner, therefore, appears in this honorable court, and asks to be heard touching the matters of such decree, upon such reasonable terms as to the court may seem just, in pursuance of the statute in such case made and provided. And the petitioner presents herewith his answer to the said bill of complaint, and asks that he may be permitted to file the same in said cause, and that upon the hearing, the court will order that said decree be set aside, altered or amended as to the court may seem just ; and that the court will grant the petitioner such other relief in the premises as to equity shall appertain. C. D. State of Illinois, ] County of f C. D., of, etc., on oath states, that the matters set forth in the foregoing petition are true in substance and in fact. C. D. Subscribed, etc. CHAPTER YII. THE DEFENSE TO A SUIT. Section 1. Proceedings by Defendant Previous to Putting in his Answer. 2. The Different Sorts of Defense. 3 Demurrer to a Bill. 4. Pleas to a Bill. 5. Answer to a Bill. 6 Disclaimer. SECTION I. PROCEEDINGS BY DEFENDANT PREVIOUS TO PUTTING IN HIS ANSWER. Every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required by the statute, shall be held to except, demur, plead or answer on the return day of the summons, (a) The term to except as used in the statute of Illinois, means to object to the proceedings by motion or suggestion. Thus, where the complainant, being a non-resident, fails to give secu- rity for costs, the defendant may move to dismiss for that reason. Other cases in which motions would be proper will naturally suggest themselves to the reader. Cases have arisen in which the courts liave dismissed a bill on motion, for want of equity, (5) but such practice is irregu- lar; yet, if acted upon by the court, without objection, the motion will be held to have the same effect as a demurrer, {c) The question whether a bill shows equity on its face should be raised by a demurrer to the bill, and not by motion ; and (a) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. (b) Edwards vs. Baird, Breese R. 70; Richardson vs. Prevo, Id. 216; Harris vs. Galbraith, 43 111. 309. (c) Wicldeij vs. Thompson, 44 111. 9; Town of Tamaroa vs. Normal Uni- versitij, 54 111. 334. THE DEFENSE TO A SUIT. 95 Exceptions to a Bill — Form of Exceptions. on objection bj the complainant, a motion entered for such purpose will be stricken from the file, (d) Exceptions to hill for scandal or impertinence. — If the bill contains any scandalous or impertinent matter, the defendant may, before putting in his defense, take exceptions to the bill ; to the end that the objectionable matter may be expunged, (e) Exceptions to a bill for scandal or impertinence are to be taken in the same manner as exceptions to an answer for insufficiency, etc., and may be submitted to in like manner and within the same time. If they are not submitted to, the defendant must refer them in the same manner, or they wnll be considered as abandoned. (/") If the defendant designs to except to the bill, he must do BO before putting in his answer, or submitting to answer by obtaining an order for further time ; as by answering or sub- mitting to answer the bill, he waives all objections to it. {(j) The practice upon exceptions to bills for scandal or imperti- nence being the same as that upon exceptions to answers, it will be sufficient to refer the reader to that part of this work where exceptions to answers are spoken of (A) No. 15. Exceptions to a hill for impertinence or sca/ridal. In the Court. Term, 18—. In Chancery, Exceptions taken by C. D., defendant, to the bill of complaint of A. B., complainant, filed against him. First — For that the allegations in the 7th, 8th, 9th, 10th and 11th lines of the 4th folio of the said bill in the words following, to-wit : {Here insert the matter ohjected to) is im- pertinent, and ought to be expunged. {d) Toion of Tamaroa vs. Normal University, 54 111. 334 ; Wangelin vs. Qoe, 50 111. 459. («) 1 Barb. Cli. Pr. 101 ; 1 Dan. Ch. Pr. 451-3; McConnell vs. Hollobu^h, 11 111. 61 ; Langdon vs. Pickering, 19 Maine, 214. (/) 1 Barb. Ch. Pr. 101. (g) lb. ; Anon. 3 Vea.Sr. 631 ; Woodward vs. Astley, Bund. 304. (Ji) See post. Chap. VIII. 96, THE DEFENSE TO A SUIT. Motions, etc. Second — For that the allegations in the said bill commenc- ing with the word " the " in the 5th line of the 8th folio, and ending with the word "you" in the 12th line of the 10th folio thereof, are scandalous and impertinent, and should be expunged. Third — For that, etc. {and so on.) In all which particulars this defendant humbly insists that the complainant's bill of complaint is irrelevant, impertinent and scandalous ; wherefore, this defendant excepts thereto, and prays that the impertinent and scandal of the said bill of complaint, excepted to as aforesaid, uiQ,y be expunged with costs. , Solicitor for Defendant- Motion for iwoduction of papers. — The court only orders the production of books and papers previous to the final hear- ing of a cause upon two principles — security pending the litigation, and discovery or insj^ection for the purpose of the suit. (^) The court will, upon the application of the defendant, before answer, under special circumstances, order that the complain- ant should not compel him to answer until within a stated time after the production of certain documents set forth in the bill, when it appears that their production is essential to enable the defendant to put in his answer, {j) Motion for security for costs. — We have already seen that a non-resident complainant must give security for costs before filing his bill. If he fails to do so, the suit will be dismissed on motion, supported by an affidavit, which must distinctly negative the fact that he was a resident at the time the suit was commenced. Qc) A suit instituted by two complainants, one of which is a resident, will not be dismissed for want of a bond for costs. (Z) {i) Watts vs. Lawrence, 3 Paige, Ch. R. 159. {j) Princess of Wales vs. Earl of Liverpool, 1 Swanst. 114; 1 Barb. Cli. Pr. 101 ; Jones vs. Lewis, 2 Sim. & Stu. R. 243 ; see Cornell vs. Bostwick, 3 Paige, Ch. R. 160. {k) Leadbeater vs. Roth, 25 111. 587 ; Buckland vs. Goddard, 36 111. 206; Bee also Ripley vs. Morris,.2 Gilm. 881 ; Hickman vs. Haines, 5 Qilm. 20; Farnsworth vs. Agnew, 27 111. 42 ; Robert vs. Fahs, 32 111. 474. (t) Wood vs. Oosa, 24 111. 626. THE DEFENSE TO A SUIT. 97 Different sorts of Defenses. A motion to dismiss for want of a bond for costs must be made at the earliest stage of the proceeding. It would come too late after a demurrer, (m) or a plea in abatement, {n) The pendency of a motion for security for costs will not necessarily excuse a party for not filing an answer ; nor will such motion prevent the rendition of a decree pro confesso. {o) SECTION II. THE DIFFERENT SORTS OF DEFENSES. The defense to a suit in equity may be either by demurrer^, loj plea, by answer, or by disclaimer. 1. By demurrer, by which lie appeals to the judgment of the court, whether he shall be compelled to answer the bill or not. This species of defense is resorted to where it appears upon the face of the bill itself that there is no equity in the case, on the part of the complainant. 2. By plea, by which he shows why the suit should be dismissed, delayed or barred. A plea sets up matter of defense not appearing in the bill. 3. By answer, controverting the case stated by the com- plainant, the defendant may confess and avoid, or traverse and deny, the several parts of the bill ; or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both. 4. By a disclaimer, the defendant may at once terminate the suit by disclaiming all right or interest in the matter sought by the bill. 5. By demurrer, plea, answer and disclaimer, or by two or more of them ; provided each relates to a separate and distinct part of the bill. (m) The People vs. Cloud, 50 111. 439. (ti) Randolph vs. Emariclc, 13 111. 344 ; see farther, Frasure vs. Zimmerly, 25 111. 202 ; Dwnni7ig vs. Dunning, 37 111. 316; St. Louis, A. & T. H. B.B. Co. vs. South, 43 111. 176. ip) Hamilton vs. Bunn, 22 111. 259. 7 98 THE DEFENSE TO A SUIT. Demurrer to a Bill — Ita Nature and Uses. A cross bill may also be considered a species of defense, (j?) The above is tlie general order of pleading to be pursued by the defendant. All pleas of a dilatory character, and objec tions of that nature, must be interposed at the earliest oppor- tunity, {q) SECTION III. DEMURKEE TO A BILL. Its nature and uses. — Whenever any ground of defense is apparent upon the face of the bill, either from matters therein stated, or from defects in its frame, or in the case made by it, the proper mode of defense is by demurrer, {r) The word demur- rer comes, as Lord Coke has said, from the Latin word demo- rari, to abide ; and, therefore, he that demurs in law, is said to abide in law. He will go no further until the court has de- cided whether the other party has shown sufficient matter in point of law to maintain his suit, (s) A demurrer is in bar of the relief sought, and it proceeds upon the ground that, admitting the fact stated in the bill to be true, the complainant is not entitled to the relief he seeks. It is always founded upon some strong point of law, going to the absolute denial of the relief souglit ; but defects in sub- stance are not supplied or aided by it, nor defective statements of title or claims to relief cured by it. The demurrer only (p) Onlatian vs. Erwin, Hopk. Cli. R. 48, 58 ; 1 Barb. Cli. Pr. 105. (g) Puterbaugli's Com. Law PL and Pr. 144-145, and cases there cited ; Conley vs. Oood, Breese, 135 ; Duncan vs. Charles, 4 Scam. 561 ; Wilson va. NettUton, 12 111. 61 ; Peoples vs. Peoples, 19 111. 270 ; Oilmore vs. Noicland, 26 111. 200 ; Archibald vs. Argall, 53 111. 307 ; Jajnes vs. Morgan, 36 Conn. 848 ; Bowman vs. McLaughlin, 58 Maine, 299 ; Green vs. Craig, 47 Mo. 90 ; Brown vs. Powell, 45 Ala. 149. (r) McCloskey vs. McCormick, 44 111. 336; Wangelin vs. Goe, 50 111. 459; Story's Eq. PI. g 441 ; 2 Barb. Cb. Pr. 105 ; Mitf. Eq. PI. 107 ; Beard vs. Fowler, 2 Bond, 13 ; Gallaher vs. Roberts, 1 Wash. C. C. 320. (s) Co. Litt. 71, note b; Coop. Eq. PI. 110; Black. Com. 314; Story's Eq. PI. § 441 ; Verplank vs. Caines, 1 Johns. Ch. R. 57. THE DEFENSE TO A SUIT. 99 Demurrer to a Bill — Its Nature and Uses. admits that which is well stated or pleaded, {t) It does not admit any matters of la\v which may be suggested in the bill, or inferred from the facts stated in it ; nor any fact that is not specifically charged, [u) A demurrer may be sustained on the ground of the staleness of the claim set up in a bill, (v) and lapse of time sufficient to create a bar under the statute of limitations unaccounted for by the bill, may be taken advantage of by demurrer, {w) It is otherwise if the laches are accounted for by the bill, {x) A demm-rer may be to the whole bill, or to a part only of the bill ; and the defendant may, therefore, demm* as to part, plead as to another part, and answer as to the residue of the bill. But each of these modes of defense must be actually applied to different and distinct parts of the bill, and so applied that each will be consistent with the other ; so that one will not overrule the other, {y) Thus, for example, if there is a demurrer to the whole bill, an answer to a part thereof is in- consistent, and the demurrer will be overruled, {z) For the same reason, if there is a demurrer to a part of a bill, there {f) Stowe vs. Russell, 36 111. 18 ; Mills vs. Brown, 2 Scam. 549 ; Moore vs. Iloisington, 31 111. 243 ; Verplank vs. Gaines, 1 Johns. Ch. R. 57 ; WasJiing- ton etc. Road vs. State, 19 Md. 239 ; Newell vs. Supervisors Bureau Co. 36 111. 253 Baker vs. Booker, 6 Price, 381; Chotean vs. Rice, 1 Minn. 106; Harr. Ch. R. 308; Barton's Suit in Eq. 96; 1 Dan. Ch. Pr. 601; Diniliam vs. Ilnde Park, 75 111. 371: Rohy vs. Cossitt, 78 111. 638. (») Sloice vs. Russell, 36 111. 18; Green vs. Dodge, 6 Ham. 80; Smith vs. Ilnirtf, 15 Iowa, 385; Coop. Eq. PL 111; Williams vs. Steward, 3 Meriv. 472, 492; Enrle vs. Holt, 5 Hare, 180; Baker vs. Booker, 6 Price, 381; IValton vs. Westwood, 73 111. 125; Judson vs. Stephens, 75 111. 225. (») Gopen vs. FlesTier, 1 Bond, 440. {w) Rhode Island vs. Massachusetts, 15 Pet. 223 ; Maxwell vs. Kennedy, 8 How. U. S. 210 ; Wisner vs. Barnet, 4 Wash. C. C. 631. (x) lb. (1/) Coop. Eq. PL 112,113; Tidd vs. GUii'e, 2 Dick. 712; Potarlington vs. Soulby, 6 Sim. 356 ; Lord Red. 214 ; Livingston vs. Story, 9 Pet. 632 , Spofford vs. Manning, 6 Paige, Ch. R. 383 ; Pierpont vs. Fowle, 2 Woodbury & Minot's R. 23. (s) Brill vs. Stiles, 35 111. 305 ; Davies vs. Davies, 2 Keen, R. 538 ; Clark vs. Phelps, 6 Johns. Ch. R. 214 ; Heath vs. Erie R. R. Co. 8 Blatchf . 347 , Miller vs. Furse, 1 Bailey's Ch. R. 187. 100 THE DEFENSE TO A SUIT. Demurrer to a Bill — Its Nature and Uses. cannot be a plea or answer to the same part, without over- ruling the demurrer. («) After answer, it is too late to demur, unless the answer is first withdrawn by leave of court, (h) It is a rule that a plea, or answer, and demurrer to the same matter, cannot stand together, and the plea or answer over- rules the demurrer, (c) But the 37th rule of the Rules of Practice for the Courts of Equity of the United States, revised and corrected at the December term, A. D. 1870, has abolished this doctrine. It. declares that " 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." The same rule exists in the English chancery orders of 1841. {d) If a demurrer is too general, that is, if it covers, or is applied to the whole bill, when it is good to a part only ; or if it is a demurrer to a part only, but is not good to the full extent which it covers, but is so only to a part, it will be overruled ; {e) for it is a general rule, that a demurrer cannot be good as to a part which it covers, and bad as to the rest ; and, therefore, it must stand or tall altogether, {f) If the court sustains a demurrer in part, and overrules it as to the residue, the com- plainant, by amending his bill, and the defendant, by answer- ing the amended bill, waive the irregularity, {g) {a) Story's Eq. PI. § 443 ; Jones vs. Strafford, 3 P. Wms. E. 80 ; Bonner vs. Fortescue, 2 Atk. R. 282 ; Kuyper vs Ref. Dutch Oh. 6 Paige, Cli. R. 570. [b) Brill vs. Stiles, 35 111. 305. (c) Clarke vs. Phelps, 6 Johns. Cli. R. 214 ; Chase's Case, 1 Bland, 206 ; Robertson vs. Bingley, 1 M'C. Ch. 333 ; Saxon vs. Barksdale, 4 Dessau. 522 ; Baines vs. MeOee, 1 S. «& M. 208 ; Bank of Muskingum vs. Carpenter, Wright, 729. {d) Story's Eq. PI. § 443, n. 2 ; see DeU vs. Hale, 2 Younge & Coll. New R. 1. (e) Burling vs. Hammer, 20 N. J. Eq. R. 220 ; Brovonlee vs. Lockwood, 20 N. J. Eq. R. 239 ; 3 Green's N. J. R. 270 ; Banta vs. Moore, 2 McCarter's N. J. R. 97; Hawkins vs. Clement, 15 Mich. 511 ; Treadicell v.s. Brown, 44 N. H. Rep. 551 ; Brown vs. Hogle, 30 111. 119 ; Blount vs. Garen, 3 Hey. 88; Fancher vs. Bigraham, 6 Blaclif. 139 ; Heath vs. Ei-ie R. R. Co. 8 Blatchf. C. C. 347. (/) Story's Eq. PI. ^443; Metcalf vs. Hervey, 1 Ves. 248; Higginbotham vs. Burruet, 5 Johns. Ch. 136 ; Todd vs. Oee, 17 Ves. 273 ; Knight vs. Moseley, Aml^l. 17G; Wynne vs. Jackson, 1 McClell. & Younge, 35. (g) Marshall vs. Vicksburg, 15 Wall. 149. THE DEFENSE TO A SUIT. 101 Demurrer to a Bill — Its Nature and Uses. It was formerly the rule, that if a demurrer does not cover 80 much of the bill, as it might by law have extended to, it would be held bad ; {/i) but this doctrine is, liowever, now changed by the orders of the English court of chancery, (^) and the rules of the supreme court of the United States, (j) which provide, " That no demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to." A demurrer may be put in, and several canses assigned ; and if one cause is good to the w4iole extent of the demurrer, and another is bad, the demurrer will be sustained ; for if both were bad, the defendant may, ore tenus, assign new causes of demur- rer at the argument to matters of substance, although not to matters of form ; so that any one good cause, existing of record, or otherwise assigned, will do. {/c) When there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good, and be sus- tained, as to one of the defendants, and be bad, and overruled as to the others ; for the defense may be good to one person, and wholly inapplicable to another. [1) When a bill in equity sets forth various claims to the inter- position of the court, and the defendant iiles a general demur- rer to the whole bill, it must be overruled if any of the claims afford a proper case for the jurisdiction of the court. (?/?,) The proper course is to demur to such claims as are entitled to no relief, and answer the balance, (n) (/i) Story's Eq. PL § 443 ; Dawson vs. Sadler, 1 Sim. & Stu. R. 537, 542. (i) 1 Craig & Phill. R. 379. ij) Rule 36 of the Rules of Pr. C. E. of U. S. 1870. {k) Stoiy's Eq. PI. § 443 ; Barton's Suit in Eq. 96 ; Coop. Eq. PI. 112, 113 ; Lord Red. 217 ; Jo7ies vs. Frost, Jac. 468. (I) Story's Eq. PL § 445 ; Coop. Eq. PL 113 ; jfai/or of London vs. Lecy, 8 Ves. R. 403, 404 ; Barstoio vs. Smitli, Walk. Cli. R. 394. {m) Brown vs. Hogle, 30 111. 119 ; Livingston vs. Story, 9 Pet. 632 ; Brock- way vs. Copp, 3 Paige, Ch. R. 539 ; Fancher vs. Ingraharn,, 6 Blackf. 139 ; Carter vs. Longworth, 4ilia,m. 384 ; Higginbotham vs. Burnet, 5 Johns. Ch. R. 184 ; Holledan vs. Johnson, 2 Geo. Decis. 146 ; Origgs vs. Thompson, 1 Geo. Decis. 146. (ti) Varick vs. Smith, 5 Paige, Ch. R. 137. 102 THE DEFENSE TO A SUIT. Demurrer to a Bill — Where it will Lie. Where a demurrer will lie. — If a bill shows upon its face that there is a want of siifhcient parties, (o) or a misjoinder of parties, (j:;) a demurrer will lie ; but it must point out who are the proper parties, {g) If the want of jurisdiction, (r) or the bar of the statute ol limitations, or defenses of a kindred character, {s) or the statute of frauds (^) appear upon the face of the bill, it will be obnox- ious to a demurrer, unless circumstances are alleged taking the case out of those statutes, {u) A demurrer will also lie where the bill is multifarious ; {v) or shows upon its face that the complainant has an adequate ((?) Spear vs. Campbell, 4 Scam. 424 ; Prentice vs. Kimball, 19 111. 330 ; Lowry vs. Harris, 12 Minn. 255 ; Walford vs. Phelps, 2 J. J. Marsh. 31 ; Mitchell vs. Lenox, 2 Paige, Ch. R. 281; Robinson vs. Smith, 3 Paige, Ch. R. 222 ; Story's Eq. PL § 541 ; see Hand vs. Dexter, 41 Geo. 454. {p) Berger vs. Potter, %% 111. 66; Christian vs. Crocker, 25 Ark. 327; Meiick vs. Melick, 2 Green N. J. R. 156 ; White vs. Delschneider, 1 Oregon R. 254. {q) Robinson vs. Smith, 3 Paige, Ch. R. 222; Dais vs. Bouchaud, 10 Paige, Ch. R. 445 ; Story's Eq. PL § 543; Lord Red. 108; Moore vs. Arm^ strong, 9 Porter, 697; Smith vs. Kornegay, 1 Jones' N. C. Eq. R. 40. (r) Smith vs. Morehead, 6 Jones' N. C. Eq. 360 ; C. & N. W. R. R. Co. vs. Nichols, 57 III. 464 ; Varick vs. Dodge, 9 Paige, Ch. R. 149. (s) Henry Co. vs. Winnebago etc. 52 111. 299 ; Id. 52 111. 454 ; Hovenden vs. Annesley, 2 Sch. & Lef. 637 ; Hardy vs. Reeves, 4 Ves. R. 479 ; Foster vs. Hodgson, 19 Ves. R. 180 ; Surtser vs. Skiles, 3 Gilm. 529 ; Denny vs. Oilman, 26 Maine, 149; School Trustees vs. Wright, 12 111. 432; Coster vs. Murray, 5 Johns. Ch. R. 522 ; Hook vs. Whitlock, 7 Paige, Ch. R. 373 ; Maxwell vs. Kennedy, 8 How. U. S. 222 ; Wisner vs. Burnet, 4 Wash. C. C. 631. (t) School Trustees vs. Wright, 12 111. 432 ; Surtser vs. Skiles, 3 Gilm. 529 ; but see Lear vs. Chouteau, 23 111. 39 ; Hull vs. Peer, 27 111. 312. (u) Henry Co. vs. Winnebago Drain Co. 52 111. 454 ; Story's Eq. PL g 503, 760, 751. (v) Henderson vs. Cummings, 44 111. 325; Burnett vs.. Lester et al. 53 111. 825 ; Wilson vs. Wilson, 23 Md. 162 ; Waller vs. Taylor, 42 Ala. 297 • Supervisors etc. vs. State's Attorney, 31 111. 68 ; Darling vs. Hammer, 20 N. J. Eq. R. 220; Oliver vs. Piatt, 3 How. U. S. 333; Many vs. Beekman Iron Co. 9 Paige, Ch. R. 188; Luckett vs. White, 10 Gill & J. R. 430; Thur- man vs. Shelton, 10 Yerg. 383; Bufnlom vs. Bafalow, 2 Ired. Ch. R. 113; Darcey vs. Lake, 46 Miss. 109; AtwUl vs. Ferretf, 2 Bhitchf. C. C. 39; Grain vs. Kennedy, 85 111. 340 THE DEFENSE TO A SUIT. 103 Demurrer to a Bill — Where it will Lie. remedy at law ; {w) except in cases of fraud {x) and trusts (y) ; in which courts of equity retain jurisdiction, notwithstanding courts of law may also have jurisdiction. A demurrer will also be sustained where the bill shows a ■want of title or interest in the complainant to the thing demanded ; {z) and where a party, having no interest in the controversy, is improperly joined as a party complainant, {a) and where the bill shows no equity on its face, (b) or is brought for a part of a matter only, (c) or fails to show some claim or interest in the defendant, {d) The question whether a bill shows equity on its face should be raised by demurrer, and not by motion, {e) But in some cases where no objections were interposed as to manner of raising the objection, the bill has been dismissed upon mo- tion, {f) But if the complainant objects to the raising of the question in that manner, the motion will not be entertained, {w) Wangelin vs. Ooe, 50 111. 459 ; Wylder vs. Crane, 53 111. 490 ; The People vs. City of Oalesburg, 48 111. 485 ; Lynch vs. Willard, 6 Johns. Ch. R. 342 ; Bottorf vs. Conner, 1 Blackf. 287 ; Foster vs. Swasey, 2 W. & M. C. C. 217 ; Tarbell vs. Bowman, 103 Mass. 341 ; Scruggs vs. Blair, 44 Miss. 406 ; Jet^ne vs. Osgood, 57 III. 340. (a;) Bahcock vs. McCamant, 53 111. 215; Ogden vs. Larrabee, 57 111. 389 ; Truett vs. Warnwright, 4 Gilm. 418 ; Kennedy vs. Northup, 15 111. 148. (y) Coates vs. Woodworth, 13 111. 654 ; Norton vs. Hixon, 25 111. 440. (z) Bamere vs. Rawlins, Finch, 36 ; Newman vs. Holder, Id. ; Stooke vs. Vincent, 1 Collyer, 527 ; Story's Eq. PI. § 503. (a) Plummer vs. May, 1 Vern. 426 ; Bineley vs. Dineley, 2 Atk. 394 ; How vs. Best, 5 filad. 19 ; Welf. Eq. PI. 283. (6) President etc. vs. 8. 111. N. Uni. 54 111. 334 ; Calhoun vs. Powell, 42 Ala. 645; Winkler vs. Winkler, 4S) 111. 179; Harris vs. Galbraith, 43 111. 309; Moore vs. Armstrong, 9 Porter, 697. (c) Hinde, Ch. Pr. 157 ; Lord Red. 16 ; Story's Eq. PI. § 287. {d) Wych vs. Meal, 3 P. Wms. R. 311 ; Stewart vs. East India Co. 2 Vern. 380 ; Attorney General vs. Bradford Canal Co. 3 Eq. Cas. Abr. 78. (e) Town of Tamoroa vs. Trustees etc. 54 111. 334 ; Winkler vs. Winkler 40 111. 179 ; Harris vs. Galbraith, 43 111. 309 ; Brill vs. Stiles, 35 ill. 30-^) ; Cal- houn vs. Powell, 42 Ala. 645 ; Moore vs. Armstrong, 9 Porter, 697. (/) Thomas etc. vs. Adams, 30 111. 37 ; Edwards vs. Beaird, Breese, 70 ; Fisher vs. Stone, 3 Scam. 68 ; Greathouse vs. Kipp, Id. 371 ; State Bank vs. Stanton, 2 Gilm. 352; Puterbaugh vs. Elliott, 22 111. 157. 104 THE DEFENSE TO A SUIT. Demurrer to Bill — General, Special, etc. and if filed will be stricken off. If no objections are inter- posed the motion is treated the same as a demurrer, ig) Demmrers are either general or special. General demurrer. — Demurrers are general when no parti- -cular cause is assigned, except the usual formulary that there is no equity in the bill. (A) Sjpecial demurrer. — Demurrers are special, when the par- ticular defects or objections to a bill are pointed out. A special demurrer is indispensable, where the objection is to the defects of the bill in point of form, (z) The objections pointed out should not be argumentative, but must be set down with reasonable certainty and dh-ectness. {j) Where a defendant, to a bill praying relief, demurs to the dis- covery only, he cannot do so under a general demurrer for want of equity, but must make it a subject of special demurrer, (k) Several causes of demurrer. — A defendant is not limited to show one cause of demurrer only. He may assign as many causes as he pleases, either to the whole bill, or to each part of the bill demurred to ; and if any one of the causes assigned holds good, the demurrer will be allowed. (?) Separate demurrers. — A defendant may also put in separate demurrers to separate and distinct parts of a bill, for separate {g) Town of Tamaroa vs. Trustees etc. 54 111. 334 ; Vieley vs. Thompson, 44 111. 9. (/i) Barton's Suit in Eq. 107, 108 ; Story's Eq. PI. §455; Harrington vs. McLean, 1 Phillip's N. C. Eq. 258. (^■) McCloskey vs. McCormick, 44 111. 336 ; Pogue vs. Clark, 25 111. 351 ; McElwain vs. Willis, 3 Paige, Cli. R. 505 ; Forbes vs. Whitlock, 3 Edw. Ch. R. 446 ; N'ash vs. Smith, 6 Conn. R. 421 ; Marsh vs. Marsh, 1 Green, N. J. 391. (j) Story's Eq. PI. § 455 ; Barton's Suit in Eq. 97 ; Mitf. Eq. PL 213, 214. (k) Whittingham vs. Burgoyne, 3 Anat. 900 ; 1 Barb. Oh. Pr. 107. [l) 1 Barb. Ch. Pr. 107 ; Ilarrison vs. Hogg, 2 Vcs. Jr. 333 ; Jones vs. Frost, d Mad. 1. THE DEFENSE TO A SUIT. 105 Demurrer to Bill — Speaking Demurrer — Demurrer ore tenua. and distinct causes ; (m) for the same grounds of demurrer, fre- quently, will not aj^ply to different y^arts of a bill, though the whole may be liable to demurrer; and in such a case one demurrer may be overruled, upon argument, another allowed, {n) Speaking deinarrer. — Care must be taken, in framing a demuri-er, that it be made to rely only upon the facts stated in the bill ; otherwise it will be what is termed a speaking demurrer, and M'ill be overruled, (o) A S23eaking demurrer is one which introduces some new fact or averment which is necessary to support the demurrer, and which does not dis- tinctly appear upon the face of the bill. (j^.>) Demurrer ore tenus. — Where a demurrer is put into the whole bill, for causes assigned on the record, if those causes are overruled, the defendant will be allowed to assign other causes of demurrer, ore Unus^ at the argument. (^) But in such a case, if tlie demurrer, ore tsnus, is allowed, the defendant is not entitled to his costs, even though he may not be obliged to pay costs on the demurrer on record, which has been over- ruled, {r) But a demurrer, ore tenus, will never be allowed, unless there is a demurrer on record ; for if there is a plea on record, and that is disallowed, a demurrer, ore tenus, will also be disallowed, (.s) Whenever a demurrer, ore tenus, is (m) Mitf. Eq. PI. 174 ; 1 Barb. Ch. Pr. 107 ; North vs. Earl of Strafford, 3 P. Wms. 148 ; Bdberdean vs. Rous, 1 Atk. 544. (?i) 1 Barb. Cb. Pr. 107; North vs. Earl of Strafford, 3 P. Wms. 148. (o) Broicnsword vs. Edwards, 2 Yea. 245 ; Tallmadge vs. Lovett, 3 Edw. Ch. 563 ; Lajnb vs. Starr, 1 Deady, 350. (p) 1 Barb. Ch. Pr. 107; Brooks vs. Gibbons, 4 Paige, Ch. R. 374; Bavies vs. Williams, 1 Sim. 5 ; Cawthorn vs. Chalie, 2 Sim. & Stu. 127 ; Kuypers vs. Butch Ref Ch. 6 Paige, Ch. R. 570 ; Story's Eq. PL § 448 ; Coop. Eq. PI. 111. {q) Story's Eq. PI. §464; Coop. Eq. PI. 112; 1 Barb. Ch. Pr. 108; Cart- wright vs. Ghreen, 8 Ves. 409 ; Beame's Ord. in Ch. 174 ; Brickerhoff v.-^. Brown, 6 Johns. Ch. 149 ; Vanhorn vs. Buckworth, 7 Ired. Eq. R. 261 ; Caldiodl vs. Blackwood, 1 Jones' N. C. Eq. 274. (r) lb., lb. {s) Coop. Eq. PI. 112 ; Bundant vs. Redman, 1 Vern. 78 ; Attornc!/ Gene- ral vs. Broicn, 1 Swanst. 288 ; Hook vs. Borman, 1 Sim. & Stu. 227 ; Story's Eq. PI. § 443, 464. 106 TKE DEFENSE TO A SUIT. Demurrer to Bill — Demurrer coupled with Answer. pennitted, it must be for some cause wliich covers the whole extent of the demurrer, {t) And it has been held that the right to put in such a demurrer, ore tenus, applies only to cases where the demurrer is to the whole bill, and not to cases where it is to a part only, notwithstanding it is coextensive with the demurrer to that part, {u) Demurrer coupled with an answer. — Where a demurrer is to part of the bill only, the answer to the remainder usually fol- lows the statement of the cause of demurrer, and the demand of judgment whether the defendant ought to be held to make further or other answer. But as the demurrer asks the judg- ment of the court whether the defendant shall make further or other answer to the 1)111, or to that part demurred to, it would be inconsistent if the defendant, after making such sub- mission, were to be permitted to answer the bill, or that part of it which is intended to be covered by the demurrer. (?j) It is for this reason, well settled, that an answer to any part of a bill demurred to will overrule the demurrer ; {w) even though the part answered be immaterial, {x) But a demurrer for multifariousness is not overruled by an answer denying confederacy ; {y) nor is a demurrer to relief only overruled by an answer as to the discovery, (s) The fact that a bill does not ask for the proper relief, or asks for inconsistent relief, is no ground for demurrer, {a) {t) Baker vs. Hellish, 11 Ves. 70-76 ; Stilhcell vs. McNeeley, 1 Green, Cli. R. 305. {v) Shepherd vs. Lloyd, 2 T. & Jerv. 490 ; 1 Barb. Ch. Pr. 109 ; Story's Eq. PI. § 464 ; see Grouch vs. HicJcen, 1 Keen, 385 ; Qarlick vs. Strong, 3 Paige, Ch. R. 453. («) Jones vs. Ea/rl of Strafford, 3 P. Wms. R. 81 ; 1 Barb. Ch. Pr. 108. (id) Tidd vs. Clare, 2 Dick. R. 81 ; Hester vs. Weston, 1 Vern. R. 463 ; Roberts vs. Clayton, 3 Anst. R. 715. {x) Mitf. Eq. PI. 172 ; 1 Barb. Ch. Pr. 108 ; Savage vs. Smalehroke, 1 Vern. 90. iy) Hester -vs.Weston, 1 Vern. R. 463; 1 Eq. Cas. Abr. 40. (2) 2 Dan. 76; 1 Barb. Ch. Pr. 108. (a) Conner vs. Board of Supervisors, 10 Minn. 439. THE DEtENSE TO A 8UIT. 107 Demurrer to a Bill — When to be Filed — Hearing, etc. Demurrer to plea or answer. — The practice of demurring to an answer is in violation of all the rules of chancery prac- tice, and will not be tolerated. (5) The same may be said of demurring to a plea. The proper practice is to set down the plea for hearing, when its sufficiency will be considered. (c\ When to he filed. — A demurrer should be filed before the complainant is entitled to a default, and all objections to the bill must be made in the court where the same is filed. It is too late to make objections to the sufficiency of the bill, for the first time in the supreme court, {d) In the courts of equity of the United States no demurrer will be allowed to be filed, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and is supported by the affidavit of the defendant, that it is not inter- posed for delay, {e) Hearing, — In hearing a demurrer, the argument is strictly confined to the case appearing upon the record ; and, for the pur]30se of the argument, the matters of fact stated in the bill are admitted to be true, {f) Effect of sustaining demurrer. — On a demurrer to the merits of the whole bill, if it is sustained, the bill will be dis- missed, and the court will not grant leave to amend, {(j) But the allowance of a partial demurrer, (A) or a special demurrer on matters of form, or where the court can see that the objec- tions to the bill can be obviated by amendment, it will be (6) Stone vs. Moore, 26 111. 165 ; Story's Eq. PI. § 456. (c) Lester vs. Stevens, 29 111. 155; Mitf. Eq. PI. 301 ; Coop. Eq. PI. 231; Durant vs. Redman, 1 Vern. 78 ; Thomas vs. Brashear, 4 Monr. 65. {d) Hickey vs. Forristal, 49 111. 255 ; Nelson vs. First Nat. Bank, Chicago, 48 111. 36. {e) Rule 31, Rules of Prac. for the C. E. U. S. 1870. (/) East India Co. vs. Hinchman. 1 Ves. Jr. 289 ; 1 Barb. Ch. Pr. Ill ; Wales vs. Bank of Michigan, Harring. Ch. R. 308 ; Green vs. Dodge, 6 Ham. 80. {g) 1 Johns. Ch. R. 184 ; Smit7i vs. Barnes, 1 Dick. 67 ; Watkins vs. Bush, 2 Dick. 701. {h) 1 Barb. Ch. Pr. Ill ; Mitf. Eq. PI. 214. 108 THE DEFENSE TO A SUIT. Demurrer to Bill — Form of General Demurrer. attended with no such consequences, (^) and unless leave to amend is asked, a dismissal of the bill is the proper decree. (J) Effect of overruling demurrer. — If a demurrer is overruled as frivolous, the defendant may have leave to amend ; if, how- ever, he refuses or neglects so to do, the complainant may have an order that the bill be taken as confessed. If the cause of demurrer to a bill can be removed by an amendment, the court may, without deciding the demurrer, allow the complainant to amend his bill, npon payment of the costs incurred by the defendant, {k) Upon overruling a demurrer it is not necessary that the courjt should rule the defendant to answer, but may at once proceed to a decree. (Z) Notwithstanding a demurrer to a bill is overruled, the defend- ant is entitled to file an answer, (m) 1^0. 16. Frame of a general demurrer. In the Court. C. D. ) Term, 18—. ats. )- In Chancerv. A. B. ) Tlie demurrer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant, by protestation, not confessing or acknowl- edging all or any of the matters and things in the said bill of complaint contained to be true, in such manner and form as the same are therein and thereby set forth and alleged, {a) demurs to said bill, and for cause of demur shows,* that, etc. {Here set forth the cause of demurrer.) {{) Parker vs. Aloch, 1 Young & Jer. R. 194 ; 1 Har. Pr. 61 ; 1 Dan. 524 ; Holmes vs. Waring, 8 Price, 604. {j) McDowell vs. Cochran, 11 111. 31. {k) Crowder vs. Turney, 3 Cald. Tenn. 551. {I) Wangelin vs. Goe, 50 111. 459 ; Roach vs. Chapin, 27 111. 194. (m) Smith vs. Ballentyne, 10 Paige, Ch. R. 101 ; North-western Bank vs. Jfelson, 1 Gratt. Va. 108 ; Sutton vs. Gatewood, 6 Munf. 398 ; Forrest vs. Robinson, 4 Porter, Ala. 44 ; Avery vs. Holland, 2 Overton, 71 ; Bottorf vs. Conner, 1 Blackf. 287 ; Lefavour vs. Justice, 5 Blackf . 366 ; Barb. Ch. Pr. 112 ; Barnard vs. Cnshman, 35 111. 452. THE DEFENSE TO A SUIT. 109 Demurrer to Bill — Short Form of Demurrer. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, this defendant demurs to the said bill, and to all the matters and things therein con- tained, and prays the judgment of this honorable court whether he shall be compelled to make any Inrther or other answer to the said bill, and he prays to be dismissed with his reasonable costs in this behalf sustained. By Solicitor for defeiidant. It has been the general practice in framing a demurrer to introduce a protestation against the truth of any of the facts alleged in the bill ; but it has no w^eight with the court, and is entirely useless, {n) The following form may, therefore, suffice. No. 17. Short form, of demurrer. {Title of cause as in No. 16.) The demurrer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant demurs to the said bill, and for cause of demur shows,* that, etc. {Here insert the cause of demurrer^ Wherefore this defendant demurs to the said bill, and to all the matters and things therein contained, and prays the judg- ment of this honorable court whether he shall be compelled to make any further or other answer thereto, and prays to be dismissed with his reasonable costs in this behalf sustained. Demurrer or Plea to Bill in the United. States Court. — The 31st Eule of Practice for the courts of equity of the United States, provides that " no demurrer or plea shall be allow^ed 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 feet." The certificate of counsel in such case may be as follows : (n) Barton's Suit in Eq. 99, note(l); Story's Eq. Pl.§452; Mitf. Eq. PI. 107, 211, 212 ; Coop. Eq. PI. 111. 110 THE DEFENSE TO A SUIT. Demurrer to Bill, etc. — Demurrer for want of Equity. 1^0. 18. Certificate of counsel that a demurrer to a MIX i/n TJ. S. Court is well foxmded in law. {Following the demurrer add :) I certify that, in my opinion, the foregoing demurrer of C. D., defendant, to tlie bill of complaint of A. B., complainant, is well founded in law, and proper to be filed in the above cause. Sol. for defendant. The affidavit of the defendant that the demurrer is not inter- posed for delay, may be in the following form : iVo. 19. Affidavit of defendant that a demurrer to a hill i/n the TJ. S. Court is not interposed for delay. [Following the certificate of counsel add :) United States of America, [ District of ss. C. D., 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 interposed for the purpose of delaying said suit, or any proceedings therein. C. D. Subscribed, etc. No. 20. Demurrer for want of equity. [Comnnence 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 deinurrer, insert at the (a) in the above precedent, the following :) "And for a far- ther cause of demurrer this defendant shows, that, etc. {Here set forth the further cause of demurrer, a/nd so on, and conr elude :) Wherefore, etc., {as in No. 16.) THE DEFENSE TO A 8U1T. HI Demurrer to Bill — For Multifariousness — Want of Parties, etc. No. '21. Demurrer f 07' Multifariousness. {Com.mence 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 biL is altogether multifarious. Wherefore, etc. {Conclude as in JVo. 16.) No. 22. Demurrer for want of pai'ties. [Co'inmence 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. II., 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 complainant has not made the said G. H. a party to said bill. Wherefore, etc. [Conclude as in No. 16.) No. 23. Demurrer for want of 'privity. {Commence as in No. 16, ante, jpage 108, to the *, and state cause 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. 24-. Demurrer to a bill of discovery, where the defendant could he examined as a witness. {Co7mne7ice 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, tliat this defendant has, or pretends to have, 112 THE DEFENSE TO A SUIT. Demurrer to Bill — Demurrer to part of Bill, etc. any right, title or interest in the matters and things complained of by the said bill, or any of them ; or any right to call upon this defendant, in a court of equity, for a discovery of said matters and things, or any of them. And that for anything that appears to the contrary by said bill, this defendant may be examined as a witness in this suit. Whei-efore, etc. {Conclude as in No. 16.) No. ^6. DemiLvreT to a hill^ where the complainant has no interest in the subject. [Commence as in No. 16, ante, page 108, to the *, and state cause of deimirrer 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 part cf 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 demjui'red 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 demurrer^ as to the matters hereinbe- fore specified, or any of such matters. Wherefore, and for divers other good causes of demurrer appearing in tlie 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 bill as is so demurred to as aforesaid. By Sol. for Defendant. No. 27. Demurrer to p>art of a hill, with an answer to the residue. {Proceed as in last forin. 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. {Continu£ as in form of am. answer, No. 57, post.) THE DEFENSE TO A SUIT. US'- Plea to a Bill — Nature of. SECTION IV. II. 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 wliole bill, if his defense equally applies to aU parts thereof, (c) Pleas are usually divided into two sorts; one commonly called pure pleas, which contain matter wholly dehors the 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 office 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 (a) Story's Eq. PI. § 647 ; Mitf. Eq. PI. 219. (&) Story's Eq. PI. § 439, 647 ; Aggas vp. Pickerill, 3 Atk. 236 ; Ha/rria vs. Pollard, 3 P. Wms. R. 348 ; Coop. Eq. PI. 302 ; see Bowe vs. Tweed, 15' Ve3.377. (c) Bowes vs. McMichael, 6 Paige, Ch. R. 383 ; Lord Red. 214 ; Story'a Eq. PL § 647 ; Mitf. Eq. PL 319 ; Beard vs. Bowler, 2 Bond, 13- {d) Story's Eq. PL § 667, 051 ; 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. 8 114 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. (/*) But, although a defense, offered by way of plea, should consist of a great variety of circumstances, yet, if tliey 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 pkopek. — 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 TV, in bar. (e) Story's Eq. PI. § 652 ; Mitf . Eq. PI. 295 ; Coop. Eq. PI. 223 ; Chapman vs. Turner, 1 Atk. R. 54 ; Ritclde vs. Aylioin, 15 Ves. R. 82 ; Bowe vs. Tweed, 15 Ves. 378 ; Wood vs. Rowe, 2 Bligh, R. 595, 614 ; Heartt vs. Corii- ing, 3 Paige, Ch. R. 566. (/) Robertson vs. Lubbock, 4 Sim. R. 161; Salters vs. Tobias, 7 Johns. Ch. E. 214; 2 Dan. Ch. Pr. 102-104. {g) Story's Eq. PI. § 652 ; 2 Dan. Ch. Pr. 103 ; Mitf. Eq. PI. 296 ; Bitehie TS. Aylwin, 15 Ves. 82 ; Dawson vs. Pilling, 16 Sim. R. 203. {h) Loud vs. Sergeant, 1 Edw. Ch. R. 164. (f) Meeker vs. Marsh, Saxon R. 198 ; see Piatt vs. Oliver, 1 McLean, 295 ; Lewis vs. Baird, 3 McLean, 56. (J) Phelps vs. Oarrow, 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 tlie juris- diction does not dispute the right of the complainant in the suit, hut simply asserts eitlier 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 difficult to dis- guise any case, wliich this plea would reach, so as to avoid a demurrer; but there may be instances to the contraiy, 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. (1) 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, (m) 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 {T) Barton's Suit in Eq. 103 ; Burger vs. Potter, 32 111. 66 ; Lester vs. Stevens, 29 111. 155 ; Varick vs. Dodge, 9 Paige, Ch, R. 149 ; see Story's Eq. PI. § 710-721; Emerson vs. W. U. R.R. Co. 75 111. 176. (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. (n) Harrison vs. Urann, 1 Story, 64. 116 THE DEFENSE TO A SUIT. Plea to a Bill — Plea to tlie 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, [o) The bankruptcy of the complainant, and non-joinder of his assignee, must be pleaded ; it cannot be insisted on by way of answer, {p) 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) lY. Pleas in bar. — 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 i/n 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. § 723-739 ; Mitf . Eq. PI. 230 ; Beame's PI. in Eq. 120-122 ; Coop. Eq. PL 249, 250 ; Ord vs. Huddleston, 2 Dick. 510. ip) 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. § 748-778. THE DEFENSE TO A SUIT. 117 Plea to a Bill — Frame of Plea. wife, the words " and several" should not be inserted ; though 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, {u) 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) A 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 imper- 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, (s) The plea commonly concludes with a repetition that the matters so oiFered are relied upon as an objection or bar to the (s) 1 Barb. Ch. Pr. 115 ; Paoie vs. A' Court, 1 Dick. R. 13 ; Story 'a Eq. PI. § 736-739. («) 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 ; (x) Sims vs. Lyle, 4 Wash. C. C. Rep. 301. (w) Milligan vs. Milledge, 3 Cranch, R. 220. (x) Sims vs. Lyle, Wash. C. C. Rep. 301. iy) Allen vs. Randolph, 4 Johns. Ch. R. 693 ; see also Bogardus vs. Trinity ChurcJi, 4 Paige. Ch. R. 178. (a) Merreweather vs. MellisJi, 13 Ves. 437-8. 118 THE DEFENSE TO A SUIT. 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 tlie 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. Q)) 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 the 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) Mltf. Eq. PI. 300 ; 1 Barb. Ch. Pr. 116. (&) Nubldssen vs. Hastings, 2 Ves. Jr. R. 84 ; Jo7ies 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 Bland, 493 ; Ridgeley va. Warfield, 1 Bland, 194. (e) Nabob of Arcott vs. East I. Co. 3 Bro. C. C. 293; 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 tlie same protestation against waiver of the plea, {f) If tlie plea is such, that an answer is required to support it, it will be overruled, unless such answer is put in. {g) FORMS OF PLEAS. No. ^8. Commencement and conclusion of pleas to the ■whole hill. court. Term, 18 —. In Chancery. 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 suhject m.atter of the plea, and conclude as folloios :) All whicli 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 pleas to part 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 such manner and form as the same are thereby and therein set forth and alleged, fol* plea to so much and such parts of said bill as prays, etc., (or seeTcs a discovery^ from this defendant,) says, that, etc. (/) Mitf. Eq. PL 300; 1 Barb. Ch. Pr. 117. . ig) Schtmrz 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 age 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.) (A) Emerson vs. Clayton, 33 111. 493 ; Cole vs. Van Riper, 44 111. 58 ; Man- ning vs. Rixford, lb. 139 ; G. B. & Q. R. R. Co. vs. D'un7i, 53 111. 260. 122 THE DEFENSE TO A SUIT. Plea to a Bill — Want of Proper Parties — Former Suit Pending. No. SJi-. Plea of want of proper parties. {Commence as in No. 28, ante, page 119, to the *.) That as to so much of the complainant's bill as eoeks an account from this defendant, as executor and heir-at-law of E. F., deceased, in tlie 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. Et. 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 real 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, page 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, eia. {Conclude as in No. ^8.) 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. {Coimnence 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 Avay 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. [Conohule a--^ in No. 38.) No 37. Plea of a release, 'with answer in support of the same. {Commence as in No. 28, ante, 2)age 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. 249 124 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, reraise, 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, lairly 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. Therelbre, this defendant pleads the said release in bar to so much of the complainant's bill as is hereinbefore particularly mentioned, and prays 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 jjlcci and answer.) No. 38. Plea of a stated account. {Commence as in No. 28, ante, jjage 119, to the *.) That as to so much and such part of the complainant's bill as seeks an account of and concernino- the dealinfys and transactions therein THE DEFENSE TO A bUIT. 125 Plea to a Bill — Plea and Answer. alleged 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 \/as previously to the said bill being filed, the complainant and this defendant did make up, 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 apj)eared 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 receipt 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 suppoi't of the plea, to suit the case. Also, add affidavit of the truth of the plea.) 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 p)lea.) 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 this 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 a/nswer 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 jpais must be sworn to, (k) 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. (Z) 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, in) 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, (o) When to te 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. Ch. Pr. 117 ; Simes vs. Smith, 4 Mad. 366. (A) Bunn V3. Eeegin, 3 Scam. 293 ; Wall vs. Stubhs, 2 Vea. & B. R. 854 ; vs. Davies, 19 Ves. 81 ; Eeartt vs. Corning, 3 Paige, Ch. R. 566. {I) Mitf. Eq. PI. 247, 301 ; Urlin vs. Hudson, 1 Vern. 333. (m) Jefferson vs. Dawson, 3 Ch. Cas. 208. (n) Heartt vs. Corning, 3 Paige, Ch. R. 566. (p) Wall vs. Stubhs, 2 Ves. & B. R. 354 ; Heartt vs. Corning, 3 Paige, Ch. R. 566. THE DEFENSE TO A SUIT. 137 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. (/') 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, {i) 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 plea 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, {w) 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) Kilgour vs. Crawford, 51 111. 249 ; Dunn vs. Keegin, 3 Scam. 292. (?) Mitf. Eq. PI. 301-2; 1 Barb. Ch. Pr. 119; 4 Gilm. 57. (r) lb. ; Harris vs. Ingledew, 3 P. Wms. R. 95 ; Daniels vs. Taggart, 1 Gill & J. R. 311. (s> 2 Ves. R. 247 ; Ord vs. Huddleston, Dick. R. 510. {t) Wichalse vs. Short. 3 Bro. P. L. 558 ; Hinde, Pr. 225 ; Msh vs. Miller, 5 Paige,'€li. R. 26 ; Bogardiis vs. Trinity Cliurch, 4 Paige, Ch. R. 178. {u) Fish vs. Miller, 5 Paige, Ch. R. 26 ; 1 Barb. Ch. Pr. 119 ; Bogardua vs. Trinity Church, 4 Paige, Ch. R. 178. (c) Spencer vs. Bryan, 9 Ves. R. 231 ; 1 Barb. Ch. Pr. 120. {w) Lester vs. Stevens, 29 111. 155 ; Thomas vs. Bra^hear, 4 Monr. R. 65. 128 THE DEFENSE TO A SUIT. Plea to a Bill — Effect of Allowing Plea. ment of the plea, the answer may be read to counterprove 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, whereu^^on 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 avennents in the plea and by the answer in support of the same, must be taken as true, (s) 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, (b) 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 fiill 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 (x) Mitf. Eq. PI. 304 ; Hildyard vs. Cressy, 3 Atk. 304 ; 1 Barb. Ch. Pr. 120 ; Story's Eq. PI. § 697. (y) lb.; Hildyard vs. Cressy, 8 Atk. R. 304. (s) 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 matters of a negative nature, such as denial of notice, fraud, etc., it will be necessary 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 henefit 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 ) (d) Mitf . Eq. PI. 302. (e) 1 Barb. Ch. Pr. 121. (/) 1 Barb. Ch. Pr. 121 ; Eyere vs. Dolphin, 2 Ball & B. K. 303 ; Saunders vs. Leslie, 2 Ball & B. 515. (g) Mitf. Eq. PI. 303 ; Astlep 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. (i) Gilb. For. Rom. 64. (j) Heartt vs. Corning, 3 Paige, Ch. R. 566; 1 Barb. Ch. Pr. 122; see Payne vs. Avery, 21 Mich. 524. 9 130 THE DEFENSE TO A SUIT. Plea to a Bill — Standing for Answer — Overruling, etc. Allowing plea to stand for answer. — When a plea is per- mitted to stand for an answer, it is determined that 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. Qc) Overruling 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. (Z) 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, {n) '^hen plea must he supported hy answer. — Where there is any statement or charge in the bill which afibrds 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) {k) 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. Ch. Pr. 122; Sellen VB. Lewen, 3 P. Wms. R. 239 ; Story's Eq. PI. § 696-700. {T) Story's Eq. PI. § 699. (m) Dows vs. McMichael, 2 Paige, Ch. R. 345 ; Brownsword 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 where such negative averments as those above stated are not necessary. When the defense can be made by a jmre 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 : ji/rst^ those where the complainant admits the existence of a legal bar, and chai-ges 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 may be true and to which there may 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 ; {f) 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) (^) 1 Barb. Ch. Pr. 128 ; Wigram on Disc. 36 ; Wood vs. Strickland, 2 Ves. & B. 158 ; 2 Dan. Ch. Pr. 99, 100 ; Story's Eq. PI. § 670. (g-) 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. § 671 ; Foley vs. Hill, 4 Mylne & Craig, 475. (8) Hildyard vs. Gressy, 8 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, {u) 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. Nature 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. Oressy, 3 Atk. R. 303. (u) Mitf. Eq. PL 299 ; Waters vs. Olanxille, Glib. R. 184; 1 Barb. CIi. Pr. 129. {v) Id. {w) Eeartt vs. Corning, 3 Paige, Cb. R. 566 ; see also Story's Eq. Pr. § 681, 682. THE DEFENSE TO A SUIT. 133 Answer to a Bill — Nature of. bouud, 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 ; (b) 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 I'ights 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 ; fi7'st, the defense to the case made by the (a) Story's Eq. PI. § 846 ; Mitf. Eq. PI. 307, note (li), 316, note (q) ; Davis vs. Gollier, 13 Geo. E. 485. (6) Adams vs. Porter, 1 Cusli. 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, Cli. R. 589 ; Wolfe vs. Wolfe, 2 Har. & G. 383 ; Hayes vs. Caldwell, 5 Gilm. 35. (c) Adams vs. Porter, 1 Cusli. 171 ; Story's Eq. PL § 846 ; Sloman vs. Kelly, 3 Younge & Coll. 673. {d) Story's Eq. PI. § 846 ; Strafford vs. Rogan, 2 Ball & Beatt. R. 164; Oreenough vs. Gaskell, 1 Mylne & Keen, 99 ; Jones vs. Pugh, 12 Sim. 470 ; 1 Greenl. Ev. § 237 ; Phillips vs. Prevost, 4 Johns. Ch. R. 205 ; Foss vs. Haynes, 31 Maine, 81 ; Leggett vs. Postlcy, 2 Paige, Ch. 599. {e) Story's Eq. PI. § 846, 572, 825 ; Hare on Disc. 268-273 ; Wigram on Disc. 21, 23,111, 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 coniplainant. {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 regard to it. If he has information, aside from the bill, he must state his belief. (^) If the defendant has no information on the subject, he must state that he has no information, or is utterly ignorant of the fact ; {j) and if the information sought is within his reach, he is bound to obtain it, and state it in his answer. {Jc) 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. (?) 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 replication has been filed, allega- tions in the answer not responsive to anything in the bill, can- not benefit the defendant at the hearing ; [n) and if the answer ig) Barton's Suit in Eq. 106. {h) Dan. Cb. 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. B. B. Co. 21 111. 365 ; Woods vs. Morrell, 1 Johns. Ch. R. 103 ; Devereaux vs. Cooper, 11 Vt. 103. (i) Devereaux vs. Cooper, 11 Vt. 103 ; Bradford vs. Geiss, 4 Wash. C. C. R. 513 ; Brooks vs. Byam, 1 Story, 226 ; Smith vs. Lasher, 5 Johns. Ch. R. 247 ; Tradesman's Bank vs. Hyatt, 2 Edw. Ch. 195 ; Norton vs. Warren, 3 Edw. Ch. 106 ; Bobinson vs. Woodgate, 3 Edw. Ch. 422 ; Neat 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. 362 ; Bohert- 8on vs. Bingley, 1 McCord, Ch. 333 ; King vs. Bay, 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. ( j) Kittredge vs. Claramount Bank, 1 W. & M. 244. (A) Swift vs. Swift, 13 Geo. 140. (?) Bell vs. Pomeroy, 4 McLean, 57. (m) McDonald vs. McDonald, 16 Vt. 630. {n) Wakeman vs. Oroiier, 4 Paige, Ch. R. 23. ,._ ,J». THE DEFENSE TO A SUIT. 135 Answer to a Bill — Nature of. 18 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 sufficient, where particular acts of fra.ua 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 the 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 p7'o 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, (u) 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 original 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 (o) Blaisdell vs. Stevens, 16 Vt. 179 ; Phillips vs. Overton, 4 Hey. 291 ; Eq. Draft. 563. [p) Fellows vs. FelloiBS, 4 Cowen, 682 ; Bailey vs. Wright, 2 Bond, 181. {q) Burnley vs. Jeffersonville, 3 McLean, 336 ; see also Lewis vs. Baird, 3 McLean, 56 ; Gray vs. Began, 23 Miss, Cusli. 304. (r) Hawley 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. {u) Mechanics' Bcmk vs. Lynn, 1 Pet. 376; Brooks vs. Byam, 1 Story, R.. 226 ; Methodist E. Church vs. Jaques, 1 Jolins. Ch. R. 65. («) McDonald vs. McDonald, 16 Vt. 630. {w) Chapin vs. Coleman, 11 Pick. 331. 136 THE DEFENSE TO A SUIT. Answer to a Bill — Exceptions to — Fraud, how Alleged. seeks ; {x) a court will compel an answer to all the allega- tions of a bill tliat 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, (s) 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 withiu such time as shall be fixed by the court." JSxceptions to answers — When to be filed. — All exceptions to answers or to interrogatories exhibited, shall be filed within Buch 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- {x) Batterson vs. Ferguson, 1 Barb. 490. {y) Stacy vs. Randall, 17 111. 467. (z) Rule 44, Rules of Pr. C. E. of U. S. 1870. (a) Tarhell vs. Bcnoman, 103 Mass. 341 ; Greeli/ vs. Bay State Brick Go. X03 Mass. 514. (b) B'v. Stat. (1874) 201; Rev. Stat. (1877) 187. (c) ]h. '{(1) Post, ch. viii, p. 157. THE DEFENSE TO A SUIT. 137 Answer to a Bill — Mode of Answering. stances should be fully and specifically stated ; {e) as no pre- Bumption is to be indulged in favor of an answer, any more than in other pleading. (/') Mode of ansicering. — 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 ; f/rst, that of answering the complainant's case as made by the bill ; and, second, that of stating to the court the nature of tlie 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. (A) If they are inconsistent, or alternative, they are bad, {i) and the result will be to deprive (e) Fitzpatri'zk vs. Beatty, I Gilm. 454; Mechanics' Bank vs. Levy, 1 Edw. Ch. 316. (/) Mahar vs. O'Hara, 4 Gilm. 424. (g) 1 Barb. Ch. Pr. 130. {1i) Stone vf*. Moore, 26 111. 165; Crnig vs. People eic. 47 111. 4S7; 2 Anst. 397, 38G ; McCle. 317 ; 2 Dan. Cli. Pr. 81-4^816. (i) Jems College vs. OiUhs, 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. (/) The defendant may, in his answer, relj on any matter which shows that 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. Affirmative relief not allowed on a/nswer. — No affirmative relief can be granted to a defendant on an answer alone. To obtain such relief he must exhibit his cross bill. (^) 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, (m) Answers may he 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. (id, ".The answer of C. D., defendant, to the bill of complaint of A. B. the complainant." {t) After the title of the answer, it pi'oceeds to reserve to the defendant all advantages which might be taken by exception to the bill ; a form which is intended to prevent a conclusion that the defendant, having submitted to answer the bill, admits every- thing, which by his answer he does not expressly controvert, and especially such matters as he might have objected to by demurrer or by plea, {u) It will not however, in general, have that effect, (v) The substance of the answer then follows, in which the matters of the bill, with the interrogatories founded thereon, are answered, one after the other, together with such additional matter, as the defendant thinks necessary to bring forward his defense, either for the purpose of qualifying, or of adding to, the case made by the bill, or of stating a new case on his own behalf, {w) This is followed by a general denial of all the unlawful combinations charged in the bill, and of all other matters therein contained, and not specially traversed or admitted. To so much of the bill as is material and necessary for the defendant to answer, he must reply directly, without eva- sion, and not by way of negative pregnant. He must not answer the charge merely literally, but he must confess or traverse the substance of each change positively and with (g) Dams vs. Davidson, 4 McLean, 136 ; Masterson vs. Craig, 5 Litt. 39. (r) Binney's Case, 2 Bland, 99. (s) 1 Paige, Ch. R. 421 ; RoUns vs. Abraham, 1 Halst. Ch. N. J. 16 ; Id. 61. {t) 2 Dan. Ch. Pr. 266 ; Story's Eq. PI. § 870. {u) Coop. Eq. PL 323 ; Story's Eq. PI. § 872, 870 ; Mitf. Eq. PI. 313, 614 ; Griffith vs. Wood, 11 Ves. 62. (v) Id. ; Story's Eq. PI. § 694, 870 ; Beame's PI. in Eq. 46, 47. (u>) Coop. Eq. PI. 323-325 ; Mitf. Eq. PI. 313-315 ; Story's Eq. PI. § 870. 140 THE DEFENSE TO A SUIT. Answer to a Bill — Swearing to. certainty. Particular and precise charges must be answered particularly and positively, and not in a general manner, even though the general answer may amount to a full denial of the charge, {x) But if any of the particular inquiries in the bill are as to matters which are totally immaterial to the case, the defendant need not answer them, (y) If the charge in the bill embraces several particulars, the answer should be in the disjunctive, denying each particular ; or admitting some and denying the others according to fact, (s) It may be observed, that the general rule that nothing is to be presumed in favor of a pleading, is applicable to an answer in chancery, {a) Swearing to answer. — The statute of Illinois requires every answer to be verified by an oath or afiirmation, except where the complainant waives the oath. Where the bill is for dis- covery only, the oath or aflBrmation cannot be waived. (J) Where the oath is waived in the bill, it would be regarded as an improper practice, for a solicitor to put in an answer under oath, (c) An answer filed without being sworn to, may be treated as a valid answer by the complainant, and in that case will have the same eflfect in favor of the defendant as if sworn to. (d) (x) Woods vs. Morrell, 1 Johns. Ch. E. 103 ; Stacy vs. Randall, 17 111. 467 ; Parkinson vs. Truesdale, 3 Scam. 369 ; Taylor vs. Luther, 3 Sumner, 228 ; 6 Ves. 792 ; 3 Litt. 80 ; 1 Sim. & Stu. 235. {y) 1 Barb. Ch. Pr. 136 ; Daniel vs. Bishop, 13 Price, 15. (e) Davis vs. Mapes, 2 Paige, Ch. R. 105. {a) Maha/r vs. O'Hara, 4 Gilm. 424. [h) Rev. Stat. (1874) 201; Rev. Stat. (1877) 187; Moore vs. Hunter, 1 Gilm. 317; Willis vs. Henderson, 4 Scam. 14; Harris vs. Reese, 5 Gilm. 212. (c) Willenhorg vs. Murphy, 36 111. 344; Wallwork vs. Derby, 40 111. 527; Moore vs. Hunter, 1 Gilm. 317; Hopkins vs. Granger, 52 III. 504. {d) Fulton Bank vs. Beach, 3 Paige. Ch. R. 307; Confee vs. Daivson, 3 Bland, 264; Moore vs. Hunter, 1 Gilm. 317; Reed vs. Warner, 5 Paige, Ch. R. 650; Denison vs. Bassford. 7 Paige, Ch. R. 370; Stevenson vs. Mathers, 67 III. 123; Adlard vs. Adlard, 65 111. 212. THE DEFENSE TO A SUIT. 141 Answer to a Bill — Waiver of Oath. If the affidavit is insufficient, objection must he taken before the final hearing, [e) otherwise it is a waiver of the objection, {f) Where the affidavit is waived, the answer must, notwith- standing, be signed ; {g) and if the interests of the defendants are separate and distinct, an answer on oath may be waived as to one defendant without such waiver as to others. {Ji) The defendants may answer jointly, or jointly and severally, or separately; each defendant must, however, swear to his answer, or it will be no answer as to him. (t) Waiver of oath. — The statute of Illinois provides that, when a bill, supplemental bill, bill of review, or cross-bill, shall be filed in a court of chancery, other than for discovery only, the complainant may waive the necessity of the answer being made on the oath of the defendant, defendants, or any of them ; and in such cases, the answer may be made without oath, and shall have no other or greater force as evidence than the bill, {j) If the complainant waives an answer under oath, under this section of the statute, he must waive it to the whole bill. And after the defendant has answered the original bill on oath, the com- plainant cannot avoid the effect of such answer 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 cause, so far as responsive to the bill. (Jc) Where an answer is not under oath, it is a mere pleading, serving only to make up an issue ; {V) and swearing to an an- swer, when the oath is waived, will give it no greater effect on the hearing than when not sworn to ; (m) but the complainant (e) Bate vs. McLaugJiUn, 1 A. K. Marsh. 207. (/) Oeizer vs. Burk, 3 S. & M. 439. dg) Kimball vs. Ward, Walk. Ch. 439. (h) Bulkley vs. Van Wyck, 5 Paige, Ch. 536 ; Morse vs. Hovey, 1 Sandf. Ch. R. 187. (i) Rev. Stat. (1877) 186. {k) Wylder vs. Crane, 53 111. 490; Jefferson vs. Ketmard, 77 111. 246. [l) Chambers vs. Rowe, 36 111. 171; Willenhorg vs. Murphy, Id. 344'; Wallwork vs. Derby, 40 111. 527; Hopkins vs. Granger, 52 111. 504; Willis vs. Henderson, 4 Scam. 13. (w) Moore vs. Hunter, 1 Gilm. 317; Andrews vs. Knox Co., 70 111. 65. 142 THE DEFENSE TO A SUIT. Answer to a Bill — Effect of Sworn Answer, etc. may avail himself of any admission and allegation therein to make out his case, (n) Effect of sworn answer as evidence. — If an answer is required under oath, and is responsive to the allegations of the bill, it must be received as true, unless it is overcome by evi- dence amounting to the testimony of two witnesses, {o) Such answer is not equal to two witnesses, but it must be overcome by two witnesses, or by one witness and strong corroborating circumstances, {p) It is, however, only where the defendant states facts within his knowledge, that his answer must be overcome by evidence equivalent to the testimony of two witnesses, {q) When answer is evidence against a co-defendant. — The answer of one defendant cannot be read in evidence against another, except in particular cases, as where such defendants are partners, or where one has acted as the agent of the other in any transaction to which the answer may relate, and the agency or partnership, at the time of filing the answer, still exists, {r) Answer of deceased ancestor as evidence. — The answer of a deceased ancestor may be read Jn evidence against the heirs or devisees, where they claim under him in an action brought for the same subject matter, {s) Admissions in answer. — Where a fact is alleged in the bill, and admitted by the answer, the admission is conclusive, and {n) Smith vs. Clarke, 4 Paige, Ch. R. 368 ; Union Bank vs. Oeary, 5 Pet. 99, 110-112 ; 1 Clark's Ch. R. 63 ; Story's Eq. PI. § 875, and cases cited. (o) Stouffer vs. Machen, 16 111. 553 ; Phelps vs. White, 18 111. 41 ; Wynkoop vs. Cowing, 21 111. 571 ; Panton vs. Teft, 22 111. 366 ; Qregg vs. Renfrews, 24 111. 620 ; Myers vs. Kimie, 26 111. 36 ; Buntain vs. Wood, 29 111. 504 ; Trout vs. Emmons, Id. 433 ; Barton vs. Moss, 32 111. 50 ; Dunlap vs. Wilson, Id. 517 ; Cassell vs. Ross, 33 111. 246 ; Martin vs. Bversol, 36 111. 222 ; Wightman va. Hart, 37 111. 123 ; Maple va. Scott, 41 111. 50 ; Wildey vs. Webster, 42 111. 108; Rmsell vs. Russell, 54 111. 250; O'Brien vs. Fry, 82 III. 274 (p) Morrison vs. Stewart, 24 111. 25 ; Hopkins vs. Granger, 52 111. 504. (q) Fryrear vs. Lawrence, 5 Gilm. 325 ; Hitt vs. Ormsbee, 14 111. 235. (r) Rust vs. Mansfield, 25 111. 338 ; Pensonau vs. Pulliam, 47 111. 58. (s) Rust vs. Mansfield, 25 111. 338. THE DEFENSE TO A SUIT. 143 Answer to a Bill — Admissions — Corporations. evidence tending to dispute it will not be considered, {t) But if* an admission has been made in an answer improvidently and by mistake, the court will relieve the party making it from its effect, by an order directing so much of the answer as contains the admission to be treated as no part of the record, but, before such an order will be made, the court must be satisfied by affi- davit that the admission was made under a misapprehension or by mistake. Courts exercise a liberal discretion in relieving from the effect of admissions in answers not under oath, which are mere pleadings, and are frequently signed by counsel ; but where an answer is under oath great caution is observed. If the relief sought is from an admission of law it may be suffi- 'cient to show that he was erroneously advised by his solicitor in that regard, but where the relief sought is from an admis- sion of fact it should be shown that the answer was drawn with care and attention, stating upon information and belief such facts as were not within the defendant's own knowledge. No court ought to relieve a party from the consequences of a reckless misstatement under oath. It should also be shown that the fact misstated was not one within the defendant's own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer, honestly believing such erro- neous information, {u) "Where a defendant has by a mistake or misapprehension of the facts, or of his rights, made an admission in his answer inconsistent with the truth, he may file a supplemental answer under which he may prove that the fact was contrary to the admission, {v) Answer of a corporation. — The statute of Illinois of 1872 {w) provides that when a corporation, other than a municipal it) Welder vs. aark, 27 111. 251. {u) Maker vs. Bull, 39 111. 531 ; Snydam vs. Truesdale, 6 McLean, 459 ; Coquilland vs. Stiydam, 8 Blackf. 24. {v) Hughes vs. Bloomer, 9 Paige, Ch. R. 269 ; Boican vs. Gross, 4 Johns. Ch. R. 375 ; Murdoch's Case, 2 Bland, 461 McKim vs. Thompson, 1 Bland, 150 ; Gary vs. Ector, 7 Geo 99 {tc) Rev. Stat. (1874) 201; Rer. Stat. (1877) 186; see Larrison vs. P. A. & D.R.R. Co. 77 III. 11. 144 THE DEFENSE TO A SUIT. Answer to a Bill — Infants and Insane Defendants. corporation, is defendant to a bill or petition praying discovery of any paper, or matter alleged to be in the custody, or within the knowledge of any officer or agent of the defendant, it shall not be necessary, for the purpose of procuring such discovery, to make such officer or agent a defendant, but the answer touching the paper, or matter concerning which discovery is sought, shall be under the oath of such officer or agent, the same as if he had been made defendant ; provided, no corpora- tion shall be required to procure such answer under the oath of any person not under its control at the time when the bill is filed. The answer of a corporation aggregate, is usually under seal ; not under oath, {x) Answer of infants a/nd insane defenda/nts. — Gtjakdian AD LITEM. — The statute of Illinois provides that, " in any cause in equity, it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem, to any infant or insane defendant in such cause, and to compel the person so appointed to act," {y) A guardian ad litem should make himself familiar with the condition of the case, and the rights and interests of the infant defendants ; and if the circumstances and the infant's interests require it, he should make a vigorous defense, {z) Nothing can be admitted by the infant, nor his guardian ad litem for him ; but every allegation in the bill must be strictly proved, so far as the infant is concerned ; {a) and the record of the proceed- ings must furnish proof to sustain a decree against infant (cc) Vermilyea vs. Fulton Bank, 1 Paige, Cli. R. 37 ; Angel & Ames on Corp. 595 ; Supervisors etc. vs. M. & W. R. B. Co. 21 111. 365 ; 1 Johns. Ch. R. 366. (y) Rev. Stat. (1877) 184; see Foreman vs. Stkkney, 77 111. 575; Lloyd vs. Malone, 23 111. 43. (2) McClay vs. Norris, 4 Gilm. 370; Sconce vs. Whitney, 12 111. 150; Cost vs. Rose, 17 111. 278 ; Rhoads vs. Rhoads, 43 111. 239 ; PeaJc vs. Pricer, 21 111. 164. (a) Hitt vs. Ormshee, 12 III. 166; Tuttle vs. Garrett, 16 111. 354; Lloyd vs. Malone, 23 111. 43 ; Reddick vs. State Bank, 27 111. 148 ; Masterson vs. Winswould, 18 111. 48; Carrvs. Fielden, Id. 77; Tibis vs. Allen, 27 111. 129; ITees vs. Voss, 52 111. 474 ; Fischer vs. Fischer, 54 111. 231. THE DEFENSE TO A SUIT. 145 Answer to a Bill — The Titles, etc. defendants, whether the guardian ad litem answer or not, or whether he admits or denies the allegations. (J) Unless a guardian ad litem is appointed for infant defend- ants, all proceedings against them will be erroneous, (c) But if thej are not in court for want of service, {d) or notice by pub- lication, {e) the appointment of a guardian ad litem would be void, A bill cannot be taken as confessed against a defendant, who is an infant or insane, under any circumstances. (/") rOKMS OF Aiq-SWEK. Miscella/neous forms of commencements and conclusions of answers. I. THE TITLES. iVb. Ji,0. Title of answer hy one defendant. The answer of C. D., the defendant, to the bill of complaint of A. B., the complainant. ]Sfo. Jpl. Title of a joint and several answer. The joint and several answer of C. D. and E. F., the defend- ants, to the bill of complaint of A. B., the complainant. 1^0. 1^. Title of the answer of one of several defenda/nts. The answer of C. D., one of the defendants to the bill of complaint of A. B., the complainant. (&) Masterson vs. Winswould, 18 111. 48 ; Carr vs. Fielden, Id. 77 ; Chaffin vs. Heirs of Kimball, 23 111. 36 ; Qoud%j vs. Hall, 36 111. 313 ; Tihls ys. Allen, 27 111. 129. (c) Hall vs. Davis, 44 111. 494 ; Quigley vs. Roberts, Id. 503 ; Sullivan vs. Sullivan, 42 111. 315 ; McBaniel vs. Canell, 19 111. 226 ; Peck vs. Shasted, 21 111. 137. {d) Clark vs. Thojnpson, 47 111. 25. {e) McDermaid vs. Russell, 41 111. 490 ; Hichenbotham vs. Blackledge, 54 El. 318. (/) McClay vs. Norris, 4 Gilm. 370 ; Sconce vs. Whitney, 12 111. 150 ; Cost vs. Rose, 17 111. 278. 10 146 THE DEFENSE TO A SUIT. Answer to a Bill — Title — Commencement of. No. JfS. Title of answer to amended hill. The answer of C D., the defendant, to the amended bill of complaint of A. B., the complainant. No. JfJi-. Title of answer where exceptions have heen taken to a form of answer, and the hill has also heen 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. JfB. Title of amended answer. The amended answer of C. D., the defendant, to the bill of complaint of A. B., the complainant. No. Ji.7. Title of answer hy iifants 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. 1{8. Introduction to an answer of one defendant. This defendant, now and at all times hereafter, saving to 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 to $he said bill of complaint, for answer thereto, says, etc. No. Ifi. Introduction to answer of several defen(lants. These defendants, now and at all times hereafter, saving and reserving to themselves, and each of them, all benefit and THE DEFEASE TO A SUIT. 147 Answer to a Bill — Common Forms in Framing. advantage of exception or otherwise, that can or may be had or taken to the many errors, uncertainties and other imperfections in the 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 the said bill of complaint, for answer thereto, say, etc. m. COMMON FOKMS IN FRAMING ANSWEE8. No. 50. Where defendant admits a statement. 