,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.
{<l) Aiken vs. IJoi/d, 28 111. 231.
COMMENCEMENT OF SUIT. 37
Security for Costs.
should it be necessary, in order to carry out such a decree, the
defendant may be prevented by a ne exeat from leaV^ing its
jurisdiction pendente lite. This is the rule of the common
law, and the statute has not changed it. But a court of chan-
cery will not entertain a bill where the relief sought renders
it necessary that it should act upon the specific thing, unless
the subject matter of the litigation is within its jurisdiction.
Thus, where land is to be affected by the decree, as in the
cases of petition for partition, admeasurement of dower, fore-
closure of mortgage, or the enforcement of a mechanic's lien
under the statute, the court must be able to control it directly,
or it has no jurisdiction of the case. This is also a rule of the
common law, which the statute has not changed, {h)
SECTION III.
SECUKITY FOK COSTS.
When required. — If the complainant is a non-resident a
bond for costs must be filed before commencing suit. (/)
The statute requiring non-resident complainants to file a
bond for costs before commencement of suit, applies in the
case of a writ of error sued out in the supreme court ; {j) and
a security for costs in the circuit court is not liable for costs
made against his principal in the supreme court. (Jc)
Form of hond for costs. — The bond for costs to be given
before filing the bill in chancery, by a non-resident, should be
substantially as follows :
(70 Ems vs. Hunter, 4 Gilm. 211; Cooley vs. Scarlett, 38 111. 316; see
Richards vs. Hyde, 21 111. 640.
(/) Rev. Stat. (1874) 297; Rev. Stat. (1877) 295; Randolph vs. Emerick,
13 111. 344; O'Coniicll vs. Rea, 51 111. 306; IVhitehtirst vs. Coleoi, 53' III.
247.
ij) Ripleif vs. Morris. 2 Gilm. 381; Hickman vs. Haines, 5 Gilm. 20;
Roberts vs. Fahs, 32 111. 474.
(k) Clark vs. Quackenhoss, 28 111. 112.
38 COMMENCEMENT OF SUIT.
Bonds for Costs.
No. 1. Bond for costs hy a non-resident.
In the Court of the Coimtj of in the State of
Illinois.
A. B. )
vs. > 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.
(<?) Allen vs. Goffman. 1 Bibb, 4G9 ; Hilleary vs. Hurdle, % Gill, 105;
Kernegay vs. Carroway, 2 Dev. Ch. 403 ; Pleasants vs. Glasscock, 1 S. & M.
Ch. 17.
(/) Wilkinson vs. Bcal, 4 Mad. 408 ; Beaumont vs. Boulbree, 5 Ves. 495 ;
Hiern vs. Mill, 13 Ves. 119, 120; English vs. Foxall, 2 Pet. 595; Hobson
vs. McArthur, 10 Pet. 19.j ; Danforth vs. Smith, 23 Vt. 247 ; Hillenry vg.
Hurdle, Q Gill, 105 : Scudder vs. Young, 25 Maine, 153 ; Sheppard vs. Starke,
3 Munf. 2J; Stanley vs. Valentine, 79 111. 544; Hopkins vs. Siiedaker, 71 III.
449.
58 BILLS IN CIIAXCERY.
Constituent Parts — Prayer of Process.
prayer for general relief, then if the complainant should mistake
the relief to which he is entitled, no other relief can be granted,
and his suit must fail, at least, unless an amendment of the
prayer is allowed, {g)
Under the general prayer for relief, the court will only
grant such relief as the statements of the bill will justify,
and will not ordinarily allow a bill framed for one pur-
pose to answer for another; especially if the defendant may
be surprised or prejudiced by it. If, therefore, the complain-
ant has doubts as to the relief he ought to have, he should
frame his bill with a double aspect, so that if the court
should decide against him in one view of the case, it may
yet afford him. assistance in another. (A)
SECTION XI.
IX. PKAYEK OF PKOCESS.
*
This part of the bill prays process to compel the defendant to
appear and answer the bill, and abide the determination of the
court on the subject. Care must be taken to insert the names
of all persons who are intended to be made parties ; for it is a
general rule that none are parties, although named in the bill,
against whom process is not prayed, {t) The ordinary process
prayed is a writ of subpoena, or summons, as provided in
Illinois, which requires the defendant to appear and answer the
Dill on a certain day, named in the writ. If the complainant
wishes an injunction against the defendant, he must not only
pray for it in the prayer for relief, but also, in the prayer for
(g) Story.'s Eq. PI. §41 ; Coop. Eq. PI. 14; Cook vs. Marty n, 2 Atk. 2;
Polk vs. Clinton, 12 Ves. 62-65 ; Thomason vs. SmitJison, 7 Porter, 144.
(A) Story's Eq. PL § 42 ; Dan. Ch. Pr. 434, 441 ; 1 Hoff. Ch. Pr. 49 ; Mitf.
Eq. PI. 38 ; Coop. Eq. PL 14 ; Jones vs. Parishes etc. 3 Swanst. 208 ; Legal va.
Miller, 2 Ves. 299 ; Walker vs. Devcreaux, 4 Paige, Ch. 229 ; Scudder vs.
Young, 25 Maine, 153 ; Colton vs. Ross, 2 Paige, Ch. R. 396, and the cases
there cited as to proper forms of ])rayer for relief.
(j) Barb. Ch. Pr. 37 ; Story's Eq. PL § 44 ; Coop. Eq. PL 16 ; Fawkea vs.
Pratt, 1 P. Wins. 503; Windsor vs. Windsor, 2 Dick. 707; Elmendorf yq
Delaney, Hopk. 555.
BILLS m CHANCERY. 59
Frame of Bill — Signing of Bills.
process, (f) A prayer for general relief will not be sufficient
to authorize it. (Z:) If only a temporary injunction is wanted,
the bill must also contain a formal prayer for it. {I)
SECTION XII.
FKAME OF A BILL.
We have now given the nine formal parts of an original bill
praying relief, as it is generally framed ; upon which Lord
Redesdale has made the following remarks : " Some of them
are not essential ; and, particularly, it is in the discretion of
the person, who prepares the bill, to allege any pretense of the
defendant in opposition to the plaintiff's claims, or to interro-
gate the defendant specially. The indiscriminate use of these
parts of a bill, in all cases, has given rise to a common reproach
to practisers in this line, that every bill contains the same story,
three times told. In the hurry of business, it may be difficult
to avoid giving ground for the reproacli. But in a bill, pre-
pared with attention, the parts will be found to be perfectly
distinct, and to have their separate and necessary operation." {?n)
SECTION XIII.
SIGNING OF BILLS.
Except in cases where an injunction is asked for, or a dis-
covery, or an answer On oath is required from the defendant,
bills are usually signed by the solicitor alone, and not by the
party, [n) If the complainant sues in person, however, it must
be signed by him. And in that case, it seems that it need not
be signed by counsel, (o) The general rule, however, is that
the bill must be signed by counsel. And if it is not so signed,
(jf) 1 Barb. Cli. Pr. 37 ; Wood vs. Beadel, 3 Sim. 273.
(k) Barb. Cli. Pr. 37 ; Wright vs. Atkyns, 1 Ves. & B. 314.
(0 Walker vs. Devereaux, 4 Paige, Ch. R. 229.
(to) 1 Mitf. Eq. PL by Jeremy, 47 ; Story's Eq. PI. i- 46.
(71) Hutch vs. Eustaiihiece, 1 Clarke, 63 ; 1 Barb. Ch. Pr. 43.
(o) 1 Hofif. Cli. Pr. 97 ; 1 Barb. Ch. Pr. 44
60 BILLS IN CHANCEKY.
Signing of Bills — Swearing to Bill.
it will be, on motion, stricken from the files ; or it may be
demurred to for that cause, {j)) Signing by counsel, on the back,
is held sufficient, {g)
The 2-ith rule of practice for the courts of equity of the
United States, provides, that " every bill shall contain the sig-
nature 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 before him, there is good ground for the suit,
in the manner in which it is framed."
The great object of this rule is to secure regularity, relevancy
and decency in the allegations of the bill, and the responsibility
and guaranty of counsel, that he regards the bill as being pro-
perly filed. Hence it is that counsel are held responsible for
the contents of the bill ; and, if it contains matter which is
irrelevant, impertinent or scandalous, such matter may be ex-
punged, and the counsel may be ordered to pay costs to the
party aggrieved, (r)
SECTION XIV.
SWEARING TO THE BILL.
There is no rule in Michigan {s) or Illinois, requiring bills
in cases of general equity cognizance to be sworn to. If a
bill seeks a discovery of deeds or writings, and prays relief,
founded thereon, and the relief so prayed be such as might
be obtained at law, if the deeds or writings were in the cus-
tody of the complainant, he must annex to his bill an affidavit
that they are not in his custody or power, and that he knows
not where they are, unless they are in the hands of the defend-
{p) Dillon vs. FrancAs, Dick. 68; French vs. Dear, 5 Ves. 547; Kirkley
vs. Burton, 5 Mad. 378; Cary vs. Hatch, 2 Edw. Ch. R. 190; Patridge vs.
Jackson, 2 Edw. Ch. R. 520 ; Story's Eq. PI. § 47 ; Boach vs. Rulings, 5
Cranch, C. C. 637.
{q) Dwlght vs. Humphreys, 3 McLean, 104.
(r) Story's Eq. PL t^ 47 ; Coop. Eq. PL 18, 19 ; Gilb. For. Rom. 210, 211 ;
Emerson vs. Dallison, 1 Ch. 194; McConnel vs. Uollohush, 11 111. 61.
(«) Moore vs. Cheeseman, 23 Mich. 332.
BILLS IN CHANCERY. 61
Swearing to Bill — Parties.
ant, otherwise the bill will be deirmrable. {i) But if the relief
sought extends merely to the discovery of the instrument,
or is otherwise such as can only be given in a court of equity,
such an affidavit is not necessary, [u)
Where the bill seeks an injunction it should be verified by
affidavit, {v) It will not suffice to swear to the material facts
upon information and belief. They should be positively sworn
to. {w) And wdiere, upon an ex parte application for an interlo-
cutory injunction, the complainant states the facts on which his
equities rest upon information and belief, he should present affi-
davits of their truth from the persons of whom his knowledge
is obtained, and who can swear positively to the facts, {x) An
exception, however, is recognized in the case of an injunction
in aid of a creditor's bill against the judgment debtor alone, no
third parties being joined as defendants, and in such case it
is sufficient if the complainant swears upon information and
belief as to the recovery of the judgment and return of execu-
tion nulla ho7ia. (y)
SECTION XV.
PARTIES TO BILLS.
It cannot be expected that in a condensed work of this
kind, the important consideration as to who are proper and
necessary parties to a bill can meet with an extended exam-
(t) Story's Eq. PI. § 477,478, 288, 311 ; Coop. Eq. PI. 125 ; Looker vs.
Roll, 3 Ves. 4; Byves vs. Ryves, 3 Ves. 343; and see Russell vs. Clarke etc. 7
Crancb, 69, 89 ; 1 Story's Eq. Jur. § 71 ; Rootham vs. Dawson, 3 Anst. 859;
WhitcJiurch vs. Golding, 2 P. Wms. 541 ; Humphreys vs. Sumphreys, 3 P.
Wms. 395 ; Hook vs. Dorman, 1 Sim. & Stu. 227.
{u) Lord Red. Tr. PI. 112, 113; 1 Mad. Ch. Pr. 26, 7, m ; -Whitchurch
vs. Golding, 2 P. Wms. 541.
(«) High on Inj. § 984-987.
(w) Campbell vs. Morrison, 7 Paige, Ch. R. 157 ; RebouVs Heirs vs. Beh-
reus, 5 La. An. 79 ; Cutlett vs. McDonald, 13 La. An. 44.
(cc) High on Inj. §984; Campbell vs. Morrison, 7 Paige, Ch. R. 157;
Bank of Orleans vs. Skinner, 9 Paige, Ch. R. 305 ; Toungblood vs. Schamp,
2 McCart. 42.
(r/) Hamersley vs. Wickoff, 8 Paige, Ch. R, 72 ; Sizer vs. Sizer, 9 Paige,.
Ch. R. 605 ; High on Inj. § 984-986.
62 BILLS IN CHANCERY.
Who should be made Parties.
ination. This is a subject of great practical importance, and
of no inconsiderable difficult}^ in u great variety of cases.
The reader is referred to Chapter lY of Story's Equity
Pleadings; 1 Daniels' Chancery Practice, Chapter Y; and
Barbour on Parties ; where these authors have devoted a good
deal of attention and a large space to the subject. A brief
summary of the rules in relation to proper parties to pro-
ceedings in chancery is, however, indispensable, and will be
given.
Who should he made parties. — In chancery, all the parties
in interest, and whose rights may be effected, ought to be
made parties to the bill ; and if the court is called upon,
in the exercise of its discretion, to dispense with the proper
parties, some reason therefor ought to be disclosed in the
bill, {z) Courts will take notice of the omission of proper
defendants in the bill, though no demurrer be interposed,
when it is manifest that the decree will have the effect of
depriving them of their legal rights, {a) If the answer to
a bill discloses an interest in a third person in the subject
matter of the suit, he should be made a defendant in the
bill, that he may have an opportunity of defending his inter-
ests, which might otherwise be effected without a hearing, (b)
There are some exceptions to the general rule that all persons
interested in the subject matter in the suit should be made
parties; but one general rule, however, governs all these
(2) Oilham vs. Cairns, Breese, 164 ; Scott vs. Moore, 3 Scam. 306 ; Martin
vs. Dryden, 1 Gilm. 187 ; Spear vs. Campbell, 4 Scam. 434; Whitney vs. Mayo,
15 111. 251 ; Prentice vs. Kimball, 19 111. 320; Eoare vs. Harris, 11 111. 24
Smith vs. Rotan, 44 111. 506 ; Hassett vs. Ridgeley, 49 111. 197 ; Harris vs.
Carter, 3 Stffwart, 233 ; Mechanics' Bank vs. Seton, 1 Pet. 299 ; Story vs.
Livingston, 13 Pet. 359 ; Hussey vs. .Dole, 24 Maine, 20 ; McConnell vs.
McConnell, 11 Vt. 290; Crocker vs. Higgins, 7 Conn. 342; New London
Bank vs. Lee, 11 Conn. 112; Haioley vs. Cramer, 4 Conn. 717; Oliver vs.
Palmer, 11 Gill & J. 426 ; Park vs Balleniine, 6 Blackf. 223 ; Wescott vs.
Minn. Mining Co. 23 Mich. 145 ; Strong vs. Downing, 34 Ind. 300 ; Hicken-
botham vs. Blackledge, 54 111. 316.
(a) Uerrington vs. Hubbard, 1 Scam. 569 ; Bohan vs. Oaloway, 13 III.
75 ; Prentice vs. Kimball, 19 111. 320.
(6) Herrington vs. Hubbard, 1 Scam. 569
BILLS m CHANCEKY. 63
Parties — How Described — Persons under Disability.
exceptions, and that is, " that as the object of the rule is to
accomplish the purpose of justice between all of the parties,
and as it is a rule founded in some sort upon public con-
venience and policy, rather than upon positive principles of
municipal or general jurisprudence, courts of equity will
not suffer it to be applied so as to defeat the very purpose
of justice, if they can dispose of the merits of the case before
them without prejudice to the rights or interests of other
persons who are not parties; or if the circumstances of the
case render the application of the rule impracticable, and if the
persons thus interested are«unknown to the complainant, or are
exceedingly numerous, they need not be made parties." (c)
A person interested in the subject matter of a suit in equity,
refusing to join with the complainant, may be made a defend-
ant, though his interest is with the complainant, {d) And
if it appear to the court that a person who may be interested
disclaims all interest in the controversy, he need not be
made a party, {e)
How described. — Parties to suits in chancery should be
described by their proper names, if known ; if their names
are unknown, they must be made parties in the manner pre-
scribed by statute. {/) Parties may be made to a bill under
an averment that they have, or pretend to have, title to land;
and if the charge in the bill is untrue, by disclaiming, they
may obtain costs. Such parties, if there is no equitable
ground of relief shown against them, should demur separately,
not join in a general demurrer, {g)
Persons urider disahility. — Suits in chancery may be com-
menced and prosecuted by infants, either by guardian or next
(c) Willis vs. Henderson, 4 Scam. 13; Webster vs. French, 11 111. 254;
West vs. Randall, 2 Masou, 181 ; Whitney vs. Mayo, Ir, 111. 252 ; Robinson vs.
Smith, 3 Paige, Ch. R. 222 ; Smith vs. Rotan, 44 111. 506.
{d) Smith vs. Sacket, 5 Gilm. 534 ; Whitney vs. Mayo, 15 111. 252 ; Con-
tee vs. Datcson, 2 Bland, 264 ; Pogson vs. Owen, 3 Desau. 31 ; Cook vs. Hod-
ley, Cooke, 465 ; Morse vs. Hovey, 9 Paige, Ch. R. 197.
(e) Johnson vs. Rankin, 3 Bibb, 86.
(/) Kirkham vs. Justice, 17 111. 107.
{g) Finch vs. Martin, 19 111. 105.
64 BILLS IN CHANCERY.
Parties — Interest of Parties — Joinder of Parties.
friend, and by conservators on behalf of the persons they
represent. (A) The suit must be in the name of the minor
by his next friend or guardian ; {i) and an order of court
appointing a next friend is unnecessary, (j) The next friend
may be selected after the suit is commenced, (k)
Interest of ^parties. — The bill must show that the com-
plainant has an interest in the subject matter in the suit ; (Z)
a mere contingent, or possible interest, or probability of future
title, is insufficient, {m) It must also be shown that the de-
fendant has an interest, and is liable to answer to the com-
plainant therefor, (ri) Parties having conflicting interests in
the subject of litigation should not be joined as complainants
in the suit, {p)
The statement showing the rights of the complainant, by
whom and in what manner he is injured, or in what he wants
the assistance of the court, and a prayer for relief suitable to
his case, and for that purpose that the process of the court may
issue to bring the defendants before it, form the substance and
essence of every bill ; and must not, by any means, be
omitted, (j?)
Joinder of parties. — "Where a tax is sought to be levied
without authority, several property owners, having a common
interest in the subject, and asking relief against the same
ih) Rev. Stat. (1874) 198; Rev. Stat. (1877) 184.
(i) Hoare vs. Harris, 11 111. 24; Holmes vs. Field, 11 111. 431; Stewart
vs. Howe, 17 111. 71.
(J) French vs GreatJi, Breese, (Beeclier's ed.) 111. R. 31.
{k) Stamps vs. Kelley, 23 111. 140.
Q) Mitf. Eq. PI. 156-7 ; Smith v. Holleribeck, 46 III. 252 ; Kerr vs. Watts,
6 Wheat. 550; Mansfield vs. Hoagland, 46 111. 359; see Smith vs. Hollen-
beck, 51 111. 223.
(to) Reid vs. Vandcrheyden, 5 Conn. 719 ; Austin vs. Richardson, 1 Gratt.
810 ; Reeves vs. Adams, 2 Dev. Cli. 192 ; Barbour vs. Whitlock,4: Monr. 180;
Mitf. Eq. PI. 127 ; 1 Barb. Cli. Pr. 39.
{n) Att'y Gen. vs. Whorwood, 1 Ves. Sr. 534.
((?) Grant vs. Van Schoonhoven, 9 Paige, Ch. R. 255.
(jj) 1 Barb. Ch. i'r. 39; 1 Dan. 412; see Elder vs. Jones, 85 111. 384.
BILLS IN CHANCEEY. 65
Parties — Want of Proper Parties — Misjoinder, etc.
injury, on the same ground, may join in a bill to restrain its
collection, (q)
Want of projper lyartiefi^ misjoinder^ etc. — Where the want
of proper parties, or a misjoinder, appears upon the face of
the bill, advantage of it may be taken by demurrer or motion
to dismiss ; where the want of parties does not so appear,
a plea or answer setting up the fact is proper, (r) The want
of necessary parties is not, however, a ground for dismissal in
the first instance ; but if the complainant neglects or refuses
to make the necessary parties, after objection made, the bill will
be dismissed, (.9) without prejudice, {f) If the objection is not
taken until the hearing, the court may order the case to stand
over, on terms, with liberty to the complainant to amend, by
adding such new parties as may seem to be necessary ; ((ul) but
it cannot be urged at the hearing, unless it is manifest that
a decree cannot be made without bringing other parties before
the court, {v) If neither party raises the objection, it is com-
petent for the court to go on and settle the rights of the
parties before it, without prejudice to those who are not
parties, {w)
(g) Harward vs. St. Clair Drain Co. 51 111. IBO; Mt. Carbon C. & R. Co.
vs. Blanchard . 54 111. 240; Comoell vs. Watkins, 71 111. 488.
(r) Prentice vs. Kimball, 19 111. 320 ; Spear vs. Campbell, 4 Scam. 424 ;
Scott vs. Bennett, 1 Gilm. 646 ; Story vs. Livingston, 13 Pet. 359 ; Marston vs.
Humphreys, 24 Maine, 513 ; De la Vergne vs. Everston, 1 Paige, Ch. R. 181 ;
Chipman vs. Thompson, Walker, Ch. R. 405 ; but see Bugbee vs. Sargent,
23 Maine, 269.
(s) Singleton vs. Oale, 8 Porter, 270 ; Enapp vs. Marshall, 26 111. 63 ;.
Thomas vs. Adams, 30 111. 37.
(t) Mims vs. Mims, 3 J. J. Marsh. 103 ; Rowland vs. Gorman, 1 J. J.
Marsh. 76 ; Barry vs. Rogers, 2 Bibb, 304 ; Wallace vs. Hawley, 4 J. J. Marsh.
622.
(u) Fetch vs. Hooper, 20 Maine, 159 ; Nash vs. Smith, 6 Conn. 421 ; Miller
vs. McCan, 7 Paige, Ch. R. 451 ; McLaughlin vs. Van Keuren, 21 N. J. Eq.
R. 379.
(«) Cannon vs. Norton, 14 Vt. 178 ; see Woods vs. Scott, Id. 518 ; La
Orange &c. R. R. Co. vs. Rainey, 7 Colw. Tenn. 420 ; De la Vergne v&
Everton, 1 Paige, Ch. R. 181.
(w) Lorillard vs. Coster, 5 Paige, Ch. R. 172.
5
66 BILLS IN CHAJSrCERY.
Ancient Bills — Form of Ancient Bill.
SECTION XVI.
ANCIENT BILLS.
It may be prolitable here to give the form of an ancient
bill, taken from the proceedings of the Record Commission.
Barton, in his history of a suit in equity, (a?) gives the form ;
and speaking of it, says, it was filed in the reign of Henry
Y, to compel a defendant to surrender a messuage which
was the inheritance of the plaintifi", Katharine. It will be
perceived in how small a compass the whole is contained,
and yet how completely it takes in the equity of the case.
JVo. 3. Form, of an Ancient Bill.
To the Reverend Father in God, the Bishop of Winchester,
Chancellor of England :
Beseecheth humbly your poor orator, John Bell, of Calls,
soldier, and Katharine, his wife, that whereas William Atte
Wode, otherwise called William Atte Downe, of Rochester,
father of said Katharine, since dead, heretofore Avas seised in
his demesne as of fee of one messuage with the appurtenances
in Rochester, situated in the churchyard there — the which
William, in the feast of St. Michael, in the twenty-second year
of the reign of King Richard II, since the conquest, let to
farm to one Simon Stelhard, of Gillingham, the same messuage
with the appurtenances, for term of seven years then next
ensuing, for a certain sum to him annually to be paid; the
which Simon, within the first two years, was ousted by the
executors of the said William, because he would not attorn
to them in payment of tlie rent of the said messuage — the
which messuage was since then several times' alienated to
divers persons, and now so it is, very gracious Lord, that
one Piers Savage, now occupier of the same messuage, for
which he hath not paid more than mark, hath oftentimes
been required to deliver the same to the said John and
(x) Barton's Suit in Eq. 39, note (1).
BILLS IN CHANCERY. 67
Ancient Bills.
Katharine, as the heritage of tlie same Katharine ; and he
hath not delivered the same, nor '_yet will, but detains it in
destruction of their poor estate and perpetual disherison
of the same Katharine, if they should not obtain a remedy
by your gracious aid in this behalf; and the which John and
Katharine are so poor, and the said John so ill, that they
cannot pursue the common law. Please your very gracious
Lordship to consider the premises, and thereupon to grant
a writ to the said Piers to appear before you at a certain
day upon a certain j)ain, by you to be limited, to answer of
the matter aforesaid, and to do right, as good conscience
demandeth it, and this for the love of God, and in work of
charity.
The following general account of these ancient bills is taken
from Spence's History of Equitable Jurisdiction, vol. 1, p. 367.
" The plaintiff in his bill simply detailed the facts. It was
not necessary that the bill should use any particular phrase-
ology, or that it should define or describe the cause of suit
in any set or definite terms, as in a declaration at law ; it
was not founded on any regula juris y it frequently sought
relief against some rule of law. All that the plaintiff had
to show was, that his was a case which ought to be enter-
tained under the powers given by the general delegation.
The bills almost universally pray a subpoena^ sometimes a
writ of habeas corpus cum causa, or writ of certiorari alone ;
sometimes for subpccna as well as one or the other of those
writs ; in some instances a sergeant-at-arms, to bring up the
defendant, is prayed for ; sometimes an injunction. Some of
the bills pray for the surety for the peace as well as other
relief; many of the bills simply ask for relief generally. In
some instances the bill consists of interrogatories, upon which
it prays the defendant may be examined. The bills always
conclude in terms of supplication, as 'for the reverence of
God and for work of charity ;' the plaintiff sometimes adding,
'and he shall ever pray for you;' 'and your petitioner shall
ever pray,' etc., is still appended to' every petition to the chan-
cellor. In ancient times the suhpcena was not issued unless
68 BILLS IN CHANCERY.
Ancient Bills.
the case stated in the bill was considered to warrant it, and
the chancellor sometimes took the advice of some of the
judges on the subject. Sometimes a letter was first written
by the chancellor, urging the defendant to do justice to the
plaintiff, {y)
iy) Barton's Suit in Eq. 39, note (1).
CHAPTER IV.
F0BM8 OF THE CONSTITUENT PARTS OF AN ORIGINAL BILL.
I. THE ADDRESS, (a)
1. In the Circuit Court of the United States.
To the judges of the Circuit Court of the United States, for
the District of :
^. In Illinois.
To the Honorable , Judge of the Circuit Court of the
County of , in the State of Illinois,
In Chancery sitting :
{The address for the various state courts can he arranged
according to the title of the court.)
n, THE mTRODUCTION. (»)
3. By a complainant under no disabilities.
Your orator, A. B,, of the county of , respectfully repre
Bents unto your honor that, etc. :
-4- By an unmarried woman.
Tour oratrix, C. D., of the county of , respectfully repre-
sents unto your honor that, etc. :
6. By a married woman against her husband, or other
person.
Tour oratrix, C. D., wife of D. D., of tlie county of ,
respectfully represents unto your honor, that, etc. :
{a) See ante, page 41.
70 FOKMS OF AN ORIGINAL BILL.
The Address — Premises or Stating Part.
6. By husband and wife.
Yoiir orator and oratrix, A. B., and C. B., his wife, of the
county of , respectfully represent unto your honor that,
etc.
7. By an infant hy his father and next friend.
Your orator, A. B., of the county of , an infant under
the age of twenty-one years, to-wit, of the age of years,
by E. B., of the same county, his father and next friend,
respectfully represents unto your honor that, etc.
8. By an infant hy his guardian.
Your orator, A. B., of the county of , an infant under
the age of twenty-one, to-wit, of the age of years, by
E. F., of the same county, his guardian, respectfully represents
unto your honor that, etc.
9. By a Corporation.
Your orator, the Company, a corporation duly estab-
lished by the laws of the State of , respectfully represents
unto your honor that, etc.
10. In the Circuit Court of the United States.
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. (b)
in. THE PREMISES OB STATING PAKT. (c)
11. That, etc. {Here insert all the facts and circumstances
of the corn/plainanf s case, and of the lorong or grievance com-
plained of and conclude stating part as follows :) And your
(6) Rule 20 of the Rules of Practice for the Courts of Equity of the
U. S., adopted 1870.
(c) See ante, pages 42-52. ^
FORMS OF AN OKIGINAL BILL. 71
Confederating Part — Charging Part.
orator well hoped that no disputes would have arisen touch-
ing the said, etc. etc. {stating the subject matter) ; but that the
defendant would have complied with the reasonable request
of your orator, as in conscience and equity he ought to have
done.
IV. THE CONFEDERATING PART.
{This part, as we have seen, may he omitted at the option of
the pleader.) {d)
12. But now so it is, may it please your honor, that the
said C. D. combining and confederating with divers persons,
{or, if there are several defendants, then thus: combining
and confederating with E. F. and G. H., and with divers
other persons ; or, the said L. M. and IT. M. combining and
confederating together, and with divers persons) at present
unknown to your orator, whose names, when discovered, your
orator prays he may be at liberty to insert herein with aj)t
words to charge them as parties defendant hereto, and con-
triving how to wrong and injure your orator in the premises,,
he, the said C. D., absolutely refuses to comply with such
request, and he at times pretends that, etc. {Here follows the
statement of the defendant s supposed ground on which he
a/voids the plaintiff'' s claim, and this shoidd he matter dis-
proved or traversed in the charging part of the hill.)
V. CHARGING PART.
{This part of the hill may also he omitted at the pleadcr\^
option.) {e)
13. That the defendant sometimes alleges and pre'Jends
{stating the supposed ground of the defendant), and at other
times he alleges and pj-etends, etc. ; whereas, your orator
charges the contrary thereof to be the truth, and that {stating
the special matter vjith which the plaintiff ineets the defend-
ant's supposed case.)
{d) See ante, page 53.
(e) See ante, page 53.
72 FOKMS OF AN ORIGINAL BILL.
Jurisdictional Clause — Interrogating Part.
VI. JURISDICTIONAL CLAUSE.
{TJiis clause may he omitted as unnecessary) {f)
14. All whicli actings, doings, and pretenses of the defend-
ant {or defendants) are contrary to equity and good conscience,
and tend to the manifest wrong, injury and oppression of your
orator in the premises. In consideration whereof, and inas-
much as your orator is entirely remediless in the premises,
according to the strict rules of the common law, and can only
have relief in a court of equity, where matters of this nature
.are properly cognizable and relievable. To the end therefore, etc.
VII. INTERKOGATING PART.
{In many cases this part is unnecessary.) {g)
15. To the end, therefore, that the said C. D. and the rest
'Of the confederates, when discovered, may, upon their several
and respective corporal oaths, full, true, direct and perfect
answers make to all and singular the matters hereinbefore
stated and charged {or to all and singular the prem^ises, or, to
all and singular the charges and matters aforesaid), as fully
and particularly as if the same were hereinafter repeated, and
.they thereunto distinctly interrogated {or as fully in every
.respect as if the same were here again repeated, and they there-
unto particularly interrogated) ; and that not only as to the
best of their respective knowledge and remembrance, but also
as to the best of their several and respective information,
hearsay and belief {or, according to the hest of their respective
knowledge, information, and helief) ; and more especially,
that they may answer and set forth :
1. Whether, etc. {Here follows interrogatories to he
a/nswered hy tJte defendant)
2. Whether, etc.
(/) Si-e ante, page 54.
{.g) St!(j ante, page 55.
FOEMS OF AN ORIGINAL BILL. 73
Prayer for Relief — Prayer for Process.
Viri. PRAYER FOR RELIEF (A)
16. {After the interrogating po/H). And that the defend-
ant may come to a fair and just account, etc. {Here state the
particular relief asked) ; and that your orator may have such
further and other relief in the premises as the nature of his
ease shall require, and to your honor shall seem meet.
IX. PRAYER OF PROCESS, {h)
17. Prayer for summons.
May it please your hqnor 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 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.
18. Prayer for subpoena.
May it please your honor to grant unto your orator the writ
of subpoena of , to be directed to the said C. D., and the
rest of the confederates when discovered, thereby commanding
them, and every of them, at a certain day and under a certain
penalty, therein to be specified, {or., therein to he inserted,) per-
sonally to be and appear before this honorable court, and then
and there to answer all and singular the premises, and to
stand to, perform and abide such order and decree therein, as
to your honor shall seem meet.
19. Prayer for injunction.
{After the jprayer for summons or suhpcena, as in the two
last forms, add the following :)
And may it please your honor to grant unto your orator the
people's writ of injunction, to be directed to the said C. D.,
restraining him, etc. {Here insert the matter sought to he en-
joined), until the further order of said court.
Qh) See ante, page 58.
CHAPTER V.
PKOCESS FOR APPEARANCE.
Section 1.
Summons.
2.
Service and Return.
3.
Notice by Publication.
4.
Service by Copy of Bill.
5.
Unknown Defendants.
G.
Attacument.
7.
Attachment with Proclamation.
8.
Commission of Rebellion.
9.
Sergeant AT- Arms.
10.
Sequestration.
SECTION I.
SUMMONS.
The statute of Illinois provides, that, " upon the filing of
every bill, the clerk of the court shall thereupon issue a sum-
mons, tested, dated and sealed, as a summons in common law
suits, directed to the sheriff of the county in which the defend-
ant resides, if the defendant be a resident of this State, requir-
ing him to appear and answer the bill on the return day of the
summons ; and where there are several defendants, residing in
different counties, a separate summons .shall be issued to each
county, including all the defendants residing therein." (a)
A summons must describe the parties correctly, (5) and be
under seal, (<?) or it will be quashed on motion, {d) But such a
defect cannot be taken advantage of after a general appear-
ance, {e)
(a) Rev. Stat. (1874) 199; Rev. Stat. (1877) 185; see Hochlander vs.
Hochlamhr, 73 111. 618.
(5) Richardson vs. Thompson, 41 111. 202.
{r) ' Onrland vs. Britton, 12 111. 232; Besimer vs. The People, 15 111. 440;
Beauhien vs. Sabine, 2 Scam. 460.
(d) ITannum vs. Thompson, 1 Scam. 238 ; Anglin vs. Nott, 1 Scam. 895.
(e) Eaiton vs. Altum, 1 Scam. 250.
PROCESS FOR APPEARANCE. 75
Service and Return of Summons. "
SECTION II.
SERVICE AND KETUEN OF SUMMONS.
The ninth section of the chancery act of Illinois, provides,
that, " every summons in chancery shall be made to the next
term of the court after the date thereof, or the next succeed-
ing term thereafter." And section ten of the same act pro-
vides, that " if, in any suit in chancery, the process shall not
be returned, executed on or before the return day thereof,
the clerk, if required, shall issue an alias, pluries, or other
process, without an order of court therefor, [f)
How served. — The statute of Illinois requires, that, " service
of summons shall be made by delivering- a copy thereof to
the defendant, or leaving such copy at his usual place of
abode, with some person of the family, of tlie age of ten
years -or upwards, and informing such person of the contents
thereof. If service is not had at least ten days before the
return day of such summons, the case shall stand continued
till next term of the court." {(j)
The return. — The "return of the service of a summons,
except when otherwise provided by the statute, must show
the time when, upon whom, and how the service was made.
A return, stating that the sununons has been duly served on
C. D. according to law is not sufficient. (A)
The service must be made strictly in accordance with the
statute, and so shown by the returns of the officer, or the
court will not have jurisdiction of the person, {i) Where the
service is insufficient to confer jurisdiction, the decree as to
the defendants is a nullity, and may be questioned in a collat-
eral proceeding, {j )
(/) Rev. Stat. (1874) 199; Rev. Stat. (1877) 185.
{(j) lb.; see Mach vs. Brown, 73 111. 295.
[h] Ball vs. Shaftnck, 16 111. 299; Wilson ws. Greathotise, 1 Scam. 174,
176; Bellingall vs. Gear, 3 Scam. 575; Miller ms. Handy, 40 111. 448.
{i) Cost vs. Rose, 17 HI. 276; Borland vs. Boyland, 18 111. 551 ; Miller vs.
Mills, 29 111. 431; Fisher vs. Fisher, 54 111. 231.
(./) Botsford vs. O'Conner, 57 111. 72; Hochlauder vs. Hochlander, 73 111.
618; see McNah vs. Young. 81 111. 11.
76 PEOCESS FOR APPEARANCE.
Service and Return of Summons.
Where service is by smnmons, parol evidence will not be
heard to prove or to aid it. It is otherwise when it is by
publication, {k)
If the return of the officer does not show the date of the
service, but the decree recites, " that the defendants were
duly served," such recital was held to cure the defect in
the return. (Z) And a return " this writ personally served
by deliv-ering copies of the same to the within named defend-
ants " is sufficient. In such case the court will presume that
the service was had on such. {?n) But a return of service, " on
the within named defendants," not giving the name, there
oeing two defendants named in the summons, is insufficient, (n)
Where service is made by delivering a copy to a third per-
son, the return must state the name of the person to whom
the copy was delivered ; that he was over ten years of age ;
a member of the family of the defendant ; that it was at
the defendant's usual place of abode ; and that the officer
informed such person of the contents thereof, {o)
If the return fails to state the name of the person with whom
the copy of the summons was left, [p) or that he was a member
of the family, (q) or that it was at the defendant's usual place
of abode, (r) or that the officer informed the person with whom
he left the copy, of the contents thereof, {s) it is defective. But
where a copy is left with the wife, for her husband, at her resi-
dence, it will be presumed to be the place of the abode of the
(k) Botsford vs. 0' Conner, 57 111. 72.
(0 Kivard vs. Gardner, 39 111. 125.
(m) Barnes vs. Hazelton, 50 111. 429 ; Qreenman vs. Havmy, 53 111. 386 ;
Martin \<. Harqnrden, 46 111. 322; Hedges vs. Mace. 72 111. 472.
(m) Richardson vs. Thompson, 41 111. 202; Whitman vs. Fisher, 74 111. 147.
(a) DinlUiss vs. Wkitmire, 20 111. 425 ; Ftsher vs. Fisfier, 54 111. 234.
(p) Montgomery vs. Brown, 2 Gilm. 584.
{q) Townsend vs. Griggs, 2 Scam. 366 ; Boyland vs. Boyland, 18 111. 522;
Fisher vs. Fisher, 54 111. 552 ; Montgomery vs. Brown, 2 Gilm. 581 ; Bivilbliss
vs. Whitmire, 20 111. 425.
(r) Boyland vs. Boyland, 18 III. 552.
(«) Tompkins vs. Wiltberger, 56 111. 385.
PKOCESS FOR APPEARANCE. 77
Publication — Time of Publication.
husband, (t) The return must state, however, that it was at his-
or his wife's residence, (u)
SECTION III.
NOTICE BY PUBLICATION.
The statute of Illinois provides that, "whenever any com-
plainant, or his attorney, shall iile in the office of the clerk of
the court in which suit is pending, an affidavit showing that any
defendant resides, or hath gone out of this state, or on due
inquiry cannot he found, or is concealed within this state, so
that process cannot be served upon him, and stating the place
of residence of such defendant, if known, or that upon diligent
inquiry his place of residence cannot be ascertained, the clerk
shall cause publication to be made in some newspaper printed
in his county, and, if there be no newspaper published in his
county, then in the nearest newspaper published in this state,
containing notice of the pendency of such suit, the names of
the parties thereto, the title of the court, and the time and place
of the return of the summons in the case ; and he shall also,
within ten days of the first publication of such notice, send a
copy thereof by mail, addressed to such defendant, whose place
of residence is stated in such affidavit. The certificate of the
clerk, that he has sent such notice in pursuance of the statute,
will be evidence."
Time of jpublication. — "The notice required maybe given
at any time after the commencement of the suit, and shall be
published at least once in each week for four successive weeks,
and no default or proceeding shall be taken against any defend-
ant not served with summons, or a copy of the bill, and not
appearing, unless forty days shall intervene between the first
publication of the notice, and the first day of the term at which
such default or proceeding is proposed to be taken." {v)
(«) I'rieto vs. Duncan, 23 111. 26; see Mack vs. Brown, 73 111. 295.
ill) Miller vs. Mills, 29 111. 431.
(r) Rev.Stat. (1874) 199; Rev. Stat. (1877) 185; see Clark vs. Marjield,
77 111. 258.
78 PKOCESS FOR APPEAEANCE.
Affidavits for Publication.
No. 5. Affidavit for puhlication — non-residence of defend-
ant — stating place of residence.
State of Illinois, )
County of \
In tlie court.
A. B. I To the Term, 18—.
vs. > 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
<is follows :)
Therefore, this defendant doth plead the same in bar to so
much of the said complainant's bill as hereinbefore is particu-
larly mentioned ; and prays the judgment of this honorable
court whether he should be compelled to make any further an-
swer to so much of the said bill as is hereinbefore pleaded to,
and prays to be hence dismissed with his costs and charges in
this behalf most wrongfully sustained.
iV^o. 30. Plea in ahatement to the jurisdiction of the court.
{Commence as in No. '28, ante, page 119, to the*) That these
defendants, and each and all of them, before and at the time
of filing of the complainant's bill of complaint, were, and still
are, residents of the county of , in said state ; that neither
of these defendants, at the time of filing said bill, was a resi-
dent of the county of , where said bill was filed ; that the
said suit in no manner afi^ects or relates to real estate in the
county where the same was exhibited as aforesaid ;
Therefore, etc. {Conclude as in No. 28.)
The above plea is framed with reference to the statute of
Illinois, which provides, that suits in chancery shall be com-
menced in the county where the defendants, or some one or more
of them resides ; or if the defendants are all non-residents,
then in any county ; or if the suit may afiect real estate, then
in the county where the same, or some part thereof, i^ situ-
ated. Bills for injunctions to stay proceedings at law, shall
be brought in the county in which the proceedings at law
are had. {g)
No. 30a. Plea of coverture of the complainant.
{Commence as in No. 28, ante, page 119, to the *) That the
complainant, before and at the time of filing her said bill, was,
and now is, unde-r coverture of one B. B., her husband, who is
Btill living, and in every respect capable, is necessary of insti-
tuting any suit at law, or in equity on her behalf.
Therefore, etc. {Conclude as in No. 28.)
(g) Rev. Stat. (1874) 198: Rev. Stat. (1877) 184.
THE DEFENSE TO A SUIT. 131
Plea to a Bill — Infancy — Not Administrator — Alien Enemy.
In Illinois, a married woman may sue in her own name,
without joining the husband, in matters pertaining to her sepa-
rate property. (A)
No. 31. Plea of infmicy without a prochein amy.
{Commence as in No. S8, ante, page 119, to the *.) That the
complainant, before and at the time of filing his said l)ill, in
which he appears as sole complainant, was, and now is, an
infant under the age of twenty-one years; that is to say, of
the age of years, or thereabouts.
Wherefore, etc. {Conclude as in No. '28.)
No 32. Plea that the defendant never was administrator, as
alleged in hill.
{Commence as in No. 28, ante, page 119, to the *.) That
he is not, and never has been, administrator of the goods and
chattels, rights and credits, which were of the said E. F.,
deceased, in the said bill named, as the complainant in his
said bill has untruly alleged.
Wherefore, etc. {Conclude as in No. 28.)
No. 33. Plea that ths complainant is an alien enemy.
{Commence as in No. 28, ante, p>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. (<?) It may, there-
fore, be stated as a general rule, that the defendants should
answer jointly, unless their interests are diiferent. {p)
ij) 2 Dan. Ch. Pr. 343.
{k) Turleton vs. Vietes, 1 Qilm. 470 ; Edwards vs. Helm, 4 Scam. 143 ;
McConnell vs. Hodson, 2 Gilm. 640 ; Mason vs. McOirr, 28 111. 322 ; McCagg
vs. Heacock, 42 111. 153 ; Banna vs. Ratekin, 43 111. 462 ; Tittsworth vs. Stout,
49 111. 78 ; Conwell vs. MeCowen, 53 111. 363 ; Eowett vs. Selhy, 54 111. 151.
{I) Coop. Eq. PI. 323 ; Story's Eq. PL § 869.
(m) Supervisors Fulton Co. vs. M. & W. R. R. Co. 21 111. 365 ; Peiters vs.
Tfiompson, Coop. 249 ; Griffiths vs. Wood, 11 Ves. 62.
(n) Van Sandon vs. Moore, 1 Russ. 441 ; 2 Dan. Cli. Pr. Ch. 15, § 2,
pp. 265, 266 ; Story's Eq. PI. § 869.
(o) 2 Dan. Cb. Pr. 265, 266.
(p) Story's Eq. PI. § 869 ; Mitf. Ch. PL 313, 314 ; Griffiths vs. Wood,
11 Ves. 62.
THE DEFENSE TO A SUIT. • 139
Answer to a Bill — Frame of Answer.
The answer of joint defendants need not be joint and
several, {g)
One defendant may answer by adopting tlie answer of his
co-defendant ; {r) and in a bill against husband and wife a
joint answer should be put in, but if the wife refuses to join,
the husband may answer separately, {s)
The answer is entitl>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. (<?) And if a material
amendment is permitted at the trial, and the defendant is
taken by surprise, a continuance would necessarily be granted,
if asked, by the defendant, {p)
Where a bill is defective from the omission to join necessaiy
parties as co-complainants, or for the joinder of improper
(0 MarhU vs. Bonhotel, 35 111. 240 ; Moshier vs. Knox College, 33 111. 163 ;
Wise vs. Twiss, 54 111. 302 ; Hutchinson vs. Eeed, 1 Hoff. Ch. 320 ; Malin vs.
Malin, 2 Jolins. Ch. 238 ; 3 Paige, Ch. R. 467 ; Bailey vs. Bennett, 3 Younge
& Coll. 459 ; Wither vs. Collier, 1 Clarke, 315.
{m) Marble vs. Bonlwtel, 35 111. 240 ; Renwich vs. Wilson, 6 Johns. Ch.
E. 81 ; Verplank vs. M. Ins. Co. 1 Edw. Ch. 46 ; North B. Bank vs. Rogers,
8 Paige, Ch. R. 648 ; Hinde, Pr. 35.
{n) De Wolf vs. Pratt, 43 111. 198 ; Walden vs. Bodley, 14 Pet. 156 ;
Ikans vs. Billings, 5 Ala. 550 ; Sumrall vs. Ryan, 1 J. J. Marsh. 97 ; Clifton
vs. Haig, 4 Dessaus. 330 ; 3 McCord, Ch. R. 170.
((?) Marble vs. Bonhotel, 35 111. 240 ; Beekman vs. Waters, 3 Jolins. Ch.
R. 410 ; Vertner vs. Griffitli, Walker, 414.
(p) Moshier vs. Knox College, 32 111. 155 ; Beaumont vs. Boultbee, 5 Ves.
485 ; Cook vs. Martyn, 2 Atk. 3 ; 12 Ves. 215.
AMENDMENTS TO BILLS. 167
When not Allowed — Petition for Leave to Amend.
parties, it may be amended upon payment of the defendant's
costs of the term, (q)
While amendments may be made at any stage of the case,
as we have seen, it is settled that it must be done at the
earliest opportunity, and that any unreasonable or improper
delay will deprive the party of the favorable exercise of the
discretion of the court, (r) Thus the court will not give a
complainant leave to amend his bill, if he has not taken any
step in the prosecution of the suit for an undue length of time,
as, for instance, for two years after answers put in, he is unable
to explain the delay, (s)
When amendments will not he allowed. — Where, on de-
murrer, a bill has been dismissed, on the merits of the case as
stated, for want of equity, the court will not grant leave to
amend, if) And a bill sworn to cannot be amended by
striking out an allegation, except upon affidavit showing that
it was inserted hj mistake, and how such mistake occurred, {u)
No. 68. Petition for leave to amend hill, after rejplication.
{Title of cause.)
To the Honorable , Judge of the Court of the
County of , in the State of ,
In Chancery sitting :
The petition of the above-named complainant, respectfully
represents unto your honor, that the defendant has put in his
(g) Noyes vs. Sawyer, 3 Vt. 160 ; Arendell vs. Blackwell, 1 Dev. Ch. 354 ;
Stephens vs. Terrell, 3 Monr. 131 ; Hoof man vs. Marshall, 1 J. J. Marsh. 64 ;
Foster vs. Runt, 3 Bibb, 32 ; Oayle vs. Singleton, 1 Stew. 56G ; Lindley vs.
Cravens, 2 Elackf. 42G ; Park vs. Ballentine, 6 Blackf. 223 ; Hutchinson vs.
Beed, 1 Hoff. Ch. R. 31G ; Gorden vs. Holland, 3 Ired. Ch. 362 ; 4 Hen. &
M. 475.
(r) 1 Barb. Ch. Pr. 209 ; 1 Paige, Ch. 209.
(s) Altree vs. Horden, 3 Lond. Jurist, 81 ; 1 Barb. Ch. Pr. 209 ; Vertner
vs. Griffith, Walker, 414.
{t) Lyon vs. Tallmadge, 1 Johns. Ch. R. 184 ; McCoinas vs. Minor,
Walker, 513.
(m) North River Bank vs. Rogers, 8 Paige, Ch. R. 648 ; Verplank vs.
Mer. Ins. Go. 1 Edw. Ch. R. 46 ; Brown vs. Ricketts, 2 Johns. Ch. R. 425 ;
^athan vs. Wiswall, 2 Ired. 294.
168 AMENDMENTS TO BILLS.
Order for Leave to Amend.
answer to the complainant's bill ; and the petitioner has filed
his replication thereto, bnt no witnesses have been examined
by either party. {Let the petition agree with the facts}) That
since the tiling of such replication, the petitioner has been
advised by his counsel, and believes, that it is essential to his
rights in tliis cause, that the bill should be amended, as shown
by the amended bill herewith presented, or, by adding thereto
the following statements, etc. {Here insert the matter pro-
posed to he int7'oduGed.) And the petitioner further represents,
that he had no knowledge of the facts stated in said proposed
amended bill {or, as above set forth), nor was he aware of the
necessity of inserting them in his bill, until after said replica-
tion was filed.
The petitioner, therefore, prays that he may be at liberty to
withdraw his said replication, and amend his bill by adding the
facts referred to. A. B.
{Add jurat.)
Where the petition is for leave to amend a sworn bill, or a bill
after replication is filed, the matter proposed as an amendment
should be annexed to the petition, and the truth thereof should
be sworn to in addition to the usual jurat upon the petition, (-y)
Where the petition is verified by the complainant's solicitor,
reasons should be shown why the same would not be sworn to
by the complainants, or some of them, {w)
No. 69. Order for leave to amend hill, after a general
demurrer.
{Caption and title of cause as in No. 79, post.)
The defendant, C. D., having put in a general demurrer to
the bill of complaint in this cause, for want of equity, on mo-
tion of Mr. , of counsel for the complainant, it is ordered
that the complainant have leave to amend his bill as he may
be advised, upon payment of the costs to be taxed. It is fur-
ther ordered that such amendment be filed with the clerk of
this court within days from this date,
(«) E'irjcrs vs. De Fi)rre ', 3 Edw. Ch. U. 171 ; li'^gers vs. Borjers, 1 Paige,
Cli. R. 424 ; Whitmarsh vs. ■' i,i/pbell, 2 Pa ige, Ch. R. G7 ; Walsh vs. SmytTie, 3
Bland, 9 ; Eoerett vs. Winn, 1 S. & M. Ch. R. 67 ; Verplunk vs. Mer. Ins.
Co. 1 Edw. Ch. 4G; TFo/! vs. Coke, 1 Murphy, 191.
{w) Verplank vs. Mer. Ins. Co. 1 Edw. Ch. R. 46.
AMENDMENTS TO BILLS. 169
Form of an Amendment to a Bill.
No. 70. AmendTnent to a hill.
{Title of cause.)
Amendment to the bill of complaint in this cause,
made pursuant to au order of the court, entered
on the day of , A. D. 18 — .
First. — In the third line of the second folio of the bill, after
the word " and," interline, " to wit, on or about the first day
of January, A. D. 1870."
Second. — After the word " time," in the tenth line of the
sixth folio, insert the words following. {Here insert the addi-
tional matter proposed.)
Third. — Strike out the words " did convey," in the fourth
line of the eleventh folio, and insert in lieu thereof, the follow-
ing : " was about to convey."
Fourth. — Add the name of " E. F. of, etc." as a defendant,
in the second line of the fourteenth folio, after the word " and."
Sol. for the Complainant
An amended bill should state no more of the original bill
than is necessary to introduce, and make intelligible, the new
matter; nor should such amendment be incorporated in the
old bill, but be by separate bill, {x)
Amendments to a bill should not be made by interlineations
and erasures in the original bill, but by filing the same on a
separate paper, {y) The practice of amending pleadings by
erasures and interlineations ought not to be tolerated by the
courts. A paper thus disfigured will be stricken from the
files, (s)
{x) Pierce vs. West, 3 Wash. C. C. R. 354 ; Bennington Iron Co. vs. Camp-
hell, 2 Paige, Ch. R. 159 ; Hunt vs. Holland, 3 Paige, Ch. R. 78 ; Stanberry
vs. Moore, 56 111. 473.
iy) Walsh vs. Smytlie, 3 Bland, 9 ; Benzein vs. Lovelass, Cam. & Nor. 521
Hinde, Pr. 22.
(z) Stansberry vs. Moore, 56 111. 473.
CHAPTER X.
KEPLICATION.
Nature of. — After the defendant has put in his answer, the
complainant is to determine whether the answer is sufficient,
and whether he will amend the hill. If he neither excepts to
the answer for insufficiency, nor amends his bill, the usual step
next taken by him is to file a replication. This replication,
according to the present practice, consists of a general averment
only, of the truth and sufficiency of the complainant's bill, and
as general a denial of the same properties in the answer of the
defendant ; but formerly, if the defendant's answer stated new
facts, in opposition to those alleged in the bill, the complainant
was accustomed to reply by a special statement of other facts,
not before charged. This produced a rejoinder by the defend-
ant, asserting the truth and sufficiency of his answer, and
alleging the contrary of the complainant's replication. A sur-
rejoinder frequently followed the rejoinder, and a rebutter the
surrejoinder, and so on as long as new facts were set forth by
one party and denied by the other. But the expense, incon-
venience and delay attending these multifarious pleadings on
each side, gave rise to an alteration of the practice, {a)
Special replications are now superseded by the general repli-
cation, which merely puts in issue the truth of the answer.
Amendments of the bill have been substituted in the place of
special replications, and a defendant may now do in an amend-
ment of a bill, what he formerly could by a special replication. (5)
Within what time to he filed. — By the 66th rule of the
Revised Rules of Practice for the Courts of Equity of the United
States, of 1870, the complainant is required to file the general
replication to the answer, on or before the next succeeding
ifl) Barton's Suit in Eq. 124 ; Story's Eq. PI. § 877, 878.
(6) Tarleton vs. Veites, 1 Gilm. 470; Schaffer vs. Weed,S Gil m. 511 ;
White vs. Morrison, 11 111. 861.
EEPLICATION. 171
When to be Filed — Issue Made.
rule-day thereafter. If the complainant omits to file such
replication within the prescribed period, the defendant will be
entitled to an order, as of course, for a dismissal of the suit ;
and the suit shall tliereu})on stand dismissed, unless the court,
or a judge thereof, shall, upon motion for cause shown, allow a
replication to be filed 7iunG])ro tuno^ the complainant submitting
to speed the cause, and to such other terms as may be directed.
The practice in the difierent states as to the time in which a
replication may be filed, varies. In Illinois, the statute pro-
vides, that the replication shall be filed in four days after the
complainant, or his attorney, shall be served with notice of
answer filed, (c) The court will sometimes permit a replica-
tion to be filed, in furtherance of justice, after a case is called
for hearing, when it has been omitted by accident or mistake, {d)
Where the defendant treats the cause jp at issue, joins in
taking depositions, and consents to se^he cause down for
hearing on the bill, answer, exhibits, and depositions, and the
cause is heard accordingly, he cannot, on error, insist that the
proofs shall not be considered, (e)
"Where a replication has been filed, it will be presumed to
have been filed in season, until the contrary is proved. (/*)
Issue made. — After replication is filed, the cause is at issue,
and is ready for hearing.
Where the parties proceed to a hearing on the bill and answer,
without a replication, the answer will be taken as true, so far
as it is responsive to the allegations of the bill ; and no evi-
dence can be received to contradict it, except matters of record
to which the answer refers, and is provable by such record, {g)
(c) Rev. Stat. (1874) 201; Rev. Stat. (1877) 187.
Id) Moseley, 926; Lord Red. 267; Armistead vs. Bozman, 1 Ired. Ch. R.
117; Sea Insurance Co. vs. Dai/, 9 Paige, Ch. R. 247.
(e) Marpel vs. Scott, 41 111. 50; Corbus vs. Teed, 69 111. 205.
(/) Li/OJi vs. TaUniadge, 14 Johns. R. 501.
((/) Rev. Stat. (1874) 201; Rev. Stat. (1877) 187; Derby vs. Gage, 38 111.
27; Chambers vs. Rowe, 30 111. 171; Farrell vs. McKee, Id. 226; Beems vs.
Denham, 2 Scam. 58; De Wolf vs. Long, 2 Gilm. 679; Pat/ne vs. Frazier, 4
Scam. 55; Trout vs. Emmons, 29 111. 433; Nelson vs. Pinegar, 30 111. 473;
Mason vs. McGirr, 28 111. 322; Dooleij vs. Stq^p, 26. 111. 86; Thomas vs.
Coultas, 76 111. 493.
172 EEPLICATION.
Effect of — Withdrawing — Form of General Replication.
But if the case is heard upon the pleadings and evidence, the
replication will be deemed as waived. (A)
Effect of filing. — If the complainant files a replication to the
answer, after he is apprised of the necessity of an amendment
of his bill, he precludes himself from making such amend-
ment. (^)
Withdrawing. — If the necessity for an amendment arises
after the filing of the replication, the complainant should make
a special application to the court for leave to withdraw the
replication, for the purpose of amending, [j) Upon which
application he must satisfy the court, by aflidavit, that the
matter of the proposed amendment is material, and could not,
with reasonable diligence, have been sooner introduced into
the bill. (Jc) But this practice does not apply to amendments
by merely adding parties, after replication. (Z)
No. 71. General replication.
In the Court.
A. B. ) Term, 18 — .
vs. y In Chancery.
CD.)
The replication of A. B., complainant, to the answer
of C. D., defendant.
This repliant saving and reserving unto himself all and aU
manner of advantage of exception to the manifold insuSicien-
cies of the said answer, for replication thereunto, says : that he
will aver and prove his said bill to be true, certain and suffi-
cient in the law to be answered unto ; and that the said answer
of the ^defendant is uncertain, untrue and insufficient to be
replied unto by this repliant ; without this, that any other
matter or thing whatsoever in the said answer contained
(h) Jameson vs. Conway, 5 Gilm. 227, 230 ; Webb vs. The Alton etc. 5
Gilm. 223 ; Stark vs. Hillihut, 19 111. 344 ; Marpel vs. Scott, 41 111. 50 ; De-
ma/ree vs. Driskill, 3 Blackf. 115 ; Brooks vs. Mead, Walk. Ch. 389.
(t) Yermilyea vs. Odell, 4 Paige, Ch. R. 121.
Ij) 1 Dan. Ch. Pr. 546 ; 2 lb. 389 ; Coop. Eq. PI. 333 ; 1 Barb, Ch. Pr. 253
{k) Id., Id.
(Z) Brattle vs. Waterman, 4 Sim. 125.
KEPLICATION. 173
Form of General Eeplication.
material, or effectual in law to be replied unto, confessed and
avoided, traversed or denied, is true ; all which matters and
things this repliant is and will be ready to aver and prove, as
this honorable court shall direct, and humbly prays as in and
by his said bill he has already prayed.
Sol. for Corwplainant.
\
^
CHAPTER XI
TESTIMONY.
Section 1. Production of Books and Writinqs.
2. Depositions.
3. Evidence taken by Master in Chancery, ob Spbcial
Commission.
4. Oral Testimony.
As soon as the cause is at issue, the parties may proceed to
take testimony for the pui'pose of establishing their respective
cases. If no replication is filed, as we have seen in the last
chapter, the answer will be taken as true so far as it is respon-
sive to the bill, and the defendant will need no proof; and the
complainant, not having replied, cannot offer any.
The space allotted to this work precludes our going into an
examination of the subject of evidence, any further than to
point out the methods of taking the testimony of witnesses, to
be read on the hearing. And upon this we will necessarily be
• confined to the modes as they exist in Illinois.
Parties may take evidence before the Master in Chancery, or
by depositions, or introduce oral testimony on the hearing, {a)
SECTION I.
PKODTJCTION OF BOOKS AND WKCTINGS.
" The several courts shall have power, in any action pending
before them, upon motion, and good and sufficient cause shown,
and reasonable notice thereof given, to require the parties, or
either of them, to produce books or writings in their possession
or power, which contain evidence pertinent to the issue." (5)
If a party refuses to produce books and papers, his opponent
(a) Grob vs. Cnshman, 45 111. 119.
(b) Rev. Stat. (1874) 202; Rev. Stat. (1877) 188; see Morgan vs. Codies,
81 111. 72.
TESTIMONY. 175
Production of Books, etc. — Petition for, etc.
may give secondary or parol proof of their contents, if they
are shown to be in the possession of the opposite party, (c)
The notice should be given seasonably, in order to give the
party reasonable time to produce the original, (d)
A certified copy of a deed from the record can be used, on
the proper preliminary proof being made, without notice to the
opposite party to produce the original, (e)
For a form of notice to produce books or documents, see
Puterbaugh's Com. Law PI. and Pr. pp. 771-772.
Documents, etc., in ham,ds of third persons. — If documents,
the production of which is desired, are in the possession of one
who is not a party to the suit, he may be,compelled by a suh-
poena duces tecuin to produce them; and if the subpoena is
not obeyed, he will be punished for contempt, on proof by affi-
davit that the documents are in his custody, {f)
No. 72. Petition for jproduciion and inspection of papers, etc.
In the Court.
Term, 18—.
In Chancery.
To the Honorable , Judge of the Court of the County
of , in the State of .
In Chancery sitting :
The petition of the above-named complainant respectfully
represents : That the answer of the defendant, C. D., has been
put in in this cause, and a replication thereto has been filed,
but no testimony has been taken in the cause, nor has the
same been noticed for hearing; That by the answer of the
defendant, he admits that he is in possession, or has under his
control, divers books, deeds, letters, accounts, and other papers
relating to the matters at issue in this cause. And your
petitioner further represents that he has a direct and immedi-
ate interest in the said books, deeds and other papers, and that
(c) Rector vs. Rector, 3 Gilm. 105 ; Prettyman vs. Wolston, 34 111. 190.
{d) Codyya.B:ough,20m.43; Warner vs. GampbeU,26 Ul. 282; BushneS.
vs. Bis7iop Hill Colony, 28 111. 204.
(e) Bowman vs. Wettig, 39 111. 416 ; Deininger vs. McConnell, 41 111. 228.
(/) a Greenl. Ev. § 305 ; also see 1 Id. § 558, 559.
176 TESTIMONY.
Order for Production of Books, etc. — Depositions.
an inspection thereof is. necessary to enable him to examine
witnesses in this cause, and to prepare such cause for hearing.
Your petitioner, therefore, prays that the defendant may be
ordered to produce to, and leave with, the clerk of this court
the books, deeds, and other papers above mentioned ; and that
your petitioner, his solicitor, agent or counsel, may be at
liberty to inspect and peruse the same, and to take copies
thereof, or extracts therefrom, as he may be advised.
{Add affidavit.) A. B,
1^0. 73. Order for production of hooks and papers.
{Caption, and title of cause as in iVb. 79, post.)
On reading and filing the petition of the complainant in
this cause duly vewfied, and, on motion of Mr. , solicitor
for the complainant, and Mr. , solicitor for the defendant,
being heard in opposition thereto, it is ordered that the de-
fendant C. D. do within days from the date of this
order, produce to, and leave with the clerk of this court the
books, deeds, letters, accounts, and other papers relating to
the matters at issue in this cause, which are admitted by the
defendant's answer to be in his possession or under his control ;
and that the complainant, his solicitor, agent or counsel, may
be at liberty to inspect and peruse the same, and to take
copies thereof, or extracts therefrom, as he may be advised,
at his own expense ; but that the defendant be at liberty to
seal up such parts of the said books, deeds, etc., as he shall
make oath, do not, in any manner, relate to the matters in
controversy in this suit.
SECTION II.
DEPOSITIONS.
For forms of notices and interrogatories to be used in taking
depositions, see Puterbaugh's Com. Law PI. and Pr. pp. 775-
785.
Depositions of resident witnesses. — The statute of Illinois
provides, that " When the testimony of any witness, residing
or being within this state, shall be necessary in any suit in
chancery in this state, the party wishing to use the same may
cause the deposition of such witness to be taken before any
TESTIMONY., 177
Depositions — Non-resident Witnesses, etc.
judge, justice of the peace, clerk of a court, master in
chancery, or notary public, without a commission or filing
interrogatories for such purpose, or giving to the adverse
party or his attorney ten days' notice of the time and place
of taking the same, and one day in addition thereto (Sundays
inclusive) for every fifty miles travel from the place of holding
the court to the place where such deposition is to be taken.
If the party entitled to notice and his attorney resides in the
county where the deposition is to be taken, five days' notice
shall be sufficient." {g)
Where a party files a bill he may, before issue joined, take
depositions to substantiate its averments ; and he may proceed
to take his depositions de hene esse, without an order of court
for that purpose. Should the necessity for such depositions be
superseded by the answer, the party who takes them must pay
the cost. (A)
The notice to take the deposition before the clerk of a par-
ticular county court, need not give the name of that officer, (i)
A party cannot compel his adversary to appear at two differ-
ent places on the same day to take depositions; {j) but
objections to the notice, in all cases, must be made before the
hearing, [h) So must an objection to the competency of a
witness be made before . the hearing, (Z) and decided before
hearing, or it is waived, (m)
Depositions of non-resident witnesses, etc. — " When the testi-
mony of any witness residing within this state, more than one
hundred miles from the place of holding the court, or not resid-
ing in this state, or who is engaged in the military or naval
service of this state, or of the United States, and is out of this
{g) Rev. Stat. (1874) 492; Rev. Stat. (1877) 478.
Qi) Doyle vs. Wiley, 15 111. 576.
(i) Hays vs. Borders, 1 Gilm. 64.
(J) HanMnson vs. Lombard, 25 111. 572.
{k) Winsloio vs. Neiclan, 45 111. 148, 149 ; Corgan vs. Anderson, 80 111.
98 ; Lockwood vs. Mills, 39 111. 602.
(0 Fasli vs. Blake, 38 111. 363; WeVb vs. A. M. & F. Go. 5 Gilm. ?,25;
MosTiier vs. Enox College, 33 111. 155.
(to) Phy vs. Clark, 35 111. 378.
13
178 TE8TIM0XY.
Depositions — Non-resident Witnesses, etc.
state, shall be necessary in any civil cause pending in any court
of law or equity in this state, it shall be lawful for the party
wishing to use the same, on giving to the adverse party, or his
attorney, ten days' previous notice, together with a copy of the
interrogatories intended to be put to such witness, to sue out
from the proper clerk's office a dedimus potestatem or com-
mission, under the seal of the court, directed to any compe-
tent and disinterested person, as commissioner, or to any judge,
master in chancery, notary public or justice of the peace of the
county or city in which such witness may reside ; or in case it
is to take the testimony of a person engaged in such military
service, ' to any commissioned officer in the military or naval
service of this state or the United States,' authorizing and
requiring him to cause such witness to come before him, at
such time and place as he may designate and appoint, and
faithfully to take his deposition, upon all such interrogatories
as may be inclosed with or attached to said commission, both
on the part of the plaintiff and defendant, and none other ; and
to certify the same, when thus taken, together with the said
commission and interrogatories, into the court in which such
cause shall be pending, with the least possible delay." {n)
The notice must be substantially as provided by the stat-
ute ; {o) but it need not give the name of the commissioner, as
he is appointed by the clerk of the court, {p)
Notice when opposite party is a non-resident, or cannot he
fov/nd. — The statute provides, that, " When the deposition of
any witness is desired to be taken, under the provisions of this
act, and the adverse party is not a resident of the county in
which the suit is pending, or is in default, and no attorney has
appeared for him in such case, upon filing an affidavit of such
fact, and stating the place of residence of such adverse party,
if known, or that, upon diligent inquiry, his place of residence
(n) Rev. Stat. (1874) 492; Rev. Stat. (1877) 479. For forms to be used
under this section, see Puterbaugli's Com. Law PI. and Pr. pp. 779-785, and
remarks thereon.
(o) Corgan vs. Anderson, 30 111. 95.
(p) Cole vs. Choteati, 18 111. 442.
TESTIMONY. 179
Depositions of Non-resident Witnesses, etc.
cannot be ascertained, the notice required by this act may
be given by sending a copy thereof by mail, postage paid,
addressed to such party at his place of residence, if known, or,
if not known, by posting a copy of such notice at the door of
the court house where the suit is pending, or publishing the
same in the nearest newspaper ; and when interrogatories are
required, filing a copy thereof with the clerk of the court, ten
days before the time of suing out such commission. (^)
Of non-resident witnesses, upon oral interrogatories, etc. —
The statute provides, in this regard, as follows : "When a party
shall desire to take the evidence of a non-resident witness, to be
used in any cause pending in this state, the party desiring the
same, or where notice shall have been given, that a commission
to take the testimony of a non-resident witness, will be applied
for, the opposite party, upon giving the other three days' notipe,
in writing, of his election to do so, may have a commission,
directed in the same manner, as provided in section twenty-six
of this act, to take such evidence, upon interrogatories to be
propounded to the witness orally ; upon the taking of which,
each party may appear before the commissioner, in person, or
by attorney, and interrogate the witness. The party desiring
such testimony, shall give to the other the following notice of
the time and place of taking the same, to wit : ten days, and one
day in addition thereto (Sundays included), for every one hun-
dred miles' travel from the place of holding the court to the
place where such deposition is to be taken.
" When a party to a suit shall give the opposite party notice
to take a deposition upon oral interrogatories, and shall fail to
take the same accordingly, unless such failure be on account
of the non-attendance of the witness, not occasioned by the
fault of the party giving the notice, or some other unavoid-
able cause, the party notified, if he shall attend himself, or by
attorney, agreeable to the notice, shall be entitled to two dollars
per day for each day he may attend under such notice, and to
iq) Rev. Stat. (1874) 492; Rev. Stat. (1877) 479; see Pile vs. McBratney,
15 111. 319.
180 TESTIMONY.
Depositions — Manner of Taking, etc.
six cents per mile for every mile that he shall necessarily travel
in going to, or returning from, the place designated to take the
deposition, to be allowed by the court where the suit is pend-
ing, and for which execution may issue." {r)
Manner of taking^ certifying and returning depositions. —
The statute requires that " previous to the examination of any
witness whose deposition is about to be taken as aforesaid, he
or she shall be sworn (or affirmed) by the person or persons
authorized to take the same, to testify the truth in relation to
the matter in controversy, so far as he or she may be interro-
gated ; whereupon the said commissioner, judge, master in
chancery, notary public, justice of the peace, clerk, or other
person authorized to take depositions (as the case may be), shall
proceed to examine such witness, upon all such interrogatories
as may be inclosed with, or attached to any such commission
as aforesaid, and which are directed to be put to such witness,
or, where the testimony is taken upon oral interrogatories, npon
all such interrogatories as may be directed to be put by either
party litigant; and shall cause such interrogatories, together
with the answers of the witness thereto to be reduced to
writing in the order in which they shall be proposed and
answered, and signed by such witness ; after which it shall be
the duty of the person taking such deposition, to annex at the
foot thereof a certificate, subscribed by himself, stating that it
was sworn to and signed by the deponent, and the time and
place when and where the same was taken. And every such
depcfsition, when thus taken and subscribed, and all exliibits
produced to the said commissioner, judge, master in chancery,
notary public, justice of the peace, or clerk, or other person
authorized to take depositions, as aforesaid, or which shall be
proved or referred to by any witness, together with the com-
mission and interrogatories, if any, shall be inclosed, sealed
up, and directed to the clerk of the court in which the action
shall be pending, with the names of the parties litigant indorsed
therein : Provided, That when any deposition shall be taken
as aforesaid, by any judge, master in chancery, notary public
(r) Rev. Stafc. (1874) 492; Rev. Stat. (1877) 479.
TESTIMONY. 181
Depositions — Manner of Taking, etc.
or justice of the peace, out of this state, or other officer, such
return shall be accompanied by a certificate of his official char-
acter, under the great seal of the state, or under the seal of the
proper court of record of the county or city wherein such
deposition shall be taken, {s)
It is no objection that the oath administered to a witness
was more comprehensive than the statute requires, (t) And the
court will presume it was administered at the proper time ; (u)
and that the deposition was taken at the proper place, {v)
A leading or improper interrogatory must be objected to at
the first opportunity, or it is waived ; (w) but leading questions
are not always objectionable, {x)
Written interrogatories need not necessarily be copied into
the deposition, (y)
A party cannot object that the interrogatories of the adverse
party are not fnlly answered, (s)
A mistake in the name of a witness will be fatal, although
cross-interrogatories are filed ; (a) but proper initials of Chris-
tian names will be presumed to be correct. (5)
The certificate of the officer taking the deposition need not
state that the deposition was signed by the witness, if his name
appears at the end thereof, (c) It is sufficient if the certificate
states that the deposition was taken at the time mentioned in
the caption, {d) And it has been held that the time and place
were not essential to be stated in the certificate, (e)
(s) R(>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<i performance^ stating
that defendant has brought ejectments praying for injunc-
tion, etc.
To the Honorable , Judge of the Court of the County
of 5 in the State of ,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto your
honor, that on, etc., 3^our orator exhibited his bill of complaint
in this honorable court against C. D,, thereby praying that the
said C. D. might be decreed specifically to perform his agreement
with your orator, touching the sale of the real estate in the said
bill mentioned, and to execute to your orator a deed therefor,
your orator being ready and willing to do everything on his
part required to be performed in pursuance of said agreement.
Your orator further represents that the said C. D. appeared
and put in his answer to the said bill, and your orator tiled a
replication thereto ; as by the files of the said cause will more
fully appear; which said cause is still pending and undeter-
mined in this court.
Your orator, by way of supplement, further represents, that
since the filing of said bill, the said C. D. has commenced an
action of ejectment upon the common law side of this court, for
the purpose of recovering the possession of the said premises ;
which action of ejectment is now pending and undetermined ;
that your orator has requested the said C. D. to desist from
proceeding with the said action of ejectment, but the said C. D.
refuses so to do, and still continues the prosecution thereof.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. D., who is made a party defendant to this supple-
mental bill, may be required to make full and direct answer to
the same, hut not under oatli^ the answer under oath heing
herehy waived / that he may be restrained by the injunction of
this court, from proceeding in said acrtion of ejectment, and also
from commencing any other action or proceeding at law foi
the purpose of turning your orator out of the possession of the
said premises ; and that this, your orator's bill of complaint
may be deemed and taken as and for a bill of supplement to
his said original bill ; and that 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. {Prayer for injunction, see ante, page
73, and add affidoAjit.)
SUPPLEMENTAL BILL. 209
Form of a Bill.
Wo. 85. Supplemental hill against the assignee of a hankrujpt
defendoMt.
To the Honorable , Judge of the Court, of the County
of , in the State of ,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto your
honor, that on, etc., your orator tiled his bill of complaint in
this honorable court against C. D., of, etc., praying, etc., {Here
insert the substance of the prayer ; that the said C. D. having
been served with process, appeared and put in his answer to
the said bill ; and your orator replied to the said answer ; but
before any further proceedings were had in the said cause, and
on, or about, etc., the said C. D. was, by the district court in
and for the district of , adjudged a bankrupt ; and
one E. F., the defendant hereinafter named, having since been
duly chosen assignee of the estate and eifects of the said bank-
rupt ; and the estate and effects late of the said bankrupt having
been conveyed to the said assignee ; and, therefore, your orator
is advised that he is entitled to the same relief against the said
E. F., as he would have been entitled to against the said C. D.
if he had not become bankrupt.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said E. F., who is made party defendant to this bill, may
be required to make full and direct answer to the same, hut
not on oath, the ansiver under oath being hereby waived / and
that your orator may have the full benefits of the said suit and
proceedings therein against the said E. F. ; and may have the
Bame relief against him as your orator might or could have had
against the said C. D., in case he had not become bankrupt ; and
that your orator may have such other and further relief in the
premises as equity may require, and to your honor shall seem
meet.
May it please your honor to grant the writ of summons in
chancery, directed to the sheriff of the county of , com-
manding him that he summons the defendant E. F., etc., to
appear before the said court, on the first day of the next
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.
14
210 SUPPLEMENTAL BILL.
Petition for Leave to File — Form of Petition.
SECTION V.
PETITION FOB LEAVE TO FILE.
A motion, based upon a petition, for leave to file a supple-
mental bill, is ordinarily addressed to the discretion of the
court. Leave is generally granted of course, if probable cause
for filing it is shown. The court will examine the question
only so far as to ascertain that it is not intended for vexation
or delay ; (c) and in ordinary cases, the defendant is not enti-
tled to notice of the application for such order, {d)
The 57th rule for practice in the courts of equity of the
United States, requires notice to be given to the defendant, of
an intended application for leave to file a supplemental bill.
J^o. 86. Petition for leave to file a sujpjylemental hill.
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 :
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; (<?) and a decree is considered
as enrolled after it is signed by the chancellor and filed by the
clerk of the conrt. {/)
A bill of review cannot be supported for matter existing at
the time of the decree and discovered since, without aifidavit
of such matter, and of its existence at the time of the decree ; {g)
nor will it lie upon a decree rendered by consent of the par-
ties, unless fraud or mistake is shown ; {Jt) nor where the com-
plainant himself has dismissed the bill ; {i) nor where the
original decree has been affirmed on a writ of error or ap-
peal, [j) And after the allowance of an appeal, if the appel-
lant neglects to prosecute it, he will be precluded from tiling
a bill of review, ijc)
Matters before known as susceptible of proof cannot be
made the ground of a bill of this nature, il) If a complainant
goes to trial unprepared, it is no ground for a bill of review ;
he should ask for a continuance ; (m) and a bill of review
cannot be permitted after a demurrer has been allowed to a
former bill of review, nor after an application for leave to file
a bill of review has been refused ; [n) nor can a bill praying
for a review of a decree clearly erroneous, from the fact that
some of the parties did not answer, and were not served with
{d) Whiting vs. Bank of U. S. 13 Pet. 6.
(e) Wiser vs. Blackley, 2 Joins. Ch. R. 488 ; HoUingsworth vs. McDonald,
2 Har. & J. 230 ; Ellzey vs. Lane, 2 Hen. & M. 589 ; Her vs. Routh, 8 How.
Miss. 276 ; see also Mead vs. Arms, 3 Vt. 148 ; Furman vs. Coe, C. C. B.
96 ; Greenwich Bank vs. Loomis, 2 Sandf. Ch. E. 70 ; Larson vs. Moore, 1
Texas, 22.
(/) HoUingsworth vs. McDonald, 2 Har. & J. 230.
(^r) HoUingsworth vs. McDonald, 2 Har. & J. 230.
(h) Flagler vs. Ct^ow, 40 111. 414.
{i) Jones vs. ZoUicoffer, 1 Car. L. R. 376.
ij) Strader vs. Bgrd, 7 Ham. 184, 1st part ; Brewer vs. Bowman, 3 J. J.
Marsh. 492 ; 1 Hen. & M. 13.
{k) Gilchrist vs. Buie, 1 Dev. & Bat. Ch. R. 346.
(I) Southard vs. RusseU, 16 How. U.S. 571 ; McDaniel vs. James, 23 01. 407.
(to) Calmes vs. Ament, 1 A. K. Marsh. 459.
(n) Respass, vs. McClanalian, Hardin, 342.
BILLS OF REVIEW. 251
Nature of, and When Proper — For Error of Law.
process, be sustained where the original bill did not contain
matter which would entitle the complainant to relief, (o)
It will not be granted foi* a mistake in the calculation of
costs ; nor for erroneous deductions from the evidence in the
cause by the chancellor ; nor for the discovery of new evidence
which would not overturn the evidence before in the case ; {jp)
nor where the party was prevented from proving important
facts by the wrong advice of his counsel, or that other counsel
was prevented by illness from attending the trial ; {q) or that
the attorney employed by the complainant neglected the case.
The negligence of the counsel being the same as his o\\n neg-
ligence, {r) But if an attorney enters the appearance of a party
without authority, relief may be granted, {s)
For error of law. — A bill of review, for error apparent
upon the face of the record, must be for an error in law arising
out of the facts admitted by the pleadings, or recited in the
decree itself, as settled, declared or allowed by the court. It
cannot be sustained upon the ground that the court has decided
wrong upon a question of fact ; it) and it ought not to be
granted to an interlocutory decree ; but if there be error there-
in, it may be corrected on motion or petition. {\C) Errors of
law, against which relief can be had by bill of review, must be
such as arise rather from ob\ious mistake or inadvertence,
appearing on the face of the decree, or at least of record, than
from alleged error in the deliberate judgment of the chancel-
lor, on a debatable question of law or equitable right, {v) It
(o) Todd vs. LaugJilin, 3 A. K. Marsh. 535 ; Todd vs. Lackey, 1 Litt. 270.
{p) Tounge vs. Forgey, 4 Heyw. 189.
(q) Franklin vs. Wilkinson, 3 Munf. 112 ; MilUpaugh vs. McBride, 7 Paige,
Ch. R. 509 ; Tripp vs. Vincent, 8 Paige, Ch. R. 179.
(r) Tales vs. Monroe, 13 111. 212 ; Smith vs. Powell, 50 111. 21.
(«) Griggs vs. Gear, 3 Gilm. 2 ; 2 Yeates, 546.
{t) Webb vs. Pell, 3 Paige, Ch. R. 368 ; Manigault vs. Deas, 1 Bailey, Ch.
R. 283 ; Turner vs. Berry, 3 Gilm. 541 ; Evans vs. Clement, 14 111. 206 ; Gar-
rett vs. Moss, 22 111. 363; Fellers vs. Rainey, 82 111. 114.
(u) Banks vs. Anderson, 2 Hen. & M. 20; Jenkins vs. Eldridge, 3 Story,
R. 299; see Hoig vs. Thrap, 84 111. 302.
(r) Caller vs. Shields, 2 Stew. & Port. 417; Younge vs. Forgey, 4 Heyw
189.