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 written instrument. And this defendant further 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. 5^. Where a defendant helieves a statement may he true, hut qualifies his admission of it, not knowing 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 entirehj ignorant with regard to the statement in the hill. And this defendant, further answering, 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 any belief concerning the same. \JL,0i'^ 148 THE DEFENSE TO A SUIT. Answer to a Bill — General Franie of Answer. i\r<3. Blf.. Where one of two defendants^ of his ow7i knowledge, knows the statement in the hill to he true, and the other defendant does not know the same, hut helieves the ansioer 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 t/wo defendants denies the allegation in the hill, 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. Court. Term, 18—. In Chancery. The^ahswer of C. D., defendant to the bill of com- — pMnt of A. B., complainant. This defendant, now and all times hereafter, saving and reserving unto himself 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. ~— This defendant, further answering, denies, etc., {and so on through the whole hill, admit or deny every mater'ial allegation, and set u-p OMy matter in defense or avoida/nce, as tlie nature of the case moAj require, and 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 nnlawfni 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 ; land 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 : N'o. 58. Affidavit to answer. ss. State or 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 believ©8 them to be true. , Cleric of the Court. No. 69. Short form of 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 reserving to himself all right of exceptions to the said bill of complaint, for answer thereto, says, etc. {Pro- ceed with the several a/verments according to the case, admitting or denying every material allegation in the stating part of the hill, 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 Dill of complaint ; and prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. , Sol. 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. 67, ante, page IJiB.) 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, Rcd pray strict proof of the matters alleged in said bill of complaint. E. D. 0. 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 charge 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 memorandum 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 benefit as if he had pleaded the same. No. 62. Conclusion of an answer, insisting that the com jplainant has an 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 Bummoned, 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 I'equired 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 sufficient cause, and paying the costs of the preceding ternis ; in such case the decree shall be vacated, and the cause may be proceeded with as in other cases. (A) 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. (^) Answer 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) Kev. Stat. (1874) 200; Rev. Stat. (1877) 186. (/O lb. (0 Kihjour vs. Crawford, 51 111. 249; 6 Pet. 'S21; Dunn vs. Keegin, 3 Scam. 293; Morgan vs. Corlies, 81 111. 72. ij) Hinde's Cli. Pr. 22; 1 Barb. Ch. Pr. 159. 162 THE DEFENSE OF A SUIT. Answer to a Bill — Amendment of. paper; (Jc) in the same manner that an original and an amended bill are considered as the same record. Upon thib 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 upon the amended bill, the defendant should ascertain where the amendments are 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 party 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 rea«onable 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 which make it necessary, i^jp) 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 ; {g) or in making an admission of assets ; if) 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 ; {C) or in cases of {k) Mitf. Eq. PI. 257; HildyaTdv?>.Cr6ssy,Zh.t\.2,()Z\ Bennington Iron Co. vs. Campbell 2 Paige, Ch. R. 159. {I) Smith vs. Searle, 14 Ves. 415. (to) Bennington Iron Co. vs. Camphell, 2 Paige, Cli. R. 159 ; 1 Barb. Ch. Pr. 159. (n) Wylder vs. Crane. 53 111. 490; Haslrll vs. Brown, 65 111. 29- Boherts vs. Stigleman, 78 111. 120. (o) Artee vs. Engart, 13 111. 243 ; Liggon vs. Smith, 4 Hen. & Munf. 477. \p) Liggon vs. Smith, 4 Hen. & Munf. 477 ; 1 Barb. Ch. Pr. 1G4. (g-) Alpha vs. Payman, 1 Dick. R. 33 ; Berney vs. CJiambers, Bumb. 248 ; Countess vs. Gifford, 2 P. Wins. R. 424; 1 Barb. Ch. Pr. 164. (?•) Biigley vs. Crump, 1 Dick. 31. (s) Anib. 62 ; 1 Ma.l. 269 ; 1 Ves. & B. 186. {t) Patterson vs. Slaughter, Anib. 292 ; Wells vs. Wood, 10 Ves R. 401 ; Alpa vs. Payman, Dick. 33. \ THE DEFENSE TO A SUIT. 153 Disclaimer — Nature of. surprise, 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. DISCLAEMEE. 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 ought 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, {a) A disclaimer is distinct in substance from an answer, although sometimes confounded with it. (J) 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 plaintiff 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, (c) (u) Clmte vs. Lady Dacre, 1 Eq. Ca. Ab. 29 ; 1 Barb. Ch. Pr. 164. (v) Beach vs^ Fulton Bank, 3 Wend. 573. (ffl) Barton's Suit in Eq. 94 ; 2 Dan. Ch. Pr. 233 ; Mitf . Eq. PI. 153 ; Ells- worth vs. Curtis, 10 Paige, Ch. R. 105 ; Bentley vs. Cowman, 6 Gill & J. 152 ; Story's Eq. PL § 838 ; Glassington vs. Thwaites, 2 Russ. R. 458 ; Whiting vs. Mush, 2 Younge & Coll. 546, 552; Bukeley vs. Dunbar, 1 Anst. R. 37; Welford's Eq. PI. 254. Q)) Mounsay vs. Burnham, 1 Hare, R. 15. (c) Ellsworth vs. Curtis, 10 Paige, Ch. R. 105 ; Story's Eq. PI. § 838. 154 THE DEFENSE TO A SUIT. Disclaimer — Nature of — Form of. A mere disclaimer is scarcely to be deemed suflScient or proper, except where the bill simply alleges that the defendant claims an interest in the property in dispute, without more ; for under such circumstances, if he has no interest, that is a sufficient answer to the allegation ; {d) and he need not answer further, {e) As a defendant may disclaim and answer, so he may demur to one part of the bill, plead to another, answer to a third, and disclaim to a fourth ; but all these defenses must clearly refer to separate and distinct parts of the bill. (/") A defendant cannot, by a disclaimer, deprive the complain- ant of the requiring a full answer from him, unless it is evident that the defendant ought not, after such disclaimer, to be retained as a party to the suit, {g) If the defendant disclaims, and it appears that the bill was exhibited for vexation only, the court will dismiss the bill with costs against the complainant. (A) A disclaimer must be full and explicit in all respects, and be accompanied by an answer denying the facts deemed necessary to be denied; it cannot be made by way of demurrer, {i) If it is accompanied by an insufficient answer, the complainant should except to the answer, [j) No. 63. Disclaimer. {Title of cause.) The disclaimer of C. D., one of the defendants, to the bill of complaint of A. B., the complainant. This defendant, saving and reserving to himself, now and at all times hereafter, all manner of advantage and benefit of {d) Oraliam vs. Coape, 9 Sim. 102 ; /S. C. 3 Mylne & Craig, 638. (c) Spofford vs. Manning, 2 Edw. Ch. R. 358. (/) Coop. Eq. PI. 309, 310; Mitf. Eq. PI. 319, 320; Story's Eq. PI. § 436, 437, 839. {g) Olassington vs. Thwaites, 2 Russ. R. 458-462 ; Graham vs. Coape, 9 Sim. R. 103 ; S. C. 3 Mylne & Craig, 638 ; Ellsworth vs. Curtis, 10 Paige, Ch. R. 105. (A) Coop. Eq. PI. 310, 311 ; Story's Eq. PL § 842. (t) Worthington vs. Lee, 2 Bland, 678. (j) Ellsworth vs. Curtis, 10 Paige, Ch. R. 105. THE DEFENSE TO A SUIT. 155 Disclaimer — Anfcwer and Disclaimer. exceptions and otherwise that can or may be had and taken to the many untruths, 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, Wo. 68, ante, page IJfJ).) No. 6 J/.. Answer and disclaimer. {ComTnence as in Wo. 67, 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 K., 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 lands 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 R. S., in the said bill named, was ever seized of 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 m No. 67, ante, ^age UfS.) CHAPTER YIII. EXCEPTIONS TO ANSWER. Section 1. Natxire of. 3. Exceptions fok Insufficiency. 3. Exceptions fok Scandal and Impektinence. SECTION I. NATUKE 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, (b) K 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. K. 359 ; Stone vs. Moore, 26 111. 171, 172. (6) Stone vs. Moore, 26 111. 172 ; Underwood's Stat. 71 ; see Supervisors etc. vs. M. (& W. E.B. Co. 21 111, 365 ; Bei-bi/ vs. Gage, 38 111. 27. (c) Prettyman vs. Barnard, 37 111. 105. 158 EXCEPTIONS TO ANSWER For Insufficiency — In wliat Cases — How Taken. SECTION II. EXCEPTIONS FOR LN SUFFICIENCY 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, (t?) Exceptions will lie to an answer, setting up a justilication 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, {f) How taJcen. — 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 ; (A) 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) (d) Stafford vs. Brown, 4 Paige, Ch. R. 88. (e) Craig vs. The People, 4:1 111. 487. (/) Patriotic Bank vs. Bank of Washington, 5 Crancli, C. C. R. 602. ig) Hodgson vs. Butterfield, 2 Sim, & Stu. R. 236 ; Brooks vs. Byam, 1 Story, R. 296; Baker vs. Kingsland, 3 Edw. Cli. 138. {h) Buloid vs. Miller, 4 Paige. Ch. R. 473 ; McKeen vs. Meld, 4 Edw. Ch. R. 379 ; West vs. Williams, 1 Md. Ch. Decis. 358. (i) Baker vs. Kingsland, 8 Edw. Ch. 138. ij) Bolder vs. The Bank of England, 10 Ves. 283 ; Partridge vs. Haj/' craft, 11 Ves. 570 ; Eq. Draft. 672. EXCEPTIONS TO ANSWEE. 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 ; (Jc) 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, (l) An exception will not be allowed, if, by striking out the portion objected to, other parts of the answer would be ren- dered unmeaning, (m) 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 sufficient, (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, (o) The statute of Illinois requires the 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 exception, plea or demurrer thereto allowed ; (j?) but, it is said, exceptions will not lie to an answer to which the oath of the defendant is waived ; (q) because such answers are not evidence. Exceptions founded on verbal criticism, slight defects, and the omission of immaterial matter, will be disallowed and treated as vexatious, (r) When the matter of the bill is fully answered, and the defendant sets up matter which is irrelevant, and forms no sufficient grounds of defense, the complainant may except to the answer for impertinence, but not for insufficiency, {s) If exceptions to an answer are on account of the omission (k) Sydolf vs. Mmkstone, 3 Dick. 609. (I) Lord Herhert vs. Pmey, 1 Dick. 255. (to) German vs. MacMn, 6 Paige, Ch. R. 288. (») Mott vs. Hall, 41 Geo. 117. (o) L' Estrange vs. Moloney, 1 Hogan, 470. [jy) Kev. Stat. (1874) 201; Rev. Stat. (1877] 187. iq) 1 Barb. Ch. Pr. 177. (r) BaqgoU vs. Henry, 1 Edw. Ch. 7. (s) Stafford vs. Brown, 4 Paige, Ch. 88. 160 EXCEPTIONS TO ANSWER. For Scandal and Impertinence — What is. in a matter not material, and when it is evident that the defendant has no intention of avoiding a full disclosure, they will not be sustained, {i) The rules governing the frame of an answer, and what it must contain, has already been fully alluded to in a former chapter, {u) and it is sufficient to say that for any of the material defects in the answer, as there pointed out, advan- tage may be taken by exceptions. SECTION m. EXCEPTIONS FOR SCANDAL AND IMPEETINENCE. What is. — What is said in a previous chapter {v) in refer- ence to the framing of a bill so that it does not contain state- ments or charges which are scandalous or impertinent, is applicable to an answer. As we have there seen, 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 an offense not necessary to be shown in the cause, {w) And the introduction of scandalous and impertinent matter in a bill, does not authorize or justify similar matter in the answer to meet such improper allegations in the bill, (x) If an answer goes out of the bill to state some matter not material to the defendant's case, it will be deemed impertinent, and the matter, upon application to the com*t, will be ex- punged, (y) So it is impertinence, where the pleading is (t) Davis vs. Mapes, 2 Paige, Ch. E. 105 ; Baggott vs. Henry, 1 Edw. Ch. 7 ; Fay vs. Jewett, 3 Edw. Ch. 323 ; West vs. Williams, 1 Md. Ch. Decis. 358. {u) Ante, Chap. V, § 5. («) Ante, Chap. Ill, pp. 51-3. {w) 1 Barb. Ch. Pr. 41 ; Coffln vs. Cooper, 6 Ves. 514 ; McConnell vs. Hols- bush, 11 111. 61 ; 1 Dan. Ch. Pr. 45 ; Story's Eq. PI. § 863. (x) Langdon vs. Pickering, 19 Maine, 314. iy) Langdon vs. Ooddard, 3 Story, 13 ; Story's Eq. PI. § 366, 367, 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 unnecessary 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, (b) 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, {j) (2) Story's Eq. PI. § 366, 863 ; Wood vs. Mann, 1 Sumner, 506, 508. (a) Mclntyre vs. Trustees of Union College, 6 Paige, Ch. R. 239 ; Lown»- dale vs. City of Portland, 1 Oregon, 381 ; 8. C.l Deadley, 1. Q)) Balcom vs. JSf. Y. Life Ins. Co. etc. 11 Paige, Ch. 454 ; Hardeman vs. Harris, 1 How. U. S. 726 ; Saltmarsh vs. Bower, 22 Ala. 221. (c) W hitmarsTi vs. Campbell, 1 Paige, Ch. 645. (d) Franklin vs. Keeler, 4 Paige, Ch. 382 ; Buloid vs. Miller, Id. 478. (e) Norton vs. Woods, 5 Paige, Ch. R. 260. (/) Mclntyre vs. Trustees etc. 6 Paige, Ch. R. 239 ; Van Rensselaer va. Brice, 4 Paige, Ch, R. 174 ; Eq. Draft. 672 ; Wagstaff vs. Bryan, 1 Russ. & My. 30 ; 1 Barb. Ch. Pr. 203. {g) Siffhin vs. Manning, 9 Paige, Ch. R. 222. (Ji) Kirby vs. Taylor, 6 Johns. C. R. 242 ; Leaycraft vs. Derapsey, 15 Wend. 83. {i) Leftwich vs. Orne, 1 Freem. Ch. 207. 11 162 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. (^' ) They must be excepted to before filing his replication, {k) 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 C. 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 caiise 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, 0") Rev. Stat. (1874) 201; Rev. Stat. (1877) 187. [k) 1 Barb. Ch. Pr. 183; Coleman vs. Lyne, etc., 4 Rand, 454. (7) Clark vs. Tinslei/, 4 Rand. 250. EXCEPTIONS TO ANSWEE. 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 ahove, 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 Gomjplavnant. 1^0. 67. Order to expunge scandal and inypertinence from am,swer. {Ca/ption^ and title of cause, as in No. 79, post.) The answer of the defendant, 0. 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 fowrth, 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 delayed thereby ; " and no amendment shall be a cause for a continuance, 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 court 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 by 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) Rev. Stat. (1874) 203; Rev. Stat. (1877) 188. ih) Marble vs. Bonhotcl, 35 111. 240; Wise vs. Ttviss, 54 111. 301; Ch-egg vs. Brorcer, 67 111. 525; Barm vs. Bragg, 70 111. 283. ic) Droullard vs. Baxter, 1 Scam. 191; Heacock vs. Durand, 42 111. 230; Buckley vs. Corse, Saxon, N. J. 504; Smith vs. Bahcock, 3 Sumner, 410; Garlick vs. Strong, 3 Paicre, Ch. R. 440; Erkkson vs. Raffniij, 79 111. 209; Marsh vs. Green, 79 111. 385. {d) Burke vs. Smith, 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. PL § 332-334; Stafford vs. Howlett, 1 Paige, Ch. R. 200; Colclough vs. Erans, 4 Sim. 76; Wright vs. Howard, 6 Mad. 106 ; Go2-)en vs. Flesher, 1 Bond, 440. AMENDMENTS TO BILLS. 165 When to be Made. held to constitute part of the same record as the original bill, {f) 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 oi'iginal bill, should be introduced by supplemental bill, and not by amendment, {g) Nor 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. (A) 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 forming the substance itself, nor repugnant thereto, {i) 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. (^) 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 (/) yt'Te vs. Olynn, 2 Dick. 441 ; Jupling vs. Stuart, 4 Ves. 619. ig) Stafford vs. Rowlett, 1 Paige, Ch. R. 200 ; ArclihisJiop of York vs. Stapleton, 3 Atk. 136 ; 5 Pick. 276 ; Burke vs. Smith, 15 111. 158. (A) Whitmarsh vs. CarnpbeU, 2 Paige, Ch. 67. (i) Verplank vs. The M. Ins. Co. 1 Edw. Ch. 46 ; Lyon vs. Tahnadge, 1 Johns. Ch. 184 ; Badgers vs. Rodgers, 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 Go. vs. Ferguson, IZ 111. 33 : McArtee, vs. Engari, 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. Bonlwtel, 35 111. 240 ; Craig vs. llie People, 47 111. 487. {k) Martin vs. Ecersal, 36 111. 222 ; Metropolitan Bank vs. Godfrey, 23 111. 580; Morgan vs. Smith, 11 111. 194; Broicn vs. Welsh, 18 111. 347; Be Wolf vs. Pratt, 42 111. 198 ; Hewett vs. Dement, 57 111. 500 ; Neale vs. Neale, 9 Wall. U. S. R. 9; Uoyt vs. Tuxbury, 70 111. 331; Murch vs. Mayers, 85 111. 187. 166 AMENDMENTS TO BILLS. When to be Made. the pleadings and the proof, when a slight amendment will render the testimony admissible ; {]) nor does the fact that the bill is veriiied by affidavit necessarily deprive the complainant of the benefit 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 statement, 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 issue, 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. (v. Stat. (1874) 493; Rev. Stat. (1877) 480. {t) Ballance vs. Underhill, 3 Scam. 457. (tt) Id. (®) County of Green vs. Bledsoe, 12 111. 271, 273. (w) Kimball vs. Cook, 1 Gilm. 424,423 ; Goodrich vs. Hanson, 33 111. 499, {x) Forsyth vs. Baxter, 2 Scam. 9. {y) Hawks vs. Lands, 3 Gilm. 227. (2) Cole vs. Choteau, 18 111. 448. (fit) Scholes vs. Acherland, 13 111. 651; see Kendall vs. Limhurg, 69 111. 356. (6) Curtiss vs. Martin, 20 111. 557. (c) Ballance vs. JJndei'Jiill, 3 Scam. 453 ; County of Green vs. Bledsoe, 12 111. 271. (d) Railroad Co. vs. Coicles, 32 111. 116. (e) Phelps vs. Young, Breese, (Beclier's ed.) 327 ; see Observations, Puter- baugh's Com. Law PI. and Pr. pp. 780-785. 182 TESTIMONY. Evidence taken by Master, etc. Instructions^etc.^ for taking depositions. — In addition to the statutory provision which we have given, the pleader is referred to Puterbaugh's Com. Law PL and Pr. p. 781, where instruc- tions and forms for taking, certifying and returning of deposi- tions are given. Interpreters in taking dejyositions. — ^" Interpreters may be sworn truly to interpret, when necessary, in taking depo- sitions. (^/) SECTION III. EVIDENCE TAKEN BY MASTER IN CHANCEKY, OR SPECIAL COMMISSIONER. The statute of Illinois provides that, " the court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evi- dence, with or without his conclusions thereupon." A master in chancery can only act in a case in court, when ordered by the court. An order of reference is therefore necessary, before he is authorized to take testimony ; {g") but if a decree is rendered, based upon his report, it is a sufficient recognition. (A) It is in many cases proper and necessary for a court to appoint a special master or commissioner. If the regular master is a solicitor in the case, it would be error to refer it to him to take proof. (^) And if a court appoint a special master to per- form the duties of the regular master, it will be presumed to have done so for good reasons, whether they appear on the record or not. (^') When a disputed question of fact is referred to tlie master in chancery, it is his duty to appoint a day for the examination if) Rev. Stat. (1874) 496; Rev. Stat. (1877) 482. ig) Preston vs. Hodgen, 50 111. 56 ; see Fischer vs. Fischer, 54 111. 231. (A) Hess vs. Voss, 53 111. 473. (i) Wilhite vs. Pearce, 47 111. 413 ; Wiite vs. Hoffacker, 27 111. 329 ; Davia VB. Davis, 30 111. 180. {J) Farnsworth vs. Strasler, 12 111. 482. TESTIMONY. 183 Evidence taken before Master — Order of Reference. of witnesses before him, of which the parties or their solicitors should receive due notice. He should take down the testi- mony, so that the same may be used by the court if necessary ; and should report in writing the facts, and his conclusions thereon ; and the questions of law may be reserved for the court. Each party should have notice of the report before it is made, and may iile exceptions thereto before the master, to enable him to correct it if he thinks proper ; and if the master still adheres to his report, he returns it into court, where the party objecting may file exceptions ; upon the hearing of which, the whole evidence is brought forward, and passes in review before the court. Qc) Parties must produce their testimony at the time and place appointed by the m'aster. (l) In cases of default and reference, no notice of the time and place of taking tlie testimony is necessary. But the parties may appear and file exceptions, (m) If exceptions are not taken before the master, and overruled by him, the report cannot be questioned before the appellate court, {n) But if an improper decree is rendered, it will be reversed, although no exceptions were made to the master's report, (o) iVb. 74" Order of reference to master to take 'proof. {Caption, and title of cause as in No. 79, post.) This cause came on to be heard (or to be further heard, as the case may be,) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz. : that this cause be and the same is hereby referred to the master in chancery of this court, to take the proof of the respective parties ; that the said master first give notice to the said parties respectively, of the time and {k) McClay vs. Norris, 4 Gilm. 370 ; Brockman vs. Aulger, 12 111. 277 ; WJiiteside vs. PuUiam, 25 111. 285 ; Sutphen vs. Cushman, 35 111. 202 ; Las- well vs. Bobbins, 39 111. 210; Campbell vs. Hannan, 43 111. 19; Story va. Luingston, 13 Pet. U. S. R. 359; Gunnell vs. 5ir(Z,10 Wall. U. S. R. 306. {I) Whiteside vs. Pulliam, 25 111. 285. (m) Moore vs. Titman, 33 111. 359. {n) Beigard. vs. McNeil, 38 111. 401. (o) Strang vs. Allen, 44 111. 429. 184 TESTIMONY. Master's Report of Testimony. Elace where such proof will be taken ; and cause to come efore him all such witnesses as the respective parties may desire, and to examine them severally on oath, and reduce their testimony to writing, and report the same, together with his conclusions to the court. No. 75. Master's report of testimony. In the Court. A. B. et al. ) Term, 18—. vs. > In Chancery. C. D. et al ) 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 the master in chancery of this court to take the proof of the respective parties, and report the same to the court r I, the 6,^d master in chancery, do hereby respectfully report that, having first given a, written notice to the said parties, respectively, of the time and place, when and where, the said testimony would be taken, and caused to come before me all such wittiesses as the respective parties desired or made known to me, and having been attended by the solicitors of the respective parties, I did, on the day of , 18 — , at my office in , proceed to take the proofs of the respective parties ; and the several witnesses • attending having been severally sworn, and examined by me, I reduced their testi- mony to writing, and have attached the same hereto, and make the same a part of this report. ■ I would further report that, etc. {Here insert conclusions of facts), and would, therefore, recommend that, etc. {Here %nsert such recommendation as the facts may warrant). All of which is respectfully submitted. , Master in Chancery. Dated this day of , 18 — . Either party may file objections to the master's report before he returns it into court. The objections may be in the follow- ing form : TESTIMONY. 185 Objections to Master's Report — Exceptions to Master's Report. No. 76. Objections to master's report. In the Court. A. B. et al. \ Term, 18—. vs. > In Cbancery. 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. {Here state the ground of objection.) 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. Excej>tions to inaster^s rejport. In the Court. A. B. et al. ) Term, 18—. vs. y 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 appeal therefrom to the judgment of this court. , Sol. for Defendants. The report of a master is received as true wliere 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 ISG TESTIMONY. Exceptions to Master's Report — Oral Testimony. court by a reference to the particular testimony on which the exceptor relies, (j?) Exceptions to a master's report must state article by article those partg 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, {q) No exceptions can be taken to the report of a master unless the objection be made before him, previously to his signing his report, (r) Where a cause is referred to a master to examine and report as to any facts in the case, it is his duty to draw the conclu- sions from the evidence produced before him, and to report that conclusion only ; and it is irregular and improper for him to set forth the evidence in his report without the special direction of the court. If either party excepts to the report, he may then obtain certified copies from the master, of the depositions, or other evidence on which the decision of the master was founded, to be used on the argument of the excep- tion, {s) 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, {t) Independent of this statute it was held, that the court has ip) Harding vs. Handy, 11 Wheat. 103; Prince vs. Cutler, 69 111. 267. [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) Methodist Church vs. Jaques, 3 Johns. Ch. R. 77; Becl'ivith vs. Butler^ 1 Wash. Va. 224; Foote vs. Van Ransi, 1 Hill, Ch. R. 185; Lewis vs. Leivis, Minor, 35; Pennell vs. Lamar Ins. Co., 73 111. 303 (s) Prince vs. Cutler, 69 111. 267: Mott vs. Harrington, 15 Vt. 185; Good- man vs. Jones, 26 Conn. 264; In the matter of Hemiiip, 3 Paige, 306. {t) Rev. Stat. (1874) 494; Rev. Stat. (1877) 481. TESTIMONY. 187 Oral Testimony at Hearing no right to prevent a party from offering oral testimony upon the trial of a case in chancery, (w) 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, (v) This rule, however, only affects the mode of taking testi- mony, and does not dispense with the necessity of the testi- mony appearing of record. The testimony may be preserved in the record by a statement in the decree, or a certificate of the judge, or in the master's report, (w) The statute referred to does not apply to mechanic's lien cases, (a?) where exceptions to evidence must be taken and preserved as in common law cases. (2/) (m) Owens vs. Ranstead, 22 Til. 161. {v) Maker vs. Bull, 39 111. 5.., Groh vs. Cushman, 45 111. 119. (ir) White vs. Morrison, 11 111. 365; Ward vs. Owetis, 12 111. 283; Nichols vs. Thornton, 16 111. 113; Moore vs. Trustees, 19 111. 83; Coolei/ vs. Scarlett, 38 111. 316; Quigley vs. Roberts, 44 111. 503; Martin vs. Hargardine, 46 111. 322; Willhiteys. Pearce, 47 111. 413; Preston vs. Hodgen, 50 111. 57; Bree\s. Bree; 51 111. 367; Walker vs. Carij, 53 111. 470; Forth vs. Town of Xenia, 54 111. 210; BrocTcenhrongh vs. Dresser. 67 111. 225. (x) Kidder vs. Aholtz; 36 111. 481. {y) Board etc. vs. Greenbaum, 39 111. 615. CHAPTER XII. FEIGNED ISSUES TRIALS BY JURIES. Nature of. — A feigned issue is an issue brouglit 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, {x) 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. Ifoore, 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 (x) Bouv. L. D. 516 ; 3 Black. Com. 452 : Bouv. Inst. Index, h. t. iy) Milk vs. Moore, 39 111. 588. (z) Russell vs. Payne, 45 111. 350. (a) See also Pankey vs. Raurn, 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 ; (c) 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 sought to be avoided for insanity of the grantor; (y) 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 chancery, 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 tlie 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) Williams vs. Bishop, 15 111. 108. (c) Waddams vs. Humphrey, 22 111. 661. (d) Milk vs. Moore, 39 111. 587. (e) Russell vs. Payne, 45 111. 350. (/) Myatt vs. WalTcer, 44 111. 485. {g) McConnell vs. Smith, 27 111. 234. {Ji) Pankey vs. Rhum-, 51 111. 88. \i) Russell vs. Paine, 45 111. 350. (j) Myatt vs. Walker, 44 111.485; Pankey vs. Ranm, 51 111. 88; Hahnvs. Huber, 83 111. 243. (k) Milk vs. Moore, 39 111. 588; WiUiams vs. Bishop, 15 111. 553; Sibert vs. McAvoy, Id. 108; Burt vs. Rynex, 48 iVlo. 309; see also Austin vs. Bain- ter, 50 111. 308; Meeker vs. Meeker, 75 111. 2G0; Sharkey vs. Miller, 69 111. 560; Smith vs. Newton, 84 111. 14; Titcomb vs. Vantyle, 84 111. 371. 190 FEIGNED ISSUES — TKIAL BY JURIES. 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. (Z) And a court of chancery is more liberal in granting new trials on feigned issues than courts at law. {^n) 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 clearly that it could not but be understood by the jury, and their verdict should be responsive to each, (p) No. 78. Order directing an issue of fact to he tried hy a jury » {Ca/ption and title of cause as in No. 79, post, page 198.) This cause came on to be heard upon the pleadings filed and the proofs taken therein, and the court having heai-d tlie argu- ments of the solicitors for the respective parties : It is ordered that the following issues of tact be made and tried at the [1) Williams vs. Bishop, 15 111. 555 ; Bigg vs. Wilton,!^ 111. 15; Milk vs. Moore, 39 111. 588. (m) Waddams vs. numplirey, 22 111. 661. {n) Woodside vs. Woodside, 21 111. 207; Brockett vs. Brockett, 3 How. U. S. R. 691. (o) Von Olahn vs. Von Olahn, 46 111. 134. (p) MUk vs. Moore, 39 111. 588. FEIGNED ISSUES — TKIAL 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. {Ilei^e state any other fact to he tried hy the jury^ 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. ($') Drawing ujp a/)id settling a feigned issue. -^T^nd&v 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. 483-486, 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. HEAEING. The statute of Illinois requires the clerks of the courts to keep a docket of all the causes pending m 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, (b) {(i) Rev. Stat. (1874) 776; Rev. Stat. (1877) 735; Clark vs. MarfieU, 77 111. 258. [b] Murphy vs. Stiiltz, Saxton, 5G0. HEAEING. 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 afiirmative, 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, {g) Original and cross-bill heard together. — The original bill and cross-bill should be heard together. (A) 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 ^r6> confessor will be ordered, on motion, to be read on the hearing of the original cause, {j) (c) JDuman vs. Pepper, 43 Geo. 361. (d) Walton vs. Van Mater, Halst. Dig. 175. (e) 1 Barb. Cli. Pr. 317. (/) 1 Barb. Ch. Pr. 317, 318. {g) Gregg vs. Brower, 57 111. 525; Clark vs. Marfield, 77 111. 258. (h) Beauchamp vs. Putnam, 34 111. 378. (i) Lubiere vs. Oenou, 2 Ves. 579. {j) Corey vs. Gertaken, 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 fi-om each other, the court will permit the cause which Btands 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. (Jc) 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, (f) 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) Qc) Ncvil vs. Johnson, 2 Vern. 447; Wilford vs. Beaseley, 3 Atk. 501,508 ; Prac. Reg. 172 ; 1 Barb. Cli. Pr. 320. (Q McConnics vs. Moseley, 4 Call, 360 ; Beauchamp vs. Putnam, 34 IlL 378. (m) Gibson vs. Meese, 50 111. 383 CHAPTER XIY. DECREES AND DECRETAL ORDERS. Section 1. Nattjbe, Uses and Kinds of Deckehb. 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 the 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 efiect 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 ; (b) and a complainant cannot obtain a decree for more than he has asked in his bill, (c) InterloGutory 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) Woodworth vs. Huntoon, 40 111. 132; Means vs. Means, ^ 111.50; Hall vs. Tovme, 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 ; Langdonxs. Roane, 6 Ala. 518 ; Morgan vs. Crabb, 3 Porter, 470 ; Maury VB Mason, 8 Porter, 211 ; Dickinson vs. Morgan, 8 Dana, 130 ; Rougher vs. Miller, Wright, 328 ; Handly vs. Toung, 4 Bibb, 376 ; Del. & H. Canal Co. VB. Penn. Canal Co. 21 Penn. 131. (c) Simons vs. Guthrie, 9 Cranch, 19 ; Hall vs. Towne, 45 111. 493. 196 DECKEES AND DECRETAL ORDERS. Interlocutory Decree — Final Decree. tory ; [d) for a decree is not final nnless 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 tlie 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, (f) 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 ordei'ing an act to be done before the decree can be effectual, is interlocutory. (A) Where 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 ^yhose favor it is made, cannot obtain the benefit thereof, without further hearing before the court, is interlocutory. (Jc) Ordering bonds in dispute to be brought into court to await its further order, and that the several claimants intei-plead, is an interlocutory, not a final decree. (Z) 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 ; Gray vs. Hays, 7 Humph. 588 • Knapp vs. Marshall, 26 111. 63. (e) Jaques vs. M. E. Church, 17 Jolius. 548. (/) CocJce vs. Gilpin, 1 Rob. Va. 20. i^g) Maclcey vs. Bell, 2 Munf . 523 ; see also Price vs. Nesbit, 1 Hill, Cli. 445 iji) nays vs. Mays, 1. J. J. Marsh. 497. (i) Bellamy vs. Bellamy, 4 Florida, 242. \jD Dabhs vs. Dahhs, 27 Ala. 646. ijc) Johnson vs. Everett, 9 Paige, Ch. R. 636 (0 Thomas vs. County of Morgan, 39 111. 497. DECREES AND DECRETAL ORDERS. 197 Final Decrees. court, is a final decree, thougli some furtlier proceedings are to be had before a master, exceptions to whose report may bring the matter again before tlie court, [m] 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, {q) Where 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 ; (r) 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, {t) (m) Mills vs. Hoag, 7 Paige, Ch. E. 18 ; Vanmeter vs. Vanmeter, 3 Gratt. Va. 148 ; Dickenson vs. Codwise, 11 Paige, Ch. R. 189 ; see Bates vs. Del- avan, 5 Paige, Cli. R. 299 ; Tennent vs. 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, Harring. Ch. 265. iji) Harvey vs. Branson, 1 Leigh, 108 ; Larue vs. Larue, 2 Little, 261 ; Field vs. Ross, 1 Monroe, 137. (o) Johnson vs. Everett, 9 Paige, Cli. 636. {p) Wfiiting vs. Bank of U. 8. 13 Pet. 6 ; see Travis vs. Waters, 1 Johns. Ch. 85 ; Jonit vs. Oaither, 6 Monr. 251. iq) Turner vs. Crehill, 1 Ham. 368. (r) Btiffvs. Starke, 3 Gratt. Va. 134. ' (s) Griffin vs. Doe, 12 Ala. 783. (t) Swift vs. Allen, 55 111. 303 ; Ixnapp vs. Marshall, 26 111. 63. 198 DECREES AND DECRETAL ORDERS. Forms of Decrees — Caption with Title — Recitals. SECTION II. FOKMS OF DECKEES. Constituent jparts. — Decrees in general consist of three parts : f/rst^ the caption and title ; second., the recitals ; and third., 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, {u) 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. iTo. 79. Caption of a decree or order, loith 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 dav of , in the year 18—. Present : The Honorable , Judge, etc. A. B. ) vs. y 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. Ch. Pr. 337 ; 2 Dan. Ch. Pr. 663. {v) Barton's Suit in Eq. 150 ; see Quarrier vs. Carter, 4 Hen. & Munf. 242. (w) Cooley vs. Scarlett, 38 III. 316 , Walker vs. Carey, 53 111. 470. DECEEES AND DECRETAL ORDERS. l'J9 Forms of Decrees — Recital — Ordering Part. "Wliere a decree in chancer}^ recites that the case was heard upon proofs, and then finds 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- Berved in the record, {x) No. 80. Recital of a decree or order. 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 pi-oofs 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 orde7nng 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. {£) (x) Minick vs. Maiick, 54 111. 281; Jones vs. Necly, 72 111, 449; Wright vs. Troutman, 81 111. 3T4. (/;) Barton's Suit in Eq. lo'' [z] 1 Barb. Ch. Pr. 338. ^00 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 he prefaced bj 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. (J) This, how- ever, is not often done, though the utility of the practice has been frequently recognized, (c) Decree hy consent. — When a decree is rendered hy 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, (/") without showing by the bill of review fraud or mistake, {g) And the consent may be proved aliunde. (A) Nunc pro 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. 839. (6) Gorden vs. Gorden, 3 Swanst. 478 ; Maynard vs. Mosely, Id. 653 ; Onions vs. Tyrer, 1 P. Wms. 343. (c) Bax vs. Wliiibread, 16 Ves. 34; Gorden vs. Gorden, 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. Gee, Ambl. 229 ; Harrison vs. Rumsey, 2 Ves. 488 ; Toder vs. Sansam, 7 Bro. P, C. 244 ; Norcott vs. Norcott, 7 Vin. 398 ; Wiiid- Jiam vs. Windham, Freem. 127. {g) Pragler vs. Crow, 40 111. 415. ih) Armstrong vs. Cooper, 11 111. 540. (i) Stevens vs. Coffren, S9 111. 148; McCormick vs. Wheeler, ^^ 111. 115* McLain vs. Van Winkle, 40 111. 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 mtnc jp7'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 mine jpro tunc, so that it may have relation back as of the day of the hnal hearing. {Ic) 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 was afterward heard and decided by the chancellor, upon the appeal ; it was held that the decree upon the appeal might be entered nunc jpro tunc as of a day previous to the death of the complainant and after the entering of the appeal. (^ 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 pro tunc as of the time of the argument, {m) And decrees have been entered nunc jpro tunc after a very long interval has elapsed from the time of pronouncing the decree ; and even where the original decree has been lost, tho court has permitted it to be entered nunc pro tunc from the ofiQce copy, after the lapse of twentj^-three years, {n) Drawing of decree. — The decree should be written out by the solicitor and approved by the court, {o) But the judgo rendering a decree is not required to sign his name to it. The enti'y of the decree on the record by the clei'k gives it validity, {p) (j) 1 Barb. Ch. Pr. 340. (k) Cam.phell vs. Mcsier, 4 Johns. Cb. 334. {I) Vi'oom vs. Ditmas, 5 Paige, Cb. 528. (m) Wood vs. Keyes, 6 Paige, Cb. E. 478. {n) Lawrence vs. BicJunond, 1 Jac. & W. 241 ; Donne vs. Lewis, 11 Ves. 601 ; Jcsson vs. Brewer, 1 Dick. 371 ; 1 Barb. Cb. Pr. 341, 342. {o) Stevens vs. Goffeen, 39 111. 148 ; Schneider vs. Seibert, 50 111. ■28.'j. (p) Dunning vs. Dunning, 37 111. 306s 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, _^. 198.) This cause having come on to be heard upon the motion of the complainant, {or defendant) for, etc. {Here insert th-e 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 ; ]^ow, 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. 8'2. General form of a decree. {Caption, with title of the cause as in No. 79, &nie,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, 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 insert the decree.) No. 83. General form of a decree or order, {q) {Caption, with title of cause, as in No. 79, ante, page 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 tne decree or order.) (q) Kule 86 of U. S. Eq. Rules, ante, page 199. CHAPTER XY. SUPPLEMENTAL BILL. Btection 1. Nature of, and when proper. 3. When to be Filed. 3. Parties to. 4. Form of. 5. Petition for Leave to File. 6. Process. 7. Defenses to. 8. Replication and Evidence. 9. Hearing. SECTION I. NATURE OF, AND WHEN PKOPEK. 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 which 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, (b) 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 bill, {c) (a) Barton's Suit in Eq. 128 ; Story's Eq. PI. § 332 ; Mont. Eq. Pl. 316 ; Hinde's Pr. 42, 45. (6) FaTis vs. Roberts, 54 111. 192 ; Candler vs. Pettit. 1 Paige, Ch. R. 168 ; Broton vs. Higdon, 1 Atk. 291 ; Edgar vs. Clevenger, 2 Green, Ch. R. 258 ; Story's Eq. PI. ^ 339. (c) Burlce vs. Smith, 15 111. 158 ; Stafford vs. Howlett, 1 Paige, Cli. R. 200 ; Fulton Bank vs. N. Y. <& S. Canal Co. 4 Paige, Ch. R. 127 ; Walker vs. Gil- bert, 7 S. & M. 456 ; Wrap vs. HutcMnson, 2 Mylne & Keene, 235 ; Crompton vs. Wombwell, 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 tfie 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 afiidavit, 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 ; (/") 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. (A) 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. § 332 ; Grompton vs. Womiwell, 4 Sim. 638. (e) Pedrick vs. WIdte, 1 Met. 76 ; Bowie vs. Minter, 2 Ala. 406 ; Story's Eq. PI. § 338; Mitf. Eq. PI. 55, 61 ; Hinde's Pr. 43,43; Veazievs. Williams, 3 Story, R. 54 ; see also Hasbi'ook vs. Shuster, 4 Barb. 285 ; Collins vs. Laven- lerg, 19 Ala. 682 ; Mix vs. Beach, 46 111. 311 ; Choteau vs. Bice, 1 Minn. 106; Oopen vs. Flesher, 1 Bond, 440. (/) Graves vs. Miles, Harring. Ch. 332. (g) Gillett vs. Hall, 13 Conn. 436 ; Potter vs. Barclay, 15 Ala. 439 ; Cu7h- ningJiam vs. Bogers, 14 Ala. 147 ; Harrington, vs. Slade, 23 Barb. N. Y. 161 ; Catton vs. Carlisele, 5 Mad. 427 ; Orecnwood vs. Atkinson, 4 Sim. 628. (A) Id. ib. ; Choteau vs. Bice, 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. {7v) 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 purpose of bringing new parties before the court, may sometimes be filed after as well as before the decree, (m) 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, {n) But it cannot be filed after a deci'ee dismissing the bill, (o) 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 (i) Bignall vs. Atlcins, 6 Mad. 369 ; Ensworth vs. Lambert, 4 Johns. Ch. E. 605 ; Jones vs. Jones, 3 Atk. 217 : Holdsworth vs. Holdsworth, 3 Dick. 799 ; North Am. Coal Co. vs. Dyctt, 2 Edw. Ch. 115. (j) Watt vs. Crawford, 11 Paige, Ch. E. 470; Livingston vs. Freeland, 3 Barb. Ch. E. 510. (k) Morgan vs. Morgan, 10 Geo. 297. {I) Gibson vs. Beas, 50 111. 383. (m) 2 Barb. Ch. Pr. 62 ; Woodward vs. Woodward, 1 Dick. 83 ; Boeve vs. Bkipwith, 1 Eq. Ca. Ab. 80 ; 2 Ch. E. 143 ; 3 Dan. Ch. Pr. 156. (w) Dormer vs. Fortescue, 3 Atk. 124. (o) Burke vs Stnith, 15 111. 158. 206 SUPPLEMENTAL BILL. Parties to. ought to be made parties ;(^) but if it is merely to bring before the court formal parties, the defendants 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 different 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 purchase)' of the interest of a party jfjendenie 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. Calwell vs. Boyer, 8 Gill & J. 136 ; Ensworth vs. Lambert, 4 Jolms. Ch. R. 605 ; McQowan vs. Yerks, 6 Johns. Ch. R. 450. (r) 3 Dan. 180 ; 2 Barb. Ch. Pr. 69. («) Feary vs. Stephenson, 1 Beav. 42. («) Welf Eq.Pl. 189; 2 Barb.Ch.Pr. 69; Tonkin Ys.Lethbridge, Coop.Eq.R.33. («) 2 Barb. Ch. Pr. 69 ; Mitf. Eq. PL 68. (v) Anon. 1 Atk. 89. (m) Whiteonib vs. MincMn, 5 Mad. 91 ; 2 Barb. Ch. Pr. 69. SUPPLEMENTAL BILL. 207 Form of Bill — Prayer of. SECTION IV. FOKM OF BILL. A supplemental bill iiiiist state the original bill, and the proceedings thereon ; and if it is occasioned by an event snb- Beqnent 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 answer 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 the 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, (z) If the latter is the object in view, the ficts 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) (xl 2 Barb. Ch. Pr. 70 ; Mitf. Eq. PI. 75 ; Story's Eq. PL § 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. (o) 2 Barb. Ch. Pr. 71 ; Vigers vs. Lord Audley, 9 Sim. 72. (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. I?o. SJj.. Supplemental hill for speevfi 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 Mil,) and praying, etc. {State the substance 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) ; where- (c) Turner vs. Berry, 3 Gilm. 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. Ch. Decis. 42 ; Eager vs. Price, 2 Paige, Cli. R. 333 ; Walker vs. Hallett, 1 Ala. (N. S.) 379 ; Lawrence vs. Bolton, 3 Paige, Ch. R. 294. {d) Eager vs. Price, 3 Paige, Cli. 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. Tour 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 for cornplainant. A. B. {Add affidavit.) SECTION VI. PKOCESS, ETC. Upon the tiling 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, {f) 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 oi'iginal cause was at issue. (A) Many of the causes of demurrer which apply to original {e) Mix vs. Beach, 46 111. 311. (/) Lawrence vs. Bolton, 3 Paige, Ch. R. 294. (g) Id. ; 1 Barb. Ch. Pr. 54 ; 2 Id. 75. {Ji) Colclough vs. Evans, 4 Sim. 76. 212 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. (I) JVo. 87. Demurrer to sujpjplemental hill. In the Court. C. D. I Term, 18—. ats. \ In Chancery. A. B. f The demurrer of C. D., defendant, to the supplemental bill of A. B. complainant. This defendant, etc., {Proceed as in No. 16, ante, p. 108, to the *, theTi) 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 tiled, 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 iVo. 16.) Plea. — Besides those grounds of plea which are common to supplemental and original bills, if a supplemental bill is (j) 3 Dan. 183 ; 2 Barb. Cli. Pr. 75. (jf) Mitf.Eq.P1.203; Baldwin\s,.Machown,Z Mk.'R.^l'H; Story's Eq.Pl. § 843. \lc) Tonkins vs. Letlibridge, Coop. Eq. R. 83 ; 2 Barb. Ch. Pr. 75 ; Story's Eq. PI. § 343. (Z) 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, (w) So, if a supplemental bill is filed without any sufficient 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) 1^0. 88. Plea to a supplemental hill. 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 tlie 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 (to) 2 Barb. Ch. Pr. 76 ; Mitf. Eq. PI. 290 ; Stafford vs. Howlett, 1 Paige, Ch. R. 200. (n) Id. ; Lawrence vs. Bolton, 3 Paige, Ch. R. 294. {o) 3 Dan. 184 2 Barb. Ch. 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. {\i) JEvidence. — 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.. (?) Vigers vs. Lord Audley, 9 Sim. 408. (r) Sayle vs. Graham, 5 Sim. 8 ; 2 Barb. Ch. Pr. 77. («) 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. (u) 2 Barb. Ch. Pr. 77 ; Catto7i vs. Earl of Carlisle, 5 Mad. 457 ; Gillett vs. Hall, 13 Conn. R. 426 ; Chateau vs. Ricef 1 Minn. 106 ; Copen vs. Flesher, 1 Bond, 440. SUPPLEMENTAL BILL. 215 Hearing — Entitling Ordera. ined as to the new matter contained in tlie 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. HEARING. 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 which purpose the supplemental cause must be brought to a hearing alone ; or it may be heard with the original cause for further direction. {2) 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." {])) («) 2 Barb. Ch. Pr. 77-78. {w) 2 Barb. Ch, Pr. 78 ; 3 Dan. 186. (cr) 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. (s) 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 hills. — 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) BagnaU 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 of Supplemental Bills. 2. Bills to Carry Decrees into Execution. SECTION I. ORIGINAL BILLS EST 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 acquii'ing 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 former proceed- ings may be obtained by means of a bill called an original bill in the nature of a supplemental bill, {a) The principal difference 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, (b) (a) 2 Barb. Ch. Pr. 84; 3 Dan. 230; Hinde, Cb. Pr. 71; Blake, Ch. Pr. 38. (6) Coop. Eq. PI. 75 ; Story's Eq. PI. § 345. 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, (c) A bill, in the nature of a supplemental bill, may also be required, not only where new interests arise, either before or after a decree, but also where relief of a different kind, or upon a different principle, is required from that in the original decree, {d) And an original bill in the nature of a supplemental bill seems to differ from an original bill in the nature of a bill of revivor in this, that upon the latter, the benefit of the former proceedings is absolutely obtained ; so that the pleadings in the first cause, as also the depositions of witnesses, may be used in the same manner as if they had been filed or taken in the second cause ; and if any decree has been made in the first cause, the same decree will be made in the second cause. But in the case of an original bill in the nature of a supplemental bill, a new defense may be made ; the pleadings and deposi- tions cannot be used to the same extent as if filed or taken in the same cause ; and the decree, if any has been obtained, is not otherwise of advantage than as it may be an inducement to the court to make a similar decree, {e) A bill of this kind is not, in all cases, either proper or necessary, merely because new events have occurred since the original bill. But the flicts must be material to the original cause, or be such as could not, in that stage of the original cause, be brought into it without such a bill. {/) For where (c) Story's Eq. PI. § 346 ; Coop. Eq. PL 75, 76 ; Hinde, Ch. Pr. 44 ; Mole vs. Smith, 1 Jac. & Walk. R. 665 ; Foster vs. Diason, 6 Mad. R. 59 ; Wellesltf vs. Wellesly, 17 Sim. 59 ; Lee vs. Lee, Hare, R. 621 ; Rohertson vs. Southgate, 5 Hare, R. 223. (d) Story's Eq. PL § 351 b ; Rodson vs. Ball, 11 Sim. 456, 463 ; Phillips' Ch. R. 177; Taijlor vs. Taylor, 1 Mac. & Gord. R. 405. (e) Barton's Suit in Eq. 132, 133; 2 Barb. Ch. Pr. 85; Mitf. Eq. PL 64; 3 Dan. 165 ; Adams vs. Dowding, 2 Mad. 53. (/) Story's Eq. PL § 332, 335-337, 352. BILLS IN NATURE OF SUPPLEMENTAL. 219 Original Bills in the Nature of — Form of. there is no alteration in the interest of the parties, nor any- particular circumstance requiring further discovery, but when a fact only has occurred which might be proved under the proceedings in the original bill, as in taking an account before the master under the prayer of the original bill, and the relief is not varied by the supplementary matter ; but the complain- ant may have the relief prayed for by such supplementary bill under the original bill, the supplemental bill is im- proper, {g) Form of. — A bill of this nature must state the original bill, the proceedings upon it, the event which has determined the interest of the party by, or against, whom the former bill was exhibited, and the manner in which the property has invested in the person become entitled thereto. It must then show the gi'ound upon which the court ought to grant the benefit of the former suit, to or against the person so become entitled, and pray for process against the defendant, to the end that he may answer the premises, and that the complainant may have similar relief against him to that which was prayed in the original bill. (Ji) This bill, although partaking of the nature of a supplemental bill, is not an addition to the original bill, but another original bill, which, in its consequences, may draw to itself the advantage of the proceedings on the former bill. (^) Wo. 89. Original Jnll in the nature of a supplemental hill. To the Honorable , Judge of the Court of the County of , in the State of , In Chancer}' sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., on C. D., of, etc., being indebted to E. F., {g) Adams vs. Dowding, 3 Mad. R. 55; Roberts vs. Roberts, 16 Sim. R. 367; Story's Eq. PI. § 353. [h) Lube's Eq. PL 237 ; Mitf. Eq. PI. 98 ; 3 Barb. Ch. Pr.86 ; Story's Eq. PI. § 853. (i) Phelps vs. Sproule, 4 Sim. R. 318 ; Vigers vs. Lord Audley, 9 Sim. R. 75 ; Story's Eq. PI. § 353. 220 BILLS IN NATUKE OF SUPPLEMENTAL. Original Bills in tlie Nature of — Form of. of, etc., in the sum of dollars, made and delivered to the said E. F. liis certain promissory note of that date, and thereby promise to pay the said E. F. the said sum of dollars, in after date, with interest at the rate of per cent, per annum, as will appear by the said note, ready to be produced in court, and by the copy of the same hereto attached, marked " Ex- hibit A," and made a part of this your orator's bill. That to secure the payment of the said principal sum and interest as aforesaid, the said C. D. on the same day, by his mortgage deed of that date, conveyed to the said E. F. in fee simple, the premises described as follows, viz. : {Here insert description^ subject, however, to a condition of defeasance, upon the pay- ment of the principal sum and interest aforesaid, according to the tenor and effect of the said note ; which said mortgage deed was on, etc., filed for record in tlie recorder's ofiice of the county of aforesaid; as will appear by the said mortgage deed, ready to be produced in court, and by the copy thereof hereto attached, marked " Exhibit B," and made a part of this your orator's bill. Your orator further represents, that the said C. D. has not yet paid the said principal sum of dollars, or such interest thereon, or any part thereof, although the same long since became due ; by means whereof the said mortgaged property became forfeited, subject nevertheless to redemption in equity by the said C. D., his heirs and assigns. Your orator further represents, that on, etc., the said E. F. exhibited his original bill of complaint in this honorable court, against the said 0. D., as defendant thereto, thereby stating the matters and things hereinbefore stated, and praying that an account might be taken in that behalf, by or under the direction of the court, of what was due to him for principal and interest on the said note and mortgage, and that the said C. D. might be decreed to pay to him, the said E. F., whatever sum should appear to be due to him, together with the co'sts of that suit, by a short day to be fixed by the court ; or that in default of such payment the said mortgaged property may be sold, as the court sliould direct, to satisfy such debt and costs ; that in case of such sale, and of a failure to redeem therefrom according to law, the said C. D., and all persons claiming through or under him, after tlie commencement of that pro- ceeding, might be forever barred and foreclosed of all equity of redemption, of the said mortgaged property ; and that he. the said E. F., might have such other and further relief in the premises, as equity may require, and to the court might seem meet. BILLS IN NATURE Oh' SUPPLEMENTAL. 221 Original Bills in the Nature of — Form of. And your orator further represents, that the said C. D. being duly summoned, appeared and put in liis answer to the said bill, to which the said E. F. replied, and that the said cause being at issue, witnesses were examined on both sides and the proofs closed ; as by such bill, answer, replication and pro- ceedings now remaining as of record in this honorable court, reference being thereto had, will more fully appear. And your orator further represents, that before any further proceedings were had in the said cause, and on or about, etc., the said E. F. was adjudged a bankrupt, by the district court for the district of , and all the property, effects, and rights of property of the said E. F. became divested out of him, and became vested in your orator as the general assignee in bankruptcy, appointed as such by the said district court ; as by the said proceedings in bankruptcy, now remaining as of record in the said district court, reference being thereto had, will more fully appear. And your orator further represents, that by virtue of his appointment as assignee in bankruptcy of the said E. F., as aforesaid, your orator has become entitled to the said principal sum, and interest so due on the said note and mortgage, as aforesaid. And your orator further represents, that by the said bank- ruptcy of the said E. F., the said suit so instituted by him has become defective, but that your orator, as assignee as aforesaid, is entitled to have the benefit of such suit and the proceedings therein, and to prosecute the same against the said C. D., from the period when it so became defective as aforesaid, and that for that purpose this his bill ought to be taken as supplemental to the said bill of the said E. F. 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 peiiect answer to the same, hut not under oath, the answer tmder oath heing herehy waived / and that it may be declared that your orator, as such assignee as aforesaid, is entitled to have the benefit of the said original suit, and the proceedings therein ; and that your orator may be at liberty to prosecute the same against the defendant from the period when the said original suit so became defective by the bankruptcy of the said JE. F., as aforesaid ; and that for that purpose this bill may be taken as supplemental to the said bill of the said E. F. ; and that your orator may have the same relief against the defendant as the said E. F. might have had if he had not become bankrupt ; and that your orator may have 222 BILLS IN NATURE OF SUPPLEMENTAL. Bills to carry Decrees into Execution — Nature of. 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 No. 86, ante, page 209.) Proceedings upon. — The proceedings upon a bill of this de- scription are the same as those upon original bills in general, {j) SECTION II. BILLS TO CAKKT DECKEES INTO EXECUTION. Nature of. — Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of court. This happens, generally, in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them, (h) Some- times, such a bill is exhibited by a person who was not a party, or who does not claim under any party to the original decree, but who claims in a similar interest, or who is unable to obtain the determination of his own rights, till the decree is carried into execution. Or, it may be brought by or against any per- son, claiming as assignee of a party to the decree. (Z) The court in these cases, in general, only enforces, but does not vary the decree. But upon circumstances it has sometimes reconsidered the original directions, and varied them in case of mistake, (m) And, under peculiar circumstances, it has even refused to enforce the decree ; {n) though, in otker cases, the {j) 2 Barb. Cli. Pr. 86 ; 3 Dan. Ch. Pr. 192. {k) Hinde's Pr. 68 ; 3 Dan. Ch. Pr. 192 ; Mitf . Eq. PI. 95 ; Barb. Ch. Pr. 86. {I) Story's Eq. PI. § 429 ; Coop. Eq. PI. 98, 99 ; Organ vs. Gardiner, 1 Cas. in Ch. 231 ; Lord Gartaret vs. Paschal, 3 P. Wms. 197 ; Binks vs. Binks, 2 Bligh, 593 ; Rylands vs. LatoueJie, 2 Bligh, 5(iG. (to) Mitf. Eq. PI. 95 ; Coop. Eq. PI. 99 ; Story's Eq. PL § 430. (73) Id. ; Attorney General vs. Day, 1 Ves. 218 ; Johnson vs. Northey^ Prac. In Ch. 134. BILLS L\ NA'i-UWK OF SUPPLEMENTAL. 223 Bills to carry Decrees into Execution — Form of. courts seem to have considered that tlie law of the decree ought not to be examined on a bill to carry it into execution, (p) It is to be observed, that although the original decree may sometimes be controverted, upon a bill to carry it, into execu- tion, it is only the defendant in the new suit who can call it in question. The complainant never can. {_p) The complainant must, if not satisfied with the decree, impeach it, either by a bill of review, or some proceeding of that kind', {q) A bill to carry a decree into execution is, generally, partly an original bill, and partly a bill in the nature of an original bill, although not strictly original ; and sometimes it is like- wise a bill of review, or a supplemental bill, or both, (r) The frame of the bill is varied accordingly, (s) JVo. 90. Bill to carry decree into execution. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator filed his bill of complaint in this honorable court, against C. D., stating, etc., {Here set out the substance of the hill — say a hill for partition,) and praying, etc. [Here insert the prayer of that hill.) And your orator further represents, that a summons being served upon the defendant, C. D., he appeared and put in his answer thereto, to which a replication was filed. And the said cause being at issue, the same came on to be heard before your honor on, etc., when a decree was rendered b}^ your honor that etc., [Here insert the substance of the decree^ as by the said proceedings and decree now remaining as of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further represents, that the commission (o) Attorney Oenoral vs. Day, 2 Ves. 232 ; SmytJie va. Clay, 1 Bro. P. C. 453 ; Story's Eq. PI. § 430 ; 2 Barb. Cli. Pr. 87. ip) Robinson vs. Robinson, 2 Ves. 225. {q) 2 Barb. Ch. Pr. 88 ; Shepherd vs. TUky, 2 Atk. 348. (r) Pendleton vs. Fay, 3 Paige, Ch. R. 204. (s) Mitf . Eq. PI. 97 ; Story's Eq. PI. § 432 ; See PoU vs. GaUini. I Sim. & Stu. 206. 224 BILLS IN NATUEB OF SUPPLEMENTAL. Form of Bill to carry Decree into Execution. awarded by the said decree never issued, on account of the said E. F. going abroad, and being, until lately, out of the jurisdic- tion of this court ; but the said E. F. having now returned, and the inconvenience mentioned in your orator's former bill still existing, your orator is desirous of having the said decree forth- with carried into execution, but from the great length of time which has elapsed, and the refusal of the said C. D. to concur therein, your orator is ad\ased the same cannot be done without the assistance of this honorable court. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and tr the end that the said C. D., who is made a party defendant to this bill, may be required to make full and perfect answer to the same, hut not under oath, the answer under oath heing hereby waived : and that the said decree may be directed to be forthwith carried specifically into execution ; and the said C. D. ordered to do and concur in all necessary acts for that purpose ; and that yom 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. {Prayer for summons as i?t No. 85, ante, page W9.) CHAPTER XYIL BILL OF REVIVOR. Section 1, Nature of. 2 When Proper. 3. Against Whom to be Fh,bd. 4. Frame op Bill. 5. Defenses to. 6. Replication. 7. Order to Revive. 8. Hearing. 9. Effect of Revivor. SECTION I. NATURE OF A BILL OF REVIVOR. A bill of revivor is tlie usual mode of reviving and continn- ing tlie proceedings, whenever there is an abatement of the suit before its final consummation. An abatement in the sense of the common law, is an entire overthrow or destruction of the Buit, so that it is quashed and ended, {a) But in the sense of courts of equity, an abatement signifies only a present suspen- sion of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit, when abated, is absolutely dead. While in equity, a suit when abated, is in a state of suspended animation ;. and it may be revived, (b) "Where a suit abates by death or marriage, the proper means of restoring vitality to the cause is by bill of revivor by or against the person who comes in in the same right of the original party, (c) (a) 3 Black. Com. 168 ; Putnam vs. Putnam, 4 Pick. 139 ; see Origgs vs. Qear, 3 Gilm. 2. (6) Story's Eq. PI. § 328, 329, 349, 354 ; Bowie vs. Minter, 2 Ala. 406 ; Cullom vs. Batre, 2 Ala. 415. (c) Bowie vs. Minter, 2 Ala. 406 ; see Payton vs. McDowell, 3 Dana, 314 ; Holder vs. Mount, 2 J. J. Marsh. 187. 15 226 BILL OF REVIVOK. When Proper — Before Decree. SECTION II. WHEN PEOPEK. Before decree. — Formerly the death or marriage of one of the original parties to the suit was the most common, if not the only cause of abatement in a suit in equity. As the inter- est of the complainant usually extended to the whole suit, therefore, according to the English rule, upon the death of the complainant, or the marriage of a female complainant, all pro- ceedings became abated, {d) Upon the death of a defendant, likewise, all proceedings become abated as to that defendant, {e) But upon the marriage of a female defendant the proceedings did not abate, although her husband ought to be named in the subsequent proceedings. (/") The general rule in relation to the abatement of suits in equity, upon the death of parties or the marriage of a feme sole complainant or defendant before a final decree, no longer prevails in Illinois and many other states. For it is provided by statute that representatives of deceased parties, and the husband, in case of the marriage of &, feme sole, may be made parties by a suggestion of the death or marriage, as the case may be, upon the records of the court, when the cause will proceed as in other cases, [g) A bill of revivor before a final decree would seem now to be seldom necessary. A bill of revivor against a posthumous child, not a party to a suit, cannot be filed so as to divest his title nunc pro tunc, (h) For a full investigation of the natiire, purpose and scope of a bill of revivor, the attention of the student is directed to d) Mitf. Eq. PI. 57 ; Story's Eq. PI. § 354 ; Coop. Eq. PL 63 ; Spencer vs. Wray, 1 Vern. 463 ; Anon. 3 Atk. 485, 486 ; NicJiol vs. Boosefelt, 3 Johns. Ch. 60. (e) Story's Eq. PL ^ 354 ; Coop. Eq. PL 63 ; Thompson vs. Dudley, 3 Edw. Ch. 137. (/) Mitf. Eq. PL 58; Gilb. For. Rom. 174, 177; Wyatt Pr. Reg. 90-92'; Story's Eq. PL § 354. {g) Rev. Stat. (1874) 97; Rev. Stat. (1877) 94. {h) McConnel vs. Smith, 23 lU. 611. BILL OF REVIVOR. 32? When Proper — After Decree. the works on chancery pleading referred to in the note be- low, {i) After decree. — The general rule is strict, that befor^ decree the defendant cannot revive ; but this rule does not hold aftei a decree, because then the rights of the parties are fixed, and the complainant and defendant are equally entitled to the benefit of it. {j) After a decree to account, either party may revive, iji) It was laid down as a rule by Lord Hardwicke, that a de- fendant can revive only in one instance, and that is after a decree to account, for in that case both parties are actors. (Z) But the principle has been, by subsequent decisions, extended to every case in which the defendant can derive a benefit from the further proceedings, (wi) The complainant has a right to revive in the first instance , and the defendant cannot reviye except upon default of the complainant to do so. (^) But in a case where both parties have a right to insist that the suit shall be revived, if the com- plainant does not revive it within a reasonable time, the defendant may do so. {p) If an abatement occurs by the death of a defendant, the suit may be revived at the instance of his representatives, {jp) pro- vided they have an interest, {q) {%) Story's Eq. PI. § 354-387 ; Mitf . Eq. PI. by Jeremy, 98 ; 2 Barb. Ch. Pr. 5-58 ; Barton's Suit inEq. 129-132 ; Hunter's Suit in Eq. 126 ; Welford's Eq. PI. 207-216. {j) Lord Red. 79 ; Rogers vs. Paterson, 4 Paige, Cb. R. 409 ; Anon. 3 Atk. 691 ; Souillard vs. Dias, 9 Paige, Ch. R. 393. Qc) Story's Eq. PI. § 372; Coop. Eq. PI. 68 ; Anon. 3 Atk. 693 ; Devaynea vs. Morris, 1 Mylne & Craig, 213 ; Mitf. Eq. PI. 79. {I) Id. lb. (m) Id.; Williams vs. Cooke. 10 Ves. R. 406. (ti) Horwood vs. Schmedes, 12 Ves. 311 ; Anderson xb. White, 10 Paige, Ch. R. 575 ; Pell vs. Mliot, Hopk. Ch. R. 86. (p) Leggett vs. Dubois, 2 Paige, Ch. 211. (p) Williams vs. CooTce, 10 Ves. 401, 406, iq) Much vs. LordWinchelsea, 1 Eq. Ca. Ab. 2; Anderson vs. White, 10 Paige, Ch. R. 575. 228 BILL OF EEVIVOE. Against Whom to be Filed — Before Decree. Where the object of the revivor is not to continue the suit, but merely to put an end to an injunction, and to be allowed to proceed at law, a bill of revivor bj the defendant will be liable to a demurrer, (r) The defendant must proceed to get rid of the injunction by moving that the complainant, or his representatives, revive the suit within a reasonable time, or that the injunction be dissolved, (s) If some of the complainants entitled to file a bill of revivor, refuse to join in it, they may be made parties defendant, {t) Two parties claiming separately the same estate, cannot jointly revive a bill in relation to it. {u) SECTION III. AGAINST WHOM TO BE FILED. Before decree. — If the abatement has been caused by the death or marriage of a sole complainant, and the suit is to be continued by the representatives of the original complainant, or by the husband and wife, all the defendants to the original bill must be parties to it. {v) And so they must, if the abate- ment has been caused by the death or marriage of one of sev- eral complainants, and the suit is continued by the surviving complainants, and the representatives of the deceased com- plainant, or by husband and wife, in conjunction with the other complainants. If the suit is continued either by the surviving complainants alone, or by the representatives of the deceased complainant, the representatives of the deceased complainant in the one case, or the surviving complainants in the other, must be made defendants to the bill of revivor, in conjunction with the original defendants, {w) Thus if one of several ten- (r) Horwood vs. Schmedes, 12 Ves. 311. (s) Leggett vs. Dubois, 2 Paige, Ch. E. 211. (0 Welf. Eq. PI. 210 ; 2 Barb. Ch. Pr. 42 ; Finch vs. Lord WincMsea, 1 Eq. Ca. Abr. 2, p. 17 ; Story's Eq. PI. § 245, 246. (u) Burrows vs. Taylor, Wright, 600. (tj) 2 Barb. Ch. Pr. 44 ; 3 Dan. 210 ; see Auxbury vs. Mncham, 1 Vern. 308» (tc) Auxbury vs. Mncham, 1 Vern. 308. BILL OF EEVIVOK. 229 Against Whom to be Filed — After Decree. ants in common, complainants, dies, and a bill of revivor is filed by his representatives, the survivor, if not a co-complain- ant, must be a defendant, (x) Where the abatement is caused by the death of one of sev- eral defendants, and the suit is revived by the complainant in the original suit, it is only necessary, in a simple bill of re- vivor, to bring the representatives of the deceased before the court, without making the surviving defendants j)arties. {y) These suggestions would seem unnecessary, since the statute has changed the English rule, and provides that an abatement, as we have seen, does not occur upon the death or marriage of parties, (s) Where filed after decree. — "Where a bill of revivor is filed after decree, all persons interested in carrying the decree into efiect must be made parties to the bill of revivor. The bill, however, will not be liable to demurrer for want of a party who was not before the court at the time of the abatement, although the suit may have been imperfect for want of such party ; for it is not the oSice of a bill of revivor to correct such imperfection, {a) Upon a bill for an account and distribution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin. (b) {x) Fallowes vs. Williamson, 11 Yes. 306. {y) Fanners' Loan and Trust Co. vs. Seymour, 9 Paige, Ch. R. 538; 3 Dan. 211; 2 Barb. Ch. Pr. 44. (z) Ptev. Stat. (1874) 97; Rev. Stat. (1877) 94. [a] Metcalfe vs. Metcalfe, 1 Keen, 74; 2 Barb. Ch. Pr. 45; Humphreys va. Hollis, Jacoi), 73. {b) Jenkins vs. Freyer, 4 Paige, Ch. 47. 230 BILL OF EEVIVOR. Frame of Bill — Form of Bill. SECTION IV. FKAME OF BILL. Must pursue original hill. — The bill must pursue the original bill ; it must state who were the complainants and defendants to it, the proceedings thereon, the abatement, the prayer or its object, and show the title of the complainant to revive, (c) It is also necessary to state so much new matter, and no more, as is requisite to show how the complainant becomes entitled to revive, and to charge, that the cause ought to be revived, and stand in the same condition with i-espect to the parties to the original bill, as it was at the time when the abatement occurred ; and it must pray that the suit may be revived accordingly, {d) The 58th rule for practice in the courts of equity of the United States, revised in 1870, provides that, "It shall not be necessary, in any bill of revivor, or supplemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it." The 49th of the English orders, promulgated in JL841, is to the same effect, (e) But this rule does not dispense with the necessity of stating so much of the pleadings in the original suit as is sufficient to show the title of the complainant, as against the defendant, to revive the suit, {f) No. 91. Bill of eevivob- before decree. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, E. F., of, etc., respectfully represents unto your honor, that on, etc., one A. B., late of, etc., but now deceased, (c) 2 Barb. Ch. Pr. 46 ; Story's Eq. PI. § 420, 636-647 ; Mitf . Eq. PI. 76 ; Prac. Reg. 91 ; Phelps vs. Sproule, 4 Sim. 318 ; Vigers vs. Lord Aiulley, 9 Sim. 72 ; Coop. Eq. PI. 70 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ; Humphreys vs. Incledon, 1 P. Wms. 752. (d) Story's Eq. PI. § 374. (e) Story's Eq. PI. § 374. - (/) Griffith vs. Ricketts, 3 Hare, 476. BILL OF EEVIVOE. 