252 BILLS OF REVIEW.
When Proper — For Error of Law.
cannot be brought ujjon the ground that the former decree was
not supported by the evidence, {w) And no evidence is admis-
sible to facts established by the original decree, (x)
The error must appear on the face of the pleadings and
decree ; for the evidence in the case at large cannot be looked
into to ascertain whether the court misunderstood the facts, (y)
That is the proper province of the court upon appeal. But
taking the facts to be as they are stated to be on the face of the
decree,, it must be shown that the court has erred in point of
law. (s) If therefore, the decree does not contain a statement
of the material facts on which it is founded, it is plain that
there can be no relief by a bill of review, but only by an
appeal or writ of error to some superior tribunal, (a) It is on
this account that the English decrees are usually drawn up
with a special statement of, or reference to, the material
grounds of fact, which support the decree.
In the courts of ^the United States the decrees are usually
general, without any such statement of facts. In England,
the decree embodies the substance of the bill, pleadings and
answers. In the courts of the United States the decree usually
contains a mere reference to the antecedent proceedings, with-
out embodying them. But for the purpose of examining all
errors of law, the bill, answers, and other proceedings, are, in
our practice, as much a part of the record before the court, as
the decree itself; for it is only by a comparison with the
former, that the correctness of the latter can be sustained, (h)
(w) Dougherty vs. Morgan, 6 Monr. 153 ; Whiting vs. Bank of the U. 8.
13 Pet. 6.
(«) Johnson vs. Donnel, 15 111. 100 ; Turner vs. Berry, 3 Gilm. 541 ;
Evans vs. Clements, 14 111. 206 ; Garrett vs. Moss, 22 111. 363 ; Caller vs.
Shields, 2 Stew. & Port. 417: Jurhon vs. Stephens. 75 III. 255.
iy) Story's Eq. PI. § 403 ; Dexter vs. Arnold, 5 Mason, 303, 310 ; Green-
tcich Bank vs. Loomis, 2 Sandford, 70.
(s) 2 Barb. Ch. Pr. 01 ; Story's Eq. PI. 403-404 .
(a) Dexter vs. Arnold, 5 Mason, 311; Mellish vs. Williams, 1 Vern. 166;
O'Brien vs. Connor, 2 Ball & Beat. 146, 154.
(b) Story's Eq. PI. § 407 ; Dexter vs. Arnold, 5 Mason, 311, 312 ; Wyatt,
Pr. Keg. 98 ; Combs vs. Proud, 1 Cli. Cas. 54 ; Webb vs. Pell, 3 Paige Ch.
R. 368.
BILLS OF KEVIEW. 263
When Proper — For Newly -discovered Evidence.
And it is said, that in the American courts, where the
English practice of reciting the proceedings in the decree
does not prevail, the proceedings themselves are the subject
matter of revision in a bill of review, to the same extent, and
in the same manner, as if they were stated on the face of the
decree, in conformity with the English practice, (c)
Upon a bill of review, a court will revise, correct, or reverse
its own decree, for an erroneous application of the law to the
facts found, whenever a court of appeals would do so for the
same cause, (d)
Newly discovered evidence. — A bill of review lies for newly
discovered evidence material to the issue, if such evidence was
not known until after the trial of the cause, {e) The matter
of newly discovered evidence must be relevant, and such as
materially affects the merits of the case ; mere accumulative
evidence is not sufficient, (/") and the new-matter must be to
prove what was before in issue, and not to prove a title not
before in issue ; not- to make a new case, but to establish the
old one. (^) And unless discovered after the decree is pro-
nounced, it is not ground for a bill of review. (A)
A bill of review will not be allowed for alleged newly dis-
covered evidence, where it appears that the evidence was, or
might have been, by reasonable diligence, known at the hear-
(c) Tomlinson vs. McKaig, 5 Gill, 258.
(d) Evans vs. Clements, 14 111. 206 ; Moore vs. Bracken, 27 111. 23 ; Briggs
ve. Oea/r, 3 Gilm. 2 ; Raymond vs. Fisher, 45 Miss. 145.
{e) Dexter vs. Arnold, 5 Mason, 303 ; Yates vs. Monroe, 13 111. 212 ; see
Love vs. Blewett, 1 Dev. & Bat. Ch. 108 ; Her vs. Boutli, 3 How. Miss. 276 ;
Randolph vs. Randolph, 1 Hen. & M. 181 ; Respass vs. McCanahan, Hardin,
342; Bowles vs. Soutli, Hardin, 451; Huffacre vs. Oreen, 4 Heyw. 51.
(/) Livingston vs. Hulls., 8 Johns. Cli. R. 124 ; Ord vs. Noel, 6 Mad. 127 1
Blake vs. Foster, 2 Molloy, 257; Wiser y-a. Blackley ,'2 Johns. Ch. 488 ; Story's
Eq. PI. § 413; Hall vs. Fulletton, 69 111. 448.
ig) Dexter vs. Arnold, 5 Mason, 303 ; Young vs. Keighley, 16 Ves. 348,
354 ; Huffacre vs. Oreen, 4 Heyw. 51 ; Love ' vs. Blewett, 1 Dev. & Bat.
Ch. 108.
iji) Winston vs. Johnson, 2 Munf . 305 ; McCrackin vs. Finley, 1 Bibb, 455 ;.
but see Caller va. Shields, 2 Stew. & Port. 417.
254 BILLS OF EEVIEW.
Parties to.
ing of the original bill ; (^) nor because certain documentary
evidence, intended to be used in the original cause, was lost or
mislaid by the complainant's counsel, and could not be found
until after the hearing, {j)
The allowing of a bill of review for newly discovered evi-
dence rests in the sound discretion of the court, (h)
A part}^ who has been guilty of laches, will not be allowed
to file a bill of this nature. {I)
SECTION II.
PABTIES TO.
No persons, except the parties and their privies in represen-
tation, such as heirs, executors and administrators, can have a
bill of review, strictly so called, (m) All parties to the original
bill should be made parties, {ri)
A bill of review may be brought by the party who obtained
the original decree in his own favor, if such decree was injurious
to him. [o) But a party cannot file a bill if he has no interest in
{i) Hodges vs. MulliMn, 1 Bland, 503 ; Bradshaw vs. Oarrett, 1 Porter, 47 ;
St. Glair vs. Piatt, Wriglit, 532 ; Barnes vs. Dickinson, 1 Dev. Ch. E. 826 ;
Oentry vs. Thornherry, 3 Dana, 500 ; see also Winston vs. Johnson, 2 Munf.
305 ; McCrackin vs. Pinley, 1 Bibb, 455 ; Quick vs. Lilly, 2 Green, Ch. E. 255 ;
Dexter vs. Arnold, 5 Mason, 312, 320, 321 ; Massie vs. OraJiam, 3 McLean, 41 ;
Jenkins vs. Prewitt, 7 Blackf . 329 ; Stevens vs. Hey, 15 Ohio, 313 ; Hughes vs.
Jones, 2 Md. Ch. Decis. 293 ; BoUnson vs. Sampson, 26 Maine, 11 ; Bingliam vs.
Dawson, Jacob, 243 ; Livingston vs. Hubhs, 3 Johns. Ch. 124 ; Pendleton vs.
Fay, 3 Paige, Ch. E. 204 ; Ord vs. Neol, 6 Mad. 127.
ij) Jones vs. Pilcher, 6 Munf. 425 ; Speight vs. Adams, 1 Freeman, Ch. 318.
(k) Griggs vs. Gear, 3 Gilm. 2 ; Getzler vs. Saroni, 18 111. 511 ; 2 Dan.
Ch. Pr. 1633 ; Story's Eq. PI. § 417 ; Bennett vs. Lee, 2 Atk. 528; Wilson vs.
Webb, 2 Cox, 3 ; Toung vs. Keighly, 16 Ves. 348 ; Perry vs. Phelips, 17 Ves.
176-178 ; Thomas vs. Harvie's Heirs, 10 Wheat. 146 ; Wood vs. Mann, 2
Sumner, 316; Massie vs. Grant, 3 McLean, 41; P. <& M. Bank vs. Dundas,
10 Ala. 661 ; Taylor vs. Taylor, 1 ivfac. & Gord. 405.
{I) Rubber Co. vs. Goodyear, 9 Wallace, 805.
{m) Story's Eq. PI. §409; Gilb. For. Eom. 184; Slingsiyva. Hale, 1 Ch.
Cas. 122; see Turner vs. Berry, 3 Gilm. 541.
(n) Cooj). Eq. PI. 95 ; 2 Barb. Ch. Pr. 94 ; Dexter vs. Arnold, 5 Mason,
308 ; Bank of U. S. vs. White, 8 Pet. 252.
"(o) Dexter vs. Arnold, 5 Mason, 308.
BILLS OF REVIEW. 255
Parties to — Leave to File.
the question intended to be presented thereby, and when he
cannot be benefited by the reversal or modification of the
former decree, {p) And even persons having an interest in the
cause,' if not aggrieved by the particular errors assigned in the
decree, cannot maintain a bill of review, however injurious the
decree may afiect the rights of third persons, {q)
Other persons in interest^ and in privity of title or estate,
who are aggrieved by the decree, such as devisees, and remain-
der men, are entitled to maintain an original bill in the nature
of a bill of review, so far as their own interests are concerned, (r)
A defendant may file a bill of review, {s)
SECTION III.
LEAVE TO FILE.
According to the English practice, leave of the court must
be obtained before a bill of review can be filed, upon the dis-
covery of new matter, and which leave the court will not grant
without an afliidavit that the new matter could not be produced
or used by the party claiming the benefit of it, at the time
when the decree w^as made. And such afiidavit must state the
nature of the new matter ; in order that the court may exer-
cise its judgment upon its relevancy and materiality, (t)
Upon an application of this nature, the chancellor exercises
his judgment as to the propriety of interfering or meddling
with the decree for the cause disclosed, and grants or refuses
leave to file a bill of review accordingly, [ii)
The court may refuse it to the party applying, and grant it
for the protection of the interests of others, {v)
(p) Wehb vs. Pell, 3 Paige, Ch. R. 368.
(q) Thomas vs. Harde's Heirs, 10 Wheat. 146 ; Mitf. Eq. PI. 205 ; Story's
Eq. PI. § 409.
(r) Mitf, Eq. PL 92 ; Wyatt, Pr. Reg. 98, 100 ; Turner vs. Berrtj, 3 Gilm.
541 ; Singleton vs. Singleton, 8 B. Monroe, 340.
(s) Osborne vs. Usher, 6 Bro. P. C. 20; 2 Barb. Ch. Pr. 94.
\f) Coop. Eq. PI. 92 ; Mitf. Eq. PI. 84 ; Qilb. For. Rom. 186-188 ; Story's
Eq. PI. 412 ; 2 Barb. Ch. Pr. 95 ; see Oetzler vs. Saroni, 18 III. 511.
{u) HoUingsicorth vs. McDonald, 2 Har. & J. 230.
(p) Hodges vs. Milliken, 1 Bland, 511.
256. BILLS OF EEVIEW."
Performance of Decree — Petition for Leave to File.
It has been held, that leave to file a bill of review, for error
in law, apparent on the record, is not necessary, (w)
Performance of decree. — It is a general rule that leave to
file a bill of review will not be granted unless the decree has
been performed, {x) Therefore, if the decree be for the
payment of money, the party must pay it, or give security,
although it should afterwards be ordered to be refunded. (3/)
But the rule may be dispensed with under the circumstances
of each case. Thus, where the party is in execution for non-
payment of money under the decree, this is considered equiva-
lent to performance, (s) So, when a party is insolvent, {a) or
has given security for the performance of the decree. (5)
The construction of the rule is, that the party need only per-
form so much of the decree as at the time of filing his bill he
is bound to perform. Whatever he is then bound to do he must
do before he files his bill. But the permission to file it is upon
the implied engagement that the original decree shall be per-
formed. Therefore, if after the bill is filed, the period arrives
when the money ought to be paid, the party must pay it, or
an application to dismiss the bill may be made, (c)
If a bill of review is filed without leave, it may be dismissed
on motion, {d)
Petition for. — The application for leave to file a bill of
review should be made by petition, which should state the
nature of the suit, the decree, and the errors of law, or the
{w) Well vs. Pell, 1 Paige, Ch. R. 564 ; 8t. Clair vs. Piatt, Wright, 533 ;
and see Oetzler vs. Saroni, 18 III. 511.
(a;) Wiser vs. Blackley, 2 Johns. Ch. E. 488 ; Limngston vs. Hubbs, 8 Johns.
Ch. R. 124 ; see Origgs vs. Gear, 2 Gilm. 2 ; Horner vs. ZAmmerraan, 45
m. 14.
{y) Lube's Eq. PI. 139 ; 2 Barb. Ch. Pr. 96.
(s) Livingston vs. Hubbs, 3 Johns. Ch. R. 124 ; see Taylor vs. Person, 2
Hawks, 298.
{a) Stalling's Aclmr. vs. Goodloe's Exr. 3 Mur. 159.
(6) Id. lb. ; 3 Bac. Ord. ; Levil vs. Darcey, 1 Ch. Cas. 42 ; 2 Barb. Ch.
Pr. 90.
(c) 2 Barb. Ch. Pr. 96 ; Partridge vs. Usborne, 5 Russ. 251 ; Welf. Eq.
PI. 90 ; Gilb. For. Rom. 185.
{(I) Carroll vs. Parren, 1 Bland, 125; see Forman vs. Stickney, 111 111. 576.
BILLS OF REVIEW. 257
Form of Petition for Leave to File — For Error of Law.
new matters, as the case may be, upon wliich the application
is foujided, and should pray for liberty to file a bill of review,
to bring such decree into review. If the application is founded
upon the discovery of new matter, the petition must describe
the new evidence distinctly and specifieally, and state when it
was. discovered and its bearing on the decree, {e) It is not
sufficient to state that the petitioner expects to prove certain
facts. He must state the exact evidence to establish them.
On the hearing of such petition, affidavits may be admitted
on both sides, if necessary, to explain the nature of the
evidence, {f)
No. 96. Petition for leave to file a Mil of review for errors
of law.
{Title of cause.)
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 tiled his bill in
■this honorable court, against C. D. for the purpose of, etc.,
{Mere state the object of the hill,) and praying, etc. (Here
state the prayer.
And your petitioner further represents that the said C. D.,
being served with process, appeared and put in his answer
thereto ; to which a replication was filed. And the said cause
being at issue, witnesses were thereupon examined on both
sides, and the proofs closed. And that said cause was brought
to a hearing before your honor on, etc. ; whereupon a decree
was rendered to the following effect, etc. {Here set forth the
substance of the decree^ (*)
And your petitioner further represents, that he is advised
that the said decree is erroneous and ought to be reviewed and
reversed, and set aside for many apparent errors and imper-
fections, among which are the following, viz. {Here set forth
the errors coinjplained of.)
For all which errors and imperfections in the said decree
(e) Dexter vs. Arnold, 5 Mason, 303.
(/) lb. ; Hollingsworth vs. McDonald, 3 Har. & J. 330 ; 3 Barb. Ch.
Pr. 95.
17
258 BILL OF EEVIEW.
Form of Petition for Leave to File, etc. — Witliin what Time to be Brought.
appearing on the face thereof, your petitioner is desirous of
bringing his bill of review to be relieved in the premises.
Your petitioner therefore prays that leave may be granted
to him to file a bill of review against the said 0. D. for the
purpose of having the said decree reviewed, reversed and set
aside ; and that no further proceedings may be had under the
same. A. B.
5 Sol. for Petitioner.
No. 97. Petition for le(me to file a 'bill of review upon
discovery of new matter.
{As in the last form, JVo. 96, to the asterisk (*), and then)
And your petitioner further represents, that since the rendition
of said decree, your orator has discovered new matter of con-
sequence in the said cause, particularly that, etc., (Sere
set forth the new evidence distinctly and specifically /) which
new matter your petitioner did not know, and could not, by
reasonable diligence, have known, so as to make use thereof in
the said cause, previous to and at the time of the pronouncing
the said decree. That your petitioner first learned of the said
newly discovered evidence about, etc. {Here state when it was
first dAsGovered.) And your petitioner is advised that the
said new matter, etc. {Here state its hearing on the decree.)
Your petitioner therefore prays that he may be at liberty to
file a bill of review for the purpose of having the said decree
reviewed, reversed and set aside, and that no further proceed-
ings may be had under the same. A. B.
, Sol. for Complainant.
{Add affidavit.)
SECTION IV.
WITHIN WHAT TIME TO BE BROUGHT.
In England, twenty years after the pronouncing of the decree
is the limitation for a bill of review, {g) In Indiana, a bill of
review filed in October, 1832, founded on newly discovered
evidence, alleged to have been discovered in the summer of
1828, was lield to have been filed in time. (A) In that state,
ig) Lube's Eq. PI. 133 ; Coop. Eq. PI. 93 93.
(A) Jenkins vs. Prewitt, 6 Blackf. 337.
BILLS OF EEVIEW. 259
Order for Leave to File — Form of Bill.
the statute of limitations begins to run from the time of the dis-
covery of new evidence, which is five years, {ij
In Illinois, bills of review are limited, like writs of error, to
five years. {J)
No. 98. Order for leave to file hill of review.
{Caption, with title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard this day, on the petition
of C. D., the defendant, praying for leave to file a bill of
review in this cause, and counsel for the respective parties
having been heard ; and the court being fully advised in the
premises, does order that the said C. D. be at liberty to file a
bill of review, touching the several matters in the said petition
mentioned, and for relief in the premises as he may be advised.
SECTION V.
rOKM OF BILL.
In a bill of review it is necessary to state the former bill,
and all the proceedings under it ; the decree and the points in
which the party exhibiting the bill, conceives himself aggrieved
by it ; and the ground of law upon which he seeks to impeach
it; or if it is brought upon newly discovered evidence, the
evidence must be stated distinctly and specifically, and what is
its bearing upon the decree sought to be impeached, ijc)
The bill must either deny the justice of the demand estab-
lished by the decree sought to be reviewed, or the complainant
must allege that he has paid it and the costs, or else give a
sufiicient reason for omitting to do so. (Z)
The complainant may join in the same bill both grounds for
(i) Jenkins vs. Prewitt, 5 Blackf. 7.
0') Li/an vs. Bobbins, 46 111. 276.
(k) Gardner vs. Emmerson, 40 111. 296 ; Turner vs. Berry, 3 Gilm. 541 ;
Oetzler Ys, Saroni, 18 111. 511; Oilclirist vs. Buie, 1 Dev. & Bat. Ch. 346;
Story's Eq. PI. ^ 420 ; Dougherty vs. Morgan, 6 Monr. 151 ; Marvin vs.
Trumbull, Wright, 386 ; Kellom vs. Easley, 2 Abbot's C. C. R. 559 ; S. 0. 1
Dillon, 281 ; 14 Wallace, 279.
{I) Horner vs. Zimmerman, 45 111. 14 ; 3^ Adams' Eq. 418 ; Lube a
Eq. 130.
260 BILLS OF EEVIEW.
Form of Bill upon Error in Law.
a bill of review ; first, error of law, apparent on the face of the
decree, and, second, newly discovered evidence, (m)
The bill may simply pray that the decree may be reviewed,
and reversed in the points complained of, if it has not been
carried into execution, (n) If it has been carried into execu-
tion, the bill may also pray the further decree of the court to
put the party complaining of the former decree into the situa-
tion in which he would have been if that decree had not been
executed, (o) If the bill is brought to review the reversal of a
former decree, it may pray that the original decree may
stand. (^)
No. 99. Bill of revievj upon error in law.
To the Honorable , Judge of the Court of the
County of , in the State of ,
In Chancery sitting :
Your oi'ator, A. B., of, etc., respectfully represents unto your
honor, that on, etc., one C. D., of, etc., exhibited his original
bill of complaint in this honorable court, against your orator,
and thereby set forth, that, etc., {Here the substance of the
original hill,) and praying, etc., {Here set out the prayer ^)
and your orator being served with process for that purpose
appeared and put in his answer to the said bill, to the effect
following, etc., {Here insert the substance of the answer /) and
the said C. D. filed his replication to said answer ; and issue
having been joined, and witnesses examined, and the proofs
closed, the said cause was brought to a hearing in this honora-
ble court, on, etc., when a decree was rendered ; by which it
was ordered, adjudged and decreed that, etc. {Here set forth
the decree.) (*)
And your orator further represents, that the said decree is
erroneous, and ought to be reviewed, reversed, and set aside
for many apparent errors and imperfections, inasmuch as it
appears by your orator's answer, among which are the follow-
ing : {Here insert the apparent errors /) and no proof being
made thereof, no decree ought to have been made or grounded
thereon, but the said bill ought to have been dismissed, for the
(wi) 3 Dan. Ch. Pr. 1630, note 4 ; Qriggs vs. Gear, 3 Gilm. 2.
(n) Mitf. Eq. PL 88, 89 ; Coop. Eq. PI. 95 ; Story's Eq. PI. § 420.
(p) Id. lb.
(p) Dexter vs. Arnold, 5 Mason, 308.
BILLS OF EEVIEW. 2G1
Form of Bill on Discovery of New Matter.
reasons aforesaid. For all which errors and imperfections in
the said decree, appearing upon the face thereof, your orator has
brought this his bill of review, to be relieved in the premises.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. D. who is made party defendant to this bill, may
be required to make full and direct answer to the same, hut
not under oath, the answer under oath heing hereby waived j
and that the said decree may be reviewed, reversed and set
aside, and no further proceedings taken thereon ; 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 No.
85, ante, page £09.)
No. 100. Bill of review on discovery of new matter.
{As in the last forni, No. 99, to the asterisTc (*), and then)
And your orator further represents, by leave of this honorable
court first had and obtained for that purpose, that since the
rendition of the said decree, your orator has discovered new
matter of consequence and material in said cause, particularly
that, etc., {Here set forth the new matter discovered ;) which
new matter your orator did not know; and could not, by rea-
sonable diligence have known, so as to make use thereof in the
said cause, previous to and at the time of the hearing and the
pronouncing of the said decree; and that your orator first
learned of the existence of the said newly discovered evidence
about, etc., {Here give the date of the discovery as near as
may he ;) and your orator is advised that the said new matter,
etc. {Here state its heai'ing upon the decree^
And your orator further represents, that he is advised and
insists that under the circumstances aforesaid, the said decree,
in consequence of the discovery of such new matter as aforesaid,
ought to be reviewed and reversed.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity, and to the end that
the said C. D., who is made a party defendant to this bill, may
be required to make full and direct answer to the same, hut not
under oath, the OM'Sxoer under oath heing herehy waived / and
that the said decree and all proceedings thereon may be reviewed
and reversed, and no further proceedings taken thereon ; 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.
262 BILLS OF EEVIEW.
Affidavit to Bill, etc. — Defenses to.
May it please your honor, etc. {Praying ^ocess as in No.
85, ante, page £09.)
{Add ujftdav'd as follows :)
No. 101. Affidavit to a hill of review on discovery of new
matter.
State of
County of f
A. B.,. of, etc., the complainant in the foregoing bill of com-
plaint, on oath, says, that he has heard the same read, and
understands the contents thereof; and that the matters set forth
therein as new matters, are true in substance and in fact ; that
they were first discovered by this affiant since the rendition of
the decree in the foregoing bill mentioned ; to wit, about the
time therein stated ; and that the same could not possibly be
had, known or used at the time when said cause was heard or
the decree rendered.
Subscribed, etc. A. B.
SECTION VI.
DEFENSES TO.
The usual mode of defense to a bill of review founded upon
alleged errors apparent from the decree, is to plead the former
decree in bar of the suit, and to object by demurrer to the vaca-
tion of the decree, alleging as a ground of demurrer, that there
IS no error in the decree ; {q) or, if the bill is brought on new
matter prc)per to be answered, the defendant must put in an
answer, or plead thereto, {r)
Plea. — It seems that it is not necessary to plead the former
decree, if such decree is fully and fairh^ stated in the bill of
review ; (s) and the books of practice contain the forms of de-
murrer only to such a bill.
iq) Coop. Eq. PI. 95 ; Mitf . Eq. PI. 89 ; Welf . Eq. PI. 242 ; Gould vs. Tan-
cred, 2 Atk. 534 ; Dancer vs. Evett, 1 Vern. 392 ; Smith vs. Turner, 1 Vern.
273 ; O'Brien vs. O'Conner, 2 Ball & B. 146.
(r) Lube's Eq. PI. 132 ; 2 Barb. Cli.Pr. 98.
(s) Mitf. Eq. PL 204; Coop. Eq. PI. 215, 216 ; 2 Barb. Ch. Pr. 98: Welf
Eq. 243 ; Slin-rjsby vs. Hale, 1 Ch. Cas. 122 ; Jones vs. Kenrick, 5 Bro. C. P
244, 248 ; Barton's Suit in Eq. 218 ; Benny vs. Filmer, 2 Freem. 172.
BILLS OF EEVIEW. 263
Defenses to — Plea, etc.
Length of time is, it seems, a cause of demurrer, as if the
decree has been pronounced above the period of the statute of
limitations ; and this limitation is to be counted, not from the
time of the enrollment of the decree, but from the time of pro-
nouncing it. {t) It has been said that length of time must be
pleaded to review, even if apparent upon the face of the bill,
that it is brought after the prescribed period ; for that otherwise
the complainant would not be able to avail himself of the ex-
ceptions provided in the statute for cases of disability, as infancy,
coverture, or the like, {u) But there is reason to doubt the
propriety of this doctrine ; and to hold, that a demurrer will
lie in such a case. If any such exception exists, it is the duty
of the complainant to set it forth in his bill of review, in order
to repel the objection, (v) This is also sustained by analogy to
original bill, {w)
A bill of review upon the discovery of new matter, is seldom
liable to demurrer, for being exhibited only by leave of the
30urt, the ground of the bill is generally well considered before
it is filed ; and, therefore, in point of substance, it can rarely be
liable to a demurrer, (x) Yet even in such case demurrer
seems to lie to review for new matter not relevant, though the
relevancy ought to be considered when leave is given to file
the bill, (y)
If a demurrer to a bill of review has been sustained, it may
be pleaded to a new bill on the same grounds, being an eftect-
ual bar to another bill of review. (2)
{t) Edwards vs. Carroll, 2 Bro. P. C. 98 ; SmytJie vs. Clay, 1 Bro. C. C.
539, note.
(tt) Coop. Eq. PI. 216; Mitf. Eq. PI. 204, 205 ; Welf. Eq. PI. 243 ; Oregor
vs. MolesiDorth, 2 Ves. 109.
(v) Welf. Eq. PI. 243 ; Mitf. Eq. PI. 205 ; Gregor vs. Molesicoi-th, 2 Ves.
109 ; Edwards vs. Carroll, 2 Bro. P. C. 98 ; Sherrington vs. Smith, 2 Bro. P.
C. 62 ; Shepherd vs. Larue, 6 Munf. 529.
(m) Cook vs. Arnham, 3 P. Wms. 284 ; Foster vs. Hodgson, 19 Ves. 180.
{X) Welf. Eq. PI. 243 ; Mitf. Eq. PL 204.
{y) Llewellen vs. Mackworth, 2 Atk. 40 ; Mitf. Eq. PL 205 ; Coop. Eq.
PL 216.
(2) Denny vs. Filmer, 2 Ch. Cas. 133 ; Pitt vs. Earl of Arglass, 1 Vern.
441 ; Woots vs. Tucker, 2 Vern. 120.
264 BILLS OF KEVIEW.
Defenses to — Demurrer.
"WTien anything out of the decree, as length of time, pur-
• chase for a valuable consideration, or any other matter, is to be
offered against the opening of the decree, that matter must be
pleaded, {a)
A bill of review upon the discovery of new matter seems
liable to any plea, which would have avoided the effect of that
matter if charged in the original bill. And a plea lies to the
fact of the discovery of new matter, (b) This has been doubt-
ed, but the doubt does not seem to be well founded ; for if the
fact of discovery is in issue in the cause, it ought to be proved,
to entitle the complainant to demand the judgment of the
court on the matter alleged as ground for reviewing the decree ;
and it may consequently be disproved by evidence on the part
of the defendant, (c)
Demurrer. — The .regular defense to a bill of review for
errors of law apparent, being, as already stated, to plead the
decree in bar to the new suit, and demur to the opening of the
decree, on the ground that the errors assigned are not such as
to entitle the complainant to have the bill reviewed, much less
reversed ; the first question being whether the decree should be
opened and reviewed. And this is argued upon the demurrer,
when nothing can be read but what appears upon the face of
the decree. If the demurrer is overruled, there arises a second
question — whether the decree ought to be reversed; and the
complainant is at liberty to read the original pleadings, or any
other evidence, as at a rehearing; the cause being equally
open, (d)
If the bill has assigned errors at law, and the plea and
demurrer are allowed, an order to that effect is made, and that
{a) Welf. Eq. PI. 244 ; Eartwill vs. Townsend, 2 Bro. P. C. 107 ; Gormcm
vs. McCuUock, 5 Bro. P. C. 597 ; Braduh vs. Oee, Ambl. 229.
{})) Mitf. Eq. PI. 292 ; Coop. Eq. PI. 304, 305 ; Beames' PI. in Eq. 807.
(c) Welf. Eq. PI. 245 ; Mitf. Eq. PI. 292 ; Dexter vs. Arnold, 5 Mason,
893 ; Lube's Eq. PI. 249 ; 2 Barb. Ch. Pr. 99.
id) 2 Barb. Ch. Pr. 100 ; Lube's Eq. PI. 248.
BILLS OF KEVIEW. 265
Defenses to — Answer — Form of Plea to.
the bill be dismissed, [e) There is then an end to the suit, and
no new bill will be admitted after demurrer allowed, {f)
If the demurrer or demurrer and plea are overruled, the
usual decree is that the original decree be reversed, and the
errors be allowed, {g)
On the argument of a demurrer to a bill of review, where
several errors in the decree have been assigned, if the com-
plainant should prevail only in one, the demurrer must be
overruled ; as one error will be sufficient to open the decree.
And on argument of a demurrer to a bill of review for error
apparent in the decree, the court has ordered the defendant to
answer; saving the benefit of the demurrer to the hearing;
and on the hearing has finally allowed the demurrer, {h)
Answer. — If the bill of review is brought on new matter,
fitting to be answered, the defendant may put in an answer
controverting the fact that the matter is newly discovered, {i)
So, if a bill is brought for newly discovered matter, and a
demurrer, or plea and demuiTer are overruled, it is laid down
that the defendant must answer, as facts are in issue. (/) The
case will proceed upon such a bill as upon an original bill. (Jc)
No. 102. Plea to a hill of review.
In the Court
CD.) Term, 18—.
ais. > 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. (<?) And the grounds of objection to discovery
which may be raised by plea are nearly the same as those which
have just been mentioned as causes of demurrer. And some-
times the situation of a defendant may render it improper for
a court of equity to compel a discovery ; because it may sub-
ject him to forfeiture, or pains and penalties ; or criminal
prosecution ; or be contrary to the confidence reposed in him
as a counsel, attorney, or arbitrator ; or because he is a pur-
chaser for a valuable consideration, without notice of complain-
ant's title, id)
To a bill of discovery for the purpose of proceeding at law,
a plea of payment of the money demanded by the complainant
does not lie. {e) So, when the bill is for an injunction to
restrain the defendant from setting up at law an outstanding
term, a plea of title to the whole bill is bad. {f) So, to a bill
for a discovery of an agreement, with an allegation to prevent
the operation of the statute; the statute of frauds cannot be
pleaded. {g)
A plea of want of parties, does not lie to a bill of discovery
merely. (A) But where relief is prayed, a plea of want of par-
ties goes both to discovery and relief, {i)
No. 107. Pica to a hill of discovery that action at law
having jurisdiction is pending, etc.
{As in No. '28, ante, jpage 119, to the asterisk *, then pro-
ceed^ for plea to so much and such part of the complainant's
bill as seeks a discovery from this defendant, of, etc., this de-
fendant pleads thereto, and for plea says, that long before the
complainant's bill was filed in this court, and on, etc., the com-
plainant commenced a suit in -the court, against this
(c) 2 Barb. Ch. PL 111.
(d) 2 Barb. Ch. Pr. 112; Mitf. Eq. PI. 282 ; March vs. Davidson, 9 Paige,
Cb. R. 580 ; Hayes vs. Caldwell, 5 Gilm. 33.
{e) Hindman vs. Taylor, Dick. R. 651.
(/) Oait vs. Osbaldeston, 5 Mad. R. 428.
{g) Mitf. Eq. PI. 265-267 ; Cottington vs. Fletcher, 2 Atk. R. 156 ; Welf.
Eq. PI. 135; 2 Barb. Cb. Pr. 112.
(A) Mitf. Eq. PI. 280 ; Welf. Eq. PI. 134; Beames' PI. 374.
(t) Id. ; Id. ; Plunket vs. Peuson, 2 Atk. R. 51.
276 BILLS OF DISCOVERY.
Defenses to — Form of Pleas — Answer.
defendant in respect of the matters as to which discovery is
sought by the complainant's bill, and that such suit is still
depending in the said court, which, as this defendant avers, is
a court of competent jurisdiction to afford the discovery which
the complainant seeks by his said bill. Therefore, this defend-
ant pleads the same to the complainant's bill, and prays the
judgment of this court whether it will hold plea upon and
enforce this defendant to answer the complainant's said bill, for
the cause aforesaid.
Wo. 108. Plea to a hill of discovery that a discovery would
com/pel defenda/nt to hetray confidence as solicitor.
{^Commence as in Wo. S8, ante, page 119.)
This defendant, etc., {as in Wo. 28, ante, to the asterisk *,)
as to so much of the said bill as prays that this defendant may
discover whether, etc., this defendant pleads, and for plea says,
that this defendant has no knowledge of the matters concern-
ing which discovery is so prayed, or any of them, except in
and by means of the confidence reposed in this defendant as
solicitor, employed by E. F. in the complainant's bill named.
Wherefore, etc. {Conclude as in Wo. '28.)
Answer. — If the defendant does not think proper to defend
himself from the discovery by demurrer or plea, he has been
permitted by answer, to insist that he is not obliged to make
the discovery, {j) In this case the complainant may except to
the defendant's answer as insufficient ; and upon the hearing
of the exceptions it will be determined whether the defendant
is or is not bound to make the discovery. (]c)
A defendant cannot demur to part and answer to a part of
a bill of discovery ; (l) as the rule is well settled, that if he
submits to answer, he must answer fully, {m) There is no
rule, however, preventing an answer from being accompanied
by a plea or demurrer, {n)
(j) Mitf. Eq. PI. 307 ; 2 Barb. Ch. Pr. 113.
(k) Id. ; Id. ; 2 Ves. Jr. 87.
(Z) Jojies vs. Strafford, 3 P. Wms. R. 79 ; Abraham vs. Dodgson, 2 Atk.
R. 157 ; Dormer vs. Fortesque, 2 Atk. 282.
(m) Hare on Disc. 251 ; Mazareddo vs. Maitland, 3 Mad. R. 72 ; PortarU
ington vs. Soulhy, Sim. 28 ; Mitf. Eq. PI. 307, note h ; 11 Ves. 283.
(71) 2 Barb. Ch. Pr. 114.
BILLS OF DISCOVERY. 277
Defenses to — Answer — Practice, etc.
An answer to a bill of discovery is entitled to no higher
consideration than the answer of a party's own witness upon
th-e stand, and may be controverted in the same way, althongh
he cannot impeach the party answering, by showing that he is
unworthy of belief, {o)
The practice of allowing exceptions to answers to bills of
discovery to be settled on the trial of the action at law prevails
in most of the states. If the answer is not strictly responsive,
exception should be taken to it on the trial, and the court will
exclude such parts of the answer as are exceptionable, (p)
The entire answer, if responsive, should be received as evi-
dence, and evidence should be given or withheld as circum-
stances may justify. (^) And in answering, the defendant has
a right to state all the circumstances connected with the mat-
ter about which the discovery is sought, as well as that which
makes for as against him. (r)
Practice wpon^ generally. — The case is never brought to a
hearing upon a bill for discovery only, but as soon as the an-
swer is" perfected the defendant is entitled to move for costs, (s)
But when the bill i-s for relief against several defendants, and
for discovery against only one, he cannot make a motion for his
costs until the hearing. The court will not take the labor of
ascertaining whether under the prayer for general relief, some
relief may not be given against him. {f)
The general rule is, that the complainant in a bill of dis-
covery, upon obtaining it, pays the defendant his costs, iu) And
costs are given against the complainant, as a matter of course,
(o) Chambers vs. Warren, 13 111. 318 ; Story's Eq. PI. § 319, note 3 ; 3 Litt,
R. 879 ; 8 Blackf. R. 35, 177 ; 8 Paige, Ch. R. 580.
(p) CJiamUrs vs. Warren, 13 111. 318 ; 11 Paige, Ch. R. 618 ; 2 Dan. Ch.
Pr. 392 ; 4 Dana, 59 ; 5 Ohio, 174 ; 3 Eng. Ark. R. 356.
(g) Chambers vs. Warren, 13 111. 318 ; 5 Ham. 283 ; Fant vs. Miller, 17
Gratt.Va. R. 187.
(r) Chambers vs. Warren, 13 111. 318.
(«) King vs. Clark, 3 Paige, Ch. R. 76.
(0 Attorney General vs. Birch, 4 Mad. 178.
{u) Buryiett x^. SnnderH, 4 Johns. Ch. R. 504; McElwet^ t^. Sutton, 1
Hill's Ch. R. 34 ; "nop. Eii. PI. 01.
278 BILLS OF DISCOVERY.
Practice upon, Generally.
if the charges of the bill are denied, {v) But if the complain-
ant, before filing his bill, asks a discovery from the defendant,
who refuses it, whereby the complainant is compelled to come
into equity, the defendant will not be allowed costs, {w)
When the answer is obtained, and the complainant has
secured all the relief asked, or which the court could give, the
bare dissolution of the injunction — which must follow — is
equivalent to an order dismissing the bill, making a final dispo-
sition of the suit, {x)
{v) King vs. Clark, 3 Paige, Ch. R, 76.
{w) McElwee vs. Sutton, 1 Hill's Cli. R. 34; King vs. Clark, 8 Paige. Ch.
R. 76 ; Burnett vs. Sanders, 4 Jolins. Ch. R. 504.
(a;) Yates vs. Monroe, 13 111. 212 ; Russell vs. Clark, 7 Cranch, 69 ; Avery
VB. Holland, 2 Overton, 71 ; Burnett vs. Sanders, 3 Paige, Ch. R. 76.
CHAPTEE XXII.
BILL OF INTEEPLEADEE.
Section 1. Nature of, and When Pkoper.
2. Form op Bill.
3. Defenses to.'
4. Hearing and Decree.
SECTION I.
NATURE OF, AND WHEN PEOPEE.
Nature of. — Where two or more persons claim the same
fund or property in different titles, whether legal or equitable,
from another, who is in the position of an innocent stakeholder,
standing indifferent between them, the latter, if molested by
a suit actually brought, or threatened, may file his bill of inter-
pleader, for the purpose of compelling the claimants to litigate
their rights at their own expense, and thus protect himself from
all vexation and responsibility, {a)
A bill of interpleader lies only where two or more persons
claim the same debt or duty from the complainant, by different
or separate interests. (J) It is proper where suits are threat-
ened ; (c) but will not lie after a judgment at law on the claim
in favor of either or both of the claimants, id) It is sufficient
(a) Barton's Suit in Eq. 68; Story's Eq. PI. § 291 ; Hinde, Pr. 20; Coop.
Eq. PI. 43 ; Mitf. Eq. PI. 32 ; Cady vs. Porter, 55 Barb. N. Y. 463 ; McHenry
vs. Hazard, 45 N. T. 580 ; Bedell vs. Hoffman,2 Paige, Ch. R. 199 ; Atkinson
vs. Manks, 1 Cowen, 691; Cogswell vs. Armstrong, 77 111. 139; Netvhallvs.
Kasiens. 70 lil. 156: Heath vs. HxrJess. 73 111. 323.
(6) Hayes vs. Johnson, 4 Ala. 267 ; Green vs. Mumford, 4 R. I. 313 ; Sher-
man vs. Partridge, 4 Duer, 646 ; Adams vs. Dixon, 19 Geo. 513 ; Farley vs.
Blood, 10 Foster, 354.
(c) Tarhorough vs. Thompson, 3 S. & M. 291 ; Hathoway vs. Foy, 40
Mo. 540.
id) Id.
280 BILL OF INTEEPLEADER.
Nature of, and When Proper.
if, of the two adverse claims against the complainants, one of
the claims is legal and the other equitable, [e)
The bill must show that the complainant is a mere stake-
holder, having no personal interest in the controversy ; (/") it
should not set out the facts on which the title of the claimants
respectively is based, but ought only to state in a general way
the nature of their claims, {g)
A party who is taxed in two different towns for the same
property, which is only liable to be taxed once, and where it is
doubtful to which town the right to tax belongs, may file a
bill of interpleader to compel the collectoi'S of the tax to settle
the right between themselves, (h)
It is not necessary for the holder of the fund to file a bill of
interpleader, when he is already a party to a suit in chancery,
brought by one claimant against the other, to settle the right
to the fund. In such case, the holder of the fund should
apply, by petition in that suit, for leave to pay the money into
court, to abide the event of the litigation between the other
parties. (^)
To maintain a bill of interpleader the complainant must be
in the possession of the goods or thing in controversy. (J)
But in Connecticut it has been held that if the complainant
has paid over money to one of the defendants under a claim of
right to which he was obliged to submit, this would not pre-
clude him from sustaining the bill, {k) So, where a tenant has
paid rent to one of the claimants, in ignorance that the title
(e) Schyler vs. Pelissier, 3 Edw. Ch. 191 ; Richards vs. Salter, 9 Johns.
Ch. R. 445 ; Yates vs. Tisdale, 3 Edw. Ch. 71.
(/) Cady vs. Porter, 55 Barb. N. T. 4G3 ; Burton vs. Black, 32 Geo. R. 53 ;
Hathaway vs. Foy, 40 Mo. 540 ; Temple vs. Laicson, 19 Ark. 148.
{g) Shaw vs. Coster, 8 Paige, Ch. 339 ; Lozier vs. Van Saun, 2 Green's
Ch. R. 325.
(h) M. & H. R. R. Co. vs. Clute, 4 Paige, Ch. R. 384 ; Thompson vs. Ebieta,
Hopk. Ch. R. 272.
{i) Badeau vs. Rogers, 2 Paige, Ch. R. 209.
( j) 2 Barb. Ch. Pr. 118 ; Burnett vs. Anderson, 1 Mer. 405 ; Martin vs.
Maberry, 1 Dev. Ch. R. 169.
(A) Nash vs. Smith, G Conu. R. 421.
BILL OF INTERPLEADER. 281
Nature of, and Wlien Proper.
was disputed, he has been allowed to compel the parties to
interplead, (l)
A bill of interpleader will not lie if the complainant himself
claims any interest in the property in dispute, (m) Nor where
the complainant denies any liability to either of the defend-
ants, and neithei" admits that anything is due to one of them, (n)
nor offers to bring the amount in dispute into court, (o)
It cannot be sustained where the complainant is obliged to
admit that, as to either of defendants, he is a wrong-doer, [j?)
!Nor where it appears, from the bill itself, that there can be no
doubt as to which of the defendants is entitled to the fund or
duty claimed, {q) ISTor by a sheriff against several creditors,
where a controversy arises as to the application of the money
in his hands, derived from a sale of a debtor's property on exe-
cution, (r) Nor can a sheriff, who has seized, on execution, ■
property claimed by a stranger, file a bill against the claimant
and the parties to the suit, to settle the question of property, {s)
And a mere agent, having a fund in his hands, as such, which
is claimed by a third person, cannot file a bill of interpleader ;
but if the claimant claims title derived from the principal, the
bill will lie. {t)
Where the case presented by the bill of intei-pleader is not a
claim by different parties to the same fund or assets in the
hands of the complainant, for which he has a right to ask them
to discharge him, and interplead between themselves, relief
will be denied, {u) And where no riglit to compel the defend-
(0 Jeio vs. Wood, 1 Craig & Phil. 185; 2 Barb. Ch. Pr. 118.
(m) Cadi/ vs. Potter, 55 Barb. N. Y. 463; Long ys. Barker, 85 111. 431;
Cogswell vs. Armstrong, 77 111. 139; Alleg vs. S-iipervisors, 76 III. 101; Hell-
man vs. Schneider, 75 111. 422.
(n) 45 Barb. N. Y. R. 657 ; 42 N. H. R. 78 ; 2 Story's Eq. PL § 292.
(o) lb. ; lb. ; McGarrah vs. Pmther, 1 Blackf. lud. 299.
{p) Shaw vs. Coster, 8 Paige, Ch. R. 339; Quiim.vs. Green, 1 Ir<'d. Ch.
R. 229.
iq) M. cfc H. B. R. Co. vs. Clute, 4 Paige, Ch. R. 384.
(r) 42 N. H. Rep. 78 ; Shaw vs. Coster, 8 Paige, Ch. R. 339.
(s) Quinn. vs. Green, 1 Ired. Ch. R. 229 ; Quinn vs. Patton, 2 Ired. Ch. 48.
{t) Gibson vs. GoltJncaite, 7 Ala. R. 281.
{u) Leddle vs. Starr, 20 N. J. Eq. R. 274 ; Haseltine vs. Brickey. IG Nratt.
Va. 116 ; Tyns vs. Rust, 37 Geo. 574; Dunaher vs. Prentiss, 22 Wis. 311;
4 R. I. Rep. 313.
282 BILL OF INTERPLEADER.
Nature of, and When Proper.
ants to interplead, whatever rights they may claim, each defend-
ant may demur, (v)
To maintain a bill of interpleader, it is necessaiy that the
complainant should be uncertain to whom the right belongs, {w)
And it must be shown that there are persons in esse capable
of interpleading, and setting up opposite claims, {x)
Bills of interpleader do not ordinarily lie except in cases of
privity of some sort between all the parties — such as privity
of estate, or title, or contract — and where the claim is all of the
same nature ; for where the claimants assert their rights under
adverse titles, and not in privity, and where their claims are of
different natures, the bill cannot be maintained, {y) Thus, a
tenant liable to pay rent, may file a bill of interpleader, where
there are several persons claiming title to it in privity of con-
tract, or of tenure, to compel them to ascertain to whom it is
properly payable, (s) But if a mere stranger should set up a
claim to the rent by a title paramount, and not in privity of con-
tract or tenure ; or a claim of a different nature — such as a
claim to mesne 23rofits in virtue of his title paramount — no bill
of interpleader would lie on behalf of the tenant ; for the debt
or duty is not of the same nature, {a)
But if a person who has a legal demand for a sum of money
assigns his interest, the debtor may compel the assignor and
assignee to interplead, (b) So an auctioneer may maintain a
bill of interpleader between a vendor and purchaser, who both
claim the deposit money at a sale ; he being deemed the agent
for both parties, (c)
{v) Welf. Eq. PI. 152, 153 ; 2 Barb. Ch. Pr. 118.
(w) 2 Barb. Ch. Pr. 118 ; Welf. Eq. PI. 152 ; Barton's Suit in Eq. 69 ; East
India Co. vs. Edwards, 18 Ves. 377.
(a;) Coop. Eq. PI. 46; Story's Eq. PI. § 295; Metcalf vs. Hervey, 1
Ves. 248.
{y) Coop. Eq. PI. 48 ; Mitf. Eq. PI. 142 ; Dtmgey vs. Angove, 2 Ves. Jr. 304
(2) Welf. Eq. PI. 152; Story's Eq. PL § 239; Loiondise vs. Comfort, 18
Ves. 298 ; Langston vs. Baylstun, 2 Ves. Jr 101.
(a) Story's Eq. PI. ^ 239 ; 2 Barb. Ch. Pr. 119 ; Welf. Eq. PI. 153 ; Clark
vs. Byne, 13 Ves. 383, 386 ; Lowe vs. Richardson, 3 Mad. 277.
(&) East India Co. vs. Edwards, 18 Ves. R. 377.
(c) Farehrother vs. Prattent, Dan. Rep. 64; 2 Barb. Ch. Pr. 119.
BILL OF INTERPLEADEK. 283
Form of Bill — AflBdavit of Non-Collusion.
SECTION II.
FOKM OF BILL.
The bill must show that each of the defendants' claims are
right; {d) the difficulty in which the complainant is placed,
and should offer to bring the thing claimed into court ; for if
it is not offered, the court, upon the application of either of
the defendants, will order the money or property into court, {e)
And the want of such an offer is ground for demurrer, {f)
But if the claim is for goods, it is not sufficient to ofier to
bring the value of the goods into court, {g)
The bill prays that the defendants may interplead ; that the
court may adjudge to whom the money or thing belongs, and
that the complainant may be indemnified. (A)
If the defendants have commenced, or thi-eaten to com-
mence, any proceedings, except at law by ejectment, an
injunction must be prayed. {%)
AjfldcLvit of non-collusion. — A bill of interpleader must
not be brought in collusion with either claimant ; therefore the
complainant is always required to annex an affidavit that there
is no collusion between him and any of the parties, {j) And
a want of that affidavit is clearly a cause of demurrer. (Jc)
(d) Welf. Eq. PI. 155 ; 2 Barb. Cli. Pr. 120 : Mitf.Eq. PI. 142 ; Martinius
vs. Helmuth, 2 Ves. & Bea. 412.
(e) TJianet vs. Paterson, Barnard, 247 ; Fuller vs. Gibson, 2 Cox, 24 ; War-
rington vs. Wheatstone, 1 Jac. R. 202 ; East India Go. vs. Edwards, 18 Ves.
376 ; Mohawk & Hudson R. R. Co. vs. Clute, 4 Paige, Ch. R. 384 ; Shaw vs.
Coster, 8 Paige, Ch. R. 339.
(/) 2 Barb. Ch. Pr. 122 ; Mitf. Eq. PI. 49 ; Metcalf vs. Hervey, 1 Ves. 248 ;
Hyde vs. Warren, 19 Ves. 321.
(g) Burnett vs. Anderson, 1 Mer. 105.
(A) Mitf. Eq. PI. 49; Welf. Eq. PI. 156.
(i) Metcalf vs. Hervey, 1 Ves. 248 ; Surrey vs. Waltham, 2 Anst. 539,
note ; Jew vs. Wood, 1 Craig & Phill. 185.
(j) Shaw vs. Coster, 8 Paige, Ch. R. 339 ; AtHnson vs. Manks, 1 Cowen,
691 ; Errington vs. Attorney General, Bumb. 303 ; Mitchell vs. Hnyne, 8
Sim. & Stu. 63 ; Cooper vs. DeTastel, 1 Taml. 177 ; Welf. Eq. PI. 156 ; Mitf.
Eq. PI. 49, 143 ; Tyns vs. Rust, 37 Geo. 574.
(k) 2 Barb. Ch. Pr. 121 ; Metcalf vs. Hervey, 1 Ves. 248.
284 BILL OF INTERPLEADER.
Affidavit of Non-Collusion — Form of Bill.
The court will not determine upon counter affidavits, whether
the affidavit denying collusion is false. (I) But where there is
a suspicion of collusion-, the court will direct an inquiry into
the circumstances, (m)
JVo. 109. Bill of inter jpleader.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting:
Y"our orator, A. B., of, etc., respectfully represents to your
honor that on, etc., at, etc., your orator purchased of one C. D.,
of, etc., one of the defendants hereinafter named, two horses,
for which lie promised to pay the said C. D. the sum of
dollars, and gave his notes therefor, payable to the said C. D.
after date ; that at the time of such purchase the said C.
D. represented, and still insists, that he was the owner of said
property, and had good right to sell the same to your orator,
and to accept the said notes therefor.
And your orator further represents, that afterwards, on, etc.,
one E. F., of, etc., a defendant hereinafter named, made known
and claimed, and still insists and claims, that he, the said E. F,,
was at the time of said sale the real owner of the property,
and that the said C. D. was not the owner thereof as he pre-
tended to your orator, but was merely the agent for tlie said
E. F. in making the said sale to your orator ; and that the said
C. D. had no authority to take said notes in his own name ;
and that the said sum of dollars was due and paj^able to
him, the said E. F., and not to the said C. D. ; and then and
there notified your orator in writing, not to pay the amount of
said purchase money to the said C. D.
Your orator further represents that the said E. F. has com-
menced an action at law against your orator, in the court
of the county of , to recover the purchase money due on
said property, and that the said E. F. is now threatening to
bring suit against your orator, or the said promissory note.
Your orator further represents that he has always been will-
ing to pay the amount of such purchase money to such person
or persons as should be lawfully entitled to receive the same,
and to whom he could pay the same in safet}' ; and he hereby
offers to bring the same into court, as the court shall direct,
(I) Langston vs. Boylston, 2 Ves. Jr. 101.
(m) Dungey vs. Angove, 2 Ves. Jr. 304
BILL OF INTERPLEADER. 285
Form of bill — AflSdavit to.
And your orator further represents, tliat he does not in anj
respect colhide with eitlier of tlie said named defendants, touch-
ing the matters in controversy in this cause ; nor is he in any
manner indemnified by the defendants, or either of them ; nor
has he exhibited this, his bill of interpleader, at the request ot
the defendants, or either of them, but merely of his own free
will and to avoid being molested, vexed and harrassed touching
the matters contained herein.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. D. and E. F., who are made parties defendant to
this bill, may be required to make full and direct answers to
the same ; and that the defendants may severally set forth to
which of them the said sum of does of right belong, and
is payable, and how in particular they make out their claim
thereto; and that the defendants may interplead, and settle and
adjust their said demands between themselves ; your orator
being willing and desirous, and agreeing, that the said sum
may be paid to such of them to whom the same shall, in the
judgment of the court, appear of right to belong ; and that
your orator may be at liberty to bring and pay the said sum
of dollars into this honorable court, which your orator
hereby offers to do, for the benefit of such of the defendants
who shall appear to be entitled thereto, and subject to the
further order of the court ; and that the defendant, E. F., may
be restrained, by the injunction of this court, from proceeding
against your orator in the said action at law for the purchase
money of said property, and that all the defendants may be
restrained from commencing any action or actions against your
orator for the recovery of the said sum of dollars, or touch-
ing any matters or things aforesaid ; and that the said C. D.
may be decreed to deliver the said promissory note to your
orator to be canceled ; and that your orator may have such
other and further relief in the premises as equity may require,
and to your honor shall seem meet.
May it please your honor, etc. {Pray process and injv/riG-
tion, ante, page 73, and add affidavit as follows :)
No. 110. Affidavit to he annexed to hill of interpleader.
State of —
County of [
A. B., of, etc., on oath states, that he has exhibited his bill
of interpleader against the defendants 0. D. and E. F., named
in the foregoing bill, without any fraud or collusion between.
286 BILL OF INTERPLEADER.
Defenses to — Demurrer.
him and the said defendants, or any or either of them ; and has
not exhibited his said bill at the request of the said defendants,
or either of them ; and further states, that he has exhibited his
said bill with no other intent but to avoid being sued or mo-
lested by the said defendants, who are proceeding or threaten
to proceed at law for the recovery of the funds mentioned in
said bill. A. B.
Subscribed, etc.
SECTION III.
DEFENSES TO.
Demurrer. — If the bill does not show a right to compel
the defendants to interplead, a demurrer lies, in) And if the
bill does not show that each of the conflicting parties claims
a right, both the defendants may demur ; one, because the bill
shows no claim of right in him ; the other, because the bill
showing no claim of right in the co-defendant, shows no cause
of interpleader, {p) And the want of the affidavit that there
is not collusion is clearly a ground for demurrer, {jp)
Whenever an objection to a bill of interpleader appears
upon its face, such objection should be raised by demurrer.
For if the defendants, instead of demurring, put in an answer
insisting that the bill is improperly filed, they will only be
allowed, upon the dismissal of the bill, the costs to which they
would have been entitled upon the allowance of a demurrer. (^)
If the controversy is concerning a sum of money, the bill
must offer to bring it into court, or it will be demurrable. (7')
(71) Mitf. Eq. PI. 142 ; Well Eq. PI. 156 ; Story's Eq. PI. § 293.
{0) Id. lb. 2 Story's Eq. Juris. § 821 ; 8hcm vs. Coster, 8 Paige, Ch. R.
339 ; Cochrane, vs. O'Brien, 2 Jones & La. T. 380.
{p) Metcalf vs. Harvey, 1 Ves. 248 ; 8Mw vs. Chester, 2 Edw. Ch. R. 405 ;
CHbson vs. Ooldthwaite, 7 Ala. 281.
(q) Shaw vs. Coster, 8 Paige, Ch. R. 339 ; 2 Barb. Ch. Pr. 123.
(r) McOarrah vs Prather, 1 Blackf. 299 ; Shaw vs. Chester, 2 Edw. Ch.
405 ; but see Nash vs. Smith, 6 Conn. 421 ; Coop. Eq. PI. 49 ; Barton's Suit
in Eq. 47, note 1.
BILL OF INTERPLEADER. 287
Defenses to — Forms of Demurrer — Answer.
N^o. 111. Demurrer to hill of interpleader, for want of
ajfidamt of non-collusion.
{As in No. 16., ante, page 108, to the asterisk (*,) and then
proceed) that although the complainant's said bill is on the
face thereof a bill of intei-pleader, and prays that this defendant
and the other defendant thereto may interplead together con-
cerning the matters therein mentioned, and may be restrained
by injunction from proceedings at law against the complainant
touching such matters, yet the complainant has not annexed an
affidavit to his -said bill that he does not collude concerning
such matters with any of the defendants thereto, which affida-
vit ought, according to the rules of this honorable court as this
defendant is advised, to have been made and annexed to the
said bill.
Wherefore, etc. {Conclude as in No. 16.)
No. 11%. Demurrer to hill of interpleader for not shovnng
any claim of right in defendant.
{As in No. 16, ante, page 108, to the asterisk *, and then)
That the complainant has not, in and by the said bill of inter-
pleader, shown any claim or right, title or interest whatsoever,
in this defendant, in or to the said , in the said bill par-
ticularly mentioned and described, in respect whereof this
defendant ought to be compelled to interplead with the E. F.
in the said bill named, the other defendant thereto.
"Wherefore, etc. {Goncbude as in No. 16.)
No. 113. Demurrer to hill of interpleader, for not showing
any 7'ight in complainant to compel defendants to inter-
plead.
{As in No. 16, ante, page 108, to the asterisk *, and then)
That the complainant lias not, in and by his said bill, shown
any right or title Mdiatsoever, to compel this defendant and E.
F. the other defendant to the said bill, to interplead.
Wherefore, etc. {Conclude as in No. 16.)
Answer. — The defendant may also jjut in an answer ad-
mitting or denying the facts stated in the bill. K the defend-
ants, or either of them, deny the allegations in the bill, or set
up distinct facts in bar of the suit, the complainant must
288 BILL OF INTERPLEADER
Defenses to — Answer — Injunction, etc.
reply to the answer, and close the proofs, in the usual manner,
before he can bring his cause to a hearing, (s)
If one of the defendants, in a bill of interpleader, in his
answer, makes a claim against the complainant beyond the
amount admitted to be due and paid into court, and which
is not claimed by the other defendant, he will be permitted to
proceed at law to establish his right to that part of his de-
mand which is not in controversy with the other defendant, {t)
Where the facts stated in the bill are admitted in the
answer, and no new facts are set up in bar of the suit, the
cause, upon a replication being filed, is set down for a decree
to interplead, before the proofs are taken as between the
defendants, and the complainant is dismissed with his costs up
to that time, paid out of the fund, (u) It is said, however,
that it is not usual for the complainant, in such cases, to file a
replication, although it is admissible for him to do so. {v)
Injunction, etc. — Until the complainant has brought the
money into court, he cannot proceed compulsorily by injunc-
tion, {w) The common order for an injunction upon a bill of
interpleader is, that it issues upon the complainant paying the
money into court. This is a condition precedent, and an order
for an injunction not containing it will be discharged, (a?)
The injunction on an interpleading bill stays all proceed-
ings, (y) It may be moved for at once on payment of the
money into court, and before the time for answering has
expired, {z)
(s) 2 Barb. Ch. Pr. 123 ; Gity Bank vs. Bangs, 2 Paige, Ch. 570.
(0 City Bank vs. Bangs, 2 Paige, Ch. 570.
iu) City Bank vs. Bangs, 3 Paige, Ch. 570 ; Leonard vs. Jamison, 2 Edw.
Ch. 136.
iv) Yates vs. Tisdale, 3 Edw. Ch. 71 ; see Atkinson vs. Manks, 1. Cow.
691.
(w) Surry vs. WaltJiam, 2 Anst. 539, note ; Meux vs. Bell, 6 Sims. 175 ;
Mohawk & Hudson R. It. Co. vs. Clute, 4 Paige, Ch. K. 384 ; Shaw vs. Ches-
ter, 2 Edw. Ch. R. 405.
{x) Sieveking vs. Behrens, 2 My. & Craig, 581 ; Well Eq. PI. 156 ; 2 Barb.
Ch. Pr. 123.
{jj) Warrington vs. Wheatstone, Jacob, 205.
(z) Id. Vicary vs. Widger, 1 Sim 15.
BILL OF INTERPLEADEE. 289
Form of Order for Injunction — Taking Bill as Confessed.
No. lllf,. Order for injunction on hill of interpleader.
{Caption, and title of cause as in No. 79, ante, page 198.)
On filing bill of interpleader in this canse, duly verified, and
an aftidavit of non-collusion, it is ordered that an injunction
issue pursuant to the prayer of said bill, upon the complainant
paying into the hands of the register {or clerh) of this court,
the sum of dollars mentioned in the said bill.
Taking hill as confessed. — If one of the defendants does not
appear, the bill may be taken as confessed as to him. {a) And
where this is done, if such defendant is an absentee, the other
defendant who appears, will not be entitled to the possession of
the fund until the expiration of the time limited by the statute
for the absent defendant to appear ; unless he gives security to
repay the money in case the absent defendant appears and estab-
lishes his right, (b)
" If a defendant permits a bill of interpleader to be taken as
confessed against him, it is an admission that, as to him, the
bill was properly filed, and that he has made an improper claim
against the fund, {c)
Where one of the defendants is out of the jurisdiction, the
complainant is bound to bring him within the jurisdiction in a
reasonable time ; and if he omits to do so, the other defendant
is, upon indemnifying the complainant against those out of
the jurisdiction, entitled to the thing in dispute. If the com-
plainant has used due diligence to bring the party within the
I'urisdiction, the court will not permit such party afterwards to
proceed at law. {d)
The court will not actively interfere to dispose of a fund,
except in favor of one who appears, either from proof or a pro
confesso, to be best entitled, {e)
(a) FarehrotTier vs. Prattent, Dan. R. 64.
(6) 2 Barb. Ch. Pr. 123-124 ; Aymer vs. Gaunt, 2 Paige, Ch. R. 284.
(c) Badeau vs. Rogers, 2 Paige, Ch. 209.
{d) Stevenson vs. Anderson, 2 Ves. & Bea. 411 ; Welt Eq. PI. 157.
(e) Pillow vs. Aldridge, 4 Humph. 287.
19
290 BILL OF INTERPLEADEE.
Evidence — Hearing and Decree.
Evidence. — In an interpleading suit the answer of one of
the defendants may be read against the other, {f) Upon the
hearing in snch suit evidence is admissible to show that the
complainant has retained possession of the subject of the suit
under an indemnity from some of the defendants, {g)
SECTION V.
HEAEESTG AND DECREE.
The court disposes of the questions arising upon bills of
interpleader in various modes, according to the nature of the
question, and the manner in which it is brought before the
court. It has been already mentioned that if the defendants,
or either of them, deny the allegations in the bill, or set up
distinct facts in bar to the suit, the complainant must reply,
and close the proofs in the usual manner before he can bring
his cause to a hearing. But where the defendant admits facts
stated in the bill, and on which the right to file such a bill
rests, and sets up no new facts as against the complainant, or
in bar of his suit, it seems to be sufficient for him to file a
replication, and to set the case down for a decree to interplead,
without waiting until the proofs are taken as between the
defendants. (A)
An interpleading bill is seldom brought to a hearing. (^)
If a cause is ripe for a decision between the defendants, as
well as between them and the complainant, the court settles
the conflicting claims of the parties, and makes a final decree
on the first hearing. But if it is not in readiness for a de-
cision as between the defendants, the court merely decides that
the bill is properly filed, and dismisses the complainant with
his costs up to that time, and directs an action to be brought,
(/) Bowyer vs. Pitchard, 11 Price, 103.
{g) 2 Barb. Ch. Pr. 124 ; Statham vs. Hall, Tur. & Russ. 30.
{h) City Bank vs. Bangs, 2 Paige, Ch. R. 570 ; Welf . Eq. PI. 157 ; 2 Barb
Ch. Pr. 124.
(»} Martinius vs. Helmuth, 2 Ves. & Bea. 413.
BILL OF INTEEPLEADER. 291
Hearing and Decree — Costs.
or an issue, or a reference to the master, to ascertain and settle
the rights of the defendants to the fund in controversy. (J)
The parties defendant stand before the court to litigate the
questions of right pending between them, to the same extent,
as if one had brought suit against the other, predicated upon
the same matter and for the same question, (k) And upon a
reference to a master to settle the rights of the defendants as
between themselves, the court will give them the benefit of a
discoverj as against each other, if they, or either of them,
desire it. (J)
A decree that the bill of interpleader is properly filed is the
only decree that the complainant is interested in obtaining, (m)
And there must be a decree to sustain the further proceedings.
But if the complainant dies after decree, no bill of revivor is
necessary, (n)
If after answer by both defendants, one makes default at the
hearing, the court will make a decree on hearing the case of
the defendant who appears, (o)
If a decree goes on to order a reference to a master by con-
sent of parties, upon principles calculated to adjust the rights
of those called upon to interplead, it will be considered a sub-
stitute for the ordinary proceedings by actual interpleader, (p)
Costs. — Where a bill of interpleader is properly filed, the
complainant is, in general, entitled to his costs out of the
fund, (q) They are to be paid, in the first instance, by the
party entitled to the fund, but eventually by the other, (r)
( j) Angell vs. Eadden, 16 Ves. 203 ; City Bank vs. Bangs, 2 Paige, Ch.
R. 570; Welf. Eq. PI. 157-158; 3 Barb. Ch. Pr. 124-125; Barton's Suit in
Eq. 69.
{k) Morton vs. Baptist Oh. etc. 34 Vt. 309.
{I) City Bank vs. Bangs, 2 Paige, Ch. 570.
(m) Atkinson vs. Manks, 1 Cow. 691.
{n) Jennings vs. Nugent, 1 Moll. 134 ; Anon. 1 Vern. 351.
{o) Hodges vs. Smith, 1 Cox's Ca. 357.
{p) Atkinson vs. Manks, 1 Cow. 691.
(g) Aymer vs. Oault, 2 Paige, Ch. R. 284 ; Spring vs. South Carolina Ins
Co. 8 Wheat. 268 ; Mason vs. Hamilton, 5 Sim. 19 ; Campbell vs. Solomons, 1
Sim. & Stu. 462; Atkinson vs. Manks, 1 Cow. 691.
(r) Canfield vs. Morgan, Hopk. 224 ; Tliompson vs. Ebbetts, Hopk. 272.
292 BILL OF INTERPLEADEE.
Costs — Form of Decree, etc.
Where a bill is unnecessarily filed, however, the complain-
ant will not be allowed his cost out of the fund, (s) He will
be entitled to his costs only in those cases where the bill is
necessarily and properly filed as against both defendants, (t)
But if one of the defendants sufiiers the bill to be taken as con-
fessed against him, he will be personally charged with all the
costs which have been produced in consequence of his unjust
claim upon the fund, {u)
Under special circumstances, the defendants will be allowed
to have their costs respectively, to be deducted from the
fund, (v)
JVo. 115. Interlocutory decree on a hill of ititerplead&r,
directing a reference to master.
[ Caption^ and title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard, this day, upon the bill of
interpleader filed therein, the answers of the defendants, and
the replication thereto ; and the court having heard the argu-
ments of the counsel for the respective parties, and upon con-
sideration thereof, it is ordered, adjudged, and decreed that the
said bill of interpleader is properly filed, and that the defend-
ants do interplead and settle the matters in controversy in this
suit between themselves; and for that purpose it is ordered,
adjudged, and decreed that it be referred to the master in cljan-
cery of this court, to inquire and report which of the defend-
ants is entitled to the fund in controversy, and which has been
deposited with the register [or clerk) of this court. And if the
said master shall be of opinion that any two or more of the
defendants are equitably entitled to share in the same, that he
also ascertain and report what portion of the fund belongs to
each. And it is further ordered that previous to the examina-
tion of any witnesses before the said master, either of the j^arties
may present to such master, on oath, a written statement of
his claim, and of the facts and circumstances on which it is
founded ; which statement shall be answered on oath by all the
other defendants, to the satisfaction of the said master, and with
the like efifect, as if such answer was filed to a bill of discovery.
(s) Bedell vs. Hoffman, 2 Paige, Ch. 199.
(t) Badeau vs. Rogers, 2 Paige, Ch. R. 209.
(m) Badeau vs. Rogers, 2 Paige, Ch. 209 ; 2 Barb. Ch. Pr. 136.
(c) Atkinson vs. Manks, 1 Cow. 691.
BILL OF INTEKPLEADEK. 293
Form of Decree, etc.
And upon such reference, either part}' is to be at liberty to
summons witnesses and proceed before said master in such
manner as said master shall direct ; and that the solicitor of
each defendant have notice of all proeeedincjs before the said
master. And it is further ordered, adjudged, and decreed, that
the complainant be dismissed with his costs of this suit up to
this time, to be taxed, to be paid out of the said fund in court.
And this court reserves the consideration of all questions of
costs as between the defendants, and all other questions and
directions, until the coming in of the master's report ; but with
liberty to either party to apply for such other instructions or
directions to the master as may be necessary or proper, pending
the reference, {w)
{w) See City Bank vs. Bangs, 2 Paige, Ch. R. 573 ; Seaton on Decrees,
889.
CHAPTER XXIII.
BILLS AND PETITIONS TO PERPETUATE TESTIMONY.
Section 1. Natuke of the PROCEEDrsros.
2. Frame of a Bill to Perpetuate Testimony
3. Defenses, and Proceedings.
4. Petition to Perpetuate Testimony.
SECTION I.
NATURE OF THE PROCEEDINGS,
A bill to perpetuate testimony is used where there is reason
to fear that the evidence necessary to establish facts, which will
probably become the subject of controversy at a future period,
may become lost by the death, or absence from the country of
a material witness, {a) But such bills will not generally be
entertained for the purpose of being used upon a future occa-
sion, unless where it is absolutely necessary to prevent a failure
of justice. (&) If it be possible that the matter in question can,
by the party who tiles the bill, be made the subject of imme-
diate judicial investigation, no such is entertained. (<?)
SECTION II.
FRAME OF A BILL TO PERPETUATE TESTIMONY.
The bill should state all the material facts which are necec-
sary to maintain the jurisdiction. It must, in the first place,
state the subject matter, touching which the complainant is
desirous of giving evidence, {d) Thus, for example, if the
(a) Barton's Suit in Eq. 73 ; Story's Eq. PI. § 300 ; Welf. Eq. PI. 139 ; 3
Barb. Cli. Pr. 136 ; 1 Coop. Eq. PI. 52 ; Mitf. Eq. PI. 148.
(6) Bellamy vs. Jones, 8 Ves. 31 ; Shelby vs. , 13 Ves. 56 ; see also
Angell vs. Angell, 1 Sim. & Stu. 89.
(Cj Van Hey. Eq. Drafts. 358.
{d) Mitf. Eq. PI. 51 ; Barton's Suit in Eq. 74 ; Allan vs. Allan, 15 Ves.
130 ; Knight vs. Knight, 4 Mad. R. 1.
PEKPETUATION OF TESTIMONY. 295
Frame of Bill, etc.
object of the bill is to perpetuate the testimony of the wit-
nesses to a deed respecting real estate, the deed should be
properl_y described, and the names of the witnesses, who are to
prove the same, be set forth, {e) And if the object of the bill
is to perpetuate the evidence of witnesses to facts in pais, it is
not sufficient to state generally, that they can give evidence as
to certain facts ; but the bill must state specially, what these
facts are. (/")
The bill must show an interest on the part of the complain-
ant in the subject matter sufficient to entitle him to the aid of
the court ; for unless he has some interest, he is not entitled to
maintain the bill. (</) A mere expectancy, however strong, is
not sufficient ; but the party must have a positive interest. (A)
It is also indispensable to a bill of this kind, that it should
state that the defendant has, or pretends to have, a title, or that
he claims an interest to contest the title of the complainant in
the subject matter of the proposed testimony, (i) For unless
the defendant has, or claims some such interest, it is utterly
fruitless to perpetuate the testimony ; since it can have na
operation on those who are real parties in interest.
It must also be shown that there is some ground of necessity
for perpetuating the evidence ; as that the facts to which the
proposed testimony relates cannot be immediately investi-
gated in a court of law ; or if they can be so investigated, that
the sole right of action belongs exclusively to the other party y
or, that the other party has interposed some impediment to^
an immediate trial of the right in the suit at law, so that before
the investigation can take place, the evidence of a material wit-
ness is likely to be lost by his death or departure from the
(e) Story's Eq. PI. § 300.
(/) Id. ; Kmght vs. Knight, 4 Mad. R. 8, 10 ; 2 Barb. Ch. Pr. 137.
(g) Coop. Eq. PI. 52 ; 2 Story's Eq. Juris. § 1511 ; Lord Dersley vs. Mtz-
Hardinga Berkley, 6 Ves. 251 ; Allaii vs. Allan, 15 Ves. 180.
(A) Id. lb. ; 1 Fowler, Exch. Pr. 384 ; Mitf. Eq. PI. 51 ; Coop. Eq. PI.
52-54 ; Saekville vs. Ayleworth; 1 Vern. 105.
{i) Mitf. Eq. PL 53 ; Story's Eq. PI. § 302 ; Barton's Suit in Eq. 74 ; Coop.
Eq. PI. 56; 1 Mont. Eq. PI. 271; Shirley vs. Ferrers, 3 P. Wms. R. 77 ;.
Brandleigh vs. Ord, 1 Atk. 577.
296 PERPETUATION OF TESTIMONY.
Frame of Bill, etc.
country, {j) In the former case tlie bill must allege that the
complainant is in possession of the property, or the right, with-
out any disturbance by the other party, upon which an action
at law can be founded, (k) In the latter case the bill must
allege the specific facts on which the complainant puts his case ;
and also that the witnesses are old or infirm, or in ill health,
and not likely to live, {l) Without such allegations the bill
will be clearly demurrable. (?/i)
Where a bill is framed on the ground that the testimony
of a witness may be lost by his death or departure from the
country, before the case can be investigated in a court of law,
it seems proper also, in order to avoid objection, to annex to
it an affidavit of the circumstances by which the evidence
intended to be perpetuated is in danger of being lost, {n) But
where the bill is sworn to it seems that it will be sufficient to
state the circumstances in the bill ; and in that case no affidavit
will be necessary, (o)
The prayer of the bill requires attention. It should pray
leave to examine witnesses touching the matters stated, to the
end that their testimony may be preserved and perpetuated, {p)
It should also pray the proper process, but it should not pray
that the defendant may abide such order and decree as the
court shall think proper to make, for that will turn it into a
bill for relief, which is inconsistent with the nature of a bill
(jO 1 Mitf. Eq. PI. 52, 148 ; JSTortJi vs. Grai/, 1 Dick. R. 14, 55 ; Ch. Pr.
531 ; Story's Eq. PL § 303 ; Anr/ell vs. A7igeU, 1 Sim. & Stu. 83.
(k) Coop. Eq. Pi. 53; Wyatt, Pr.Reg. 74; GaniiYs. Cann, 1 P.Wms.568.
{I) Mitf. Eq. PI. 52 ; Story's Eq. PI. § 303 ; 1 Sim. & Stu. 93 ; Mtzhugh
vs. Lee, Amb. G5.
(7/i) Story's Eq. PI. § 303 ; see Pearson vs. Ward, 1 Cox, 177.
in) Earl of Suffolk vs. Green, 1 Atk. R. 450 ; 2 Barb. Cb. Pr. 141 ; Mitf.
Eq. PI. 52, 150 ; Story's Eq. PL g 304 ; Phillips vs. Caretc, 1 P. Wms. R. 117 ;
Shirley vs. Ferrers, 3 P. Wms. R. 77.
(o) 2 Barb. Cb. Pr. 141.
(p) Mitf. Eq. PL 51 ; Story's Eq. PL J^ 306 ; 2 Barb. Cb. Pr. 141 ; Coop.
Eq. PL 52.
PERPETUATION OF TESTIMONY. 297
Form of Bill, etc.
to perpetuate testimony, {q) If tlie bill should pray relief, it
will be demurrable, and may be dismissed for this cause, (r)
Care should be taken not to mix up in the bill matters
which may require very d liferent decretal orders as to the pub-
lication of the testimony, otherwise it will be demurrable, {s)
JVo. 116. Bill to i^erjyehbate testimony.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto your
honor, that one C. D., late of, etc., was in his lifetime, and at
the time of his death, seized in fee simple of the following de-
scribed real property, to \\\\. : {Here insert description /) and
being of sound mind and memory, made his last will and
testament in writing, which was duly executed and attested by
E. F. and G. H., of, etc., two credible persons, which said
will, with the attestation thereof, is in the words and figures
following, to-wit : {Here set forth copy of the will., etc. /) as by
the said will, when produced in court, will more fully appear.
Your orator further represents that afterwards, on, etc., the
said C. D. departed this life, without revoking or altering his
said will, or any part thereof; whereupon your orator by virtue
of the said will, became entitled in fee simple to all of the said
described premises, subject to the payment of so much of the
debts and funeral expenses of the said C. D. as his personal
estate may fall short of paying ; and your orator accordingly,
soon after the death of the said C. D. entered into possession
of the said premises, and now has the exclusive use and control
of the same, with the rents and profits thereof. And your
orator well hoped that he and his heirs and assigns would have
been permitted to enjoy the same quietly, without any inter-
ruption from any person whomsoever. But now so it is, may
it please your honor, that E. D., of, etc., the defendant herein-
after named, who claims to be a brother and heir at law of the
[q) Rose vs. Oannell, 3 Atk. R. 439 ; Vaughan vs. Fitzgerald, 1 Sch.
& Lef. 316 ; Jerome va. Jerome, 5 Conn. R. 352 ; Coop. Eq. PI. 52 ; Stoi-y's Eq
PI. § 306.
(r) Dalton vs. Thompson, 1 Dick. R. 98 ; Story's Eq. PI. § 30(5 ; 2 Barb.
Ch. Pr. 142.
is) Dew vs. Clark, 1 Sim. & Stu. R. 108 ; Story's Eq. PL § 306 ; 2 Barb.
Ch. Pr. 142 ; Well Eq. PL 140.
298 PEKPEIUATIUX OF TESTIMONY.
Form of Bill — Defenses, and Proceedings.
said C. D., pretends that the said C. D. did not make and exe-
cute such hist will and testament in writing, or that he was not
of sound mind and memory at the time of the execution there-
of, or that the same was not executed in the form and manner
required by law ; and therefore he insists that }our orator has
no right or title to the said premises, or any part of the same,
but that on the death of the said C. D. the same descended
unto the said E. D., as heir at law of the said C. D. "Whereas
your orator charges the contrary of such pretenses to be true.
Yet the said E. JD. refuses to contest the validity of the said
will during the lifetime of the subscribing witnesses thereto,
and he threatens that he. will hereafter dispute the validity of
the said will when all the subscribing witnesses are dead, or
gone out of the country, whereby your orator and his heirs and
assigns will be deprived of the benefit of their testimony.
Y'^our orator further represents, that the said E. F. and G. H.,
the subscribing witnesses to the said last will and testament,
are both aged and infirm, both being above the age of seventy
years, and are not likely long to live, and your orator is in
danger of being deprived of the benefit of their testimony in
relation to the execution of said will, and the state of the mind
and memory of the said C. D. deceased.
Forasmuch, therefore, as your orator is without remedy in the
premises, except in a court of equity ; and to the end that the
said E. D., who is made a part}^ defendant t6 this bill, ma}^ be
required to make full and direct answer to the same, and show
why your orator should not have the testimony of the said
witnesses E. F. and G. H. perpetuated ; and that your orator
may be at liberty to examine the said witnesses witii respect to
the execution and attestation of the said will, and the sanity
of mind of the said C. D. at the time of the making of the
same, so that their testimony may be perpetuated and pre-
served.
May it please your honor, etc. {Pray process as in No. 86,
ante, page W9, and add affidavit, as iji No. 118, post, 301.)
SECTION III.
DEFENSES. AND PKOCEEDINGS.
The defense to a bill to perpetuate testimony is the same a8
in other eases, by demurrer, plea or answer, according to the
nature of the case. To a bill to prove a will, and to perpetuate
testimony, the defendant may plead that he is a purchaser
PEIiPETUATION OF TESTIMONY. 299
Defenses to Bill — Demurrer — Answer.
without notice of the will, and insist that if the complainant
has a title, he may immediately proceed at law. {t)
Demurrer. — A demurrer will seldom lie to a hill of this
natnre. (w) But if it clearlj' appears that the jurisdiction does not
arise upon the case made by the bill, a demurrer will hold, (-v)
As where specific allegations of the facts upon which the com-
plainant claims the aid of the court are not made by the bill, iw)
So if a bill prays relief it will be demurrable, (a?) But it has
been held that where relief and discovery prayed by the bill
were both demurrable, the defendant could not demur to so
much of the bill as sought to perpetuate testimony. (^)
If the bill contains matters which may require very different
decretal orders as to the publication of the testimony, it will be
liable to demurrer. (2)
Answer. — An answer may be filed as in other cases. The
complainant compels the defendant to answer, and the suit is
proceeded with in the usual way, by filing a replication and
issuing a commission for the examination of witnesses. («)
If the cause should be improperly brought to a hearing, it
will be dismissed. But the depositions taken will still be used
as evidence, even though the bill is dismissed. (Z>)
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 ; (<?)
(rt) Batten on Spec. Perf. of Cont.; see Taylor y?,. Merrill, 55 111. 52;
Fitch vs. Boyd, Id. 307; Fleming vs. Ccp-ter, 87 111. 565.
(6) Jackson vs. Ashton, 11 Pet. 239; 'Seymour vs. Delattcey, 6 Johns. Ch.
R. 222; Clitherall vs. Ogllvie, 1 Dessau. 250; BarJcsdale vs. Payne, Riley, Cb.
174; Gasque vs. Small, 2 Strobh. Eq. 72; Henderson vs. Hays, 2 Watts, 148.