231 Form of Bills. exhibited his bill of complaint, in this honorable court, against C. D., of, etc., as defendant thereto, stating as therein stated, and praying that, etc. {Here insert the suhstance of the prayer of the original hill.) That process was duly issued against the said C. D., who appeared and put in his answer to the said bill, to which the said A. B. put in his replication ; and, afterwards, depositions in said cause were taken by both parties. That afterwards the said cause was referred to the master in chan- cery, of this court, to report thereupon, and that some proceed- ings have been had before the said master, but no general report has yet been made in said cause ; and that the said A. B., on or about the day of , A. D. 18 — , departed this life intes- tate ; that your orator has been duly appointed his adminis- trator, and has thereby become his legal representative; that the said suit and proceedings having become abated by the death of the said A. B., your orator is, as he is advised, entitled, as the personal representative of the said A. B., to have the said suit and proceedings revived against the said C. D., and to have the said cause in the same state and condition as the same was previously to the death of the said C. D. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of ecpiity ; 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 herehy 'waived ; that the said suit may stand revived, and be in the same plight and condition as the same was at the time of the death of the said A. B. ; and that your orator may have such other and fortlier relief in the premises as equity may require, and to your honor shall seem meet. May it please j^our 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 ap- pear before the said court, on the tirst day of the next term thereof, to be held at the court house in , in the count}^ of aforesaid ; then and there to answer this bill, etc. No. 92. Bill op revivor after decree — against the sur- mving executor of one of the defendants since deceased. 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 exhibited his bill of complaint, 232 BILL OF REVIVOR. Form of Bills. in this honorable court, against C. D. and E. D., his wife, of, etc., as defendants thereto, stating as therein stated, and pray- ing that, etc. {Here insert the substance of the prayer of the original hill.) That process was duly served upon the said C. D. and E. D., his wife ; and that they appeared and put in their answers to said bill ; to which your orator put in his replica- tion ; and afterwards, on, etc., the said cause came on to be heard before this honorable court, when it was ordered, adjudged and decreed, as follows: {Here set out the decree.) Your orator further represents that before any further or other proceedings were had in said cause, on, etc., the said C. D. departed this life, having first duly made and published his last will and testament in writing, dated on, etc., and thereby appointed his said wife, E. D., and the defendant, E. F., executrix and executor thereof, who duly proved the said will in the proper court, and took upon themselves the burden of the execution thereof; and the said E. D. has since also departed this life, leaving the said defendant, E. F., her surviving, and who is now the sole personal representative of the said C. D., deceased, and as such entitled to the principal sum of dollars, and interest due from the said G. H. to the said C. D., and secured by way of mortgage upon his, the said G. H.'s, share of the said estate and premises in the plead- ings mentioned ; and the said suit and proceedings having become abated by the death of the said C. D., your orator is advised that he is entitled to have the same revived against the said E. F. as his surviving executor. Forasmuch, therefore, as youi- 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 under oath, the answer binder oath heirig hereby waived, that the said suit and proceedings may stand and be revived against the said E. F., and be in the same plight and condition as the same were in at the time of the abatement thereof; and that your orator may have the benefit 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^rocess as in No. 91 — the last form.) BILL OF REVIVOR 233 Defenses to — Demurrer — Plea. SECTION V. DEFENSES TO. If the defendant desires to resist the objects of a bill of revivor, he may demur, plead or answer, as the nature of the case may require. Demurrer. — If the bill does not show a sufficient ground for reviving the suit, {g) or any part of it, (A) either by or against the person by or against whom it is instituted, the defendant may, by demurrer, show cause against the revival. {%) A demurrer will lie to a bill of revivor, either for want of privity (^*) or for want of interest, (^) or for some imperfection in the frame in the bill. (Z) Plea. — Where a bill of revivor is brought without a suffi- cient cause to revive, and this fact is not ajDparent on the face of the bill, the defendant may plead the matter necessary to show that the complainant is not entitled to revive the suit against him. {m) Or if the complainant is not entitled to revive the suit at all, though a title is stated in the bill, so that the defendant cannot demur, the objection to the complainant's title may be taken by way of plea, {n) So if a person entitled to revive a suit does not proceed in due time, he may be barred by the statute of 'limitations ; which may be pleaded to a bill of revivor afterwards filed, (o) Yet where the bill of revivor (jg) Harris vs. Polland, 3 P. Wms. 848. {h) 1 Eq. Ca. Abr. 3, 4. {%) University Col. vs. Foxcroft, 2 Chan. R. 244 ; Nanny vs. Totty, 11 Price, 117; 2 Barb. Ch. Pr. 50. ( j) 2 Barb. Ch. Pr. 39, 40, 51 ; Story's Eq. PI. § 617-625 ; Coop. Eq. PI. 64, 76, 210, 211. {k) Id. lb.; HoriPood vs. Schmrdes, 12 Ves. 311 ; 3 Dan. 218. (l) lb. ; Fallowes vs. Williamson, 11 Ves. 306 ; Govld vs. Barnes, 1 Dick. 133 ; Metcalfe vs. Metcalfe, 1 Keen, 74 ; Pendleton vs. Fay, 3 Paige, Ch. 204. (to) Mitf. Eq. PL 289 ; 2 Barb. Ch. Pr. 53 ; Pendleton vs. Fay, 3 Paige, Ch. R. 204. in) Id. lb. \o) Mitf. Eq. PI. 290 ; 2 Barb. Ch. Pr. 53. 234 BILL OF KEVIVOK. Defenses to — Plea — Answer. is after a decree to account, it is not within or barred by the statute of limitations, {p) If a suit abates before decree, the statute of limitations is a good plea to revivor, {q) A defendant to a bill of revivor cannot support, as a defense, a plea which has been pleaded by the original defendant and overruled, (r) The want of parties may be pleaded to a bill of revivor, is) Answer. — It seems to have been thought that a defendant could only object to a revivor by way of plea or demurrer, (J) and there may be great convenience in thus making the objec- tion ; for if the defendant objects by answer, it will not prevent the order to revive, {u) and the point can only be determined by bringing the cause regularly to a hearing ; whereas if the objection is taken by plea or demurrer, it may, in general, be immediately determined in a summary way. {v) But although, where an answer is called for, the defendant may by it object to the revivor, yet if it be a mere bill of revivor, in which the question between the parties is simply as to the right to revive, an answer, unless required by the bill, is unnecessary, {w) Where an answer is required, it must be confined to such matters as are called for by the bill, or which would be mate- rial to the defense, with reference to the order made upon it. Upon this ground it has been held that where a defendant to a bill of revivor inserted in his answer a variety of matters {p) Hollingshead's Case, 1 P. Wms. 473; Litton'' s Case, Gary, 8; Hovenden vs. Lord Annesley, 2 Sch. & lisf . 607. (q) Welf. Eq. PL 218; Comber's Case, 1 P. Wms. 766; Wilkinson vs. Lovell, 2 Dick. 601 ; Hercy vs. Dinwoody. 2 Ves. Jr. 91 ; Egremont vs. Hamil- ton, 1 B. & Beat. 524 ; see Barry vs. Jenkins, 1 Mylne & Craig, 118 ; Murray vs. E. L Co. 5 Barn. & Aid. 204; Story's Eq. PI. ^410. (r) Samanda vs. Purtado, 3 Bro. C. C. 70 ; 2 Barb. Ch. Pr. 53. (s) Fallowes vs. Williamson, 11 Ves. 306; Beames on Pleas, 294; Coop. Eq. PI. 303. {t) Harris vs. Follard, 3 P. Wms. 348. lu) 2 Barb. Ch. Pr. 50, 54 ; Nanny vs. Totty, 11 Price, J17 : Day vs. Potter, 9 Paige, Cb. R. 645 ; Le^cis vs. Bridgman, 2 Sim. 465. (u) Mitf. Eq. PI. 289 ; 2 Barb. Ch. Pr. 54. («j) 3 Dan. 320 ; 2 Barb. Ch. Pr. 54. BILL OF KEVIVOB. 235 Defenses to — Answer — Replication. which, if stated in answer to the original bill, might have been a good defense to that bill, but was not relevant to the ques- tion of revivor, the answer was to that extent impertinent, (a?) And so, where the answer set out a detailed account of the proceedings which had taken place in the suit, for the purpose of objecting to them as irregular and oppressive, and it was insisted that some of the orders w^hich had been made in the cause ought to be set aside, and that money which had been paid out of court under them should be brought back : it was held, upon exceptions to the master's report, upon a reference for impertinence, that such statements in the answer were im- pertinent. (?/) An answer to a bill of revivor is liable to exceptions for impertinence and insufficiency, the same as an answer to an original bill. But exceptions must be taken before the com- plainant proceeds to revive the suit, or they will be considered as waived, (s) The defendant may, by his answer, consent that the suit be revived. In that case the complainant may enter an order of course for the revival of the suit, (a) The answer of a defendant to a bill of revivor cannot dispute the merits of the decree, {h) SECTION VI. REPLICATION. If the answer to the l)ill of revivor does not admit the complainant's title to revive, or states any circumstances which the complainant is desirous of controverting, it must, if the abatement has occurred after decree, or after issue joined in the original suit, be replied to ; after which, the proceedings upon it will be the same as upon an original bill, [c) (x) Nanny vs. Toity, 11 Price, 117. iy) Wagstaff vs. Bryan, 1 Paiss. & My. 28. (z) 2 Barb. Ch. Pr. 54, 55 ; Gilb. For. Rom. 180. (a) Seaton on Decrees, 384. (6) Arnold vs. Styles, 2 Blackf. 391. (c) 1 Smith, 523 ; 2 Barb. Ch. Pr. 55. 236 BILL OF EEVIVOR. Order to Revive — Form of Order. If the bill of revivor is filed before the decree, or before issue joined in the original cause, a separate replication will be necessary, {d) SECTION VII. OKDER TO REVIVE. If the defendant fails to appear and answer, the bill may be taken as confessed, when an order of course may be entered that the suit stand revived, {e) So if the defendant, by his answer, consents to a revival of the suit. {/) iVo. 93. Order for revivor. {Caption, and title of cause as in JSfo. 79, ante, page 198.) This cause coming on to be heard this day, and it appearing to the court that on, etc., the complainant exhibited his bill in this court, against C. D. and E. D., his wife, to be relieved touch- ing the several matters therein contained ; that the said C. D. and E. D. appeared and put in their answers to said bill, to which the complainant filed a replication ; and that afterwards, on, etc., the said cause came on to be heard in this court, when it was ordered, adjudged and decreed, that, etc., {Here set out the decree) that before any further proceedings were had in said cause, the said C. D. departed this life, having first duly made his will, thereof appointed the said E. D., his wife, and the said E. F., executrix and executor, who duly proved the same ; and that the said E. D. has since also departed this life, leaving the defendant, E. F., her surviving, as the sole personal represent- ative of the said C. D., deceased ; and that the said suit and proceedings abated by the death of the said C. D., that the complainant has exhibited his bill of revivor in this court against the defendant, E. F.; and the defendant having been duly served with the process of summons of this court, more than ten days prior to the present term, and having failed to appear and put in his answer, it is ordered that the said suit and pro- ceedings do stand revived against the said E. F., and be in the same plight and condition they were in at the time of the death of the said C. D. (cf) Golton vs. Earl of Carlisle, 5 Mad. 427. (e) Seaton on Decrees, 384. (/) Id. 2 Barb. Ch. Pr. 50. BILL OF EEVIVOR. 237 Hearing. SECTION VIII. HEAKING. The necessity for bringing a bill of revivor to a hearing de- pends iij)on whether the object of such bill has been accomplished by the order to revive. If it merely prays that the suit may be revived, a hearing will be unnecessary, unless an answer has been put in denying the complainant's right to revive, as the object will be completely effected by the order to revive ; and if under such circumstances the revivor suit is brought on for hearing, the complainant will have to pay the costs. This will apply equally to cases in which the bill of revivor is filed by the complainant, or those who represent him, or after decree by a defendant, or those who represent him. The mere order to revive will, in such case, be effectual against both complain- ant and co-defendants, (g) In the case of an answer contesting the right to revive, the cause must proceed upon the bill of revivor, in the same man- ner as upon other bills, and the matters of fact must be ascer- tained, and those of law determined as usual. When it is ripe for hearing, it is brought on in the usual mode, notwithstand- ing an order to revive has been obtained ; upon which the com- plainant must establish his right to revive, or he will fail in the suit. If the decision of the court is in favor of the bill, the order pronounced will be that the original suit stands revived, and be carried on and prosecuted between the parties to the original suit, in like manner as between the parties to the original suit. (A) Whenever the bill contains supplemental matter, as well as matter of revivor, a hearing must be had ; and in such case, the bill of revivor must be set down for hearing as well against the (g) 3 Dan. 221 ; Pi'uen vs. Lunn, 5 Russ. 3 ; Day vs. Potter, 9 Paige, Ch. R. 645 ; 2 Barb. Ch. Pr. 56. Qi) 1 Hoff. Pr. 383 ; Dmj vs. Potter, 9 Paige, Ch. R. 645 ; Seaton ou Decrees, 385 ; Harris vs. Pollard, 3 P. Wms. R. 348 ; 2 Barb. Ch. Pr, 56 ; Story's Eq. PI. § 374 ; Bettes vs. Dana, 2 Sumner, R. 383. 238 BILL OF EEVIVOK. Heariug — Effect of Revivor. party to the revivor as against the party to the supplemental matter, (t) Where the decree in the original suit contains a specific direc- tion, as that the defendant shall pay a certain sum of money, that direction cannot be carried into execution by the mere order to revive ; but a decree must be made in the revived suit for that purpose, {j ) If the bill of revivor is filed before the decree, it may, if the original cause has not been heard, be heard together with it ; but if the original cause has already been set down, it jaust be heard separately ; and in respect to all fees and charges, it is considered as a separate cause until the decree, {k) If there has been a decree in the original cause, the bill of revivor must, if necessary to be heard, be heard separately ; or it may be directed to come on for hearing with the cause for further directions, {l) SECTION IX. EFFECT OF REVIVOK. A bill of revivor merely substantiates the suit and brings before the court the parties necessary to see to the execution of the decree, and to be the objects of its operation, rather than to litigate the claims made by the several parties in the original pleadings, except so far as they remain undecided, (m) Where the abatement of the suit is total, an order to revive places the suit and all the proceedings in it, in precisely the same plight, state and condition that the same were in at the time when the abatement took place, {n) And the new com- plainant may take the same proceedings in the cause that the (i) 2 Barb. Ch. Pr. 56, 57 ; Lake vs. Austicick, 4 Lond. Jurist, 314 ; Mitf. Eq. PI. 76. (f) Harries vs. Johnson, 3 Young & Coll. 583. (A) 1 Smith's Pr. 523 ; 2 Barb. Ch. Pr. 57. (l) 3 Dan. R. 223 ; 2 Barb. Ch. Pr. 57. (m) 2 Barb. Ch. Pr. 57 ; Story's Eq. PI. § 375 ; Coop. Eq. PI. 71 ; Bevaynea V8. Morris, 1 Mylne & Craig, 213, 225. {n) Oregson vs. Oswald, 1 Cox, 343. BILL OF REVIVOR. 239 Effect of Revivor. original complainant might have taken. Thus, the complain- ant in a revived suit may amend the original suit in the same manner that the original complainant might have done, and may have an attachment against the defendant for not answer- ing the amended bill, (o) So, also, the new complainant may prosecute process of contempt against the defendant taking it up where it left off at the abatement, and if a pro- cess has been issued before the abatement, it will be revived by the order to revive the suit, {p) But the case is otherwise where the abatement is occasioned by. the death of the defendant. In such case, the process being personal, cannot be revived. In general, however, where an abatement is occasioned by the death of the defendant, the order to revive against his representatives will place the suit as fully in the same position, with regard to such representar- tives, as can be done with reference to the change of the individual before the court, (g) Where there is a cross-bill, a revivor of the original suit will not have the effect to revive the cross-suit ; but there must be a revivor in each cause, {r) ((?) Mitf . Eq. PI. 78 ; Phillips vs. DarU, 1 Dick. 98. Ip) 2 Barb. Cli. Pr. 58 ; Hyde vs. Forster, 1 Dick. R. 134. (g) 3 Dan. 237 ; 2 Barb. Ch. Pr. 58. (r) Welf. Eq. PI. 220. CHAPTER XVIII. BILLS m THE NATURE OF BILLS OF EEVIVOK. Section 1. Nattxre and Uses. 2. Parties to. 3. Frame of Bill. 4. Defenses to, and Proceedings Upon. /' SECTION I. NATURE AND USES. A bill of revivor properly so called lies only in cases where a death or marriage intervenes. In each of these cases there is no other fact to be ascertained than whether the new party brought before the court has the character imputed to him. If he has, the revivor is of course, {a) But there are many cases in which there are other facts which may be brought into litigation, besides the mere question of the character of the new party; and to such cases, therefore, the simple bill of revivor does not technically apply. Under such circum- stances an original bill, in the nature of a bill of revivor, is the appropriate process to bring those facts before the court, and to put the original proceedings again in motion, and to enable the new party to have the benefit of the former pro- ceedings. (5) Thus if the death of a party, whose interest is not deter- mined by his death, is attended with such a transmission of his interests, that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of a real estate, the suit is not permitted to be continued by a bill of revivor. An original bill, upon which the title may be contested, must be filed. And this bill will have so far the (a) Coop. Eq. PL 64 ; Story's Eq. PI. § 377. (&) 2 Barb. Cli. Pr. 80-81 ; Story's Eq. PI. § 377 ; Mitf. Eq. PI. 97 ; AUor- ney General vs. Foster, 2 Hare, 81, 93, 94. BILLS IN NATUKE OF BILLS OF EEVIVOR. 241 Nature and Uses. effect of a bill of revivor, that if the title of the representa- tive substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by the revivor, (c) Where all the parties to a suit have died subsequent to the striking of the cause from the docket, the pi'oper practice to bring the case again before the court, is by a bill in the nature of a bill of revivor, by the heirs at law of one party against the heirs at law of the other party, {d) The distinction between bills of revivor, and bills in the nature of bills of revivor, seems to be, that the former, in case of death, are founded upon mere privity of blood or represen- tation by operation of law ; the latter upon privity of estate or title by the act of the party, {e) In the former case nothing can be in contest, except whether the party be the heir or per- sonal representative ; in the latter, the nature and operation of the whole act, by which the privity of estate or title is created, is open to controversy. {/) Thus, for example, the heir may- be made a party by a bill of revivor ; for his title is by mere operation of law. But the devisee, or purchaser of the com- plainant's interest, must come in by a bill in the nature of a bill of revivor ; for he comes in as a purchaser under the testa- tor in privity of estate or title, which may be disputed, {g) The bill is said to be original, merely on account of the want of that privity of title between the party to the former bill and the party to the latter bill, although claiming the same interest which would have permitted the continuance of the suit by a bill of revivor. (A) Therefore when the validity of (c) Story's Eq. PL § 378; Mitf. Eq. PI. 71,97; Glare vs. WordeU, SVern. 548 ; Jones vs. Jones, 3 Atk. 217 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ;. Slack vs. Wolcott, 3 Mason, 508. (d) Welch vs. Lewis, 31 111. 446 ; 29 111. 535 ; 3 Dan. Ch. Pr. 1718. (e) Wyatt, Pr. Eeg. 90 ; Story's Eq. PI. § 379. (/) 2 Barb. Ch. Pr. 81 ; Story's Eq. PI. §379 ; Slack vs. WolcoU, 3 Mason's R. 508. [g) Coop. Eq. PI. 63, 69, 77 ; Gilb. For. Rom. 172 ; Wyatt, Pr. Reg. 90 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ; Story's Eq. PI. § 379 ; Attorney General vs. Foster, 2 Hare, R. 81, 93 ; 2 Barb. Ch. Pr. 83. Qi) Mitf. Eq. PI. 97, 98 ; Story's Eq. PI. § 380. 16 242 BILLS m NATURE OF BILLS OF REVIVOR. Parties to — Frame of Bill. the alleged transmission of interest is established, the party to the new bill will be equally bound by, or have advantage of, the proceedings on the original bill, as if there had been such a privity between him and the party to the original bill, claim- ing the same interest, (i) And the suit is considered as pend- ing from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defend- ant to answer, before an answer can be compelled to a cross- bill, and to have every other advantage, which would have attended the institution by the original bill, if it could have been continued by a bill of revivor merely, (j) SECTION II. PARTIES TO. Where a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party or otherwise, all of the other parties to such original suit, who have any interest in the fur- ther proceedings therein, should be made parties to such bill, either as complainants or defendants, (k) A bill of this nature cannot be brought except by some per- son who claims in privity with the complainant in the original bill. {I) SECTION III. FEAME OF BILL. An original bill in the nature of a bill of revivor, should, in general, state the same facts as in a bill of revivor. It should state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party deceased has (i) Story's Eq. PI. § 380; Mitf. Eq. PI. 97. (j) Id. ; Merrywcther vs. Mellich, 13 Ves. IGl, 163. {k) TTie, Farmer's Loan & T. Go. vs. Seymour, 5 Paige, Ch. R. 538. (?) Oldlia/m vs. Ehoral, Coop. Select Cas. 27 ; Rylandis vs. LatoudJie, 2 Bligh, 585 ; Tonkin vs. Lethhridge, Coop. R. 43 ; 2 Barb. Ch. Pr. 82. BILLS IN NATURE OF BILLS OF REVIVOR. 243 "" Form of Bill. been transmitted. It mnst also charge the validity of the transniission, and state the rights which have accrued by it. {tu) The bill should also pray that the suit may be revived, and that the complainant have the benefit of the former proceed- ings therein, (n) No. dlf.. Bill in the nature of a hill of revivor. 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 repi-esents unto your honor that on, etc., one E. F., of, etc., filed his bill of com- plaint in this honorable court, against C. D., of, etc., thereby stating, etc., {Here set forth the material pa7'ts of the hill, — suj)- posing it to he a hill for specific performo/nce^ and praying, etc., {Here set out the substance of the prayer^ that the said C. D., being served with process, appeared and put in his answer to the said bill, and E. F., the complainant therein, replied thereto, and that the said cause being at issue, witnesses were examined on both sides, and the proofs closed ; as by the said bill, answer, replication and proceedings now remaining as of record in this court, reference being thereto had, will more fully aj)pear. And your orator further represents, that before any further proceedings were had in the said suit, and on, etc., he, the said E. F., departed this life, leaving D. F., the other defendant hereinafter named, his son and only heir, him surviving, and having pre\dously made and published his last will and testa- ment in writing, bearing date on, etc., and executed and attested so as to pass real estate, and having thereby given and devised the said real estate so contracted to be purchased by him as aforesaid, to your orator, his heirs and assigns, and having appointed your orator sole executor thereof, as in and by said bill, when produced, will more fully appear. And your orator further represents that the said will was on, etc., duly proved by your orator, before the — court, of the county of , whereby your orator became the legal personal representative of the said E. F., as by the letters testamentary issued by said court, ready to be produced in court, will more fully appear. (m) Mitf. Eq. PI. 97 ; Phelps vs. Sproule, 4 Sim. R. 318 ; Story's Eq. PI. §386. (n) 2 Barb. Cli. Pr. 83; 2 Dan. R. 230; Van Heyth. Eq. Drafts. 848; Barton's Suit in Eq. 132. 244 BILLS IN NATUKE OF BILLS OF REVIVOK. Form of Bill. Tour orator further represents, that by virtue of the devise BO made to your orator as aforesaid, he is entitled to stand in the place of the said E. F., with respect to the said contract of, etc., and to have the same specifically performed, and to have the said premises conveyed, by the said C. D., to your orator, upon payment of the said sum of dollars, which sum your orator hereby offers to pay. And your orator represents, that by the death of the said E. F., the said suit and proceedings became abated, but that your orator is, as he is advised, entitled to have the same revived against the said C. D., and to have the same relief against him, as the said E, F. would be entitled to if he were still living. And your orator further represents, that the said D. F. sometimes, though without any ground, questions the validity of the said devise to your orator, and is, therefore, as your orator is advised, a necessary party to this 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. I), and D. F., who are made parties defendant to this bill, may be required to make full and direct answer to the same, hid not on oath, the answer under oath heing herehy waived ; and that the defendants may, if they can, show why the said suit and proceedings should not be revived, and your orator have the relief hereby prayed ; and that it may be de- clared that your orator, as such devisee of the said E. F. as afore- said, is entitled to revive the said suit and proceedings so become abated as aforesaid, and to have the benefit thereof; and that the said suit and proceedings may be decreed to stand and be revived accordingly, and to be in the same plight and con- dition as they were in at the time of the said abatement ; and that your orator may have the same relief against the defend- ant, C. D., as the said E. F. would be entitled to if he were still living ; and, if necessary for that purpose, that the said will of the said E. F. may be established ; and that your orator may have such other and farther relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray for summons againsi C. D. and D. F. as in No. 91, ante, page 230) BILLS IN NATURE OF BILLS OF REVIVOR. 245 Defenses to, and Proceedings upon. SECTION IV. DEFENSES TO, AND PKOCEEDINGS UPON Bills in the nature of bills of revivor are liable to demurrers, pleas or answer, on the same ground as original bills and bills of revivor, of whose nature they partake, and the practice as to demurring, pleading to, and answering them is the same in all respects as the practice upon original bills, (o) And in all other respects the practice upon bills of this nature is the same as upon original bills, and they must be brought on for hearing in the same manner before any benefit can be derived from them ; a revivor in such cases being only obtained by decree and not by an order to revive, as in the case of an ordinary bill of revivor, (p) (o) 2 Barb. Ch. Pr. 83 ; 3 Dan. R. 230. (jP) 3 Dan. R. 230 ; 3 Barb. Ch. Pr. 84. CHAPTER XIX. BILLS OF REVIVOR AND SUPPLEMENT. Nature of^ and when proper. — A bill of revivor and sup plement is a mere compound of a supplemental bill and a bill of revivor; and in its separate parts it must be framed and proceeded upon in the same manner, {a) It not only con- tinues a suit which has abated, but supplies any defects in the original bill arising from subsequent events, (b) And when- ever a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be addel. (c) It becomes proper where not only an abatement has taken place in a suit, but defects are to be supplied, or new events are to be stated, which have arisen since the commencement of the suit. Thus if a suit becomes abated, and by any act besides the event by which the abatement happens, the rights of the parties are affected, as by a settlement or a devise, under certain circumstances, although a bill of revivor may continue the suit, so as to enable the parties to prosecute it ; yet to bring before the court the whole matter necessary for its consideration, the parties must by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. And in the same manner, if any other event which occasions an abatement is accompanied or followed by any matter necessary to be stated to the court, eitlier to show the rights of the parties, or to obtain the full benefit of the suit, beyond what is merely necessary to show, by or against whom the cause {a) Story's Eq. PI. § 387 ; Mitf. Eq. PI. 80. (&) Westcott vs. Cady, 5 Johns. Ch. R. 343 ; Pendleton vs. Fay, 3 Paige, Ch. R. 204. (c) Pendleton vs. Fay, 3 Paige, Ch. R. 204 ; 2 Barb. Ch. Pr. 88. I BILLS OF EEVIVOK AND SUPPLEMENT. 247 Practice upon — Form of Bill. is to be revived, that matter must be set forth by way of supple- mental bill added to the bill of revivor, {d) Practice upon. — The bill of revivor and supplement are each liable to the same description of defense as the bills, if sepa- rate, would be subject to, {e) and are to be framed and proceeded upon in the same manner as bills of revivor and supplemental bills. •(/") If matters contained in the bill of revivor and sup- plement are irrelevant or improper, the defendant may avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence, {g) But the insertion of supplemental matter in a bill of this nature will not authorize the defendant to demur to the whole bill. He should demur to the supplemental matter only. (A) ]^o. 95. Bill of revivor and supplement. 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 exhibited his original bill of complaint in this honorable court against C. D., of, etc., there- by, etc., {Here set forth so inucli of the 1)111 and prayer as may he necessary f) and the said C. D., being duly served with process, appeared and put in his answer to said bill, and your orator having replied thereto, witnesses were examined in said cause, on both sides ; as by the said pleadings and other pro- ceedings in the said cause, now remaining as of record in this honorable court, reference thereunto being had, will more fully appear. And your orator further represents, that before any further proceedings were had in the said cause, and on, etc., the said C D. departed this life, without issue, leaving E. F., of, etc., a defendant hereinafter named, his heir at law ; and the said suit, {6) Story's Eq. PI. § 387 ; Coop. Eq. PI. 64; Merrywether vs. Mellich, 13 Ves. 161,108, 435; Bampton vs. BirchaU, 1 Phillips, 568; Manchester vs. Matthewson, 2 R. I. 416 ; Bylaiids vs. Latouclw, 2 Bligh, 566. (e) 3 Dan. Ch. Pr. 232 ; 2 Barli. Ch. Pr. 89. (/) Welf. Eq. PI. 222 ; Will Eq. PI. 80 ; Coop. Eq. PI. 84. {g) Pendleton vs. Fay, 3 Paio-e.Ch. R. 204. {h) Randolph vs. Dickerson, 5 Paige, Ch. R. 517 ; 2 Barb. Ch. Pr. 89. 248 BILLS OF REVIVOE AND SUPPLEMENT. Form of Bill. and the proceedings therein having become abated, by the death of the said C. D., your orator, as he is advised, is enti- tled to have the same revived against the said E. F., as the heir of the said C. D., and restored to the same condition in which they were at the time of his death. And your orator, by way of supplement, further represents that the said C. D., in his lifetime, duly made and published his last will and testament in writing, in such manner as is by law required for passing real estate, bearing date, -etc., and thereby devised all his real estate to G. H. and L. M., and their heirs forever ; as in and by the said last will and testament, reference thereto being had, will more fully appear. And 3"our orator further represents, that the said C. D. departed this life at the time above specified, without having altered or revoked his said will ; and that the said G. H. and L. M., respectively claim to be interested in the said premises, by virtue of the said will ; and therefore your orator is, as he is advised, entitled to the benefit of the said suit against them, as being, or claiming to be so interested, and to the like relief as he would have been entitled to against the said C D. if he were still living; and the said E. F., as such heir at law as aforesaid, at times disputes the validity of the said will. Forasmuch, therefore, as your orator is Mdthout remedy in the premises, except in a court of equity ; and to the end that the said E. F., G. F. and L. M., 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 heing hereby waived • and .that the said suit and proceedings so abated as aforesaid, may stand revived against the said E. F. as heir at la%v as aforesaid, and be in the same plight and con- dition in which they were at the time of the death of the said C. D., or that the said E. F. may show good cause to the con- trary ; and that your orator may have the benefit of the said suit and the proceedings therein against the said E. F., G. H. and L. M., who claim to be respectively interested as aforesaid, and such relief as, if the said C. D. were still living, he would be entitled to against him ; 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., {Praying process as in JV^o. 91, ante, jpage 230.) CHAPTER XX. BILLS OF REVIEW. Section 1. Nature of, and When Proper. 2. Parties to. 3. Leave to File. 4. Within What Time to be Brought. 5. FoRSi OF Bill. 6. Defenses to. SECTION I. NATIJKE OF, AND WHEN PKOPER. A bill of review is in the nature of a writ of error ; and its object is to procure an examination and modification or reversal of a decree rendered upon a former bill, {a) Where it lies. — A bill of revivor lies for error apparent on the record, or for material evidence not known in time for use at the former trial, and not discoverable by reasonable dili- gence at that time ; Q)) and a bill filed after a final decree in the original suit between the original parties or their privies in representation, to correct errors in the proceeding or the {a) Griggs vs. Gear, 3 Gilm. 2 ; see McDaniel vs. James, 23 111. 408 ; Soner vs. Zimmerman, 45 111. 14 ; Gardner vs. Emerson, 40 111. 296 ; Sevier vs. Magguire, 49 111. 67. (&) Griggs vs. Gear, 3 Gilm. 2 ; Garrett vs. Moss, 22 111. 363 ; GetzUr vs. Saroni, 18 111. 511 ; Dexter vs. Arnold, 5 Mason, 303 ; Quarrier vs. Carter, 4 Hen. & M. 242; Hodges vs. Mulliken, 1 Bland, 503; St. Glair vs. Piatt, Wright, 532 ; Massie vs. GraJtam, 3 McLean, 41 ; Jenkins vs. Preioitt, 7 Blackf. 329 ; Stevens vs. Hey, 15 Ohio, 313 ; Greenleaf vs. McDoicell, 4 Ired. Eq. R. 481 ; James vs. Fisk, 9 Smedes & M. 144 ; Kennedy vs. Georgia State Bank, 8 How. U. S. 586 ; United States ys. Sampeyas, 1 Hemp. 118 ; Wiser vs. Blackley, 2 Johns. Ch. R. 488 ; Hollingswortli vs. McDonald, 2 Har. & J. 230 Simms vs. Thompson, 1 Dev. Ch. 197 ; Burn vs. Poang, 3 Dessau. 596 Bradshaw vs. Garrett, 1 Porter, 47; Her vs. Routh, 3 How. Miss. 276 Starke vs. Mercer, lb. 377 ; Edmundson vs. Mosehy, 4 J. J. Marsh. 40 T : Cal- Itr vs. Shields, 2 Stew. & Port. 417 ; Story's Eq. PI. § 407. 250 BILL OF REVIEW. Nature of, and When Proper. decree, is a bill of review, {d) It is proper after a decree is enrolled. A supplemental bill in the natui-e of a bill of review is proper before the enrolhneiit; ( In Chancery. A. B. ) The plea of C. D., defendant, to the bill of review of A. B.j complainant. This defendant, etc., {As in Wo. '28, ante, page 119, to the asterisk *, and then) that by the course and practice of this («) Wehl vs. Pell, 3 Paige, Ch. R. 368. {/) Woots vs. Tucker, 2 Vern. 120 ; BenriT/ vs. Filmore, 1 Vern. 135 ; Pitt vs. Earl of Ar glass, 1 Vern. 441. (g) Cook vs. Bamfield, 8 Swanst. 607. i.h) 2 Barb. Ch. Pr. 204 ; Mitf. Eq. PI. 204. (i) Lube's Eq. PI. 133 ; 2 Barb. Ch. Pr. 100 ; Dexter \s. Arnold, 5 Mason, 303. (J) Cook vs. Bamfield, 3 Swanst. 607. \k) 2 Hoff. Pr. 12*; 2 Barb. Ch. Pr. 100. 266 BILLS OF EEVIEW. Defenses to — Form of Demurrer to. conrt no decree ought to be reviewed or reversed by any- original bill, or otherwise than by bill of review for errors apparent in the body of the decree, or upon a new matter come to the parties' knowledge after the making of such decree, and that by leave of the court only ; wherefore, and for that the said bill of review does not set forth the decree truly, but alleges new and foreign matters not contained in the decree, and pra^^s process generally to answer and not to review, this defendant pleads the said decree, which is in these words, to wit : {Here set forth the decree verbatim ;) as by the said decree now remaining of record in this honorable court will appear. And this defendant demands the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill of review, or any of the matters and things therein contained, and prays to be hence dismissed with his reasonable costs in this behalf sustained. Ifo. 103. Demurrer to a hill of review. In the Court, C. D. ) Term, 18—. vs. V In Chancery. A. B. ) The demurrer of C. D., defendant, to the bill of re^dew of A. B., complainant. This defendant, etc., {As in No. 16, ante, jpage 108, to the asterisk *, cmd then) that by the constant rules of this court no bill of review ought to be admitted to alter or change matters decreed, only for error in law appearing in the body of the decree, as it is drawn up and entered, and for new matter arising since the decree, or such matter of which the complainant in the bill of review could not have notice at the time of the decree ; but this defendant is advised that the matters assigned by the said bill of review for cause of reversal of the said decree, as the same thereby appears by the com- plainant's bill, are neither any error in law apparent in the body of this decree, nor any such new matter as aforesaid, (but a misjudgment in matters of form only, and not in point of right, and that the statement contained in the said bill of review of the abatement of the suit before the decree passed, is merely an exception in point of form.) Wherefore, etc. ( Conclude as in No. 16, ante, J)age 108.) CHAPTER XXI. BILLS OF DISCOVERY. Section 1. Nature of, and when Profeb. 2. Frame and Form of. 3. Defenses to. SECTION I. NATURE OF, AND WHEN PROPER. Every bill praying relief is, in reality, a bill of discovery, ■when it asks from the defendant an answer under oath or otherwise, as to all and singular the matters charged in the bill, and seeks from him a discovery of all such matters, {a) But the kind of bills usually distinguished by that title, is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds, or writings, or other things in his cus- tody or power, and seeking no relief in consequence of the discovery, although it ma,y pray for the sta}^ of proceedings at law till the discovery is made. (J) Since the passage of laws in most of the states, providing that persons interested in the result of the suit shall not be disqualified as witnesses by reason thereof, a resort to bills of discovery is seldom necessary. Yery little space will, there- fore, be here occupied in considering bills of this nature. K the student desires to pursue the subject more at length, see Hare on Discovery, 2 Story's Equity Jurisprudence, chap. 41, and other elementary works. A bill of discovery is resorted to when the evidence rests exclusively with the party called upon to disclose it. If there be other evidence, such a bill cannot be s\istained ; and the {a) Story's Eq. PI. ^ 311 ; 2 Story's Eq. Juris. § 689. 1483 ; Mitf. Eq. PI. 68 ; Coop. Eq. PI. 58 ; 2 Barb. Ch. Pr. 101 ; Barton's Suit in Eq. 74. (&) Russell vs. Clark, 7 Crancli, 69 ; Duncan vs. Ingles, Breese, 277 Tates vs. Monroe, 13 111. 212 ; Shoticell vs. Smith, 20 N. J. Eq. 79. 268 BILLS OF DISCOVERY. Nature of, and When Proper. complainant in the bill must aver and swear that the facts are known to no other person, (c) The theory and basis of a bill of discovery in equity, in aid of a defense in another suit, is that the court in which such other suit is pending has no means of compelling a discovery from the plaintiff therein, of facts material to the defense, {d) The defendant should file his bill of discovery before judg- ment has been rendered against him. He cannot go into equity for discovery, and relief against the judgment, after it has been rendered, {e) A resort to a bill of discovery is always hazardous ; for if a party does not come up to the facts as the complainant has charged them to be, or they are denied, or toned down, the answer would, in many cases, be of little avail in a defense at law. (/) A discovery will not be compelled if the defendant claims his privilege, and declines to answer such allegations of the bill as may have a tendency to subject him to a penalty, for- feiture or criminal prosecution, {g) or would be in violation of professional confidence. (A) A party is not obliged to resort to a bill of discovery in the first instance. Should he do so, and fail in obtaining the facts sought, he would be precluded from filing an original bill, {i) The question whether he is entitled to a discovery against a person who is prosecuting him in an action at law, cannot be determined until he has filed his plea to such action divulging the character of his defense, {j) And if the demand for dis- (c) Vennum vs. Davis, 35 111. 568. {d) Eeath vs. Erie R. B. Go. 9 Blatchf. 316. (e) Oreen vs. Massie, 21 Gratt. Va. 356 ; Laight vs. Morgan, 1 Johns. Cas. 429 ; 2 barb. Ch. Pr. 102, and cases there cited. (/) Vennum vs. Davis, 35 111. 568 ; Lane vs. Stebbins, 9 Paige, 622. (g) Hayes vs. Caldwell, 5 Gilm. 33 ; Lindsley vs. James, 3 Cald. Tenn. 477 ; Northrop vs. Hatch, 6 Conn. 361 ; Skinner vs. Judson, 8 Conn. 528. (h) March vs. Davidson, 9 Paige, Ch. R. 580 ; Well Eq. PI. 119, 123-127 ; United States Bank vs. Saline Bank, 1 Pet. 100 (i) Vennum vs. Davis, 35 111. 568. (j) Harris vs. Oalhraith, 43 111. 309. BILLS OF DISCOVERY. 26^ Frame of Bill, etc. covery is considered merely colorable, the court will refuse to take jurisdiction. (Jc) A court of chancery will compel a discovery in aid of a suit at law, where the leading circumstances rest in the knowledge of the defendant, whether the action be founded on contract or tort. {1} The bill must state that the discovery sought is neces- sary to the defense, {m) If the plaintiflF seeks to change the forms of litigation, and prays for relief as well as discovery, his bill must show a cause of manifest propriety in the court to retain the case, {n) Where a court of equity has obtained jurisdiction of a cause for the purpose of discovery, and the subject matter is proper for the consideration of a court of equity, it will dispose of the case finally, although the remedy at law is fully adequate had not the discovery been necessary, (o) SECTION II. FRAME AJSTD FOKM OF. A bill of discovery should state the matter concerning which the discovery is sought, fully and precisely, the interest of the several parties in the subject, and the right of the complainant to the discovery. It must also show that the discovery is ma- terial, either to the prosecution or defense of an action which has been brought, or is about to be brought at law. If the bill is for discovery only, it is not necessary to aver that the party cannot otherwise establish his case at law ; but the rule is ditferent where the bill seeks relief as an incident to the dis- (Jc) Jones vs. Bradsliaw, 16 Gratt. Va. 355. (?) Skinner vs. Judson, 8 Conn. 528 ; Peck vs. Ashley, 12 Met. 478 ; Beri- nett vs. Wolfolk, 15 Geo. 213. (m) Hoioell vs. Ashmore, 1 Stockt. N. J. 82 ; Turner vs. Dickerson, lb. 140 ; Bell vs. Pomeroy, 4 McLean, 57. (») Brmon vs. Edsall, 1 Stockt. N. J. 256. (o) Chichester vs. Vass, 1 Munf . 98 ; Jenkins vs. Green, 1 A. K. Marsli. 463 ; Lynch vs. Sumrall, Id. 468 ; Love vs. Braxton, Wythe, 58 ; Traip vs. Gould, 15 Maine, 82 ; Armstrong vs. Gilchrist, 2 Johns. Ch. R. 424 ; Hawley vs. Cramer, 4 Conn. 717 ; Gadsden vs. Lord, 1 Dessau. 208. 270 BILLS OF DISCOVERY. Form of Bill. cover J, A bill of discovery, properly so called, never prays any relief. Should such a bill contain a prayer for relief, a demurrer would lie according to the modern English practice, to the whole bill. The rule which is adopted by the supreme court of the United States, and most of the states, and which is in accordance with the old English practice, is more liberal, and allows the complainant, who is entitled either to relief or dis- covery, the benefit of that part of his bill which is good. "Where the bill seeks relief as consequent upon the discovery of a bond or other evidence of title, the complainant must annex an affi- davit of its loss or destruction, {p) A bill of discovery must allege, that the complainant expects to establish the truth of the facts alleged in the bill by the dis- covery sought in the bill from the defendant. {^ In a bill for discovery only the oath of the defendant cannot be waived as in other cases, (r) No. 10 Jf,. Bill of discovery to discover title in aid of a defense to an action of eject/ment. 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, etc. {Here set forth the matter concerning which the discovery is sought fully and concisely, the interests of the several parties in the subject, and the convplainanf s right to tlie discovery }j 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 upon his corporal oath full, true, direct and perfect answer make to all and singular the matter aforesaid, and more espe- cially that he may answer and set forth: I. Whether your orator is not now, and has not been, for several and how many years last past, and from what time in particular, seized in his demesne as of fee, or otherwise, and (p) Barton's Suit in Eq. 74, 75 ; 2 Barb. Ch. Pr. 104, 105 ; March vs. Ba- mdson, 9 Paige, Cli. R. 580 ; Story's Eq. PI. § 317-320. (g) Primmer vs. Patten, 32 111. 528 ; Zoll vs. Campbell, 3 W. Va. 226. (>•) Rev. Stat. (1874) 201; Rev. Stat. (1877) 186. BILLS OF DISCOVERY. 271 Form of Bill. how well entitled of, in or to the said premises hereinbefore particularly mentioned and described, or some, and what part thereof, or how otherwise ? II. And whether the same were not purchased by your orator in tlie vear , and when in particular, of and from the said E. D. ? III. And whether the said premises were not duly con- veyed to your orator by the said E. D., by such indenture of lease and release, of such date respectively as aforesaid, or by some, and what other means in particular ? lY. And whether your orator did not, under and by vir- tue of such conveyance to him by the said E. D., enter into and upon, and has not ever since been in the actual possession and enjoyment of the said premises, or how otherwise ? Y. And whether the said E. D. has not since departed this life, and when ? YI. And whether the said C. D. did not, upon the decease of tlie said E. D., and by what means, obtain possession of, and has not now in his custody, possession or power, all, or most, or some, and whicli of the title deeds, evidences, and writings of the said E. D., relating to the premises so pur- chased by your orator as aforesaid ? YII. And whether the same do not also relate to some, and what other estates, or how otherwise ? YIII. And whether the said C. D. has not brought such action of ejectment against your orator, and for such purpose as hereinbefore mentioned, and does not threaten and intend to proceed therein, without making any discovery of the several matters aforesaid, unless he shall be restrained therefrom as aforesaid, or how otherwise ? And that the said C. D. may also discover and set forth, in manner aforesaid, whether there is or are any, and what, outstanding term or terms of years, or other, and what, subsist- ing estate in said premises, prior to your orator's said estate and interest therein, which will defeat the title of your orator, and prevent a good defense at law to the said action, and in whom the same is or are vested ; and that he may also discover and set forth how he makes out and derives his pretended title and claim to the said premises so purchased by your orator as aforesaid, and the nature and particulars thereof? And that the said C. D. may make a full and true disclosure and discov- ery of the several matters aforesaid, to the end that your orator may be the better enabled to defend the said ejectment ; and that in the meantime, and until the said C. D. shall have made euch discovery as aforesaid, that he may be restrained, by the 272 BILLS OF DISCOVERY. Defenses to — Demurrer. order and injunction of this honorable court, from further proceedings in the said ejectment, and all further and other proceedings at law whatsover against jour orator touching the several matters aforesaid, or any of them. May it please your honor, etc. \Prayer for summons, and also f 07' injunction, ante, page 73.) SECTION III. DEFENSES TO. Defenses to a bill of discovery may be made either by a de- murrer, a plea or an answer. If the matter relied on by the defendant constitutes a defense to the relief or purpose sought by the bill, whether that relief be at law or in equity ; or if the defense be that the complainant has no right to equitable relief; or that neither the complainant nor defendant has aiiy interest in the subject matter; or that the defendant is a hona fide pur- chaser for a valuable consideration without notice ; or that the bill does not declare a purpose for which courts of equity will compel a discovery ; or that the complainant is under some dis- ability ; in these, and in like cases, though the defense extends to the entire subject of the suit, it seems now settled that the objections must be taken by way of plea or demurrer, (s) And it is a general rule that, unless the defendant can spe- cifically protect himself by way of demurrer or plea, according to the nature of the case, he must put in an answer. (^) Demurrer. — Where the objection appears upon the face of the bill, like in all other pleadings, advantage may be taken of it by demurrer. And this, whether the objection applies to the whole of the bill, or to particnlar discoveries only, (-w) Unless it appears clearly by the bill that the complainant is not entitled to the discovery he requires, or that the defendant ought not to be compelled to make it, a demm-rer to the dis- («) 2 Barb. Ch. Pr. 109 ; Story's Eq. PI. § 465. («) Id. («) lb ; Welf. Eq. PI. 131. BILLS OF DISCOVEKY. 273 Defenses to — Demurrer. covery will not hold ; and the defendant, unless he can protect himself by a plea, must answer, (v) "Where the bill is for discovery and relief, the defendant may, if he pleases, demur to the relief- and answer to the discovery. A demurrer which is good to the relief generally, defeats the recovery also, (w) But he cannot demur to the discovery and answer to the relief, (a?) In other words, the defendant cannot demur to the discovery alone and not to the relief, when the discovery is merely incidental to the relief; for that would be to demur, not to the thing required, but to the means by which it was to be obtained, (y) Where the discovery sought is not a mere incident to the relief prayed, it is doubtful whether a demurrer to the relief only would not be bad. (0) Where the soie object of the bill is to obtain a discovery, some ground of demurrer, which, if the bill prayed relief, would extend to discovery as well as relief, will not hold. Thus, a demurrer to a bill of discovery merely will not lie foi want of equity or for want of parties ; for the complainant seeks no decree ; nor because the bill is brought for the dis- covery of part of a matter, for that is merely a demurrer because the discovery would be insuflBcient. (a) Lord Eedesdale thus classifies the causes of demurrer to a bill of discovery : First, that the case made by the bill is not such in which a court of equity assumes a jurisdiction to com- pel a discovery. Second, that the complainant has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery. Third, that the defendant has no interest in the subject to entitle the complainant to insti- tute a suit against him, even for the purpose of discovery. iv) Welf. Eq. PL 131 ; Mitf . Eq. PI. 200 ; 2 Barb. Ch. Pr. 109. (w) Hodgkin vs. Longden, 8 Ves. R. 3 ; Coop. Eq. PI. 117 ; 2 Barb. Ch. R. 107. (a;) Welf. Eq. PI. 183 ; Morgan vs. Harris, 2 Bro. C. C. 124. (y) Deare vs. Attorney Ocn. 1 Young & Col. 197, 205, 206 ; Coop. Eq. PI. 117 ; Hare on Disc. 290, 292 ; Warring vs. Mackreth, Forrest, Ex. Rep. 129 ; Morgan vs. Harris, 2 Bro. C. C. 124. (s) Angel vs. Angel, 1 Sim. 83, 93 ; Hare on Disc. 6 ; King vs. Hervry, 9 Sim. 59 ; 2 Barb. CL. Pr. 110. (a) Mitf. Eq. PI. 200 ; 2 Barb. Ch. Pr. 110. 18 274 BILLS OF DISCOVERY. Defenses to — Forms of Demurrers — Plea. Fourth^ although both complainant and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the complainant a right to the discovery required by his bill. Fifths that the discovery, if obtained, cannot be material ; and. Sixth, that the situation of the defendant renders it improper for a court of equity to compel a discovery, (b) JVo. 105. Demurrer to a hill of discovery, where defendant has no interest. In the Court CD.) Term, 18— . vs. > In Chancery. A. B. ) The demurrer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant, etc., {Proceed as in No. 16, ante, page 108, to the asterisk *) that the complainant has not, in and by his said bill, stated or shown that this defendant has, or pre- tends to have, any right, title or interest in the matters and things complained of by the said bill, or any of them, or any right on the part of the complainant to call upon this defend- ant in a court of equity for a discovery of the said matters and things, or any of them. And that for anything that appears to the contrary by the said bill, this defendant may be ex- amined as a witness in this suit. "Wherefore, etc. {Conclude as in JSfo. 16.) No. 106. Demurrer to a hill of discovery for want of privity. {Proceed as in the last form to the asterisk *) that the com- plainant has not. by his said bill, shown such jDrivity of title between him and this defendant, or shown any such right or title as entitles him, in a court of equity, to the discovery from the defendant thereby sought. Wherefore, etc. {Conclude as in No. 16, ante, page lOS.) Plea. — If the objection to a bill of discovery does not appear upon the face of it, the defendant must bring it before the (6) Mitf. Eq. PI. 185 ; 3 Barb. Ch. Pr. 111. BILLS OF DISCOVERY. 275 Defenses to — Plea — Form of Plea. court by plea. () A bill to perpetuate testimony is never brought to a hear- ing, (c) (f) BecJdnall vs. Arnold, 1 Vern. 554 ; Welf. Eq. PI. 146 ; Beames on Pleas, 241 ; 2 Barb. Ch. Pr. 142. {u) Mitf. Eq. PI. 149 ; 2 Barb. Ch. Pr. 139, 142 ; Welf. Eq. PI. 146 ; Tirrell vs. Cox, 1 Rol. Abr. 383. («) Mitf. Eq. PI. 149, 150 ; 2 Barb. Ch. Pr. 142 ; Welf. Eq. PI. 146. {w) Lord North vs. Lady Gray, Dick. R. 14; Angell vs. Angell, 1 Sim. & Stu. 89. (x) Rose vs. Oannell, Atk. 439 ; Dalton vs. Thomson, Dick. R. 98 ; Jerome VB. Jerome, 5 Conn. 352. {y) Thorpe vs. Macauley, 5 Mad. 218 ; Shackell vs. Macauley, 2 Sim. & Stu. 79. («) Story's Eq. PI. § 306 ; Vaughan vs. Fitzgerald, 1 Sch. & Lef. 316. (a) 1 Smith, Ch. 365 ; Welf. Eq. PI. 147 ; 2 Barb. Ch. Pr. 148. (6) Hall vs. Huddeston, 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. 300 PEEPETUATION 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 the proceeding is by petition, as we shall presently see. SECTION IV. PETITION TO PERPETUATE TESTIMONT. 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- sitions 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 ■)f the petitioner, his claim or title in or to the subject concem- ((/) Kev. S:.ii. vl«T4j 494; Rev. Stat. (1877) 481. PERPETUATION OF TESTIMONY. 301 Form of Petition — Affidavit. ing which lie 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., hriejkj and stibstantially, the ifnterest of the petitioner.) That, etc. {Here date the substan- tial facts intended to he established^ That, etc. {Here insert the name and interest of the defendant.) That, etc. {If any person whose name is unknown is interested, here inseH the fact, and how.) That the petitioner can prove by H. G. and U. S. G., of, etc., that, etc. {Here insert xohat the petitioner expects to prove by the witnesses.) And that, etc. {It may be well here to state the necessity for perpetuating the testimony.) The petitioner therefore prays that a dedimus potestatem 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. Affidavit to he attached to petition to perpetuate testimony. State of iLLEsrois, ) County of \ On this day of A. D. 18 — , before me personally 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. E,. S., Clerk of the Circuit Court, etc, (e) Rev. Stat. (1874) 494; Rev. Stat. (1877) 481. 302 PERPETUATION OF TESTIMONY. Petitions under the Statute — Proceedings upon. Commission to take deposition. — " Upon filing the petition, supported by affidavit, the petitioner may sue out from the circuit court a dedinnus '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 so 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 with the answers thereto ])y 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 certificate, 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 county 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 certify 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 (/) Rev. Stat. (1874) 495; Rev. Stat. (1877) 482 {g) lb 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 UjBed ; and parties notified as ' unknown owners,' in the manner hereinbefore provided, shall be bound to the same extent as other parties." {h) (70 Eev. Stat. (1874) 49G; Rev. Stat. (1877) 483. CHAPTER XXIY. CROSS-BILLS. Section 1. 2. 8. 4. 5. Nature op a CROSs-Bn.Ti. Frame of Bill. When to be Filed. Process Upon. Defenses to. SECTION I. NATURE OF A CKOSS-BILL. A cross-bill implies 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, (b) 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, (c) Where the defendants rely on their answer alone, they can (a) Story's Eq. PI. § 389 ; Welf . Eq. PI. 239 ; Coop. Eq. PI. 62 ; Mitf. Eq. PI. 80. (&) Newhury vs. Wren, 1 Vern. 221 ; Piggott vs. Williams, 6 Mad. 95 ; Stf- ton vs. Barrow, 1 Ves. Jr. 284 ; Parker vs. Leigh, 6 Mad. 115 ; Welf, Eq. PI. 223. (c) Ballance vs. Underhill, 3 Scam. 453 ; 1 Smith's Ch. Pr. 459 ; Mitf. Eq. PI. 75, 76 ; Crutchfield vs. Patten, 44 Geo. 65 ; Oilmer vs. Felhoun, 45 Miss. 627 ; Mercier vs. Lewis, 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 aflBrmative relief, they 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, (f) 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 su!bject matter of the original bill ; as he can only obtain afiirmative relief in that way. (h) 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 jpuis 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 afiirma- tive relief upon an equitable lien upon the premise, except (d) lb. ; Tarleton vs. Vietes, 1 Gilm. 470 ; Fletcher vs. Wilson, 1 S. & M. Ch. 376 ; Galatian vs. Ertoin, Hopk. 48. (e) Hurd vs. Case, 32 111. 45 ; Joaes 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. ig) Brown vs. Bell, 4 Hey. 287 ; N. Y. Dry Dock Co. vs. Am. Life Ins. Co. 8 Sandf. Ch. 273 ; Story's Eq. PI. § 389 ; Morgan vs. Smith, 11 111. 195. {h) Tarleton vs. Vistes, 1 Gilm. 470 ; Ballance vs. Underhill, 3 Scam. 453 ; Atkin vs. Merrell, 39 111. 63 ; Stone vs. Smoot, 39 111. 409 ; McCagg vs. HeOr cock, 42 111. 153 ; Hanna vs. Ratekin, 43 111. 462 ; Croskey vs. Northern Manuf. Co. 48 111. 481 ; Tittsworth vs. Stout, 49 111. 78; Howett vs. Selby, 54 111. 151 ; Ca/rnochan vs. Christie, 11 Wheat. 446 ; Cullum vs. Ericin, 4 Ala. 452 ; Cloud vs. Hamilton, 3 Yerg. 81 ; Schwarz vs. Sears, Walk. Ch. 170. (i) Ferris vs. McClurc, 36 111. 77 ; Inglehart vs. Crane, 42 111. 262 ; Taylor VB. Titus, 2 Edw. Ch. 135 ; Barrington vs. 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 Bill. by means of a cross-bill, {j) It is a proper proceeding to obtain an equitable set-ofi". (k) A cross-bill is generally considered a defense ; {l) and the original cause and the cross-bill are but one cause, (m) It is so 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, (ji) 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 filed without objection by the complainant, who answers it, such bill will not be dismissed before the final hearing, (jp) SECTION II. FRAME 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) ij) Aiken vs. Mei-rel, 39 111. 63. (k) CartwHght vs. Clark, 4 Met. 104. (l) Neicbury vs. Wren, 1 Vern. 221 ; Field vs. Schieffelin, 7 Johns. Ch. R. 252 ; Oalatian vs. Erwin, Hopk. Ch. 48. (m) Field vs. Schieffelin, 1 Johns. Ch. R. 252. in) Wliite vs. Buloid, 2 Paige, Ch. 164 ; 2 Barb. Ch. Pr. 127 ; Story's Eq. PI. § 899. (o) Surd vs. Case, 32 111. 45; Jones vs. Smith, 14 111. 229. (p) Payne vs. Cowan, 1 S. & M. Ch. 26. (q) Story's Eq. PI. §401 ; Mitf. Eq. PI. 81 ; Coop. Eq. PI. 88 ; Welf. Eq. PI. 228 ; May vs. Armstrong, 3 J. J. Marsh. 262 ; Oalatian vs. Erwin, Hopk. 48 ; Hudson vs. Hudson, 3 Rand. 117 ; Hurd vs. Case, 32 111. 45, 49 ; Jones vs. Smith. 14 111. 229 ; Fletcher vs. Wilsoii, 1 S. & M. Ch. 376 ; Cross vs. De Valle, 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 party, {s) A cross-bill to have usurious securities delivered up must offer to pay what is due. {t) The Chancery Practice Act of Illinois pro^;ides, that " it shall not be necessary to recite in a cress-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) No. 119. Cross-hill to a foreclosure suit. 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., 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 with 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 may 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) Ddble vs. Potman, Hardr. 160 ; Burgess vs. Wlieate, 1 Blacks. 133 ; Mason vs. Gardiner, 4 Bro. C. C. 437 ; Calverley vs. Williams, 1 Ves. Jr. 211, 213. (s) Coop. Eq. PI. 85 ; Welf. Eq. PI. 229 ; Mitf. Eq. PI. 81. {t) Mason vs. Gardiner, 4 Bro. C. C. 437. (») Kev. Stat. (Ib74j 303; Rev. Stat. (1877) 187. CROSS-BILLS. 309 Form of. as equity may require and to your honor 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 file 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., {describe the note) as will appear by the said note, ready to be produced in court, and by a copV of the same hereto attached, and marked "Exhibit A," which is hereby made a part of this, your orator's cross-bill. Your orator further represents, that to secure the payment ot the principal sum and interest mentioned in said pi-omissory 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 describe the mortgaged 'premises) subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and eft'ect 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 filed for record in the recorder's oflice of the county of aforesaid ; as by the said mortgage deed and its accompanying certificates ot acknowledgment and recording, ready to be produced in court, will more fully appear. A copy of the said mortgage deed and certificates, 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 JE. 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.j who are hereby made parties 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, 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, % a short day to be fixed by the court ; that in default of such payment the said ip.ortgaged 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. {If any new parties are introduced, add prayer for process as ante, No. 85, page W9, and attach exhibits^ No. IW. Cross-hill in the nature of a plea puis 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 comj)laint in this honorable court against your orator, thereby praying, etc., {Here state the prayer of the hilli) and your orator, being duly served with process, appeared and put in his answer thereto, to which answer the said C. D. filed a replication ; and issue being thus ioined, 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 ovring, together with all, and all manner of actions, causes of actions, snits, and demands whatsoever, both at law and in equit}', 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 I'elease ; 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 j)arty defendant to this cross-bill, may be required to make full and direct answer to the same, Imt 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. therein, 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 new parties are added, pray process as in JVo. 85, ante, page 209, and attach ^'■Exhibit A^) 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, (w) But the rule that a cross-bill should be filed 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 filed, neither defendant can know what defense the other will set up. («) 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 the 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 sufficient cause for delay, (a) To entitle him to a delay of the original proceedings, the cross-bill must be sworn to positively, (c) Irving vs. BeKay, 10 Paige, CIt. R. 319 ; Wiley vs. Platter, 17 111. 540. («)) 2 Barb. Cli. Pr. 129. (a;) Vanderveer vs. Holcomh, 21 N. J. Eq. 105 ; see Berryman vs. Ch'aham, lb. 370. {y) BeaucJiamp vs. Putman, 34 111. 378 ; Reed vs. Kempf, 16 111. 445 ; Youngs vs. Overseers etc. 2 Greeu, N. J. 521. ■z) Cartwright vs. Chirk, 4 Met. 104; Field vs. ScMeffelin, 7 Jolms. Ch. 250; WJiite vs. Buloid, 2 Pnijre, Ch. 164 ; Coleman ys. Moore, 3Litt. 355; Beaucharnj) vs. Putman, 34 111. 378 (a) Wiley vs. Platter, 17 111. ody : see Reed vs. Kenqif, 16 111. 448. CROSS-BILLS. 313 Leave to File — Process upon. either by the comphiinant thereto or by the person from whom his information of the facts was derived, (h) 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 liled. (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, ie) 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. (/*) SECTION IV. PEOCESS 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.'' {(J) This was the rule independent of sueh statute and before its passage, ill) As against the parties to the orig- inal bill, no process is necessary. (^') 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. {j) (6) Talmage vs. Pell, 9 Paige, Ch. 410 ; Irving vs. DeKay, 10 Paige, Ch. 319. (c) Field vs. Schieffelin, 7 Johns. Ch. 250 ; Latouche vs. Dunsaney, 1 Sch. & Lef. 137 ; Story's Eq. PI. § 396 ; Mitf. Eq. PI. 82, 83. {d) Allen vs. Allen, Hemp. 58. {e) Branson vs. LaCrosse & Milwaukee R. R. Co. 2 Wall. U. S. 283. (/) Beauchamp vs. Putmnn, 34 111. 378 ; Jones vs. Smith, 14 111. 2:?9 ; W. U. Teleg. Co. vs. P.& A. Teleg. Co. 49 111. 90. (g) Rev. Stat. (1874) 202; Rev. Stat. (1877) 187. (h) Jones vs. Smith, 24 111. 229; Hurd vs. Case, 32 III. 45. (0 Rev. Stat. (1874) 202; Rev. Stat. (1877) 187; Fleecers. Russell, 18 111. 31. (J) Mil'js vs. Bacon, 4 J. . I. Marsh, 457; Ward vs. Davidson, 2 Wk US; Garnvr vs. Beaty, 7 lb. 223; Talbot vs. McGhee, 4 Monr. 375; Anderson vs. Ward, C 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 filed 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 offer to pay the sum really due, a demurrer was allowed. (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) Boble vs. Potman, Hardr. 160 ; Coop. Eq. PI. 81, 215 ; Mitf. Eq. PI 203 ; 2 Barb. Ch. Pr. 133. (I) Mason vs. Oardiner, 4 Bro. C. C. 436 ; Busfield vs. Solomons, 9 Ves 84 ; Hickson vs. Aylward, 3 Molloy, 1 ; Welf. Eq. PI. 230 : Oalatian vs. JSrioin, Hopk. 48, 59; S. C.,8 Cowen, 561; Tobei/ vs. Foreman, 79 lU. 489. (to) Welf. Eq. PI. 230 ; 2 Barb. Ch. Pr. 133. (n) Story's Eq. PI. ^628-633; Coop. Eq. PI. 87; 2 Barb. Ch. Pr. 133; Welf. Eq. PJ. 230 ; Berkley vs. B7jder, 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. Prettyman, 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, (c) 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) Answer. — The rules relating 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 tlie 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 by 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, S-i ; 2 Barb. Cli. Pr. 132. ip) Lord Newbnrgh V?. Wrcn,l Vprn.220; 2 Dan. Ch. Pr. 148; Welf. Eq. PI. 229. (q) Bdbcoodvs. WiihercUA Young-p &Co]]. 311 ; Glpfjg Yfi. Legh,\WL\g:'h., N, S. :in2 ; Cherry vs. L'gh, lb. 306 ; Welf. Eq. PI. 230 ; 2 Barb. Ch. 132, 133. 'r\ Harris vs. Harris. 'I'ur. & Kuss. 165 ; Wiglei/ vs. WMtaker, 1 Beavan, 349. («) 2 Barb. Ch. Pr. 134 ; see Ramkissenseat vs. Barker, 1 Atk. 20. 316 CROSS-BILLS. Proceedings upon. SECTION VI. PKOCEEDINGS UPON. The complainant in the original siiit 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 in 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, (e?) An order should be obtained, when both causes are ready, that they be brought on for hearing together, (y) (t) White 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. Go. 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 XXy. BILLS FOE SPECIFIC PERFOEMANCE. Section 1. Nature of, and When Proper. 2. Parties to. 3. Frame of Bill. 4. Decree. SECTION I. NATUEE OF, AND WHEN PEOPEE. The essential conditions of a contract which, will be specific- ally enforced in a court of equity are, tliat 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 must 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 law ; 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. (b) A specific performance rests in the sound discretion of the court, under all the circumstances of the particular case ; ( vs. TFi7so;i, 32 111. 517. (d) Hughes vs. Edwards, 9 Wheat. 489 ; Sprigg vs. Bank of Mount Pleasant. 14 Pet. 201 -,8.0.1 McLean, 178, 384 ; Walton vs. Crowley, 14 Wend. 63; Morris ys. 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 -,8.0.2 Curtis, C. C. 386 ; Ohickering vs. Hatch, 3 Sum. 474 ; Par- rington vs. Pierce, 38 Maine, 447 ; Bentley vs. Phelps, 2 W. & M. C. C. R. 436 ; Eldridge vs. Jenkins, 3 Story, 181 ; Jewett vs. Cunard, 3 W. & M. C. C. R. 277 ; Graham vs. 8heke?i, 16 Legal Intel. 324; Harrison vs. Lemon, S Blackf. .^1 ; 8utphen vs. Onshman, 35 HI. 186; BeWolfe vs. Strader, 26 111. 225 ; Bow vs. Chaniberlin, 5 McLean, 281. (e) Belahay vs. McConnel, 4 Scam. 157 ; Coates vs. Woodicorth, 13 111. 654 ; Miller vs. Thomas, 14 111. 428 ; TiJlson vs. Moulton, 23 111. 648 ; Bewen vs. Blake, 44 111. 135 ; Hnnter vs. Hatch, 45 III. 178 ; 8mith vs. Boyle, 46 III. 451. (/) Brown vs. Gaffney, 28 111. 149; S7ia/ver vs.Woodward, lb. 277; Bet gard vs. McNeil, 38 111. 400. ig) Taintor vs. Keys, 43 111. 332 ; Bwen vs. Blake, 44 111. 135 ; Parmelee VB. Lawrence, lb. 405. (A) Ennor vs. Thompson, 46 HI. 214. 352 BILLS TO REDEEM. Who may Redeem. a security in the nature of a mortgage, though it be an abso- lute conveyance in terms, shall be considered as a mort- gage." (i) This statute is, howevei', 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 by 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, (l) 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) Rev. Stat. (1874) 713; Rev. Stat. (1877) 676; see Heald vs. Wright, 75 111. 17; Knowles vs. Knowles, 86 111. 1; Hancock vs. Harper. 86 111. 445. ij) 4 Kent's Com. 162; 2 Story's Eq. Jur. §291; ITpJiam ^s. Brooks, 2 W. & M. 408. {k) 2 Story's Eq. Jur. § 1023 ; Pardee vs. Van Auken, 3 Barb. R. 584 ; Kinnoul vs. Money, 3 Swanst. 208 ; Dovme vs. Morris, 3 Hare, 394. (I) 2 Fonb. Eq. B. 3, ch. 1, § 8, and note p ; 2 Barb. Ch. Pr. 193, 194; DunUvp vs. Wilson, 32 111. 517. (*») 2 Story's Eq. Jur. § 1023. BILLS TO EEDEEM. 