(c) McComas vs. Easley, 21 Gratt. Va. 23; Wynn vs. Smith, 40 Geo. 457;
Race vs. Weston, 86 111. 91; McCormick ys. Sage, 87 111. 484; Kerfoot vs.
Breckenridge, 87 111. 105.
318 BILLS FOE SPECIFIC PERFORMANCE.
Nature of, and When Proper.
and it is not decreed where there has been long delay, or laches^
or a material change of circumstances, (c?) The discretion
of the court is not, however, an arbitrary one, but is regulated
by rules and principles, {e)
The contract must be free from fraud or surprise, and fair
and just in all its parts, or the complainant will be left to his
remedy at law. (/") And a performance will not be decre'ed on
an imperfect, inchoate, or hard bargain, {g) There must also
be mutuality and reciprocity of obligation. (A)
A court of equity will not decree the specific performance
of a contract, the consideration of which is a wager upon an
election. {%)
Upon principles of natural justice, a person ought not to be
compelled to part with his title to land until he has received
the amount which he had contracted to take for it, nor should
(d) Pigg vs. Corder, 12 Leigli, 69 ; Rector vs. Rector, 3 Gilm. 105 ;
MUnor vs. Willard, 34 111. 38 ; Hough vs. CougMan, 41 111. 130 ; lliompson
vs. Bruen, 46 111. 125 ; Fitch vs. Boyd, 55 111. 307 ; Iglehart vs. Gibson, 56 111.
81 ; Holt vs. Rogers, 8 Pet. 420 ; Houghton vs. Murphy, 21 N. J. Eq. 118-
Harhness vs. Underhill, 1 Black, 316; Johns vs. Norris, 22 N. J. Eq. 102-
Norris vs. Knox, 1 Pittsb. Pa. R. 56.
(e) Griffith vs. Frederick Co. Bank, 6 Gill & J. 424 ; Quinn vs. Roath, 37
Conn. 16 ; Meeker vs. Meeker, 16 Conn. 403 ; Seymour vs. Delancey, 3 Cow.
445 ; yS. C. 6 Johns. Ch. R. 222 ; King vs. Morford, Saxton, 274 ; Anthonys a
Leftwick, 3 Rand. 238 ; Prater vs. Miller, 3 Hawks, 629 ; Turner vs. Clay, 3,
Bibb, 52 ; Frisbie vs. Ballance, 4 Scam. 287 ; Broadwell vs. Broadwell, 1
Gilm. 599 ; Dougherty vs. Hampston, 2 Blackf. 273 ; Leigh vs. Crump, 1
Ired. Ch. 299 ; Gould vs. Womack, 2 Ala. 83 ; Hester vs. Hooker, 7 S. & M.
768 ; Tobey vs. County of Bristol, 3 Story, 800 ; Clement vs. Reid, 9 S. & M.
535 ; Tyson vs. Watts, 1 Md. Ch. Decis. 13.
(/) Seymour vs. Delancey, 3 Cow. 445 ; Griffith vs. Frederick Co. Bank,
6 Gill & J. 424 ; Borten vs. Scheffer, 21 Gratt. Va. 474 ; Modesett vs. Johnson,
2 Blackf. 431 ; Johnson vs. Dodge, 17 111. 433 ; Lear vs. Choteau, 23 111. 39 ;
Boomer vs. Cunningham, 22 111. 320 ; Taylor vs. Merrill, 55 111. 52 ; Lee vs.
Kirby, 104 Mass. 420.
{g) Ohio vs. Baum, 6 Ham. 383 ; McClellan vs. Darrdh, 50 111. 249.
{Ji) McMurtrie vs. Bennett, Harring. Ch. 124 ; Hawley vs. Sheldon, Id. 420;
Hutchenson vs. McNutt, 1 Ham. 14 ; Cabeen vs. Gordon, 1 Hill, Ch. 51 ; Bene-
dict vs. Lynclb, 1 Johns. Ch. R. 370 ; Ohio vs. Baum, 6 Ham. 383 ; Marble Co.
vs. Ripley, 10 Wallace, 339 ; Ewins vs. Gordon, 49 N. H. 444.
(i) McClurken vs. Detrich, 33 111. 349.
BILLS FOR SPECIFIC PERFORMANCE. 319
Nature of, and When Proper.
a person receive a title until he has paid what he agreed to pay
for it. ( J?')
Where a party has failed withont sufficient excuse, to execute
his part of the contract, and there has been no acquiescence in the
delay, by the other party, the court will not decree specific per-
formance. But if one paily has been prevented, by any good
cause, from performing his part of the agreement, at the stipu-
lated time, and the other party has suffered no material injury
by the delay, the court will not refuse its aid. (h)
A party seeking the specific performance of a contract for
the sale and conveyance of a tract of bind, cannot excuse him-
self for not tendering the purchase money when due, upon the
ground that the vendor has conveyed the land to a third
pei'son. {])
A party cannot com^^el the specific performance of a contract,
unless he shows that he himself has specifically performed, or
can justly account for the reason of his non-performance, (m)
He must show that he has not been in fault, but has taken all
proper steps toward performance on his part, and has been
ready, desirous, and prompt, to perform, {n)
If one party has been in default, and specific execution would
be injurious to the other party, it will not be decreed, {p) But
a failure to perform a merely nugatory act, is not material. (^)
{j) Allison vs. Clark, Breese, 348 ; Doyle vs. Teas, 4 Scam. 202 ; Ishmeal
vs. Parker, 13 111. 324.
{k) Longworth vs. Taylor, 1 McLean, 395 ; WJiite vs. Law, 7 Vt. 357
Cleveland vs. Benton, 11 Vt. 138; Ooodell vs. Field, 15 Vt. 448; Hatch vs
Cdbh, 4 Johns. Ch. R. 559 ; Lewis vs. Woods, 4 How. Miss. 86.
(?) Doyle vs. Teas, 4 Scam. 202 ; see Shortall vs. Mitchell, 57 111. 161.
(m) Scott vs. Shepherd, 3 Gilm. 483 ; Brown vs. Cannon, 5 Gilm. 174
Warren vs. Richmond, 53 111.52; Walts vs. Waddle, 6 Pet. 389; Oreenup
vs. Strong, 1 Bibb, 590 ; Bearden vs. Wood, 1 A. K. Marsh. 450 ; Logan vs
McChord, Id. 224 ; Moore vs. Skidmore, 6 Litt. 453 ; Clay vs. Turner, 3 Bibb
52; Iglehart vs. Gibson, 56 111. 81; Crane vs. Decamp, 21 N. J. Eq. 414:
Howe vs. Rogers, 32 Texas, 218.
(w) Rogers vs. Saunders, 16 Maine, 92 ; Brown vs. Haines, 12 Ohio, 1 ;
Doyle vs. Teas, 4 Scam. 202 ; Kendall vs. Almy, 2 Sumner, 278.
{o) Vail vs. Nelson, 4 Rand. 478 ; Brashier vs. Oratz, 6 Wheat. 528 ; Bee
Taylor vs. Longworth, 14 Pet. 172 ; AM vs. Johnson, 20 How. U. S. 511.
(p) Coale vs. Barney, 1 Gill & J. 324.
320 BILLS FOR SPECIFIC PERFORMANCE.
Nature of, and When Proper.
Although great lapse of time will not be a bar, where the
complainant has been in no default, and has been reasonably
active during the whole time, in asserting his rights, and
endeavoring to enforce performance ; {q) yet, where no effort
had been made by a vendee in his lifetime, nor by his heirs,
after his death, until twenty-nine years had elapsed, and the
land had risen in value, and other circumstances had occurred,
the lapse of time was held a conclusive bar. (r) On the gen-
eral subject of delay, the cases cited in the note below are
important, {s)
In an ordinary contract for the sale of land, where credit is
given and a conveyance is to be made on the payment of the
last installment, where time is not expressly the essence of the
contract, a court of chancery maj^, in its discretion, enforce the
performance of such a contract, although the payments may
not have been promptly made. But in so doing the court will
inquire into all the circumstances attending the delay, and the
conduct of the parties. {£) Chancery has no power to enforce a
specific execution of a contract contrary to the clearly expressed
intention of the parties, {u)
(q) Coulsoii vs. Walton, 9 Pet. 62.
(r) Holt vs. Rogers, 8 Pet. 420.
(s) Pratt vs. Carroll, 8 Cranch, 471 ; Williams vs. Mattocks, 3 Vt. 189 ;
Miller vs. Bear, 3 Paige, Cli. R. 466 ; Waters, vs. Trams, 9 Johns. R. 450 ;
Jackson vs. Edwards, 22 Wend. 498 ; Smedley vs. Moore, 26 Wend. 238 : New
Barhadoes Toll Bridge vs. Vreeland, 3 Green, Ch. 157 ; Haffner vs. Dickson,
2 Har. & J. 46 ; Bichardson vs. Baker, 5 Call. 514 ; Williams vs. Lams, 5 Leigh,
686 ; McGalliard vs. Aiken, 2 Ired. Ch. 186 ; Falls vs. Carpenter, 1 Dev. &
Bat. Ch. 237 ; Strickland vs. Fowler, Id. 629 ; Osborne vs. Bremar, 1 Dessau.
486 ; Koen vs. White, Meigs, 358 ; Craig vs. Leiper, 2 Yerg. 193 ; Bracken vs.
Martin, 3 Id. 55 ; Childress vs. Holland, 3 Hey. 274 ; McMillin vs. McMillin,
7 Monr. 560 ; Johnston vs. Mitchell, 1 A. K. Marsh. 225 ; Logan vs. McChord,
2 Id. 224 ; Eubank vs. Hampton, 1 Dana, 343 ; Broaddus vs. Ward, 8 Mo. 217 ;
Scott vs. Barker, 14 Ohio, 547 ; Mason vs. Wallace, 3 McLean, 148 ; Tieman
vs. Boland, 8 Harris, 429 ; De Cordova vs. Smith, 9 Texas, 129 ; Smith vs.
Hampton, 13 Id. 459 ; Milnor vs. Willard, 34 111. 38 ; Rose vs. Swan, 56
111. 37.
{t) Olover vs. Fisher, 11 111. 6fi6 ; Murphy vs. Lockwood, 21 111. 615 ;
Snyder vs. Spaulding, 57 111. 480 ; Mason vs. Wallace, 3 McLean, 148 ; S. C. 4
McLean, 77.
(«) Kemp vs. Humphreys, 13 111. 573 ; Stow vs. Robinson, 24 111. 532.
BILLS FOE SPECIFIC PEKFOIiMANCE. 321
Nature of, and Wlien Proper.
It is a general rule, that the terms of the contract must be
clear, definite, and positive, and its terms must be such that
neither party could reasonably misunderstand them ; nor should
it be vague or uncertain in any of its essential particulars, (v)
Where a party has so far performed his part of a contract,
that he cannot be put in statu quo, he is entitled to a specific
performance, and it is not necessary to show a literal perform-
ance on his part, unless such performance goes to the essence ol
the contract, (w)
Where specific performance has become impossible, as from
a subsequent sale of the subject matter of it, without notice,
courts of equity will not decree a specific performance, though
the bill may perhaps be retained for awarding compensation in
damages, {x)
Specific performance will not be decreed, at the instance of
the vendor, unless his ability to make title be unquestionable, {y}
to all the lands contracted for. (s) And a court of equity will
not force a doubtful title on a purchaser, {a)
Before a vendor can declare a forfeiture, he must be able to
tender a deed in accordance with his bond, (5)
If, from the vendor's negligence or default, the property be-
comes encumbered by judgments, taxes, forfeitures or other-
wise, before the time for conveying the same, or before he
{v) Colson vs. Thompson, 2 Wheat. 336 ; Garr vs. Duval, 14 Pet. 77
Prater vs. Miller, 3 Hawks, 628 ; Montgomery vs. Norris, 1 How. Miss. 499
Waters vs. Brown, 7 J. J. Marsh. 123 ; Mtzpatrick vs. Beatty, 1 Gilm. 454
Pigg vs. Corden, 12 Leigh, 69 ; Millard vs. Mamsdell, Harring. Ch. 373.
(w) McCarkle vs. Brown, 9 S. & M. 167 ; VoorJiees vs. DeMeyer, 2 Barb..
R. 37 ; SJiaw vs. Livermore, 2 Green, N. J. Ch. 338.
(x) Woodward vs. Harris, 2 Barb. R. 439 ; Buttrick vs. Holden, 13 Met.
355 ; see Oliver vs. Croswcll, 42 111. 41 ; Fallon vs. Railroad Co. 1 Dillon, 121 ;
see Wallace vs. McLaughlin, 57 HI. 53.
iy) Garnett vs. Mason, 2 Brockenbrough's R. 186 ; S. G. 6 Call, 308 ; Mor-
gan's Heirs vs. Morgan, 2 Wheat. 290 ; Bank of Golumbia vs. Hagner, 1
Pet. 455.
(z) Hepburn vs. Auld, 5 Cranch, 262.
{a) Watts vs. Waddle, 6 Pet. 389 •,8.G.l McLean, 200 ; 8oheir vs. Williams^.
1 Curtis, 479.
(6) Baker vs. Bishop Hill Colony, 45 HI. 264; Mix vs. Beach, 46 IlL 811 ;
but see Boston vs. Nichols, 47 HI. 353.
21
332 ^ BILLS FOR SPECIFIC PERFORMANCE.
Nature of, and When Proper. »
offers to perform his contract, he cannot insist on performance
bj the otlier party until he relieves the title from such subse-
quent encumbrances. (<?)
The right of a purchaser of land from two joint owners, to
have a specihc performance of the contract cannot be impaired
by reason merely that one of the vendors has failed to comply
with an agreement with the other in respect to the subject
matter of the contract, {d)
Although courts of equity will enforce specifically, contracts
relating to personalty, in many cases, yet they will weigh with
greater nicety contracts of this description than such as relate
to lands, {e) And if a breach of a contract relating to per-
sonal property may be compensated by damages, equity will
not, as a general rule, interfere, {f) The transfer of stock will
not always be decreed, {g) Though a contract for insurance, or
for the delivery of a policy of insurance by the company, will
be enforced, even after a loss, {h)
An agreement to sing at concerts will not be specifically
enforced. (?") And a husband will not be compfelled, specifically,
to perform an agreement to procure his wife to join him in a
conveyance of real estate, {j ) And where a wife refuses to
execute a contract by her husband and herself, to convey her
land, he will not be compelled to convey his wife's estate to the
purchaser, to make compensation for the principal estate, [k)
(c) Cooper vs. Tyler, 46 111. 463 ; see Brown vs. Cannon, 5 Gilm. 174.
(d) Eardmg vs. Parsliall, 56 111. 219.
(e) Mechanic's Bank vs. Beaton, 1 Pet. 299.
(/) Cowles vs. Whitman, 10 Conn. 121 ; Hoy vs. Hansborough, 1 Freem. Ch.
633 ; Caldwell vs. Myers, Hardin, 551 ; Phillips vs. Berger, 2 Barb. E. 608 ;
Ba/oery vs. Spence, 13 Ala. 561 ; Sullivan vs. Tuck, 1 Md. Ch. Decis. 59 ;
Waters vs. Howa/rd, Id. 112 ; Roundtree vs. McLain, 1 Hemp. 245 ; The Jus-
tices vs. Croft, 18 Geo. 473.
ig) Ferguson vs. Paschall, 11 Miss. 267 ; Ross vs. Union Pacific R. R. Co.
1 Wool. 26.
{h) Taylor vs. Merchant's Mre Ins. Co. 9 How. U. S. 390 ; see Carpenter
vs. Mutual Safety Ins. Co. 4 Sandf. Ch. 408; Commercial Miitual M. Ins. Co.
vs. Union Mutual Ins. Co. 19 How. U. S. 318 ; S. C. 2 Curtis, C. C. R. 524.
(t) Sanquirico vs. Benedetti, 1 Barb. 315.
{j) Clark vs. Savier, 7 Watts, 107 ; Weed vs. Terry, 2 Doug. 344.
(A) Clark vs. Reins, 12 Gratt. Va. 98.
BILLS FOR SPECIFIC PERFORMANCE. 323
Nature of, and When Proper — Lost Instruments.
The specific performance of a mere voluntary agreement will
not be enforced ; (Z) a voluntary settlement will, however, be en-
forced, at the instance of a child, against the heir, if the former
have the preferable equity ; (??^) and it has been held that a
voluntary agreement, if executed, w^ould be aided in ecpity. (^)
A contract to build a railroad will not be enforced in equity. (<?)
A contract to build a hotel, at joint risk and expense, was
enforced, where one of the parties had performed his part of
the contract, {j))
A specific performance of a contract, to indemnify against a
pecuniary liability, may be enforced, {q)
The fact that damages may be recovered at law, is no reason,
of itself, why performance should not be decreed ; (r) nor is the
commencement of a suit at law, of itself, a bar. is) Perform-
ance may be decreed, in a proper case, where the party has lost
his remedy at law. {t) But specific performance of a contract
will not be decreed, where the law would not allow damages, {u)
In applications for specific performance of agreement, it is
immaterial what the form of the instrument is, whether it is a
covenant or a penal bond, with a condition to do the thing, {v)
Lost instrument. — A specific performance of a contract for
the sale of land will be decreed, although the contract may be
lost, on showing clearly the loss of it, and its contents, {w)
(J) Shepherd vs. 8hep7ierd, 1 Md. Ch. Decis. 244 ; Yasser vs. Vasser, 23
Miss. 378 ; Boze vs. Davis, 14 Texas, 331.
(m) Haines vs. Haines, 6 Md. 435.
{n) Read vs. Long, 4 Yerg. 68.
{o) Ross vs. Union Pacific R. R. Co. 1 Wool. 26 ; Fhilton vs. Railroad Co.
1 Dillon, 121.
{p) Berchett vs. Boiling, 5 Munf. 462.
{q) Chamberlain vs. Bhie, 6 Blackf. 491 ; see Robinson vs. Cathcart, 2
Cranch, C. C. 590.
(r) Washburn vs. Dewey, 17 Vt. 92.
(«) Brush vs. Vandenbergh, 1 Edw. Ch. 21.
(<) Rogers vs. Saunders, 16 Maine, 92.
(u) Allen vs. Beal, 3 A. K. Marsh. 554 ; see however OetcheU vs. Jewett,
8 Greenl. 350.
{v) Broadwell vs. Broadwell, 1 Gilm. 470.
(ic) Gowkoski vs. Day, 16 111. 259.
324 BILLS FOR SPECIFIC PERFORMANCE.
Of an Award — Parol Contracts.
Of an award. — The peformance of an award will be en-
forced, on the ground that such performance is an execution of
the agreement of the parties, as fixed by the arbitrators, {x)
But the enforcement of an award for the payment of money
has been refused ; (y) although where some other specific act
is prescribed by the award, its performance will be enforced, {z)
Specific performance of an agreement to refer a disputed
matter to arbitrators, cannot be decreed ; {a) although it has
been held that submission by adult heirs, of an equitable claim
to land, of which their ancestor died seized, may be enforced. (J)
Parol contracts. — The specific performance of a parol con-
tract for the conveyance of land will be enforced where the
consideration has been paid, and the purchaser has taken
possession ; (c) or where the vendee has paid part of the con-
sideration, and taken possession and made valuable improve-
ments, and tendered the balance of the purchase money before
the expiration of the contract, though the vendor has sold the
land to a second vendee, (c^)
To entitle a party to a specific perfornaance of a verbal
agreement, the proofs must clearly establish a contract, and all
its terms and conditions, and that the purchaser has relied
upon and performed his part of the agreement, and that it has
{x) McNeil vs. Magee, 5 Mason, 244 ; Ballance vs. Underldll, 3 Scam.
453 ; Jones vs. Mill Creek Corporation, 4 Pick. 507 ; Cook vs. Vick, 2 How.
Miss. R. 882.
{y) Turpin vs. Bauton, Hardin, 312.
(2) Story vs. Normick & Wos. R. R. Co. 24 Conn. 94 ; Kirksey vs. Fike, 27
Ala. 383.
{a) Copper YS.Wells, Saxon, 10; Tobey vs. County of Bristol, 3 Story, 800;
Conner vs. Brake, 1 Ohio State R. 166.
(b) Boyd vs. Magruder, 2 Rob. Va. 761.
(c) Ramsey vs. Linton, 25 111. 114 ; Oihhs vs. Blackwell, 37 111. 191 ; Clay-
ton vs. Frazier, 38 Texas, 91; Langston vs. Bates, 84 111. 524.
(d) Blunt vs. Tomlin, 27 111. 93 ; Keys vs. Test, 33 111. 316 ; see De Wolf
vs. Pratt, 42 111. 198 ; Cnamlers vs. Roice, 36 111. 171 ; see HarsJia vs. Reid,
45 N. Y. 415 ; Howe vs. Rogers, 32 Texas, 218 ; Freeman vs. Freeman, 43
N. Y. 34.
BILLS FOE SPECIFIC PERFORMANCE. 325
Parol Contracts — Parties to.
been so far performed as to take it out of the statute of
frauds, (e)
A parol contract by a father to convey to his sou, on con-
dition of his taking possession and making improvements, on
a proper and clear case shown, will be enforced. {/)
SECTION II.
PAKTIES TO.
In case of a contract for the sale of real estate, if the vendor
should die, and a bill is brought by his personal representa-
tives for a specific performance of the contract, all the heirs of
the vendor ought to be made parties, either as complainants or
as defendants, before a specific performance is decreed, {g) For
the same reason, if the vendee should die, on a like bill
brought by the vendor or his personal representatives for a
specific performance, the heirs, or devisees, if any, of the ven-
dee, as well as his personal representatives, should be made
parties to the bill. (A)
Where a vendor has, by his bond or covenant, bound his
heirs to the performance of the obligation or covenant, if he
should die, and a bill should be brought for specific perform
ance against the heirs, the executor or administrator would be
a necessary party, (i)
The general rule is, that the parties to the contract are
the only proper parties to a suit for a specific performance ;
and, except in the case of an assignment of the entire contract,
•
{e) Hartwell vs. Black, 48 111. 301; see Trailar vs. Hill, 2 Gilm. 364;
Hawkins vs. Hunt, 14 111. 42 ; Peckham vs. Barke?', 8 R. I. 17 ; Welsh vs.
Bayard, 21 N. J. Eq. 186 ; Hedrick vs. Hern, 4 W. Va. 620.
(/; See Bright vs. Bright, 41 111. 97 ; JSfeale vs. JYeale, 9 Wallace, 1 ; Qal-
iraith vs. Oalbraith, 5 Kansas, 402.
ig) Story's Eq. PI. § 160 ; Morgan vs. Morgan, 2 Wheat. 297, 298 ; Ed-
wards on Parties, 129-136 ; Calvert on Parties, 163-170 ; Roberts vs. Mar-
chant, 1 Hare, 547.
(/i) Townsend vs. Camperdoicn, 9 Price, 130 ; Story's Eq. PI. § 160, 177.
(i) Story's Eq. PI. § 173 ; Knight vs. Knight, 3 P. Wms. 333 ; Plunkett
vs. Benson, 2 Atk. 51 ; Coop. Eq. PI. 38, 39.
326 BILLS FOE SPECIFIC PERFOEMANCE.
Parties to — Frame of Bill.
there must be some special circumstances to authorize a de-
parture from the rule, {j)
All the heirs of an intestate as well as the administrator,
should be made parties to a bill in chancery to enforce the
specitic performance of a contract made by the intestate in his
lifetime, to convey a tract of land. {Jc)
SECTION III.
FRAME OF BILL.
The bill, in cases of specific performance, should describe
the land with such accuracy as to enable the court to decree a
conveyance, il)
The complainant should set out in his bill the contract
according to its legal effect, and should aver a performance
of all the conditions precedent on his part ; {tu) but a general
allegation that he has " done all that he was bound by the con-
tract to do," is held insufficient ; the particular facts which he
has performed should be stated, in order that the court may
determine whether he has done all that he ought, {n) Where,
however, the complainant has partially performed the contract
on his part, a formal allegation in the bill, that he is ready to
complete the performance, is unnecessary. {6)
The bill may be framed so as to obtain specific performance
or cancellation of the contract, {p)
If the complainant wishes to set off against the amount to
be paid by him, an indebtedness to him from the other party,
he must lay the proper foundation for it iit his bill, or he can-
not have the same allowed, {rj)
ij) Willard vs. Taylor, 8 Wallace, 557 ; Tasker vs. Small, 3 Mylne & Craig,
69 ; Story's Eq. PI. § 177, b ; Gibbs vs. BlacTcwell, 37 111. 191.
(k) Duncan vs. Wickliffe, 4 Scam. 453 ; Mix vs. Beach, 4G 111. 311.
{]) Gray vs. Davis, 3 J. J. Marsh. 381.
{m) Bates vs. Wheeler, 1 Scam. 54; see Morton vs. Smith, 86 111. 117.
(«J Davla vs. Harrison, 4 Litt. 261.
(o) Hatcher \s. Hatcher, 1 McMullen, Ch. 311 ; Roby vs. Cossitt, 78 111. 638.
ip) Mills vs. Metcalf, 1 A. K. Marsh. 477
(g) Scott vs. Shepherd, 3 Gilin. 483.
BILLS FOR SPECIFIC PERFORMANCE. 327
Tender — Form of Bill.
The complainant need not at his peril state the precise
anionnt due on the contract. He may state his case most
favorable to himself, and if, npon the equities of the case, the
court should decree a difierent amount, be can then conform to
its judgment, (r)
Tender. — It is not only necessary that a party asking to
enforce a contract for the purchase of a tract of land, should
make a tender of the purchase money, but he must bring the
money into court, and deposit it with the clerk, {s)
No. 1'21. Bill for sjpecific performance of a written
agreement — l)y a vendee vs. vendor.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto your
honor, that on, etc., one C. D., being, or pretending to be
seized and possessed in fee simple of the following described real
property, situate, lying and being in the county of , in the
state of , to wit: {Here describe the pr^erniscs) and being so
seized, on that day, entered into a written agreement with your
orator, for the sale of the same, wliich said agreement was
signed by the said C. D. and your orator, and by which the
said C. D. covenanted and agreed for himself, his heirs, execu-
tors and administrators, for and in consideration of the sum of
dollars, to be paid as hereinafter mentioned, well and
truly to convey by a good and sufficient warranty deed, in fee
simple, to your orator, his heirs or assigns, the tract or parcel
of land above described ; and, in consideration whereof, your
orator covenanted and agreed to pay the said C. D., his heirs,
executors, or administrators, the said sum of dollars, in
manner following, to wit : {Here state the manner of payments,
as in agreement^ as by the said agreement, ready to be pro-
duced in court, and a copy of which, hereto attached and filed,
marked " Exhibit A," and made a part of this bill, will more fully
appear.
(r) Hull vs. Peer, 2" 111.312.
(s) Doyle vs. Teas, 4 Scam. 202; WrigM ys. MeNeely, 11 111. 241; Be
Wolfe vs. Long, 2 Gilm. 679 ; see Webster vs. French, 11 111. 254 ; Aiiderson
vs. White, 27 111. 63 ; Irwin vs. Bleakley, 67 Pa. St. R. 24 ; Deichman vs.
Deichman, 49 Mo. 107.
328 BILLS FOR SPECIFIC PEEFORMANCE.
Forms of Bills.
Your orator further represents, that he has always been wil-
ling and ready to comply with the terms of said agreement on
his part to be performed ; that on, etc., he applied to the said
0. D., and oliered to pay him the sum of dollars, being
the balance then due the said C. D., under the said agreement,
on his delivering to your orator a sufficient warrant}' deed for
the said premises, according to the said agreement ; yet the said
C. D. refused, and still refuses, to comply with the agreement
on his part ; although your orator is, and always has been,
ready to pay the said sum of dollars, and to fully pertbrm
his part of the said agreement, whenever the said C. D, will
make and deliver to him a good and sufficient deed for the
premises aforesaid.
Forasmuch, therefore, as your orator is witliout remedy in
the premises, except in a court of equity, and to the end that
the said C. D., who is made a party defendant to this bill, may
be made to make full and direct answer to the same, hut not
under oath, the ansioer under oath being hereby waived i and
that the said defendant may be decreed specifically to perform
the said agreement entered into with your orator as aforesaid,
and to make a good and sufficient deed of conveyance to your
orator for the said described premises, your orator being ready
and willing, and hereby offering specifically to perform the said
agreement on his part, and upon the defendant's making out a
good and sufficient title to the said premises, and executing a
proper conveyance thereof to your orator, pursuant to the terms
of the said agreement, to pay to the defendant the residue of
the said purchase money ; and that your orator may have such
other and further relief as equity may recjuire, 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, C. D., to appear
before the said court, on the fii-st day of the next term
thereof, to be held at the court house in , in the county
of aforesaid, then and there to answer tJiis bill, etc.
Sol. for Conijoilainant.
No. 1^'2. Bill for S2)ecifc ijerforrnance of a written
agreement — hij a vendor vs. vendee.
To the Honorable , Judge of the Court, of the County
of , in the State of ,
In Chancery sitting :
Your orator, A. B., of. etc., respectfully represents unto
your honor, that your oi-utor Ijeing seized in fee simple of the
BILLS FOE SPECIFIC PERFORMANCE. 329
Forms of Bills.
following described real property, with its appurtenances,
situated in the county of , in the state of , to wit:
{Here describe the 2:)rem'ises) and being desirous of selling such
premises, and one C D. being minded to purchase the same,
your orator and the said C. D., on, etc., entered into and
signed a memorandum of agreement, in writing, respecting the
said sale and purchase, in tlie words, or to the purport and
effect following, to wit : {Here state the agreement verbatim)
as by the said memorandum of agreement, ready to be pro-
duced in court, will fully appear.
And your orator further represents that the said C. D.
paid to your orator the sum of dollars, part of the said
purchase money, at the time of signing the said agreement ;
and your orator delivered an abstract of his title to the said
premises to the said C. D. ; and your orator has always been
ready and willing to perform his part of the said agreement,
and, on being paid the remainder of his said purchase money,
with interest, to convey the said premises to the said C. D.
and his heirs, and to let him into possession and the receipt
of the rents and profits thereof from the time in the said agree-
ment in that behalf mentioned ; and your orator hoped that
the said C. D. would have performed the said agreement on
his part, as in justice and equity he ought to have done.
But now, so it is, may it please your honor, that the said
C D. alleges that he is and always has been ready and willing
to pei'form the said agreement on his part in case your orator
could have made, or can make, him a good and sufficient title
to the said premises. But that your orator is not able to make
a good title thereto ; whereas, on the contrary, your orator
charges and insists that he can make a good and sufficient title
to the said premises.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. D., who is made a party defendant to this bill, may
be made to make full and direct answer to the same, hut not
under oath, the ansioer under oath heing hereby waived i and
that the said C D., defendant, may be compelled by the decree
of this honorable court, specifically to perform the said agree-
ment with your orator, and to pay to your orator the ren minder
of the said purchase money, with interest on the same from
the time the said purchase money ought to have been paid,
your orator being willing, and hereby offering, specifically to
perform the said agi-eement on his part, and on being paid the
said remaining purchase money and interest, to execute a
proper conveyance of the said described premises to the said
330 BILLS FOR SPECIFIU I^EKFURMANCE.
Forms of Bills.
C. D., and to let him into possession of the rents and profits
thereof, according to the tenor and effect of the said agree-
ment ; and that your orator may have such other and further
relief as equity may require and to your honor shall seem meet.
. May it please your honor to grant the writ of summons
in chancery, directed to the sheriff of the said county of ,
commanding him that he summon the said defendant, C. D.»
to appear before the said court, on the first day of the next
term thereof, to be held at the court house in , in
the county of , aforesaid, then and there to answer this
bill, etc.
, Sol. for Complainant.
]^o. 1'23. Bill for sjpecifio perforina7ice, onaJjondfor a deed ;
vendee vs. the legal representatives of vender.
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 tliat, on, etc., one C. D., late of, etc., being the owner in
fee simple, of the following described real property, situate,
lying and being in the county of, etc., known and designated
as follows, to wit : [Here insert description^ And being
desirous to sell the said premises, and your orator being mindful
to purchase the same, the said C. D,, on the day aforesaid, entered
into a certain writing obligatory or bond for a deed with your
orator, for the sale thereof to him, which said writing obliga-
tory or bond, bearing date on the day and year above mentioned,
and signed and sealed by the said 0. D., is in the words and
figures following, to wit: {llere set out the hond verbatim,)
as by the said writing obligatory or bond for a deed, ready to
be produced in court, will more fully appear.
Your orator further represents, that on, etc., he paid the said
C. D. the sum of dollars, being a part of the purchase
money due by the terms of the said writing obligatory, which
said sum was received by the said C. D., and indorsed by him
upon the said writing obligatory.
Your orator further represents, that on or about the day
of , 18 — , the said C. D. departed this life, intestate, leav-
ing D. D., his widow, and E. D. and F. D., his children and
onl}' heirs at law ; and that afterwards, on, etc., one E. F., of,
etc., was duly appointed by the court of said county of
, administrator of the estate of the said C. D., and then and
there took upon himself the burden of such administration.
BILLS FOR SPECIFIC PERFOKMAKCE. 331
Forms of Bills.
Your orator farther represents that afterwards, on, etc., he
paid to the said E. F., administrator as aforesaid, the sum of
doHars, being the balance due to said estate of the said C. D.,
according to the terms and conditions of said writing obli-
gatory.
Your orator further represents, that the said C. D., in his life-
time, and the said E. F., administrator as aforesaid, since the
death of the said C. D., have wholly failed to execute and
deliver to your orator a good and sufficient deed of conveyance
for the said premises ; the said E. F. insisting that he, as such
administrator, has no power or authority to do so.
And your orator further shows that the said E. D. and F. D.
are minors, under the age of years, and have no legal
guardian.
Forasmuch, therefore, as your orator is without remedy in the
premises, except in a court of equity ; and to the end that the
said D. D., E. D., F. D. and E. F., administrator, of the estate
of C. D., deceased, who are made parties defendant to this bill,
may be required to. make full and direct answer to the same,
but not under oath, tlie answer under oath heing hereby
waived', that a guardian ad litem may be appointed for the
infant defendants named above ; that a good and perfect deed
of conveyance may be made to your orator for the premises
aforesaid, that a commissioner may be appointed by the court
to make and execute such deed, or that the master in chancery
of this court be directed to execute the same ; and that your
orator may have such other and further relief as equity may
require and to your honor shall seem meet.
And may it please your honor to grant the writ of summons
in chancery, directed to the sheritf of the said county of ,
commanding him that he summon the defendants above named,
to appear before the said court, on the first day of the next
term thereof, to be held at the court house in , in the
county of aforesaid, then and there to answer this bill, etc.
Sol. for Com/plainant.
No. l^Jf.. J^ill for speciJiG performance, by lessee against lessor y
of a written agreement for a lease of a house.
To the Honorable , Judge of the court of the County
of , in the State of ,
Li Chancery sitting:
Your orator, A. B., of, etc., respectfully represents unto your
honor, that C. D., of, etc., the defendant hereinafter named,
being possessed of the premises described as follows, to wit :
332 BILLS FOR SPECIFIC PERFOEMANCE.
Forms of Bills.
{Here insert description?) And being desirous to let tlie same,
on, etc., proposed and agreed to lease to your orator the same,
with the appurtenances, and thereupon your orator and the de-
fendant executed a certain memorandum or agreement of that
date, in the words and ligures following, that is to say : {Here
set out copy of agreement verbatim,) as by the said agreement,
ready to be produced in court, will appear.
Your orator further represents, that in expectation and confi-
dence that a lease would have been executed to him of the
premises, pursuant to the terms of the said agreement, your
orator has expended sundry sums of money in the said premises ;
and has always been ready to perform his part of the said
agreement, and to accept a lease of the said premises, pursuant
to the terms thereof. And for that purpose caused a draft of a
lease to be drawn pursuant to the terms of the said agreement,
and tendered the same to the defendant for his perusal and
approbation, but he refused to accept or peruse the same. And
your orator has frequently applied to the defendant and request-
ed him to execute to your orator a lease of said premises con-
formable to the said agreement. And your orator well hoped
that no dispute would have arisen, touching the said agreement
and the leasing of said premises, but that the defendant would
have complied with the reasonable request of your orator, as in
equity he ought to have done. But now so it is, the defendant
pretends that no such agreement was ever entered into between
your orator and the defendant, or any agreement, or that he
consented to grant a lease to your orator, whereas your orator
charges the contrary of such pretenses to be the truth. Never-
theless the defendant refuses to comply with your orator's said
reasonable requests, or to perform the aforesaid agreement.
Forasmuch, therefore, as your orator is without an adequate
remedy in the premises, except in a court of equity; and to
the end that the said C. D., who is made party defendant to this
bill, may be required to make full and direct answer to the
same, hut not under oath, the answer under oath heing hereby
waived I that the court may decree that the said agreement
may be specifically performed and carried into execution; that the
defendant may be decreed to execute a lease of the said premises
to your orator according to the terms of said agreement, your
orator hereby ofiering to execute a counterpart thereof, and in
all other respects to perform his part of the said agreement ;
and that your orator may have such other and further relief in
the premises as equity may require and to your honor shall
seem meet.
May it please your honor to gi-ant the writ of summons in
BILLS FOK SPECIFIC PERFORMANCE. 333
Decree — Declaration of Right to.
chancery, directed to tlie sheriff of the said county of'
commanding liim that he summon the defendant, C D., to
appear before tlie said court, on the first day of the next
term thereof, to be held at the court house in , in the
county of aforesaid, then and there to answer this bill, etc.
Sol. for Complainant.
SECTION IV.
DECKEE.
Declaration of right to sjpecific ^performance. — According to
the old practice, there were two ways of framing a decree in a
suit for specific performance. The one was to declare that the
complainant was entitled to a specific performance, if a good
title could be shown, and then to direct a reference as to the
title ; the other, to refer the title to the master, and to follow
up that direction by a declaration, that if a good title was
shown, the agreement ought to be specifically performed, {t)
And the omission of this declaration is often attended with in-
convenience, {u)
Where the question of title is not the only issue, but the de-
fendant resists specific performance on any other ground, it was
specially necessary that a declaration that if a good title was
shown, the agreement ought to be performed, should be insert-
ed, (■v) Of late, however, it is seldom inserted, {w) llTeverthe-
less, where a reference of the title is directed, it will, it seems,
be implied, {x)
Where a reference of title is directed, the declaration as to
the right to specific performance is usually made on further
directions, {y)
(<) Seaton on Decrees, 209; Stevens vs. Quppy, 3 Russ. 182.
{u) Id. lb. ; Mole vs. Smith, Jac. 495.
(«) Seaton on Decrees, 210 ; Pitt vs. Davis, 3 Russ. 182, note.
(w) Harding vs. Beckford, cited in Seaton on Decrees, 210 ; Burroughs
vs. Oakley, 3 Swanst. 172 ; Le Grand vs. WhiteJiead, 3 Russ. 309, note ; but
Bee Burton vs. Todd, 1 Swanst. 258.
{x) Seaton on Decrees, 210 ; see Mole vs. Smith, Jac. 494 ; Le Grand vs.
Whitehead, 1 Russ. 309.
{y) Seaton on Decrees, 210 ; Bridges vs. Robinson, 3 Mer, 694.
334 BILLS FOR SPECIFIC PEEFORMANCE.
Decree — Reference of Title.
Where specific performance is decreed witliout a reference
of title, it will be made upon the original hearing, {z)
Reference of title. — Generally, either the vendor or the pur-
chaser may insist upon a reference of the title in the first
instance ; the vendor being entitled to the opportunity of per-
fecting it, and the purchaser of fully investigating it, before the
master. But either party may preclude himself from this right
by his mode of pleading, {a) So where the acts of the pur-
chaser amounted to a waiver of his right, specific performance
was decreed in the first instance ; (J) but taking possession and
acts of ownership were held not to be a waiver under the cir-
cumstances, (c)
The direction is to inquire whether the vendor can make
title, not whether he could do so at the time of entering into
the contract, {d) If a title can be made before the hearing, {e)
or before the report, {f ) or upon the hearing for further direc-
tions, {g) it is sufiScient.
Formerly the court directed a reference of the title only in
the first instance, and, upon further directions, directed a refer-
ence back to inquire at what time a good title could be made,
with a view to costs. (A) But now the reference will be
extended to both objects in the first instance, {i) If a refer-
ence for the latter purpose is not obtained in the first
(z) Margravine of AuspacJi vs. Noel, 1 Mad. 317 ; Dakin vs. Cope, 3 Russ.
175.
(a) Jenkins vs. HiUs, 6 Ves. 653, 654 ; Seaton on Decrees, 210.
(6) Fleetwood vs. Oreen, 15 Ves. 594 ; Margravine of Auspach vs. Noel,
1 Mad. 310 ; see Fludyer vs. Cocker, 12 Ves. 25 ; Balfour vs. Welland, 16 Ves.
151.
(c) Burroughs vs. Oakley, 3 Swanst. 159.
(d) Langford vs. Pitt, 2 P. Wms. 630.
(e) Wynn vs. Morgan, 7 Ves. 203.
(/) Langford vs. Pitt, 2 P. Wms. 630 ; Jenkins vs. Hiles, 6 Ves. 655 ; Seton
vs. Slade, 7 Ves. 279 ; Mortlock vs. Buller, 10 Ves. 315 ; Hepburn vs. Dunlap,
1 Wheat. 179 ; see Coffin vs. Cooper, 14 Ves. 205.
{g) Paton vs. Rogers, 6 Mad. 256.
(h) Gibson vs. Clarke, 2 V. & B. 103.
(i) Seaton on Decrees, 211 ; Wright vs. Bond, 11 Ves. 39; Jennings va.
Hopton, 1 Mad. 211 ; Anon. 3 Mad. 495.
'
BILLS FOR SPECIFIC PERFORMANCE. 335
Decree — Payment of Purchase Money, etc. — Form of Decree.
instance, the defeiRlant is not precluded from obtaining it
after the report, {j)
Payment of purchase money and execution of conveyance.
The payment of the purchase money and the execution of
the conveyance are simultaneous acts, and should be done
interchangeably. i]i)
Delivery of deeds, etc. — There should be a direction for the
delivery up of deeds, writings, etc., pertaining to the title of
the estate. {V)
No. 1^5. Decretal order for a reference as to the title of a
vendor, etc.
{Cajption, and title of cause as in No. 79, ante, jMge 198.)
This cause coming on to be heard upon the pleadings filed
and proofs taken therein, and the said pleadings and proofs
having been read, and the counsel for the respective parties
having been heard, and in consideration of the premises, it is
ordered, that this cause be referred to the master in chancery
of this court, to inquire whether a good title can be made to
the premises comj)rised in the agreement between the parties
to this cause, mentioned in the pleadings therein ; and that he
state his opinion thereon to the court. And in case he shall be
of opinion that a good title can be made, it is ordered that he
do inquire and state when it was first shown that a good title
could be made. And that the said master do inquire and
report as to the quantity of land agreed to be conveyed by the
complainant ; and that he take an account of the payments
made upon such agreement, by the defendant ; and that he
ascertain and report the balance now due from him upon the
eaid agreement.
And for the better discovery of the matters aforesaid, the
parties are to produce before the said master, upon oath, all
ij) Id. ; Gibson vs. Clarke, 2 V. & B. 103 ; Bnlij vs. Osborne, 1 Mer. 382;
Birch vs. Haynes, 2 Mer. 444; see Jennings va. Hopton, 1 Mad. 211 ; Hyde
vs. WrougJiton, 3 Mad. 279 ; Lubin vs. Lightbody, 8 Price, 600 ; Anon. 3 Mad.
495.
{k) Margravine of Auspach vs. Noel, 1 Mad. 316 ; Urmston vs. Singleton
cited in Seaton on Decrees, 214; Corhus vs. Teed, 69 111. 205.
(0 Id. lb.; McNamara vs. Williams, 6 Ves. 144.
336 BILLS FOR SPECIFIC PERFORMANCE.
Forms of Decrees.
deeds, books, papers, and writings, in their custody or power,
relating thereto ; and are to be examined upon interrogatories
as the said master shall direct ; and to take snch further proof
as either party may produce before him in relation tO the sev-
eral matters mentioned, and report the same to the court. And
this court reserves the consideration of all further directions,
and of the costs of this suit, until after the said master shall
have made his report. And either of said parties are to be at
liberty to apply to the court as occasion may require.
No. 1^6. Interlocutory decree for an account.
{Caption, and title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard upon the pleadings filed
and the proofs taken therein, and the said pleadings and proofs
having been read, and the counsel for the respective parties
having been heard, and the court being fully advised in the
premises, and on consideration thereof, doth order, adjudge and
decree, that this cause be referred to the master in chancery of
this court to take a mutual account of all dealings and transac-
tions between the complainant and defendant in this cause, for
the better clearing of which account the parties are directed to
produce before the said master, upon oath, all deeds, books,
papers, and writings in their custody or power, relating there-
to, and are to be examined upon interrogatories as the said
master shall direct ; who, in taking the said account, is to make
unto the parties all just allowances ; and what, upon the bal-
ance of the said account, shall appear to be due from either
party to the other, is to be paid as the said master shall direct.
And this court reserves the consideration of the costs of this
suit, and of all other directions, until after the said master
shall have made his report ; when either party is to be at liberty
to apply to the court, as occasion shall require.
No. 127. Final decree for a specific performance of a/n,
agreement.
{Caption, and title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard for further directions on
the report of the master in chancery, to whom the same stood
referred, and the said report, together with the pleadings and
proofs, having been read, and the counsel for the parties
respectively having been heard, and the court being fully
advised in the premises, and it appearing to the court that a
BILLS FOR SPECIFIC PERFORMANCE. 337
Form of Decree.
good title can be made by the complainant to tlie premises
comprised in the agreement between the parties to this cause
mentioned in the pleadings therein, and dated the day of
• , 18 — ; it is therefore ordered, adjudged and decreed, and
this court does order, adjudge and decree, that the said agree-
ment so made and entered into between the complainant and
defendant, and duly proved in this cause, be specifically per-
formed. And it is further ordered, adjudged and decreed,
that the complainant execute and deliver to the defendant a
proper and sufficient conveyance in fee of the premises de-
scribed in the same agreement between the parties, and par-
ticularly described therein, as follows, to wit : {Here insert
descrvption hy metes and hounds,) to be approved by the
master in chancery of this court, in case the parties differ
about the same. And it is further ordered, adjudged and
decreed, that the defendant, upon the tender or delivery to
him of such conveyance, do pay unto the complainant the sum
of dollars, the balance of the purchase money of said
premises, reported by the said master in chancery to be still
due,- with interest thereon at the rate of per cent, from
the date of the said master's report. And it is further ordered,
adjudged and decreed that the defendant pay to the complain-
ant the costs of this suit, to be taxed. And it is further
ordered, adjudged and decreed, that the complainant have
execution against the defendant for the said sum of
dollars, the balance of said purchase money reported by the
master to be due, with interest from the date of his report,
and for the costs, to be taxed as aforesaid, according to the
course and practice of the court. And either of the parties
is to be at liberty to apply to this court as occasion may
require.
22
CHAPTEE XXYl.
BILLS RELATING TO PARTNERSHIP MATTERS.
Section 1. Where a Dissolution will be Decreed
2. Account Between Partners.
3. Appointment op a Receiver.
4. Forms of Bills.
5. Forms of Decrees and Orders.
SECTION I.
WHERE A DISSOLUTION WILL BE DECREED.
Where a partnership is formed for a definite term, neither
partner can file a bill for dissolution of the partnership, or for
the appointment of a receiver, before the expiration of the time
limited, merely on the ground that he is dissatisfied, or that
the partners quarrel, {a)
In matters of difficulty or controversy between partners, a
resort to a court of equity is most usual and most convenient
for the adjudication and settlement of the same, (b) And where
a party is a member of two difii'erent firms, chancery will adjust
matters of difference which would otherwise be settled at
law. (c)
The courts of common law have no power whatever of de-
creeing or causing a dissolution of a partnership, {d) In some
cases, in which courts of equity would make such a decree, as
where a partnership was formed through fraud, courts of law
might apply the principle, that a contract so vitiated never had
force, and on this ground declare it null, and avoid the partner-
(a) Henn \s.Walsli, 2 Edw. Cli. 129 ; Loomis vs. McEenzie, 31 Iowa, 425.
(&) Bracken vs. Kennedy, 3 Scam. 559 ; Strong vs. Claicsoji, 5 Gilm. 346.
(c) Haven vs. Wakefield, 39 111. 509.
(d) Parson on Part. 457 ; Story on Part. § 284 ; 1 Story's Eq. Jur. § 673 ;
Stone vs. Fouse, 3 Cal. 294 ; Nugent vs. Locke, 4 Cal. 320 ; WUson vs. Lv^ssen,
6 Cal. 116 ; Barnstead vs. Empire Mining Co. 5 Cal. 299.
BILLS KELATING TO PARTNERSHIPS. 339
Where a Dissolution will be Decreed.
sliip. But courts of equity have full power over this matter ;
and upon a bill iiled by any partner, alleging a sufficient cause,
and upon proper evidence, if the facts are not admitted, the
court will decree a dissolution of the partnership, (e)
Where the duration of a partnership is fixed, it requires
something more than the mere will of a party to dissolve it
within the term ; but only a little more is needed, and a disso-
lution will be granted where dissension prevents all hope of
advantage. (/")
Where one partner got possession of the entire proceeds of
the year's operation, without the consent of his copartner, (there
being nothing in the copartnership agreement authorizing him
to do so,) and assumed the exclusive control of the whole busi-
ness, it was held to be such a breach of faith as to authorize a
decree for a dissolution of the partnership, {g)
A decree for a dissolution will be warranted, if it is impossi-
ble that the partnership should be beneficially continued ;
namely, if the principles on which the scheme is based is found,
on examination, to be erroneous and impracticable ; (A) or where
the partnership is formed to efiect a particular object, which
is found to be impracticable, and wholly fails; (*) or where the
circumstances have so changed as to render it impossible to cari'y
on the partnership without injury to all the partners ; {j ) or
where the object of a partnership is destroyed, as a steamboat. (16)
{e) Parson on Part. 457 ; Baxter v&.West, 1 Drewry & Sm. 173 ; Dumon,
\s.RuepprecM, 38 Ala. 175 ; Mealier \s.Cox, 37 Ala. 201 ; Harper vs. Lamp
ing, 33 Cal. 641 ; Hamilton vs. Stokes, 4 Price, 161 ; Oldaker vs. Lavender,
6 Sim. 239 ; Oreen vs. Barrett, 1 Sim. 45 ; Jones vs. Yates, 9 B. & C. 532 ;
Colt vs. Wollaston, 2 P. Wms. 154 ; Fogg & VandersUse vs. Johnston, 27 Ala,
432.
(/) Bisliop vs. Breckless, 1 Hoff. Ch. R. 534 ; Meaher vs. Cox, 37 Ala. 201
{g) Kennedy vs. Kennedy, 3 Dana, 239 ; Oowan vs. Jeffries, 2 Ashm. 296
Maude vs. Bodes, 4 Dana, 144 ; Story vs. Moon, 8 Dana, 331 ; Garretso?i vs.
Weaver, 3 Edw. Ch. 385.
(A) Beaumont vs. Meredith, 3 Ves. & B. 180 ; Cloughve. Radcliffe, 1 DeQex
&S. 164.
(t) Nockells vs. Crosby, 3 B. & C. 814; 5 Dowl. & R. 751.
{j) Harrison vs. Tennant, 21 Beav. 482.
(A) Claiborne vs. Creditors, 18 La. An. 501.
340 BILLS RELATING TO PARTNEESHIPS.
Account between Partners.
Bad tempei', overbearing and oppressive conduct, quarrel-
ing, indolence and inattention, intemperance or bad habits
and disgraceful conduct, wild speculations, gross extravagance,
absenting himself from his business or entering into other
business engagements inconsistent with his duty to his partners,
or any conduct which brings disgrace upon the firm or impairs
their credit, {I) are all causes which may be sufficient, if their
degree be sufficient, and otherwise not. (m)
SECTION II.
ACCOUNT BETWEEN PARTNERS.
Whenever there is a dissolution of a partnership, for any
cause, it would seem that there must be an account, if it is
demanded by any party in interest, (n)
The taking of an account is a frequent preliminary to any
further action by a court of equity ; because by this means alone
can the court ascertain the true relation of the parties as to their
rights and obligations, (o)
An account and a dissolution seem to be so clearly connect-
ed that an account is seldom granted unless a dissolution is alsa
(I) Norway vs. Bowe, 19 Ves. 148 ; Waters vs. Taylor, 2 Ves. & B. 304 ;
Howell vs. Harvey, 5 Ark. 278 ; Master vs. Kirton, 3 Ves. 74 ; Wilson vs.
Greenwood, 1 Swanst. 481 ; Blakeney vs. Dufour, 15 Beav. 40 ; Hall vs. HaU,
12 Id. 414, and note to 419 ; Williamson vs. Wilson, 1 Bland, 418 ; Fogg &
VandersUse vs. Johnston, 27 Ala. 432 ; Durbin vs. Barher, 14 Ohio, 311.
(w) Parson on Part. 459.
{n) Parson on Part. 511 ; Adams, Eq. 239, et seq. ; Collyer on Part. § 298 ;
1 Story's Eq. Jur. § 671 ; Forman vs. Hanfray, 2 Ves. & B. 329 ; Harrison
vs. Armitage, 4 Mad. 143 ; Russell vs. Loscomhe,^ Sim. 8 ; KnowlesYs. Haugh-
ton, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ; Ex parte Broadbent, 1 Mont.
& A. 635 ; see Hayes vs. Reese, 34 Barb. R. 151 ; Vermillian vs. Bailey, 27 111.
230; Pope vs. Salsman, S5 Mo. 362.
(o) Baird vs. Baird, 1 Dev. & Bat. 524 ; McRae vs. McEimie, 2 Dev. &
Bat. 232 ; Caniblat vs. Tapery, 2 La. An. 10 ; Kennedy vs. Kennedy, 3 Dana,
240.
BILLS EELATING TO PARTNEESHIPS. 341
Account between Partners — Appointment of a Receiver.
asked for; {p) but this cannot be deemed a rule of equity, {g)
although in the great majority of cases, wliere the relations
between the partners are such, that one of them can obtain an
account only through the interposition of a court, a dissolution
is and should be asked for. (r)
On the filing of a bill in chancery for the settlement of part-
nership accounts, the parties cannot introduce their individual
accounts into the statement, [s)
Equity will recognize and protect debts due from the firm to
an individual member, or from a member to the firm.
The proper remedy for the assignee of the rights of a part-
ner, is a bill for the settlement of the partnership accounts, to
whicli all the partners must be made defendants, {t)
SECTION III.
APPOINTMENT OF A KECEIVEE.
"Where either partner has a right to dissolve the partnership,
and the copartnership articles do not provide for the settlement
of the concern, it is of course for a receiver to be appointed by
the court, upon a bill for that purpose; [v) and the receiver
will be directed to carry on the business, until a sale of the
partnership property can be effected, {v)
Where a bill is filed seeking a dissolution of a partnei'ship,
and it satisfactorily appears that the complainant will be enti-
{p) Forman vs. Hanfray, 2 Ves. & B. 329 ; see Loscombe vs. Russell, 4
Sim. 8 ; Knowles vs. Haugliton, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ;
Wahoortn vs. Holt, 4 Mylne & Craig, 619, 635.
iq) lUchardson vs. Hastings, 7 Beav. 301 ; Fairthorne \s.W(ston, 3 Hare,
387 ; Miles vs. Tlwmas, 9 Sim. 609 ; Goodman vs. Whiteomb, 1 Jac. & W. 593.
(r) Loscombe vs. Bussell, 4 Sim. 8; Waters vs. Taylor, 15 Ves. 10; For-
man vs. Hanfray, 2 Ves. & B. 329 ; Ghapma.n vs. Beach, 2 Jac. & W. 594;
Pigott vs. Bagley, McClel. & Y. 569 ; Krebell vs. White, 2 Younge & C. 15 ;
Parson on Part. 511-512.
(s) Hanks vs. Baber, 53 111. 292 ; see Bracken vs. Kennedy, 3 Scam. 559.
if) Bank vs. Carrollton Railroad, 11 Wallace, 624.
(m) Law vs. Ford, 2 Paige, Ch. R. 310 ; Oarretson vs. Weaver, 3 Edw. Cli.
885 ; Sloan vs. Moore, 37 Pa. St. R. 217.
{v) Marten vs. Van Schaick, 4 Paige, Ch. R. 479 ; High on Receivers, § 481.
342 BILLS KELATING TO PARTNERSHIPS.
Receiver — Wlien Appointed — Form of Bill.
tied to a decree for the dissolution, a receiver will be appointed
as a matter of course, the obvious reason being that the same
causes which would justify a decree for dissolution would also
justify the appointment of a receiver. (-?/?)
WTien appointed. — Where it appeared that a copartnership
was insolvent, and that the complainants, who were members,
were excluded from their full share in the management of the
concern, and that the defendant, who M^as the acting partner,
neglected to keep proper books of account, and to keep them
open for the inspeqtion of the complainants, who were refused
access to them, the court, on motion, appointed a receiver before
answer and final decree. (»)
As a general rule, a receiver will not be appointed without
notice to those interested ; but where irreparable injury would
arise from delay, a receiver will be appointed without notice,
leaving the other party the right to apply to have the order
superseded on cause shown. (?/)
For rules governing the appointment of a receiver, in a suit
between partners, see Kerr on Receivers, 81-102 ; High on
Receivers, § 472-552.
SECTION IV.
FORMS OF BILLS.
JVo. 1^8. Bill for a dissolution of a partnerships and for an
injunction.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto your *
honor, that on, etc., your orator entered into an agreement
with one C. D. and E. F., of the same place, the defendants
hereinafter named, to form a copartnership with them in the
■{w) Birdsall vs. Golie, 2 Stockt. Cli. R. 65 ; Seigliortner vs. Weissenhorn, 5 ,
C. E. Green, 177; Dunnvs.McNaugU, 38 Geo. 179; Eifby vs. IngersoU,
Harring. Ch. R. 18 ; Marten va. Van Scliaick, 4 Paige, Ch. 479.
{x) Gowan vs. Je fries, 2 Ashm. 29G; High on Receivers, § 522-529.
{tj) Gowan vs. Jeffries, 2 Ashm. 296; Williamson vs. Wilson, 1 Bland, 418.
BILLS EELATING TO PAKTNEESHIPS. 343
Form of Bill for Dissolution.
business of auctioneers^ which agreement was reduced to writ-
ing and signed by your orator and the defendants, and was in
the words and figures or to the purport and effect following,
that is to say : \llere set out the agreement verbatim,) as by
the said agreement, ready to be produced in court, will appear.
And your orator further represents, that the said copartner-
ship business was entered upon and has ever since continued
to be carried' on by your orator and the defendants in pursu-
ance of and under the said agreement, no other articles or
instrument having ever been prepared and executed between
them.
Your orator further represents, that having much reason to
be dissatisfied with the conduct of the said C. D., and being
desirous, therefore, to dissolve the said partnership, your orator
on or about caused a notice in writing signed by your orator
to be delivered to the said C. D. and E. F. in the words and
figures or the purport and effect following, that is to say :
{Here set out the notice, if one was given /) as in and by such
written notice, now in the custody or power of the defendants
or one of them, when produced, will appear.
Your orator further represents, that the said C. D. has from
time to time since the commencement of the said partnership,
applied to his own use from the receipts and profits of the said
business very large sums of money, greatly exceeding the pro-
portion thereof to which he was entitled, and in order to con-
ceal the same the said C D., who has always had the manage-
ment of the said copartnership books, has never once balanced
the said books. And your orator further represents, that
having in the beginning of the year 18 — , discovered that the
said C. D. was greatly indebted to the said copartnership, by
reason of his application of the partnership moneys to his own
use, your orator, in order to form some check upon the conduct
of the said C. D., requested that he would pay all partnership
moneys which were received into their bankers, and would draw
for such sums as he had occasion for, but the said C. D. has
wholly disregarded such request, and has continued to apply
the partnership moneys received by him to his own use, with-
out paying the same in to the bankers, and has also taken to his
own use money received by the clerks, and has by such means
greatly increased his debt to the partnership, without affording
to your orator and the said E. F. any adequate means of ascer-
taining the true state of his accounts.
Your orator further represents, that he has, from time to
time, applied to the said C. D. and requested him to come to a
fall and fair account in respect to the said copartnership trans-
344 BILLS RELATING TO PAETNERSHIPS.
Form of Bill for Dissolution.
actions, with which just and reasonable request your orator
well hoped that the said C. D. M'ould have complied, as in
justice and equity he ought to have done. But now so it is,
may it please your honor, the said C. D. absolutely refuses so to
do ; and he at times pretends that he has not received and
applied to his own use more than is his due proportion of tlie
partnership profits. Whereas your orator charges the contrary
thereof to be the truth, and so it would appear if the said C. D.
would set forth a full and true account of all and every his
receipts and payments in respect of the said partnersliip transac-
tions, and of the gains and profits which have been made in each
year since the commencement of the said partnership. And
your orator charges that tlie said C. D. has in tact received the
sum of dollars and upwards beyond his due proportion of
the partnership profits, and that he is nevertheless proceeding
to collect in the partnership debts and moneys, whereby the
balance due from him will be increased, to the great loss and
injury of your orator and the said E. F. And your orator
charges that tlie said C. D. ought, therefore, to be restrained by
the order and injunction of tins honorable court from collecting
^nd receiving any of the said partnership debts and moneys.
And your orator further represents unto your honor, that the
eaid E. F. refuses to join with your orator in this suit. ( Ij-
deemed necessary, add interrogatories, see ante, page 72.)
Forasmuch, therefore, as your orator is without adequate
remedy in the premises, except in a court of equity ; and to
the end that the said C. D. and E. F., who are made parties
defendant to this bill, may be required to make full and direct
answer to the same, ( If the oath is to he waived, say, ''•But'
not under oath, the ansioer under oath heing herehy waived,'^)
that the said copartnership may be declared void, and that an
account may be taken of all and every the said copartnership
dealings and transactions from the time of the commencement
thereof; and also an account of the moneys received and paid
by your orator and the defendants respectively in regard there-
to. And that the defendants may be decreed to pay to your
orator what, if anything, shall upon the taking of the said
accounts appear to be due to him, your orator being ready
and willing, and hereby ofi*ering to pay to the defendants or
either of them what, if anything, shall upon the taking of the
eaid accounts, appear to be due to them or either of them from
your orator. And that in the meantime the said C. D. may be
restrained by the order and injunction of this honorable court
from collecting or receiving the partnersliip debts or other
money. And that your oi'atorni'iy have such other and further
BILLS RELATING TO PARTNERSHIPS. 345
Bill for an Account — Affidavit for Injunction.
relief in the premises as equity may require and to your honor
shall seem meet.
May it please your lionor to grant the writ of summons in
chancery, directed to the sherili' of the said county of , com-
mandiny- him that he summon the defendants, C. D. and E. F.,
to appear before the said court, on tlie lirst day of tlie ne.xt
— - — term tliereof, to be held at the court house in , in the
county aforesaid, then and there to answer this bill, etc.
And may it please your honor to grant unto your orator tlie
people's writ of injunction, to be directed to the said C. D.,
restraining him, his agents and attorneys, from collecting or
receiving any of the debts due and owing to the said firm, and
from using and applying any of the copartnership funds to his
own use until the further order of said coui't.
Solicitor for Complainant. A. B.
{If an injunction is desired, add affidavit, asfollov^s :)
No. 129. Affidavit to a lill to obtain an injunction.
State of )
V ss.
County of —
On this day of , 18 — , before, me personally ap-
peared the above-named A. B. and made oath that he has
heard read the above bill subscribed by him, and knows the
contents thereof, and that the same is true, of his own knowl-
edge, except as to the matters which are therein stated to be
on his information or belief, and that as to those matters he
believes it to be true. ^ (ji^^j, ^f ^;^^ ^.^^^^,^_
No. 130. Bill for an account of partner shi]) dealings, and
an injunction, etc.
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 and 0. D., of the same
place, entered into a general copartnership together for the pur-
pose of carrying on a general loholesale and retail dry goods
business at, etc., the same to be carried on under the linn
name and style of B. & D. ; that your orator engaged to and
did bring into said business the sum of dollars, and was
to receive two-thirds of the profits, and, in the same pi-opor-
tion, to share the losses of said business; and that the said
C. D. engaged to and did bring into the said business the sum
346 BILLS KELATING TO PAKTNEKSHIPS.
Form of Bill for Account, etc.
of dollars, and was to receive <yiie-i]drd of the profits,
and was to share the losses of s.iid business in the same
proportion ; that the said copartnership business was com-
menced on, etc, and was continued from that date until, etc.,
when the same was dissolved by mutual consent ; that during
the continuation of said copartnership business a large amount
of goods were sold by the said firm to various parties on a
credit, and the said business remains unsettled.
Your orator further represents unto your honor that no
settlement of said copartnership business has ever been made
between your orator and the said CD.; that since the expira-
tion of the term of the said partnership, your orator has
repeatedly applied to the said C. D. to come to a final settle-
ment and adjustment with respect thereto. And your orator
well hoped that the said C. D. would have complied with
your orator's reasonable request in that behalf, as in equity
and justice he ought to have done. But the said C. D. de-
ilined, and absolutely refuses, so to do.
Tour orator further represents that the said C. D. has taken
possession of the partnership books of the said firm, and has
collected a large amount of the accounts due and owing to the
same, and has refused to permit your orator to see and inspect
said books of account, and wholly refuses to render to your
orator any account of the copartnership moneys received by
him, and to apply the same to the payment of the debts of the
said firm.
Your orator further represents that upon a just and true
settlement of the accounts of the said partnership business, it
would appear that there is a large balance due from the said
C. D. to your orator, in respect of the said business.
Your orator further rej)resents, that the said C. D. is using
the funds of the said copartnership in rash speculations on his
own account, and is thereby in danger of drifting into insolv-
ency ; and your orator fears, and charges that he is in danger
of losing the amount so due him from the said C. D. in respect
to the said copartnership dealings and transactions. By reason
whereof the said C. D. ought to be enjoined and restrained by
the injunction of this honorable court from further collecting
the said copartnership accounts, and from using and further
applying the funds of said firm to his own use ; and that some
suitable person ought to be appointed by this honorable court
to receive and take charge of the books of account of the said
firm, and to collect the accounts due the same.
Forasmuch, therefore, as your orator is without adequate
remedy in the premises, except in a court of equity ; and to
BILLS RELATING TO PARTNERSHIPS. 347
Form of Decree, etc. — Order Appointing Receiver.
the end that the said C. D., who is made party defendant to
this bill, may be required to make full and direct answer to tlie
same, hut not under oath^ the answer under oath heing hereby
waived j and fully set forth a true and just account of all his
actings and doings in respect to said copartnership business
since the expiration thereof; and that an account may be taken
under the direction of this honorable court, of all -and every
the said copartnership dealings and transactions, and that the
same may be fully adjusted, and the respective rights of your
orator and the defendant ascertained ; and that the defendant
may be decreed to pay to your orator what, if anything, shall
appear upon such account to be due from him ; your orator
being ready and willing, and hereby offers to pay to the defend-
ant what, if anything, shall appear to be due to the defendant
from your orator ; and that some proper person may in the
meantime be appointed by the court as receiver, to take charge
of the said partnership books of account, and collect whatever
money or property may belong or be due to the said firm ;
and that your orator may have such other and further relief in
the premises as equity may require and to your honor shall
seem meet.
May it please, etc. {Add 2^rayer for summons and injunc-
tion as in the last jprecedent^ No. 128, and affidavit, No. 129,
ante, page SJ^S.)
SECTION V.
FORMS OF DECREES AJSTD ORDERS.
J7b. 131. Order appointing a receiver in a suit between
partners.
{Proceed as in No. 81, ante, page 202, to the asterisk *, a/nd
continue:) It is ordered that E, F., of, etc., be, and he is
hereby appointed receiver to receive the outstanding debts
and effects of the late partnership of A. B. and C. D., in the
pleadings in this cause mentioned ; that the said E. F. enter
into a bond in the penal sum of dollars, with security, to
be approved by the master in chancery of this court, con-
ditioned for the faithful performance of his duties as such
receiver, and that he will be answerable for what he shall
receive of such outstanding debts and effects, and will pay the
same, as this court shall, from time to time direct.
And it is further ordered that the complainant and defend-
ant do deliver over to the said E. F., as such receiver, all books
348 BILLS EELATING TO PARTNEESHIPS.
Decree for Account — Decree for Dissolution, etc.
of account, securities and evidences of indebtedness, and effects
belonging to tlie said partnership. And in case there shall be
occasion to put any of the debts in suit for the recovery
thereof, the said receiver is to make nse of the names of the
complainant and defendant, or either of them, as it may be-
come necessary for that purpose. It is further ordered that
the said receiver, from time to time, make report to the court
of his proceedings in this behalf; and that he be at liberty to
apply to the court for further directions as he may deem
necessary.
No. 132. Decree for ayi account of partner sMjp dealings.
{Proceed substantially as in No. 81^ ante, jpage W2, to the
asterish *, and then proceed as follows:) It is therefore
ordered, adjudged and decreed, that this cause be referred to
the master in chancery of this court to take an account of the
partnership dealings between the complainant and defendant ;
and for the better discovery of the matters aforesaid, the par-
ties hereto respectively are ordered to produce before the said
master, and to leave with him until otherwise directed, all
books, papers and writings in their custody, or under their
control, relating thereto ; and are to be examined upon oath
and interrogatories, as the said master shall direct ; and the
said master will cause to come before him all such witnesses,
whose testimony he may deem necessary, and examine them
UDon oath and interrogatories touching the said accounts.
And it is ordered that what shall appear to be due from either
party to the other on the balance of the said account, be
paid by such party from whom such balance shall be found
due to the other, within after the i^eport of the said
master shall have been approved and confirmed by this court.
And it is further ordered that the said master make his report
herein with all convenient speed ; and that the said master, or
either of said parties, be at liberty to apply to the court for
further dii'ections, and the court reserves the consideration of
costs until after the said master shall have made his report.
No. 133. Final decree for a dissolution of partnership., and
for an account.
{Caption., and title of cause as in No. 79, RTite,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 sucli answer, and the report of the
BILLS EELATING TO PARTNERSHIPS. 349
Decree for Dissolution and Account.
master in chancery of this conrt, to whom this cause was here-
tofore referred to take the proofs of the matters in issue in said
cause, and to state an account of the partnership dealings be-
tween said parties, which said report is hereby approved and
confirmed, and having been argued by counsel for the respective
parties ; and the court being fully advised in the premises, and
on consideration thereof, doth find : that the allegations of* the
said bill are substantially true as therein stated ; and that the
equity of this cause is with the complainant ; and that, etc.
{Here insert cmy other matter found hy the court) ; and that
upon the statement of the account between the said parties, in
respect to their partnership dealings, that there is now due
from the defendant to the complainant the sum of dollars.
It is therefore ordered^ adjudged and decreed, by the court,
that the copartnership heretofore existing between the said
parties be, and the same is hereby, dissolved ; that the defend-
ant pay to the complainant within days from this date,
the said sum of dollars, with lawful interest thereon from
this day until paid, and also the costs of this suit to be taxed
by the clerk of this court ; and in default of such payment, that
execution issue therefor.
CHAPTER XXYIl.
BILLS TO REDEEM.
Section 1.
Nature of.
2.
Who may Redeem.
3.
Within What Time to be Filed.
4.
Parties to.
5.
Terms op Redemption.
6.
Frame of Bill. •
7.
Decree.
SECTION I.
NATURE OF.
it IS a doctrine of courts of equity that a mortgage is a mere
security for the debt, and only a chattel interest ; and that
until a decree of foreclosure, the mortgagor continues the real
owner of the fee. The equity of redemption is considered to
be the real and beneficial estate, tantamount to the fee at law ;
and it is accordingly held to be descendible by inheritance, de-
visable by will, and alienable by deed, precisely as if it were an
absolute estate of inheritance at law. {a)
It is not essential to the right of the mortgagor to redeem that
he should do so within the time limited in the defeasance.
There is no rule of law which requires that a redemption shall
be made within the time limited by the mortgage. Until fore-
closure, it is a subsisting right, unless barred by the lapse of
time. (5)
If a subsequent purchaser takes his conveyance with notice
of the prior mortgage, he, of course, holds subject to the mort-
gage, but he or his grantees have still the right to redeem, and
can only be deprived of that right by a foreclosure of the mort-
(a) Bruere vs. WJiarton, 7 Sim. 483 ; Russell vs. Topping, 5 McLean, 194 ;
Russell VH. Ely, 2 Black, 575.
(6) PrescJibaker vs. Feaman, 32 111. 475 ; Willetts vs. Burgess, 34 111 494
BILLS TO REDEEM. 351
Nature of — Deed Absolute on its Face, etc.
gage, or by its being barred in some of the modes known to the
law. (c)
Deed absolute on its face, when deeined as a mortgage. — A
deed absolute on its face will be deemed as a mortgage, in
equity, if intended as a security for the payment of , money ; {d)
ind the intention of the pai'ties may be manifested either by a
written defeasance, executed simultaneously with the convey-
ance, or by the acts or parol declarations of the parties, {e)
i nd where a conveyance is in fact a mortgage, it continues a
mortgage, although there may be a change of owners, if each
change is coupled with notice of the original transaction, (y)
If the transaction was in fact a loan or security for money
owing, although the conveyance is absolute on its face, still it
will be treated as a mortgage, but that fact nnist be satisfac-
torily shown. ((/) Where the evidence of indebtedness is
retained by the mortgagee, after receiving a deed, absolute in
terms, of the mortgaged premises, and the mortgagee gives back
a lease to the grantor, and receives rent, equity will regard the
deed as a mortgage. (A)
The statute of Illinois provides that, " every deed conveying
real estate, which shall appear to have been intended only as
(c) Z)Mn?a^> 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.
(</) Vansant vs. Allmon, 28 111. 31.
[h) Sjmng vs. Ilaines, 21 Maine, 126.
BILLS TO FORECLOSE MORTGAGES. 373
Parties to — Complainants — Defendants.
heirs. (^) If the mortgagee has assigned absolutely, and di-
vested himself of all interest, he need not be made a party, {j)
If the mortgagee has assigned the mortgage as security or
pledge for a loan on a less amount than the mortgage, he may,
especially where the assignee refuses to proceed, file a bill of
foreclosure in his own name, {k) The assignee also has the
right to file a bill in such a case, if he chooses. (J)
An assignee, who took an assignment merely as a security
for a debt, which has been paid, cannot maintain a bill of
foreclosure, {m)
Defendants. — All persons having an interest in the equity
of redemption should be made defendants to a bill of fore-
closure, {n) And if the equity of redemption belongs to differ-
ent persons as devisees, or as having charges as legatees, thereon,
all of them should be joined as defendants, (o) And hence the
general, though not universal, rule is that all encumbrancers
should be made parties, if not indispensable, at least .as proper
parties to such a bill, whether they are prior or subsequent in-
cumbrancers, {p)
The mortgagor, unless he has assigned the equity of redemp-
tion, is an indispensable party, and if he has died without
transferring or devising the equity of redemption, the heir
then becomes a necessary party, and no decree can be entered
until the heirs are before the court, {q)
The wife of the mortgagor, who has joined in the execution
(r) Roath vs. Smith, 5 Conn. 133 ; Freake vs. Horsley, 2 Freem. 180; Brad-
shaiv vs. Outram, 13 Ves. 234; Griffin vs. Lovell, 42 Miss. 403.
ij) Whitney vs. McKenneij, 7 Johns. Ch. 144; Hahn vs. Ruber, 83 111. 243.
(k) Norton vs. Warren, 3 Edw. 106.
(0 lb.
{m) Wilbur vs. Almij, 12 How. U. S. 180.
{n) Story's Eq. PL § 182, 193; Hoxie vs. Carr, 1 Sum. 173; Slade vs.
Biggs, 3 Hare, 35; Coles vs. Forrest, 10 Beav. 552; Montgomery vs. Brown,
S Gilm. 581; Mulvey vs. Gibbons, 87 111. 367.
(o) McGoivn vs. Yurks, 6 Johns. Ch. 450.
(;>) 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. (<?)
Judgment creditors are necessary parties in proceedings to
subject lands upon which they have liei^s to the payment of
other judgment liens. {/)
If a debtor has conveyed different portions of his property
to different persons, in fraud of his creditors, all the grantees
may be joined in one bill with the grantor, {g) So, two or
more persons holding the property of the judgment debtor
under different conveyances, or becoming indebted to him at
different times, or for distinct sums, may be joined with him as
defendants in a creditor's bill, (h)
A debtor to the judgment debtor may be made a party de-
fendant to a creditor's bill, for the purpose of compelling him
to pay to the complainant the debt which he owes to the judg-
ment debtor. But he is not a necessary party; and he is, in
general, entitled to his costs out of the fund recovered. If
there is no fund, the complainant is frequently compelled to
pay them himself. (^)
Creditors and legatees are exceptions to the general rule
requiring all persons interested in the subject of the bill to be
made parties, {j)
{e) Copous vs. Kauffman, 8 Paige, Cli. 585 ; see Webster vs. Fohom, 58
Maine, 230.
(/) Hoffman vs. Shields,' A W. Va. 490.
(g) Fellows vs. Fellows, 4 Cowen, 682.
(h) Boyd vs. Hoyt, 5 Paige, Ch. 65, 77.
(i) Stafford vs. Mott, 3 Paige, Ch. 100 ; 2 Barb. Ch. Pr. 156.
(J) Brown vs. Ricketts, 3 Johns. Ch. R. 558.
CREDITOE'S BILL. 403
Priority and Lien of Bills.
SECTION IV.
PKIORITY AND LIEN OF BILLS.
The filing of a creditor's bill, or at least the service of pro-
cess, gives the complainant a lien upon the property of the
judgment debtor, by placing it under the control of the court ;
which will not suffer it to be withdrawn, so as to defeat the object
of the bill, by any subsequent act or title. And land of the
debtor sold after this lien attaches will be taken by the buyer as
a lis ^pendens purchaser, subject to the lien of the complainant. (Tc)
The judgment creditor who first institutes a suit obtains a
priority over the creditors in relation to the property and eftects
of the defendant, which cannot be reached by execution at
law. (J) This lien is not obtained by the return of an execution
unsatisfied, but by the commencement of a suit of this nature
.founded upon such return, (m)
The mere filing of a bill without issuing process thereon,
does not create a lien. To obtain a preference as to the equi-
table assets of the debtor, the creditor must follow up the filing
of his bill b}^ the service of his process, with all due diligence.
Therefore, where there were three separate l^ills filed against a
judgment debtor, at different times, and process was first served
in the third suit, upon a reference as to priority of claim, it was
held that the complainant in the third suit was entitled to be
first paid out of the fund in the hands of the receiver, {n)
. Several bills filed by creditors of the same estate, to subject
it to their debts, may be consolidated, (c)
{k) Newdigate vs. Lee, 9 Dana, 17, 20 ; 2 Barb. Cli. Pr. 157, 158 ; Roberts
vs. Albany & West Stockbridge JR. R. Co. 25 Barb. 662.
(I) McCahnont vs. Latcrence, 1 Blatcbf. C. C. E. 232 ; Lyon vs. Robins,
46 111. 276 ; Cornivg vs. Wiite, 2 Paige, Ch. R. 567 ; Albany City Bank vs.
SchermerJiorn, 1 Clarke, 297 ; Boynton vs. Rawson, Id. 584 ; Garden vs. Lowell,
21 Maine, 251 ; Lucas vs. Atwood, 2 Stewart, 378.
(m) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; Wakeman vs. Qrover, 4 Paige,
Ch. 23.
{n) Boynton vs. Rawson, 1 Clarke, 584 ; Burrell vs. Leslie, 6 Paige, Ch.
R. 445 ; see Commack vs. Johnson, 1 Green, Ch. 163.
(o) Campbell's Case, 2 Bland, 209 ; see Claiborne vs. Gross, 7 Leigh, 331.
404 CREDITOE'S BILL. •
Lien of — Frame of Bill.
The filing of a creditor's bill operates as an attachment ot
property which cannot be levied on at law. It gives to the
vigilant creditor a right to priority in payment ; and the cred-
itor who files the second bill will have the second lien, {p) The
lien is confined, however, to the choses in action and equitable
assets of the judgment debtor, and does not attach upon his
personal property tangible by execution, {q)
An assignment of his property by the defendant, after the
filing of a creditor's bill, will not divest the lien of the judg-
ment creditor, {r) It will only convey the property to the
assignee subject to the lien which has thus attached, {s)
A vendee, whose purchase is fraudulent as to creditors, hav-
ing paid off a prior encumbrance, and the sale having been
subsequently set aside, on a creditor's bill, cannot recover back
the money paid to the encumbrancer ; the payment not having
been made under a mistake of fact, but a mistake of law, (J)
SECTION V.
FRAME OF BILL.
A creditor's bill should state the rendition of the judgment^
the court and term in which it was recovered, the nature of the
action, the names of the parties, and the amount of damages
and costs, or debt and damages.
The bill must also aver the issuing of an execution upon the
judgment ; {u) the amount for which it was issued, the direction
to the sheriff and its delivery to him. The bill must show
that an execution was issued to the county in which the defend-
ant resided at the time it was issued ; or state some sufiicient
legal excuse for issuing the execution to a different county, (v)
{p) Corning YB.WMte, 2 Paige, Cli. 568.
(5') Albany City Bank vs. Schermerhorn, 1 Clarke, 297 ; Edmeston vs.
Lyde, 1 Paige, Ch. 687 ; Eager vs. Price, 2 Paige, Ch. 333.
(r) Edmeston vs. Lyde, 1 Paige, Ch. 637.
(«) Corning vs. Wldte, 2 Paige, Ch. 567.
{t) Milwaukee & Minn. R. R. Co. vs. Sontter, 13 Wallace, 517 ; see Ex
parte Dunham, 29 Leg. Int. 389.
{u) Cassidy vs. Meacham, 3 Paige, Ch. 311.
(b) Reed vs. Wlieaton, 7 Paige, Ch. 663 ; Wilbur vs. Collier, 1 Clarke, 315.
CREDITOR'S BILL. 405
Frame of Bill — Prayer — Swearing to.
The bill must also show the time when the execution was
returnable, and the actual return of the sheriff thereon ; {w)
and that it was returned unsatisfied in whole or in part, {x)
The bill must charge that the defendant has some property
or equitable interests or things in action which ought to be
applied to the complainant's judgment.