35.T Within what Time to be Filed. mortgage by paying the amount due according to its terms as recorded, (n) 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. (j?) SECTION III. WITHIN WHAT TIME TO BE 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 ; (§-) unless circumstances are proved by the mortgagor showing an acknowledgment of his title by the mortgagee ; (r) or unless the mortgagor has labored 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 been removed, (s) But it was held in Maryland that an infant is to be allowed twenty years after he becomes of age to file 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 ; Eolbrook vs. Worcester Bank, 2 Curtis, 244. {o) Beach vs. Sliaw, 57 111. 17 ; see Strang vs. Allen, 4A 111. 428 ; Roberta vs. Fleming, 53 111. 196. (p) Grant vs. Duane, 9 Johns. 591 ; Purvis vs. Brown, 4 Ired. Eq. 413. (g) Whiting vs. White, Coop. 4 ; Demarest vs. Wynkoop, 3 Johns. Ch, 129 ; Beckford vs. Wade, 17 Ves. 99 ; Slee vs. Manhattan Co. 1 Paige, Ch. 48 ; Anon. 3 Atk. 313 ; Moore vs. Cable, 1 Johns. Ch. 385. (r) Barron vs. Martin, 19 Ves. 327 ; Hodle ^rs.Healey, Mad, & Geld. 181 • Dexter vs. Arnold, 3 Sum. 152. (s) Beckford vs. Wade, 17 Ves. 99. {t) Lamar vs. Jones, 3 Har. & McHen. 328 ; 2 Barb. Ch. Pr, 194r-195 (tt) Ahhe vs. Goodwin, 7 Conn. 377. 33 354 BILLS TO EEDEEM. Parties to — Complaiuants. A mortgagor seeking to redeem from a sale of the premises by the mortgagee, under 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 be ten- dered ; not merely the amount of the sale, (w) SECTION IV. PABTIES TO. 1. Co7nplai7iants. — If the bill is brought by the mortgagoi 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, oi 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 b}'^ 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 Jlrst to be applied in exoneration of the real estate mortgaged, it would seem that in a bill by an heir or devisee to redeem, lie might properly make the personal representative of the mortgagor a party defendant, in order to have the assets so («) Hamilton vs. Lubukee, 51 111. 415. (tr) Collins vs. Biggs, 14 Wallace, 491. {X) 2 Barb. Cli. Pr. 195 ; Story's Eq. PI. § 182. (y) Cholmondeley Ys.Clinton, 2 Jac. & W. 1, 2. (s) S. a 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. (&) 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 such 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 j>ay 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 ; 2 Barb. Ch. Pr. 196 ; Howell vs. Price, 1 P. Wms. 291 ; Bradsliaw vs. Outram, 13 Ves. 234 ; Duke of Cumberland vs. Coddrinqton, 3 Johns. Ch. 257. (6) Coop. Eq. PI. 175 ; TrougUon vs. Binkes, 6 Ves. 573, 575. (c) Troughton vs. Binkes, 6 Ves. 578, 575. {d) Id. lb. ; 2 Barb. Ch. Pr. 196. (e) Palmer vs. Earl of Carlisle, 1 Sim. & Stu. 428, 425 ; True vs. Haley, 24 Maine, 297 ; Story's Eq. PI. § 188. 356 BILLS TO REDEEM. Parties to — Defendants. rights of all the parties interested in the estate, {f) But in such a case, it seems, that the personal representative of the mortgagor would not be a necessary party, even though it might, perhaps, be competent to make him a party, {g) 2. Defendants. — In general terms, it may be stated, that all persons ought to be made parties whose interests or rights may be affected by the decree. (A) 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, {i) 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, however many mesne assignments have been made ; for, in such a case, the last assignee is understood to have contracted not only to stand in the place of the original mortgagee, and to represent him, but also to stand in the place, and as the (/) Story's Eq. PI. § 183 ; Thompson vs. Baskermlle, 3 Ch. R. 215. ig) Fell vs. Broion, 2 Bro. Cla. R. 278 ; 2 Barb. Ch. Pr. 196, 197 ; Palk vs. Clinton, 12 Ves. 58, 59; Hobart vs. Abbott, 2 P. Wms. 643. (h) Edwards on Parties, 87-98 ; Story's Eq. PI. g 188. {i) Story's Eq. PL § 188 ; Coop. Eq. PI. 37; Anon. 2 Freem. 52; Cla/rlc son vs. Bowyer, 2 Vei-n. 66 ; Dexter vs. Arnold, 1 Sumner, 109. ij) Osbourn vs. Fallows, 1 Rubs. & Mylne, 741 ; Coop. Eq. PI. 37 i 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 accoimt of rents and profits, or other sums received by the mortgagee before the assigiiment, 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 not assigned his 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, [m) So, where there are successive mortgages, the second embracing a part only of the estate comprehended 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 diiferent estates has become vested in different persons, all of them should be made parties to the bill, for they are all interested in taking the account, {n) Where the mortgagee has assigned his whole interest upon certain trusts, the trustee and cestuis que trust, or beneficiaries, are equally necessary parties to the bill to redeem, {o) SECTION V. TEEMS OF BEDEMPTION. 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, {k) Hill vs. Adams, 2 Atk. 39 ; Chambers vs. Goldmn, 9 Ves. 268, 269 ; Bishop of Winchester vs. Beaver, 3 Ves. 315, 316 ; Lennon vs. Porter, 2 Gray, 473. {I) Anon. 2 Freem. 59; Lowther vs. Carlton, 2 Atk. 139 ; Story's Eq. PI. § 190. (m) Hobart vs. Alhott, 2 P. Wnis. 643 ; Norrish vs. Marshall, 5 Mad. 475. {n) Palk vs. Clinton, 12 Ves. 48 ; Gholmondeley vs. Clint)m, 2 Jac. & Walk. 134 ; Story's Eq. PI. § 191. io) Whistler vs. Welib, Bumb. 53 ; Wetherell vs. Collins, 3 Mad. 255 ; Drew vs. Ha/rman, 5 Price, 319. 358 BILLS TO KEDEEM. 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 tiling 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. (^) 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; (r) 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. (5) There can be no redemption without an allegation of pay- ments, or a tender of the mortgage debt and interest, (t). But £\ bill for redemption, which sets forth a liquidation by the parties of the amount due, and a tender and refusal thereof, was 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 rc^deem will be held void, (w) If several are interested in the equity of redemption, and (/;) Darcei/ vs. Httll. 1 Vera. 18; Mosier vs. Notion. 83 III. 519. iq) 2 Barb. Cli. Fr. 190: Harper vs. El//, 70 111. 581. (r) Vroom vs. Ditmas, 4 Paige, Ch. 526 ; Benedict vs. Oilman, lb. 58 , 8Le vs. Manliattan Co. lb. 49. ^8) Id. lb. ; 2 Barb. Ch. Pr. 199. {t) Saunders vs. Frost, 5 Pick. 259 ; Bank of South Carolina vs. Rose, 1 Strobh. Eq. 257 ; Hooper vs. Bailey, 28 Miss. 328. («) Barton vs. May, 3 Sandf. Ch. R. 450. (d) Rogan vs. Walker, 1 Wis. 527. {w) Robinson vs. Farelly, 10 Ala. 472 ; Henry vs. Davis, 7 Johns. Ch. 40 ; Clark vs. Henry, 2 Cow. 324 ; Wright vs. Bates, 13 Vt. 341 ; Dougherty vs. Colgan, 6 Gill & J. 275. BILLS TO EEDEEM. 35& 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 and transfer to him, it was held insufficient ; iy) 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. (J) 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. FRAME 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. («) (a;) Oibson vs. Crehone, 5 Pick. 146 ; Taylor -vs. Porter, 7 Mass. 355 ; Smith vs. Eelley, 37 Maine, 237. (y) Wendell vs. New Hampshire Bank, 9 N. H. 404. (2) Ogle vs. Ship, 1 A. K. Marsh. 287 ; see Brown vs. Oaffney, 32 111. 251. {a) Loring vs. Cook, 3 Pick. 48. (5) Snyder vs. Oriswold, 37 111. 216 ; Cushman vs. Sutphen, 42 111. 356 ; Bee Oerrish vs. Black, 104 Mass. 400 ; Parkhurst vs. Oummings, 56 Maine, 155. (c) Beekman vs. Frost, 18 Johns. 144 ; S. C.l Johns. Ch. R. 288. (d) Barnard vs. Cushman, 35 111. 452 ; Dwen vs. Blake, 44 111. 135. (e) Oooding vs. Riley, 50 N. H. 400. 360 BILLS TO REDEEM. Bill by Heirs of Mortgagor against Mortgagee to Redeem. The complainant should ofFer in his bill to pay the amount due the defendant. {/) Wo. ISJf.. Bill hy heirs at law of mortgagor, against mortgagee^ to redeem. To the Honorable . Judge of the Court of the County of , in the State of , In Chancery sitting : Your orators, A. B. and B. B., of, etc., respectfully represent unto your honor, that they are the sons and only heirs at law ot C. B., late of, etc., deceased ; that the said C. B., in his life- time, to secure the payment of the principal sum and interest of one certain promissory note for the sum of dollars, bearing date, etc., and payable after date, with interest at the rate of per cent, per annum, signed by the said C. B., and payable to one E. F., the defendant hereinafter named, on, etc., by a mortgage deed of that date, conveyed to the said E. F. in fee simple, the following described real property, situate and being in the county of , in the state of , to wit: {Here insert description,) subject, however, to a condition of defeas- ance upon the payment of the principal sum and interest afore- said, according to the tenor and effect of the said promissory note ; which said mortgage deed was, on, etc., hied for record in the recorder's office of the said county of ; as by the said mortgage deed, now in the possession or under the control of the defendant, will, when produced, appear ; a copy of which is hereto attached and marked " Exhibit A," and is made a part of this bill. Your orators further represent that the principal sum and interest of the said promissory note was not paid at the time the same became due, whereby the estate of the defendant in the said premises became absolute at law; whereupon the defendant entered into possession of the same, and the receipts of the rents and profits thereof, and still retains the same. Your oratoi-s further represent, that the said C. B., on, etc., departed this life, leaving your orators, then infants under the age of twenty-one years, his sons and only heirs at law ; that your orator, A. B., on, etc., attained the age of twenty-one years, and your orator, B. B., attained the same age on, etc. ; that your orators have, from time to time, since their majority applied to the defendant, E. F., to be let in to redeem the said mortgaged premises; but there being a considerable amount due upon the {P Beekman vs. Frost, 18 Johns. U8; 8. C I Johns. Ch R. 288. BILLS TO REDEEM. 361 Bill by Heirs of Mortgagor against Mortgagee to Redeem. said mortgage, they were not tlieii able to pay, and the defend- ant refused to permit your oi-ators to redeem the said premises on any other terms than a full payment of all the money which he alleged to be due him, without deducting the rents and protits received by him while he held the possession of said premises. Your orators further represent, that the interest of the said principal sum of dollars, and all, or the greater part of the principal, have been satisfied and paid out of the rents and protits of the said mortgaged premises, received by the defend- ant, which are quite considerable ; and your orators have lately renewed their requests to the defendant to permit them to redeem said premises, and to enable your orators to do so, to account with them for the rents and profits of the said prem- ises received by the defendant during the time he has been in the possession of the same, which the defendant refused to do, pretending that your orators have no equity of redemption in the said premises. Forasmuch, therefore, as your orators are without remedy in the premises, except in a court of equity ; and to tlie end that 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 not tinder oath, the answer under oath heing hereby waived ; -and especially that he may be compelled to full}- and particu- larly answer and set forth whether any, and what part, of the said principal sum and interest of the said promissory note, is now due and owing to him on the security of the said mort- gaged premises, and particularly how he makes out and com- putes the same ; and whether the yearly rents and profits of the said premises, since the defendant has been in possession thereof, have not been much more, and how much, than suf- ficient to pay the interest due on the said principal sum, and all, or a considerable, and what, part thereof, or how otherwise ; and that the defendant may answer and fully set forth at what yearly rent or rents the said mortgaged premises have, or might have been let, since he has been in possession thereof; and whether he has not, or, without his willful neglect or default, might not have received the whole of the rents and ju-ofits of the said mortgaged premises, since he has been in poss<'ssion thereof, and if not, why not ; and that an account may be taken, under the direction of the court, of what is now due and owing to the defendant for the principal sum and interest aforesaid ; and that an account may 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 362 BILLS TO REDEEM. Bill to Redeem from Deed absolute on its Face. 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 profits shall appear to have exceeded the interest in arrear ; and that upon the payment by your orators of what, if anything, shall be found remaining due to the defendant, in respect of the said principal sum and interest, which your orators hereby offer to pay, the defendant may be decreed to surrender and deliver up the possession of the said mortgaged premises to your orators ; and that the defendant may be compelled to release said mortgage upon the records of said county ; and that your orators 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 com- manding him that he summon the defendant, E. F., 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. {Attach " Exhibit A.'') No. 135. Bill to redeem from a deed absolute on its face^ but which was intended as a mortgage. 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 being indebted unto one C. D., of, etc., the defendant hereinafter named, in the sum of dollars, to secure the same, with interest thereon at the rate of — per cent, per annum, to be paid on, etc., by an absolute deed of conveyance of that date, conveyed to the said C. D. in fee simple, the following described real property, to wit : {Here insert the description ;) which said deed was, on, etc., duly filed for record in the recorder's office of the said county of ; as by the said deed, now in the possession or under the control of the said C. D. will, when produced, appear ; a copy of which is hereto attached, and marked " Exhibit A," and is made a part of this bill of complaint. Your orator further represents, that the said deed of convey- ance, although appearing to be absolute on its face, was not intended to be such by your orator and the said C. D., but on the contrary thereof, it was expressly agreed and understood BILLS TO REDEEM. 363 Bill to Redeem from Deed absolute on its Face. between them, that the same, and the said premises thereby con- veyed, were to be lield by the said C. D. simply as a security for the payment of the said sum of money, and interest as aforesaid ; and that upon the payment of that sum and interest to tlie said C. D., the said C. D. wouhi re-convey the said premises to your orator by an absolute deed. Your orator further represents, that the said C. D., on, etc., entered into the possession of the said premises, and the receipts of the rents and profits thereof, and still retains the same. Tour orator further represents, that he has paid all the inter- est due on the said sum of dollars, to the said C. D., from the date of the said deed until, etc., wdien the said C. D. refused to receive further interest thereon from your orator ; that your orator has always been, and still is, ready to pay the said C. D. what is due to him for principal and interest on the said sum of money ; and your orator well hoped that the said C. D. would have received the same, and that he would re-con- vey to your orator the said premises 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., in order to deprive and defeat your orator of the benefit of redeeming the said premises, does pretend and give out that your orator did not execute the said deed of conveyance to the said C. D. as a security for the repayment of the said sum of money, with interest as aforesaid, but does pretend that the said 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 pretenses to be the truth ; and, upon the pretenses aforesaid, the said C. T>. 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 friendly manner, applied to him for that purpose, and offered to pay him whatever, 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 C. D. are contrary to equity and good conscience, and tend to the manifest 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 that the said 0. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same, hut 364 BILLS TO EEDEEM. Bill to Redeem Goods Pledged, etc. not under oath, the answer under oath heing hereby waived ; and tliat an account may be taken under the direction of this honorable 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 profits 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 offers to pay, the defendant may be decreed to surrender and deliver up the possession of the said premises to 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 your honor shall seem meet. May it please your honor, etc. {Pray for process as in No. ISJf., ante, jpage 360.) No. 136. Bill to redeem 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 i-epresents 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 Mnth him, but it was not meant and intended thereby, BILLS TO REDEEM. 365 Bill to Set Aside Foreclosure, and to Redeem. either by your orator or tlie defendant, that the said trans- action should amount to an absolute sale of tlie said goods and chattels to the defendant, but it was expressly agreed between your 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 requests 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 delivered tcr him as a security, and refuses to allow your orator to redeem the same, or to re-deliver the said property 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 miswer under oath heing hereby waived I 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 sheriff of the said county of , commanding him to 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 aforesaid, then and there to answer this bill, etc. Sol. for Complaina/nt. No. 137. Bill to set aside a decree of foreclosure, etc., hy heir of mortgagor against mortgagee. 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 B. B., late of, etc., no-^ 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 ivsert 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 was 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., leaving 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 afltairs in his lifetime, to put in an answer in the name of your orator, and without ever 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, wlio 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 liimself 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 tlie said B. B., out of bis 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 Ijeing hereby waived ; and that the said decree of foreclosure may be 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 secui-ity ; and that the defendant may be de- creed, on being paid such principal sum and interest, which your orator hereby ofl'ers 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 afoi'esaid, then and there to answer this bill, etc. Sol. for Complainant. SECTION VII. DECREE. 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 with the costs ; 368 BILLS TO EEDEEM. Decree for Redemption. and that upon his so doing, the mortgagor shall convey to him the mortgaged premises. And it dii-ects that upon the com- plainant's default, the bill be dismissed with costs, [g) 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, {h) And, in general, the time allowed will not be afterwards extended, {i) Where the party fails 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. (Jc) The decree of dismissal may be moved for, of course, after the master's report has been confirmed, upon an afiidavit that the time has expired, and the money has not been paid. (Z) No. 138. Decree for redemption. {Cajption, and title of cause as in No. 79, &nte, 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 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 and decreed, by the court, that this cause be referred to the master in chancery of this court, to take an account of what is due to the defendant for principal and interest on the said mortgaged indebtedness in the bill of complaint mentioned ; and also to take an account {g) 2 Barb. Ch. Pr. 199. (A) Ferine vs. Dunn, 4 Johns. Ch. 140. (i) Id. ; Brinckerhoff vs. Lansing, 4 Johns. Ch. 65 ; NovoseUski \a.Wak6- field, 17 Ves. 417. (/) Ferine vs. Dunn, 4 Johns. Ch. 142 ; Gholmiey vs. Duchess of Oxford, 2 Atk. 267 ; Bishop of Winchester vs. Paine, 11 Ves. 199 {k) Handsand vs. Hardy, 18 Ves. 460. (I) Stuart vs. Worrall, 1 Bro. C. C. 581 ; Seaton on Decrees, 147 ; McDon- ough vs. Shewbridge, 2 Ball & B. 564. BILLS TO REDEEM. 369 Decree for Redemption. of the rents and profits of the said mortgaged premises, which have come to the hands of the defendant, or of any other per- son or persons by his order, or for his nse, or which he, without his willful default, might have received ; and what shall be coming on the said account of rents and profits, is to be deducted out of what shall be found due to the defendant for principal and interest. And for the better taking of the said account, the parties are to produce before, and leave with, the said mas- ter, all deeds, books, papers, tax receipts, and writings in their possession or power relating thereto, and are to be examined on oath as the said master shall direct. And the said master will cause to come before him all such witnesses whose testi- mony he may deem necessary in the taking of the said accounts, and examine them upon oath and interrogatories touching the matters aforesaid. And what upon the balance of the said account, shall be certified to be due to the defendant, for his principal and interest, and costs, it is ordered^ adjudged and decreed^ that the complainant do pay to the defendant, within after the said master shall have made his report, and the same shall have been confirmed ; and that upon such payment being made, the defendant do resurrender the said mortgaged premises, to wit: {Here describe the premises^ unto the complainant, or unto such person or persons as he shall direct, free and clear of all encumbrance, done by him, or any person claiming by, from, or under him, and deliver unto the complainant all deeds and writings in his custody or power relating to the said mortgaged premises. But in default of the complainants paying unto the defendant what shall be so certified to be due him for principal, interest and costs as afore- said, after such deductions made thereout as aforesaid, at the time above mentioned, it is ordered, adjudged and decreed, that the complainant's bill do from thenceforth stand dismissed ont of this court with coats to be taxed. 24 CHAPTER XXYIII. BILLS TO FORECLOSE MORTGAGES. Section 1. Generai, Nature of. 2, When Proper. 3. Parties. 4. Frame of Bill. 5. Trust Deeds and Sale Mortoaokb 6. Strict Foreclosure. 7. Defenses to. 8. Decrees op Foreclosure. SECTION I. GENERAL NATURE OF. A foreclosure in equity is a proceeding by which the mort- gagor's right of redemption in the mortgaged premises is forever barred and foreclosed. This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption ; in such case the mortgagee may file a bill in a court of equity to compel the mortgagor to redeem his estate presently, or, in default thereof, to be forever closed or barred from any right of redemption. There are two general methods of foreclosing an equity of redemption after a breach of condition, through the medium of a bill in chancery. The one a strict foreclosure, as it is commonly called, whereby, after certain proceedings, the mort- gagee is adjudged absolute owner of the property to which he had before only a conditional or defeasible title ; the other, and the most usual mode, a sale of the jproperty under the direc- tion of an officer of the court, in which case the proceeds are applied to the discharge of incumbrances according to priority, and the balance, if any, paid over to the mortgagor. The statute of Illinois lias also provided a mode of fore- closure of mortgages by means of a proceeding by scire facias. _ 1 BILLS TO FOKECLOSE MORTGAGES. 371 Nature of — When Proper. This statutory proceeding cannot be resorted to safely in every instance. And it may be remarked, generally, that where there are numerous or conflicting interests to be affected, or any complication, the safest mode of foreclosure is by a bill in chancery. For proceedings to foreclose by scire facias, see Puterbaugh's Com. Law PI. and Pr. pp. 659-663. SECTION II. ^ WHEN PKOPER. If the mortgagor has made default in the payment of the money due according to the terms of the mortgage, or has incurred a forfeiture by reason of any other provision of the instrument, the mortgagee may tile his bill to foreclose. If a defeasance in the usual form in a mortgage deed pro- vides that if the notes are not paid as they become due, that the mortgage is forfeited to that extent, the holder of a note is not obliged to wait for the whole indebtedness to mature before he can proceed to foreclose, {a) So, where the interest, falling due yearly, on a note secured by a mortgage, is not paid, the mortgage may be foreclosed to enforce its payment. In such case it is not necessary to wait until the note matures. (J) Where the condition of a bond and mortgage is, that on fail- ifre to pay an installment of interest when due, the principal should immediately become payable, a neglect to pay an install- ment of interest, when it becomes due, works a forfeiture of the mortgage, (c) But where a mortgage was given to secure several notes, made payable at diflerent times, with authority to make sale {a) Vaiisant vs. Allmon, 23 111. 31; see Hards vs. Burton, "79 111. 504. (6) Morganstein vs. Elees, 30 111. 422 ; Buggies vs. 8. M. R. R. Co. 5 Chi- cago Jjegal News, 110 ; seeWilliamson vs. New Albany & 8. R. R. Co. 2 Red. Railw. § 235. (c) Ottawa N. P. B. Co. vs. Murray, 15 111. 336 ; Harper vs. Ely, 66 m. 179. 372 BILLS TO FOKECLOSE MORTGAGES. When Proper — Parties — Complainants. of the premises upon the non-payment at maturity of any of the notes for the satisfaction oi such of therm as should then he due, if the mortgage resorts to equity to foreclose, he can only obtain foreclosure for such of the notes as shall have become due, as that is the limit of the power of sale in the mortgage, {d) And a foreclosure in such case, for the part of the debt which was due, would, of necessity, be a release of the security for the amount not due. {e) And in such case, the purchase of the premises by the mortgagee and holder of the notes not due, would operate as a satisfaction of the entire debt. {/) The assignee of a note is in equity regarded as the purchaser of all the securities and remedies attached to it, and may per- Bue them at his discretion. So may the assignees in succession, of separate parts of the same debt ; and the assignee of the first due of several notes secured by mortgage has a priority of claim, and can foreclose and sell. And the holder of the other notes can redeem in succession, according to priority, {g) A foreclosure of a mortgage cannot take place as to one por- tion of the mortgaged premises, and not as to the residue. So long as the mortgagor is suffered to remain in possession of any part of the premises, his right of redemption to the whole will continue, (A) SECTION III. PARTIES. Complainants. — It may be stated, as a general rule, that all those who have an interest in the mortgage and may be affected by the decree are proper parties. If the mortgagee alone has any interest, he is of course the only necessary party complain- ant. If the mortgagee is deceased, the bill should be brought in the name of the executor or administrator, and not of the [d) Smith vs. Smith, 33 111. 198. (e) lb.; see Hards vs. Burton, 79 III. 504. (/) Mines vs. Moore, 41 111. 273. () Haines vs. Beach, 3 Johns. Ch. 459; Ensworth vs. Lambert, 4 lb. 605; Culhim vs. Batre, 2 Ala. 415 ; Finley vs. Bank of U. S., 11 Wheat. 304; Walsh vs. Truesdall, 1 Bradwell's App. Ct. R. 126. {q) Lane vs. Erskine, 13 111. 501; Harvey vs. Thornton, 14 111. 217; Marsh vs. Green, 79 111. 385. 374 BILLS TO FORECLOSE MOKTGAGES. Parties to — Defendants. of the mortgage, is a necessary party to a proceeding in equity to a foreclosure, (r) But upon a foreclosure of a mortgage given to secure the purchase money for the mortgaged premises, it is not necessary that the wife of the mortgagor should be made a party to the bill, {s) A purchaser of land from a devisee is a necessary party to a bill for the foreclosure of a mortgage, which had previously been given upon the same premises by the testator, [t) Where three notes, payable at different times, were secured by a mortgage, and the iirst and second notes were assigned to one person, and the third note to another, it was held that on a bill to foreclose the mortgage by the holder of the first and second notes, the holder of the third note was a necessary party, (w) A mortgagor who is personally liable to the mortgagee for the payment of the debt secured by the mortgage, but who has parted with all his rights and interest in the mortgaged prem- ises, is a proper, but not a necessary party to a bill to foreclose the mortgage, {v) If the mortgagor has conveyed the equity of redemption absolutely and without warranty, the mortgaged premises are the primary fund for the payment of the mortgage debt ; and the grantee has no right to object that the mortgagor is not made a party to the bill of foreclosure. But where the com- plainant makes a mere surety of the moi'tgagor, for the payment of the debt, a party to the bill, for the purpose of obtaining a decree against such surety, if the mortgaged premises are found to be insufficient to satisfy the debt and costs, such surety has a right to insist that the principal debtor shall be made a party to the suit, if he is within the jurisdiction of the court. But not if the principal debtor is an absentee, and has assigned all his right and interest in the equity of redemption, {w) (r) Leonard vs. ViUars, 23 111. 377; Wright vs. Lnnqley, 36 111. 381; see Pope vs. North, 33 III. 440. (s) Stephens vs. Bichnell, 27 111. 444; Short vs. Rnuh, 81 111. 509; Fletcher vs. HolmcN. 32 Ind. 497. it) Ohlingv^. Luitjens, 32 111.23; Dunlap vs. Wilson, Ih. 511; Cuttervs. Jone.'^, 52 III. 84. (m) Mi/ers vs. Wright, 33 111. 285. (r) Bigelow vs. Bush, 6 Paige, Ch. 343; Marsh vs. Green, 79 III. 385. {w) 2 Barb. Ch. Pr. 175; Bigelow vs. Bush, 6 Paige, Ch. R. 343. BILLS TO FOKECLOSE MOKTGAGES. 375 Parties to — Defendants — Frame of Bill. Where the mortgagee has assigned his bond and mortgage, and guaranteed the collection of the debt, the assignee may make him a party to the bill of foreclosure ; foi- tlie purpose of obtain- ing a decree over against him for the deficiency, in case the amount of such deficiency should not be collected from the mortgagor, {x) If a mortgage is foreclosed without making subsequent pur- chasers or incumbrancers parties, their rights to redeem are not affected thereby, (y) To a bill to foreclose against the principal mortgagor, the mortgagor of another estate, as a collateral security, is a neces- sary party, (s) SECTION IV. , FRAME OF BILL. It is proper to remark, by way of caution to the pleader, that much diversity exists in the cases with regard to foreclosure enits, since, in most of the states, there are statutes upon the subject, and a line of decisions peculiar to the state. The title in the mortgagor need not be averred in the bill, (a) In New York, it seems that the bill must allege that no proceedings at law have been had to recover the debt, or if there have been such proceedings, he must state the natnre of them, and that they have been discontinued, or that the remedy at law has been exhausted ; (J) this is a statutory provision, (c) A similar statute seems to exist in Indiana. Where it was held that an omission of such a statement is fatal, (d) (cr) Leonard vs. Morris, 9 Paige, Ch. 90. (y) Dunlap vs. Wilson, 32 111. 517 ; Oorden xs.Hobart, 2 Sum. 402 ; Oliver VB. Piatt, 3 How. U. S. 333. (2) Stokrs vs. Clcndon, 3 Swaust. 150, note ; S. G. 2 Bro. Ch. Ca. 275, note. (o) Shed vs. Garfield, 5 Vt. 39 ; Eaci/ie ct Miss. R. R. Co. vs. Farmer's Loan & Trust Co. 49 111. 331. (6) Pattison vs. Poicers, 4 Paige, Cli. 549 ; Williamson vs. Champlin 1 Clarke, 9. (c) 2 Barb. Ch. Pr. 178. (d) McMullen vs. Furness, 1 Smith, 73. 376 BILLS TO FORECLOSE MORTGAGES. Frame of Bill — Form of Bill, Mortgagee vs. Mortgagor. In Illinois, it is held that a judgment on a note, secured by mortgage, which remains unsatisfied is no bar to a proceeding to foreclose, or that a mortgagee may bring ejectment, sue on the note at law, and maintain a bill to foreclose, at the same time ; that he may pursue the several remedies until his debt is satisfied, (e) The bill need not allege an indebtedness for which it was given ; and if alleged, it need not be proved, {f) In bills to foreclose, it is not necessary to set out at length the rights and interests of the defendants who are subsequent purchasers, judgment creditors or other incumbrancers. It is BuflBcient for the complainant, after setting out his own right and interest in the premises, to state generally that such de- fendants have, or claim to have, some interest in the premises, as subsequent purchasers or incumbrancers or otherwise, (g) And it has been held that where the bill unnecessarily sets out tlie rights of the several defendants at length, it may be excepted to for impertinence. (A) In a bill in chancery to foreclose a mortgage claimed to have been executed by husband and wife upon land the fee of which was in the latter, the mortgage may be stated according to its legal efiect, without stating in detail the various matters which are necessary to a transfer of a married woman's title, [i) No. 139. Bill for foreclosure of mortgage / moi^tgagee vs. mortgagor. 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., being indebted to your orator in the sum of dollars, made and delivered to your (e) Vansant vs. Allmon, 23 111. 30; Hughes vs. Edwards, 9 Wheat. 489; Morrison vs. Buckner, Hemp. 442 ; see also Morgan vs. Sherwood, 53 111. 171. (/) Day vs. Perkins, 2 Sandf. Cli. 359 ; see also Collins vs. Carlile, 13 ni. 254. {g) 2 Barb. Cli. Pr. 177. {h) lb. ; Union Ins. Co. vs. Van lienssctaer, 4 Paige, Ch. 85. (t) Williams vs. Soulier, 55 111. 130. BILLS TO FOKECLOSE MORTGAGES. 377 Form of Bill, Mortgagee vs. Mortgagor. orator liis certain promiBSory note of that date, and thereby promised to pay to your orator, after date, the said sum of dollars, with interest at the rate of — per cent, per annum, as will more fully appear by the said note, ready to be produced in court, and by the copy of the same herewith filed and marked ''Exhibit A," and made part of this your orator's bill of complaint. Your orator further represents unto your honor, that to secure the payment of the principal sum and interest above mentioned, the said C D. and D. D., his wife, on, etc., by their deed of that date, conveyed to your orator, in fee simple, the following described parcel of land, with its appurtenances, situate in the said county of , to wit: {Here descrihe the preinises j) subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and effect of the said promissory note ; which said deed was, on, etc., duly acknowledged, and after- ward, on, etc., filed for record in the recorder's office of the county of aforesaid, as by the said deed and its accom- panying certificates of acknowledgment and recording, ready to be produced in court, and by a copy thereof herewith filed and marked " Exhibit B," and made a part of this bill, will more fully appear. Your orator further represents unto your honor, that the said C. D. has not yet paid the said principal sum of dollars, or such interest thereon, or any part thereof, although the same long since became due ; by means whereof the said mortgaged property has become forfeited, subject nevertheless to redemp- tion in equity by the said C. D., his heirs and assigns. Your orator further represents unto your honor, upon infor- mation and belief, that E. F. and G. H., of, etc., have, or claim, some interest (the precise nature whereof is unknown to your orator) in the mortgaged premises aforesaid, as purchasers, mortgagees, judgment creditors, or otherwise, but such inter- ests, if any there be, have accrued since, and are subject to, the lien of your orator, by virtue of the said deed of mortgage. 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., D. D., E. F. and G. H., who are made ]:)arties defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the ansiver under oath heiyig hereby loaived j that an account may be taken in this behalf, by or under the direction of the court ; that the said defendant, C. D., may be decreed to pay to your orator, wliat- ever sum shall appear to be due to him upon the taking of 378 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Assignee of Mortgage. sneli acconnt, too'etlier with the costs of this proceeding, by a short day to be fixed by the court ; that in default of such pay- ment the said mortgaged premises may be sold, as the court may direct, to patisfy such debt and costs ; that in case of such sale and of a failure to redeem therefrom pursuant to the stat- ute, the defendants, and all persons claiming through or under them, after the commencement of this suit, may be forever barred and foreclosed of all right or equity of redemption of the said mortgaged property ; 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 said defendants, C. D., D. D., E. F. and G. H., 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, and then and there to answer this bill, etc. Sol. for the Com/plainant. {Add copies of note and mortgage as Exhibits A and JB.) J4-0. Bill for foreclosure., hy assignee of mortgage. 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., being indebted to one E. F., of, etc., in the sum of dollars, made and delivered to the said E. F. his certain promissory note of that date, and thereby promised to pay to the order of the said E. F., after date, the said sum of dollars, with interest at the rate of per cent, per annum ; as will more fully appear by the said note, ready to be produced in court, and by the copy of the same herewith filed, marked " Exhibit A," and made part of this your orator's bill of complaint. And the said C. D., to secure the payment of the principal and interest, mentioned in the said promissory note, did, at the same time, by his mort- gage deed of that date, convey to the said E. F., in fee simple, that certain parcel of land, with the appurtenances, in the said county of , described as follows, to wit : {Here set out the description of the mortgaged property ;) subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and effect of the said promissory note ; which said mortgage deed was on, etc., BILLS TO FORECLOSE MORTGAGES. 379 Form of Bill, by Assignee of Mortgage. duly acknowledged, and afterwards, on, etc., fled for record in the recorder's, office of said county; as by the said mortgage deed and its accompanying certiiicates of acknowledgment, and recording, ready to be produced in court, and by the copy of the same herewith filed, marked " Exhibit B," and made a part of this bill, will more fully appear. And your orator further represents unto your honor, that the said promissory note and mortgage deed have been duly assigned and transferred to your orator for a valuable consideration, and are now held and owned by your orator. And your orator further represents unto your honor, that the said principal sum of dollars, with interest thereon from, etc., remains due and unpaid to your orator, although the same long since became due ; by means whereof the said mortgaged property has become forfeited, subject, nevertheless, to redemp- tion in equity by the said C. D., his heirs or assigns. And your orator is informed and believes, and so states, that G. H. and J. K., of, etc., have, or claim, some interests in the said mortgaged premises, or in some part thereof, as purchasers, mortgagees, judgment creditors, or otherwise, which interests, if any there be, have accrued subsequent to the lien of said mortgage deed, and are subject thereto. Your orator therefore asks the aid of this honorable court in the premises ; and makes the said C. D., G. H. and J. K. parties defendant to this bill, and to the end that they may be required to answer this, your orator's bill, according to the rules and practice of this honorable court, hid not under oath, their answer under oath heing herehy waived', that an account may be taken in this behalf liy or under the direction of the court ; that the said defendant, C. D., may be decreed to pay your orator whatever sum shall appear to be due him upon the taking of such account, together with his costs of this pro- ceeding, by a short day to be fixed by the court ; that, in default of such payment, the said mortgaged propei'ty may be sold, as may be directed by the court, to satisfy the amount due and costs; that, in case of such sale, and a failure to redeem there- from, pursuant to the statute, the defendants, and all persons claiming through or under them, subsequent to the commence- ment of this suit, may be forever barred and foreclosed of all right and equity of redemption in the said premises ; 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. And may it please your honor to grant the writ of summons in chancery, directed to the sheriff of said county, commanding 380 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Mortgagee V8. Executor, etc. him that he summon the defendants, C. D., G. H. and J. K., to appear before this honorable court, on the first day of the next term thereof, to be held at the court house in , in the said county, then and there to answer this bill, etc. — , Sol. for Complainant. {Add exhibits.) Mo. lJi.1. Bill for foreclosure, hy mortgagee vs. executor, etc., of deceased mortgagor. 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 E. F., late of, etc., being indebted to your orator in the sum of dollars, made ftnd delivered to your orator his two certain promissory notes of that date, one of the same being for the sum of dollars, and payable to your orator afterdate, and the other for the sum of dollars, payable after date, both of said notes to draw interest per annum from their date, as will more fully appear by the said notes, ready to be produced in court, and by the copies of the same herewith filed, marked " Exhibit A," and made part of this your orator's bill of complaint. Your orator further represents unto your honor, that to secure the payment of the principal sums and interest above mentioned, the said E. F. and F. F., his wife, on the same day, by their mortgage deed of that date, conveyed to your orator, in fee simple, that certain parcel of land, with its appurtenances, in the said county of , known and described as follows, to wit : {Here set out the description /) subject, however, to a con- dition of defeasance upon the payment of the principal sums and interest aforesaid, according to the tenor and effect of the said promissory notes ; which said mortgage deed was on, etc., duly acknowledged, and afterwards, on, etc., filed for record in the ofHce of the recorder of the said county of , as by the said mortgage deed and its accompanying certificates, ready to be produced in court, a copy of which, marked " Exhibit B," is hereto attached, and made a part of this bill, will more fully appear. (*) Your orator further represents, that afterwards, to wit, on, etc., the said E. F. departed this life, leaving the said F. F., his widow, and G. F., H. F. and J. F., his children, who are minors and his only heirs at law, him surviving; that the said E. F., in his lifetime, duly made and published his last will and testa BILLS TO FORECLOSE MORTGAGES. 381 Form of Bill, by Mortgagee vs. Executor, etc. ment in writing, bearing date, etc., by wliieli one L. M. was appointed to be tlie executor of the said will ; that upon, or soon after, the death of the said E. F., the said L. M. duly proved the said will in the — court of the county of, etc., and under- took the executorship thereof. (* *) Your orator further represents unto your honor, that the said principal sums of money, with interest from the day of, etc., remain due and unpaid to your orator, although the same long since became due, according to the tenor and effect of the said promissory notes ; by means whereof the said mortgaged property has become forfeited, subject, nevertheless, to an equity of redemption by the said legal representatives of the said E. F., deceased, or his heirs or assigns. Your orator further represents, upon information and belief, that O. P. and E.. S., of, etc., have or claim some interests in the mortgaged property aforesaid, as purchasers, mortgagees, trus- tees, judgment creditors, or otherwise, the precise nature of which is unknown to your orator, but such interests, if any there be, have accrued since, and are subject to the lien of your orator, by virtue of said mortgage deed. Your orator therefore asks the aid of this honorable court in the premises, and makes the said F. F., G. F., H. F., J. F. and L. M., executor of the last will and testament of the said E. F., deceased, and O. P. and P. S., parties defendant to this bill, to the end that they may be required to answer this your orator's bill, according to the rules and practice of this honor- able court, hut not U7ider oath, the answer under oath heing hereby waived: that. a guardian ad litem may be appointed for said minor neirs ; and that an account may be taken in this behalf by or under the direction of the court ; that the said defendant may be decreed to pay your orator whatever sum shall appear to be due him upon the taking of such account, together with his costs of this proceeding, by a short day to be fixed by the court ; that in default of such payment the said mortgaged property may be sold, as may be directed by the court, to satisfy the amount due and costs ; that in case of such sale and a failui-e to redeem therefrom, pursuant to the statute, the defendants, and all persons claiming through or under them, subsequent to the commencement of this suit^ may be forever barred and foreclosed of all right and equity of redemption in the said premises ; 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. And may it please your honor to grant the writ of summons in chancery, directed to the sheritf of said county, command- 382 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Mortgagee vs. Administrator, etc. — Trust Deed, etc. inghim that he summon the defendants al)ove named to appear before this honorable court on the first 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. for Complainant. (Attach Exhibits A and B.) JVo. IJfS. Bill for foreclosure, hy mortgagee vs. administrator ^ etc., of mortgagor. {Commence and proceed as in No. 11^1, ante, to the asterisk *, and then proceed as follows :) Your orator further represents unto your honor, that after- wards, on or about the day of , 18 — , the said E. F. departed this life intestate, leaving the said F. F., his widow, and G. F., H. F. and J. F., his minor children, and his only heirs at law, him surviving ; that soon after the death of the said E. F., K. M., of, etc., was, by the court of the said county of , duly appointed administrator of the goods and chattels, etc., of the said E. F., deceased. {Then proceed as in the same form, No. IJ^l, from the double asterisk, describing the said H. S. as " administrator of the estate of the said E. F., deceased^'' instead of as executor, etc.) SECTION V. TKUST DEEDS AND SALE M0ETGAGE8. The act of 1879 provides "That no real estate within this state shall be sold by virtue of any power of sale contained in any mortgage, trust deed or other conveyance in the nature of a mortgage, executed after the taking effect of this act ; but all such mortgages, trust deeds, or other conveyances in the nature of a mortgage, shall only De foreclosed in the manner provided for foreclosing mortgages containing Jio power of sale; and no real estate shall be sold to satisfy any such mortgage, trust deed, or other conveyance in. the nature of a mortgage, except in pursuance of a judgment or decree of a court of competent jurisdiction." {j) ij) Laws of 111. 1879. pp. 211, Bradwell's ed. 162 BILLS TO FORECLOSE MORTGAGES. 383 Form of Bill to Foreclose Trust Deed, etc. No. lJt3. Bill to foreclose deed of trust inUie nature of a w.orUjage. To the Honorable , J lul^e of the Court of tlie Couutj 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 indebted to your orator in the sum of dollars, made and delivered to your orator his certain promissory note of that date, and there- by promised to pay your orator the said sum of money in years after the date thereof, with interest thereon at the rate of — per cent, per annum, payable ; as will appear by the said note, ready to be produced in court, and by the copy of the same hereto attached, marked " Exhibit A," and made a part of this your orator's bill of complaint. Your orator further represents, that to secure the payment of the principal sum and interest above mentioned, the said C. D. and D. D., his wife, on, etc., by their deed of trust of that date, conveyed to one E. F. in fee simple, the follow^ing described real property, with the appurtenances thereto belong- ing, to wit : {Here describe the 'premises f) in trust, nevertheless, for the purposes of securing the principal sum and interest so due your orator as aforesaid, and subject to a condition of defeasance upon the payment of the said principal sum and interest, according to the tenor and effect of the said note ; which said deed of trust was, on, etc., duly acknowledged, and afterwards, on, etc., filed for record in the recorder's office of the county of aforesaid ; as by the said deed of trust and its accompanying certificates of acknowledgment and recording, ready to be produced in court, will mure fully appear ; a copy of the same is hereto attached, marked "Exhibit B," and is hereby made a part of this bill of complaint. Your orator further represents, that on, etc., the said C. D. ^departed this life, intestate leaving the said D. D., his widow, and E. D. and F. D., his children and only heirs at law ; that afterwards, on, etc., one G. H., of, etc., was by the court of the county of aforesaid, duly appointed administrator of the estate of the said C. D., deceased ; and that the said G. H. entered upon and assumed the duties of such adminis- tration. Your orator further represents, that the said C. D. was at the time of his decease, the owner of the equity of redemption of the said described premises. 384 BILLS TO FORECLOSE MORTGAGES. Bill to Foreclose Trust Deed, etc. — Strict Foreclosure. Your orator further represents, that the said C. D. did not, in his lifetime, aor has any person since his death, paid the said principal sum of dollars, or such interest thereon, nor any part of the same, although the same has long since become due ; by means whereof the said premises so conveyed has be- come forfeited, subject, nevertheless, to redemption in equity by the representatives and heirs of the said C D., deceased. Your orator further represents, that by reason of the statute in such case made and provided, the said E. F., as such trustee in the said trust deed named, is divested of his authority to make sale of the said premises in the manner provided therein. 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., E. F. and G. H., administrator of the estate of the said C. D., deceased, who are made parties defendant to this bill, may be required to make full and direct answer to the same, h^it not under oath, the answer under oath heing hereby waived ; 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 whatever sum shall appear to be due to him upon the taking of the said account, together with his costs of this pro- ceeding, by a short day to be fixed by the court ; that in default of such payment the said premises may be sold, as the court shall direct, to satisfy the amount due your orator and the costs ; that in case of such sale, and of a failure to redeem therefrom pursuant to law, the defendants, and all persons claiming through or under them, after the commencement of this pro- ceeding, may be forever barred and foreclosed of all right or equity of redemption of the said mortgaged property ; 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. {Pray process as in No. lJt.1, ante, j>age 380.) SECTION VI. STKICT FORECLOSUEE. 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 redemption in the mortgaged premises, and his and their title thereto be extinguished and vested in the mortgagee, witliout a sale thereof. Where a bill foi 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, (k) A strict foreclosure is not, as a general rule, proper where there 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 not of sufficient value to pay the debt and costs, a strict foreclosure will not be decreed, (m) A strict foreclosure of a mortgage does not extinguish the debt, unless the value of the land is equivalent to the amount of the indebtedness, (n) Parties to. — 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, {p) A strict foreclosure cannot be entered where there are cred- itors entitled to the surplus, who are not made parties to the suit, {p) (k) Wilson vs. Geisler, 19 111. 49. (l) Farrell vs. Parlier, 50 111. 270 ; see Johnson vs. Donnell, 15 111. 97 ; Wener vs. Heintz, 17 111. 259 ; Stevens vs. Bichnell, 27 111. 444 ; Horner vs. Zimmerman, 45 111. 14. (m) Sheldon vs. Patterson, 55 111. 507. {n) Vansant vs. Allmon, 23 111. 31 ; 4 Kent, Com. 182 but see Savory vb, Wissman, 2 Benedict, 240. {o) Hobart vs. Abbot, 2 P. Wms. 643. (jp) Wa/rner vs. Hilm, 1 Gilm. 220. 25 386 c 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, may be debarred and foreclosed of, and from, all rights and equity of redemption in, or to, the mortgaged premises. No. IJfJi,. Bill for st/rict foreclosure. 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 descrijjtion of mo7'tgaged 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 B," and made a part of this bill, will more fully appear. Your orator further represents that the sum of dollars, BILLS TO FORECLOSE MORTGAGES. 387 Form of Bill of Strict Foreclosure. with interest from, etc., remains due and nnpaid 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 further represents that the said C. D. is now wholly insolvent, and unable to redeem the said premises ; and that the said mortgaged propert}^ 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 tinder oath, the answer under oath heing hereby waived ; 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^rocess as in Wo. HI, ante, ^age 380, and add exhihits.) 388 BILLS TO FORECLOSE MORTGAGES. Defenses to. SECTION VII. DEFENSES TO. A mortgagor 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. (J) 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 with 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. B. R. Co. vs. Farmer's Loan & Trust Co. 49 111. 331. ((?) Smith vs. Newton, 38 111. 230 ; see also Weaver vs. Wilson, 48 111. 125. (r) Lock vs. Fulford, 52 111. 166 ; Huhhard vs. Turner, 3 McLean, 519. (s) McLean vs. Lafayette, etc. 3 McLean, 587. (0 Paxton vs. Harrier, 11 Penn. 312; see Hohnan vs. Bank, etc. 12 Ala. 369; Haiche vs. Smjdaker, 86 111. 197. (w) Parkman vs. Welch, 19 Pick. 238; see also Iglehart vs. Crane, 42 111. 261; Loch vs. Fulford, 52 111. 160; see further defenses of this nature, 1 Hilliard on Mortgages, 327 et seq. BILLS TO FORECLOSE MORTGAGES. 389 Decree of Foreclosure. would require him to pay legal interest. In such a ease, 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 foreclosure. Works specially treating of the subject of mortgages will have to be consulted, (w) SECTION VIII. DECREE OF FOEECLOSURE. 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 for 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 personally liable for the mortgage debt, unless their appearance shall be entered in such suit." (x) The 92d rule for practice in the courts of equity of the United States, adopted at the Decembei- term, 1863, provides, " that in suits in equity for the foreclosure of mortgages in 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 8th (v) Snyder vs. Griswold, 37 111. 216; Cushman vs. Sutphen, 43 111. 256. {w) See Hilliarcl on Mortgages; Fisher on Mortgages, etc. {x) Rev. Stat. (1877) 676; Hoag vs. Starr, 69 111. 362; see McClurg vs. Phillips, 40 Mo. 315; Siiell vs. Stanley, 58 111. 31. 390 BILLS TO FORECLOSE MORTGAGES. Decree of Foreclosure. rule of tJiis 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 oJ 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. (s) Where the decree directs the mortgagor, or the party in pos- session of the mortgaged premises, to surrender up the posses- 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 copy 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. (J) 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) (y) Phelps ys. Loyhed, 1 Dillon, 512. {z) Lawrence vs. Lane, 4 Gilm. 354. («) Ahlnch vs. Sharp, 3 Scam. 201; O'Brien vs. Fry, 82 111. 87. (&) lb.; Jackson vs. Warren, 32 111. 331. (c) BrigffR vs. Kaufman, 2 Mich. N. P. 160; see Sibley vs. Baker, 23 Mich. 312; McCidlum vs. TurjJie, 32 Ind.'146, see Lock vs. Fulford, 52 111. 156; Payne vs. Avery, 21 Mich. 524; contni, see Barney vs. Myers, 28 Iowa, 472; Niles vs. Harmon, 80 111. 396; Haivhe vs. Snydaker, 86 111. 197; St. Joseph M. Co. vs. Daygett, 84 111. 556. 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 sustaiiied in the absence of some special law to authorize it. (d) No. IJfB. Decree of foreclosure and scde, pro confesso. {Caption, and title of cause as in No. 79, ^nte, page 198.) And now on this day comes the complainant, by his solicitor, and it appearing to the court here, from the writ issued herein to the sherift' 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 severally 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 referi'ed 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 complainant 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 witli 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, tlie 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 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, adjudged and decreed, that in de- fault of said payment being made as aforesaid, by the defendants, then, and in that case, the said mortgaged premises mentioned in the bill of complaint in this cause, to wit : {Here describe {d) Clark vs. Beyhurn, 8 Wallace. 318. 392 BILLS TO FORECLOSE MORTGAGES. Form of Decree — Pro confesso. the mortgaged premises,) or so mucli thereof as may be sufficient 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 neM^spaper 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 purchased 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 file, 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 sura 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 satisfac- 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 pay- ments as aforesaid, bring such surplus moneys into court with- out delay, to abide the farther order thereof. And 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 eijuity of redemption, and claim of, in and to said mortgaged premises, or any ])ai't thereof, if the BILLS TO FORECLOSE MORTGAGES. 393 Form of Decree — Pro confeaso. 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 judgment <;reditors, and their representatives and assigns wiihrnjifteen 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 filing in his office of the certificate 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 representatives 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 conveyance or conveyances as aforesaid, the said purchaser or purchasers, his or their repre- sentatives or assigns, be let into possession of the portion of said 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 j^os- 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 pr.U'tica- ble, report his proceedings in the premises to the court, at the 394 BILLS TO FORECLOSE MOETGAGES. Decree of Sale — Decree of Strict Foreclosure. first term of this court, to which time this cause is hereby continued. No. llfi. Decree of fo/'eclositre, and sale uj)on a hearing. {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 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 noM' due from the defendant C. I), to the complainant, for principal and interest on said note and mortgage, the sum of dollars. {Proceed with the ordering part as in No. 1^5, ante, page 391, from the asterish. * ) No. lJf7. Decree of strict foreclosure. {Proceed as in No. 11^6, cthove, to the asterish *, and then as follows :) And the court further finds, that the defend- ant C. D. is now wholly insolvent 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 07'dered, adjudged and decreed, by the court, ehat the defendant pay to the complainant within months ('rom this date, tlie 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, within tlie 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 conveyance ; 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 m 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 barrixl and foreclosed from all equity of redemption, and claim of, in and to said mortgaged premises, to wit: {Here descrihe the mortgaged pTemises) 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 ])art 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. For additional Illinois cases relating to foreclosure, see Dickmcui vs. Wood, 60 111. 329; Ilirds vs. BuHon, 70 IH. 504: Dowdenys,. Wihon, 71 111. 4S5 ; Terry vs. Enrt'lca Col- lege, 70 111. 23(5; De Leuw vs. Nedy, 71 111. 473; Eloch vs. Walter, 70 111. 416; Nat. Ins. Co. vs. Wdjster. S3 111. 470; Hanford vs. Blessing, 80 111. 188; Nlles vs. narmo7i, 80 111. 396 ; CaUe vs. Ellis, 86 111. 674 ; Sheen vs. Iloyan, 86 111. 16 ; Malier vs. Lanfrom, 86 111. 513; Mulvey vs. Gibhons, 87 111. 367; Ilaworth vs. Hiding, 87 111. 23; Shaver v?,. Willi am,s, 87 111. 469 ; Murch'xs. Mayers, 85 111, 177 ; Haas vs. Chicago Building Co., 89 111. 498. 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 of Bills. 5. Frame op Bill. 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 whole 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, belong- ing to the defendant, or held in trust for him, with the excep- tion above stated, which shall be discovered by the proceedings 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 filed under this and the preceding section, shall be read in evidence against the defendant on the trial of any in- dictment for fraud charged in the bill." {a) When proper. — A creditor must first obtain a judgment and seek to collect his debt by execution before he can resort to the equitable estate of his debtor, (b) 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 nulla hona. {d) But the law is other- wise, where a creditor by his bill merely seeks to remove a (a) Rev. Stat. (1874) 203; Rev. Stat. (1877) 189. (6) Ishmael vs. Parker, 13 111. 324 ; Bay vs. Cook, 31 111. 836 ; Heacock vs. Durand, 42 111. 230 ; McConnel vs. Dickson, 43 111. 99 ; Newman vs. Wil- letts, 52 111. 98 ; see Duberry vs. Clifton, Cooke, 328 ; Morgan vs. CraVb, 3 Porter, 470 ; Wright vs. Petrie, 1 S. & M. Ch. 282 ; Scott vs. Wallace, 4 J. J. Marsh. 654 ; Danna vs. Banks, 6 Id, 219 ; Wooley vs. Stone, 7 Id. 302 ; Beck vs. Burdett, 1 Paige, Ch. 305 ; McElwain vs. Willis, 9 Wend. 548 ; Screven vs. Bostick, 2 McCord, Ch. 410 ; Clark vs. Banner, 1 Dev. & Bat. Ch. 608 ; McDermot vs. Blois, Chart. R. M. 281 ; Parish vs. Lewis, 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 ; BarrotvYs. Bailey, 5 Florida, 9; U. S. vs. Sturges, 1 Paine's R. 525; Moshier vs. Meek, 80 111. 79; Lawson vs. Gruhhs, 44 Geo. 466. (c) McDowell vs. Cochran, 11 111. 31 ; Armstrong vs. Cooper, 11 111. 560; Van Syckel vs. Richardson, 13 111. 174 ; Bay va. 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. Ewing, 54 III. 236 r Eogan vs. Walker, 14 How. U. S. 29. (d) Miller vs. Davidson, 3 Gilm. 518 ; Newman vs. Willetta, 52 III. 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, {e) Justice^ s jxidgment. — 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. (/" ) 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, (-i) Upon a bill of this nature the complainant may reach the defendant's interest in the effects of a copartnership, after pay- (e) Newman ys.Willetts, 52 111. 98; WeigUman ya. Hatch, 17 111. 281; see also Greenway vs. Thomas, 14 111. 271 ; Turner vs. Adams, 46 Mo. 95 ; Webster vs. Folsom, 58 Maine, 230 ; Bailey vs. Burton, 8 Wend. 339. (/) Steers vs. Hoagland, 39 111. 264. ig) Suydam vs. Beats, 4 McLean, 12 ; Lanmon vs. Clark, Id. 18 ; Wilkin- son vs. Yale, 6 McLean, 16 ; see Babcock vs. Willard, 4 West. Law Monthly, 314. (7i) Steere vs. Hoagland, 39 111. 264. (i) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; see Craig vs. Hone, 2 Edw. Ch. 554 ; Weed vs. Pierce, 9 Cow. 722 ; Congden vs. Lee, 3 Edw. Ch. 304 ; Thomp- son vs. Nixon, lb. 457 ; Brewster \s.\Power, 10 Paige, Ch. R. 562 ; Bensotiva. 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 ; Demaree vs. Driskell, lb. 115. CREDITOE'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. (k) 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. {I) 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 file 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 or 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. (j9) So, a note held by a defendant, secured by a deed of trust on land, may be (f) Eager vs. Price, 2 Paige, Ch. R. 334. {k) Chtte vs. Bool, 8 Paige, Ch. R. 83 ; see Craig vs. Hone, 2 Edw. Ch. 554, {I) Buekcock vs. Millard, 4 West. Law Mo. 314. (m) Sainpson vs. Taylor, cited in 3 Barb. Ch. Pr. 153. {n) Browning vs. Bettis, 8 Paige, Ch. 569 ; McConn vs. Doraheimer, 1 Clarke, 144. ((?) Thompson vs. Nixon 3 Edw. Ch. 457. {p) Brewster vs. Poioer, 10 Paige, Ch.'562. 400 CREUi'JOirs 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. PAETIES 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 exjiense of the suit, {t) But a creditor cannot sue on behalf of himself and others who have no common interest with him. {u) Judgment creditors, who have exhausted their remedies at law, may unite in a bill to set aside a fraudulent assignment by their debtor, (-y) 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, {^o) 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) Cohen vs. Carroll, 5 S. & M. 545. (r) Bemaree vs. DriskeU, 3 Blackf. 115 ; BeQWeigMman vs. Hatch, 17 111. 281 ; Moritz vs. Hoffman, 35 111. 553 ; Newman vs. Willetts, 52 111. 98 ; Mugge vs. Ewing, 54 111. 236. («) Balentine vs. Beall, 3 Scam. 203. {t) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; Wakeman vs. Orover, 4 Paige, Ch. 23 ; Lentilhon vs. Moffat, 1 Edw. Ch. 451. (ti) Burney vs. Morgan, 1 Sim. & Stu. 358. («) Lentilhon vs. Moffat, 1 Edw. Ch. 451 ; BaUey vs. Burton, 8 Wend. 889 ; Dunyan vs. Vatlier, 3 Blackf. 245. {w) Clarkaon vs. DePeyster, 3 Paige, Ch. 320. OREDITOE'S BILL. 401 Parties to the Bill — Defendants. bill for his own benefit only, without making other creditors, standing in the same situation, parties, {x) Other creditors may come in after the bill has been filed ; (y) and the court should call in all the creditors of the estate to receive divi- dends, (s) 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 the assignment, {a) Defendants. — 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, {h) 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 him a party. These facts must, however, 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 to the bill ; for although his separate property'' cannot be reached directly, yet his co-defendants, if compelled to pay the debt, may claim contribution, (d) If the property of the judgment debtor, against whom an. execution has been returned unsatisfied, is in the actual pos- (x) Wakemcni vs. Grover, 4 Paige, Ch. 23; McCalmont vs. Lairrinice, 1 Blatchf. C. C. R. 232: Pennell vs. Lamar Ins. Co., 73 111. 303. {y) The Bank etc. vs. Dunyan, 2 Bland, 254 ; see Story's Eq. PI. § 99-102 ; Myers vs. Fenn, 5 Wallace, 205. {z) Kinney vs. Harvey, 2 Leigh, 70 ; Williamson vs. Wilson, 1 Bland, 418 ; Bee Brooks vs. Gibbons, 4 Paige, Ch. 374 ; Parmlee vs. Ecjan, 7 Paige, Ch. 610 ; Birley vs. Staley, 5 Gill & J. 432 ; Shubrick vs. Shubrick, 1 McCord, Ch. 406 ; Wabash & Erie Canal Co. vs. Beers, 2 Black, U. S. R. 448. (ffl) Gleason vs. Gage, 7 Paige, Ch. 121 ; Strange vs. Longley, 3 Barb. Ch^ R. 650 ; see to the contra, Storms vs. Buggies, 1 Clarke, 148. (&) Child vs. Brace, 4 Paige, Ch. R. 309 ; Commercial Bank of Lake Erie vs. Meach, 7 Paige, Ch. R. 449 ; Spear vs. Campbell, 4 Scam. 424. {c) Van Gleef vs. Sickles, 5 Paige, Ch. 505 ; Commercial Bank of Lake Erie vs. Meach, 7 Paige, Ch. R. 449. {d) Id. lb.; 2 Barb. Ch. Pr. 155; see Thomas, Trustee, vs. Adams, 80 111.37. 26 402 CREDITOR'S BILL. Parties to the Bill — Defendants. session and control of his wife, under circumstances which render it impossible to reach and obtain possession of it by a creditor's bill filed against the husband alone, it seems a bill may be filed against her and her husband jointly, so as to obtain a decree which will reach the property in her hands and compel her to deliver it up for the satisfaction of her husband's debts. (t , in said county, in iii»ety days from the date thereof, to satisfy the judgment so recovered by your orators as aforesaid, and that he should have then and there that writ. And your orators further represent that the said writ of fieri facias^ before the delivery thereof, was duly indorsed, and was afterwards, on, etc., delivered to the said sheriff, to be by him executed in due form of law. And your orators further represent, that the said sheriff, on, etc., made a return of said writ with an indorsement thereon, that, etc. {Here insert the return of the sheriff ■) as by the said writ oi fieri facias, and the sheriff' 's return as aforesaid, now on file in the office of the clerk of the said court, .will more fully appear. And your orators further represent, that the said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated ; that there is now actually and equitably CEEDITOE'S BILL. 407 Form of Bill. due your orators upon tlie same, the sum of dollars^ together with interest thereon from the date of the rendition thereof, over and al)ove all claims of the defendant, C. D., by way of set-off, or othervvi -e. And your orators further represent, that at the time of the recovery of the said judgment, against the defendant C. D., he the said C. D., was, and for several years previous thereto had been, engaged in the mercantile business at the of ; and your orators are informed and believe that in the course of the said mercantile business of the said C. D. divers persons became indebted to him, to a large amount, and that the de- fendant C. D. has, at the time of iillng this your orators' bill of complaint, debts due to him, and for which he holds divers securities and evidences, to a large amount, and has divers ■goods, wares and merchandise, or other articles of personal property, which belong to him, or in which he is in some way or manner beneficially interested, aud that he has equitable interests and things in action of some nature or kind, which might and ought to be applied to the payment of your orators^ said judgment against him, the defendant C. D. And your orators further represent, that the defendant C. D. is the owner of, or in some way or manner beneticially in- terested in, some real estate, in this or some other state or ter- ritory, or some chattels real of some name or kind, or some contract or agreement relating to real estate, or the rents, issues^ and profits of some real estate ; and also that the defendant C. D. is the owner of, or in some way or manner beneficially inter- ested in the stock of some company, incorporated or unincor- porated, or in the profits of some company or copartnership ; and also that he has in his possession, at the time of the filing of this your orators' bill of complaint, some money in coin, or bank bills; or that he has money deposited in some bank or elsewhere, to his credit ; or that he has money or securities for the payment of money, held by some other person in trust or otherwise for his benefit. And if the defendant C. D. has made any sale, transfer or assignment of his property or effects, or any part thereof, your orators expressly charge that they believe such sale, transfer or assignment is merely colorable, and made with a view of protect- ing the property or effects of the defendant C. D. so assigned,, and placing the same beyond the reach of your orators' said judgment, and enabling the defendant C D. to control and enjoy the same, and the avails thereof; and that it would so appear, if the defendant C. D. would state and set forth when and to whom such sale, transfer or assignment was made, and 408 CREDITOR'S BILL. Form of Bill. what was the amount in vahie, of the property or effects so assigned, sold or transferred, and w^hat were the terms and con- ditions upon which such sale, transfer or assignment was made, and what disposition has been made of the property or effects 80 sold, transferred or assigned, and in whose possession the same now is, or what has been done with the avails thereof. And your orators claim a full and complete discovery of all such property, effects and things in action, belonging to the defend- ant C. D., and of all trusts whereby any property, debts or •other effects are held for the use or benefit of the defendant C. D., and of every sale, transfer or assignment which the defend- ant C. D. has made of his property, debts or other effects, and ■of the person or persons to whom such assignment, sale or transfer has been made, the amount and value of the property, debts or other eff'ects so assigned, sold or transferred, and the trusts or other conditions upon which such sale, assignment or transfer was made, and all the facts and circumstances relating thereto ; and particularly what is the situation of the property, debts or other effects assigned or transferred, at the time of filing this your orators' bill of complaint. And your orators further represent, that they have reason to believe, and do believe, and so charge the fact to be, that the defendant C D. has property, debts, and other equitable inter- ests, things in action or effects, of the value of more than dollars, exclusive of all prior just claims thereon, and which your orators have been unable to reach by execution on said judgment against the defendant C. D. ; and that this your ora- tors' bill of complaint is not exhibited by colhision with the defendant C D. or with any other person, or for the purpose of protecting the property or effects of the defendant C. D. against the claim of other creditors, but for the sole and only purpose of compelling payment and satisfaction of the judgment so as aforesaid recovered by your orators against the defendant C. D. And your orators further represent, that they are informed and believe, and so state the fact to be, that L. M., IST. O., P. Q., and R. S., of, etc., other parties defendants hereinafter named, or some one or more of them, have in their possession or control, divers goods, wares, and merchandise, and other articles of personal property, which belong to the defendant C. D., or in which the defendant C. D. is in some way or manner beneficially interested ; or that they or some of them have in their possession or under their control, some money, stock, bonds, promissory notes, bills of exchange, judgments, mort- gages, deeds of trust, books of account, del)ts, evidences of indebtedness or other clioses in action, which tliey or some of CREDITOR'S BILL. 409 Form of Bill. them hold in trust or otherwise for tlie use and benefit of the said C. D., or in which he is in some way or manner benefi- cially or otherwise interested ; or that they or some of them liold in trust or otlierwise, for the defendant C D., some real estate in this or some other state or territory ; or some chattels real of some kind ; or some contract or agreement relating to real estate ; or the rents, issues and profits of some real estate ; or some stock of some company, incorporated or unincoi'porated ; in trust for, or in which the defendant C. D. is in some way or manner beneficially or otherwise interested ; and that it would so appear, if the defendants last named, would each for himself, state and set forth everything according to the best of their knowledge, information and belief, relating to any and all such Eroperty, real and personal, efi'ects, choses in action, etc., and ow, and upon what terms and conditions, and for what purpose, the same is so held by them, and all the facts and circumstances relating thereto. And your orators claim a full and complete discovery of all such property, effects and things in action, held or controlled by the said last named defendants, or by any or either of them, in trust or otlierwise, for the benefit of the defendant C. D. And that each of the said last named defend- ants shall set forth and state, the nature and description of any property, efi'ects, and choses in action, the amount, kind, value and particulars thereof, and the precise tei'ms and conditions upon which the same are so held and controlled by them, or an}^ or either of them. {Here insert such other charges as the nature of the case may seem to require^ and if any other i^ersons are sup^posed to have property ^ etc., in their possession or under their control in which the defendant is interested, charge the facts, and maTce them parties.) And your orators well hoped, that the defendant C. D. would have paid to your orators the amount due to them on their said judgment, or would have applied for that purpose any property, money, debts or other equitable interests or things in action belonging to him, or in which he is in any way interested, as in equity and good conscience he ought to have done. But now so it is, the defendant combining and confederating with divers other persons, to your orators unknown, but whose names, when discovered, they pray may be inserted herein, with proper and apt words to charge them, and contriving how to injure and defraud your orators in the premises, neglects and refuses to pay the amount so due to your orators or. their said judgment, or to apply for that purpose any pro|)erty. 410 CREDI'LYjjrS BILL. Form of Bill. money, debts, or other equitable interests or things in action, beh)nging to the defendant C. D. ; and for reason whereof the defendant 0. D. sets np a variety of unfounded pretenses. All which actings, doings, neglects and pretenses are contrary to equity and good conscience, and tend to the manifest wrong and injury of j-our orators in the premises. Forasmuch, therefore, as ycjr orators are M'ithout remedy in the premises, except in a court of equity ; and to the end that 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, fnll, true, direct and perfect answer make, to all and singular the matters and things herein- before stated and charged, as fully and particularly as if the same were here again repeated and tlie}^ severally thereto dis- tinctly 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 this 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 particuferly 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 collectable, and which and what amount bad and doubtful ; and whether at the time of filing this your orators' bill o^ 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. has 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. I), has any other equitable interests or things in action. (•!• other means belonging to him, or in which he is in any wdv interested, whereby be could pay any CEEDITOE'S BILL. 411 Form of Bill. part of the amount so, as aforesaid, due to your orators upon their said judg-ment against the defendant C. D. And if tlie defendant C. D. has made any sale, assignment or transfer of his property and effects, 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 wlioni, 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 ma}^ also severally answer make to Buch 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 your 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 l)eneficially or other- wise interested ? If yea, set forth fully and particularly the kind, number, quantity and value thereof respectively ; and state fully 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 3'ea, 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. T>. 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 which 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, encumbering, 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 of, or intermeddling w^ith, 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 Mdiere 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 from 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 with the usual powers of receivers in like cases, of all the property, equitable inter- ests, things in action, and effects of the defendant C. T>. 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 sheriff of the said county of , com- manding him that he summon the defendants C. D., L. M., ]S^. 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. I)., 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 Complainants. State of ) County of f A. B., on oatli states, that he is one of the complainants in the foregoing bill named, and has heard the same read, and CREDITOE'S BILL. 41» Form of Bill in Aid of Execution, etc. knows the contents thereof. That the matters and things in the said bill contained is true 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 CD. is required to answer all of said interrogatories except the 3d and 4th. , Sol. for Complaina/nts. 2^0. H9. Bill in aid of an execution to remove a fraudulent conveyance. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour 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. Tour 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 wit : {Here insert description.) Tour orator further represents, that on, etc., the said judg- ment remaining in full force and effect, and the damages and costs aforesaid unsatisfied, your orator, for the purpose of obtaining satisfaction of the same, caused a writ oi fieri 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 sura 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 therfr 414 CKEDITOR'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- satisfied 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., the 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, but was a mere sham, and made with the inten- tion of defrauding your orator, 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 purpose 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 entr}^ 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 CKEDITOE"S BILL. 415 Form of Bill in Aid of Execution, etc. the said C. D. and G. II., 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 that 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. II. 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 the 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 interrogatoi'ies hereinafter numbered, as by the note hereunder written, they are respectively required to answer, that is to say : 1. Whether, etc. {Here insert 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 property, 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 fieri 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 process, and for an inju7iction, and add affidavit and note, as in the last form —No. IJiS) 416 CREDITOR'S BILL. Form of Bill against Executrix, etc. No. 150. Bill hy creditor against executrix 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 liim self 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., {Here state the nature of the indebtedness i) 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, and 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., the 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 sufiicient 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, CREDITOE'S BILL. 417 Form of Bill against Executrix, etc. and the same was then and there duly probated and allowed to the said amount of dollars, by that court, as a claim against the estate of the said C. D., deceased, as a debt of the class. Tour orator further represents, that the said E. D., 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 eifects of the said testator, to a very considerable amount and value, and, together with the eifects 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, but that the said E. D. has not yet paid or satisfied the debt due to your orator, or any part thereof, and the same, together with some other of the debts owing by the said C. D. at the time of his decease, still remain unsatisfied. And the 8aid E. D., having as aforesaid possessed assets of the said C. D., much more 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 such request, as in justice and equity she ought to have done. But now so it is, may it please your honor, that the said E. D. combining and confed- erating with divers other persons at present unknown to your orator, etc., refuses to pay the debt of your orator, and alleges that the personal estate and effects of which the said C. D., deceased, was possessed of, or entitled to, at the time of hia decease, and which have come to her hands, or to the hands of any person or persons by her order, or for her use, was small and inconsiderable, and has already been exhausted in the payment of 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, with 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 payment 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 personal 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. 418 CREDITOR'S BILL. Form of Bill against Executrix, etc. rorasmiicli, thei-efore, 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 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 relating thereto, owned by the said C. D. at the time of his death, and which came into the possession or control of the defendant, or into the possession of any other person or persons for her use, and what has been 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 por- 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^ inse7'ting such interrogatories as may he deemed necessary.) And tliat an account may be taken by and under the 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 nse ; 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 towards the satisfaction of his funeral expenses, in case the same have not been satisfied, and then, etc. (as required hy law in reference to 'preference j) 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 the expense of tliis suit, equally and share alike in due course of administration ; and that a receiver may be appointed by this honorable court to collect in and receive the 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 CIIEDITOK'.S BILL. 419 Form of Order appointing Receiver, etc. estate, and from assigniTig, selling, or parting with any part of the personal estate and effects of or belonging to the said C. D., 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 premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray jprocess (Mid for injunc- tion as in No. IJfB, ante, p^ge Jf-OG.) No. 151. Order appointing a receiver in a creditor'' s suit. {Proceed as in No. 81, ante, page W^, to the asterisk*, and continue :) It is ordered that E. F., of, etc., be and he 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 benelicial interest, except such property as is by law exempt from execution ; and, also, except where such trust property has, in good faith, 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- scril)ed in the complainant's bill, to wit : {Here describe it,) and the rents, issues, incomes and profits thereof, with the usual powers and duties of receiver, upon the said receiver executing and filing 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. I), 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 eftects, 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 such property and efi'ects ; 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 420 CREDITOR'S BILL. Order of Reference — Decree, etc. described, and of the rents, issues and profits thereof. And that the defendant C. D., and his tenants, etc., attorn to the said receiver, and pay to him the rents and profits, and that the said receiver have power to make leases of such real estate, from time to time, not exceeding one yeai', as he may deem advisable. And that the defendant appear before the said master in chan- ery, as he shall be summoned or required 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 varied 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. No. WB. Order referring creditor'' s hill to master^ to examine defendant and witnesses. {^Proceed as in No. 81, ante, page ^03, to the asterisk*, 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 witnesses as shall be produced before him under oath, and upon interrogatories, concerning the property, chattels, things in action, equitable interests, and effects of the defendant,. C. D., and to report the same to this court 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 which he may lawfully be required ta disclose ; and that the said master, or either party, be at liberty to apply to the court at any time for further directions. No. 153. Decree that complainants debt he pcdd out offund» in the hands of the receiver. {Caption, and title of cause as ^V^. No. 79, ante, page 198.) This cause having come on to be heard upon 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 CKEDITOR'S BILL. 421 Form of Decree. cause, which said reports are each hereby approved and con- firmed ; and this cause having been argued bv the counsel for the respective parties ; and the court being fully advised in the premises, doth order., adjudge and decree., that 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 disbursements and commissions, 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. D., to the end that said judgment may be canceled and discharged of record. {If there is no other claimant upon the fund in the hands of the receiver., add:) And it is further ordered, adjudged and decreed, that the said receiver do pay over to the defendant C D. the residue of the moneys so remaining in his hands, or account with him for the same, and deliver to him all and singular the property and effects, books of account, evidences of debt, or other papers or documents relating to said trust estate, on demand of the defendant C. D. ; and also, if the defendant C. D. shall so require, that the said receiver execute back to him a general release and assignment of all and singular the property, equit- able interests and effects, of said trust estate, remaining in his hands undisposed of. On which assignment and delivery being made, it is adjudged that the said receiver be discharged from his said trust. If the amount in the receiver's hands is not sufficient to pay the debt and costs, the decree must of course be varied to meet the facts, and will merely direct the receiver to pay the amount so collected upon the judgment, and take the complainant's receipt therefor. If assets, etc., remain undisposed of, the court may direct their sale and application. If there are other claimants 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 the -defendant, will direct it to be brought into court, to abide its further order. 422 CEEDITOR'S BILL. Form of Decree in Aid of Execution. No. 15 Jf-. Decree setting aside a fraudulent conveyance in aid of an execution. {Caption, and- title of cause as in No. 79, Sinte,page 198.) This cause coming 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 alleged 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 G. H., for the premises described therein, and in the complainant's bill, to wit: {Here describe the premises^ 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, and that the sheriff 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 C. D. 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 against the defendant C. D. For additional Illinois eases in relation to creditor's bills, see Iliggins vs. Curtiss, 82 111. 28 ; Lewis vs. Lamphere, 79 111. 187; Burham vs. Lamar Ins. Co., 79 111. 160; White vs. Ilussell,1'd 111. 155; Phel2?s vs. Curtis, 80 111. 109; Gould vs. Steinliiry, 84 111. 170. CHAPTER XXX. PARTITION SUITS. Section 1. Nature of, and how Instituted. 2. Parties to. 3. Bill or Petition. 4. Process op Appearance in. 5. Interpleader. 6. Decree for Partition. 7. Proceedings by Commissioners. 8. Exceptions to Report of Commissioners. 9. Decree of Sale. 10. Exceptions to Report op Sale. 11. Confirmation op Sale. SECTION I. NATTJKE OF, AND HOW INSTITUTED. Partition is tlie severance of common or undivided interests. It is particularly applied to interests in realty. At common law lands held by two or more persons were held by them either in joint tenancy, in common, or in coparcenary. The first two of these estates were created by the act of the parties. The last was created by operation of the law, when in casting 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 which the common law would compel a dissolu- tion 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 justly 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 perverseness ot his fellows, the law will lend its aid, if he ask it, and help him by partition, to the enjoyment of his separate interest. 424 PARTITION SUITS. Nature of, and how Instituted. In the reign of Henry YIII, (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 partition then became incident to all estates held in common. In the United States the technical joint tenancy is quite obsolete ; joint ownership being, if not under express statute, yet in efi'ect, only tenancies in common. So, also the technical distinctions between estates in common and in coparcenary have 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 tin's remedy is extended by statutes beyond the limits lixed for it by the common law, or the statute of Henry YIII. Partition in England was made either 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 tlie 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 pi*eference of 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 tlie separate, though unequal, parcels of the estate, assigning to the several parties the por- PARTITION SUITS. 425 Nature of — Statute of Illinois. tions which will best suit their respective condition, equalizing such a partition by decreeing pecuniar}' compensation to be made, or in other cases ordering equitable payments by some for im- provements made in the common property of others. This jurisdiction is exercised with peculiar litness in all cases where purely equitable rights, conflicting claims of parties, or modes of enjoyment are to be adjusted, {a) This distinctive feature, favorable 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 by 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 apportion incumbrances among the parties to whom the incumbered premises are allotted." (b) This is a substantial revision of the acts of February 12, 1861, and February 28, 1867. (c) 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 \s. Goim\ 19 II]. 608; Walker vs. Laflin, 26 111. 472; Wilton vs. Tazewell, 86 111. 29; Labldie vs. Hcwett, 85 111. 341. (6) Rev. Stat. (1874) 753; Rev. Stat. (1877) 710; Henrkhsen vs. Huluen, m 111. 170. (c) Laws of 111. 1861. p. 177; Laws of 1867. 426 PARTITION ^THTS. Parties to — Complainant or Petitioner. any one or more of tlie persons interested therein may compel a partition tliereof by bill in chancery, as heretofore, or by petition in the circuit conrt 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 II. PARTIES TO. ComplaiMCLnt or petitione7\ — A party seekmg a 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." {e) 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 to 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) Rev. Stat. (1874) 749; Rev. Stat. (1877) 707. (/) Rossv^. Cobh, 48 111. Ill; Schneider vs. Seibert, 50 111. 284; Williams vs. Wlggand. 53 Kl. 233 PARTITION SUITS. 427 Parties to — Complainants, etc. — Defendants. chancery against those claiming adversely, making them and the otlier tenants in coinmon 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. (Ji) But a suit cannot be maintained by a person who has merely a future contingent interest in an undivided share of the property. (^) 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) Defendants. — The statute of Illinois requires that " Every person having any interest, whether in possession or otlierwise, 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 ; {¥) but inasmuch as the statutes have author- ized the court to decree a sale, which will giye 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. {I) All persons having an interest in the subject matter of the {g) Ross \s. Cohh AS IW.m. (h) Scoville vs. Billiard, 48 111. 453 ; Hilliard vs. Scoville, 52 111. 449. (t) Striker vs. Mott, 2 Paige, Cli. 387. (j) Williams vs. Wiggand, 53 111. 233 ; see Leverton vs. Waters, 7 Coldw. Tenn. 20 ; Oourlcy vs. Woodbury, 43 Vt. 89. {k) Wclton vs. Copeland, 1 Johns. Ch. 140 ; Sebring vs. Mersereau, Hopk. Ch. 501 ; Haricood vs. Kii-hp, 1 Paige, Ch. 469. (I) Loomis vs. Riley, 24 111. 307 ; see Kilgour vs. Crawford, 51 111. 249. 428 PARTITION SUITS. Parties to, etc. — Bill or Petition, etc. proceedings must be made parties, or they will not be bound by the judgment, except as a color of title under the statute of limitations, (m) Unknown defendants. — 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 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. " 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." Purchaser pedente lite. — A purchaser from one of the parties to a pending suit for partition acquires his interest in the property, subject to such decree as may be rendered on the hearing. Thus a mortgagee is limited to that portion allotted to his mortgagor, {n) SECTION III. BILL OK PETITION. Form of jpetition. — 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 {m) Hassett vs. Ridgely, 49 111. 197; see Eester vs. Stark, 19 111. 328; Hickenbotham vs. Blackledge, 54 111. 316. («) Loomis vs. Riley, 24 111. 307 ; see Jackson vs. Warren, 32 111. 331 , Dickson vs. Todd, 43 111. 504; Roberts vs. Fleming, 53 111. 196; see Smith vs. Cratvford, 81 111. 296. PARTITION SUITS. 429 Bill or Petition — Form of Bill. to the petitioners, 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 the 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." (. 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. {Add affidavit) 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 prem- ises ;) and being so seized and possessed as aforesaid, the said E. F. departed tliis 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 his last will and testament in due form of law, and duly 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, subject to a life estate therein of his mother, B. F., 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 last will and testament of the said E. F., was afterwards, on, etc., duly 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, i-eference thereto being had. Your orator and oratrix further represent, that the said A. 432 PAKTITION SUITS. Form of Bill. F., on, etc., departed this life intestate and without lawful issue ; leaving your oratrix, the said B. B., wife of your orator, A. B., S. M., widow of C. M., deceased, J. B., C. I), and M. W., his only heirs at law him surviving. And your orator and orati'ix further represent, that the said B. F., widow of the said E. F., the testator aforesaid, 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, S. M., widow of C. M., deceased, J. B., C. D. and M. W., the only heirs at law of the said A. F., as tenants in common in fee. Your orator and oratrix further represent, that on, etc., and subsequent to the death of the said A. F., the said J. B. and S. B., his wife, by their 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 orator, A. B., as the grantee of the said J. B., is seized of and entitled to an undivided part thereof j that your oratrix, B. B., in her own right, is also seized of, and entitled to an undivided part thereof, etc. {S^ere set forth the interests of all the parties}) Tour orator and oratrix further represent, that the 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 thereof, in possession, remainder^ reversion or otherwise. And your orator and oratrix further represent, that they are desirous that a division or partition of the said described prem- ises should be 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 parties, according to their respective rights and interests ; and for that purpose have made frequent applications to the other owners thereof. And your orator and oratrix well hoped that they would have come to an equitable division and partition, as requested by your PARTITION SUITS. 433 Bill for Partition and Dower. orator and oratrix, 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 oratrix, 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 and oratrix are without remedy in the premises, except in a court of equity ; and to the end that the said S. M., C. D. and M. W., 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 under oath heing hereby waived j that the parts or shares justly belonging to your orator and oratrix, and all the other owners hereinbe- fore named, of, in and to the aforesaid premises, may be settled and ascertained by and under the direction of this court; and tfcat a fair division and partition thereof may be made between your orator and oratrix and all other persons who shall appear to be owners of or interested therein, according to the respective rights and interests of each therein; and that proper commissioners may be appointed to make division and partition of the said premises among the parties interested therein ; or, in case a partition thereof, or any part thereof, by metes and bounds, or a division cannot be made without manifest prejudice to the owners, then that the same, or such parts thereof as cannot be so divided and partitioned, may be sold by and under the direction of this court, and that the proceeds of the sale, after paying the costs and charges of this suit, may be divided among the owners thereof according to their several rights and interests therein ; and that, to that end, the rights and interests of the parties interested in the said premises, or in the proceeds of the sale thereof, may be ascer- tained and declared by the order or decree of this court ; and that your orator and 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, etc. {Prayer for process, etc., aa m I^o. 155, ante, page Jf.'29.) No. 157. Bill for partition and dower. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your oratrix, A. B., and your orators, B. B. and C. B., of, etc., respectfully represent unto your honor, that on, etc., one E. B., 28 434 PARTITION SUITS. Bill for Partition and Dower. late of, etc., departed this life intestate, leaving your oratrix A. B., his widow, and your orators, B. B. and C. J3., his sons, and F. B., G. B. and H. B., his daughters, and only children and heirs at law ; that at the time of his death the said E. B. was possessed and seized in fee simple of the following described real estate, to wit : {Here describe the premises /) and that the said E. B. derived title to the said premises in the manner fol- lowing, to wit : {Here set forth the chain of title.) And your oratrix and orators further represent, that no per- son or persons, other than your oratrix and orators, and the said F. B., G. B. and H. B., have any interest in, or title to, the said described premises, or to any part thereof, in posses- sion, remainder, reversion or otherwise. Your oratrix and orators further represent, that the said O. B. and H. B. are minors under the age of years; and that no legal guardian has been appointed for them, by reason whereof the said G. B.and H. B. are severally incompetent to join in a voluntary partition and division of said premises, and to set apart the dower of your oratrix therein, or to consent to a sale thereof; and, as your oratrix and orators are advised, no valid division and partition, or assignment of dower, or a sale of said premises can be effected without the aid and interpo- sition of some court of competent jurisdiction. Forasmuch, therefore, as your oratrix and orators are without remedy in the premises, except in a court of equity ; and to the end that the said F. B., G. B. and H. 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 heing hereljy uiaived; that a guardian ad litem may be appointed by the court for the said inflmt defendants ; that the dower of your oratrix in the said premises may be assigned and set apart to her ; and a division and partition of the residue thereof may be made by and under the direction of this court, between your orators B. B. and C. B., and the defendants F, B., G. B. and II. B., according to their respective rights and interests therein, to be adjudged by the court ; and that in case an assignment of dower, and division and partition in the said premises cannot be made without manifest prejudice to the parties interested, that the same may be sold, under the direc- tions of the court, and the proceeds thereof distributed between the parties, according to their respective interests ; and that your oratrix and 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, etc. {Prayer for process as in No. 166^ ante, page Jf!29, and add affidavit^ PAKTITION SUITS. 435 Petition for Partition — Affidavit to. No. 158. Petition for ^partition. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petitioners, C. D., E. F. and G. H., of, etc., respectfully represent unto your honor, that your petitioners, together with K. L. and M. N., of, etc., are the owners in fee simple as tenants in common, in equal parts, of the following described real estate, to wit, etc. : [Here describe the real estate.) That they derived title to the said premises in the following manner, that is to say, [Here set forth the chain of conveyances through which the parties claim title, or other facts showing their right or title to the land^ which said title, or evidence thereof, your petitioners are ready to produce and show on the hearing here- of, as this honorable court may require. And your petitioners further represent, that no person or persons, other than your petitioners and the said K, L. and M. N. have any interest in, or title to, the said land or any part thereof, in possession, remainder, reversion, or otherwise. And your petitioners further represent, that the said K. L. and M. N. are minors under the age of twenty-one years. Your petitioners, therefore, pray that a guardian ad litem may be appointed by the court for said minors, that process of sunJ- mons may issue against the said K. L. and M. N., returnable at the next term of this court. Your petitioners further pray, that upon a final hearing of this cause, your honor will order and decree a division and partition of said premises, according to the respective rights of the parties interested therein ; and in case the court shall find that said premises are so circumstanced that a division thereof cannot be made without manifest prejudice to the par- ties interested in the same, that a sale thereof be ordered, in accordance with the statute in such case made and provided. O. P., Solicitor for Petitionei^s. C. D. E. F. G. H. State or Illinois, ) County of j C. D., of the county and state aforesaid, being duly sworn on oath, says, that he is one of the petitionei's to the foregoing petition, and that the matters and things in said petition con- tained are true in substance and in fact. C. D. Subscribed and sworn to before me, this day of , A. D. 18 — . 436 PARTITION SUITS. Piocees of Appearance — Summons — By Copy, etc. SECTION IV. PROCESS OF APPEARANCE EN. The statute of Illinois, revised in 1874, in respect to process and service on defendants in partition suits, is as follows : How summoned.'—'''' The defendants to any such petition shall be summoned in the same manner as defendants in suits in chancery." (^) Unknown parties. — "Unknown owners, or parties in inter- est, of the premises, and the unknown heirs of any such persons, may be notified by advertisement, as in cases in chancery." if) Absent defendants. — "When it shall appear by affidavit, filed, as in cases in chancery, that any defendant resides, or has gone out of, this state, or, upon due inquiry, cannot be found, or is concealed within this state, so that process cannot be served on him, and the affiant shall state the place of resi- dence of such defendant, if known, or that upon diligent inquiry, his place of residence cannot be ascertained, he may be notified in the same manner as in such case in chancery." (s) Service hy copy of petition. — " Non-resident defendants may be served by a copy of the petition in the same manner that such defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case provided." {f) q) Ante, pp. 74-77; see Nichols vs. Mitchell, 70 111. 258. (r) Ante, p. 81. (s) Ante, pp. 77-79. (t) Ante, pp. 79-81. PARTITION SUITS. 437 Interpleader — Decree for Partition — Hearing. SECTION V. INTEKPLEADER. The 14th section of the revision of the statute of Illinois provides that " During the pendency of any such suit, any person claiming to be interested in the premises to be assigned or aparted may appear and answer the petition, and assert his or her rights by way of interpleader ; and the court shall de- cide upon the rights of persons appearing as aforesaid, as though they had been made parties in the first instance." If the proceeding is under the statute any party in interest may interplead at any time previous to the final disposition of the case, and all orders and proceedings may be altered so as to meet any new facts presented by new parties, {u) A creditor of one of the parties having a lien on the premises to the extent of the share of his debtor, has a right to file his bill in the nature of an interpleader in the case, (v) Liens on sha/res of part owner. — The 24th section of the statute provides that " A person having a mortgage, attach- ment, or other lien on the share of a part owner, shall be concluded by the judgment in partition, so far as it respects the partition and the assignment of the shares ; but his lien shall remain in full force upon the part assigned to or left for such part owner." SECTION VI. DECREE FOR PARTITION. The statute of Illinois, revised in 1874, provides as follows, in relation to the hearing, and decrees of the court : Searing. — (§ 15.) " The court shall ascertain and declare the rights, titles and interests of the parties to such suit, the peti- (m) Kester vs. Starh, 19 111. 328. (r) Schneider vs. Seibert, 50 ILL 284; see Hards vs. Burton, 79 111. 504. 438 PAETITION SUITS. Decree — Appointment of Commissioners — Dower. tioners as well as the defendants, and shall give judgment according to the rights of the parties." {w) Ajppointment of cowmvissioners. — (§ 16.) " The court,when it shall order a partition of any premises to be made, under the provisions of this act, shall appoint three commissioners, not connected with any of the parties, either by consanguinity or aflBnity, and entirely disinterested, to make partition of the premises. (§ 20.) " The commissioners shall at all times be subject to the direction of the court ; and any one or more of them may, before the iinal confirmation of the report, be removed, and others appointed in their stead. (§ 21.) " If the lands lie in different counties, the court may appoint separate sets of commissioners for each county, or one set for all of them, as may seem most for the benefit of the parties interested." A co-tenant is entitled to a decree in his favor for rent in arrear, if his right thereto is clearly established, {x) And where an incumbrance has been paid oft' by one tenant in com- mon, he has a lien therefor, and his rights will be protected by the court, {y) If a portion of the premises has been improved by a co-tenant, that portion should be set off" to him if practicable, without taking into consideration the value of the improvements, {z) Where land descends to the wife, the decree should direct it to be set off to the husband and wife in right of the wife, or to her alone, not to them jointly and in fee. («) 'Allotment of dower or homestead. — (§ 22.) " If dower has not been allotted to the person entitled thereto, or the homestead set off, in case any party to the suit is entitled to an estate of homestead in the premises, or any part thereof, such dower may {w) See Hickenhotham vs. Blackledge, 54 111. 316. {x) Eaickins vs. Taher, 47 111. 459. (2/) Tittsjcorth vs. Stout, 49 111. 78. (z) Dean vs. O'Meara, 47 111. 120 ; see Kurtz vs. Hibner, 55 111. 514. {a) Coat vs. Rose, 17 111. 276. PAETITION SUITS. 43* Costs Apportioned — Form of Decree for Partition. be allotted, and such homestead set off by the commissioners;, and if the court sliall so direct, the premises so allotted or set off may be partitioned among the claimants subject thereto." « Costs ajpjportioned. — According to the statute (§ 40), " In all proceedings for the partition of real estate, the court may apportion the costs, including the reasonable solicitor's fees^ among the parties to the proceeding, so that each party shall pay his equitable portion tliereof." No. 159. Decree for partition. {Caption, and title of caxise 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 report of the master in chancery, to whom this cause w^as hei-etofore referred to take the proofs therein, which said report is hereby approved and confirmed by the court; and the court having heard the arguments of counsel for the respective parties, and being fully advised in the premises, doth find, that, etc. ; {Here insert the finding of the court, as set out in the hill,) and that the allegations in the bill contained are true ; and that parti- tion and division ought to be made as therein prayed. It is therefore ordered, adjudged and decreed, by the court, that the complainant A. B. and the defendant D. B., are each entitled to one-half of the said premises, to wit ; {Ilere descrihe the land,) suliject to the dower of the said C. B., widow of the said B. B., deceased, in fee sim.ple ; and that a division and partition of said premises be made ; and that E. F., G. H. and L. M., of, etc., neither of whom appear to be connected with any of the parties by consanguinity or affinity, and who are entirely disinterested, be and they are hereby appointed com- missioners to make partition of said premises; that each of said commissioners take and subscribe an oath or affirmation, as required by law, to tairly and impartially make partition of the said premises, according to the rights and interests of the parties, as herein declared by this court, if the same can be done consistently with the interests of the parties; or if the same cannot be so divided, without manifest prejudice to the parties in interest, that they will fairly and impartial!}' appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court ; that the said com- 440 PARTITION SUITS. Form of Decree for Partition. missioners shall go upon the premises, and if the same are sus- ceptible of division, they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according their respective rights and interests as hereby adjudged, designating the respective shares by metes and bounds, or other proper description, and that they employ a surveyor with necessary assistants to aid therein ; and if the premises are not susceptible of division, without manifest prejudice to the parties in interest, they shall value each piece or parcel separately ; and that they report their actings and doings in the premises, under their hands and seals, to the court, as soon as practicable. No. 160. Decree for partition. {Caption, and title of cause as in No. 79, ante, page 198.) This day came the petitioners, by L. M., their solicitor, and the defendants P. Q. and R. S., by T. V., their guardian ad litem ^ and it appearing to the court that the defendants were each duly served with process of this court more than ten days prior to .the commencement of the present term; and the court having appointed T. Y., Esq., guardian ad litem for the infant defendants; and the said guardian ad litem having filed an answer to said petition, and the petitioners their replication thereto ; 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 petition, and to report the same to the court; and the said master having made report, which is hereby approved and confirmed. And this cause coming on to be heard u]ion the petition, answer of the defendants, by T. v., Esq., tlieir guardian ad litein, and the replication thereto, together with the testimony taken, and reported to the court by the said master ; and the court having heard the arguments of counsel, and being fully advised in the premises, and, on consideration thereof, doth find, etc. {Here state the facts set out in the petition, which m.ay he as follows :) That the petitioners and the defendants are the owners in fee smiple as tenants in common, in equal parts, of the following described real estate, to wit: {Here descrihe the land.) That they derived title to the same from, etc. {Here set forth the source of title^ That no person or persons, other than said parties, liave any interest in, or title to, the said hinds, o • any part thereof, in possession, remainder, ivveTsioii oi- otherwise. The court doth therefore o-der. adjudge and decree tliat the eaid petitioners C. D., I*]. 1"'. .•md G. H., and the defendants PAETITION SUITS. 141 Form of Decree for Partition and Dower. P. Q. and R. S., are each entitled to one-fifth part of said premises in fee simple; and the court dotli further order, adjudge and decree that a division and partition of said premises he made ; that B. A., D. C. and F. E., neither of whom appear to he connected with any of the parties, either by consanguinity or affinity, and who are entirely disinter- ested, he, and they are hereby, appointed commissioners to make partition of said premises ; each of said commissioners shall take and subscribe an oath, 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 parties in interest, they will value each piece or parcel separately, and make report under their hands and seals to the court, during the present or next suc- ceeding term tliereof. No. 161. Decree for partition and dower. ( Caption, and title of cause as m Ho. 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 fui-ther 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 litem having filed his answer herein, and the complainants their replication thereto; and the defcTidant 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 jyro covfesso 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 ui.ister 442 PARTITION SUITS. Form of Decree for Partition and Dower. having made his report, which is hereby approved and con- firmed ; and this cause coming on to be heard npon 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 the bill taken as confessed against the defend- ant F. B.; and the cause having been argued by counsel ; and the court being fully advised in the premises, on consideration there- of, doth find, etc. {Here state the/acts as they appear, which may he as follows :) That 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., (t. 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 descrihe 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 any part 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 0. B., and the defendants F. B., G. B. and H. B., are each entitled to one- fifth part of said pi'eraises, 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 IT. 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 hereby appointed commissioners to assign dower and make partition of said premises; each of said commissioners shall take and subscribe an oath or affirmation as required by law, and to go upon said premises, and first set ofi', allot and assign to said A. B. her dower in said premises, by metes and bounds, or other pro])er 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 such tracts, in such manner as they may deem best for all per- PARTITION SUITS. 443 Proceedings by Commissioners — Oath Required. sons interested ; and, secondly, after assigning the widow's dower, as aforesaid, said commissioners are ordered to make division and partition of tlie remainder of said premises be- tween the said B. B., C. B., F. B., G. B. and H. B., respect- ively, assigning to each one-tifth part thereof by metes and bounds, 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 shall find that said premises are so circnmstanced that dower cannot 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, nnder their hands and seals, to the court during the present or at next term thereof. SECTION VII. PKOCEEDINGS BY COMMISSIONERS. Required to take an oath. — The 19th section of the statute requires that " Such commissioners shall each take and sub- scribe an oath or affirmation fairly and impartially to make partition of the premises, according to the rights and interests of 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 preju- dice to the parties in interest, that they will fliirly and impar- tially appraise the value of each piece or parcel of the premises sought to be divided, and a true report made to the court." The commissioners should take the oath or affirmation as required by the statute, and proceed in conformity thereto, (b) Where the oath and report of the commissioners bore date previous to the date of the decree appointing them, the pro- ceeding was held, in a direct proceeding, to be erroneous, although the report was subsequently approved by the court, (c) (6) Tibhs vs. Allen, 27 111. 119 ; see Durham vs. Mulkey, 59 111. 91. (c) Sullivan vs. Sullivan, 42 111. 315. 444 PAKTITION SUITS. Form of Oath of Commissioners — Duty of CommisBioners. No. 16'2. Oath of commissioners. In the Court. A. B. et al. ) Term, 18—. 'VS. y for Partition. C. D. et al. ) State OF Illinois, ) County of f ^^' I do solemnly swear {or affirm) that I will fairly and im- partially make partition of the premises mentioned in the decree rendered by the court in the above entitled cause, on, etc., according to the rights and interests of the parties, as de- clared therein by the judgment of the court, if the same can be done consistently with the interests of the parties ; or if the same cannot be so divided without manifest prejudice to the parties in interest, that I will fairly 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, so help me God. B. A. D. C. F. E. Subscribed and sworn, etc. Duty of commissioners. — The 18th section of the statute provides that " the commissioners shall go upon the premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court, designating the respective shares by metes and bounds, or other proper descriptions, and they may employ a surveyor with neces- sary assistants to aid therein ; and if the premises are not sus- ceptible of division without manifest prejudice to the parties in interest, they shall value each piece or parcel separately." The commissioners may set off part of the premises to some of the parties to the proceeding, and recommend the sale of the remainder for the benefit of the others, as the interests of the parties may require, {d) Where a portion of the premises has been improved by one id) Kester vs. Stark, 19 111. 328, 330; see Greenup ys.Sewell.lS 111.51,53. PARTITION SUITS. ' 445 Report of Commissioners — Form of Report. of the parties, such portion should be set off to him, without taking into consideration the value of such improvements, {e) The 23d section of the statute provides that, " Several parties interested in the premises may, if they so elect, have their shares set off together or in severalty." Report of commissioners. — 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 find 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. (/*) And where the land is to be divided it must be under seal ; but where the land is reported as not susceptible of division, a seal is not required. (^) No. 163. Report of commissioners making partition^ etc. In the Court. A. B. et at. \ Term, 18—. vs. \ In Chancery for Partition. C. D. et al. ) 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 taken and subscribed an oath [or affirmation) fairly and impartially to make 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'Meara, 47 111. 120; Km-tz vs. Hihner, 55 III. 514; Row- man vs. Bowles, 19 111. 21; Louvalle \s. Menard, 1 Gilm. 39; Roberts vs. Beckwith, 79 111. 246. (/) Tlhhs vs. Allen, 27 111. 119; Dnrham vs. Mulket/, 59 111. 91. ig) Sullivan vs. Sullivan, 42 111. 315. 446 PARTITION SUITS. Form of Report of Commissioners, etc. could not be so divided without manifest prejudice to the par- ties in interest, that we would tairly 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, — wdiich 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 describe the part so allotted by metes and bounds, or other proper 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, wath necessary assistants to aid therein, in making 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 which 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 — . daj ^of ■"» B. A. L.S •1 D. C. L.S •1 F. E. L.S •] {Attach the oath, schedule A, and exhibit B.) 1^0. 161},. Report of commissioners that the premises are not susceptible of division. {Proceed as in last form, No. 163, to the asterisk^, and then) 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 of division without manifest prejudice to the parties in interest. We further report that we have fairly PARTITION SUITS. 447 Decree Confirming Report of Commissioners. and impartially appraised the value of each piece or parcel of the premises sought to be divided, and lix the value of each piece or parcel se]:)arate]y, as follows, that is to say, we lix the value of, etc., {Here deser'ilje the piece or parcel^ at dol- lars ; and of, etc., {Here 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 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. AH of which is respectfull}' submitted. In witness whereof, we, the 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 oath and schedule A.) N'o. 165. Decree conrfi/rming report of coTnraissionei's. {CajAion, and title of cause as in iVo. 75, ante, p)^9^ 198.) This day came B. A., D. C. and F. E., commissioners, appoiuted 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 w^as 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 off and assigned to each, respect- ively, by the said commissioners, and that the title to the shares set off 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 proportions, to wit : That, etc., {Here set out the 448 PARTITION SUITS. Exceptions to Report of Commissioners — Decree of Sale. proportions each party is required to pay /) and that the same be paid within da3's from this date, and in default thereof, that execution issue therefor. SECTION VIII. EXCEPTIONS TO REPORT OF COMMISSIONERS. On filing of the report of the commissioners in partition, either party may file 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 justify. 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 afiidavit, (A) SECTION IX. DECREE 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 the premises 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 : Provided, 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) Rigga vs. Dickinsoti, 2 Scam. 438. PARTITION SUITS. 449 Decree of Sale — Dower Interest — Unknown Owners. shall be taken instead of the valuation of the commissioners first appointed. (§ 28.) " The court may direct the sale to be made for cash or on such credit as may be deemed most fur 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, etc. — 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 life or for 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 filed 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 the 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 the 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 tlie protection of the rights of such person, in the same manner, as far as may be, as if the person were known and had appeared. (i) McLain vs. Van Winkle, 46 111. 406. d9 450 PARTITION SUITS. Form of Decree of Sale. (§ 36.) " Where a sale of premises' is made, and no perBon appears to claim sucli portion of the money as may belong to any non-resident or person whose name is nnknown, the court shall require 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 premises. {Caption, and title of cause as in No. 79, B,nte,page 198.) This day came again, the petitioners {or complainants), by L. M., their solicitor, and the infant defendants E. F. and G. H., by R. 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 court 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 iind 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 tlie report of said commissioners, and the court having heard the arguments of counsel, -and being fully advised in the j^remises, and on consideration thereof, dotJi order, adjudge and decree that the said premises, to wit : {Here descrihe 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-thirds of the valuation put upon the same, as shown by the report of the commissioners liere- tofore a])]»ointed by the court to make partition thereof, which said sale shall be made on the following terms: {Here set onxt tlie terras of sale.) That the master in chancery of 1 PARTITION SUITS. 451 Exceptions to Eeport of Sale — Confirmation of Sale. this court be, and he is hereby directed to make said sale, and to carry into eifect 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 sale, 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 EEPOKT 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 confimied. {j ) SECTION XI. CONFIRMATION OF SALE. (§ 30.) " Upon the confirmation of the report of the master, special commissioner or other officer 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 efiectual (j) Tibbi vs. Allen, 29 111. 535 ; see Dunning vs. Dunning, 37 111. 306 ; Comstoek vs. Purple, 49 111. 158. 452 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 tn partition. {Caption, and title of cause as in No. 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 sale 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. For additional Illinois cases in relation to partition, see Fight vs. Hall, 80 111. ^^\ Turner vs. Bennett, TO 111. 263; LeMoyne vs. Quhnhij, 70 111. 399 ; III. L. & L. Co. vs. Bonner, 75 111. 315; Wad/ta?ns, vs. Gay, 73 111. 415; Ningshury vs. Buchier, 70 111. 514 ; Nichols vs. Padfield, 77 111. 253 ; La- hidie vs. Hewitt, 85 111. 341. CHAPTER XXXI. PBOCEEDINGS FOR DOWER. Section 1. Nature op Dower. 2. In what Property Dower Attaches. 3. Dower, how Barred. 4. Elements and Incidents op Doweb. 5. Suits por Dower. 6. Frame op Petition. 7. Process op Appearance in. 8. Interpleader. 9. Hearing and Decree. 10. Commissioners to Assign Dower. 11. Allowance in Lieu op Dower. 12. Damages por Refusal to Assign Dower. 13. Mode op Ascertaining Value op Dower. 14. Miscellaneous Provisions op the Statute. SECTION I. NATURE OF DOWER. Dower is an estate for life which the law gives 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 FOR DOWEl. Nature of Dower. ostium ecclesicB, and ex assensu patris. Both of these endow- ments were made at the porch of the church, after aflBance 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 fether, he endowed her of lands belonging to the father ; and it was usual to specify 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 by 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 ecclesice 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 tlie wife should be entitled to one-third of the lands of tlie 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 tlie 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 ecdesicB. 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 ostium ecclesicB 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.) PKOCEEDINGS FOE DOWER. 455 Nature of Dower. Dower at common law is ditferent from the dotation of other countries, in being limited wholly to lands, and to such only as the hnsband holds in fee. By the civil law the donatio ante nuptias 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 the 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 dottaire ; 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 coidumiere, 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 husband if he left any. Philip Augustus, (A, D. 1484,) fixed the dower of the wife at one-half of the goods wdiich 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 Loire, nntil the customary law was swept away by the 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 456 PEOCEEDINGS FOR DOWER. Nature of Dower. into common 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 {la 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 IV, ch. 105, the widow is not entitled to dower of lands which the husband has disposed ot 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 New York, Blinois, and most other states, dower is a charge upon all the lands of which tlio 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 bj the husband. In some of the states, as Yermont, 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 b}^ will, nor by a voluntary conveyance, in which 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. IN WHAT PKOPEKTT DOWER ATTACHES. 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 wnfe shall be endowed of the third part of all the lands whereof 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) Damnport vs. Farrer, 1 Scam. 314; Strihlitig vs. Ross, 16 111. 123. 458 PROCEEDINGS FOR DOWER. In what Property Dower Attaches. presently existed in liim, wliicli 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. {!>) 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 trust, and will revive the right of dower in the widow, although the wife had joined in the deed of trust. (A) 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) Where a person holds land in trust for another, the wife of {b) Nichol vs. Ogden, 29 111. 377; see Xichol vs. Miller, 37 111. 388; Atkin V6. Merrell, 39 111. G2; Stowe vs. Sieeh, 45 111. 328; Gale vs. Klnzie, 80 111. 133. (c) Summers vs. Bahh, 13 111. 483; Gove vs. CcHher, 23 III. 634. {d) Davenport vs. Fqrrer, 1 Scam. 314. (e) Owen vs. Bobbins, 19 111. 545; Morse vs. Thorsell, 78 111. 600. (/) Porter vb. Mdng, 24 111. 617 ; Owen vs. Bobbins, 19 III. 545 ; Woolly VB. Magie, 26 111. 526. (g) Stowe vs. Steele, 45 111. 328. (h) Gove vs. Gather, 23 111. 634 (i) Schnebly vs. Schncbly, 26 111. 116. {j) Atkins vs. Merrell, 39 111, 62 ; Stowe vs. Steele, 45 111. 828; Steele vs. Magie, 48 111. 396; see Strawn vs.,Strawn, 46 111. 412. (A) Bonners 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 ijruua facie entitled to dower. (/) Aliens entitled to dower. — The 2d seciion of the revised dower act provides that " The surviving husband or wife of an alien shall be entitled to dower the same as if such al.c-n had been a native born citizen of the United States." Dower in lands mortgaged hefore marriage. — The statute provides : (§ 3.) " Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before 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 'purchase money. The statute is as follows : (§ 4.) " Where a husband or wife shall pm'chase lands dur- ing coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, the surviving Avife or husband shall not be entitled to dower in such lands, against the mortgagee or those claiming under him, altliough she 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 mortgagee, 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 (Z) Bailey vs. West, 41 111. 290. 460 PEOCEEDINGS FOR DOWER. Dowor, how Barred — Jointure, etc. costs and charges of sale, such survivor shall 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. {771) 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 BAKEED. 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 suffering a common recovery. 5th. By a divorce a vinculo matrimonii. 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, ag 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 (7w) Jeneson vs. Garden, 29 111. 199. PROCEEDINGS FOR DOWER. 461 Dower, how Barred — By Will, etc. of them, for the purpose of creating a jointure in favor of either 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 fall 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 after 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 will, 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. ( SECTION VI. ADULTEKY. 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. {/) 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 (/) Davis vs. Davis, 19 111. 334 ; Christianberry vs. Christianherry, 3 Blackf . 203 ; Mattox vs. Mattox, 2 Ham. 233 ; Lesseuer vs. Lesseuer, 31 Barb. N. T. 330 ; Clapp vs. Clapp, 97 Mass. 531 ; Eibet vs. Bibet, 39 Ala. 348. 492 BILLS FOE DIVOKCE. Adultery. — Circumstantial Evidence. mistake, she believing him to be her husband, {g) or while she is insane, {h) or by her husband's procurement, {i) or marry another man througli 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. Circuinstantial evidence. — Adultery being peculiarly a crime of darkness and secrecy, may be, and ordinarily nmst be, estab- lished by circumstantial evidence, iji) 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. {V) ^\iQ jpaHicejps criminis is a competent witness for the com- plainant; (m) but a court wilb 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, whicli 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. (h) Broadstreet vs. Broadstreet, 7 Mass. 474; MatcMn vs. Matchin, 6 Barr, 332; Nichols vs. Mc7t,ols, 31 Vt. 328 ; see Wray vs.WraT/, 19 Ala. 522 ; Wray vs. Wrap, 33 Ala. 187. (i) Pierce vs. Pierce, 3 Pick. 299 ; Myers vs. Myers, 41 Barb. X. Y. 114; Henden vs. Henden, 6 C. E. Greene, 61. U) Valleau vs. Valleau, 6 Paige, Ch. 207 ; Biskop on Mar. & Div. g 418. (A-) 4 Porter, 467 ; Matchin vs. Mntchin, 6 Barr, 332 ; Bailey vs. Bailey, Wright, Ch. Ohio, 514; Bay vs. Bay, 3 Green's Ch. 414; Ferguson vs. Fer- guson, 3 Sandf . Ch. 307 ; Van Epps vs. Van Fpps, 6 Barb. N. T. 320 ; Mehle vs. LapeyroUerie, 16 La. An. 4; Bast vs. Bast, 82 111. 584. {I) Moore vs. Moore, 1 Green, N. J. 122. 276; see Anyelo vs. Angela, 81 111. 251. {m) Moulton vs. Moulton, 1 Shep. Maine, 110. (/() Banta vs. Banta, 3 Edw. Ch. 295; see Jeiikijis vs. Jenldns, 86 111. 340. {o) Mayer vs. Mayer, 6 C. E. Greene, N. J. 246; Thomas vs. Thomas. 51 111. 162; Larrison vs. Larrison, 5 C. E. Greene, N. J. 100; Hedden vs. Hed- den, 6 C. E. Greene, N. J. 61; Thayer vs. Thayer, 101 ilnss. Ill; Lyon vs. Ltjon, 02 Barb. N. Y. 138; Blake vs. Blake, 70 III. 618 BILLS FOR DIVORCE. 493 Frame of Bill for Adultery, etc. — Form of Bill. Frame of hill charging adultery. — A divorce cainiot be decreed upon a bill charging 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 be 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. {7') 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, {u) No. 176. Bill hy husband for a divorce.^ 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 was 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., and at (p) Kane vs. Kane, 3 Edw. Ch. 389. (?) Washhurn vs. WasJiburn, 5 N. H. 195. (r) Bird vs. Bird, Wright, Ch. 98 ; Bidiarda vs. Richards, lb. 303 ; Mor- rell vs. Morrell, 1 Barb. 318. (s) Mansfield vs. Mansfield, Wright, Ch. 284. \t) Morrell vs. Marrdl, 1 Barb. N. T. 318. (tt) Young vs. Young, 4 Mass. 480. 494 BILLS FOR DIVORCE. Form of Bills Charging Adultery, etc. various other times and places, since the said marriage, the said C. B., in litter 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 \ c ircuTnstances.) I 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 ;vy j 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. \f] May it please your honor to grant the writ of summons in z?'' 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. iVb. 177. Bill for divorce hy wife, charging adultery, and jpraying for alim,ony 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 feithful, chaste, and affectionate wife; and as tlie 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 niairiage, 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 set forth any other act of adultery, giving names, time, plaice, and circum- staiices as near as j)ossihle.) Your oratrix furtlicr 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 unlit to be intrusted witli 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 : {Sere 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 circximstances and calling fully'). 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 sup]3l.y 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 su])plied with clothing and other comforts of life suitable to her and their condition in life. Yonr oratrix further represents, that the said C. B. threat- ens, and your oratrix fears that he wdll carry his threat into execution, to sell oif 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 hearing of this cause, and suitable provisions are made for the support of your oratrix and the said children. 496 BILLS FOR DIVORCE. Willful Desertion, etc. Forasraucb, 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^Y^hat your oratrix may be divorced and forever freed from the bonds ^^ of matrimony now existing between her and the said C. B.jJljhat'^jn the care, custody and education of the said children may be ^' awarded to your oratrix ;jihat your honor will decree to your oratrix such portions of t!ie 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 sherin 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 he enjoined, as ■^V^ the above prayer,) until the further order of this court. {Add affidavit, No. 129, ante, page SJfS.) 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 be granted to the party deserted for that cause. BILLS FOR DIVORCE. 497 Willful Desertion — Bill for. Before a divorce can be 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 tiling 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 commencement of the proceedings. («) 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, signifies an intentional desertion. It does not imply malice towards the other party, (a) JH^o. 178. Bill for divorce for willful desertion. 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 («) Tliomas vs. Thomas, 51 111. 162 ; see Beavis vs. Beavis, 1 Scam. 242. (w) Ashhavgh vs. Ashhaugh, 17 111. 476. (a;) Emhree vs. Embree, 53 111. 394. iy) 23 Miss. 152. (z) Pinkard vs. Pinkard, 14 Texas, 356 ; Reed vs. Beed, Wright, Ch. 224 ; Phelan vs. Phelan, 12 Florida, 449; Kennedy vs. Kennedy, 87 111. 250. (a Benkert vs. Ben kerf, 32 Cal. 467. 498 BILLS FOR DIVORCE. Habitual Drunkenness. honor, that he is an actual resident of the said county of , and is now, and 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 lived 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 his means and their situation in life. Your orator further represents, that the said 0. 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. -n 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 de'clared 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 J}., ante, _2^«^e Jt.89.) SECTION VIII. HABITUAL DRUNKENNESS 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. (5) (&) Bishop on Mar. & Div. § 532 ; Batchelder vs. Batchelder, 14 N. H. 380. BILLS FOR 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 facts 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 from 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) JVo. 179. Bill for divorce., charging habitual drunkenness, and praying 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 : Tour 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. Tour 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 vs. Mdhone, 19 Cal. 637. (d) Poritt vs. Poritt, 16 Mich. 140. 500 BILLS FOR DIVORCE. 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 by 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 property, to wit : {Here descrihe the real estate^ of great value, to wit, of the value ol 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 cliildren 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 tlie 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 the said C. B. may be re- strained by the order and injunction of this honorable court, from selling, assigning, encumbering or otherwise disposing of the said property, until the further order of this honorable BILLS FOli 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 sliall seem meet. May it please your honor, etc. {Praying process and for mj'unction, and adding ajjidavit for injunction, as in No. 177, ante, j;a^(? Ji^Jf-.) SECTION IX. ATTEMPTHSTG THE LIFE OF THE OTHER. The new statute of Illinois in relation to divorce provides for a divorce where a husband or vrife has attempted the life of the other, by poison or other means, showing malice. This is an entirely new provision of the statute. No. 180. Bill for divorce, for atterrvpting 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 lawfully married to one C. D., now C. B., the defendant hereinafter named ; and from 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 marriage covenant and duties, on, etc., at, etc., did M'illfully 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 502 BILLS FOE DIVOECE. 