If a creditor's bill is filed by an assignee of the judgment, he "7
should, of course, state the assignment to him. But he need
not state the consideration of the assignment, {y)
A bill against one of several debtors in a joint judgment for
satisfaction thereof, must negative all right of set-off in any ot
the judgment debtors; (s) and must show that there is no coUu-
lion with the defendants, or either of them, {a)
A judgment creditor may demand from his debtor a disclos-
ure of his assets, and of the names of his creditors in general
.^rms. (b)
Prayer. — The bill contains the usual prayer for process, and
that the defendant may answer and discover ; and in addition,
a prayer for an injunction and a receiver.
Swearing to. — Under the New York practice, creditor's bills
were required to be sworn to by the complainant, or in case of
his absence from the state, or other sufficient cause shown, the
oath of his agent or attorney was held sufficient, (c) If an
injunction or receiver is applied for, the bill must be sworn to
positively. (cZ)
{w) Cassidy vs. Meachan, 3 Paige, Ch. 311; see Mitchell vs. Byrns, 67 111.
523.
{x) Pardee vs. BeGala, 7 Paige, Ch. 132 ; see IsTimeal vs. Parker, 13 111.
824; Newman vs. WUletis, 52 111. 98.
(y) Oleason vs. Gage, 7 Paige, Cli. 121.
(2) Van Cleef vs. Sickles, 2 Edw. Ch. 392.
{a) Conant vs. Sparks, 3 Edw. Ch. 104.
(6) Miers vs. Zanesville & Maysville Turnpike Co. 11 Ohio, 273 ; Cadwal-
lader vs. Granville Alexandrian Society, Id. 292.
(c) 2 Barb. Ch. Pr. 165 ; Sizer vs. Miller, 9 Paige, Ch. R. 605.
(d) Id. I
406 CEEDITOR'S BILL.
Form of Bill.
No. IJtS. Creditor'' s Ull.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting- :
Your orators, A. B., E. F. and G. H., of, etc., partners under
the name and style of B. F. &: Co., respectfully represent unto
your honor, that at the term, 18 — , of the court of said
county, and on, etc., being one of the regular days of said term,
your orators recovered a judgment against one C. D., one of
the defendants hereinafter named, for the sum of dollars,
damages and the costs of suit, whereof the said C. D. stands
convicted ; as by the record of the said .judgment in the office
of the clerk of said court, reference being thereto had, will
more fully appear.
Your orators further represent, that the said judgment
remaining in full force and effect, and the damages aforesaid
unsatisfied, your orators, on, etc., for the purpose of obtaining
satisfaction of the said judgment, sued and prosecuted out of the
said court, a writ of fieri facias., directed to the sheriff of the
county of , that being the county in which the defendant
C. D. resided at the time of the issuing of said writ ; by which
said writ the said sheriff was commanded, that of the goods,
chattels, lands and tenements of the defendant C. D. in his
county, he should cause to be made the said sum of ' dollars,
which your orators in the said court recovered against the
said C. D., and that he should have the money at the clerk's
office of said court, at ^ ^>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." (<?)
The particular matters required by the statute to be stated
in a petition for partition, should be set forth, {p)
Ifo. 155. Bill for partition hetween two heirs, subject to
widoid's dower.
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 B. B,, late of, etc., deceased, the lather of your ora-
tor, was in his lifetime, and at the time of his death, the owner,
and seized in fee simple of the following described real estate,
to wit : {Here describe the pi^emises.)
Your orator further represents, that the said B. B. being so
seized of the said real estate, on or about, etc., departed this
life, intestate, leaving C. B., his widow, and your orator and
D. B., his sons, and only heirs at law.
And 3'our orator further represents, that by the death of the
said B. B., your orator and the said D. B. became seized in fee as
tenants in common, by descent from the said B. B., of the said
described premises ; that is to say, your orator and the said
(o) Rev. Stat. (1874) 750; Rev. Stat. (1877) 708; Louvalle vs. Menard, 1
Gilm. 69.
{p) Ripple vs. Gilbourne, 8 How. U. S. 458.
430 t.^RTITION SUITS.
Form of Bill.
D. B. each became seized of the one equal undivided half part
of the said premises, each of the said portions being subject,
however, to the right of dower of the said C. B., widow of the
said B. B.
And your orator further represents, that the dower of the
said widow, in the said described premises, has never been
admeasured, or in any way set apart to her from the estate of
the said B. B.
Your orator further represents, that no person or persons,
other than your orator and the said D. B. and C. B., have any
int'erest in, or title to, the said described premises, or any part
thereof, in possession, remainder, reversion or otherwise.
Your orator further represents, that he is desirous that a par-
tition or division should be made of the said several parcels of
land, between your orator and the said D. B., according to their
respective rights, estates and interests therein ; or in case the
same cannot be divided and partitioned without material injury
to the parties interested therein, then that the same may be sold,
and the proceeds thereof divided among such parties, accord-
ing to their respective rights and interests.
Your orator further represents, that he has frequently applied
to the said D. B., and requested him to come to an equitable
and just division and partition of the said described premises,
between your orator and the said D. B., or in case they cannot
agree upon an amical division, that they join in making sale
of the said premises, and divide the proceeds thereof; but so it
is, may it please your honor, the said D. B. wholly refuses to
join in any just and equitable division or partition of the
said described premises, or to join in the sale thereof, as afore-
said.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said D. B. and C. B., who are made parties defendant to
this bill, may be required to make full and direct answer to the
same, but not under oath., the answer under oath heing hereby
waived ; and that division and partition of the above described
premises may be made between the parties, according to the
course of practice in this court, and the statute in such case
made and provided, and according to the respective rights of
the parties interested therein, subject to the widow's dower, as
aforesaid ; and in case it shall appear that a partition thereof
cannot be made without manifest injury to the rights of the
parties therein, then that the said premises may be decreed to
be Gold under the direction of this court, and the proceeds of
the sale, after paying the costs and charges of this suit, be
PARTITION SUITS. 431
Form of Bill,
divided among the said parties, according to their respective
rights and interests therein. And that the rights and interests
of the said parties in the premises, or in the proceeds thereof,
may be ascertained and declared^ by the court ; and that your
orator may have such other and further i-elief 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 D. B. and C. T>.
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. (<?)
A widow, by claiming her share of the purchase money
arising out of contracts for the sale of real estate made by the
testator in his lifetime, no deeds having been executed, thereby
bars her right of dower in the lands sold. ( p)
It is a general rule that when the inchoate right to dower is
once vested, that right cannot be divested, except by her own
voluntary act, performed in the mode prescribed by law. {q)
Where a deed from a husband and wife becomes inoperative
as to the husband's estate, because made in fraud of the rights •
of creditors, or from any previous lien or incumbrance, or
where the purchase money is recovered back for a defect of
title in the husband, or by reason of any wrongful act on the
part of the husband, the wife's dower in the land is not barred
by the deed, {r)
Where husband or wife die without issue,, etc. — The statute
provides that
(§ 12.) " If a husband or wife die testate, leaving no child
or descendants of a child, the surviving husband or wife may, ■
if he or she elect, have, in lieu of dower in the estate of which
the deceased husband or wife died seized, whether the right to
such dower has accrued by renunciation as hereinbefore pro-
vided, or otherwise, and of any siiare of the personal estate
which he or slie may be entitled to take with such dower, abso-
lutely, and in his or her own right, one-half of all the real and
personal estate wliich shall remain after the payment of all just
(») StriUing vs. Ross, 16 111. 122 ; Jennings vs. Smith, 29 111. 116.
{o) Jennings vs. Smith, 29 111. 116.
{p) Skinner vs. Newherry, 51 111. 203.
{q) Mcoll vs. Ogclen, 29 111. 386 ; Nichol vs. Miller, 37 111. 388 ; Bee Boyki
vs. McMurphy, 55 111. 236.
(r) Morton vs. Noble, 57 111. 176.
PKOCEEDINGS FOE DOWER. 463
Dower, how Barred — RenuDciation of Will — Divorce, etc.
debts and claims against the estate of the deceased husband or
wife. The election herein provided for may be made wliether
dower has been assigned or not, and at any time before or
within two months after the notification to the survivor of the
payment of debts and claims, and not afterwards."
Renunciation of right under will, etc. — The statute provides
that a husband or wife may renounce his or her rights under
a will or jointure in the following manner :
(§ 13.) " The renunciation in the preceding sections (7, 8,
9, 10, 11 and 12) required, may be in the following form,
to wit :
' 1, A. B., surviving wife (or husband) of C. D,, late of the
county of , and state of — — , deceased, do hereby renounce
and quit all claim to the benefit of any jointure given or assured
to me in lieu of dower (or any devise or other provision made
to me by the last will and testament of the said C. D., or other-
wise, as the case may be,) and I do elect to take in lieu thereof
my dower and legal share in the estate of the said C. D., (or
otherwise, as the case may require.)'
" Which renunciation shall be filed in the office of the clerk
of the county court, and entered by said clerk at large upon
the records of the court, and shall operate as a complete bar
to any claim which such survivor may afterwards set up to
any jointure, devise, testamentary provision or dower thus
renounced." {s)
Effect of divorce, etc. — The statute in relation to the efl[ect
of a divorce upon dower is as follows :
(§ 14.) " If any husband or wife is divorced for the fault of
misconduct of the other, except where the marriage was void
from the beginning, he or she shall not thereby lose dower nor
the benefit of any such jointure ; but if such divorce shall be
for his or her own fault of misconduct, such dower or jointure,
and any estate granted by the laws of this state, in the real or
personal estate of the other, shall be forfeited."
(a) See Brown vs. Pitney, 39 111. 468 ; Simmons vs. Johnson, 47 Dl. 350.
464 PROCEEDINGS FOR DOWER.
Dower, how Barred — Abandonment — Judgment — Exchange, etc.
If upon a divorce a decree is rendered granting alimony to
the wife in lieu of dower, the dower will be barred, {t)
By abandonment and adultery. — The statute further pro-
vides that
(§ 15.) " If a husband or wife voluntarily leave the other
and commit adultery, he or she shall be forever barred of
dower and of the benefit of any such jointure, unless they are
afterwards reconciled and dwell together."
Not hy judgment, etc. — The statute provides that
(§ 16.) " No judgment or decree confessed or recorded
against a husband or wife, and no laches, default, covin, for-
feiture or crime of either, no deed or conveyance of either,
without the assent of the other, evinced by the acknowledg-
ment thereof, as required by law, shall prejudice the right of
the other to dower or jointure, or preclude the other from the
recovery thereof, if otherwise entitled thereto."
The dower of the wife is not defeated by a sale on judgment
and execution against the husband, or otherwise than by her
own assent or misconduct, {u)
Insanity furnishes no reason for a court of equity to interfere
to deprive a person of dower to which he or she is entitled. It
can only be done by the voluntary act of such person, {v)
And it would be erroneous to debar a woman of her claims
to dower in premises included in a mortgage which she did
not sign, {w) or acknowledge in the mode pointed out by the
statute, {x)
By exchange of lands, etc. — It is further provided that
(§ 17.) " If a husband or wife seized of an estate of inherit-
ance in lands, exchange it for other lands, the surviving hus-
{t) See Armstrong vs. Armstrong, 35 111. 109 ; Marvin vs. Collins, 48
111. 156.
{u) Sislc vs. Smith, Admr. 1 Gilm. 503 ; Francisco vs. Hendricks, 28 111. 64.
(v) Ex parte McElwain, 29 111. 442.
\w) Gold vs. Ryan, 14 111. 58.
{x) Russell vs. Rumsey, 85 111. 862; Steele vs. Gellatly, 41 111. 39; see
Johnson vs. Montgomery, 51 111. 185.
PROCEEDINGS FOE DOWER. 465
Elements and Incidents of Dower.
band or wife shall not have dower of both, but shall make
election as hereinbefore provided, to be endowed of the lands
given, or of those taken in exchange ; and if snch election be
not evinced, by the commencement of proceedings for the
recovery and assignment of dower of the lands given in ex-
change, within one year after the death of such husband or
wife, the survivor shall be deemed to have elected to take
dower of the lands received in exchange."
Persons sellvng hy order of court for payment of debts do
not thereby relinquish dower ^ etc. — The statute provides that
(§ 46.) " No person who sells and conveys lands by order
of court for the payment of debts shall be deemed to have
relinquished, by reason of such conveyance, any right of dower
which he or she may have in such lands, unless his or her
relinquishment is specified in the deed or conveyance."
SECTION rv.
ELEMENTS AND INCIDENTS OF DOWEB.
To the consummation of dower, three things are indispensa-
bly requisite : 1st. Marriage. This must be a marriage not
absolutely void, and existing at the death of the husband ; a
wife de facto, whose marriage is voidable by decree, as well as
a wife dejure, is entitled to it ; and the wife shall be endowed,
though the marriage be within the age of consent, and the
husband dies within that age. {y) 2d. Seizin. The husband
must have been seized, some time during the coverture, of the
estate of which the wife is dowable. (s) 3d. Death of the
husband, {a)
Transfer of dower, etc. — Dower is a right resting in action
only, until it is assigned it is inchoate, and is not the subject
{y) Co. Litt. 33, a ; 7 Co. 42 ; Doct. & Stud. 22 ; see Sisk vs. Smith, Admr.
1 Gilm. 503.
(s) Co. Litt. 31, a; 4 Kent, Com. 38 ; 2 Black. Com. 132.
(a) Cruise, Dig. lit. 6, ch. 2, § 22 ; 1 Vern. R. 218 ; 1 Salk. 291 ; Sisk va
Smith, Admr. 1 Gilm. 503.
30
460 PROCEEDINGS FOR DOWER.
Suits for Dower — Duty of Heirs to Assign.
matter of sale or transfer. It cannot be sold under execution.
The only use the widow can make of her dower interest, is to
release it to the owner in fee, until it shall have been set apart
to her. She may release it to the owner of the fee, but she
cannot transfer it to a stranger, (b)
A woman during coverture cannot release her dower to
lands of a prior husband, (c)
A widow's right of dower in land not assigned is not liable
to sale on execution, [d)
A former owner of the fee in land in which a dower right
still exists, who has conveyed the same, with warranty, may
purchase the right of dower for the benefit of his grantee,
however remote, and thus prevent a breach of his covenant, (e)
SECTION V.
. SUITS FOE DOWEE.
Duty of hews to assign dower ^ etc. — The statute provides that
(§ 18.) " It shall be the duty of the heir at law, or other
person having the next estate of inheritance or freehold in any
lands or estate of which any person is entitled to dower, to lay
off and assign such dower as soon as practicable after the death
of the husband or wife of such person.
(§ 19.) " If such heir or other person shall not within one
month next after such death, satisfactorily assign and set over
to the surviving husband or wife, dower in and to all lands,
tenements and hereditaments whereof by law he or she is or
may be dowable, such survivor may sue for and recover the
same by petition in chancery, as hereinafter prescribed, against
such heir or other person, or any tenant in possession, or any
other person claiming right or possession of said estate."
(&) Blain vs. Harrison, 11 111. 384 ; Johnson vs. Montgomery, 51 111. 185 •
La Framboise vs. Orow, 56 111. 197 ; Summers vs. Bobb, 13 111. 483 ; Hoots vs.
Oraham, 23 111. 81 ; Bobbins vs. Kinzie, 45 111. 354 ; Chicago Dock Co. vs.
Kimie, 49 111. 289 ; Wheeler vs. Kinzie, Id. 297.
(c) Osborne vs. Horine, 19 111. 124 ; Bailey vs. West, 41 111. 290.
id) Newman vs. Willetts, 48 111. 534.
(e) La Framboise vs. Orow, 56 111. 197.
PROCEEDINGS FOR DOWER. 467
Who may File Petition, etc. — Frame of Petition.
Who may file ^petition. — (§ 43.) " Heirs, or, if under age,
their guardians, or any other persons interested in lands, tene-
ments or hereditaments, may also petition the court to have
dower assigned to the person entitled thereto, which shall be
proceeded in in the same manner as is prescribed in other
cnses."
Where peUtion may he fiZed. — (§ 20.) " The petition may be
filed in any court of record of competent jurisdiction in the
county where the estate, or some part thereof, is situated."
Where infants are petitioners or defendoMts — Guardia/n
AD LITEM. — By the statute,
(§ 21.) " Infants may petition by guardian or neti friend,
and other persons under guardianship by their conservators.
Wlien an infant or person under guardianship is a defendant,
he may appear by guardian or conservator, or the court may
appoint a guardian ad litem for such person, and compel the
person so appointed to act."
A guardian or minor cannot be in default for not assigning
dower; and an infant is not bound by such assignment, {f)
SECTION VI.
FRAME OF PETITION.
The statute provides that
(§ 22.) " The petition shall set forth the nature of the claim,
and particularly specify the premises in which dower is claimed,
and shall set forth the interests of all parties interested therein
so far as the same are known to the petitioner, and shall pray
for the assignment of such dowei*."
Parties to. — (§ 23.) " Every person having any interest in
the premises, whether in possession or otherwise, and who is
not a petitioner, shall be made a defendant to such petition."
(/) Bonner vs. Peterson, 44 111. 253 ; Strawn vs. Btrawn, 50 111. 256.
468 PROCEEDINGS FOR DOWER.
Parties to, etc. — Form of Petition, etc.
Unknown defendants. — The statute further provides that
(§ 24.) " When there are any persons interested in the prem-
ises whose names are unknown, or the share or quantity of
interest of any of the parties is unknown to the petitioner, or
where such sliare 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.
(§ 25.) " All persons interested in the premises in which
dower is claimed, whose names are unknown, may be made
parties to such petition by the name and description of un-
known owners of the premises, or as the unknown heirs of
any person who may have been interested in the same."
Answer of defendants. — (§ 31.) "The petitioner may, in
his petition, require the defendants, or any of them, to answer
his petition on oath, in which case the answer shall have the
same effect as an answer in chancery under oath."
iVb. 168. Petition for dower hy widow.
To the Honorable , Judge of the Court of the County
of , in the State of Illinois.
The petition of A. B., of, etc., respectfully represents, that
your petitioner, on or about the day of , 18 — , inter-
married with B. B., late of, etc., who afterwards, on or about
the day of , 18 — , departed this life intestate, leaving
your petitioner, his widow, and C. B. and D. B., his children
and only heirs at law. That the said B. B. during the time of
said marriage with your petitioner, was seized in fee of the
following described real estate, situate, lying, and being in the
county of , in the State of Illinois, to wit : {Here insert
description of the premises.) That your petitioner, by virtue
of her said marriage, upon the death of the said B. B., became
and was entitled to dower in the lands above described, which
said dower has never been assigned or set off to your petitioner,
and she has never received any compensation or equivalent
therefor, or for any part thereof.
Your petitioner therefore prays tlie aid of this honorable court
in the premises, and that the writ of summons may issue out
of and under the seal of this court, commanding the said 0. B.
PROCEEDINGS FOK DOWER. 469
Forms of Petition, etc. — AflSdavit.
and D. B., who are made parties defendant hereto, to person-
ally appear before this court, on the first day of the next
term thereof, to be held at the court house in , in the
county of , on the Monday of , 18 — , and then and
there full, true, direct and perfect answer make to all and sin-
gular the matters herein stated, and to stand and abide by the
order of this honorable court in the premises ; and that upon
the hearing hereof, a decree may be made by this honorable
court that your petitioner recover dower in the premises above
described, and that such dower may be assigned and set oif to
her in the manner and according to the provisions of the stat-
ute in such case made and provided ; and that your petitioner
may have such other and further relief in the premises as equity
may require, and to your honor may seem meet.
, Sol. for Petitioner. A. B.
{Add affidavit, as follows :)
No. 169. Affidavit to petition for dower.
ss.
State of Illinois,
County of
On this day of , 18 — , personally appeared the
above-named A. B. and made oath and says that she has
heard read the foregoing petition, and knows the contents
thereof, and that the same are true of her own knowledge in
substance and in fact, except as to such matters as are therein
stated to be on information and belief, and as to such matters
she believes them to be true. A. B.
Subscribed, etc.
No. 170. Petition hy a husband.
To the Honorable , Judge of the Court of the County
of , in the State of Illinois.
The petition of A. B., of, etc., respectfully represents, that
your petitioner, on, etc., intermarried with C. B., late of, etc.,
who afterwards, on, etc., departed this life intestate, leaving
your petitioner, her husband, and D. B., E. B. and F. B., her
children and only heirs at law. That the said C. B. died seized
in fee of the following described real estate, situate, lying, and
being in the county of , in the State of Illinois, to wit :
{Here descinhe the premises.) That your petitioner, by virtue
of his said marriage, upon the death of the said C. B., became
and was entitled to dower in the lands above described, which
said dower has never been assigned or set off to your petitioner.
470 PROCEEDINGS FOR DOWER.
Forms of Petitions.
and he has never received any compensation or equivalent
therefor, or for any part thereof.
Your petitioner therefore prays the aid of this honorable
court in the premises, and that the writ of summons may issue
out of and under the seal of this court, commanding the said
D. B., E. B. and F. B., who are made parties defendant hereto,
to personally appear before this court, on the first day of the
next term thereof, to be held at the court house in ,
in the county of , on the Monday of , A. D.
18 — , and then and there full, true, direct and perfect answer
make to all and singular the matters herein stated and to stand,
to abide by the order of this honorable court in the premises ;
and that upon the hearing hereof, a decree may be made by this
honorable court that your petitioner recover dower in the prem-
ises above described, and that such dower may be assigned and
set off to him in the manner and according to the provisions of
the statute in such case made and provided ; and that your
petitioner may have such other and further relief in the prem
ises as equity may require, and to your honor may seem meet.
, Sol. for Petitioner. A. B.
{Add affidamt, Wo. 169.)
No. 171. Petition hy heirs to have dower assigned.
To the Honorable -, Judge of the Court of the County
of 5 in the State of Illinois.
The petition of A. B. and B. B. respectfully represents that
on, etc., one C. B., late of, etc., departed this life intestate,
leaving E. B., the mother of your petitioners, his widotv, and
your petitioners, his children and only heirs at law. That the
said C. B. died seized in fee of the following described real
estate, situate, lying and being in the county of , in the
State of Illinois, to wit: {Here descrihe the premises^ That
the said E. B., by virtue of her said marriage, upon the death
of the said C. B., became and was entitled to dower in the
lands above described, which said dower has never been
assigned or set off to her, and she has never received any com-
pensation or equivalent therefor, or for any part thereof.
Your petitioner therefore prays the aid of this honorable
court in the premises, and that the writ of summons may issue
out of and under the seal of this court, commanding the said
E. B., who is made party defendant hereto, to personally
appear before this court, on the first day of the next term
thereof, to be held at the court house in in the county
of , on the Monday of , 18 — , and then and
PROCEEDINGS FOR DOWER. 471
Process of Appearance, etc.
there full, true, direct and perfect answer make to all and
singular the matters herein stated, and to stand and abide bj
the order of tliis honorable court in tbe premises ; and that upon
the hearing hereof, a decree may be made by this honorable
court that the dower of the said E. B., in the premises above
described, may be assigned and set off to her in the manner
and according to the provisions of the statute in such case
made and provided ; and that your petitioners may have such
other and further relief in the premises as equity may require
and to your honor may seem meet. A. B.
, Sol. for Petitioners. B. B.
{Add affidm)it, No. 169, ante, j)age ^69.)
SECTION VII.
PROCESS OF APPEARANCE.
The statute in respect to process and service on defendants
in suits for dower is as follows :
How summoned. — (§ 26.) " The defendants to any such
petition shall be summoned in the same manner as defendants
to suits in chancery," {g)
Unknown jparties. — (§ 27.) " Unknown owners, or parties
in interest, of the premises, and the unknown heirs of any
such persons, may be notified by advertisement as in cases in
chancery." (A)
Nonresident defendants. — (§ 28.) " When it shall appear
by affidavit, filed as in cases in chancery, that any defendant
resides or has gone out of the state, or, upon due inquiry,.
cannot be found, or is concealed within this state, so that pro-
cess cannot be served on him, and the affiant shall state the
place of residence 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." (?')
(g) Ante, pp. 14-17.
(h) Ante, p. 81.
(») Ante, pp. 77-79.
472 PEOCEEDINGS FOR DOWER.
Interoleader — Hearing and Decree.
Service ly copy of petition. — (§ 29.) "Non-residents may be
eerved 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." {j)
Setting aside decree where defendants a/re not personally
served. — The statute provides that if
(§ 30.) " Any defendant who is not summoned, served with
a copy of the petition, or shall not receive the notice required
to be sent him by mail, or the heirs, devisees, executors, admin-
istrators, and other legal representatives of such person may
appear and answer the petition within the same time and upon
the same conditions, and with like effect as in other cases in
chancery." (k)
SECTION VIII.
INTERPLEADER.
The statute provides that
(§ 32.) " During the pendency of any such suit or proceed-
ing any person claiming to be interested in the premises may
appear and answer the petition, and assert his or her rights, by
way of interpleader; and the court shall decide upon the
rights of persons appearing as aforesaid, as though they had
been made parties in the first instance."
SECTION IX.
HEARING AND DECREE.
The statute provides that y
(§ 33.) " Petitions for the recovery and assignment of
dower shall be heard and determined by the court upon the
petition, answer, replication, exhibits, and other testimony,
{j) Ante, pp. 79-81.
Ik) Ante, pp. 91-94.
PEOCEEDINGS FOR DOWER. 473
Form of Decree for Dower, etc.
■without tlie necessity of formal pleading. The court may
direct an issue or issues to be tried by a jury, as in other
cases in equity." (m)
No. 172. Decree for dower, and appointing commissioners to
make assignment.
{Caption, and tide, of cause as in No. 79, a,nte, page 198.)
This day canic the petitioner, by L. M., her solicitor, and
the defendants G. H. and J. K., by A. B., their guardian ad
litem y and it a])pearing to the court that the defendants were
each duly served with process more than ten days prior to the
commencement of the present term of this court ; and it ap-
pearing to the court that the defendants G. H. and J. K. were
minors under the age of twenty-one years, and the court hav-
ing appointed A. B., Esq., guardian ad litem for the defend-
ants ; and the defendants, by their guardian ad litem, having
filed an answer to said petition, and the petitioner her replica-
tion thereto ; and the court having ordered said cause to be
referred to the master in chancery of this court to take, and
report to the court, the proof of the matters alleged in said
petition ; and the said master having made report thereof,
which is hereb}' approved and confirmed by the court ; and this
cause coming on to be heard, upon the petition, exhibits, an-
swer of the defendants, by their guardian ad litem, and the
replication thereto, together with the testimony taken and re-
ported to the court by said master, and the court having heard
the arguments of counsel ; and being fully advised in the
premises, and on consideration thereof, doth find, that the
petitioner is the widow of one E. F., who died intestate, on
etc., and, as such widow, is entitled to dower of one-third part
of all the lands whereof her said husband was seized during
coverture ; that during said period of time her husband was
seized in fee simple of the following described real estate, to-
wit : {Here describe the la7id.) That at the time of the death
of said E. F. he left heirs at law, to-wit : G. H. and J. K., who
are the children of the said E. F., and the only persons inter-
ested in said premises except the petitioner.
The court doth, therefore, order, adjudge, and decree that
the petitioner be endowed of one full equal third part of said
premises, and the court doth hereby appoint B. A., D. C, and
F. G., who are not connected with any of the parties, either
{m) Ante, pp. 188-191.
474 PROCEEDINGS FOR DOWER.
Commissionere to Assign Dower — Oath of Commissioners.
by consanguinity or affinity, and are entirely disinterested,
commissioners to assign dower to the petitioner. The said
commissioners will first take the oath requij-ed by law, and then
go upon said premises, and set off and allot to the petitioner
her dower by metes and bounds, according to the quality and
quantity of said premises, giving her the homestead, or dwell-
ing-house of the husband if she desires it, and may set oft" and
allot the dower in the whole of such lands in a body, or out of
two or more of snch tracts of land, in such manner as they may
deem best for all persons interested, and make return in writing
under their hands and seals to the court, of their doings in the
premises by virtue hereof, and if the said commissioners find
that said premises are not susceptible of division without great
injurv thereto, they will so report to the court.
SECTION X.
COMMISSIONERS TO ASSIGN DOWER.
Appointment of. — It is directed by statute that
(§ 34.) " When the court adjudges that the one entitled
thereto recover dower, it shall be so entered of record, together
with a description of the land out of which he or she is to be
so endowed, and the court shall thereupon appoint three com-
missioners, not connected with any of the parties either by
consanguinity or aflfinity, and entirely disinterested, each of
whom shall take the following oath :
No. 173. Oath of commissioners to assign dower.
{Title, etc., as in No. 162, ante, page l^l^lf.^
" I do solemnly swear that I will fairly and impartially
allot and set oft" to A. B., surviving wife (or husband) of C. D.,
her (or his) dower out of the lands and tenements described
in the order of the court for that purpose, if the same can be
done consistently with the interests of the estate according to
the best of my ability : so help me God." G. H.
Subscribed, etc. K. L.
M.N.
Duty of comjm,issioners. — (§ 35.) " The commissioners shall
go upon the premises, and if the same are susceptible of
division, without manifest prejudice to the parties in interest,
PROCEEDINGS FOR DOWER. 475
Duty of Commissioners, etc. — Report of.
shall set off and allot to the person entitled thereto his or her
dower, by metes and bounds, according to quality and quantity,
of all the premises described in the order of the court,"
Dower may he assigned in a hody. — (§ 3G.) " The dower
need not be assigned in each tract separately, but may be
allotted in a body out of one or more of the tracts of lands,
when the same can be done without prejudice to the interests
of any person interested in the premises."
Homestead^ etc. — (§ 37.) " The surviving husband or wife
shall have the homestead or dwelling-house, if he or she desire,
and such allotment shall not affect his or her estate of home-
stead therein, but if the dower is allotted out of other lands,
the acceptance of such allotment shall be a waiver and release
of the estate of homestead of the person entitled to dower,
and his or her children, unless it shall be otherwise ordered by
the court."
The commissioners appointed to set off a widow's dower
have no authority to make a partition of land among the par-
ties entitled to it. They must be sworn, and the statement of
that fact and the oath they took should accompany their
report. And a report made by others than the commissioners
appointed by the court would be void, {n)
In assigning dower, commissioners should have reference to
quantity and quality, so that the portion of the widow shall be
equal in its yearly value to one-third of the yearly value of the
tract from which it is assigned, taking into estimation its
capacity for production at the time, (o)
Rejport of cominissioners. — The statute requires that
(§ 38.) " The commissioners shall make report in writing,
signed by at least two of them, showing what they have done,
and if they have made a division, describing the premises al-
lotted by metes and bounds or other proper description ; and
the allotment so made, if approved by the court, shall vest in
(n) L<yyd vs. Malone, 23 111. 43.
{p) Schnehly vs. Schnebly, 26 111. 116.
476 PROCEEDINGS FOR DOWER.
Allowance in Lieu of Dower, etc.
the person entitled thereto an estate in the lands and tene-
ments set off and allotted to him or her for and during his
or her natural life ; and the court shall forthwith cause such
person to have possession by writ directed to the sheriff for
that purpose."
The form of the report of commissioners in partition suits
may readily be adapted to a report of commissioners to assign
dower, {p)
Commissioners sxibject to the directio7i of the court. — The
statute provides that
(§ 42.) " The commissioners shall, at all times, be subject
to the direction of the court ; and any one or more of them
may, before the final confirmation of the report, be removed,
and others appointed in their stead.
SECTION XI.
ALLOWANCE IN LIEU OF DOWEK.
The statute provides that
(§ 39.) " When the estate out of which dower is to be
assigned consists of a mill or other tenement which cannot be
divided without damage to the whole, and in all cases where
the estate cannot be divided without great injury thereto, the
dower may be assigned of the rents, issues and profits thereof,
to be had and received by the person entitled thereto as tenant
in common with the owners of the estate, or a jury may be
impaneled to inquire of the yearly value of the dower therein,
who shall assess the same accordingly, and the court shall there-
upon enter a decree that there be paid to such person as an
allowance in lieu of dower, on a day therein named, the sum
so assessed as the yearly value of such dower, and the like sum
on the same day of each year thereafter during his or her natu-
ral life, and may make the same a lien on any real estate of
the party against whom such decree is rendered, or cause the
same to be otherwise secured."
(p) See No. 163, ante, p. 445.
PROCEEDINGS FOR DOWER. 477
Damages for Refusal to Assign Dower.
(§ 40.) " Whenever any such decree is made a lien on any
real estate, as provided in the preceding section, and a sale of
Biich real estate shall become necessary to satisfy any such in-
stallment, 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, until all the installments are paid."
Where a widow has petitioned to recover dower, and by
reason of the indivisibility of the property, an allowance has
been made to her in lieu of dower, the sum so fixed cannot
afterwards be changed by a court of equity by reason of the
property subsequently becoming greatly enhanced or depre-
ciated in value, {q)
SECTION XII.
DAMAGES FOR REFUSAL TO ASSIGN DOWER.
The statute provides that
(§ 41.) " Whenever in any action brought for that purpose,
a surviving husband or wife recovers dower in any lands, he
or she shall be entitled to recover reasonable damages from the
time of his or her demand, and a refusal to assign reasonable
dower, which may be assessed by the court, or a jury, if re-
quired, may be impaneled for that purpose, and execution
may issue therefor."
From the time a demand for dower is made, the widow is
entitled to damages ; and the third of the rents which may
have accrued after the demand, is held, generally, to form their
proper measure, {r)
The commencement of a suit for dower may be regarded as
a demand therefor, {s)
iq) Donoghue vs. City of Cliicago, 57 111. 235.
(r) Atkin vs. Merrell, 39 111. 62 ; but see also Bonner vs. Peterson, 44 111.
253 ; Peyton vs. Jeffries, 50 111. 143 ; Walsh vs. Reis, 50 III. 477 ; Stowe vb
Steele, 45 111. 328 ; Strawn vs. Strawn, 50 111. 256.
{a) Id. lb.
478 PROCEEDINGS FOU DOWER.
Mode of Ascertaining Value of Dower.
Wliere the dower right is in separate tracts, and the yearly
value thereof is assessed, the gross sum thus ascertained should
not be made a charge on all the lands, but each separate tract
should be charged only with the value of the dower that arises
therefrom, {t)
SECTION XIII.
MODE OF ASCERTAINING VALUE OF DOWEK, ETC.
The value of life estates is usually ascertained by reference
to scientific tables. In Massachusetts, Dr. Wiggleworth's
table has been adopted by the courts as a rule in estimating the
value of such estates, (u)
Additional Illinois cases relating to dower : Sutherland vs.
Sutherland, 69 111. 481 ; Mehol vs. Todd, 70 111. 295 ; Lombard
vs. Kinzie, 73 111. 44G ; Gale vs. Kinzie, 80 111, 132 ; Levfers
vs. HenJie, 73 111. 405 ; Greenhawrn vs. Austrian, 70 111. 591 ;
Scammon vs. Camphell, 75 111. 223 ; Welch vs. Dutton, 79
111. 4(;5 ; Simpson vs. Ham, 78 111. 203; Uitt vs. Scammon,
82 111. 519; Bowand vs. Carroll, 81 111. 224; Simpson vs.
Zeach, 86 111. 286.
{t) Atkin vs. Merrell, 89 111. 63.
(■u) Estabrook vs. Hapgood, 10 Mass. 313.
PROCEEDINGS FOR DOWER.
479
Tables to Ascertain Value of Dower, etc.
DR. WIGGLEWORTH'S TABLE (u)
Clf observation in New England, adopted by the Supreme Court of Massachusetts, as a ruU
for estimating the value of life estates.
bb
^
c d
M
«tH
bi
a
a
a
Age.
a
a
u
•S 3 2
Age.
a
=3
Age.
V a a
t-i
<u a v
0,-"T3
S"'""^
S
0,—"0
Pi
«
f^S
Ph
Q
"^S
P-(
p
&5.*3
At
33 .
1,848
38
67
809
37
birth.
4,893
1,264
28.15
34
1,810
38
68
772
37
1
3,629
274
35
1,772
35
28.22
69
735
37
2
3,355
188
36
1,737
35
70
698
37
10.06
3
3,107
132
37
1,702
35
71
666
37
4
3,035
84
38
1,667
35
72
624
37
5
2,951
58
40.87
39
1,632
35
73
587
38
6
2,893
55
40
1,597
35
26.04
74
549
38
7
2,R38
47
41
1,562
35
75
511
37
7.83
8
2,791
40
42
1,527
35
76
474
37
9
2.751
36
43
1,492
35
77
437
37
10
2,717
28
39.23
44
1,457
34
78
400
37
11
2,687
27
45
1,423
27
23.92
79
363
37
12
2,660
27
46
1,.396
27
80
366
35
5.85
13
2,633
27
47
1,.369
27
81
291
34
14
2,606
27
48
1,342
27
82
257
34
15
2,579
34
36.16
49
1,315
27
83
223
34
16
2,537
43
50
1,288
27
21.16
84
189
34
17
2,494
4.3
51
1,261
27
85
155
21
4.57
18
2,451
43
52
1,234
27
86
134
21
19
2,408
43
53
1,207
27
87
113
21
20
2.365
43
34.21
54
1,180
27
88
92
20
21
2,3-22
42
55
1,153
27
18.35
89
72
30
22
2,280
42
56
1,126
27
90
52
8
3.73
23
2,238
42
57
1,199
27
91
44
7
24
2,196
42
58
1,072
27
92
37
7
25
2,154
40
32.32
59
1,045
27
93
30
7
26
2,114
38
60
1,018
27
15.43
94
23
T
27
2,076
38
61
991
27
95
16
6
1.(9
26
2,038
38
62
964
27
96
10
5
29
2,000
38
63
937
27
97
5
3
30
1,962
38
30.24
64
910
27
98
2
1
31
1,924
38
65
883
37
12.43
99
1
1
32
1,886
38
66
846
37
A TABLE
Showing the present value of an annuity of one dollar, from 1 to S6 years, the calculation
being made at (he rate of 5 per cent, per annum.
Years.
Dollars.
Cents.
Years.
Dollars.
Cents.
Years.
Dollars.
Cents.
1
95.23
13
9
39.35
25
14
09.39
2
1
8.5.94
\l
9
89.86
26
14
37.51
3
2
72.. 32
10
37.96
27
14
64.30
4
3
54.59
16
10
83.77
28
14
80.91
5
4
32.94
17
11
27.40
29
15
14.10
6
5
07.56
18
11
68.95
30
15
37.24
7
5
78.63
19
12
08.53
31
15
59.28
8
7
46.32
20
12
46.22
32
15
80.96
9
8
10.78
21
12
82.11
33
16
00.25
10
7
72.17
22
13
16..30
34
16
19.29
11
8
30.64
23
13
48.85
35
16
37.41
12
8
86.32
24
13
79.86
36
16
64.68
(») Memoira of the American Academy of Arts and Sciences, vol. 2, p. 131.
480
PROCEEDINGS FOR DOWER.
Tables to ABcertain Value of Dower, etc.
The rate of five per cent, interest per annum was taken be-
cause the chief object is to estimate the value of dower. And
it was observed that experience has shown that in estimating
income from real estate, no more than five per cent, interest
per annum can, in a majority of cases be allowed.
Where the income is to be estimated at six er cent, per
annum, the Portsmouth or Northampton table can be used.
PORTSMOUTH OR NORTHAMPTON TABLES,
And mode of computing value of life interest, etc.
No. of years
No of yeare
Age.
purchase
the annuity
Age.
purchase
the annuitj
is worth.
is worth.
1
10.107
48
9.707
2
11.724
49
9.563
3
12.348
50
9 417
4
12.769
51
9.273
5
12.962
13.156
52
9 129
6
53
8.980
7
13.275
54
8.827
8
13.337
55
8.670
9
13.335
56
8.509
10
13.285
57
8.343
11
13.212
58
8.173
12
13.130
59
7.999
IS
13.044
60
7.820
14
12.953
61
7.637
15
12.857
12.755
62
7.449
16
63
7.253
17
12.655
64
7.052
18
12.562
65
6.841
19
12.477
66
6.625
20
12.398
67
6.405
21
12.329
68
6.179
22
12.265
69
5.949
23
12.200
70
5.715
24
12.132
71
5.479
35
12.063
72
5.241
26
11.992
73
4.781
27
11.917
74
4.565
28
11.841
75
4.354
29
11.763
76
4.154
30
-. 11.682
77
3.952
31
11.598
78
3.742
32
11.512
79
3.514
33
11.423
80
3.281
34
11.331
81
3.156
35
11.2.36
82
2.926
36
11.1.37
83
2.713
37
11.035
84
2.551
38
10.929
10.819
85
2402
39
86
2.266
40
10.705
87
2.138
41
10.589
88
2.031
42
10.473
89
1.882
43
10.356
90
1.689
44
..10.235
91
1.422
46
10.110
92
1.136
46
9.980
93
94
0.806
47
9.846
0.518
PKOCEEDINGS FOR DOWER. 481
Tables to Ascertain Value of Dower, etc.
Rule for coTnputing the value of life estate or annuity :
Calculate the interest at six per cent, for one year upon the
sum to the income of which the person is entitled. Multiply
this interest by the number of years' purchase set opposite the
person's age in the table, and the product is the gross value
of the life estate of such person in said sum.
EXAMPLES.
Suppose a widow's age is 37, and she is entitled to dower in
real estate worth $350.75. One third of this is $116.91|.