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 teem meet. May it please your honor, etc. [Pray process as in lio. 17 li.^ ante, jpage JiB9.) SECTION X. EXTREME AND REPEATED CKUELTT. 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. {h) "Where the husband is the complainant, it is not sufficient to (e) Embree vs. Emhree, 53 111. 394 ; Vignos vs. Vignos, 15 111. 186 ; Shaw vs. Shaw, 17 Conn. 189 ; Pedbody vs. Pedbody, 104 Mass. 195 ; Moyler vs. Moyler, 11 Ala. 620 ; Hughes vs. Hughes, 19 Ala. 307 ; Bailey vs. Bailey, 97 Mass. 373 ; Odom vs. Odom, 36 Geo. 286. (/) TurUtt vs. TurUtt, 21 111. 438 ; Sliell vs. Shell, 2 Sneed, Tenn. 716 ; Ford vs. Ford, 104 Mass. 198 ; Hughes vs. Hughes, 44 Ala. 698 ; Conesey vs. Conesey, 60 111. 188. (g) Von Olahn vs. Von Olahn, 46 111. 134 ; Knight vs. Knight, 31 Iowa, 451 ; Fellows vs. Fellows, 8 N. H. 307 ; Johnson vs. Johnson, 14 Cal. 459 ; David vs. David, 27 Ala. 222 ; Skinner vs. Skinner, 5 Wis. 449 ; Trowbridge vs. C'arlin, 12 La. An. 882 ; Howe vs. Howe, 4 Nev. 395. (h) Von Glahn vs. Von Olahn, 46 111. 134 ; EidenmuUer vs. EidenmuUer, 87 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, tliere should be a specification of the acts of cruelty complained of. (7.) Although the specific acts of cruelty must be 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 justify 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, (l) ]\^o. 181. Bill for divorce on the ground of extreme and repeated cruelty. 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 v our honor, that he is an actual resident of the county of afore- said, and is, and has been, a resident of che State of Illinois for years last past ; that on, etc., at, etc., he was lawfully married to one C. D., now C. B., with whom he resided until, etc., when he was compelled to leave and cease living with her in consequence of the ill-treatment hereinafter mentioned ; that during the time he so lived with the said C. B. he always con- ducted himself towards her with kindness, and as a true and indulgent husband, supplying all her wants and necessities, according to the best of his means and ability, and suitable to his and her condition in life. (i) Birkhy va. Birkhy, 15 111. 120 ; De La Hay vs. De La Hay, 21 111. 252 y Bee Lynch vs. Lynch, 33 Md. 328. (j) Harmon vs. Harmon, IG 111. 85 ; Conesey vs. Conesey, 60 111. 188. (A;) Fellows vs. Fellows. 8 N. H. 160 ; Hill vs. Hill, 10 Ala. 527 ; Wright vs. Wright, 3 Texas, 168 ; Byrne vs. Byrne, lb. 336. (0 Brkjgs vs. Briggs. 20 Mich. 84; see Berdell vs. Berdell, 80 111. 604; Farnham vs. Farnham, 73 111. 497. 504 BILLS FOR DIVOECB. Form of Bill on tlie Ground of Extreme and Repeated Cruelty. Your orator further represents, that the said C. D., not regarding her marriage relations and duties, has, since the said intermarriage, been guilty of extreme and repeated cruelty towards your orator, in this, that she is a woman of great austerity of temper, and very frequently, during the past years, indulged in violent sallies of passion, and used towards your orator very obscene and abusive language, without any provocation whatever, and frequently refused to prepare your orator's meals, and perform such other household duties as it was incumbent upon her to perform ; and, on numerous occa- sions during the time mentioned, has used personal violence towards your orator, which he did not feel disposed to resent, or even defend himself, on account of her sex ; and particu- larly your orator charges, that on or about, etc., at, etc., the said C. B., without any provocation whatever, struck your orator a violent blow over the head with a club ; and again, on or about, etc., the said C. B. again attacked your orator in their house, and severely beat and bruised him with a chair, and broke the chair in pieces ; and tliat on or about, etc. {Set forth each act of violence according to the facts.) Inasmuch, thei-efore, 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, etc. {Pray process as in No. 176, ante, page Ji93.) JVo. 182. Bill for divorce, charging extreme and repeated cruelty, am,d praying for an injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of the county of afore- fiaid, and has been for more than years 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 has had by him one child, viz., E, B., now aged about years ; BILLS FOR DIVORCE. 505 Form of Bill on the Ground of Extreme and Repeated Cruelty. that since her intermarriage with the said C. B. she has always behaved herself towards him as a chaste, dutiful and affection- ate wife. Your oratrix furtlier represents, that the said C. B., wholly disregarding his marriage vows and obligations towards yonr oratrix, has ever since said marriage been guilty of extreme and repeated cruelty towards your oratrix ; that is to say, that the said G. B. on divers days and times since said marriage, has beaten, struck, kicked and choked her, and has neglected to furnish her and her said child witli proper and necessary food and clothing, and particularly that on, etc., at their house, the said C. B. struck your oratrix a violent blow in her face with his fist, knocking lier down, and otherwise greatly injuring your oratrix ; and that afterwards, on, etc., the said 0. B. again attacked your oratrix, in their said house, kicked, choked and forced her out of said house ; and again on, etc., he struck and kicked your oratrix in a violent manner, and otherwise ill treated her ; and, on, etc. {Insert each act of violence accord- ing to the facts /) and on each of said occasions, and on nnmej'ous other occasions has used towards your oratrix and her said child, the most obscene, profane and opprobrious language, rendering her life miserable. Your oratrix further represents, tliat since she left the said C. B. he has continued to annoy and abuse her ; and threatens to take the said child from your oratrix by force, and to kill your oratrix if she refuses to let him take the said child from her ; and your oratrix fears and believes that the said C. B. will carry his threats into execution, unless restrained by the injunction of this honorable court. Your oratrix further represents, that the said C. B. is pos- sessed of the household furniture and property used by your oratrix and him in keeping house, but now threatens to sell and dispose of the same to prevent your oratrix from obtaining possession thereof; and your oratrix fears and believes he will carry said threat into execution, unless restrained by the injunc- tion of this honorable court. Forasmuch, therefore, as your oratrix is without remed}^ 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 1)111, 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 your oratrix and the said C. B. ; that the care, custody and education of the said child may be awarded to your oratrix; that your honor will decree to your oratrix the household furniture and property of the 506 BILLS FOR DIVORCE. Conviction of Crime, etc. said C. B., and 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 child ; 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 carry on this suit, and for the support of herself and said child during the pendency thereof; and that the said 0. B. may be restrained by the order and injunction of this honorable court, from selling, assigning or otherwise disposing of the said household furniture or property, or fi'om in any manner interfering with your oratrix or the said child' until the further order of this 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, etc. {Praying process and for an injunction, and adding affidavit as in No. 177, ante, page JfiJf.^ SECTION XL CONVICTION OF CKIME, ETC. Where either party has been convicted of felony or other infamous crime, the statute of Illinois authorizes the injured party to obtain a divorce on that ground. It is no ground for a divorce, within the statute, that a party has committed a larceny, where no conviction has been had. The statute declares, that, to be a cause of divorce, the party must be convicted of felony, or other infamous crime. But a court has no authority to convict a defendant of a felony or infamous crime in a suit for a divorce, and then make such conviction the basis of a decree of divorce, (m) It is said that conviction and imprisonment in another juris- diction is not a cause of divorce in New Hampshire, {n) (m) Thomas vs. Thomas, 51 111. 163; see Harmon vs. Harmon, 16 111. 85 ; TJtsler vs. TltsUr, Wright, Ch. 627. («,) Martin vs. Martin, 47 N. H. 52; see Sherman vs. Sherm/in, 18 Texas, 531. BILLS FOR DIVORCE. 507 Form of Bill Charging Conviction of Crime. No. 183. Bill for a dworce, charging a conviction of a felony etc.j jproAjing to he allowed to resume maiden name. 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 re])resents unto your honor, that she is an actual resident of the said county of , and is now, and has been for years, a resident of the State of Illinois ; that your oratrix' maiden name was A .M., and she is the daughter of L. M., of, etc. ; that on, etc., at, etc., she was lawfully married to one C. B., of, etc., and from that time until, etc., she lived and cohabited with him as his wife, and always conducted herself towards him as a true, faithful and affectionate wife. Your oratrix further represents, that on, etc., at, etc., at a term of the court of the county of , in said state, begun and held in said county, on, etc., before the Honorable , judge thereof, presiding, the said C. B. was duly convicted of the crime oi larceny, and was then and there, by the judgment of that court, sentenced to coniinement in the penitentiary of said state for the term of years, at hard labor, which said judgment still remains in full force and effect, not reversed, annulled or vacated, as by the records and proceedings in said court now remaining, reference thereto being had, will more fully appear. Forasmuch, therefore, as j-our 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 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 oratrix may be allowed to resume her maiden name of A. M., as before marriage ; and that your oratrix 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 Jf., ante, page JfS9.) 608 BILLS FOR DIVORCE. Defenses to — Condonation. SECTION XII. DEFENSES TO. The defendant may appear, except, demur, plead or answer the bill of complaint as in other eases in chancery. The statute in regard to divorces provides tliat (§ 6.) " The process, practice and proceedings under this act shall be the same as in other cases in chancery, except as herein otherwise provided, and except that the answer of the defend- ant need not be on oath," The statute does not require an answer to be sworn to, but provides that it need not, and is different from the general chancery practice in that respect. The statute having dis- pensed with such oath, the defendant acquires no advantage by swearing to his answer in such a case. Such a sworn answer has no more effect than the bill, and is not evi- dence, (c) But a verified answer may be read as an affidavit on a motion for alimony, pendente lite, (p) If the complainant is not a resident of the county where the suit is brought, and that fact does not appear upon the face of the bill, the objection can only be raised by a plea. If a de- fendant proceeds to answer the bill, the objection of want of jurisdiction is waived, (q) Nothing in an answer will be considered as impertinent which tends to show the conduct of either party against the_ other. In addition to a denial of the treatment alleged in the bill, the defendant may allege, in his answer, conduct on the part of the complainant calculated to irritate and provoke him, and to excite his jealousy or alienate his affections from her. (;') Condonation. — If the injured party cohabits with the other subsequent to an adulterous offense, having the ability to prove (o) Conesey vs. Conesey, 60 111. 180. {p) Anthony vs. Anthony, 3 Stockt. N. J. 70. (g) Parker vs. Parker, 61 111. 369. (r) Hopper vs. Hopper, 11 Paige, Ch. 46. BILLS FOR DIVORCE. 509 Defenses to — Condonation. the offense, it will be a bar to a proceeding for divorce, (s) But the effect of cohabitation, as condonation of adultery, is less binding upon the wife than upon the husband, (t) And con- donation is always accompanied with the implied condition that the injury shall not be repeated. Thus, cruelty of an aggravated character may revive the offense of adultery im- pliedly condoned, and when properly brought to the knowl- edge of the court, during the pendency of a suit for a divorce for adultery, will authorize a decree for a divorce, (u) Condonation of the adultery is a conditional forgiveness of the offense, and a repetition of the adultery revives the offense, (v) Cohabitation, after extreme and repeated cruelty, is not a bar to divorce for that cause, although it is so in cases of adultery. The distinction between the cases seems to be founded on a just conception of the conjugal relations, (w) Although it has been held, that where a wife continued to live with her husband after acts of violence, it is proof that she did not consider herself in danger, {x) Condonation on the part of the wife is not pressed with the same rigor as condonation on the part of the husband ; yet where the wife has forgiven the husband for injuries inflicted (s) Davis vs. Davis, 19 111. 334 ; Williamson vs.Williamson, 1 Johns. CL. 488 ; Johnson vs. Johnson, 14 Wend. 687 ; 5. C. 4 Paige, Ch. 460 ; S. C. 1 Edw. Ch. 439 ; Phillips vs. Phillips, 4 Blackf. 131 ; Hall vs. Hall, 4 N. H. 463 ; Dettiher vs. Delliber, 9 Conn. 233 ; Anon. lb. 147 ; JSforth vs. Ilorth, 5 Mass. 320 ; Quincy vs. Quincy, 10 N. H. 272 ; Master vs. Master, 15 N. II. 159 ; Buckholts vs. Buckholts, 24 Geo. 238 ; Armstrong vs. Armstrong, 3 George, Miss. 279 ; Twyman vs. Twyman, 27 Mo. 383 ; Marsh vs. Marsh, 2 Beasley, N. J. 281 ; TrvmbuU vs. Trumbull, 23 Ark. 615. (t) Johnson vs. Johnson, 1 Edw. Ch. 439 ; Armstrong vs. Armstrong, 8 George, Miss. 279 ; Eollister vs. Hollister, 6 Barr, 449. iu) Davis vs. Davis, 19 111. 334 ; Odom vs. Odom, 36 Geo. 286 ; Armstrong vs. Armstrong, 27 Ind. 186; Farnham vs. Farnham, 73 111. 497. (r) Smith vs. Smith, 4 Paige, Ch. 432; Johnson vs. Johnson, lb. 460; Collier vs. Collier, 1 Dev. 352. {iv) Hollister V?, Hollister, 6 Barr, 449; Tr/^/s^jeZZ vs.TT/iis/jeZZ, 4Barb. 217; Reese vs. Reese, 23 Ala. 785; Nogees vs. Nogees, 7 Texas, 538. {x) Griffin vs. Griffin, 8 B. Monr. 120; see Phillips vs. Phillips, 1 Brad- well, App. Ct. R. 245. 510 BILLS FOR DIVORCE. Defenses to — Recrimination — Injunction. upon her, and the parties have become reconciled, courts are averse to listen to the old grounds of complaint, {y) JRecri'niinatio7i. — A husband cannot resist a divorce for adul- tery by setting up desertion by the wife ; (2) nor can a wife set up cruelty of the husband as a defense to a bill filed against her for adultery, {a) Where a hnsband and wife each file a bill for divorce, the one for cruelty and the other for adultery, and both the charges are sustained, each will be considered a bar to the other, and a divorce will be denied to both. (J) If the party seeking a divorce on the ground of adultery has been guilty of the same ofiense, either before or after the offense committed by the other, it is a conclusive bar to the suit, (c) But proof of adultery on the part of the complainant is no bar to a divorce grounded on the subsequent adultery of the defendant, if there has been an intervening condonation of the complainant's offense, {d) SECTION XIII. INJUNCTIONS IN. The statute provides that (§ 12). " The court may prohibit the husband from inter- posing any restraint on the personal liberty of the wife during the pendency of the suit." {y) Dames vs. Dames, 55 Barb. 130 ; Bowie vs. Borne, 3 Md. Ch. Decis. 51 ; Sterling vs. Sterling, 12 Geo. 201. (2) 4 Porter, Ind. R. 467 ; Wood vs. Wood, 5 Ired. Eq. 674 ; but see Allen vs. Allen, 4 Allen, Mass. 39. (a) Betz vs. Betz, 2 Rob. N. Y. 694 ; Monk vs. Monk, 7 Rob. N. Y. 153. (6) Bibet vs. Bibet, 39 Ala. 348. (c) Smith vs. Smith, 4 Paige, Ch. 432 ; Pastoiet vs. Pastoiet, 6 Mass. 276 ; Ghristianherry vs. Christianherry , 3 Blaokl'. 203 ; Mattox vs. Mattox, 2 Ham. O. 233 ; Holmes vs. Holmes, Walk. Miss. 474 ; Burdell vs. BurdeU, 2 Barb. 473 ; Les&uer vs. Leseuer, 31 Barb. 330 ; Clapp vs. Clapp, 97 Mass. 531. (d) Master vs. Master, 15 N. H. 159. BILLS FOR DIVORCE. 511 Injunction — Custody of Children, etc. Custody of children^ pendente lite. — (§ 13.) "The court may, on tlie application of either party, make such order con- cerning the custody and care of the minor children of the parties during the pendency of the suit, as may be deemed expedient, and for the henetit of the children." When ^rojjer. — It may be stated, as a general rule, that pending proceedings for a divorce, upon a proper case shown, the husband may be restrained from interfering with the cus- tody of the children, or of property in the possession of the wife, (e) So a husband will be enjoined from disposing of his property in such manner as to prevent the wife from obtaining alimony or a separate maintenance, on a bill pending for that purpose. (/) Mere apprehension of abandonment by the husband, and a failure to support the wife, is not sufficient cause to warrant the interposition of equity in restraining him from disposing of his property, since injunctions are not usually allowed upon mere apprehensions of future wrong, {g) And where a preliminary injunction has been allowed in such a case, it will be dissolved on the coming in of the answer denying any intention on the part of the husband to abandon the wife. (7i) An injunction may be obtained by the wife to restrain the husband from encumbering as well as from selling his pro- perty, {i) But the wife will not be allowed in such case to restrain the husband from using his property for the support of himself and his children, nor will he be enjoined from using the tools and implements of his trade, or from carrying on his ordinary business, {j) {e) Wilson vs. Wilson, Wright, 0. Ch. 129 ; Edwards vs. Edwards, lb. 308. (/) Questel vs. Qtiestel, Wright, Ch. 492 ; Johnston vs. JoTinslon, lb. 454 ; Bascomb vs. Bascomb, lb. 632 ; Riclcetts vs. RicketU, 4 Gill, 105 ; High on Inj. §843. ig) AnsJiutz vs. Ansliutz, 1 C. E. Green, N. J. 162. Qi) High on Inj. § 844 ; Anshutz vs. Anshutz, 1 C. E. Green N. J. 162. {%) Vanzant vs. Vanzant, 23 III. 536. (j) Rose vs. Rose, 11 Paige, Ch. 166 ; High on Inj. § 845. 612 BILLS FOE DIVOKCE. Hearing and Decree, etc. On granting a decree of divorce in favor of the wife, it is improper to perpetually enjoin the husband from selling his property to insure the payment of alimony, {Jc) SECTION XIV. HEARING AND DECREES. Trial hy a jury. — The statute provides that (§ 7.) " When the defendant appears and denies the charges in the complainant's bill for a divorce, either party shall have the right to have the cause tried by a jury." Forming an issue. — The court may direct an issue to be tried by the jury, as the same may be made up by the plead- ings. And it would tend to promote justice, and aid the court in it^i decree, if the jury were instructed to find on each issue raised by the pleadings and proof, instead of finding a general verdict. (/) The issues, if there be more than one, should be distinct and explicit, presenting in each a single question, so clearly that it cannot be misunderstood by the jury, and their verdict should be responsive to each, (m) No. 184. Order directing issues of fact to he tried hy a jury in a divorce suit. {Caption, and title of caiise as in No. 79, ante, page 198.) It is ordered that upon the pleadings filed in this cause, the following issues of fact be submitted to and tried by the jury, to wit : 1. Has the defendant committed adultery subsequently to his marriage with the complainant, in manner and form as charged in the bill ? 2. Has the defendant been guilty of extreme and repeated cruelty towards the complainant, in manner and form, as charged in the bill ? {Let the questions correspond with the issues presented hy the pleadings.) (Jc) ErHsaman vs. Errissman, 25 111. 136. (0 Von OlaJm vs. Von Olahn, 46 111. 134. (m) Ante, p. 190 , Milk vs. Moore, 39 111. 588. BILLS FOE DIVOECE. 513 Hearing and Decree — In case of Default, etc. In case of default. — The statute provides that (§ 8.) " If the bill is taken as confessed, the court shall proceed to hear the cause by examination of witnesses in open court, and in no case of default shall the court grant a divorce, unless the judge is satisfied that all proper means have been taken to notify the defendant of the pendency of the suit, and that the cause of divorce has been fully proven by reliable witnesses. Whenever the judge is satisfied that the interests of tlie defendant require it, the court may order such additional notice as equity may seem to require." A court has no authority to decree a divorce on a bill taken for confessed, without proof to sustain its allegations. The court may, under the statute, examine witnesses orally in court, o]' it may, under its general chancery powers, refer the cause to the master to take proofs, or depositions in writing may be used ; but in some way, the facts, to justify granting the divorce, must be proven to the court, {n) In proceedings for a divorce, where the bill is taken for con- fessed, it is sufficient that the record shows proof was heard sustaining the allegations of the bill, without preserving the evidence in the record, {p) Confessions of defendant. — The statute provides that (§9.) " No confession of the defendant shall be taken as evidence unless the court or jury shall be satisfied that such confession was made in sincerity and without fraud or collusion to enable the complainant to obtain a divorce." But in a matter of divorce, it will be presumed that the court granting it, if it received admissions as evidence, properly scrutinized the evidence, so as to be satisfied that the admissions were made in sincerity and without fraud, {p) Mere confession of adultery is not sufficient in itself to sup- (n) SJiilUnger vs. Shillinger, 14 111. 147. (o) Davis vs. Dams, 30 111. 180 ; Hawes vs. Hawes, 33 El. 287 ; ShiUinger vs. Shillinger, 14 111. 147. (j?) Bergen vs. Bergen, 22 111. 187 33 614 BILLS FOR DIVORCE. Hearing and Decree — Forna of Decree of Divorce. port the charge, {q) The proof must be clear and positive, (r) It must be proved by direct or circumstantial evidence, and not on mere suspicion, or even on bad reputation, (s) Collusion. — The statute further provides that (§ 10.) " If it shall appear, to the satisfaction of the court, that the injury complained of was obtained by the collusion of the parties, or done with the assent of the complainant for the purpose of obtaining a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed." Where there is collusion between the parties, a divorce will not be granted, {t) Proof of foreign marriages. — The statute provides that (§ 11.) " A marriage which may have been celebrated or had in any foreign state or country, may be proved by the acknowl- edgment of the parties, their cohabitation, and other circum- stantial testimony." Changing of wife^s name. — The statute authorizes, (§ 16.) " The court, upon granting to a woman a divorce from the bonds of matrimony, may allow her to resume her maiden name, or the name of any former husband."^. No. 185. Decree of divorce on the ground of adidtery, pro confesso ; changing name of complainant. {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 therein, taken as confessed by the defendant, and the oral testimony of witnesses sworn and examined in open court ; and the court having heard the arguments of counsel, and being (q) Hansley vs. Hansley, 10 Ired. Eq. 506 ; Bergen vs. Bergen, 22 111. 187; White vs. White, 45 N. H. 121 ; Derhy vs. Derby, 6 C. E. Greene, N. J. 36. (r) Berckmans vs. Berckmans, 2 C. E. Greene, N. J. 453 ; Cla/re vs. Clare, 4 C. E. Greene, N. J. 37. (s) Thomas vs. Thomas, 51 111. 162. if) Wolf vs. Wolf, Wright, Ch. 243. BILLS FOE DIVORCE. 616 Form of Decrees — For Adultery, etc. fully advised in the premises, and on consideration thereof, finds that all the material facts charged in the said bill are true, and that the defendant has committed adultery subse- quently to his marriage with the complainant ; It is therefore ordered^ adjudged and decreed^ by the court, that the marriage between the complainant and the defendant be dissolved, and the same is hereby dissolved accordingly ; and the said parties are, and each of them is, freed from the obligations thereof. It is further ordered, adjudged and decreed, that the complainant be allowed to resume her maiden name of A. M., the same as if such marriage had not taken place. It is further ordered, that the defendant pay the costs and charges of this suit, and that execution issue therefor. No. 186. Decree for divorce ov. the ground of adultery, and for the custody of children, pro confesso. {Ga/ption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of complaint therein ; and the defendant having been duly served with the process of summons in this cause, more than ten days prior to the first day of the present term of this court ; and having been three times called in open court, to appear, except, demur, plead or answer the complainant's bill, came not, but herein made default ; and the court having ordered that the said bill of complaint and the matters therein contained be taken as confessed ',{ and the court having heard the oral testi- mony of witnesses, sworn and examined in open court ;"■ and having heard the arguments of counsel,^and^being fully advised in the premises, and on consideration thereof doth find that all the material facts alleged in the said bill are true,^and that the defendant has committed adultery subsequently to his mar- riage with the complainant ; and that he is a person wholly unfit to have the care, custody, control or education of children ; It is therefore ordered, adjudged and decreed, by the court, that the marriage between the complainant and defendant be dissolved, and the same is hereby dissolved accordingly ; and the parties are, and each of them is, freed from the obligations thereof. It is further ordered, adjudged and decreed, by the court, that the complainant have the care, custody, control and educa- tion of the said children, to wit., C. B. and D. B., without any interference on the part of the defendant, until the further order of this court. 516 BILLS FOR DIVORCE. Form of Decree of Divorce, etc. — Alimony and Expenses. It is further ordered^ that the defendant pay the costs of this suit, and that execution issue therefor. And the court reserves the consideration of alimony for a future order and decree herein. iVo. 187. Decree for divorce on the ground of extreme and repeated cruelty, ujpon verdict of a jury. {Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of complaint herein, the answer of the defendant thereto, and the replication of the complainant to such answer ; and a jury hav- ing been called, selected and sworn, to wit : {Here insert the names of the jurors,) to try the issue herein, viz. : whether the defendant has been guilty of extreme and repeated cruelty towards the complainant, in manner and form as charged in the complainant's bill of complaint ; and the said trial having proceeded, and the said jury having heard the evidence offered by the respective parties, and the arguments of counsel, found the said issue in the affirmative ; and the defendant having interposed a motion to set aside said verdict and for a new trial ; and the court having heard the arguments of counsel thereon, and the reasons in support thereof, and, on consideration of the same, having overruled said motion ; It is therefore ordered, adjudged and decreed, by the court, that the marriage between tlie complainant and the defendant be dissolved, and the same is hereby dissolved accordingly; and the said parties are, and each of them ^ is, freed from the obligations thereof. And tlie court not being sufficiently ad- vised as to the question of alimony in said cause, does reserve the consideration thereof until a future and further hearing thereon. SECTION XV. ALIMONY AND EXPENSES. Pendente lite. — It is provided by the statute that (^ 15.) "In all cases of divorce, the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for a divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit. And in case of appeal or writ of error by the husband, the court in BILLS FOR DIVORCE. 517 Alimony and Expenses. which the decree or order is rendered, may grant and enforce the payment of such money for her defense, and such equitable alimony during the pendency of the appeal or writ of error, as to such court shall seem reasonable and proper." AXimowy pendente lite is a common law right, and courts of chancery are bound to enforce it as much as any other pro- vision of the common law. (u) When a suit is pending for a divorce, it is legally improper for the parties to cohabit together, {v) This single fact, there- fore, is sutlicient to entitle the wife, who has not sufficient pro- perty of her own, whether complainant or defendant, to alimony during its pendency, {uo) Upon the same principle, the hus- band, who has all the money, while the wife has none, is bound to furnish her, whether plaintiff or defendant, with the means to defray her expenses in the suit ; otherwise she would be denied justice, {x) Where the wife has sufficient separate property of her o\'.n, the reason for giving her either temporary alimony, or money to defray her expenses in the suit does not exist, and slu- will not be entitled to either, {y) The allowance of ?i\\viio\\y pendente lite is discretionary with the court, (s) It is therefore necessary that a meritorious case be presented for its consideration. The court will seldom deny alimony to the wife when she is made defendant. If a man brings suit against his wife, he should be prepared to furnish her moans for her defense. (if) Petrie vs. Tlu I-z'jM, -.0 111. 334; see Bmet vs. Pfirshimj, 86 111. 83. (v) Sullivan vs. Sullivan, 2 Add. 299, 2 Eng. Eccl. R. 314 ; Clowes vs. Clowes, 9 Jur. 356 ; Bishop on Mav. and Div. § 527. (w) Jones vs. Jonef^, 2 Barb. Cb. R. 140; Holmes vs. Holmes, Walker, Ch, R. 474 ; Wilson \s.Wil»on, 2 Hagg. Ch. R. 203; Armstrong vs. Armstrong, 35 111. 109. (a-) H'Aguiletr vs. D'Aguilar, 1 Hagg. Ch. R. 773, 3 Eng. Eccl. R. 329, 338; 6 Eng. Eccl. R. 372; Holmes vs. Holmes, Walker, Ch. R. 474; Holmes vs. Holmes, 2 Lee, 90 ; Turst vs. Turst, 2 Lee, 92 ; Armstrong vs. Armstrong, 85 111. 109 ; Logan vs. Logan, 2 B. Monr. 142 ; Pu>s.' vs. Rose, 11 Paige, Ch. 166; yeirman vs. Newman, 69 111. 167. {'j) Bishop on Mar. and Div. § 572; Poynt. on Mar. and Div, 260. 261; Barthlt vs. Bartleit. 1 Clarke, N. Y. 460. {z) Bergen vs. Bergen, 22 111. 187; see Blal-e vs. Blair, 80 111. 523. 518 BILLS FOR DIVORCE. Alimony, etc. — Petition for, etc. Prosecuting as a poor person. — Tlie statute provides that (§ 14.) " Any woman suing for a divorce who shall make it appear satisfactorily to the court that she is poor, and unable to pay the expenses of such suit, shall be allowed by the court to prosecute her complaint without costs ; and in such cases no fees shall be charged by the officers of the court." Questions of guilt not considered. — The question of the guilt or innocence of the wife will not be entered into in settling the allowance of alimony pendente lite, by hearing conflicting affidavits, {a) She must, however, in her petition for alimony, deny the charges contained in the bill, or show some valid defense to the husband's suit, unless she has denied it on oath in her answer, (b) The husband may, however, it is said, show that her mis- conduct was so glaring that no aid should be given to her to prosecute her suit ; or, if she had been charged with adultery, that she was still living with the partner of her guilt, (c) Hoio applied for. — In a suit for a divorce, the application for alimony and expenses should be made upon petition, after due notice to the opposite party, {d) No. 188. Petition for alimony pendente lite, and expenses. In the Court. A. B. ) Term, 18 — . vs. >■ In Chancery for a Divorce. B. B. ) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : The petition of B. B., of, etc., the above-named defendant, respectfully represents unto your honor, that the complainant, {a) Wood VB. Wood, 2 Paige, Ch. 114 ; Osgood vs. Osgood, Id. 621 ; Smith VB. Smith. 1 Edw. Ch. 255. (b) Osgood vs. Osgood, 2 Paige, Ch. 631 ; Wood YB.Wood, lb. 114. (r) Fowler vs. Fowler, 4 Abbott, N. T. 412 ; see Oriffln vs. Griffin, 21 How. N. Y. 364; S. C. 23 How. N. Y. 189. {d) LongfeUow vs. Longfellow, 1 Clarke, N. Y. 344 ; 2 Barb. Ch. Pr. 268. BILLS FOR DIVORCE. 519 Petition for Alimony — Order of Reference as to. A. B., has lately filed his bill in this court, against your peti tioner, to obtain a decree dissolving the marriage between him and yonr petitioner, charging yoni' petitioner with the crime of adultery (w whatever the charge may he) ; that your petitioner has put in her answer to the bill of complaint denying such charge, as by reference to the said answer, now on file in said cause, will more fully appear. And your petitioner further represents, that she is wholly destitute of the means of supporting herself during the pendency of this suit, and of carrying on the defense, and defraying the costs and expenses attending the same ; that your petitioner has been informed and believes, and so states the facts to be, that the complainant has real estate and personal property to a large amount, and amply sufficient to enable him to advance thereout, to your petitioner, such sums as may be necessary for the above- mentioned purpose ; that your petitioner is informed and be- lieves, that the complainant is the owner of property to the amount of more than dollars, and that his annual income is about dollars. Your petitioner, therefore, prays that the complainant may, by an order of this court, be required to pay to your petitioner a reasonable sum for her support and maintenance during the pendency of this suit ; and such sum or sums of money as may be necessary to enable her to carry on her defense, to pay solic- itor's fees, and to defray the other necessary costs and expenses thereof; and for such other and further relief in the premises as to your honor may seem meet. Subscribed and sworn to, etc. C. D. The amount of allowance. — The amount of the allowance of dXwsiQVij pendente lite., and for expenses, may be settled by the court without a reference, whenever the facts are sufficiently before it. {e) In general, however, a reference to the master is directed. (/") No. 189. Order of reference as to alimony pendente lite, amd expenses. {Caption, and title of cause as in No. 79, ante, page 198.) On reading and filing the petition of the defendant in this- cause, duly verified, and the affidavits accompanying the same, (e) Hammond vs. Hammond, 1 Clarke, N. T. 151 ; Monroy vs. Monroy, 1 Edw. Ch. 382. (/) 3 Barb. Ch. Pr. 268 ; 2 Van Santv. Eq. Pr. 275-276. 620 BILLS FOE DIVOKCE. Report of Master as to Alimony. and the affidavits bj the complainant in opposition thereto, and upon hearing the arguments of the counsel for the respective parties, and the court not being sufficiently advised in the premises, doth order that it be referred to the master in chancery of this court to inquire and report what would be a reasonable sum to be allowed to the defendant for her support and maintenance during the pendency of this suit. And it is further ordered, that the said master inquire and report what would be a reasonable sum to be allowed to the defendant, to enable her to carry on her defense in this suit, and to defray the necessary costs and expenses' thereof ; and that the said master report as to the times and manner in which the said sums should be paid by the complainant. Wo. 190. Report of master as to allowance of alimony. {Title of cause as in No. 1S8, ante, page 518.) 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 entered on, etc., whereby it was referred to me, the undersigned, master in chancer}', to inquire and report what would be a reasonable sum to be allowed; etc. {as in the order)., I, the said master, do report : That having given due notice to the respective parties of the time and place of the hearing thereof, and having been attended by the solicitors for the complainant and defendant respectively, and having heard the allegations and proofs as to the value of the complainant's {or defendants) estate at the time of the commencement of this suit, and the allowance proper to be made, I certify and report, that the complainant {or defendant) has real estate, to wit, etc. {Here describe it)^ of the value of al)out dollars, the yearly income of which is about dollars; that the whole personal property of the complainant {or defendant) consists of, etc., and its value is about dollars ; that two children of the complainant and defendant live with and are entirely supported by, etc., 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 and alimony of the defendant {or com- plainani ;) that it ought to be ]i:iy able from, etc.; that dollars would be a reasoiiibh' sum to be allowed to the defend- BILLS FOR DIVORCE. 521 Orders for Alimony — Permanent Alimony, etc. ant {or complainant) to enable her to carry on her defense {or prosecution)^ and defray the necessary costs and expenses in this suit ; and that my fees amount to doUars. All of wliicli is respectfully submitted. Dated, etc. , Master in Chancery. No. 101. Order confirming master'' 8 report "of alimony, etc. {Caption., and title of cause as in No. 79, ante, page 198.) And now, on this day, comes the master in chancery of this court, and makes report of what would be a reasonable sum to be allowed, etc., {as in report;) and the court having heard the arguments and allegations of the counsel for the respect- ive parties, in support of and against the confirmation of said report, and having considered the same, and being fully ad- vised in the premises ; It is ordered, that the report of the master in chancery afore- said, be, and the same is in all things, approved and confirmed ; and that the complainant {or defendant) do pay to the defend- ant, etc. {As in the report^) No. 192. Interlocutory decree for alimony, etc., pendente lite, and expenses, without reference. {Caption, and title of cause as in No. 79, ante, page 198.) And now, on this day, came the complainant, by L. M., her solicitor, and the defendant, by R. S., his solicitor, and this cause coming on to be heard upon the application of the com- plainant for alimonj pende7ite 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 (§ 18.) " When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and sn]:)port of the children, or any of them, as, from the circumstances of the parties and the n.iture 532 BILLS FOR DIVOECE. Perinaneut Alimony, etc. of the case, shall be ht, 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 wdll not disturb tlie decree of the court below on a question of alimony, unless manifest injustice has been done, {h) Alimony will be granted in proportion to the wants of the party asking it, and the ability of the person who is to pay ig) Bergen vs. Bergen, 22 111. 187; Plaster vs. Plaster, 67 111. 93. {h) Stewartson vs. Stewatison, 15 111. 145; see Ross vs. Ross, 78 111. 402. BILLS FOR DIVORCE. &23 Alimony — Decree for, etc. it. And it may at any time be increased or diminished. («") 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, [f) 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 sum in gross in lieu of alimony, is a bar to all further claims therefor, (l) Title ofpropert/y held hy one party, which equitably belongs to the other. — It is provided by the statute, that (§ IT.) " 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." No. 193. Decree for permanent alimony {Caption, and title of cause as in No. 79, ante, page 198.) 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- (i) Foote vs. Foote, 23 111. 425 ; Parker ve. Parker, 61 111. 369. {j) Wheeler ys.WTieeler, 18 111. 39 ; Armstrong vs. Armstrong, 85 HI. 109 ; Bergen vs. Bergen, 22 111. 189 ; Joliff vs. Joliff, 32 111. 527 ; see Von Glahn vs. Von Glahn, 46 111. 134 ; Keating vs. Keating, 48 111. 241 ; Plaster vs. Plas- ter, 53 111. 445 ; Wightman vs. Wightman, 45 111. 167. {k) Errisman vs. Errisman, 25 111. 136 ; Keating vs. Keating, 48 111. 243. (0 Plaster vs. Plaster, 47 111. 290 524 BILLS FOR DIVORCE. Decree for Alimony. plainant and defendant ; and having reserved the consideration of the question of alimony ; and ^he connsel for the respective parties having been heard, and the court being fully 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 eacli and every year, commencing on, etc., and payable quarterly in advance, until further ordered by tliis 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 necessary 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. For other Illinois cases relating to alimony, see Chestnut vs. Chestnut, 77 111. 340 : Deenis vs. Deans, 19 111. 74; Andrews vs. Andrews, 69 111. 609 ; Becler vs. Becl'cr, 79 111. .532 ; Binet vs. Eiyenmann, 80 111. 274; Resser vs. Resser^ 82 111. 442. CHAPTEK XXXIll. 8EPAEATE MAINTENAJfCE. Section 1. When Granted. 2. Proceedings to Obtain. 3. Defenses to. 4. Practice in, and Decbehs. SECTION I. WHEN GRAiJTED. 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 rtiaintenance. — 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 New York, an action for limited divorce or separation, may be brought for the following causes : firsts 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. 626 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, {h) Words of menace, accompanied by a proba- bility of bodily violence, will be suiScient; 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, {d ) 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 proceeding 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. (6) Mason vs. Mason, 1 Edw. Ch. 278, 291 ; 2 Kent's Com. 126. (c) Whispell vs. WMsppll, 4 Barb. 217 ; 2 Van Santv. Eq. Pr. 262, 263. \d) 2 Kent's Com. 126 ; WMsj)ell vs. Wliispell, 4 Barb. 217. (e) Lawrence vs. Lawrence, 3 Paige, Ch. 267 ; and see Burr vs. Burr, 10 Paige, Ch. 20. (/) Mason vs. Mason. 1 Edw. Ch. 278. {g) Boyd vs. Boyd, Harper, S. C. Eq. 144 ; Griffin vs. Qriffin, 8 B. Monr. 120. {h Ahreiifelt vs. Ahrenfelt, Hoff. Ch. 47; see Babhitt vs. Babbitt, 69 111. 277. SEPARATE MAINTENANCE. 527 Proceedings to Obtain — The Bill, etc. be maintained. A wife may have sufficient grounds for a full divorce, jet may not desire, for reasons satisfactory to herself, not to proceed to that extremity ; in which case she may have a separate maintenance uuder the provisions of the statute. SECTION II. PKOOEEDINGS 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 will not be required to give security for costs in any such proceeding." The hill. — The bill for a separate maintenance may be framed substantially as a bill for a divorce, except that the prayer is diiferent. 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, {i) No. 19 If.. 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 abandon the defendant (i) See No. 182, ante, p. 504. 528 SEPARATE MAINTENANCE. Form of Bill for Separate Maintenance. C. B. for the causes hereinafter set forth ; that during the time vour 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. Tour oratrix further represents, that during the time your oratrix and the defendant cohabited as husband and wife, your ©ratrix 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. {Sjjecify 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 maintenance 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 answer under oath heing hereby wained ; 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. 629 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 sherilt' 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 thereof, 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 applicable to a suit for a divorce, apply to proceedings of this nature. (J) SECTION IV. PRACTICE IN, AND DE0EEE8. 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 direct 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 (j) See ante, p. 508. (&) Hammond vs. Hammond, 1 Clarke, 151 ; Monroy vs. Monroy, 1 Edw. Ch. 382. 34 630 SEPARATE MAINTENANCE. Reference to Master — Report, of, etc. the matter to the master, where neither party requests a refer- ence. {1} No. 195. Order of reference to master to talcs proof, etc. {^Caption, and title of cause as in No. 79, suite, 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 tlie 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. No. 196. Report of master as to the evidence and allowam.ce. {Title of cause, address, etc., as in No. 75, ante, pa^e 184-.) 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 inquire 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 tlie 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. 3fiUer, Saxton, N. 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 wonld 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 of 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. Amount 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 SEPARATE MAINTENANCE. Amount of Allowance. his ability to provide for himself and family by his own exer- tions. [771) The allowance, pending the suit, is always much smaller in proportion than that which is assigned to the wife as a permanent j)rovision after she has established her right to a separation, (n) It is, in general, limited to the actual M^ants 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. ( 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 sufficient to overcome i\iQ prima facie case. (Jb) 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 upou the proof ot his allegations, {d) SECTION II. WHAT NECESSABT TO CONSTITUTE A VALID WILL. To entitle a will to probate, four things must concur : frst^ 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 ; tJdrd, 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 ; 2in& 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 M/) (5) Riggs vs. Wilton, 13 111. 15 ; Potter vs. Pott&r, 41 111. 80 ; EolUnoay vs. Oalloway, 51 111. 159. (c) Tingley vs. Coxcgill, 48 Mo. 291 ; Renn vs. Lamon, 33 Texas, 760. (d) Renn vs. Lamon, 33 Texas, 760 ; Roe vs. Taylor, 45 111. 485. (c) Dickie vs. Carter, 42 111. 376; but see Allison vs. Allen, 46 111. 61. (/) Flinn vs. Oiven, 58 111, 111; Amhre vs. Weishaar, 74 111. 109. BILLS TO SET ASIDE WILLS. 549 Fraud in Procuring Execution of a Will. SECTION III. FRAUD IN PROCUKING 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 final 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 dispositior 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 satisfied 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, they 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 infiuence was exercised ; but the {g) Dickie vs. Carter, 42 111. 376 ; Brownficld vs. Brownfield, 43 111. 147 ; Carmichael vs. Reed, 45 111. 108 ; Small vs. Allen, 8 Term, R. 147 ; Tingley vs. Cowgill, 48 Mo. 291 ; Small vs. Small, 4 Greenl. 220 ; see Kempsey YS.Mor ginnis, 2 Mich. N. P. 49. (h) Jleuser vs. Harris, 42 111. 425 ; Broicnfield ys. Brownfield, 43 111. 147; Bhoads vs. Rhoads, lb. 239 ; Carmicliael vs. Reed, 45 111. 108. (i) Forney vs. Ferrell, 4 W. Va. 729, and cases there cited. {j) Ha/i'vey vs. Sullens, 46 Mo. 147. 550 BILLS TO SET ASIDE WILLS. Want of Capacity to Make a Will, testator acted voluntarily and with a full understanding of what he was doing, {k) SECTION IV. WAKT OF CAPACITY TO MAKE A WILL. A will, 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) JSTor 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 m a last will does not, of itself, prove that the testator was incapacitated ; nor will Buch omission destroy its validity, [q) {k) B&yd vs. Boyd, 66 Penn. St. R. 283 ; Haney vs. Sullens, 46 Mo. 147; Taylor vs. Taylor, 8 How. U. S. 183 ; Van Horn vs. Keenan, 28 111. 452 ; see Slocum vs. Marshall, Wash. C. C. 400 ; Jenkins vs. Pye, 12 Pet. 241 ; Lind- say vs. Lindsay, 50 111. 81. (l) Cotton vs. Vlmer, 45 Ala. 378 ; see Turner vs. Hand, 8 Wall. Jr. 88 ; Matter of Hutchins, 7 Phil. Pa. R. 69 ; Chandler vs. Barrett, 21 La. An. 58 ; Puryear vs. Reese, 6 C'oldw. Tenn. 21 ; Sloan vs. Maxwell, 2 Green, Ch. 553. (m) Thompson vs. Kyner, 65 Penn. St. 368. (w) Collins vs. Townley, 21 N. J. Eq. 353 ; Clearwater vs. Kimler, 43 III. 272. (;.--f vs. Ranm, 51 111. 88; Yoe vs. McCord, 74 111. 33; Rutherford vs. Morris, 77 Hi. 397. 554 BILLS TO SET ASIDE WILLS. Decree. having heretofore directed an issne 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 names of the jurors^ having been duly called, selected and sworn to try 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 therefore ordered, adjudged and decreed, by the court, that the said instrument in writing, purporting to be the last 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 XXXYI. NE EXEAT. Section 1. Nature of, and when Pkopbb. 2. BlI-L FOR. 8. How Obtained, etc. 4. Proceedings upon. SECTION I. NATUKE OF, AND WHEN PEOPEK. The writ of ne exeat repvljlica is a prbceoE^ 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, from 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 ; (c) and its object and de- sigii is to hold a party amenable to justice, and to render him (a) Fleta, 383 ; Beames on Ne Exeat, 6 ; Anon. 1 Atk. 521 ; Flack vb. mim, 1 Jac. & Walk. 405, 413, 414. (6) Fitzlierbert's Natura Brevium, 85 ; 2 Story's Eq. Juris. § 14G6 ; 2 Co. Inst. 54 ; 8 Co. Inst. ch. 84, p. 178, 179 ; Ex parte Brunker. 3 P. Wms.312. (c) Mitchell vs. Bxirch, 2 Paige, Ch. 606 ; Gresham vs. Peterson, 25 Ark. 877. 556 NE EXEAT. Nature of, and when Proper. personally responsible for the performance of the orders and decrees of the court by preventing him from withdrawing him- self from its jurisdiction, {d) In some of the states it is granted only in cases of equi- table debts and claims ; {e) and refused where the debt is such as that it is demandable in a suit at law. {f) The statute of Illinois, revision of 1874, however, provides " that writs of ne exeat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and honafide in expectancy at the time of making application, as in cases where the demand is due ; and it shall not be neces- sary, to authorize the granting of such writ of ne exeat, that the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity." (§ 2.) " In cases of joint, or joint and several obligors and debtors, if one or more of them be about to remove without the jurisdictional limits of the state, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of Buch intended removal, such co-obligor or co-debtor who remains, shall be entitled, on application, to a writ of ne exeat, to com- pel the co-obligor or co-debtor who is about to remove, to secure the payment of his part of the sum to be paid, or of the delivery of the property, or to convey, or to join in the con- veyance of the land. Also, in cases of security, the writ of ne exeat may issue, on application of a security against the principal or co-security, when the obligation or debt shall not {d) Oleason ts. Bisby, 1 Clarke, 551 ; Cowdin vs. Cram, 3 Edw. Ch. 251 ; Beymour vs. Hazard, 1 Johns. Ch. 1 ; Johnson vs. Clendenin, 5 Gill & J. 463; Hunter vs. Nelson, 5 Blackf. 263 ; Oreshnm vs. Peterson, 25 Ark. 377 ; see Samuel vs. Wiley, 50 N. H. 353 ; Bnos vs. Hunter, 4 Gilm. 211. (e) Palmer vs. Van Doren, 2 Edw. Ch. 425 ; Seymour vs. Hazard, 4 Johns. Ch. 1 ; Hunter vs. Nelson, 5 Blackf. 263 ; Dean vs. Smith, 23 Wis. 483 (/) Nixon vs. Richardson, 4 Dessau. 108 ; Brown vs. Haff, 5 Paige, Ch. 235 ; see Fisher vs. Stone, 3 Scam. 68. NE EXEAT. 557 Nature of, and when Proper. yet be due, and the principal or co-securitj is about removing out of the state." {g) Independent of the statute, courts of chancery may award the writ of ne exeat upon all equitable demands. It is an efficient remedial process in cases of a bill for an account or for alimony. (A) The 12th section of article II of the constitution provides that "no person shall be imprisoned for debt unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in case where there is strong presumption of fraud." This provision of our constitution has abolished such imprisonment as practiced under the common law, and where a debt is the basis of the action, in order to justify imprisonment, the foundation must be laid in the fact of a refusal to deliver up property for the benefit of creditors, or fraud in contracting or evading pay- ment of the debt. And in proceedings for ne exeat, the bill must show, by facts stated and circumstances detailed, that the debtor has been guilty of fraud or that there is a strong pre- sumption of fraud. (/) A writ o^ ne exeat will not be granted where it appears frora the bill or petition that a complete remedy may be had at law; {jy and where it is based on the ground that the defendant has sold all his property, and is about to depart the state, it must show that the property alleged to have been sold was not exempt from execution, or it will be defective. (Jc) (g) Rev. Stat. (1874) 716; Rev. Stat. (1877) 678. (A) Denton vs. Denton, 1 Johns. Ch. 441; Dean vs. Smith, 23 Wis. 483; Hammond vs. Hammond, 1 Clark, 551; Prather vs. Prather, 4 Dessau. 33. (0 Malcolm vs. Andreivs, 68 111. 100; see Ex parte Smith, 16 111. 847; Parker ^15. FoUensbce, 45 111. 73; West vs. Walker, 6 Blackf. 420. (j) Victor Scale Co. vs. Shurtliff, 81 lU. 313. {k) Jones vs. Kennicott, 83 111. 484. 558 NE EXEAT. Form of Bill. SECTION II. BILL FOR. No. W5. Bill for ne exeat republica. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour 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 before 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 costs 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 snm of dollars, with one E. F., as security ; which bond was dul}- 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 your orator further shows, that the said C. D. has lately threatened and given out that he M^ill speedily leave this state and go to the State of Kansas. Yonr 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 without any security whatever for the amount of his said judgment. Your orator further represents unto your honor, that the said appeal is still pending and undetermined in said circuit court. That the said sura 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. D., who is made party defendant to this bill, may NE EXEAT. 559 How Obtained — By whom Granted — Bond, etc. be required to make fall and perfect answer to the same, but not under oath, the ansioer under oath being hereby waived j and that the defendant may be stayed by the people's writ of ne exeat republica 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 require and to your honor shall seem meet. May it please your honor to grant unto your orator the people's writ of ne exeat republica, staying the said 0. D. from departing 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. for Complainant. A, B. (^Add affidavit as follows ;) No. 206. Affidavit to a bill for ne exeat. State of ) County of f " ' * 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 whom 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." {a) Bill or petition for — Bonds to be given, etc. — The revised •statute of Illinois, of 1874, in relation to ne exeat, provides that, (§5.) " No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations (a) Bassett vs. Bratton, 86 111. 152. 560 NE 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 effect, 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 filed, 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 directmg 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 same. (§ 7.) "All writs of ne exeat shall be returnable into the court out of which they issue." No. W7. Order of judge grantvng 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 (A;) Mattocks vb. Tremain, 3 Johns. Ch. 75. (0 TTwrne vs. Ealsey, 7 Johns. Ch. 189 ; OiJbert vs. Colt, Hopk, Ch. 496. (m) Cowdin vs. Cram, 3 Edw. Ch. 231. (to) Woodward vs. Schatzell, 3 Johns. Ch. 412. 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 in 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 hand, etc. — The statute directs that, (§ 8.) " The writ of ne 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 from 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. Burrender the said defendant, in exoneration of himself, 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." CHAPTEK XXXYII. BILLS TO EESTEALN 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, (b) 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) 3 Story's Eq. Juris. § 913. (6) 2 Story's Eq. Juris. § 913 ; Powys vs. Blagrave, 27 Eng. Law & Eq. R. 568 ; see Abraham vs. Bubh, 2 Freem. Ch. 53; Oarth vs. Cotton, 1 Dick. 185, 205, 208 ; Eden on Inj. ch. 9, pp. 163, 163 ; Davis vs. Leo, 6 Ves. 787. (c) Fa/rrant vs. Lowell, 3 Atk. 733 ; S. C. Ambler, 105. (d) Pratt vs. Brett, 3 Mad. 63 ; Onslow vs. , 16 Ves. 173. (e) Douglas vs. Wiggins, 1 Johns. Ch. 435 ; 3 Story's Eq. Juris. § 913. 564 BILLS TO KESTRAIN WASTE. Nature of, and when Proper. cases of mortgages, if the mortgagor or mortgagee in posses- Bion commits waste, or threatens to commit it, an injunction will lie. (/) Equitable waste is deiined to consist of sucli acts as are not considered waste at law, being consistent with the legal rights i, 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, [h) And if the tenant for life commits waste mali- ciousl}', 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. (Jc) 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 niight be proper in England. {[) 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 (/) Farrant vs. Lovell, 3 Atk. 723 ; PJmnix vs. Clark, 2 Halst. Ch. 447 ; Eden on Inj. ch. 9, pp. 165, 166 ; Brady vs. Waldron, 2 Johns. Ch. 148 ; » Story's Eq. Juris. § 710, a, 914. (fir) Story's Eq. Juris. § 915 ; High on Inj. § 432. (A) HawUy vs. Clowes, 2 Johns. Ch. 123. {i) Ahraliam vs. Buhh, 2 Freem. Ch. 53 ; see Vane vs. Barnard, 1 Salk» 161 ; Clement vs. Wheeler, 25 N. H. 360 ; Packington vs. PacMngton, 3 Atk. 215. {j) Aston vs. Aston, 1 Ves. 2(54 ; Marker vs. Marker, 9 Hare, 1. {k) Clement vs. Wieeler, 25 N. H. 361. (0 Keeler vs. Eastman, 11 Vt. 293 ; Findlay vs. Smith, 6 Munf. 134. (m) London \B.Warfield, 5 J. J. Marsh. 196 ; Livingston vs. Reynolds, 26' Wend. 115 ; Oibson vs. Smith, 2 Atk. 183. (») 7 Ves. 309 ; see Coffin vs. Coffin, Jac. R. 70. BILLS TO EESTEAIN WASTE. 565 Nature of, and when Proper. and heir at law, or otherwise, an injunction will not be granted, (o) A bill in equity is the appropriate remedy for a mortgagee against a mortgagor in possession, who is impairing the security by committing waste, (j?) A tenant in dower of coal lands, or a tenant for life, may take coal to any extent from a mine already opened, or sink new shafts into the same vein of coal ; (^) and may take reason- able firewood ; {r) but it has been held, that a tenant for life has no right to take clay or wood from the premises for the manufacture of bricks, (s) An injunction to stay waste is, as a general rule, prospect- ive, and the court will not, unless under very special circum- stances, grant an injunction to prevent the removal of timber already cut ; {t) and, so far as the bill seeks to recover for waste already committed, it cannot be sustained, {u) An injunction against waste may be obtained against a vendor if the contract is admitted ; (v) so also against a mort- gagor, (w) or a mortgagor in fee, or for years ; (x) but a mort- gagor may cut under-wood of proper growth, (y) It also iies against lessee to prevent his cutting growing timber; (s) or injuring fish ponds; {a) or breaking up ancient meadow or (o) Meld vs. Jackson, 2 Dick. 599 ; Smith vs. Collyer, 8 Ves. 89 ; Pils- worth vs. Hopton, 6 Ves. 50, a ; Norway vs. Roice, 16 Ves. 146, 154. {p) Cooper vs. Davis, 15 Conn. 556 ; Brady vs. Waldron, 2 Johns. Ch. 148 ; Salmon vs. Clagett, 3 Bland, 125 ; Capner vs. Flemington Mining Co. 2 Green, Ch. 467. {q) Crouch vs. Fury ear, 1 Eand. 258 ; 7 Harris, 323 ; 12 Id. 162. (r) Gardiner vs. Bering, 1 Paige, Ch. 573. (s) Livingston vs. Reynolds, 2 Hill, Ch. 157 ; 26 Wend. 115. (f) Watson vs. Hunter, 5 Johns. Ch. 169. {u) Bovming vs. Palmater, 1 Monr. 64. {v) Norway vs. Rowe, 19 Ves. 150 ; Smith vs. Price, 39 111. 28. {w) 8 Atk. 210 ; Oray vs. Baldwin, 8 Blackf. 164 ; Maryland vs. Northern, etc. 18 Md. 193. {x) 3 Atk. 723 ; Nelson vs. Pinegar, 30 111. 473 : Ensign vs. Colburn, 11 Paige, Ch. 503. (y) Hampton vs. Hodges, 8 Ves. 105. (s) Vansendau vs. Rose, 2 Jac. & W. 264 ; Bishop of Winchester vs. W<^ gar, 3 Swanst. 493, note a. (a) Earl of Bathurst vs. Burden, 2 Bro. Ch Ca. 64, 566 BILLS TO EESTEAIN WASTE. Form of Bill, pasture land ; (5) or from sowing lands with mustard or any other pernicious crop ; (c) or from digging the soil for bricks ; {d) or acting- contrary to his express covenants, (e) The threatened in closure of a highway will be prevented by an injunction. (/") » An executor who has no estate in premises, but who is authorized to lease them, cannot maintain an action on the case for waste. Such action must be by a reversioner in fee. The only remedy of the executor for the injury is by action upon the covenants in the lease, {g) The reader is referred to 2 Story's Eq. Juris. § 909-920 High on Inj. § 419-457, for a further investigation of waste. SECTION II. FORM OF BILL. No. W9. Bill hy landlord against tenant to restrain waste — 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 before and at the time of making the lease herein- after mentioned, your orator was seized in fee simple of the premises hereinafter described ; and being so seized, b}' a certain lease, bearing date on, etc., and made by and between your orator, of the one part, and C. D , of, etc., the defendant here- inafter named, of the other part, your orator demised, leased, and to farm let, unto the defendant, all, etc., {Here describe the 'premises /) to hold the same, with the appurtenances, unto the defendant, on, etc., for the term of years, then next ensu- (&) Lord Orwy de Wilton vs. Saxton, 6 Ves. 106 ; Drury vs. Molins, 6 Ves. 228. (c) Pratt vs. Brett, 2 Mad. 62. {d) BisJiop of London vs. Welh, 1 P. Wms. 527. (e) Kimpton vs. Eve, 2 Ves. & B. 349 ; Steward vs. Winters, 4 Sandf. Ch. 587 ; Baugher vs. Crane, 27 Md. 36 (/) Craig vs. The People, 47 111. 487, (g) Page vs. Davidson, 22 111. 112 BILLS TO EESTEAIN WASTE. 567 Form of Bill. ing, at the animal rent of dollars ; and the defendant did thereby covenant, promise and agree wnth your orator, that he would, during the said term, keep the said premises in good repair, and manage and cultivate the said farm and lands in a proper, husbandlike manner, according to the custom of the country, as by the said indenture of lease, reference being there- unto had, will more fully appear. Your orator further represents, that the defendant, under and by virtue of the said indenture, entered upon the said demised premises, with the appurtenances, and became, and was pos- sessed thereof for the said term so to him granted thereof by your orator as aforesaid. And your orator further represents, that at the time the defendant entered upon the said premises, the same were in good repair and condition, and your orator hoped the defendant would so have kept the same, and have cultivated the said lands in a proper and husbandlike manner, according to the custom of the country, and that such part of the said premises as consisted of meadow or pasture ground would have remained so, and not have been ploughed up, and converted into tillage ; and that no waste would have been committed on the said premises. But now so it is, the defendant contriving how to wrong and injure your orator in the premises, pretends that the said premises are now in as good repair as when he entered upon the same, and that he has cultivated the said farm and lands in a proper and husbandlike manner, and that no waste has been committed by him thereon. Whereas, your orator charges, that the said premises, and the buildings, out- houses, gates, stiles, rails and fences, were in a good and perfect state and condition, when the defendant entered upon the said premises, but now are very ruinous and bad, and the land very much deteriorated, from the willful mismanagement and im- proper cultivation thereof, by the defendant, who has ploughed up certain fields situated, etc., containing respectively acres, and has otherwise committed great spoil, waste and de- struction in, upon and about the said premises. Your orator further represents, that the defendant threatens, and is about to plough up the remaining pasture-fields on said premises, and to commit other waste upon said lands and appur- tenances, which will be an irreparable injury to the same ; and that the defendant is so insolvent that any judgment your orator might recover against him in an action at law, could not be collected from him. And your orator further charges, that the defendant ought to put the said premises in the same condition they were in when 568 BILLS TO EESTEAIN WxiSTE. Form of Bill. he entered thereon, and to make your orator a reasonable com- pensation for the waste and damage done or occurred thereto ; and that the defendant ought to be restrained by the order and injunction of this honorable court, from ploughing up the remaining pasture-fields upon said premises, which he threatens to do, and also restrained from committing any farther or other "waste, spoil, or destruction, in and about or to the said estate and premises or any part 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 party defendant to this bill, may be required to make full and direct answer to the same ; hut not under oatli^ the answer under oath heing hereby waived / and that upon the final hearing hereof, the defendant may be decreed to put the said premises into such repair and con- dition, in every respect, as far as circumstances will permit, as the same were in at the time he entered upon the same under said lease as aforesaid ; and to make a reasonable compensation to your orator for all wastes done, committed or sufiered by him on the said premises, and all damages occasioned thereto by his mismanagement or neglect ; and that he may be decreed to keep the said premises in good and sufiicient repair and condition during the remainder of his time therein, and to manage and cultivate said farm and lands in a proper and hus- bandlike manner, according to the custom of the country ; and that he may be restrained by the order and injunction of the court from ploughing up the said remaining pasture-fields forming part of said demised premises, and from committing or permitting any further waste or spoil in, on or to the said 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, etc. {Conclude with a prayer for summons and injunction, and affidavit as in No. IJfS, ante, page JfiG.') CHAPTER XXXYIII. BILLS RELATING TO TRUSTS. Section 1. Nature of, etc. 2. Form op Bills. SECTION I. NATURE OF, ETC. Cbaiiceiy always has jurisdiction to enforce a trust, and for this purpose may appeal to the conscience of the trustee ; and, although the trust may be established by other evidence, this does not impair the jurisdiction of a court of chancery to enforce the trust, {a) If a trustee neglects his duties as trustee, a court will remove him and appoint another, (b) While a court of equity will not enforce the acceptance of a trust, it will, when it is voluntarily assumed, enforce a faithful execution of it, for the preservation of rights depending upon and derivable from it. (c) Where a conveyance is made to several, in trust, the failure of one of the co-trustees to act will not defeat the conveyance. In such a case equity will entertain jurisdiction, for the pur- pose of preserving the trust, (d) After a trust has been declared in a deed, the grantor, by express agreement or otherwise, has no power to alter and change the terms or conditions of the trust. The beneficiaries (a) Coates vs. Woodworth, 13 111. 654 ; Norton vs. Hixon, 25 111. 440 ; see Boyle vs. Murphy, 22 111. 502. (b) Lill vs. Neafie, 31 111. 101 ; see Attorney General vs. Garrison, 11 Mass. 223. (c) Cooper vs. McClun, 16 111.435; see Mcholl vs. Ogden, 29 111.323; Dorsey vs. Garey, 30 Md. 489. {d) Mcholl vs. Miller, 37 111. 388 ; McCosker vs. Brady, 1 Barb. * 'h. R. 329. 670 BILLS KELATIXG TO TRUSTS. Nature of, etc. take by the deed a vested interest that is not subject to the control of the grantor, nor to any change by the trustees, {e) In all cases, in order to invoke the interposition of a court of equity, the trust and the abuse of it must be clearly estab- lished in accordance with the rules by which courts are gov- erned in administering justice, {f) 'Courts of chancery have power, in cases of necessity', to order a disposition of trust estates which is not in accordance with the provisions of the deed creating the trust. This power will, however, be exercised with great caution ; and it is the duty of the court, when unforeseen exigencies arise, which make its exercise necessary, to place itself in the position of the creator of the trust, and to do as he would have desired if he had an- ticipated the existing circumstances, {g) Where the sole trustee for infants, appointed under a will, dies, and the will does not provide for the appointment of a successor, a court of equity will appoint one. (A) And where it was shown that the cestui que trust was prohibited by the laws of the state from coming within its limits, the court sub- stituted for such trustee, a person living in the state where the cestui que trust resided, {i) Where an estate is given to trustees, to be disposed of by them at their discretion for \\\q, support of a cestui que trusty a court of equity will not interfere to control that discretion, unless there has been abuse of the trust, {j) {e) McDonald vs. Starhey, 43 111. 442; Padfield vs. Padfield, 72 111. 323. (/) Happy vs. Morton, 33 111. 398; see Brunnenmeyer vs. Buhre, 32 111. 183: Marlow vs. Marlow, 77 111. 633. ■{rj) Curtiss vs. Bronm, 29 111. 201; see AJemany vs. Wensinger, 4:0 Cal. 288; Jenkins vs. Dolittle, 69 111. 415. {h) Dunscomb vs. Diinscomb, 2 Hen. & M. 11; Giiion vs. Pickett, 42 Miss. 77; Buchanan vs. Hart, 31 Texas, 647. (0 Ex parte Tunno, 1 Bailey, Ch. 395; see Maxwell vs. Finnie, 6Coldw. Tenn. 534. {j) Smith vs. Wildhani, 37 Conn. 384; see Adams y^. Adams, 79 111. 517; Steele vs. Clark, 77 III 471 ; Emmons vs. Moore, 85 111. 304; Atty. Gen. vs. III. Ag. College, 85 111. 516. BILLS RELATING TO TRUSTS. 571 Form of Bill to Remove Trustee. SECTION II. FORM OF BILLS. No. '210. ■ Bill to remove trustees, for injunction and receiver. To the Honorable , Judge of the Court of the County of , in the State of — --, In Chancery sitting : Tour orator, A. B., and your oratrixes, B. B., the wife of A.. B., and C. B., the daughter and only child of A. B. and B. B., all of, etc., respectfully represent unto your honor, that on, etc., a cer- tain deed of conveyance of that date was executed between your orator, A. B. and your oratrix, B. B., his wife, of the one part, and 0. D. and E. F., of, etc., the defendants hereinafter named, of the other part, which said deed is in the words and figures and to the purport following, that is to say, {Here set out copy of deed verbatim,) as by the said deed, ready to be produced in court, will appear. Your orator and oi-atrixes further represent, that the defend- ant C D. has principally acted in the trust of the said deed, and has, by virtue thereof, from time to time, received consid- erable sums of money and other ellects, but he has applied a small part thereof upon the trusts of the said deed, and has applied and converted the residue thereof to his own use ; and, in particular, the said C. D. has, within a few months past, received a considerable sum of money from the estate and effects of the said D. B., the whole of which he applied to his own use. Your orator and oratrixes further represent, that they have repeatedly applied to the defendants for an account of the said trust property received and possessed by them, and of their application thereof. And your orator and oratrixes well hoped that the defendants would have complied with such reasonable request, as in equity they ought to have done. But now so it is, the defendants combining and confederating, and contriving so to wrong and injure your orator and oratrixes in the premises, absolutely refuse to comply with such requests ; and pretend that the trust property and effects possessed and received by them were to an inconsiderable amount, and that they liave duly applied the same upon the trusts mentioned in said deed. Whereas your orator and oratrixes charge the contrary of such pretenses to be the truth ; and that 80 it would appear if the 572 BILLS KELATING TO TRUSTS. Form of Bill to Eemove Trustee. defendants would set forth, as they ought to do, a full and true account of all and every the said trust property and effects which they have respectively possessed and received, and of their application thereof. Your orator and oratrixes further represent, that the de- fendant C. D. threatens and intends to use other parts of the said trust property, and to apply the same to his own use, and will do so, unless he is restrained therefrom by the injunction of this court ; that both said defendants ought to be removed from being trustees under the said deed, and that some other person or persons ought to be appointed by this court, as such trustees in their place and stead; and that in the meantime some proper person ought to be appointed to receive, take charge of and collect the said trust property. Forasmuch, therefore, as your orator and oratrixes are with- out 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 defendants to this bill, may be required to make full and direct answer to the same, hut not tender oath, the answer under oath heing hereby waived ; and set forth a true and perfect account in items of all the trust funds and effects received by them re- spectively, by virtue of the said deed, and of their application thereof; and that upon the hearing hereof an account may be taken of all and every the said trust property and effects, which have, or but for their willful default or neglect might have, been received by them, or either of them, or by any other person or persons, by their or either of their order, or to their or either of their use ; and also an account of their application thereof ; and that the defendants may respectively be decreed to pay what shall appear to be due from them upon such account ; and that the defendants may be removed from being trustees under the said deed ; and that two other persons may be ap- pointed trustees under the said deed in their place and stead ; and that in the meantime some proper person may be appointed to receive and collect the said trust estate and effects ; and that your orator and oratrixes 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. {Here insert prayer for injunction and summons and affidavit, as in JVo. 128, ante, page 34£.) BILLS KELATING TO TEUSTS. 573 Form of Bill for Appointment of New Trustee, etc. No. ^11. Bill for the aj)pointm.ejit of a new trustee under marriage settlement. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator A. B., and oratrix B. B., his wife, and your orators C. B. and D. B., minors, under the age of twenty-one years, by the said A. B., their father and next Iriend, and your orator E. F., all of, etc., respectfully represent unto your honor, that on, etc., your orator A. B. and oratrix B. B., then B. E., being about to be united in the bonds of matrimony, entered into an ante-nuptial contract or marriage settlement, signed by each, and bearing date on that date, which is in the words and figures and to the purport following, that is to say : {Here i/nsert copy of marriage settlement verbatim,) as by the said instrument, ready to be produced in court, will appear. Your orators and oratrix further represent, that the said ante- nuptial contract or marriage settlement contains no power or authority to appoint a new trustee in the place or stead of either of the said trustees therein named, who should decline to act in the said trusts, or be desirous to be removed there- from, as by the said instrument will appear. Your orators and oratrix further represent, that the said in- tended marriage was soon afterwards, to-wit, on, etc., had and solemnized between your orator A. B. and oratrix B. B. ; and that your orators C. B. and D. B. are the only children born of such marriage. That the said G. H., the defendant hereinafter named, one of the trustees named in the said instrument, as co-trustee of your orator E. F., declines to act in the trust of the said instrument, and is desirous to be relieved and dis- charged therefrom, but by reason that no power is reserved in the said instrument for the appointment of a new trustee, your orators and oratrix are advised that he cannot be discharged from such trust, nor any new trustee appointed in his stead, without the aid of a court of equity. Forasmuch, therefore, as your orators and oratrix are without remedy in the premises, except in a court of equity ; and to the end that the said G. H., 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 hei'eby waived J and that the court may appoint a new trustee under the said marriage settlement, in tlie place and stead of the defend- ant; and that the defendant may be decreed to join in such 674 BILLS EELATI^G TO TKUSTS. Form of Bill for Appointment of New Trustee, etc, instrument or instruments as may be necessary to convey or release the said trust premises to your orator E. F., his co- trustee, and such new trustee upon the trusts of the said mar- riage settlement ; and that thereupon the defendant may be discharged from the trusts of the said instrument ; and that your orators and 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 , com- manding him that he summon the defendant G. H. 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. , Sol. for Gomplaincmts. CHAPTER XXXIX. PEOCEEDINGS TO ENFORCE MECHANIC'S LIEN. ion 1. Nature op. 2. Where a Lien is Given. 3. The Contract upon which it is Founded. 4. Discharge of Lien. 5. Limitation of Lien. 6. Incumbrances and Other Liens. 7. Sub-Contractor's Lien. 8. Bells and Petitions. 9. Proceedings Upon. 10. Amendments. 11. Answer. 13. Cross-Bill. 13. Decrees. 14. Costs. SECTION I. NATURE OF, Proceedings to enforce mechanics' liens being in derogation of the common law, and deriving all their validity from the statutes, must, in all essential particulars, conform to the requirements of the statutes. The statutes in reference to liens have been thoroughly revised by the legislature at its adjourned session of 1874, and the mode of proceeding is plainly pointed out in its numerous provisions. The pleadings are made up as in other cases in chancery, and the practice and proceedings are, in the main, governed by the same rules as in other equitable suits, {a) The mechanic's lien law only applies to individuals and private corporations ; it does not apply to work done on state, county, city or other public corporntions. (x) (a) Kimball vs. Cook, 1 Gilra. 430; Sutherland vs. Ryerson, 24 111. 518; Brady Y&. Anderson, 24 111.112; Hatnilton ys. Dunn, 22 III. 259; West vs. Fleming, 18 111. 248. {x) TJionuis \s. Ind. University, 71 111. 310; Board of Ed. vs. Neiden- herger, 78 111. 58; Thomas vs. Urbana School Dist., 71 111.283; Bouton vs. Supervisors etc., 84 111. 384. 576 MECHANIC'S LIEN. Where a Lien is given. SECTION II. WHEKE A LIEN IS GIVEN. The revised act of 1874 provides, (§ 1.) " That any person who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or piece of land, furnish labor, or material, or service as an architect or superintendent, in building, altering, repairing or ornamenting any house or other building or appurtenances thereto on such lot, or upon any street or alley, and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house or building and appurtenances for the amount due to him for such labor, material or services." House painters are within the protection of the mechanic's lien law, which secures to persons who furnish labor, materials for erecting, etc., a building. (Z») The lien commences on the delivery of the materials or the performance of the labor, and not from the date of the con- tract. It is not the contract which creates the lien, but the use of the materials or labor furnished under a contract for that purpose, (c) If the materials furnished and used become severed from the freehold by fire, the lien is not thereby destroyed, {d) There must be an actual use of the materials or labor on the building, or the lien will not attach, {e) Where lumber and materials are furnished on an open account, without reference to its being used in any particular building, the lien will not be enforced. The contract must refer to some particular build- ing in order that the lien may take eifect. {f) In a proceeding to establish a lien to secure payment for (h) Martine vs. Nelson, 51 111. 422. {c) McLaganva. Brown, 11 111.519, 526; Williams vs. Chapman, 11 1\\. 425; Hunter vs. Blanchard, 18 111. 318. {(I) Gatij vs. Casei), 15 111. 190; Steigleman vs. McBride, 17 111. 300; Sontag vs. Brennen, 75 111. 279. (e) Hunter vs. Blanchard, 18 111. 318. (/) Hill vs. Bishop, 25 111. 349; Burkhart vs. Reisig, 24 111. 582. MECHANIC'S LIEN. 577 Where a Lien is given — Extent of, etc. lumber sold by the complainant to the defendant, the evidence showed that the lumber was used in completing the building on the defendant's premises, and that it was furnished for that purpose at his request. This was regarded as sufficient to bring the case within the statute of 1861. {g) Suits hy and against administrators, etc. — The statute pro- vides that, (§ 26.) " Suits may be instituted under the provisions of this act, in favor of administrators or executors, and may be main- tained against the representatives in interest of those against whom the cause of action accrued ; and in suits instituted under the provisions of this act, the representatives of any party who may die pending the suit, shall be made parties." Estate to which lien attaches. — The statute provides that, (§ 2.) " The lien provided for in sections one and twenty- nine of this act shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which such owner may have in the lot or land at the time of making the contract." A widow's dower cannot be affected by a mechanic's lien. (A) But where the contract was made by the husband, for a build- ing on the wife's separate property, with her knowledge, appro- bation and consent, the property is subject to the lien. (^) A contract with an infant is not binding upon him, and there can be no lien on his land for labor or materials, {j) Extent of lien. — The statute provides that, (§ 21.) " Whatever right or estate such owner had in the land at the time of making the contract, may be sold, and the proceeds of the sale applied according to the provisions of thia act." {h) (g) Corey vs. Croskey, 57 111. 251. (A) SJuieffer vs. Weed, 3 Gilm. 511. (t) Schwartz vs. Saunders, 4C> 111. 18 ; see Baxter va. Sutchings, 49 111. 116. ij) McCarty vs. Carter, 49 111. 53. {k) See Kidder vs. AfioUz, 3G 111. 478 ; Donaldson vs. Holmes, 23 111. 85. 37 578 MECHANIC'S LIEN. Where a Lien is given — Extent of Lien. If the person who procures the work to be done, or materials to be furnished, has any estate less than a fee simple, or if the lands are incumbered in any way, the person who procured the work to be done, or materials to be furnished, will, neverthe- less, be considered the owner to the extent of his interest or right in the premises ; and the lien will bind his whole estate or title in the same manner that a mortgage would have done, and his whole estate may be sold and the proceeds applied to pay the debts and liens on the same. {I) Where A. bought land and took only a contract for a deed when he paid the purchase money, and afterwards, with the knowledge of his vendor, contracted for the erection of a house, it was held that he was the owner within the meaning of the statute ; and in this case the court ordered the land to be sold and the mechanics to be first paid out of the proceeds, and the balance to the vendor of the land. (7?^) The fact that only one of the defendants owned the land will not defeat the lien, (n) And where one member of a firm owns a lot, and the firm ordered materials and made the im- provement, the lien would hold, notwithstanding the title was in one member, and a note was given by the firm in payment for such materials, (o) Where the real owner of land stands by and suflfers another to contract for the building of a house upon it, he will be estopped from setting up title to defeat the lien. (^:?) A person in possession of public lands has an estate in the premises subject to a mechanic's lien, (q) but the decree can only affect the interest which the defendant has in the pro- perty, (r) Where labor or materials are furnished on separate lots, the (Z) Turm'n vs. Saunders, 4 Sciuii. 531 ; Dohschuets vs. HolUday, 82 111. 372. (m) Donaldson vs. Holmes, 23 111. 85. {n) Roach vs. Ghapin, 27 111. 197 ; Van Court vs. Buslinell, 21 III. 626. (p) Croslccy vs. Corey, 48 111. 444. (p) Donaldson vs. Holmes, 2d 111.85; Higgin xa. Ferguson, 14 111.270; Schwartz vs. Saunders, 46 111. 18 ; Baxter vs. Hutchings, 49 111. 116. (g) Turncy vs. Saunders, 4 Scam, 527. (r) Garrett vs. Slcrenson. 3 Gilm. 261; Jndson vs. Stephens. 75 111. 255. MECHANIC'S LIEN. 579 Contract upon which it is Founded — Implied Contract, etc. lien will be against each lot separately, for the amount of labor or materials furnished on each respectively. But where they are furnished to build one block, all under one roof, all compact as one building, though covering more than one lot, it waa held proper to decree a lien against the entire block which the building covered, (s) SECTION III. THE CONTRACT UPON WHICH IT IS FOUNDED. Within what time to he comjpleted. — The statute provides that, (§ 3.) " When the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof. If the work is done or materials are furnished under an implied contract, no lien shall be had by virtue of this act, unless the work shall be done or materials be furnished within one year from the commencement of the work or delivery of the mate- rials." Where there was an expressed contract, it was held that the time for completing the work or furnishing the materials should be specified in the contract or the lien would not attach, if) Implied contracts. — The contract must have reference to some particular tract of land or town lot, in order that a lien may take effect, {u) But where a contract is made to faraish materials for a building in process of erection, it is sufficient, although the ground upon which it is erected is not described. Where materials are furnished and placed in a building, if there (s) James vs. Hambleton, 43 111. 310. (t) Cook vs. Vreeland, 21 111. 43G; Senior vs. Brehnar, 23 111. 252; 3Ioser vs. Maff, 24 111. 198; Coburn vs. Ti/ler, 41 111. 354; Baxter vs. Hutchings, 49 111. 116; see Clark vs. Manninfj, 90 111. 380. (m) BurkhaH vs. Reisig, 24 111. 532. 580 MECHANIC'S LIEN. Contract on which it is Founded — Discharge of Lien. is nothing showing a different intention, a jury would be war- ranted in finding that they were 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 la/nd failing to comply with contract. — 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 fui"nish 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. DISCHAKGE 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. McGord, 36 III. 214; Martin vs. Ecersal, lb. 223. \w) Claycomb vs. Cecil, 27 111. 497. Ix) Wetherill vs. Ohlendorf, 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 Groskey 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, {h) 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 lien 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 mvner. — 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 etc. — The statute of 1879 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 or pur- chaser, 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 (b) Kinzeij vs. Thomas, 28 111. 503; see Conover vs. Warren, 1 Gilm. 501; Croskeij vs. Corey, 48 111. 444; Gardner vs. Hall, 29 III. 277; Clement vs. Newton, 78 111. 427. (c) Gardner vs. Hall, 29 111. 277. {d) West vs. Fleming, 18 III. 248; Culver vs. Elwell, 73 111. 536 (e) Delahay vs. Clement, 3 Scam. 201. (/) Garrett vs. Stevenson, 3 Gilm. 261. {g) Laws of 1879, p. 191; Lunt vs. Stejjhens, 75 111. 507; Reitz vs. Coyer, 83 111. 28; Crowl vs. Nagle, 86 111. 437; Rogers vs. Powell, 1 Bradwell, App. 'Ct. R. 631. 682 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. (A) SECTION VI. INCinVIBEANCES AND OTHEK LIENS. Prior incumbrances. — 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.) " 1^0 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." Rule 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 {h) Van Pelt vs. Dunford, 58 111. 145. (V) Sliaeffer vs. Weed, 3 Gilm. 511 ; Raymond vs. Ewing, 26 111. 343. (j) Smith vs. Moore, 26 111. 392 ; Brown vs. Moore, lb. 421 ; Croskey vs. If. W. Manuf. Co. 48 111. 481 ; Rowett vs. Selbi/, 54 111. 151 ; Raymond va,. Ewing, 26 111. 329 ; Oaty vs. Casey, 15 111. 190 ; Lomax vs. Bore, 45 111. 380. MECHANIC'S LIEN. 583 Incumbrances and other Liens — Conflicting Liens. a mechanic's lien is this : JSTeither 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 satisfied out of the fund upon which he has a first lien, and if that should be insufiicient, then the residue out of any surplus of the other fund which might remain after satisfying the prior lien thereon. (Jc) In order to know what proportion of the proceeds of the sale of the premises should be paid to the prior incumbrancer^ 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. (J) Conflicting liens. — The statute provides that, (§ 14.) " Upon questions arising between difi^erent 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 ^re few claimants, and there is no (Jc) North Preshijterian Church of Chicago ys. Jevne, 32 111. 214; Crosket/ vs. N. W. Manuf. Co., 48 HI. 481; Dinghdme vs. Hershman, 53 111. 280; Hoiretf vs. Selbg, 54 111. 151 ; Traci/ vs. Rogers, 69 111. 662; Lunt vs. Stephens, 75 111. 507; Grundeis vs. Hartwell, 90 111. 324. {I) N. Pres. Church vs. Jevne, 32 111. 214; Croskei/ vs. N. IF. Mmiuf. Co., 48 111. 481 ; see Rogers vs. Powell, 1 Bradwell, App! C. R. 631. (/«) Power vs. McCord, 36 111. 214; Croshey vs. Corey, 48 111. 442; see Raymond vs. Ewing, 26 III. 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, (n) Where claims are not due. — The statute provides that, (§ IG.) " 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 from the date of judgment to the time such claim is due or payable." {o) Parties claiming liens may contest each otlier'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 to 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," Fraudulent incumhrances. — The statute provides that, (§ 19.) " Any incumbrance, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent in resjDect 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 respect 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 be 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 (ft) rower vs. McCord, 36 111. 214. (o) Sec Kinney vs. Iludunt, 2 Scam. -172. 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, perfoi-m 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 than 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 difierence 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 difference 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 fir as the sum named in the ori2:inal contract or a<>-reement." 586 MECHANIC'S LIEN. Sub-Contractor's Lien — Notice to Owner, etc. Notice to he given to owner. — (§ 30.) " The 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 : Tou are hereby notified that I have been em- ployed by , to {Here state whether to labor or furnish inaterials, and substantially the nature of the undertaking or demand) upon j^our ijiere state the building^ and where situ- ated., in general terms) ; and that I shall hold the {J)uilding, or as the case moAj be^ 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 be served on owner. — (§ 31.) " If there is a contract in writing between the original contractor and the Bub-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 be 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 persons 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 iraprovement." Extent of lien. — (§ 33.) " No claim of any sub-contractor, mechanic, workman, or other person, shall be a lien under section twenty-nine of this act, except so far as the owner may MECHANIC'S LIEN. 687 Sub-Contractor'a 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 such contractor." Owner may retain money to pay sub-contractor. — (§ 34.) " 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 the owner. — (§ 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 tei'ms of contract, and how much, if anything, is due to them or any of tliem — which statement shall be made under oath, if rce recovered in an action of debt, before a justice of the peace." When suh-contr actor may enforce lien. — (§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 be due from such owner to the original con- tractor, then such person may file his petition and enforce his 588 MECHANIC'S LIEN. Sub-Contractor'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 hefoj^e justice of the peace. — (§ 38.) "If execution issued on a judgment obtained before a justice of the peace ghall 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 pay 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 amount so found in favor of the contractor shall be divided between the persons entitled to such liens pro rata in propor- tion to the amounts so found due to them, respectively. If the amount so found to be coming to the contractor shall be suffi- cient to pay such liens in full, the same shall be so ordered. The premises may be decreed to be sold for the payment of such liens as in other cases." Proving claims, etc. — (§ 40.) "All persons who shall be duly notified of such proceeding, and who shall fail to prove MECHANIC'S LIEN. 589 Sub-Contractor's Lien — Contractors may give Bond, etc. their claims, whether the same be in judgment against the owner or not, shall forever lose the benefit of and be precluded from their liens and all claims against the owner. (§ 41.) " Upon the filing of such bill or petition, the court may, on motion of any person interested, stay any further pro- ceedings upon any judgment against the owner on account of Buch lien." Contractor may give hond^ etc. — (§ 42.) " Upon entering into a contract to do any work or furnish materials for which a lien might accrue under section one of this act, if the contractor will enter into a bond with the owner, for the use of all persona who may do work or furnish materials pursuant to such con- tract, conditioned for the payment of all just claims for such work or materials as they become due (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such surety as shall be approved by the judge of the circuit court, or a master in chancery of said court), and shall file the same in tlie ofiice of the clerk of said court, then no lien shall attach in favor of such sub-contractor, mechanic or other person. (§ 43.) " A like bond may be made and filed, as provided in the foregoing section, at any time after the making of such contract, and shall have the efi'ect to discharge all such liens as shall have accrued before the filing thereof, and to prevent the accruing of any such liens tliereafter. (§ 44.) " Any person having a claim against such contractor for work done or materials furnished pursuant to such contract may put the said bond in suit for his use, or in case the same shall have been put in suit, have his damages assessed as in other suits upon penal bonds." Where contractor fails to complete his contract. — (§ 45.) "Should the original contractor, for any cause, fail to com- plete his contract, any person entitled to a lien as aforesaid, may file his petition in any court of record, against the owner and contractor, setting forth the nature of his claim, the amount due, as near as may be, and the names of the parties employed 690 MECHANIC'S LIEN. Bills and Petitions. on such house or other improvement subject to liens; and notice of such suit shall be served on the persons' therein named ; and such as shall appear shall have their claims adju- dicated, and decree shall be entered against the owner and original contractor for so much as the work and materials shall be shown to be reasonably worth according to the original con- tract price, first deducting so much as shall have been rightfully- paid on said original contract by the owner, and damages, if any, that may be found to be occasioned the owner by reason of the non-fulfillment of the original contract, the balance to be divided between such claimants in proportion to their respect- ive interests, to be ascertained by the court. The premises may be sold as in other cases under this act. (§ 46.) " 'No payments to the original contractor or to his order shall be regarded as rightfully made, if made in violation of the rights and interests of the persons intended to be bene- fited by this act." Limitation. — (§ 47.) " No petition shall be filed or suit commenced to enforce the lien created by section twenty-nine, unless the same is commenced within three months from the time of the performance of the sub-contract, or dm'ing the work or furnishing materials, as aforesaid: Provided, if any delay in filing such petition or commencing suit is caused in consequence of the amount not being due the original con tractor, the time of such delay shall not be reckoned." SECTION VIII. BILLS AND PETITIONS. The statute of 1874 provides that, (§ 4.) " The lien given by this act may be enforced by bill or petition in any court of record of competent jurisdiction in the county in which the land or lot, or some part thereof, lies. (§ 5.) " The bill or petition shall contain a brief statement of the contract on which it is founded, if expressed, or if the MECHANIC'S LIEN. 591 Bill or Petition — Parties to. work is done or materials are furnistied under an implied con- tract, the bill or petition shall so state, and shall show the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understandino; of the rights of the parties." The petition or bill should aver that the times for delivery, performance and payment are within the several periods named by the statute ; and these averments must be proved, so that the court may know that the conditions required by the statute have been complied with, {p) The bill or petition must show that the work was completed ; and a contract which does not specify a time within which the work is to be completed and the money is to be paid, is defect- ive, {q) So, also, in regard to the time when materials were to be furnished and paid for under the agreement, (r) If the claimant is entitled to interest, he should claim it in his bill or petition, or he cannot recover it. {s) Parties. — Suits to enforce a mechanic's lien being a chancery proceeding, all persons interested in the property should be made parties, {t) And pei'sons not parties to the proceeding will not be affected by it. [u) Thus judgment creditors should be made parties, if it is designed to affect or defeat their rights, (-v) A widow is not a proper party where her only interest in the premises is her dower. {^) {p) Cooh vs. Heald, 21 111. 429; Phillips vs. Stone, 25 111. 77; Columbus Mach. M. Co. vs. Darwin, lb. 169; Roivley vs. James, 31 111. 298; Sutherland vs. Rijerson, 24 111. 517; Powell vs. Webber, 79 111. 134. ((/) Rogers YS. Ward, 23 111. 473; Coo A; vs. Ilcald, 21 111 429; Burklmi vs. Reisig, 24 111. 529; Kinzetj vs. Thomas, 28 111. 502; see § 11 of revised act of 1874; Grandies vs. HurtwcU. 90 111. 324. (r) Cook vs. Rofinot, 21 111. 437; Brady vs. Anderson, 24 111. 112; Bush vs. Connelly, 83 111. 448; see contra Roach vs. Chapin, 27 111. 195. (s) Prescott vs. Maxwell, 48 111. 82; Mills vs. Heeney, 35 111. 173. (0 Lomax vs. Dore, 45 111. 379; Greenleafvs. Beebe, 80 111. 520. (w) Sfeigleman vs. McBride, 17 111. 300; Williams vs. Chapman, lb. 422; Raijmond vs. Swing, 26 111. 329; Meeks vs. Sims, 84 111. 422. (v) McLagan vs. Brown, 11 111. 519; see Race vs. Sullivan, 1 Bradwell's App. Ct. R. 94. (tv) Shaeffer vs. Weed. 3 Cilni. 511. 592 MECHANIC'S LIEN". Form of Bill for Lien, on Written Contract. The statute provides that, (§ 12.) " In proceedings under this act all persons interested in the subject matter of the suit, or in the premises intended to be sold, may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment. (§ 13.) "Parties in interest, within the meaning of this act, shall include all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions of this act." No. 'B12. Bill for a mechanic's lien, on written contract. 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 by occupation a contractor and builder ; that on, etc., one C. D., of, etc., one of the defendants hereinafter named, applied to your orator to build for him a dwelling- house, upon the premises hereinafter named, and thereupon your orator and the said C. D. entered into a written contract, with drawings and specifications attached, in the words and figures as follows, to wit : {Here set out copy of contract, etc.,) as will appear by the said contract, drawings and specifications ready to be produced in court upon the hearing hereof. Your orator further represents, that immediately after the making of said contract, and in compliance with the terms thereof, he commenced work under the same, on the following described premises, to wit : {Here describe the^remises on which huilding was erected^ the said C. D. being, at the time of the making of the said contract, and still is, the owner of the said premises. Your orator further represents, that he did, in compliance with the said contract, within the time therein specified, erect and finish for the said C. D., on said premises, a dwelling-house, and did furnish all the necessary materials and labor for that purpose, and did in all respects comply with the terms of the said contract, and the specifications and drawings thereto at- tached, by him required to be performed. Your orator further represents, that in accordance \vith the conditions of the said contract, your orator, on, etc., procured MECHANIC'S LIEN. 595 Form of Bill for Lien, on Written Contract. from E. F., the architect and superintendent of the erection of the said building, a certificate in writing tluit your orator had completed his part of the said contract according to the terms and conditions thereof, which said certificate is now in the pos- session and control of the said C. D. Your orator further represents, that immediately after the completion of the said building, to wit, on, etc., the said C. D. accepted the same, and took possession thereof, and has ever since occupied the same with his family as a dwelling-house. Your orator further represents, that the said C. D. has only paid your orator the sum of dollars on said contract, and that there is now due to your orator thereon the sum of dollars, from the said C. D., together with interest thereof from, etc. ; and your orator attaches hereto a schedule, marked A., as a part of this bill, showing the amount due your orator under said contract, and all payments, with the dates thereof, made by the said C. D. to your orator. Your orator further represents, that he has frequently re- quested the said C. D. to pay the said sum of dollars, the balance due your orator from him as aforesaid, but the said 0. D. has neglected and refused to do so ; by means whereof your orator is entitled, mnder the statute in such case provided, to a lien upon the said premises for the amount due your orator as aforesaid. Your orator further represents, upon information and belief, that G. H. and L. M., of, etc., have or claim, some interests in the said premises, as purchasers, mortgagees, judgment cred- itors, or otherwise, the precise nature whereof is unknown to your orator ; but such interests, if any there be, have accrued since, and are subject to the lien of your orator as aforesaid. 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., G. H. and L. M., who are made parties defend- mts to this bill, may be reqiiired to make full and direct an- swer to the same, but not under oath, the answer under oath leing hereby waived j that an account may be taken in this behalf under the direction of the court ; that your orator may be decreed to be entitled to a lien upon the said premises for the amount due your orator under the said contract, in pursu- ance of the statute in such case made and provided ; and that the defendant C. D. may be decreed to pay your orator the amount due, by a short day to be fixed by the court, and that in default of such payment the said premises may be sold, as the court shall direct, to satisfy such amount and costs ; that in case of such sale and of a failure to redeem therefrom pursuant 594 MECHANIC'S LIEN. Petitioa for Lien, on Verbal Contract. to law, 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 re- demption of the said premises ; 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 sherilf of the said county of , commanding him that he summon the defendants C. D., G. H. and L. M., 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. {Add schedule A.) No. '213. Petition for meGhanids lien, on verbal contract. To the Honorable , Judge of the Court of the County of , in the State of Illinois, The petitioa of A. B. and C. D., of, etc., partners under the name and style of B. & D., respectfully represents, that your petitioners are, by occupation, builders and dealers in lumber and other building materials, and their place of business is in, etc. Tliat on or about, etc., one E. F., who is made party de- fendant to this petition, applied to your petitioners and desired them to furnish all the materials and labor for, and to build for him a dwelling-house on the following described lot, to wit : {Here describe the premises upon which building was erected j) owned in fee simple by the said E. F. ; and thereupon a verbal contract was entered into between your orators and the said E. F., by which your petitioners were to furnish all the necessary materials, as follows, to wit : {Here describe materials to be used^ and all necessary labor, and erect for the defendant a dwelling- house on the said described lot, and have the same completed, ready for occupancy by, etc. ; and it was agreed by the parties in said contract, that, etc., {Here set forth the terms of the con- tract as to how the house should be constructed, finished^) and it was further stipulated and agreed by the defendant that he would pay your petitioners for such materials, and all neces- sary materials and labor upon said building, as much as the same were reasonably worth ; and that the defendant would pay to your petitioners, as the work progressed, as follows, to wit : {Here insert the terms of payment^ 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. S'.io Petition for Lien, on Verbal Contract. said contract, proceed to funiisli 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 used in the construction of tlie said dwelling-house, is liereto attached, and marked '"Exhibit A.," and is made a part of this petition. Your petitioner further represents, that in said bill of par- ticulars marked " Exhibit A," each and every item of materials furnished, and of the labor performed and bestowed in the erection of said building, is fairly and jiistly 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 labor 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 good and workmanlike manner. Your petitioners further represent, that the said building was actually erected on said lot, under said contract, and the same constitutes a valual)le 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 requested 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 t^nd 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, hut not under oath, the answer under oath being hereby waived / that the defendant may be decreed to pay your petitioners the amount so due them, as aforesaid, within a short day to be fixed by the court ; and that in default thereof, then the said premises may be decreed to be subject to your petitioners' 596 MECHANIC'S LIEN. Petition for Lien, on Implied Contract. lien on the same, and may be bold as the court shall direct to satisfy the amount so due the petitioners as aforesaid, together with the costs of this proceeding, in pursuance to the statute in such case provided ; tliat in case of such sale, and a failure to redeem therefrom, pursiuiut to law, that the defendant and all persons claiming through or under him, after the commence- ment of this suit, may be forever barred and foreclosed of all right or equity of redemption of the said premises ; and that your petitioners 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 ^ocess as in number 212, kntQ, page 592.) No. 21Jf,. Petition for a mechanic's lien on an implied contract. To the Honorable , Judge of the Court of the County of , in the State of Illinois. Your petitioner, A. B., of, etc., respectfully represents unto your honor that he is, and has been for a number of months last past, engaged in dealing in lumber and other building mate- rials in , in said county ; that on, etc., one C. D., of, etc., who is made a party defendant to this petition, who was then erecting, or about to commence tlie erection and construction of a flouring mill, contracted with your petitioner for the sale and delivery to him of lumber of various sorts, dressed and undressed, shingles, lime, cement and other building materials, to be used in and about the construction of said mill, the same to be, and then being erected on the following described prem- ises, to wit : [Here describe the premises on wliich viill icas built,) of which the said C. D. was then and still is the owner. Your petitioner further repi'esents, that no particular amount of lumber and other materials was specifically .contracted for, nor was the kind or quality specifically named, nor was the time or times of the delivery thereof definitely fixed, but it was understood and agreed between your petitioner and the said C. D. that your petitioner should furnish and deliver to the said C. T>. such quantities of lumber and other materials, and of the kind and quality, as your petitioner might have for sale, and the said C. D. might need in and about the construc- tion of the said mill, and as he might call for or order from time to time, during the process of the erection of the said mill, which was to be completed on, or before, etc. ; and that the whole amount of lumber and materials contracted for as afore- MECHANIC'S LIEN. 597 Petition for Mechanic's Lien, on Implied Contract. eaid, -were to be furnished within that time ; that your peti- tioner was to furnish the said himber and other materials to the said C. D. at tlie usual and market price, and that the same were to be paid for on delivery. Your petitioner further represents, that in pursuance of said contract, and upon the request of the said C D., your peti- tioner, on, etc., commenced furnishing and delivering to the said C D. lime, lumber and other materials for his said build- ing, and continued thereafter and until, etc., to furnish and deliver to him such materials of the kinds, qualities, amounts and dates respectively as is shown by the bills thereof, hereto attached, marked exhibits 1, 2, 3 and 4, and made a part of this petition. Your petitioner further represents, that the whole of said lumber and other materials shown by said bills, were actually used in and about the erection and construction of said mill, situate and built upon the premises aforesaid. Your petitioner further represents, that the prices annexed respectively to the several items for materials in said bills con- tained are the usual and market price for such materials, at the times respectively when the same were furnished ; that your petitioner has been paid in cash to apply upon said mate- rials so furnished, the amounts as shoM'n in and by the credits upon said bills, and no more, and that there still remains due your petitioner thereon the sum of dollars, together with interest thereon from the time said materials were furnished, which the said 0. D. agreed to pay, and which your petitioner claims. Your petitioner further represents, that he has frequently applied to the said C. D. for the payment of the amount 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 Gr. 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 C. D., E. F. and G. H., who are made parties defendants to this petition, may be required to make full and direct answer to the same, but not under oath, the answer unde?' oath being hereby waived / that your petitioner be allowed to have and 698 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 tlie 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 ; an(| that the said C. D. may be decreed to pay the same, tof^etlier with the costs of this proceeding, by a short day to be tixed by the court ; and that in default 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. ^m, ante, page 692.) SECTION IX. PROCEEDINGS UPON. Summons. — The statute provides that, (§ 6.) "Upon the filing of such bill or petition, summons shall issue, and service thereof be had, as in suits in chancery," {x) Notice hy puhli cation. — (§ 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 in suits in chancery." (_y) Cases to he placed nn c^xincery doclxet. — The statute re- quires that, (§ 8.) " Suits instituted under the provisions of this act shall be placed upon the chancer^ docket, and stand for trial as other suits in chancery." (x) Ante, pp. 74-77, (?/) Ante, pp. 77-79. MECHANIC'S LIEN. 599* Amendments — Answer. SECTION X. AMENDMENTS. The statute provides that, (§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." (s) SECTION XI. ANSWER. The statute requires that, (§ 10.) " Defendants shall answer the bill or petition under oath, unless the oath is waived by the complainant or peti- tioner, and the plaintiff 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 be 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 has no other or greater weight than an answer not sworn to. {a)' [z) Ante, pp. 164-170. (o) Clarke vs. Boi/le, 51 111. 104; see L. S. d- M. S. R. R. Co. vs. McMillan, 84 111. 208. 600 MECHANIC'S LIEN. Form of Answer by Owner, Defendant. No. 215. Answer of owner defendant to a hill or petition for a 'mechanic's lien. In the Court. C. D. et at. ) Term, 18—. vs. > In Chancery. A. B. ) The separate answer of C. D., one the defendants to the bill of complaint {or petition) of A, B., com- plainant, {or petitiojier.) This defendant reserving to himself all right of exceptions to the said bill of complaint {or petition), for answer thereto eajs, (*) He admits that he did, about the time mentioned in said bill {or petition)^ make a verbal contract with the complainant {or petitioner) to bnild 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 correctl}^ set forth in said bill {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 oif 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 especiallj: states that the flooring used in said house were not well seasoned, and not clear and free from knots and other imperfections, iDut, 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 unfit 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 his 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 petitio7ier) came to this defendant and stated that he had completed and finished the said house, and desired this MECHANIC'S LIEN. 601 Form of Answer by Owner. defendant to examine and accept the same as fully completed and finished according to the terms of the contract, and this defendant did look at said house, and the same appeared to be 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 petitioner) 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 2)etitioner), and acting on the same, did accept the said house from the complainant {or 2)Gtitione7^), 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 fires in the difierent rooms, so as to dry out and season the said lumber, in said floors, the same began to warp and shrink, and did continue to season and warp and shrink, until many of the boards became loose, and tlie 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 lai-ge 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 tbe damage which he has sustained by reason of the said failure of the complainant {or ])etitioner) 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 roay 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 y) and prays to be dismissed M^th his reasonable costs and charges in this behalf most wrongfully sustained, etc. Sol. for Defendant. C. D. {If oath is not loaived, add affidavit, N'o. 58, ante, 2)cigc 11^0.) 602 MECHAXIC'S LIEK Forms of Answers, etc. No. 216. Answer to a jpetitiori for a mechanic's lien, setting uj) a discha/rge of lien. {Proceed as in No. 215, ante, page 600, to tice asterisk, (*) and' then proceed ;) Tills defendant admits that lie did make a contract with the petitioner as set forth in his said petition, and that the peti- tioner did constrnct 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 dollars, 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 this defendant in full payment and discharge of the said balance so being and remaining due on said contract as aforesaid ; and so this defend- ant says, that the lien of the petitioner, if any he ever had, has 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 defendant. C. D. {If oath is not waived, add affidavit, No. 58, ante, page lJf9.) No. 217. Answer of defendant setting up a lien for materials, etc. {Proceed as in No. 215, ante, page 600, to the asterisk, (*) and then proceed :) This defendant answering says, it may be true, for anything this defendant knows to the contrary, that, etc. {Here substan- tially set forth the statement of the petitioner'' s claim ;) 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., tlie said defendant C J), was engaged in building a mill on, etc. {Here describe the preTnises on which the huilding 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 this 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 different 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- ant attaches to this answer, and as a part thereof, a bill of said lumber, so furnished, marked " Exhibit A," which contains a j^ar- ticular description of said lumber, with the dates when the same was furnished, and with the price and vahie of each item or article of lumber set opposite the same; and this defendant avers that all the items or articles of lumber in sai'd 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 answ^ering, says, that at the time of the selling said lumber to the defendant C. D., there w^as no agreement as to the price or value of the same, nor was any agreement made as to when the defendant C. D. should pay for the same; and this defendant avers that he is by law entitled to ask and receive for said lumber as much 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 tlie 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 wholly unpaid. Wherefore, this defendant claims and insists that he is entitled to have a lien on the said premises, equal to that of the petitioner or any other person having a lien 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 premises for the said sum of 604 MECHANIC'S LIEN. Form of a Cross-Bill in. dollars ; and that the said sum may be decreed to be paid to this defendant within a short day to be named in the said decree, and that in default of such payment the said premises may be decreed to be sold, and the proceeds applied accord- ing to the statute in such case made and provided. SECTION XII. CEOSS-BILL. Mo. 218. Cross-hill hy a defendant to a hill or petition for a mechanic's lien to enforce lien of defendant. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc, C. D., of, etc., one of the defendants here- inafter named, exhibited in this honorable court his bill of complaint {or jpetition) 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 suhstance of the ])rayer •) and your orator being duly served with process, appeared and put in his answer thereto, as by the said bill {or petition) 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 eaid 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 bill, to wit : {Ilere describe the p>remises^ of which said lot the said E. F. was then, and still is, the owner. And your orator further represents, that on, etc., tlie defend- ant E. F. applied to your orator, who is a brick and stone mason by occupation, and desired him to do certain work, that is to say, to build the foundation, basement and cellar walls, and chimneys of said house; and, thereupon, your orator and the said E. F. contracted that your orator M^as to build the foundation, basement and cellar walls, and chimneys to said house, ali of , said work to be done under the direction of the defendant E. F. or his agent ; and the said E. F. then and there agreed' to and with your orator to pay him for such work the sum of dollars per thousand, according to the custom- ary manner of measuring such work. MECHANIC'S LIEN. 606 Form of Cross-Bill. And your orator further represents, tliat, in pursuance of said contract, lie did, on, etc., the time indicated by tlie said E. F., commence work for the said E. F. under said contract, and did so continue to work until all of said work, and all the work that the said E. Fw desired your orator to do was fully completed. Your orator further represents, that all said work was done under the direction of the said E. F., and in the manner indi- cated by him ; and that under said contract your orator laid up in said walls thousand brick, as shown by the bill of items hereto attached, marked " Exhibit A.," and made a part hereof; that the whole amount due your orator for said work is dollars. Your orator further represents, that no time was agreed upon when said work was to be paid for, but your orator avers, that by the understanding of the parties, the said sum became due to your orator as soon as said work w^as finished ; and your orator represents that the said work was all finished and com- pleted on, etc. ; and that the said sum of dollars became due on the said 'day last aforesaid, and still remains wholly unpaid. Your orator further represents, that all of said work was done and finished within one year from the time of commencing to do said work, as fully appears by the dates heretofore given ; and by reason of the premises, and of the failure of the said E. F. to pay him the said sum of money so due as aforesaid, your orator is entitled to a lien on the said premises to secure your orator the sura so due liim as aforesaid. 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 and the said E. F. and G. H., and to the end that the said C. D., E. F. and G. H., who are hereby made parties defend- ants to this cross-bill, may be requii'ed to make full and direct answer to the same, hut not under oath, the answer under oath heing herehy waived ; that an account may be taken of the amount due your orator; and that tlie defendant E. F. be de- creed to pay your orator the amount which shall be found to be due, by a short day to be fixed by the court ; that the rights and interests of each and all of said parties may be ascertained and adjusted ; and that your orator may have a lien on said premises for the amount of his said claim ; and in case default shall be made by the defendant E. F. in making said payment within the time limited as aforesaid, that the said premises be sold under the direction of this court, and the proceeds of said 606 MECHANIC'S LIEN. Decrees, et6. sale be applied to the payment of such claims, including your orator's, as may appear to be liens upon such premises; and that your orator may have such further and otlier relief in the Premises as the nature of his case shall require and to your on or may seem meet. t {Attach exhibits, and if any new parties are to he made^ add prayer for process as in No. ^12, ante, page 592.) SECTION XIII. DECREES, ETC. The court generally may, if it sees proper, direct the sale of the estate of all the parties having an interest in the premises. But the better practice is not to do so if the objects of the statute can be attained by decreeing a sale of the interest of those parties only against whose interests the lien equitably attaches, (h) Where a part can he sold, etc. — The statute provides that, (§ 22.) " If any part of the premises can be separated frou: the i-esidue, and sold without damage to the whole, and if the value thereof is sufficient to satisfy all the claims proved in the cause, tlie court may order a sale of that part." Sales, how 7nade. — f§ 23.) "The sale shall be made in the same manner as other sales of real estate under decrees in chancery." Redemption allowed. — (§ 24.) " Upon all sales under tliis act, the right of redemption shall exist in favor of the same persons, and may be made in the same manner as is or may be provided for redemption of real estate from sales under judg- ments and executions at common law." Execution allowed for balance due. — The statute further pro- vides that, (§ 25.) " If, upon making sale of any premises under this act, the proceeds of such sale shall not be sufficient to pay the (6) Kidder vs. AhoUz, 36 111. 478. MECHANIC'S LIEN. 607 Form of Decree, etc. claims of all parties, according- to their rights, the judgment shall be credited by the amount of such sale, and execution may issue in favor of any creditor whose claim is not satisfied, for the balance due, as upon a judgment in actions of debt or assumpsit, and in case of excess of sales over the amount of judgment, such excess shall be paid to the owner of the land, or to the person who may be entitled to the same, under the direction of the court." No. ^19. Decree allowing lien and for a sale of the jpremises. {Caption., and title of cause as in No. 79, a.nte, page 198.) This cause having come on to be heard upon the bill [or peti- tion) of complaint herein, the answer thereto, the replication of the complainant [or petitioner) to such answer, and the court having heard the evidence both oral and documentary, and the same having been argued l)y the counsel for the respective parties; and being fully advised in the premises, doth find that the matters in the said bill {or petition) are true; and that, etc., {Here set forth the suhstance of the facts as found., or stated ill the hill or petition f) and that there is now due the complainant {or petitioner) the sum of dollars, for which sum he is entitled to a lien on the said premises, to wit : {Here descrihe the lot on xohicli huilding was erected^) in accordance with the statute in such case provided. It is therefore ordered.^ adjudged and decreed., that the com- plainant {or petitioner) have a lien on the said described prem- ises for the amount so found to be due from the defendant C. D. ; that the defendant CD. pay to the complainant {or petitioner) the said sum of dollars, with interest from the date of this de- cree, within days from this date ; and in case the said defend- ant C. D. shall make default in the payment of the said sum of money within the time herein limited, that the master in chan- cery of this court shall make sale of the said premises, or such part or parts thereof as may become necessary to pay the amount aforesaid, at public vendue, to the highest and best bidder for cash, after having first given public notice, by publication in some newspaper published in said county, of the time and place of said sale, and the terms thereof; and upon the making of such sale the said master will issue a certificate of purchase to the purchaser, as provided by law ; and out of the proceeds of such sale the said master will pay first, the costs of these proceedings, including his commissions and the expenses of the sale, and second, pay to the complainant {or petitioner) the said 608 MECHANIC'S LIEN. Forms of Decree, etc. sum of dollars, and the interest due on the same ; and the surplus, if any, to the defendant C. D. ; and the said master will report his doings in the premises to the court. iV'^(9. 220. Decree for meclianic^ a lien, where there are other proceedings pending unadjusted. {Caption., and title of cause as in Ko. 79, a.nte, page 198.) And noAV this cause coming on to be lieard 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: {Sere describe the premises on which the I/uildi?ig was erected i) 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 for 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 further order that the complainant have a mechanic's lien on said premises with the appurtenances for the said sum of dollars, and that said lien commence and take effect 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. 221. Decree allowing mechanic's lien where there are several liens and a inortgage 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 pleadinijs, 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 whom 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 premises on which the huilding mas erected^ prior to the making of the improvements referred to in the pleadings, and the additional value which said improvements have given to 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 that the same were furnished under a contract for that purpose, and were to be and were used by 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 find 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- plainant A. B. in the sura 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 89 610 MECHANIC'S LIEN. Form of Decree. cause commenced to take eft'ect ; 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 said premises, up to and before tlie 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 the 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 inentioned, 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 as the law requires in case of sherili''s sale of land on execution, and that tlie said master execute to the purchaser or purchaserp 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 j9W 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. shall have a ijro 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 tlie 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. MECHANICS LIEN. 611 Costs. SECTION XIV. COSTS. The statute, revised in 1874, provides that, (§ 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." For other cases under Mechanic's Lien Law, see Cunning- ham vs. Ferr^j, 74 111. 426; Kelly vs. Kellogg, 79 111. 477; Taylor vs. Gilsdorff, 74 111. 354; Schnell vs. Clements, 73 111. 613; Theilman vs. Carr, 75 111. 385; Drew vs. Mason, 81 111. 498 ; Orr vs. JSf. M. L. Ins. Co., 86 111. 260 ; Wing vs. Carr, 86 111. 347 ; Dunphey xs. Riddle, 86 111. 22 ; Straton v».0'Bara, 86 111. 53 ; Daois vs.Con?i. M. Life Ins.Co., 84 111. 508 ; Reed vs. Boyd, 84 111. Q*^ ; Johnson vs. Estahrook, 84 111. 75 ; Rogers vs. Foioell, 1 Bradwell, App. Ct. R. 631. As TO SuB-CoNTKACTORS, sec Morehouse vs. Moulding, 74 111. 322; Biggs vs. Chq?}), 74 111. 335; Newhall vs. Kastens, 70 111. 156 ; Brown vs. Lowell, 79 111. 484 ; Mehrle vs. Dunne, 75 111. 239 ; Bridge Co. vs. Z. N. A. c& St. L. Ry. Co. 72 111. 506 ; Metz vs. Lowell, 83 111. 565 ; Work vs. Hall, 79 111. 196 ; Ctdver vs. Elwell, 73 111. 536 ; First Baptist Church vs. An- drews, 87 111. 172 ; Adams vs. Russell, 85 111. 284 ; Quhm vs. Allen, 85 111. 39 ; Meeks vs. Sims, 84 111. 422. CHAPTER XL. INJUNCTIONS, An act 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 rkay grant^ 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.) "ISTo court, judge or master shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected therein^, or such of them as can conveniently be served, unless it shall appear from the bill or affidavit ac- companying the same, that tlie rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice. To stay judgments, where had. — (§ 4.) " When an injunction shall be 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 re.sides. Shall operate as a release of errors. — (§ 5.) "Every injunc- tion, when granted, shall operate as a release of all errors in the proceedings at law that are prayed to be enjoined. (J) (a) See Phelps vs. Foster, 18 111. 309 ; Welch vs. Byrns, 38 111. 20. (&) See McConnell 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, besides 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 sufficient to cover costs, {d) Comjylainant to give hond. — (§ 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 sufficient 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 per 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^ bond 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. Aj>proval of hond. — (§ 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, {e) (c) See Breckenridge vs. McCormick, 43 111. 491 ; Wiley vs. Sutherland, 41 111. 25. ((f) Duncan vs. Morrison, Breese, 151 ; Holmes vs. Statelet, 57 111. 209. (e) 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 sucli 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 fi'om 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 wliich the said injunction is pendftig, 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. (^) Motion to dissolve in vacation. — (§ 14.) " A defendant may move to dissolve or modify an injunction in vacation, either for (/) SeeTTinAZer vs. Winkler, 40 111. 179 ; Mimer 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. Sutton, 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 ; Hamilton vs. Stuart, 59 111. 330 ; Albright vs. Smith, 6 Chicago Legal News, 247. ig) See The People, etc. vs. Oilmer, 5 Gilm. 242 ; Welsh vs. Byrng, 38 lU. 20 ; Crook vs. The People, 16 111. 534. INJUNCTIONS. 615 Motion to Dissolve, etc. want of equity in the bill or upon the coming 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) Motion to dissolve for want of eqxtity. — (§ 15.) " A motion to dissolve an injunction may 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, (i) Affidavits ujpon 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 that 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 {h) SeeWangelin vs. Goe, 50 111. 459 ; Titus vs. Mabee, 25 111. 257. (i) See Gray vs. McCance, 11 111. 325. 616 INJUNCTIONS. Appeal, etc. — When granted on Sunday. taken in the same manner as other testimony in cases in chancery. Depositions inay "be read on final hearing. — (§ 20.) "Depo- sitions taken upon a motion to dissolve an injunction may be read in the final hearing of the cause. Effect of an appeal 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 allowing 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 procirring such order. Ftirthefr hond on continuing of injunction. — (§ 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 farther 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 afiidavit 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 affidavit 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 INJUNCTIONS. 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 sherifi' 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 .nswe" fully. Third. — Were, etc. {Here insert such additional inter rogatories as may he deemed necessary. ) , Sol. for Complaina/nt. No. SJfJf. Answer to interrogatories iti the last form, No. 24S. {Title of cause as in No. 2J{S, Vos,t, page 6^8.) 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 , 18 — . To the first interrogatory, this defendant answers and says, that, etc. To the second interrogatory, 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. 628 MISCELLANEOUS FORMS. Master's Report upon Exceptions, etc. — Further Answer, etc. No. ^JfS. Master's report upon exceptions to answer for insujjiciency. {r) In the Court. A. B. ) Term, 18— . vs. \ In Chancery. CD.) 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 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 find 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 in Chancery, County. No. ^4.6. Further answer after exceptions and amendment. In the Court. Terra, 18—. In Chancery. The further answer of the defendant C. D. to the original bill of complaint ; and the answer of the same defendant to the amended bill 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 FOKMS. 629 Report of Master, etc. — Exceptions to Report, etc. reserved for answer thereto, or so much, etc., {as in iVb. 67, ante, page 14^,) 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 answer, says, etc. {and so on.) And this defendant, for further answer to the amendments made to such original bill, says, etc. • iVt?. ^^7. Master's report as to sufficiency of defendants exa/mmation. {Title of cause as in No. ^4^, ante, 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- ficient. 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 bo brought before me, I examined him upon oath upon the writ- ten interrogatories filed for that purpose, and also vi/va 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. ^^8. Exceptions to master'' s report on exceptions to answer, {s) {Title of caicse as in JVo. ^4^, ante, 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 report, certified that, etc. {Here set out the words of the report.) Whereas, the said master ought to have certified that («) See ante, p. 157, ei seq. 630 MISCELLANEOUS FOEMS. Agreement to Submit Cause, etc. — Abstract of Pleading, etc. the exceptions to the answer of the defendant C. D. were well taken, and that the said answer of the defendant C. D. wa& imperfect, insufficient and evasive in the particulars ex- cepted to. Second. — For that the said master has certified, etc., [and so on.) In all whicli particulars the report of the said master is erroneous, and the complainant appeals therefrom to the judg- ment of this honorable court. , Sol. for Com/plainant. No. '21)9 Agreement to submit the cause on written arguments. In the ' 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 within days after the defendant's argument shall have been served. Dated, etc. Sol. for Complainant. Sol. for Defendant. No. '250. Abstn^act of pleadings, etc. In the Court. Term, 18—. In Chancery. 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 pf 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 FORMS. 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 inj unction ; that defend- ant may be decreed to execute con- veyance ; and for general relief. REPLICATION. For complainant, E. F. testifies that, etc. G. H. testifies that, etc. ANSWER. Admitted. But the defendant, on, ere, purchased of L. M. all the im» I)r ^^^^ ^^ error to {or appeal from) the Court of n Y) \ the County of . And the said A. B., the defendant in error {or appellee^, by — , his attorney, comes and says that there is no error, either in the record and proceedings aforesaid, or in giving judgment aforesaid, in manner and form as above assigned; and therefore he prays that the said judgment may be affirmed, that his costs may be adjudged to him, etc. By , his attorney. Special pleas to an assignment of errors contain matters in confession and avoidance, as a release of errors, or the stat- ute of limitation, etc., to which the plaintiff in error may reply or demur, and proceed to trial or argument. By pleading specially the appellee or defendant in error waives the right to join in error. If he should plead a re- lease of errors, and be unable to sustain his plea, he cannot afterward be allowed to join in error, {e) If a special plea is sustained by proof, the j-udgment of the court below will stand affirmed, {f) Release of errors. — A plea of release of errors should aver (fc) Tidd's Pr. 1174. (c) Boynton vs. Champlin, 40 111. 63. (d) lb.; Gibbs vs. Blackivell, 40 111. 63; Steele vs. The People, 40 111. 59. (e) Austin vs. Bainer, 40 111. 82; see Dinet vs. PfirsJmtg, 86 111. 83. (/) Smucker vs. Larimore, 21 111. 267. SUPEEME AND APPELLATE COURTS. 675 Release of Errors. that it was by deed, by parol, or by acts m pais. It should state the facts that are relied on as a release of errors, {g) The payment of a judgment before execution issues, (A) or the granting of an injunction to stay proceedings subse- quent to a judgment, (^) will not operate as a release of errors. "Where a party, by his warrant of attorney to confess a judgment, authorizes the release of all errors, and his attor- ney under such warrant does so, this will preclude him from assigning error to the proceedings, {j) Where a party voluntarily receives the benefit of a judg- ment or decree, he cannot afterward allege that the same was erroneous ; and a plea of a release of errors thereby would be sustained, (/t) Nor can a party avail himself of a part of a decree in his favor and secure its fruits, and then reverse in an appellate court such portions as militate against him. If a decree is reversed -the parties should be placed in statu quo. (1) Acts in 2>ais^ occurring either before or after the rendition of a decree, to reverse which a writ of error is sued out, which would make it fraudulent in either j)arty to seek a reversal of the decree, may be pleaded in bar of the writ.(??i) A party to a record cannot release an error which is per- sonal to another party. But a release by one of several de- fendants to a record where the error only relates to the party who executes the release, is good, (n) A release of errors, although presented in writing, signed • [g) Corwin vs. Shoup, 76 111. 246; see Chamhlin vs. Blair, 58 111. 385; Kern vs. Zinh, 55 111. 449. (A) Richeson vs. Ryan, 14 111. 74. (0 St. L. & T. H. R.R. Co. vs. Todd, 40 111. 89; McConnell vs. Ayers, 3 Scam. 210. ij) Hall vs. Hamilton, 74 111. 487; Hall vs. Jones, 32 111. 38. {k) Ruckman vs. Ahvood, 44 111. 183; Morgan vs. Ladd, 2 Gilm. 414; TJiomas vs. Negus, 2 Gilm. 700; Corwin vs. Shonp^'^Q 111. 246. {I) Holt vs. Rees, 46 111. 181. (w) Austin vs. Bainter, 40 111. 82. (w) Henrickson vs. Van Winkle, 21 111. 274. 676 SUPREME AND APPELLATE COURTS. Release of Errors — Form of. by the parties in whose names a writ of error was sued out, cannot be properly brought to the notice of the court except by being pleaded, (o) Tiine of filing pleas. — Eule 58 of the supreme court, (^) and rules 38 of the second district and 39 of the fourth dis- trict of the appellate court (r6> confesso^ 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 terra, set aside the same, or enlarge the time for filing 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 plaintiff" in the suit up to that time, or such part thereof as the court shall deem reasona- ble, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. SECTION VI. FKAME 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 t)rought. 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 of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says, that," etc. 21. The plaintiff, 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 contrary 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 714 RULES OF U. S. SUPREME COURT. Scandal and Impertinence in Bills. upon by tlie 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 lu which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of 7ie 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, 60 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 iu 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 three dollars for every bill or answer. SECTION VII. SCANDAL AND IMPERTINENCE IN 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 EULES OF U. S. SUPREME COURT. 715 Amendment of Bills. h(EG 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 iiiaster by any jndge 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, answerer 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 filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary 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 shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any 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 tlie 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 refer- 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. 716 RULES OF U. S. SUPREME COURT. Demurrers and Pleas. 29. After an answer or plea or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his 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 may 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 the court, upon motion or petition, after due notice to the other 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 other terms as may be imposed by the judge for speeding the cause. 30. If the plaintifi", 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 ofiice, 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. DEMUKEEE8 AND PLEAS. 31. No demurrer 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. RULES OF U. S. SUPREME COURT. 717 Answers. 34. If, upon the hearing, any demurrer or plea is overruled, the plaintiff 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 interpose the same, and it was not 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 be taken against him jpro confesso, and the matter thereof 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 plaintiff, 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 so 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 sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. SECTION X. A2T8WEKB. 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 718 EULES OF U. S. SUPREME COUET. 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 filing 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 hona jide 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 60 stated or charged, such answer shall be deemed impertinent December Term,^ 1850. Ordered, That the fortieth rule heretofore adopted and pro- mulgated by this court as one of the rules of practice in suits in equity in the circuit courts be, and the same is hereby, repealed and annulled. And it shall not hereafter be neces- sary to interrogate a defendant specially and particularly 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 other, and numbered consecutively 1, 2, 3, etc. ; and the interrogatories which each defendant is required to 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 furnished 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 Buch note after the bill is filed, shall be considered and treated as an amendment of the bill. RULES OF U. S. SUPREME COURT. 719 Parties to Bills. 43. Instead of the words of the bill now in use, preceding the 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 following: "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 respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct and per- fect answer make to such of the several interrogatories herein- after numbered and set forth, as by 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 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. 45. No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the-plaintiif to amend his bill, he may have leave to amend the same with 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 filed, 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 had as in cases of an omission to put in an answer. SECTION XI. PARTIES TO BILLS. 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 the court as to the parties before the court, the court may, in their discretion, proceed in the cause without making such persons parties; and in such cases the 720 RULES OF U. S. SUPREME COURT. Parties to Bills. decree shall be without prejudice to the rights of the absent parties. 4:8. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may pro- ceed in the suit, having sufficient parties 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 such 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 have the will established against him. 51. In all cases in which the plaintiff 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 ta a suit concerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. 52. "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at Irberty, 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 by an entry, to be made in the clerk's order book, in the form or to the efi'ect following, (that is to say,) " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed 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 obiection shall then be allowed. RULES OF TJ. S. SUPREME COURT. 721 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 think fit) shall be at liberty to make a decree sav- ing the rights of the absent parties. SECTION XII. NOMINAL PARTIES 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. Whenever 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- Bolved by some other order of the court. SECTION XIII. BILLS OF REVrVOK AND SUPPLEMENTAL BILLS. 56. Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may bo 46 722 RULES OF U. S. SUPREME COURT. Answers — Amendment of Answers. revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same ; which bill may be filed in the clerk's office at any time ; and iipon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring 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 jfrom 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 bill, the defendant shall demur, plead, or answer thereto, on the 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 commissioner 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 ot course, in any matter of form, or by filling up a blank or correcting a date, or reference to a document or other small EULES OF U. S. SUPKEME COURT. 723 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 special 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 distinguishable therefrom. SECTION XVI. EXCEPTIONS TO ANSWERS. 61. After an answer is filed on any rule-day, the plaintiff shall be allowed until the next succeeding rule-day to tile 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 tiled thereto within that period, the answer shall be deemed and taken to be sufficient. 62. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other pro- ceedings had by 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 prescribed by 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 succeeding rule-day thereafter 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 thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. 724 RULES OF U. S. SUPREME COURT. Replication and Issue — Testimony, how Taken. 64. If at the hearing the exceptions sliall 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 may have a writ of attachment to compel the de- fendant to make a better answer to the matter of the exceptions ; and the defendant, 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 plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, 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. REPLICATION 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 replication 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 period, the defendant shall be entitled to an order, as of coui'se, 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 plaintiff sub- mitting to speed the cause, and to such other terms as may be directed. SECTION XVIII. TESTIMONY, HOW TAKEN. 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories RULES OF U. S. SUPREME COURT. 725 Testimony, how Taken. filed by the party taking out the same in tlie clerk's oflfice, ten days' notice thereof being given to the adverse party to file cross-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 commis- eioner 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. Decemher Term, 185^. 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. Decemb&r Terra, 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. Tlie 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 sign 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- aminer upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the 726 EULES OF U. S. SUPEEME COUET. 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 fix by order in each cause. When 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 67th 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 first obtained on motion for cause shown. 68. 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. KULES OF U. S. SUPKEME COURT. 727 Testimony De Bene Esse — Form of last Interrogatory. 69. Three months and no more shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause sliown 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 connnissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, 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 DE BENE ESSE. 70. After any bill filed, 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 csse^ upon giving due notice to the adverse party of the time and place of taking his testimony. SECTION XX. FOBM OF THE LAST INTERROGATOET. 71. The last interrogatory 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 benefit or advantage to the 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." 728 RULES OF U. S. SUPREME COURT. Croas-Bill — Reference to and Proceedings before Master. SECTION XXI. CK088-BILL. 72. Where a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the game manner and under the same restrictions as the answer praying relief may now be read and used. SECTION XXII. REFERENCE TO AND PROCEEDINGS BEFORE MASTERS. 73. Every decree for an account of the personal 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 master for a hearing on or before the next rule-day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. 75. Upon every such reference it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to pro- ceed ex jparte^ or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the dutv of the master to proceed witli all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to upply to tlie court, or a judge thereof, for an order to the iiiastir to speed the proceedings, RULES OF U. S. SUPREME COURT. 729 Reference to and Proceedings before Master. and to make his report, and to certify to the court or judge, the reasons for any delay. 76. In the reports made by the master to tlie court no part of any state of facts, charge, affidavit, deposition, examination, or answer brought in or used before them shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or answer shall be identified, specified, and referred to, so as to inform the court w^hat state of facts, charge, affidavit, deposition, examination, or answer were so brought in or used. 77. The master shall regulate all the proceedings in every hearing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference ; and also to reqiiire the production of all books, papers, writings, vouchers, and other documents applicable thereto ; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition, according to the acts of congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. 78. Witnesses who live within the district may, upon due notice to the opposite party be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, mas- ter, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attend- ance the same compensation as for attendance in court; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to ^ive testimony in the court. But nothing herein contained sliall prevent the examination of witnesses viva voce when pro- duced in open court, if the court shall, in its discretion, deem it advisable. 730 EULES OF U. S. SUPREME COURT. Exceptions to Master's Report. 79. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brou^'ht in shall be at liberty to examine the accounting party vivd voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. 80. All affidavits, depositions, and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master. 81. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or vivd voce, or in both modes, as the nature of the case may appear to him to require. The evi- dence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. 82. The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concur- ring in the appointment; and they may also appoint a master pro hao vice in any particular case. The compensation to be allowed to every master in chancery for his services in any par- ticular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances thereof, and the compen- sation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. SECTION XXIIL EXCEPTIONS TO REPORT OF MASTER. 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month has expired. If excep- RULES OF U. S. SUPREME COURT. 731 Decrees — Guardians and Prochein Amis. tions are filed, they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. 84. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, Jhe party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs — the costs to be fixed in each case by the court, by a standing rule of the circuit court. SECTION XXIV DECKEES. 85. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. 86. 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 an}^ other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows : " This cause came on to be heard (or to he further heard., as the case may be,) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz. :" {Here insert the decree or order.) SECTION XXV. GUARDIANS AND PKOCHEIN AMIS. ST. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other per- sons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein am.i ; sub- ject, however, to such orders as the court may direct for the protection of infants and other persons. 88. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall b© 732 KTJLES OF U. S. SUPREME COURT. Petitions for Rehearing, etc. signed by counsel, and the facts therein stated, if not apparent on the record, shall be veriiied by the oath of the party, or by some other person, No rehearing shall be granted after the the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court in the discretion of the court, 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 as 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 affirmation to the truth of the facts stated by him. December Term, 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. TABLE OF CASES CITED. Abbev. Goodwin, 7 Conn 853 Abraham v. Bubb, 2 Preem. Ch 563-564 Abraham v. Dodgson, 2 Atk. R 276 Abraham v. Plutora, 3 Wend 48 Adams V. Dixon, 19 Geo 279 Adams v. Downing, 2 Mad. . . . 215, 218, 219 Adams v. Porter, 1 Cueh 133 Ahl V. Johnson, 20 How. U. S 319 Aggas V. Pickerill, 3 Atk 113 Ahrenfelt v. Ahrenfelt, Hoff. Ch 526 Aiken v. Ballard, Rice, Ch 44, 47 Aiken v. Lloyd, 28 Dl 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. Wensinger, 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 HI 548 Allison V. Clark, Breese 318 Alpha V. Payman, 1 Dick. R 132 Alton M. & P. Co. V. Bnckmaster, 13 HI. 535 Altree v. Hardin, 3 Lond. Jurist 167 Amos V. Amos, 3 Greene, N. J. Ch 532 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 v. Nott, 1 Scam 74 Anon. 15 Ves 84 Anon.35Ala 488 Anon. 2 Ves 95, 299 Anon. Amb 299 Anon. 2 Preem 356, 357 Anon. 1 Atk 555 Anon. 3 Atk 117, 227, 353 Anon. 1 Vem 291 Anon. 3 Mad 834, 335 Anshutz V. Anshutz, 1 C. E. Greene, N. J 611 Anthony v. Anthony. 3 Stockt. N. J. . . 503 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. Blackwell, 1 Dev. Ch 167 Armistead v. Bozman, 1 Ired. Ch. R... 171 Armstrong v. Armstrong, 35 111. 109, 464, 523 Armstrong v. Armstrong, 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 Artee V. Engart, 13 111 152 Asbee v. Skipley, Mad. & Geld. 207 Ashbaugh v. Ashbaugh, 17 HI 497 Astley V. Pountaine, Pinch 129 Aston V. Aston, 1 Ves 564 Atkin V. Merrell, 39 111. 306, 307, 458, 477, 478 Atkinson v. Manks, 1 Cowen, 279, 281, 283 288, 291, 292 Atterbery t. Knox, 8 Dana 88 Attorney General v. Birch, 4 Mad 277 Attorney General v. Bradford Canal Co. 2Eq. Cas. Abr 103 Attorney General v. Brown, 1 Swanst.. 105 Attorney General v. Day, 1 Ves.... 222-223 Attorney General v. Poster, 2 Hare, 240 241 Attorney General v. Garrison, 11 Mass. 569 Attorney General v. Whorwood, 1 Ves. Sr 64 Atwill V. Ferrett, 2 Blatchf. C. C... 49, 104 Austin V. Bain ter, 50 HI 189- Austin V. Richardson, 1 Qratt 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, 53 HI 47, IDS Babcock v. Willard, 4 West. Law Monthly 398. 899 734 TABLE OF CASES CITED. Babcock v. Wyman, 19 How. U. 8 351 Badeau v. Rogers, 2 Paige, Ch. 280, 289, 292 Badger v. Badger, 2 Wallace 47 Baggott V. Henry, 1 Edw. Ch 159-160 Baguall V. Bagnall, 2 Eq. Abr 216 Bailey v. Bailey, 97 Mass 502 Bailey v. Bailey, 21 Gratt. Va 532 Bailey V. Bennett, 3 Younge 166 Bailey v. Barton, 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 Baines 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 HI 321 Baker v. Booker, 6 Price 99 Baker v. Kingsland, 3 Edw. Ch 158 Baker v. Mellish, 11 Ves 106 Baleom v. N. T. Life Ihb. Co. etc. 11 Paige, Ch. R 161 Baldwin v. Mackown, 3 Atk 212 Balentine V. Beall, 3 Scam 400 Balfour v. Welland, 16 Ves 334 Ball V. Shattack, 16 HI 75 Ballance v. Underbill, 3 Scam. 181, 305, 306 324 Bampton v. Birchall, 1 Phillips 247 Bank v. Carrollton Railroad, 11 Wall. 341 Bank of Columbia v. Hagner, 1 Pet.. .. 321 Bank of Muskingum 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 Soath Carolina v. Rose, 1 Strobh. Eq 358 Bank of U. S. v. White, 8 Pet 254 Banks v. Anderson, 2 Hen. & M 251 Banta v. Banta, 3 Edw. Ch 492 Banta v. Moore, 2 McCarter's N. J. R. . 100 Barbour v. Whitlock, 4 Monr 64 Barksdale v. Payne, Riley, Ch 317 Barnard v. Cushman, 35 HI 108, 359 Barnes v. Hazelton, 50 HI 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. Nash, 1 Ves. &B 44 Barrington v. O'Brien, 2 Ball. & Beat. . 306 Barron v. Martin, 19 Ves 353 Barron v. Robbins, 22 Mich 536 Barron v. Bailey, 5 Florida 397 Barry v. Jenkins, 1 Mylne & 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 358 Barton v. Moss, .32 111 56, 142 Bascomb v. Bascomb, 5 Foster 488 Bascomb v. Bascomb, Wright, Ch 511 Bassctt V. Brown, 100 Mass 46 Batchelder v. Batchelder. 14 N. H 498 Bate V. McLaughlin, 1 A. K. Marsh.... 141 Bateman v. Willoc, 1 Sch. & Lef 54 Bates V. Delavan, 5 Paige 197 Bates V. Wheeler, 1 Scam 326 Batterson v. Ferguson, 1 Barb 136 Bax V. Whitbread, 16 Ves 200 Baxter v. Hutchings, 49 111 577, 578, 579 Baxter v. West, 1 Drewry & Sm 339 Bay V. Cook, 31 111 397 Bayerque v. Cohen, 1 McAllister 435 Beach v. Fulton, 3 Wend 153 Beach vs. Shaw, 57 111 353 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 Beauchamp v. Kankakee Co. 45 HI 612 Beauchamp v. Pntman, 34 111.. 193, 194, 312 313 Beaugenan v. Lercotte, Breeae 47 Beaumont v. Bonlbree, 5 Ves 57, 166 Beaumont v. Meredith, 3 Ves. & B 339 Bechinall v. Arnold, 1 Vem 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 Beekman v. Frost, 18 Johns 359, 360 Beekman v. Waters, 3 Johns. Ch 166 Bell v. Nims, 51 111 90 Bell V. Pomeroy, 4 McLean 134, 269 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 Beuneson v. Thayer, 23 111 580 Bennett V. Lee, 2 Atk 254 Bennett v. Wolf oik, 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 351 Bently v. Cournan, 6 Gill & J 153 Benton v. Benton, 1 Day 487 Benzein v. Lovelass, Cam. & Nor 169 Berchett v. Boiling, 5 Munf 323 Berckmans v. Berckmans, 2 C. E. Greene, N. J 514 Bergen v. Bergen, 22 HI. . .513, 514, 517, 522 523 Berger V. Potter, 32 HI 102 Berkley V. Ryder, 2 Ves 314 TABLE OF CASES CITED. 735 Berryman v. Graham, 21 N. J. Eq 312 Besimer v. The People, 15 Ul 74 Basse V. Becker, 51 111 89 Bettes V. Dana, 2 Sumner, R 237 Betz V. Betz, 2 Rob. N. Y 510 Biglow V. Bush, 6 Paige, Ch. R 374 Bignall v. Atkins, G Mad 205 Billingslea v. Gilbert, 1 Bland 140 Bingham v. Cabot, 3 Dall 42 Bingham v. Dawsou, Jacob 254 Binks V. Binks, 2 Bligh 222 Binney'8 Case, 2 Bland 139, 141 Birch V. Haynes, 3 Mer 335 Bird V. Bird, Wright, Ch 493 Birdsall v. Colls, 2 Stockt. Ch 342 Birkby v. Birkby, 15 111 503 Birley v. Staley, 5 Gill & J 43, 401 Bishop V. BrecklesB, 1 Hoff. Ch 339 Bishop of London v. Webb, 1 P. Wms. 566 Bishop of Winchester v. Wolgar, 3 Swanst 565 Bishop of Winchester V. Beaver, 3 Ves.. 357 Bishop of Winchester v. Paine, 11 Vea 368 Bishop V. Witherel, 9 Wall. U. S 80 Blain v. Harrison, 11 111 466 Blaisdell v. Stevens, 16 Vt 135 Blake v. Foster, 2 Molloy 253 Blakeney V. Dufour, 15 Beay 340 Blount V. Garen. 3 Hey. 100 Blant V. Tomlin, 27 111 324 Board, etc. v. Grcenbaum, 39 111 187 Board of Supervisors vs. Henneberry, 41 111 47 Boeve v. Skipwith, 1 Eq. Ca. Ab 205 Bogardus v. Trinity Church, 4 Paige, Ch 117, 118, 127, 128 Bohan v. Galoway, 13 111 62 Bonner v. Peterson, 44 III 458, 467, 477 Boomer v. Cunningham, 22 HI 318 Borton v. Scheffer, 21 Gratt. Va 318 Boston V. Nichols 88, 321 Botsford V. O'Conner, 57 111. . ; 75, 76 Bottorf V. Conner, 1 Blackf 103, 108 Bougher v. Miller, Wright 195 Bow V. Britten, 2 Chicago Legal News. 41 Bowan v. Gross, 4 Johns. Ch 143 Bowie V. Bowie, 3 Md. Ch. Decis 510 Bowie V. Minter, 2 Ala 204, 225 Bowles V. McAllen, 16 HI 426, 536 Bowles V. South, Hardin 253 Bowman v. McLaughlin, 58 Maine 98 Bowman v. Wettig, 39 111 175 Bowman v. Wood, 41 111 90 Bowyer v. Bright, 13 Price 212 Bowyer v. Pitchard, 11 Price 290 Boyd v. Boyd, Harper, S. C. Eq 526 Boyd v. Boyd, 66 Penn. St. R 550 Boyd v. Hoyt, 5 Paige, Ch 49, 402 Boyd v. Magruder, 2 Rob. Va 324 Boyland, v. Boyland, 18 HI . . .... 75, 76 Boyles v. McMurphy, 55111 462 Boy n ton v. Rawson, 1 Clarke . 403 Boze V. Davis, 14 Texas 323 Bozman v. Dronghan, 3 Stew 196 Bracken v. Kennedy, 3 Scam 338, 341 Bracken v. Martin, 3 Yerg 230 Bradford v. Geiss, 4 Wash. C. C. R. . . 134 Hradish v. Gee, Ambl 200, 264 Bradshaw V. Outrani, 13 Ves 355, 373 Bradshawv. Garrett, 1 Porter 249, 254 Brady v. Anderson, 24 111 575, 580, 591 Brady v. Waldron, 2 Johns. Ch....564, 565 Brandleigh v. Ord, 1 Atk 295 Brashier v. Gratz, 6 Wheat 319 Brattle v. Waterman, 4 Sim 172 Breckenridge v. McCormick, 43 HI 613 •Bree v. Bree, 51 111 89, 187 Brewer v. Bowman, 3 J. J. Marsh 250 Brewster v. Power, 10 Paige, Ch. . . .397, 399 Bnckerhoff 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 Brinckerhoff 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, 133 Broddus v. Ward, 8 Mo •....-... 330 Brook v. Mead, Walk. Ch 172 Brooks v. Barrett, 7 Pick 553 Brooks V. Byam, 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 533 Brown v. Cannon, 5 Gilm 319, 322 Brown v. Edsall, 1 Stockt. N. J 269 Brown v. Gaffney, 28 111 351 Brown v. Gaffney, 32 HI 359 Brown v. Haff, 5 Paige, Ch 556, 557 Brown v. Haines, 12 Ohio 319 Brown v. Higden, 1 Atk 203 Brown v. Hogle, 30 111 100, 101 Brown v. McDonald, 1 Hill, Ch 57 Brown V. Moore, 26 111 582 Brown v. Pitney, 39 111 463 Brown v. Powell, 45 Ala 98 Brown v. Ricketts, 3 Johns. Ch 402 Brown v. Welch, 18 111 165 Brownfield v." Brownfield, 43 111 549 Brownfield v. Brownfleld,-58 111 614 Browning v. Bettis, 8 Paige, Ch 399 Brownlee v. Lockwood, 20 N. J. Eq 100 736 TABLE OF CASES CITED. Brownson v. La Crosse cr V. Billiard, 43 111 614 Mitchell V. Biirch, 2 Paige, Ch 555 Mitchell V. Hayne, 2 Sim. & Stu 283 Mitchell V. Lenox, 2 Paige, Ch 102 Mix V. Beach, 4U 111 204, 211, 321, 326 Mix V. Hotchkiss, 14 Conn 49 Modesett v. Johnson, 2 Blackf 318 Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, Ch 283, 288 Mole V. Smith, Jac 218, 333 Monk V. Monk, 7 Rob. N. Y 510 Montgomery v. Brown, 2 Gilm 76, 373 Montgomery V. Norris, 1 How. Miss... 321 Monroy v. Monroy, 1 Edw. Ch ... 519, 529 Moore y. Armstrong, 9 Porter 102, 103 Moore v. Bracken, 27 111 253 Moore v. Cable, 1 Johns. Ch 353 Moore v. Cheeseman, 23 Mich 60 Moore v. Dail, 3 Stewart 45 Moore v Green, 19 How. U. S 47 Moore v. Hoisington, 31 111 99 Moore v. Hunter, 1 Gilm 140, 141 Moore v. Moore, 1 Green, N. J 492 Moore v. School Trustees, 19 111 89, 187 Moore v. Titnian, 33 111 88, 90, 183 Moore v. Skidmore, 6 Litt 319 Morel V. Houston, Charl. R. M 45 Moretou v. Harrison, 1 Bland 118 Morgan v. Crabb, 3 Porter 195 Morgan v. Harris, 2 Bro. C. C 273 Morgan's Heirs v. Morgan, 2 Wheat... 321 Morgan v. Morgan, 10 Geo 205 Morgan v. Morgan, 2 Wheat 325 Morgan v. Sherwood, 53 111 376 Morgan v. Smith, 11 111 44, 47, 165, 306 Morganstein v. Klees, 30 111 371 Morrell v. Morrell, 1 Barb 493 Morrell v. Morrell, 2 Barb. S. C. R 532 Morrice v. Bank of Eng. Talb. Gas 86 Morris V. Hogle, 37 111 535, 538 Morris v. Nixon, 1 How. U. S 351 Morrison v. Buckner, Hemp 376 Morrison v. Stewart, 24 111 141 Moree v. Hovey, 9 Paige, Ch 63 Morse v. Hovey, 1 Sandf. Ch. R 141 Mortlock V. Buller, 10 Vea 334 Morton v. Noble, .57 111 462 Moser v. Matt, 24 HI 579 Moshier v. Knox College, 32 111 166, 177 Mott V. Hall, 41 Geo 159 Moulton V. Monlton, 1 Shep. Maine ... 492 Moyler v. Moyler, 11 Ala 502 M. & R. R. Co. V. Woodruff, 26 Ark. ... 46 Mt. Carbon Coal Co. v. Blanchard, 54 111. 51 65 Muckleston v. Brown, 6 Ves 55 Mugge V. Ewing, 54 111 397, 400 MaUord v. Stalzenback, 46 111 92 Mulligan v. Baring, 3 Daley, N. T 6.3« Munday v. Taylor, 7 Bush, Ky 550 Murdock's Case, 2 Bland 14.^ Murphy V. Clark, 1 S. & M 47, 50 Murphy v. Lockwood, 21 HI 320 Murphy v. Stultz, Saxton 192 Murray v. E. I. Co., 6 Barn. & Aid 234 Myatt V. Walker, 44 111 553 Myers V. Fenu, 5 Wallace 401 Myers v. Kinzie, 26 HI 141 Myers v. Myers, 41 Barb. N. Y 492 Myers v. Wright, 33 111 374 N Nabob of Arcott v. East India Co. 3 Bro. C. C 118 Nanny V. Totty, 11 Price 233, 234, 2.35 Nash v. Smith, 6 Conn.... 65, 104, 280, 286 National Baak v. Sprague, 21 N. J. Eq. 306 Neal V. Hagthorp, 3 Bland 134 Neale v. Neale, 9 Wallace 165, 325 Nelson v. First National Bank of Chi- cago, 48 HI 107 Nelson v. Pinegar, 30 HI 171, 565 Nelson v. Rockwell, 14 HI 536 Nesmith v. Calvert, 1 Wood & Minn. .. 43 Nevil V. Johnston, 2 Vern 194 New Barbadoes Toll Bridge v. Vree- land, 3 Green, Ch 320 Newberry v. Wren, 1 Vern 305, 307 Newdigate v. Lee, 9 Dana 403 Newell V. Bureau Co. 37 111 47, 99 Newell V. Newell, 9 Paige, Ch 483 New London Bank v. Lee, 11 Conn 62 Newman v. Holder, Finch 103 Newman v. W'illetts, 48 111 466 Newman v.Willets, 52 111.. 397,398,400, 405 Nichol V. Miller, 37 HI 458, 462 Nichol V. Ogden, 29 111 458, 462, 569 Nichol V. Roosefelt, 3 Johns 226 Nichols V. Nichols, 31 Vt 492 Nichols V. Thornton, 16 111 89, 187 Nixon vs. Richardson, 4 Dessau 556 Nobkissen v. Hastings, 2 Ves. Jr 118 Nockells V. Crosby, 3 B. & C 339 Nogees v. Nogees, 7 Texas 509 Norcott V. Norcott, 7 Viu 200 Norrich v. Marshall, 5 Mad 357 Norris v. Knox, 1 Piltsb. Pa. R 318 North V. Earl of Strafford, 3 P. Wms... 105 North V. Gray, 1 Dick 296 North V. North, 5 Miss 509 North Am. Coal Co. v. Dyett, 2 Edw. Ch 806 North Am. Fire Ins. Co. v. Graham, 5 Sandf. Ch 397 North Presbyterian Church of Chicago v.Jevne,32ni 683 TABLE OF CASES CITED. 749 North R. Bank v. Rogers, 8 Paige, Ch. R 160, 167 Northrop v. Hatch, 6 Conn 2()8 Northwestern Bank v. Nelson, 1 Gratt. Va 106 Norton v. Hixon, 25 111 90, 103, 569 Norton v. Warren, 3 Edw 134, 373 Norton v. Woods, 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. SSandf.Ch 306 O'Brien v. Connor, 2 Ball & Beat. . 252, 262 O'Connell V. Rea,51Ill 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. Luitjens, 82 111 46, 89, 374 Oldaker v. Lavender, 6 Sim 339 Oldham v. Eboral, Coop. Select Cas... 242 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 Ordv. Huddlcston,2Dick 116, 127 Ord V. Noel, 6 Mad 253, 254 Organ v. Gardner, 1 Cas. in Ch 222 Orton Y. Smith, 18 N. H 535 Osborne v. Bremar, 1 Dessau 320 Osborne v. Horine, 19 111 466 Osborne v. Usher, 6 Bro. P. C 255 Osbourn v. Fallows, 1 Russ. & Mylne.. 356 Osgood V. Osgood, 2 Paige, Ch 518 Ottowa N. P. R. Co. v. Murray, 15 HI.. 371 Ottowa V. Walker, 21111 88 Overman v. Parker, Hemp 535 Owen V. Robbins, 19 HI 458 Owens V. Ramstead, 22 111 186 P Packington v. Packington, 8 Atk 564 Page V. Davidson, 22 HI 566 Palk V. Clinton, 12 Ves 356, 557 Palmer v. Earl of Carlisle, 1 Sim. & Stu. 355 Palmer v. Van Doren, Edw. Cli 556 Pandleton v. Fay, 3 Paige, Ch 226 Pankey v. Ranm, 51 HI 186, 189, 553 Panton V. Teft, 22 111 56, 142 Partridge v. Haycraft, 11 Ves. . . 53, 54, 168 Parbridgc v. Jackson, 2 Edw. Ch 60 Pardee v. De Gala, 7 Paige, Ch 504 Pardee v. Van Anken, 3 Barb. R 352 Parish v. Lewis, 1 Freeni. Ch 397 Park v. Ballentine, 6 Blackf 62, 167 Parker V. Aloch, 1 Young & Jer 108 Parker V. Carter, 4 Munf 43,45, 46 Parker v. FoUensbee, 45 111 557 Parker v. Grant, 1 .lohns. Ch 90 Parker V. Leigh, 6 Mad 305 Parker v. Parker, Gl 111 508, 523 Parker v. Parker, 4 Munf 55 Parkhiirst v. Cummings, 56 Maine 359 Parkins v. Hays, Cooke, Tenn 164-165 Parkinson v. Truesdale, 3 Scam 140 Parkman v. Welch, 19 Pick 388 Parmelee v. Egan, 7 Paige, Ch 401 Parmelee v. Lawrence, 44 111 351 Parrington v. Pierce, 38 Maine 351 Partridge v. Usborne, 5 Rus 256 Pastoiet v. Pastoiet, 6 Mass 510 Paterson v. Slaughter, Amt 152 Paton V. Rogers, 6 Mad 334 Patriotic Bank v. Bank of Washington, 5Cranch, C. C. R 158 Pa ttison V. Powers, 4 Paige, Ch 375 Pavie V. A'Court, 1 Dick 117 Paxton V. Harrier, 11 Penn 388 Payne v. Avery, 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, 104 Mass 502 Peacock v. Terry, 9 Geo 43 Peak V. Pricer, 21 111 144 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. 1 325 Pedrick v. White, 1 Met 204, 210 Peiters v. Thompson, Coop 138 Pell V. Elliot, Hopk. Ch 227 Pendleton v. Fay, 3 Paige, Ch. 233, 246, 247 254 Penfold V. Nunn,5Sim 99 Pennebaker v. Watham, 2 A. K. Marsh. 45 Pennington v. Beachy, 2 Sim. & Stu. . . I-IS Peoples V. Peoples, 19 El 98 People, etc. v. Gilmer. 5 Gilm 614 Ferine v. Dunn, 4 Johns. Ch 368 Perry v. Perry, 2 Paige, Ch 487, 526 Perry v. Phelips, 17 Ves 254 Personau V. Pulliam, 47 111 143 Petrie V. The People, 40 111 517 Pettis V. Shepherd, 5 Paige, Ch 536 Pettit V. Candler, 3 Wend 135 Peyton v. Jeffries, 50 111 477 Phelan V. Phelan, 12 Florida. 4»7 750 TABLE OF CASES CITED. Phelps T. Foster, 18 111 612 Phelps V. Ganon, 3 Edw. Ch 114 Phelps V. Loyhed, 1 Dillon 390 Phelps V. Sproiile, 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. R 322 Phillips V. Carew, 1 P. Wms 296 Phillips V. Darbe, 1 Dick 2;39 Phillips V. Overton, 4 Hey 135 PhUlips V. Phillips, 4 Blackf 509 Phillips 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, 130 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's R 99 Piersall V. Elliott, 6 Pet 95 Pigg V. Corder, 12 Leigh 195, 818, 321 Piggott V. Williams, 6 Mad 305 Pigott V. Bagley, McClel. & Y 341 Pillow V. Aldridge, 4 Hump 289 Pilsvrorth v. Hopton, 6 Ves 565 P. &M. Bank v. Dundas, 10 Ala 254 Pinkard V. Pinkard, 14 Texas 497 Pinson v. Williams, 23 Miss 43 Pitt V. Davis, 3 Russ 333 Pitt V. Earl of Argloss, 1 Vera.... 263, 265 Plaster v. Plaster, 47 111 523 Plaster V. Plaster, 53 III 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 223 Pope V. North, 33 111 374 Pope V. Salsman,35 Mo 340 Porittv. Poritt, 16 Mich 499 Portarliiigton 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, 6M 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 Cranch 320 Prentice v. Kimball, 19 111 62, 65, 102 Preschbaker v. Feaman, 32 lU 350 Prescott V. Maxwell, 48 111 591 President, etc. v. S. HI. N. Uni.. 54 111. 103 Preston v. Hodgen, 50 111 89, 182, 187 Prettyman v. Wolston, 34 111 175 Price v. Nesbit, 1 Hill, Ch 196 Prieto v. Duncan. 22 111 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 Prnen v. Lunn, 5 Russ 237 Purfoy V. Purfoy , 1 Vern 48 Purris V. Brown, 4 Ired. Eq 353 Puryoar v. Ruse, 6 Coldw. Tenn 550 Putnam v. Putnam, 4 Pick 225 Q Quarrier v. Carter, 4 Hen. & M 198, 249 Qnestel v. Questel, Wright, Ch 511 Quick V. Tilley, 2 Green, Ch 253 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 Ramere 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 67 Raymond v. Ewing, 26 111 582, 583, 591 RajTnond 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, 539 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 t. Massachasetts, 16 Pet 99 TABLE OF CASES CITED. 751 Rlbet V. Ribet, 39 Ala 491, 510 Kice 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 V. Warfield, 1 Bland 118 Riggs V. Dickinson, 2 Scam 448 Rigga V. Wilton, 13 111 190, 548, 553 Ringgold V. Rinagold, 1 Har. & Q 195 Ripley v. Morris, 2 Gilm 37, 96 Ripple V. Gilbourne, 8 How. U. S 429 Ritchie v. Aylwin, 15 Ves 114 Hives V. Rives, 3 Yes 61 Roach V. Chapin, 27 111. . . . 88, 106, 578, 591 Roach V. Hulings, 5 Cranch. C. C 60 Routh V. Smith, 5 Conn , 373 Robbins v. Kinzie, 45 111 466 Roberdean v. Rous, 1 Atk 105 Roberts v. Albany & 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 Roberis v. Marchant, 1 Hare 325 Roberts v. Roberts, 16 Sim 219 Robertson v. Biugley, 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 Rpbinson 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 Rogau 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, 323 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 Eoee V. Rose, 11 Paige, Ch 511, 517 Rose V. Swan, 56 HI 320 Ross V. Cobb, 48 111 426, 427 Boss 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 Rowman v. Bowles, 19 111 44' Rubber Co. v. Goodyear, 9 Wallace 254 Ruckerv. Dooley, 49 111 635, 538, 539 RuflF 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 Ru.« Mason v. Bair, 40 111 663 McClay v. Norris, 4 Gilm 647 McConnel v. Ayers, 3 Scam 675 McCormick v. Sage, 87 HI 317 McDonald V. Arnout. 14 111 661 McKindley v. Buck. 43 HI 661 McNab V. Young, 81 HI 75 McPhearson v. Nelson, 44 111 701 Meeks v. Sims. 84 111 591, 611 Meeker v. Meeker, 75 111 189 Mehrle v. Dunne, 75 111 611 Metz V. Lowell, a3 111 611 Meyers v. Andrews, 87 111 672 Milcolm V. Andrews, 68 111 557 Miller v. Handy. 40 111 75 Miller v. Whitaker, 33 111 662 Mills V. Lockwood, 40 111 700 Mitchell V. Byms, 67 HI 405 Montague v. Wallahan, 84 111 696, 700 760 TABLE OF CASES CITED. Moodr y. Vreeland, 7 Wend 671 Moore v. Mansfield, 47 111 637 Moorehouse r. Moulding, 74 111 611 Morgan v. Corlies, 81 111 151, 174 Morgan v. Ladd, 2 Gilm ... 675 Morse v. Thorsell, 78 111 458 Morton V. Smith, 86 111 326 Moshier v. Meok, 80 111 397 Mosier v. Norton, 83 111 358 Mott V. Harrington, 15 Vt 186 Mulvey v. Gibbons, 87 111 373 395 Murch V. Mayers, 85 111 165, 395 Murphey V. The People, 37 111 661 Myers v. Manny, 63 111 638 N Napperv. Short, 17 111 649 Nason v. Letz, 73 111 661 Nat. Ins. Co. v. Webster, 83 111 395 Newhall v. Kastens, 70 111 279, 611 Newlin v. Snyder, 78 111 81 Newman v. Newman, 69 111 517 Nichol V. Todd, 70 111 478 liTichols y. Mitchell. 70 111 436 Nichols V. Padfield, 77 111 452 Niles V. Harmon, 80 111 390, 396 Nixon V. Halley, 78 111 695 Northern Trans. Co. v. McCIary, 66 111. 69U Oder V. Putnam, 22 111 638 -O'Brien v. Fry, 82 111 142, ;i'.)0 O. & Miss. R.R. Co. V. Lawrence Co , 27 111 637 Orrv. N. M. L. Ins. Co., 86 111 611 P Padfield v. Padfield, 72 111 570 Page V. Greeley, 75 111 44 Parr v. Van Horn, 40 111 656 Peake v. The People, 7i) 111 637 Pearle v. Welman, 4 Gilm 700 Pearson v. Bailey, 1 Scam 695 Peck V. Stevens, 5 Gilm 695 Pennell v. Lamar Ins. Co., 73 111. 185, 186, 401 Penticost V. Magahee, 4 Scam 638 Peopie V. Brislin, 80 111 673 Peopie V. Glenn, 70 111 636 People V. Leland, 40 111 645 People V. McFarland, 3 Bradwell's App. Ct. R 638 People V. Neil, 3 Bradwell's App. Ct. R. 638 People V. Pearson, 3 Scam 700 People V. Peggy Royal, 1 Scam 637 People V. Public Officers, 4 Gilm 6.59 People V. Young, 40 111 677 Perteet v. The People, 70 111 655 Phelps V. Curtis. 80 111 422 Phelps V. Fiskes, 63 111 638 Phelps T. Funkhouser, 40 111 656, 688 Phelps V. Harding, 87 111 599 Phillips V. Phillips, 1 Bradwell's App. Ct. R 509 Pick V. Ketchum, 73 111 661 Pierson v. Hendryx, 88 111 672 Pixley V. Boynton. 79 111 695 Planing Mill Lumber Co. v. City of Chi- cago, 56 111 660 Plaster v. Plaster, 67 111 522 Pollard V. King, 63 111 673 Powell V. Webber, 79 111 591 Prettyman v. Barnard. 37 111 683 Prince v. Cutler. 69 111 186 Prince v. Lamb, Breese 695 Propeller Niagara v. Martin, 42 111 658 Protection Life Ins. Co. v. Foote, 79 HI. 672 Q Quinn V. Allen, 85 111 611 Race v.. Sulivan, 1 Bradweirs App. Ct. R 591 Race V. Weston, 86 111 317 Ragar v. Tilford, Breese (App.) 657 Reed v. Boyd, 84 111 611, 672 Reed v. Curry, 40 111 679, 681 Reese v. City of Chicago, 38 111 645 Resser v. Resser, 82 111 524 Reitz V. Coyer, 83 111 581 Rich V. City of Chicago, 59 111 660 Richards v. Green, 78 111 647 Richeson v. Ryan, 14 111 675 Ripley v. Morris, 2 Gilm 656 Rivard v. Walker, 40 111 663 Roberts v. Beckwith, 79 111 445 Roberts v. Stigleman, 78 111 153 Roberts V. Trustees etc., 32 111 656 Robinson v. Brown, 82 111 672 Roby V. Cossitt, 78 111 99, 326 Rogers v. Powell, 1 Bradwell's App. Ct. R 581,583, 611 Ross V. Ross, 78 111 522 Rowand v. Carroll, 81 111 478. 672 Rowley v. Hughes, 40 111 663, 664. 679 Ruckman v. Alwood, 40 111. 656; 44 111. 675 Rutherford v. Morris, 77 111 550, 553 Scammon v. Campbell. 75 111 478 Schirmer v. The People, 33 111. . . . 663, 679 Schlumb V. Reidersdorf, 28 111 661 Schnell v. Clements, 73 111 611 Sea V. Morehouse, 79 111 535 Selby V. Hutchinson, 5 Gilm 700 Shackleford v. Bailey, 35 111 683 Sharkey V. Miller, 69 111 189 Shaver v. Williams, 87 111 395 Sheeny. Hogan, 86 111 395 TABLE OF CASES CITED. 761 Shepley v. Spencer, 40 111 664 Short V. Raub, 81 111 374, 672 Simpson v. Ham, 78 111 478 Simpson v. Leach, 8tj 111 478 Sims V. Lyle, 4 Wash. C. C. R 117 Skiles V. CarauthiTs. 88 111 fi83 Sloo V. The Statu Bank, 1 Scam 638 Smith V. Crawford. 81 111 4-J8 Smith ex parte. 16 111 657 Smith V. Hickman, 68 111 647 Smith V. Newland. 40 111 663 Smith V. Newton, 84 111 189 Smith V. Trimble. 27 III 664 Smucker v. Larimore, 21 111 674 Snell V. Church Trustees, 58 111 661 Snell V. Stanley, 63 111 686 Sontag V. Brennen. 75 111 576 Spear v. D'Clercy. 40 111 683 Spraggins v. Houghton, 2 Scam 645 Stanberry v. Moore. 56 111 696 Stanley v. Valentine, 79 111 57 Steele V. Clark, 77 111 570 Steele v. The People, 40 111. . . . 674, 679, 680 Stevenson v. Manners, 67 111 140 Stevison v. Ernest, 80 111 663 Stewart v. The People, 3 Scam 638 St. Joseph M. Co. v. Daggett, 84 111 ... . 390 St. L. & T. H. R.R. Co. V. Todd. 40 111. 675 Stone V. Wood, 85 111. 672 Strawn V. O'llara, 86 111 611 Sutherland v. Sutherland, 69 111 478 Suttler V. The People, 59 111 661 T Taylor V. Gilsdorf, 74 111 511 Taylor v. Turner. 87 111 46 Teal V. Russell, 2 Scam 647 Terry v. Eureka College, 70 111 90, 236 Theilman V. Carr, 75 111 611 Thomas v. Coultas, 76 111 171 Thomas v. Fisher. 71 111 695 Thomas v. University, 71 lU 575 Thomas v. Negus. 2 Gilm 675 Thomas v. Urbana School Dist., 71 111. . 575 Thompson v. County Com'rs., 3 Scam. 655 Thompson v. Follansbee, 55 111 638 Thompson v. Hoagland, 65 111 696 Thompson v. White, 64 111 661 Titcomb v. Vantyle, 84 111 189 Tobey v. Foreman, 79 111 314 T. P. & W. R'y Co. V. Comes, 40 111. . . . 657 Tracy v. Rogers, 69 111 583 Truit V. Griffin, 61 111 660 Trustees of Schools v. Hihler, 86 111. . 409, 695 Trustees of Schools v. School Directors, 88 111 638, 639 Turner v. Bennett, 70 111 452 U Underwood v. Hossack, 40 111 664 U. S. Ex. Co. V. Bedbury, 40 111. . . . 678, 680 V Van Pelt v. Dumford, 58 111 661 Victor Scale Co. v. Shurtliff, 81 111 557 Von Glahn v. Von Glahn. 40 111 679 W Wadhams v. Gay, 73 111 452, 696 Walker V. Abt., 83 111 647 Walker V. Oliver, 63 III 638 Wallahan v. The People, 40111. . . 663, 664 Walsh V. Truesdall. 1 Brudwell's App. Ct. R 373 Walton V. Westwood. 73 111 99 Waterman v. Raymond. 40 111 679 Waugh V. Robbins. 33 111 663 Waugh V. Suter, 3 Bradweirs App. Ct. R 638 Webster v. Pierce, 40 111 657, 679 Welch V. Dutton. 79 111 478 Welch V. Johnson, 76 111 695 Willenborg V. Murphy, 40 111 ,... 658 Williams v. Bank of 111., 1 Gilm 695 Williams v. La Valle, 64 111 ,,,.. 638 Wilder v. House, 40 111 663, 664 Wilton V. Tazewell, 86 111 425 Winchester v. Grosvenor, 48 111 696 Wing V. Carr, 86 111 611 Wing V. Sherrer. 77 111 535 Winkleman v. The People. 50 111. 637. 639 705 White V. Russell. 79 111 422 WHiitman V. Fisher. 74 111 76 Whitney v. Stephens. 77 111 539 Wolbrechtv. Baumgarten, 26111 696 Woodside v. Woodsidc, 21 HI 638, 639 W^ork V. Hall, 79 111 ... 611 Wright V. Smith. 76 111 638 Wright V. Troutman, 81 III 199 Y Yarzel v. Palmer. 88 111 683 Yoe V. McCord, 74 111 550, 553 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 witJiout a prochein ami 121 Complainant an alien enemy 121 ADSTRACTy — {See Practice in Supreme and Appellate Courts.) ACCOUNT— Form of plea of, stated 124 Form of bill for, between partners 345 Form of decree for, between partners 848 ADDRESS — Of a bill in chancery 41 Form of 6& ADMINISTRATOR — Form of plea, never was, etc ; 121 May file bill to enforce mechanic's lien 577 ADULTERY— A bar to dower 464 Ground for divorce 491-495 Circumstantial evidence of 492 Form of bill for, by husband 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— Fm'ms 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 billand 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 BOX 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 474 Of defendant to a demurrer in U. S. court 110 AGREED CASES — {See Practice in Supreme and Appellate Courts.) INDEX. 763 Agreement — Answers to a Bill. AGREEMENT — {See Consent.) Form of, to submit a cause on written arguments 630 Bills for specific performance of 317-3^7 ALIENS — Entitled to dower 459 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 Form of decree for 523 {See Maintenance.) AMENDMENTS TO BILLS — Nature of 165-166 When to be made 165-167 When not allowed 167 Form 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 part 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 715 AMENDMENT OF ANSWER — When proper 152 Rule of Supreme Court of the U. S. relating to 722 ANCIENT BILLS — Form of 66 Account of 67 ANSWERS TO A BILL — Nature of 132-136 Exceptions to 136 {See Exceptions to an Answeu.) 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 722 Waiver of oath to 141-142 Effect of sworn answer as evidence 142 Against co-defendant 142 Of deceased ancestor 142 Admissions in 142-143 Of a corporation 14;3-144 Of infants, and insane persons 144-145 Coupled with demurrer 106 When a plea should be supported by ... 107 764 INDEX. Appearance — Bills in Chancery. ANSWERS TO A BILL — Continued. Allowing plea to stand for 130 Rules of Supreme Court U. S. relating to 717 Demurrer to not proper 107 When to be filed 151 To an amended bill 151 Amendment of .' 152-153 To a supplemental bill 213 To a bill of revivor 234 To a bill of discovery 276 To a bill of interpleader 287 To a bill to perpetuate testimony 299 To a cross-bill 315 To mechanic's lien suits 591 Forms of. Miscellaneous, of commencements, conclusions, etc 145-148 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 600 Setting up discharge of mechanic's lien 602 Setting up another mechanic's lien 602 To interrogatories, etc 627 Further, after exceptions, etc 628 And demurrer 112 And plea 1 25 Affidavit to 149 APPEALS — {See Practice in Supreme and Appellate Courts.) APPELLATE COURT — (See Practice in Supreme and Appellats Courts.) ATTACHMENT — To compel an answer 81 How obtained 83 Form of affidavit to 84 Form of order for ... 84 ATTACHMENT WITH PROCLAMATION — Nature of, etc 84 ATTORNEYS — (See Practice in Supreme and Appellate Courts.) BILLS IN CHANCERY— Division of 39-40 Constituent parts of 40-50 The address 41 Form of 69 The introduction 41-42 Form of 69 The premises, or stating part 42-53 Formsof 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 51-53 Scandal 51 Impertinence 53 INDEX. 765 Bills. BILLS IN CHANCERY— Continued. The confederating part 52-53 Form of 71 The charging part 5S-54 Form of 71 The jurisdictional clause 54 Form of 72 The interrogating part 55-56 Form, 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 62-63 How described 63 Persons under disability 63-64 Interest of 64 Joinder of 64r-65 Want of 65 Misjoinder of 65 Ancient bills 66-68 (See Forms of thb Constitdhnt Pabts of an Origi- NAi, Bill.) Frame of, in courts of equity of the U. S 713 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 deci'ee 230 Of revivor, after decree 231 In the nature of a bill of revivor 243 Of revivor and supplement 247 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 878 766 INDEX. Bills — Bills and Petitions to Perpetuate Testimony. BILLS — Continued. Of foreclosure, mortgagee v. executor, etc 380 Of foreclosure, mortgagee v. administrator, etc 383 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 lien 592 Cross-bill, for mechanic's lien 604 BILLS IN THE NATURE OP SUPPLEMENTAL BILLS — («C6 Sup- PLEMENTAIi BiLLS.) BILLS IN THE NATURE OF BILLS OF REVIVOR — {see Reyivor, Bills of.) BILLS OF REVIVOR AND SUPPLEMENT— (see Revivor, Bills OF.) BILLS OF DISCOVERY — {see Discovert, Bills of.) BILLS OF REVIVOR — (see Revivor, Bills of.) BILLS OF INTERPLEADER — {see Interpleader, Bills of.) BILLS OF REVIEW — (see Review, Bills of.) BILLS TO FORECLOSE — (see Foreclosure of Mortgages.) BILLS RELATING TO PARTNERSHIP MATTERS — (see Partnihb- sHip, Bills op.) BILLS AND PETITIONS TO PERPETUATE TESTIMONY — Nature of the proceedings 294 Frame of bill 294^297 Form of hill 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 LNDKX. 767 Bills to Redeem — Conmiencemeiit of a Suit in Cliancerj. BILLS AND PETITIONS TO PERPETUATE TESTIMONY— Cont'd. Commission to take depositions 302 Docketing 303 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, i/ite/tded as a mortgage 363 Goods deposited as a pledge 364 To set aside decree of foreclosure, and to redeem ?65 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, by 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 ARGUMENT— (iSee Practice in Supreme and Appellate Courts.) 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 38 768 , INDEX. Commiesion of Rebellion — Crime. COMMISSION OF REBELLION — When granted, etc 85 COMMISSIONERS — To make partition 443 Proceedings by 443 Required 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, and uses 52 Form of 71 CONFESSIONS — Not to be taken in divorce suits 513 CONTRACT — (;See Specific Pekfokmance.) Form of bill to set aside 544 COSTS — When security for required, etc 37 Fhrm 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 400^02 Complainants 400-401 Defendants 401-402 Priority 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 Form of order appointing receiver 419 Form of order of reference 420 Form of decree for payment of 420 Form of decree setting aside fraudulent convey an^ie in aid of exe- cution 422 CRIME — Conviction of, ground for divorce 506 Form of bill for divorce, on th/xt ground 507 INDEX. 769 Cross-Bille — Decrees and Orders. CROSS-BILLS — Nature of 305-307 Frame of 307-308 Form of, to foreclose prior mortgage 30& Form of, in nature of plea puis darrein continuance 310 When to be filed 312-313 Leave to 313 Process upon 313 Defenses to 314-315 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 CROSS-ERRORS — {See Pkactice in Supreme and Appellate Courts.) CRUELTY— Extreme and repeated, a ground for divorce 502^ Form of bill by husband dmrging 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 727 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 472 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 516-523 In suits for separate maintenance 529-533 In mechanic's lien suits 606-607 Rules of Supreme Court of U. S. relating to 731 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 17ft 49 770 INDEX. Decrees and Orders. DECREES AND ORDERS —i^brms of— Continued. Of reference to master to take proofs 188 Directing issues of fact to be tried by a jury 190 Caption of 198 Recital of 199 General 202 And of decree 202 For revivor 236 For leave to file bill of revivor 259 For injunction on bill of interpleader. 289 Of reference as to title of vendor, etc '635 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 512 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 618 Directing interrogatories for defendant to answer 619 Convicting defendant of contempt, after examination 620 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 623 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, pi'o confesso and sale 391 Of foreclosure, on hearing, and for sale 394 Of strict foreclosure 394 On a general creditor's bill 42Q Setting aside fraudulent conveyance, in aid of execution 422 For partition 439 For partition, etc 440 For partition and dower 441 INDEX. 771 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 583 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— (^ee Bills to Quiet Title.) DEEDS OF TRUST— When necessary to foreclose 382 Form of hill 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 102-1 04 General 104 Special 104 Several causes of 104 Separate 104-105 Speaking 105 772 INDEX. Depositions — Discovery, Bills of. DEMURRER — Continued. Ore tenus 105-106 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 10& 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-lia Rules of Supreme Court of U. S. relating to 641 Forms of. General frame of 108 Short 10& 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 176-177 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 803 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 answer, and 155 DISCOVERY, BILLS OF — Nature of, and when proper * 267-269 Frame of 269-270 INDEX. 773 Divorce, Bills for. DISCOVERY, BILLS OF- Continued. Form of 270 Defenses to 272 Demurrer to 272-274 Form of, where defendant has no intercut 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 376-277 Practice upon, generally 277 Form of demurrer to, defendant could be a witness HI 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 486-488 Form of hill, 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 493 Frame of bill charging 493 Form of hill 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 hill, on that ground, etc 499 Attempting the life of the other 501-503 Form of bill, for that cause 501 Extreme and repeated cruelty 502-506 Form of bill, on tlmt 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. 513 Trial by jury 513 Forming an issue for 512 Form of order directing, etc 513 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. Dower, Proceedings for. DIVORCE, BILLS FOR — Continued. Alimony and expenses 516 Pendente lite 516-517 Form of. Petition for 518 Amount oi allowance 519 Form of order of reference as to 519 Form of report of master as to 520 Form of order confirming 521 Form of order allowing, 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 .' 523 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 Where 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 464r-465 Persons selling by order of court, not 465 Elements and incidents of ' 465 Transfer of, etc 465-466 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 468- Forms of petitions 468 By widow, for 468 Affidavit to 469 By a husband, for 469 By heirs, to have assigned 470 Form of bill for, in partition suits 433 Interest in partition suits 44? Process of appearance 47J Summons 47. Unknown parties . . 47] Non-resident defendants 471 Service by copy of petition 472 INDEX. 775^ Drunkenness, Habitual — Executors. DOWER, PROCEEDINGS FOR — Continued. Setting aside decree, where defendants are not personally notified 472 Interpli'a.ler 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 47(>-477 Damages for refusal to assign 477^78 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 (5 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 bill, 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 iu 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 BILIi — When they may be taken, etc 95 Form of 95 EXECUTION — Form of Mil in aid of 413 Form of decree upon 422 EXECUTORS — (see Administrators.) EXECUTRIX — Form of creditor's hill against 416' 776 INDEX. Executrix — Forms. FEIGNED ISSUES — TRIALS BY JURIES — Nature of 188-190 Form of order directing an issue of fact to be tried hy ajvry 190 Drawing up and settling 191 FELONY— Conviction of, a ground for divorce 506 Form of hill for divorce, on that ground 507 FORECLOSURE OP MORTGAGES — General nature of 370-371 When proper 371-373 Parties 372 Complainants 372-373 Defendants 373-375 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 confesso 391 Form of, on hearing 394 Form, of, on strict foreclosure 394 Form of cross-bill by first mortgagee 308 Form of bill to set aside decree of, and to redeem 365 FORMER MARRIAGE — A ground for divorce, etc 490 Form of bill 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. 2. 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 publication. 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 Affid/mit. 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 INDEX. 777 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 personally Notified 91 Exceptions. 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 Demurrers. No. 25. To a bill, complainant has no interest 112 No. 26. To part of a bill 112 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 N(3. 30. In abatement to jurisdiction of the court. . . ., 120 No. 80a. Of coverture of complainant 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 123 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 A7iswers. No. 40. Title of, by one defendant 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 149 778 INDEX. 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 Disclaimer. No. 63. General 154 No. 64. Answer and 155 Exceptions to ansicer. No. 65. For insufficiency 162 No. 66. For scandal and impertinence 163 Order. No. 67. To expunge scandal and impertinence from an answer. . 163 Petition. No. 68. For leave to amend bill after replication 167 Order. No. 69. For leave to amend bill after demurrer, etc 168 Amendment. No. 70. To bill 169 Replication. No. 71. General 172 Petition. No. 72. 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 183 Report. No. 75. Masters, of testimony 184 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 202 No. 82. General, of a decree 202 No. 83. General, of order or decree 202 Bills. No. 84. Supplemental for specific performance, etc 208 No. 85. Supplemental against assignee of bankrupt 209 Petition. No. 86. For leave to file supplemental bill 210 Demurrer. No. 87. To supplemental bill 213 Plea. No. 88. To a supplemental bill 213 BUI. No. 89. Original, in the nature of a supplemental bill 219 No. 90. To carry decree into execution 223 No. 91. Of revivor before decree 230 No. 92. Of revivor after decree 231 Order. No. 93. For revivor 23ft BUI. No. 94. In the nature of a bill of revivor 24$ No. 95. Of revivor and supplement 247 INDEX. 779 Forms. FORMS — Continued. Petition. No. i)f). For leave to file a bill of review for errors of law 257 No. 97. For leave to file bill of review upon newly discovered evidence 258 Order. No. 98. For leave to file bill of review 259 Bill. 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 intei-pleader, 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-bill. No. 119. To a foreclosure suit 308 No. 120. In nature of a plea pxiis 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 Billi. 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 347 780 INDEX. Forms. FORMS — Decrees and orders — Continued. No. 132. For an account of partnership dealings 348 No. 133. Final, for dissolution of partnership, etc ,^8 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 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. 152. 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. 162. 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 453 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. 172. For dower, appointing commissioners, etc 473 Affidavit. No. 173. Of commissioners to assign dower 474 INDEX. 781 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. 176. 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 503 No. 182. For divorce, etc., charging cruelty, by wife 504 No. 183. For divorce, etc., charging conviction of crime, etc 507 Order. 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 516 No. 187. For divorce, on the ground of cruelty, etc., upon verdict of jury 516 Petition. No. 188. For alimony pendente lite, etc ... 518 Order. No. 189. Of reference as to alimony, etc 519 Beport. 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 Decree. 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 validity 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 ne exeat, etc 561 BiOs. No. 209. By landlord against tenant to restrain waste 566 782 INDEX. Forms. FORMS — Bills — Continued. No. 210. To remove trustee, etc 571 No. 211. For appointment of new trustee, etc 573 No. 213. For a mechanic's lien on written contract 592 Petitions. No. 213. For mechanic's lien on verbal contract .' 594 No. 214. For mechanic's lien on implied contract 596 Ansiccvs. 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 lieu suit 602 Qross-hill. 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 his 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-arms 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 Bepoi't No. 345. Of master upon exceptions to answer, etc 628 INDEX. 783 Forms of Constituent Parts of an Original Bill — Injunctions. FORMS — Continued. No. 246. Answer, further, after exceptions, etc 628 No. 247. Report of master as to defendant's examination 629 No. 248. Exceptions to report on exceptions to answer 629 No. 249. Agreement to submit on written arguments 630 No. 250. Abstrdct of pleadings and evidence 630 No. 251. Brief and Points to be used on the hearing 631 No. 252. Prcecipe for a writ of error 649 No. 253, Prcecipe for scire-facias to hear errors 650 No. 254. Praecipe for record in common law case 662 No. 255. Praecipe for record in chancery case 663 No. 256. Assignment of errors 672 No. 257. Joinder in error 674 No. 258. Plea of release of errors 676 No. 259. Suggestion of diminution of record 680 GENERAL PRINCIPLES UF 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 — (see Deunkenness — 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 Form of bill 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 answer by guardian ad litem 150 INFANCY— Form of plea of, without a prochein ami 121 INFORMATION — Commencement of suit by 35 INJUNCTIONS — Statute of Illinois relating to 612-617 J udges authorized to grant 612 Master in chancery may grant in absence of judge 613 Notice of application for 613 To stay judgments where had 612 784 INDEX. Insufficiency — 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 613 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 AflBdavits 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 frayer 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 1 62 INTERLOCUTORY— {see 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 showing 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 depo^tions 182 INTERROGATING PART OF A BILL— Nature of, etc 55 Form of 72 Rules of Supreme Court of U. S. relating to 718-719 INTERROGATORY— Form of last, in taking testimony for U. 8. court 727 INDEX. 785 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 512 Form of order directing 512 To try validity of will 553 Form of order directing 553 JOINDER OF PARTIES — Nature of , etc 64-65 Misjoinder of 65 JURISDICTION — Plea to 115 Form of. 120 In divorce suits 485 JURISDICTIONAL CLAUSE — In a bill in chancery 54 Form of 72 JURY- Trial of issues of fact by 188-191 {See Feigned Issxies — Trial bt Jury, etc.) Trial by, in divorce suits 512 In suits testing validity of a will 553 LANDLORD AND TENANT — Form of hill by landlord to restrain waste, etc.. '. 566 LIENS — {see Mechanic's Lien.) Priority of, in creditors' bills 403 LIMITATIONS — Foi'm of plea of statute of. 123 Of mechanic's lien 581 Of sub-contractor's lien 590 LOST INSTRUMENT — Specific performance of contract, lost 823 MAINTENANCE, SEPARATE — When granted 525-527 Grounds for 525-526 Proceedings to obtain 527 Where commenced 527 The bill 527 Injunction, when allowed 527 Form of bill for 527 Defenses to , 529 Practice in, and decrees 529 Reference to master 529 Form of order of. 630 Form ofreportof 530 Amount of allowance 531-638 {See Alimony.) Modification of 683 Form ofdecreefor 633 MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE — Nature of 575 Where a lien is given 676-579 Suits by administrators, etc 577 Estate to which it attaches 577 50 786 INDEX. 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 Limitations of 581 As against the owner 581 As against creditors, etc 581-582 Incumbrances, and other liens 582 Rule for adjusting 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 599 Answers 599 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 I 606 Where a part of the premises can be sold 606 Sales, how made 606 Execution allowed for balance 606-607 Forms of decrees. Allowing lien, and for sale of premises 607 Allowing lien, where other proceedings are pending, etc 608 Allowing lien, where there are several liens, and a mortgage to he adjusted 608 CostB 611 , INDEX. 787 Misjoinder — Parties. MISJOINDER — Of parties to a bill 65 MORTGAGES — (see Foreclosuue of Moutgages, Redemption, etc.) MULTIFARIOUSNESS — Nature of, and what is 48-51 Form of demurrer, on that ground Ill NE EXEAT — Nature of, and wlien 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 cJutncery 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 — (see Portsmouth or Northamp- ton Taules.) 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 254r-256 Defendants 256-257 788 INDEX. Partition Suits. PAETIES — Continued. To bills to foreclose mortgages 372-375 Complainants 372-373 Defendants 373-375 To bill of strict foreclosure 385 To a creditor's bill 400-402 Complainants 400-401 Defendants 401-403 To partition suits 426-428 Complainants or petitioners 426-427 Defendants 427-428 Unknown parties in partition suits 428-436 Process against 43f> To suits for dower 467-468 Unknown defendants in dower suits 468, 471 In proceedings to enforce mechanic's lien 591-592 Unknown defendants 81 How made parties 81 Publication as to 81 Rules of Supreme Court of U. S. relating to nominal parties. . . . 721 PARTITION SUITS — Nature of, and how instituted 423^26 Illinois statute 425^26 Parties to 426-428 Complainants or petitioners 426-427 Defendants 427-428 Unknown 428 Bill or petition 428 Frame of 428 Forms of. Between heirs, subject to dower 428 Bill for 431 Bill for partition and dotoer 433 Petition for partition 435 Affidavit to 435 Process of appearance in 436 Summons 436 Unknown defendants, notice to 436 Absent defendants, notice to 436 Service by copy 436 Interpleader 437 Liens on snares 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 Report of 445 Form of, makiny partition 445 Form of, that premises not devisable 446 Form of decree confirming 447 Exceptions to report of commissioners 448 Decree of sale 448-44& INDEX. 789 Partnership Matters, Bills Relating to — Pleas. PARTITION SUITS— Continued. Dower interest provided for 449 Interest of unknown owners 449-^0 Form, 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 betwecni partners 340-341 Appointment of a receiver 341-342 When appointed 343 Formes of hills. For a dissolution, and for injunction 342 Affidavit to, to obtain injunction 345 For an account, and for injunction 345 Forms of orders and decrees. Order appointing a receiver 347 Decree for an account 348 Final 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 insjjection 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, hy widow 468 By husband 469 By lieirs 470 Form 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 Bell.) 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 . 123 Former suit pending 123 790 INDEX. Pleas to a Bill — Premises, or Stating Part of a Bill. PLEAS — Forms of— Continued. Statute of linaitations 123 Release, supported by answer 123 Stated account 124 To a part, with answer to res-'ulue 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 716-717 PLEAS TO A BILL — Nature of 113-114 When proper 114 To the j urisdiction 115 To the person 115-116 To the bill 116 In bar 116 Frame of 116-119 Forms of 119 Commencement and conclusion of 119 To a part of a bill 119 In abatement to jurisdiction of the court 120 Coverture of comj)lainarit 120 Infancy, without 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, with 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 137 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 480 PRACTICE IN SUPREME AND APPELLATE COURTS — Jurisdiction of supreme court 633-637 Original jurisdiction 634 In revenue cases 634 In nuiridamus 636 In habeas corpus 637 Appellate jurisdiction » 637-641 From appellate court 639 From circuit courts, etc 641 Jurisdiction of appellate courts — Constitutional provision 641 Appellate only 643 Power of court 642 INDEX. 791 Practice in Supreme and Appellate Courts. PRACTICE IN SUPREME AND APPELLATE COURTS — Continued. Practice and pleading 642 Enter judgment in vacation ... 643 Opinions 643 Appeals to 643 Agreed cases — On questions of fact 645 On questions of law 646 Writ of error — supersedeas — Writ of error 647 Limitation of 647 To whom directed 648 Process on , 648 Prcecipe for 649 Pnecipe for scire-facias, etc 650 Return day 650 Notice to non-residents, etc 651 To purchasers — terre-tenants 652 Supersedeas 652 When granted 653 Application for 653 Effect of 655 Security for costs 655 Appeals — When record to be filed 656 Dismissal of 057 Damages on 657 Not for want of sufficient bond 658 Effect of 658 Records of inferior courts — How prepared 659 Placita of, or convening order 660 What is not a part of 660 Prcwijie for 661 Forms of 663 Amending transcript 663 Additional 663 Amendment of 664 Removing from office of clerk 664 Docket — Docketing and hearing 665 Advancing causes 665 Redocketing causes not decided 666 Call of 666 Time for filing abstracts and briefs 666 Effect of failure 669 Rehearing docket 670 Assignment of errors and proceedings thereon — When errors must be assigned 670 Additional errors 672 Form of assignment of errors 672 Cross-errors 673 Joinder in error 673 Form of 674 Special pleas 674 Release of errors 674 Time of filing 676 Form of plea of release of errors 676 Trial of issues 677 792 INDEX. Practice in Supreme and Appellate Courts — Praecipe. PRACTICE IN SUPREME AND APPELLATE COURTS — Continued. Motions — When to be made 677 In what order 678 Special 678 Aflfidavits in support of 678 To vacate orders 679 Suggestion of diminution op record — When to be suggested 679 Form of CBO costs on 680 Original papers — When to be produced 681 Abstracts op the record — To be furnished 681 Time of filing 684 Costs of 684 Brief and argument — 'Briefs 684 Number of copies 685 Oral arguments 686 Time allowed for 688 Advance pees of clerk — How much required 689 Cases taken from appellate to supreme court — Manner of taking 690 Making up record for ... 691 Application for appeal in vacation 694 Judgments — May be final 694 Eemittitur 695 Reversal 696 Effectof 696 Remanding 696 Special directions 696 Executions — May be had from appellate court 696 Rehearing — A pplication for 697 When and how made 697 Answer to 701 Stay of proceedings 699 Licensing attorneys — striking names from roll — Examination in supreme court 701 In appellate court 702 From other states 703 By whom issued 704 Oath of attorney 704 Roll of attorneys 704 Striking names from roll 704 Cause of 705 Notice of complaint 706 Information 706 Library — Duties of librarian 707 PRECIPE — For writ of error 649 Form of 649 INDEX. 793 Praecipe — Receiver. PRAECIPE — Continued. For scire-facias 650 Form of 650 PRAYER — For relief in a bill 56-58 Form of 73 For process in a bill .....' 58-59 Forms of 73 For summons 73 For suhpwna 73 For injunction 73 Of a supplemental bill 207 PREMISES, OR STATING PART OF A BILL— Requirements of, generally 42-52 Form of 70 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 affidaritfor , 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 he 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 Sergeant- 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 712 Service of 711-712 PROCHEIN AMI — Rule of Supreme Court of U. S. relating to 731 Required to give bond for costs 38 PUIS DARREIN CONTINUANCE — Form of cross-bill in nature of plea op. . . 310 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 419 794 INDEX. Records of Inferior Courts — Revivor, Bill of. RECORDS OF INFERIOR COURTS — (See Pkactice in Supreme and Appellate Courts.) RECRIMINATION— In divorce suits 510 REDEMPTION— (fe^e Bills to Redeem.) RELEASE — Form of plea of, supported hy answer 123 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 Effect of filing 172 Withdrawing 172 Form of 172 To answer to bill of revivor 235 Toaplea 127 Rules of Supreme Court of U. S. relating to 724 REPORT— Of commissioners to make partition 445 Form of, where partition was made 445 Form of, where premises not susceptible of division 446 Form of, of master in chancery, 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 as to exceptions to answer 628 Form of, of master as to sufficiency of defendant' s examination . . 629 REVIEW, BILLS OF— Nature of, and when proper 249-254 Where they lie 249 For error of law 251-253 For newly discovered evidence 253-254 Parties to 254-255 Leave to file 255-258 Performance of decree 256 Petition for 256-257 Form of, for errors of law 257 Form of, for newly discovered evidence 258 Within what time to be brought 358-259 Form of order of leave to file 259 Form of bill 259-260 Form of, i(pon 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 to 265 REVIVOR, BILL OF- Nature of 225 When proper 226-228 Before decree 226-227 After decree 227-228 INDEX. 795 Revivor, Bill of — Specific Performance, Bills for. REVIVOR, BILL OF — Continued. Against whom to be filed 228 Before decree 228-229 After decree 229 Frame of bill 230 Must pursue the original bill 230 Form of, before decree 230 Form of, after decree 231 Defenses to 233 Demurrer 233 Plea 233-234 Answer 234-235 Replication 235 Order to revive 236 Form of 236 Hearing 237 Effect of 238-239 Bills in the nature of. Nature and uses 240-242 Parties to 242 Frame of 242 Form of 243 Defenses 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 721-722 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 714-715 SEPARATE MAINTENANCE — (See Maintenancf etc.) SEQUESTRATION— When directed, etc 86 SERGEANT-AT- ARMS — When appointed, etc 85 SPEAKING DEMURRERS — What are, and nature of 105 SUMMONS — (See Process op Appearance.) SWEARING TO A BILL— When required 61-62 To a bill of review — newly discovered matter 262 To a bill of interpleader 285 SPECIFIC PERFORMANCE, BILLS FOR — Nature of, and when proper 317-323 Of a lost instrument 323 Parol contracts 324 Parties to 325-326 Frame of bill 326 Tender 327 796 INDEX. Specific Performance, Bills for — Supplemental Bills. SPECIFIC PERFORMANCE, BILLS FOR — Continued. Forms of. Of a tvi-itten agreement, vendee vs. vendor 327 Of a written agreement, vendor vs. vendee 328 Of a bond for a deed 330 Of an agreement for a lease 331 Decree 333-335 Declaration of right to 333 Reference of title 334 Payment of purchase money, etc 335 Delivery of deeds, etc 335 Forms of orders and decrees. Order of reference as to title, etc 335 Interlocutory, for an account 336 Final decree for 337 Form of supplemental hill for. . • 208 STATUTE OF FRAUDS— Form of miswer, setting it up 150 STRICT FORECLOSURE — (See Foreclosure of Mortgages.) SUB-CONTRACTOR— (See Mechanic's Lien.) SUBPOENA— Form of prayer for, in a bill 73 SUPPLEMENTAL BILLS — Nature of, and when proper 203-305 When to be filed 205 Parties to 205-206 Form of 207 Prayer of 207 Form of, for specific performance, etc 208 Form of, against assignee of bankrupt, etc 209 Petition for leave to file 210 Form of 210 Process, etc 211 Defenses to 211 Demurrer 211 Form of 212 Plea 212 Form of 213 Practice as to demurrers and pleas 213 Answer 213 Replication and evidence 214 Replication 214 Evidence 214r-215 Hearing of 215 Entitling orders in 215 Dismissing 216 Bills in the nature of — When proper 217-219 Form of 219 Form of bill in nature of 219 Bills to carry decrees into execution — Nature of 223 Form of 228 Bills op revivor and supplement — Nature of, and when proper 246 Practice upon 247 Form of 247 INDEX. 797 Supreme Court — Waste, Bills to Restrain. SUPREME COURT — (5ee Practice in Supreme and Appellate Courts.) TAKING BILLS AS CONFESSED — Default 87 When it may be»taken 87 Effect of 88-8» Rights of defendant after 90 Setting aside 90-91 Form of affidavit in support of motion to. 91 Setting aside decree when defendant is not personally notified . 91-93 Form of petition to set aside decree, etc 93 To accept, what the term means 87 Rule to answer 87-88 In case of bills of interpleader 289 TAX DEED — Form of bill to set aside, etc 541 TESTIMONY — Production of books and writings 174 When in the hands of third persons 175 Forms of petition for production of , etc 175 Form of order for 176 Depositions 176 Of resident witnesses 176-177 Of non-resident witnesses, etc 177-178 Notice of taking, when opposite party is a non-resident, etc. . . 178 Of non-resident witnesses, upon oral interrogatories 179 Manner of taking, etc 180-181 Instructions for taking 182 Interpreters in taking 182 Evidence taken by master in chancery 183 Foryn of order of referen ce 183 Form of Piaster's report of 184 Form of objections to 185 Form of exceptions to 185 Oral testimony at the hearmg 186-187 TRUST DEED — Form of hill to foreclose, etc 383 TRUSTEES — Form of hill to remove 571 Form of hill for appointment of , etc 573 TRUSTS, BILLS RELATING TO — Nature of 569-570 Forms of hills 571-574 To remove trustee, for injunction, and receiver 771 For appointment of neiv trustee, etc 573 UNKNOWN OWNERS — In partition suits 428 Process against, in 436 Interest of, in partition sales 449-450 In dower suits 471 UNKNOWN PARTIES — (See Parties.) WASTE — By persons to whom dower is assigned 482 WASTE, BILLS TO RESTRAIN — Nature of, and when proper 563-566 Form of bill, landlord against tenant 56& 798 INDEX. Wigglesworth's Table — Writ of Error. WIGGLESWORTH'S TABLE — For ascertaining present value of annuity, dower, etc 479 WILLS, BILLS TO SET ASIDE — Nature of, and when proper 547-548 What necessary to constitute a vaUd will 548 Fraud in procuring execution of 549-550 Want of capacity to make 550 Form of hill 551 Issue of fact to be tried by a jury 553 Form of order directing - 553 Form of decree setting aside, etc 553 WITNESSES — Compulsory attendance of in U. S. court 726 WRIT OF ERROR— (See Practice in Supbeme and Appellate Courts.) ^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 834 196 8 ( ':Ja. ^ /,% ■