Interest on $116.91 one year at 6 per cent, is $7.01. The
number of years' purchase which an annuity of one dollar is
worth, at the age of 37, as appears by the table, is 11 years
and .0035 parts of a year, wdiich, multiplied by 7.01, the
income for one year, gives $77.35 and a fraction as the gross
value of her right of dower.
Suppose a man, whose age is 50, is tenant by the courtesy
in the whole of an estate worth $9,000. The annual interest
on the sum at 6 per cent, is $540. The number of years' pur-
chase which an annuity of one dollar is worth at the age of
50, as per table, is 9.417 parts of a year, which, multiplied by
540, the value of one year, gives $5,085.18 as the gross value of
his life estate in the premises or the proceeds thereof.
The values in this table are calculated on the supposition
that the annuities are payable yearly ; if payable half-yearly,
one-fifth of a year's purchase should be added to those
values, {w)
SECTION XIV.
MISCELLANEOUS PKOVISIONS OF THE STATUTE.
Dower assigned in applications to county court for leave
to sell lands to pay debts. — (§44.) "Whenever application is
made to a county court for leave to sell real estate of a de-
ceased person for payment of debts, or for the sale of real
(w) See Jackson vs. Edwards, 7 Paige, 408, as to computation of dower
right.
' 31
482 PEOCEEDINGS FOR DOWER.
Waste by Persons to Whom Dower is Assigned.
estate of any ward, as authorized by law, and it appears that
there is a dower and homestead, or either interest in the land
sought to be sold, such court may, in the same proceeding, on
the petition of the executor, administrator, guardian or conserva-
tor, or the person entitled to dower and homestead, or either
therein, cause the dower and homestead, or either, to be as-
signed, and shall have the same power, and may take like pro-
ceedings therefor, as hereinbefore provided for assignment of
dower." (x)
Waste hy persons to whom doiver is assigned. — (§ 45.) "IS"©
person who is endowed of any lands shall commit or suffer
any waste thereon on penalty of forfeiting that part of the
estate whereupon such waste is made, to him or them that
have the immediate estate of freehold or inheritance in remain-
der or reversion ; but every person so endowed shall maintain
the houses and tenements with the fences and appurtenances
in good repair, and shall be liable to the person having the
next immediate estate of inheritance therein for all damage
occasioned by any waste committed or suffered by him or her."
(§ 47.) " Section 78 of an act entitled ' An act in regard to
tlie administrations of estates,' approved April 1, 1872, is
hereby repealed : Provided, that this section shall not be so
construed as to affect any rights existing or actions pending at
the time this act shall take effect."
{X) Laws of 1875, p. 75; Rev. Stat. (1877) 430.
CHAPTER XXXIl.
BILLS FOE DIVOECE.
Section 1. Nature of.
2. Cause for Divorce.
3. • Jurisdiction of, and Where Commenced.
4. Natural Impotenct.
5. Hating a Wife or Husband Living »at Time of MAiiRLA.aa.
6. Adultery.
7. Willful Desertion.
8. Habitual Drunkenness.
9. Attempting the Life op the Other.
10. Extreme and Eepeated Cruelty.
11. Conviction of Crime, etc.
12. Defenses to.
13. Injunction in.
14. Hearing and Decrees.
15. Alimony and Expenses.
SECTION I.
NATUEE OF,
A divorce is tlie dissolution of a marriage contracted be-
tween a man and a woman, by the judgment of a court of
competent jurisdiction, or by an act of the legislature. It is
so called from the diversity of the minds of those who are
married, because such as are divorced go each a different way
from the other, [a] Until a decree of divorce be actually
made, neither party can treat the other as sole, even in cases
where the marriage is utterly null and void for some preexist-
ing cause. (5) A decree of divorce must also be made during
the lifetime of both the parties. After the decease of either
the marriage Avill be deemed legal in all respects, (c)
(a) Kedly's Civ. aud Eccl L. pp. 11, 112 ; Bouv. L. D, 439.
(6) 3 Penn. Law Journal, 151, 153.
(c) Reeves, Dom. Rel. 204 ; 1 Black, Com. 440 ; Bour. L. D. 439, 440.
484 BILLS FOR DIVORCE.
Nature of.
Divorces are of two kinds: First, d viticulo matriTnonii —
a total severance of the marriage tie ; and, second, d inensa et
thoro — "from bed and board," — which merely separates the
parties.
The divorce d vinculo matrimonii was never granted by the
ecclesiastical law, except for the most grave reasons. These,
according to Lord Coke, are causa jprocontractus, causa rrietus^
causa iinpote7itioB, seu fridiyitatis, causa ajjinitatis, et causa
consanguinitatis — on account of precontract, fear, impotence
or frigidity, affinity or consanguinity, {d) In England, such a
divorce bastardizes the issue, and, generally speaking, is
allowed only on the ground of some preexisting cause ; (e) but
sometimes by an act of parliament for a supervenient cause. (/" )
When the marriage was dissolved for canonical causes of
impediment, existing previous to its taking place, it was de-
clared void ab initio.
In some of the states of the Union divorces d mnculo are
granted by the state legislatures for such causes as may be
sufficient to induce the members to vote in favor of granting
them ; and they are granted by the courts to which such juris-
diction is given, for certain causes particularly provided for by
law. In some states the legislature never grants a divorce
until after the courts have decreed one. This is still the case
in Mississippi. In Wisconsin the constitution prohibits the
legislature from granting divorces.
In Illinois the only divorce authorized is d vinculo matri-
monii, and it is granted as well for causes arising after as for
those existing before marriage, {cj)
(d) Co. Litt. 235, a.
(e) Reeves, Dom. Rcl. 204-205.
(/) 1 Black. Com. 440; Bouv. L. D. 440.
ig) Cla/rk vs. Lott, 11 111. 105.
BILLS FOR DIVORCE. 485
Causes for Divorce. — Jurisdiction of, and Where Commenced.
SECTION II.
CAUSES FOR DIYOKCE.
The statutes of the different states vary as to the causes of
divorce. In Illinois, the revised statute of 1874, in force July
1, 1874, provides that
(§ 1.) "' In every case in which a marriage has been, or
hereafter may be contracted and solemnized between any two
persons, and it shall be adjudged, in the manner hereinafter
provided, that either party, at the time of such mai-riage, was
and continues to be naturally impotent ; or that he or she had
a wife or husband living at the time of such marriage ; or that
either party has committed adultery subsequently to the mar-
riage ; or has willfully deserted or absented himself or herself
from the husband or wife, without any reasonable cause, for
the space of two years ; or has been guilty of habitual drunk-
enness for the space of two years ; or has attempted the life
of the other by poison or other means showing malice ; or has
been guilty of extreme and repeated cruelty ; or has been con-
victed of felony or other infamous crime, it shall be lawful for
the injured party to obtain a divorce and dissolution of such
marriao^e contract."
SECTION III.
JUBISDIOnON' OF, ANT) WHERE COMMENCED.
The statute of Illinois provides that
(§ 4.) " The circuit courts of the respective counties and
the superior court of Cook county shall have jurisdiction in all
cases of divorce and alimony allowed by this act."
Where commenced. — The statute further requires that
(§ 5.) " The proceedings shall be had in the county where
the complainant resides, but process may be directed to any
county in the state."
486 BILLS FOR DIVORCE.
Complainant must be a Resident. — Impotency.
Complainant must he a resident^ etc. — The statute provides
that
(§ 2.) " No person shall be entitled to a divorce, in pur-
suance of the provisions of this act, who has not resided in
the state one whole year next before filing his or her bill or
petition, unless the offense or injury complained of was com-
mitted within this state, or whilst one or both of the parties
resided in this state."
Effect of divorce. — (§ 3.) " No divorce shall in anywise
affect the legitimacy of the children of such marriage, except
in cases where the marriage shall be declared void on the
grounds of a prior marriage." {g)
It will be convenient to consider the several grounds for
divorce in Illinois separately, under various sections, which
will be done.
SECTION IV
NATHEAL INPOTENOY AT TIME OF MARKIAGE.
We have seen, that under the first section of the revised
divorce act, if either party at the time of marriage was, and
continue to be, naturally impotent, it is a good ground for
divorce in Illinois.
It has always been deemed requisite to the entire validity of
every marriage, not only that the parties should be of different
sex, but that they shall be essentially complete in their several
organizations and capabilities. " As the first cause and reason
of matrimony," says, Ayliffe, " ought to be the design of having
offspring ; so the second ought to be the avoiding of fornica-
tion." {h) And the law recognizes these two " as the principal
ends of matrimony," namely, " a lawful indulgence of the pas-
sions to prevent licentiousness, and the procreation of children
according to the evident design of Divine Providence. (*)
When one knowingly marries another who is past the age
ig) See Clark vs. Lott, 11 111. 105.
{h) Ayl. Parer. 360.
{i) 1 Robert, 379 ; 3 Phill. 325, 1 Eng. Eccl. R. 408, 409.
BILLS FOR DIVORCE. 487
Natural Impotency.
of procreation, he cannot complain on the ground of unfruit-
fiilness. {j ) If the party married be within that age, and have
the power of copulation, there is, ordinarily, no means of cer-
tainly determining that at the time of the marriage an inculpa-
ble sterility existed. Indeed medical writers have stated with-
out qualification, that there is no buch means, {]c) which is
probably true, wherever there is no discoverable malformation.
In all the reported cases, therefore, the principal inquiry has
been as to the ability to copulate, and when, from any cause
which is irremediable, there is an inability, the object of the
marriage is frustrated. {I)
Every marriage contract implies a capacity in the parties of
consummation, {m) When a person, knowing his own defect,
induces another, who is ignorant of it, to marry him, he com-
mits a gross fraud and a grievous injury ; [n) and when he is
himself ignorant of it, there is equally a violation of the con-
tract, and an equal injury, though there be no intentional
wrong. In the former case, the marriage would be clearly
voidable on the single ground of fraud, if the principles which
govern ordinary contracts were to be applied to it ; and, in the
latter case, it would seem to be equally so on the ground of mis-
take, and the violation of the implied warranty. (<?) But owing
to the peculiar nature of the contract of marriage, this infirmity,
though sometimes treated as a pure fraud, {p) is, according to
better opinions, regarded in a somewhat different aspect, [q)
This matrimonial impediment is termed impotence, or impo-
tency. It may be difficult to give to it a perfectly accurate and
unexceptional definition : in Mr, Shelford's work, it is said to
( j) Brown vs. Brown, 1 Hagg, 533, 3 Eng. Eccl. R. 229.
{k) Guy's Forensic Med. Amer. Ed. 51.
il) Bishop on Mar. & Div. § 226.
{m) Chitty's Med. Juris. 378; Poynter on Mar. & Div. 123.
{n) Briggs vs. Morgan, 3 Pliill. 325, 1 Eng. Eccl. R. 408, 410.
{o) Bishop on Mar. & Div. § 99, 100, 117, 227; Rutherford's Inst. 1, ch.
15, § 9 ; Rogers, Eccl. La^v, 640.
{p) Benton vs. Benton, 1 Day, 111 ; Guilford vs. Guilford, 9 Conn. 321,
327.
iq) Burtis vs. Biirtis, 1 Hopk. Ch. R. 557 ; Perry vs. Perry, 2 Paige, Ch.
R. 501 ; Bishop on Mar. & Div. i^ 227.
488 BILLS FOR DIVORCE.
Natural Im potency.
" consist in the incapacity for copulation, or in the impossibility
of accomplishing the act of procreation." ('/•) Frazer, in his
work on Domestic Relations, defines it as the " incapacity of
eitlier spouse for the act of copulation, or as some think, the
want of power to procreate children." [s) Webster has it, " ina-
bility to beget." While Bishop defines it as ^ such an incurable
incapacity that the party can neither copulate nor procreate, {t)
Impotence, to be a ground for a divorce, must exist at the
time of marriage ; (u) and it must be incurable, (vj) And the
burden of proof is on the complainant to establish that it ex-
isted at the time of the marriage, and that it is incurable, {w)
The sentence of divorce on the ground of impotency declares
the marriage void from the beginning, (a;)
On a bill by the husband for the wife's impotency, it was
held, that the wife will be compelled to submit to a surgical
examination ; but if she has already submitted to an examina-
tion by competent surgeons, whose testimony can be "readily
obtained, she will be excused from further examination, {y)
A motion for an order to compel the defendant to submit to
an examination is addressed to the discretion of the chancellor,
and his ruling is held not to be appealable, (s)
Where there is reason to believe that the incapacity can be
removed by a slight surgical operation, the court will not annul
the marriage. But the court has no power to compel a wife
to submit to such operation ; and her refusal to do so furnishes
no ground to annul the marriage. («)
(r) Sholford ou Mar. & Div. 202.
(s) Frazer on Dom. Rel. 53.
(t) Bishop ou Mar. & Div. § 228.
(u) Bishop on Mar. & Div. § 235 ; Bascomb vs. Bascomb, 5 Foster, 267.
(■») Ferris vs. Ferris, 8 Conn. 166 ; 2 Atkiu. 188 ; J. O. vs. H. G. 33 Md.
401.
(ic) Newell vs. Newell, 9 Paige, Ch. E. 25 ; Devaribagh vs. Denanbagli, 5
Paige, Ch. R. 554 ; Welde vs. Welde, 2 Lee, 580 ; Bishop on Mar. & DJv. § 235.
(x) Bishop on Mar. & Div. § 46, 53, 59, 226, 227, 235, 261.
(y) Devanhagh vs. Devanbagh, 5 Paige, Ch. R. 554 ; see Newell vs. Newell,
9 Paige, Ch. R. 25.
(s) Anon. 35 Ala. 326 ; see LeBarron vs. LeBarron, 35 Vt. 365.
(a) Devanbagh vs. Decanlngh, 6 ''aigi . Ch. 175.
BILLS FOR JJiVORCE. 489
Form of Bill on the Ground of Impotency.
No. 17 Ji-. Bill for divorce on the ground of hnpotenGy.
To the Honorable , Judge of the Court of tlie Countj
of , ill the State of llliuois,
In Chancery sitting :
Your orator, A. B., of, etc., respectfully represents unto
your honor, that on, etc., your orator intermarried with one
C. D., now C. )^.., at, etc. ; and that your orator is now, and has
been a resident of this state for over one whole year next be-
fore the tiling of this bill.
Your orator further represents, that immediately after the
said marriage took place your orator discovered that the said
C. B., at the time of her intermarriage with your orator as
aforesaid, was, and has continued to be naturally impotent, and
physically incapable of entering into the marriage state ; that,
etc., {Ilere state the particidar character of the ionjjotency /)
so that the said marriage could not be consummated by the
sexual intercourse of the parties.
And your orator further represents, that as he is inlbrmed
and believes, and so charges the fact to be, that the said im-
potency and physical incapacity of the said C. B. still exists
and is incurable.
Forasmuch, therefore, as your orator is Avitliout remedy in
the premises, except in a court of equity ; and to the end that
the said C. B., who is made a party defendant to this bill, may
be required to make full and direct answer to the same ; and
that the said marriage between your orator and the said C. B.
may be dissolved and declared null and void by the decree
of this court, according to the statute in such case made and
provided ; and that your orator may have such other and fur-
ther i-elief in the premises as equity may require and to your
honor shall seem meet.
May it please your honor to grant the writ of summons in
chancery, directed to the sheriif of the said county of ,
commanding 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
coun^ty of aforesaid, then and there to answer this bill, etc.
490 BILLS FOR DIVOECE.
Divorce on the Ground of Former Marriage. — Form of Bill.
SECTION V.
ON ACCOUNT OF HAVING A WIFE OR HUSBAND LIVING AT THE
TIME OF MARRIAGE.
The statute authorizes a dissolution of a marriage where
either party had a wife or husband living at the time of such
marriage.
A second marriage, while the first remains undissolved by
death or divorce, is, by the common law, null and void. (5)
But to render the second marriage null, the first must be
valid, (c)
A husband is not entitled to a decree of nullity of marriage
on the ground that the former husband of his wife obtained a
divorce by her fraudulent collusion, {d)
Where a marriage is declared void on the grounds of a
prior marriage, the children of the subsequent marriage are
illegitimate, {e)
No. 175. Bill for a divorce on the ground of a former rp,a^-
riage, etc., praying to he allowed to resume maiden name.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Your oratrix, A. B., of, etc., respectfully represents unto your
honor, that her maiden name was A. M., and she was the
daughter of L. M., late of, etc., now deceased ; that on, etc.,
your oratrix intermarried with one C. B., the defendant here-
inafter named, at, etc. ; and that your oratrix is now, and has
been a resident of this state for more than years last past ;
that your oratrix lived and cohabited with the said C. B., as
his wife, from the time of their marriage until, etc., when she
left him, and has ever since refused to live and cohabit with
him.
(6) Oaines vs. Relf, 12 How. U. S. 472 ; Gaines vs. Hennen, 24 How. U.
S. 554 ; Carre vs. Carre, 2 Yeates, 207 ; 2 Kent's Com. 79 ; Bishop on Mar.
& Div. § 205.
(c) 2 Add. 471 ; 2 Eng. Eccl. R. 381 ; 12 Jur. 174 ; 11 Queen's B. Rep. 173.
(d) Einnier vs. Kinnier, 53 Barb. N. T. 454.
(e) Clark vs. Lott, 11 111. 105 ; see § 3 of the revised divorce act of 1874.
BILLS FOR DIVORCE. 491
Adultery. .
Your oratrix further represents, that the said C. B., at the
time of such marriage with your oratrix, had a wife, who was
then, and is still living, to wit : one E. B., of, etc. ; that the
said C. B. and E. B. were lawfully married at, etc., on, etc.,
and for a considerable time thereafter lived and cohabited as
husband and wife ; which said marriage was at the time of the
marriage of your oratrix and the said 0. B., still subsisting ; by
reason whereof the said marriage of your oratrix and the said
C. B. was, and is, wholly null and void.
Forasmuch, therefore, as your oratrix is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. B., who is made party defendant to this bill, may
be required to make full and direct answer to the same ; and
that the said marriage between your oratrix and the defendant
may be decreed by the court to be null and void, according to
the statute in such case made and provided ; that your oratrix
may be allowed to resume her maiden name of A. M. as before
marriage ; and that your oratrix may have such other and fur-
ther relief in the premises as equity may require, and to your
honor may seem meet.
May it please your honor, etc. {Pra/y process as in No. 17 Jf,
ante, j)age JiS9.) >
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. (<?)
The poverty of the husband, though no reason for refusing
to order an allowance, is to be considered with the circum-
stances in life of the parties, in fixing the amount, (p) Even
if he has no property, and depends merely upon his labor for
support, he may be compelled to apply a part of his daily
earnings to this purpose, {q)
Where a separation is decreed, and the wife's conduct is
blameless, an allowance equal to what the law gives her on
the death of her husband is reasonable, {r) Thus, in a judg-
ment for separation on the ground of abandonment, a provision
that the wife have the use of one-third of his real estate during
her life, and the same proportion of his personal estate abso-
lutely, was held to be proper, {s)
When the property is not sufficient for the support of all
(m) Lawrence vs. Lawrence, 3 Paige, Ch. 267 ; Atuos vb. Amos, 3 Green,
N. J. Ch. 171 ; Turner vs. Turner, 44 Ala. 437.
(72.) lb. ; Morrell vs. Morrell, 2 Barb. S. C. R. 480.
(o) Germond vs. Germoyid, 4 Paige, Ch. 643 ; Burr vs. Burr, 10 Paige,
Ch. 20.
ip) Hallock vs. Hallock, 4 How. N. T. 160.
{q) lb. ; Eirly vs. Kirhy, 1 Paige, Cli. 261 ; Prince vs. Prince, 1 Rich. S.
C. Ch. 282 ; sec Bailey vs. Bailey, 21 Gratt. Va. 43.
(r) Thornberry vd. Thornherry, 4 Litt. 252 ; Peckford vs. Peckford, \
Paige, Ch. 274; Burr vs. Burr, 7 Hill, Ch. 207.
(«) Fishli vs. Fi»hli, 2 Litt, 337 ; Miller vs. Miller, 6 Johns. Ch. 91 ; Bwrr
VB. Burr, 10 Paige, Ch. 20.
SEPARATE MAINTENANCE. 533
Decree for Separate Maintenance.
dependent upon it, and the parties have been accustomed to
relj upon joint labor for support, the allowance ought not to
be so large as to relieve the wife from all necessity for doing
anything for her own support, (t)
In adjudging the amount of allowance, the husband's estate
will be presumed to yield a reasonable income, unless the con-
trary be shown, with a sufficient reason for its unproductive-
ness ; and the reduction of the husband's estate by gifts cannot
be allowed to diminish the wife's alimony, {u)
Modification of alloivance. — The allowance in the final
decree is subject to modification from time to time, and leave
fihould be given in the decree to apply for such modification as
the changing circumstances of the parties may render just, (-y)
Wo. 197. Decree for a separate maintenance.
{Caption^ and title of cause as in Wo. 79, unte, page 198.)
This cause having come on to be heard upon the bill of com-
plaint herein, the answer of the defendant thereto, the replica-
tion of the complainant to such answer, and the proofs taken
in this cause, and the report of the master in chancery filed
lierein, which said report is hereby approved and confirmed ;
and the court having heard the arguments of the counsel for
the respective parties, and being fully advised in the premises,
doth find that the allegations in the said bill contained are
true, as therein stated ; and that the equities of this cause are
with the complainant.
It is therefore ordered, adjudged and decreed, by the court,
that the complainant is entitled to a separate maintenance from
the defendant ; and that she be allowed, and that the defend-
ant do pay to the complainant, the sum of dollars a year,
commencing from the date of the filing of the complainant's
bill of complaint heroin, to wit, from, etc., and that the said
sum be paid in monthly installments of dollars each, pay-
able in advance, on the day of each and every month,
until the further order of the court ; and it is further ordered,
{t) Broken vs. Brown, 22 Mich. 242.
{u) Forrest vs. Forrest, 5 Bosw. 672.
(■») Forrest vs. Forrest, 3 Abbott, N. Y. 144 ; Lockridge vs. Lockridge, 2 B.
Monr. 258 ; Rogers vs. Vines, 6 Ired. Eq. 293 ; WhecUr vs. Wheeler, 18 111. 89 ;
Waldron vs. Waldron, 5 P. F. Smith, Pa. 281 ; Fisher vs. FisJier, 32 Iowa, 20.
534 SEPARATE MAINTENANCE.
Decree for Separate Maintenance.
adjudged and decreed, that this decree be and remain a lien
on the real estate of the defendant imtil he shall have given
security for its faithful performance, to the satisfaction of the
court or to the complainant, and that the defendant pay the
costs of this suit ; and in case of default in the payment of
the said instalments of money as the same become due, or
the costs herein, that execution issue thereon ; and tliat either
party be at liberty to apply to the court as circumstances
may require.
See decree for alimony in suits for divorce, No. 193, cmie,
page 523.
CHAPTER XXXIY.
BILLS TO QUIET TITLE.
Section 1. When Proper, and Nature of.
2. Forms op Bills.
3. Form of Decree.
SECTION I.
WHEN PKOPEE, AND NATURE OF.
The 50th section of the Chancery Practice Act, of Illinois, in
force July 1, 1872, provides,
" The court may hear and determine bills to quiet title, and
to remove clouds from the title to real estate, whether the
lands in controversy are improved or unoccupied, or unim-
proved or unoccupied ; and the taking possession of such lands^
after the commencement of suit by the party claiming the title
or the adverse title, or any one under or through such person
or persons, shall not in anywise aifect the complainant's right
to a final decree upon his bill." {a)
This is the act of 1869, re-written. (5)
Prior to the statute above referred to, it was always held
that a bill to quiet title would not lie where the complainant
had a remedy at law, or could maintain ejectment, (c) But
such bills were proper where the complainant was in posses-
sion, {d) accompanied by title, to remove a cloud upon such
title. \e)
{a) Rev. Stat. (18T4) 204; Rev. Stat. (1877) 189; see Sea vs. Morehouse,.
79 111. 2 IG; Brooks vs. Kerns, 86 111. 547.
{h) Laws of 111. 18G9, p. 356.
(c) Alton M. d-F. Co. vs. Bxckmasfer, 13 III. 201; Kennedy \&. Nortliup,.
15 111. 148, 152; Synith vs. McConneU, 17 Til. 135; TF/n^ vs. Sherrer, 77 111. 200..
(d) Stout vs. Cook, 37 111. 283 ; Conway vs. Cable, 37 111. 82 ; Morris vs.
Hogle, 37 111. 153; Fitts vs. Bams, 42 111. .391; McFadden \s.WortMngton,
45 111. 363 ; Christie vs. Bale, 46 111. 117 ; Rvcker vs. Boolep, 49 111. 378 : Car-
roll vs. Safford, 3 How. U. S. 459 ; Scott vs. Onderdonk, 14 N. Y.9 ; BatchyB,
Buffalo, 38 N. Y. 276 ; Orten vs. S?nith, 18 N. H. 263.
(e) Bayerque vs. CoJien, \ McAllister, 113 ; Overman vs. Parker, Hemp..
692; see Collms vs. Collins, 19 Ohio St. R. 468; Hardin vs. Jones, 86 111. 313..
536 BILLS TO QUIET TITLE.
Nature of, and when Proper.
A court of equity has jurisdiction to set aside a title pro-
cured by fraud; {/) or to establish an equitable title of the
complainant, where the defendant is in possession under a legal
title. (^)
A bill to quiet the title to lands, will not lie by one in pos-
session, who does not tirst show some right, legal or equit-
able. (A)
The jurisdiction of equity to quiet title is intended to reach
persons out of possession, who cannot be compelled to defend
their right at law. {i)
The rule seems to be, in cases of bills to remove clouds upon
titles, that where the claim of an adverse party to land is valid
upon the face of the instrument, or the proceedings sought to
be set aside, and it requires the establishment of extrinsic facts
to show the supposed conveyance to be inoperative and void, a
court of equity may interfere to set it aside as a cloud upon the
real title to the land, and order the same to be delivered up
and canceled, {j)
A bill in equity which states only a pretended title in the
defendant, and prays for relief against it on the ground of an
apprehended injury, cannot be maintained, ijc) But it need
not show that the claim set up by the defendant is one which
would he, prima facie good at law; nor need it set forth the
ground upon which the defendant asserts the validity of his
title. {I)
if) Nelson vs. RochweU, 14 111. 375 ; Kennedy vs. Northup, 15 111. 152.
(gr) Shay vs. Norton, 48 111. 105, 106, and cases there cited.
{h) Stark vs. Starr, 6 Wallace, 402 ; Kings vs. French, 5 Chicago Legal
News, 470 ; Hopkins vs. Granger, 52 111. 504 ; West vs. Schnehly, 54 111. 523 ;
Eoa/r vs. Harris, 11 111. 24; Bowles vs. Mc Allen, 16 111. 30.
(t) Barron vs. Bobbins, 23 Mich. 22 ; see King vs. Higgins, 8 Oregon, 406.
(/) Reed vs. Tyler, 56 111. 288 ; Hamilton vs. Ciimmings, 1 Johns. Ch. 517 ;
Pettit vs. Shepherd, 5 Paige, Ch. 493 ; Piersall vs. Elliott, 6 Pet. 95 ; Ward
vs. Dewey, 16 N. Y. 519 ; Goulson vs. City of Portland, 1 Deadj, 481 ; Fonda
vs. Sage, 48 N. T. 173 ; Mulligan vs. Baring, 3 Daley, N. T. 75 ; Crooke vs.
■Andrews, 40 N. Y. 547.
(A;) Torrent vs. Booming, 23 Mich. 354
(Z) Holhrook vs. Winson, 23 Mich. 394.
BILLS TO QUIET TITLE. 537
Nature of, and when Proper.
Where land has been laid out in town lots, and the occu-
pants are threatened with numerous suits, a bill will lie to quiet
the title, though each of tlie complainants mav have a legal
title, and, therefore, an adequate remedy at law. (w.)
Under tlie right conferred by the statute, a bill of peace will
lie against a number of parties having distinct claims, to quiet
the complainant's title to lands granted by act of congi-ess. (n)
Where a written proposition for the sale of lauds Avitliout
consideration and not under seal, was delivered by the owner
thereof to another, but which offer of sale was not accepted by
the latter so as to be binding upon the former, and the vendee
afterwards wrote upon the same an acceptance of the offer, and
caused the proposal and acceptance to be recorded in the
recorder's office of the county in which the land was situated,
in violation of a pledge to the contrary, and in fraud of the
rights of the vendor, the instrument, as it stood upon the
record, was regarded as a cloud upon the title of the latter,
which, upon a bill filed for the purpose by the vendor against
the vendee and his assignee, who had notice of the facts, a
court of chancery would take jurisdiction to remove the cloud
upon the title, (o)
A bill in equity to quiet title will lie in lavor of an occu-
pant of part of a house against one who, having entered
another part by the complainant's permission, remains there,
claiming title to the whole house under a deed alleged by the
plaintiff to be a forgery, (p)
Where a grantor in possession asserts that the deed was
intended as a mortgage, the grantee may maintain a bill to
quiet title, unless the grantor has the legal title and no inter-
vention of equities renders the remedy at law incomplete, (q)
Although a sale of a house situated on leased ground, owned
and occupied as a homestead, under an execution, confers no
(m) Cretvs vs. Bitrcham, 1 Black, U. S. 352; see Gage vs. Chapman. 56
111. 311.
(h) Central Pacific R. R. Co. vs. Dyer, 1 Sawyer, 641.
(o) Larmon vs. Jordon, 56 111. 204; Brizzolara vs. Mosher, 71 111. 41.
{p) SitUica}i vs. Finnegaii, 101 Ma.-;s. 44T; bee Gould vs. SteiiibiO'/, 84
111. 170.
iq) SJun/s vs. Norton. 48 111. TOO.
538 BILLS TO QUIET TITLE.
Nature of, and when Proper.
title, still, it being a cloud on the title, equity will take juris-
diction to remove the cloud, especially when the purchaser
under the execution is in possession, and threatens to remove
the house, and thus commit waste, {r)
"Where a sheriff, who was interested in a cause, was improp-
erly allowed, after his term of office had expired, to amend the
return upon the summons therein, so as to obviate an objection
as to the jurisdiction, and it appearing he was insolvent, a court
of equity had jurisdiction upon a bill filed for that purpose, to
relieve the defendant, in the original proceeding, from the effect
of the amended return — the same, under such circumstances,
being fraudulently made, and operating as a cloud upon his
title, (s)
In a bill to quiet title the complainant is not bound to show
a perfect title as against all the world, {t)
Equity will entertain jurisdiction at the instance of the owner
in fee of lands to remove a cloud upon his title created by
a sale of the premises, and a deed thereto under a decree of
foreclosure of a mortgage thereon, although the decree and
deed as to him are void, he not having been served with process
in the foreclosure suit, and although the land is not chargeable
with the mortgage by reason of the same not having been
recorded, and because he had no notice of its existence at the
time he purchased, (u)
Although the levy and sale, and deed in pursuance of them,
are void for uncertainty, yet when the defendant claims title
under them, a court of chancery will render a decree quieting
the title, [v)
A conveyance by virtue of a void decree, though of no effect,
is still a cloud on the title which a court of equity will take
cognizance of and remove, {w) And although parties claiming
(r) Co-nklin vs. Foster, 57 111. 104.
(«) 0' Conner vs. Wilson, 57 111. 226.
{t) Rucker vs. Dooley, 49 111. 377.
(w) Eodgen vs. Outtery, 58 111. 431.
(«) Stout vs. Cook, 37 111. 283.
(w) Campbell vs. McCanhan, 41 111. 46 ; Johnson vs. Johnson, 30 111. 215 ;
Morris vs. Ho(/le, 37 111. 150; Groves vs. Webber, 72 111. 606; Emmons vs.
Moore, 85 111. 304.
BILLS TO QUIET TITLE. 539
Nature of, and wlien Proper.
under a void sheriff's deed had no right to the land, yet it was
such a cloud on the owner's title, as would warrant a court of
equity in entertaining a bill for its removal, (a?)
On a bill to quiet title, where it is alleged that a sheriff's
deed, executed to the defendant, is a cloud upon such title, it
will be proper, the facts warranting it, to quiet the title of the
complainant by setting aside the sheriff's deed, but the court
should not decree a conveyance by a holder of such deed to the
complainant, {y)
Before the statute to which we have referred, it was held in
Illinois, that a court of equity would not inquire into the
validity of a tax sale, merely to determine whether it is a
cloud on the legal title, and to enjoin the holder from asserting
it. It was held solely in the province of a court of law to try its
validity, (s) But it is now held that a part}^ in possession of
land may maintain a bill in chancery against one out of pos-
session, to set aside as invalid, and a cloud upon complainant's
title, a sale of the land for taxes and a deed thereunder, {a)
In the case of a tax certificate, issued upon an illegal sale of
land for taxes, a court of equity will take jurisdiction to aimul
the sale and cancel the tax certificate, and thus remove a cloud
upon the title to the land, (h)
In a proper case the court will only set aside the tax sale,
upon condition that all the taxes paid by the party claiming
under the tax sale should be refunded to him. (c)
A court of equity has power to remove a cloud upon the
title of a party in possession of land, claiming to be the owner,
such cloud arising upon a collector's deed on a sale for taxes,
when the taxes had been, in fact, paid before sale, {d)
[x) Fitis vs. Davis, 42 111. 391; ConiceU vs. Walkins, 71 111. 488.
(//) Backer vs. Dooley, 49 111. 377.
[z) Hamilton vs. Quigley, 46 111. 90; Springer vs. Rosette, 47 111. 223.
(a) Reed vs. Tgler, 56 111. 288; Gage vs. Chapman, Id. 311; Gage vs. Bil-
lings, Id. 268; Gage vs. Rohrback, Id. 262; see Whitney vs. Stephens, 77 111.
585.
(h) Gage vs. Chapman, 56 111. 311; Reed vs. Tyler, Id. 288; sec Gag2 vs.
Rohrback, 56 111. 262; Gage vs. Billings, lb. 268.
(c) Reed vs. Tyler, 56 111. 288; Phelps vs. Harding, 87 III. 442.
id) Gage vs. Billings, 56 III. 268.
540 BILLS TO QUIET TITLE.
Form of Bill to Cancel Deed.
SECTION II.
FORMS OF BILLS.
*
iVb. 198. Bill to quiet title and to cancel deed.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Your orator, A, B., of, etc., respectfully represents unto your
honor, that on, etc.. one E. F., late of, etc., now deceased, being
the owner in fee simple of the following described i^eal estate,
to wit: {Here descrihe the same^ by his deed of that date,
duly executed and acknowledged, conveyed the said described
premises to one G. H., of, etc. ; and that afterwards, on, etc.,
the said G. H., by his deed of that date, duly executed and
acknowledged, conveyed the said premises to B. B., late of,
etc., but now deceased, the father of your orator.
Your orator further represents, that on, etc., the said B. B.
departed this life, intestate, leaving your orator his only heir
at law, by means whereof your orator became, and now is, the
owner in fee of the said premises.
Your orator further represents, that up to and at the time ol
the conveyance from the said G. H. to the said B. B. the said
premises were vacant and unoccupied ; that soon after your
orator's, father purchased said lands he took possession and
commenced the improvement of the same, and the said premises
are now in a full state of cultivation, with a valuable dwelling-
house, barn, and other improvements thereon ; and that the
same have been in the actual use, occupation, and possession ot
the said B. B. and your orator ever since the said purchase by
the said B. B. from the said G. H.
Your orator further represents, that all the said deeds of con-
veyance, except tlie deed from the said E. F. to the said G. H.,
were duly recorded in the recorder's office of said county soon
after the same were executed and delivered ; that the said deed
of conveyance from the said E. F. to the said G. H., by some
accident or oversight on the part of the said G. H., was not
recorded until, etc. ; and that one J. K., the defendant herein-
after named, who is a speculator in lands and defective titles,
discovered, by some means, that there was no deed on record
from the said E. F. deceased, and that there was a link want-
ing in the chain of your orator's title to said premises, well
knowing that your orator was in the possession of the same,
claiming title thereto in fee, on, etc., made application to D. F.
BILLS TO QUIET TITLE. 541
Form of Bill to Set Aside Tax Deed.
and C. F., the sons and only heirs at law of the said E. F.,
deceased, as it is claimed, the said E. F. then having been
dead for a long S])ace of time, and, by some means or repre-
sentations, procured a quit-claim deed of conveyance from the
said D. F. and C. F. as tlie heirs at law of the said E. F., for
the said described premises ; and on, etc., filed the same for
record in the recorder's office in said county, and, by reason of
his said deed being first of record, and in order to aimoy and
vex your orator in tlie premises, now sets up and claims title
to the said lands as against your orator, but refuses to com-
mence a suit at law against your orator to try title to the said
premises.
Your orator further represents, that the said deed of convey-
ance of the said D. F. and C. F. to tlie said J. K., by reason of the
same having been first placed on record in the recorder's office
of said county, is a cloud upon the title of your orator in said
premises, and tends to depreciate the value and sale thereof.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said J. K., who is made party defendant to this bill, may
be required to make full and direct answer to the same, hut
not under oath, the answer under oath being hereby waived /
and that the said deed of conveyance from the said D. F. and
C. F. to the said J. K., bearing date on, etc., as aforesaid, of
the said premises, may be set aside and declared void as
against your orator, as a cloud upon the title of your orator ;
and that the said deed may be delivered up to be canceled ;
and that your orator may have such other and further relief in
the premises as equity may require and to your honor shall
seem meet.
May it please your honor to grant the writ of summons in
cliancery, directed to the sheriff of the said county of ,
commanding him that he summon the defendant J. K. to
appear before the said court, on the 1st day of the next
term thereof, to be held at the court house in , in the
county of aforesaid, then and there to answer this bill,
etc.
No. 199. Bill to quiet title, and to set aside a tax deed.
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting:
Your orator, A. B., of, etc., respectfully represents unto your
honor, that your orator is the owner in fee simple of the following
542 BILLS TO QUIET TITLE.
Form of Bill to Set Aside Tax Deed.
described real estate, to wit : [Here describe the premises /) that
he derived title thereto as follows : {Here set forth the chain
of title /) that ever since your orator purchased the said prem-
ises as aforesaid, he has been, and is now, in tlie actual pos-
session thereof, and has paid all the taxes assessed thereon as
the same became due and payable.
Your orator further represents, that for the year 18 — , there
was assessed upon the said premises for the state and county
taxes for that year, the sum of dollars, which said assess-
ment was on, etc., duly paid by your orator to E. F., the col-
lector of taxes, in and for the township of , that being the
township in which said premises are situated ; as will appear
by the tax receipt therefor, ready to be produced, a copy of
which is hereto attached, marked " Exhibit A," and is made a
part of this bill of complaint.
Your orator further represents, that on, etc., on« G. H., the
county treasurer of said county, filed in the county clerk's
office, of the county aforesaid, a delinquent list, and published
notice of application for judgment, in which said delinquent
list and notice the said premises were not included ; and he
did not, with the county clerk of said county, correct .the said
delinquent list, and make the affidavit required by law, on the
first day of the term of the county court of said county ; that,
notwithstanding the defects and omissions of duty as aforesaid,
and that the taxes on the said premises had been duly paid by
your orator as aforesaid, the said county treasurer sued for, and
on, etc., obtained a judgment and precept in the county court
aforesaid against the said premises, and afterwards, on, etc., at
a public sale of lands and town lots for the taxes due and re-
maining unpaid thereon for the year 18 — , as aforesaid, sold
the said premises to one R. S., and issued the usual certificate
of purchase therefor ; that the said R. S. afterwards, on, etc.,
assigned his said certificate of purchase to one O. P. ; that
afterwards, on, etc., upon a fraudulent and defective affidavit
of tlie said O. P., the clerk of the county court of said county,
executed a deed of conveyance to the said O. P. ; and that the
said O. P. afterwards, on, etc., by his quit-claim deed of that
date, conveyed all his right, title and interest in the said prem-
ises, to C. 1)., of, etc., the defendant hereinafter named ; that
the said tax deed to the said O. P., and the quit-claim deed
from the said O. P. to the said C. D., were filed for record in
the recorder's office of the said county of , on, etc., and
duly recorded in book of deeds, on pages .
Your orator further represents, that he had no notice of the
said premises having been so sold, for said taxes,- or the execu-
BILLS TO QUIET TITLE. 543
Form of Bill to Set Aside Tax Deed.
tion of the said certificate of purchase, or the niaking of the
said deeds of conveyance, until, etc. ; and that as soon as he
learned thereof, he called upon the said C. D. and exl)ibited to
him your orator's tax receipt as aforesaid, showing that said
taxes had been paid by your orator, and the said sale had been
erroneously made, and demanded of the said C. D. that he exe-
cute a quit-claim deed for said premises to your orator, and thus
relieve the title of your orator in the said premises from the
cloud cast thereon by the tax sale and deeds as aforesaid, v^^ith
which reasonable request in that behalf, the said C. D. refused
to comply, falsely pretending that the said taxes had not been
paid, and that the judgment for taxes, sale and deeds were in
every respect regular and valid ; and claimed to have a valid
title to said premises, but declined to institute a suit at law
against your orator to test the validity of his title to said
premises.
Your orator further represents, that the said tax deed to the
said O. P., and the quit-claim deed from the said O. P. to the
said 0. D. are clouds upon the title of your orator in the said
premises, and tend to depreciate the value thereof, and ought,
therefore, to be set aside and declared null and void, and be
delivered up to be canceled under the direction of this honor-
able court.
Forasmuch, therefore, as your orator is without remedy in the
premises, except in a court of equity ; and to the end that the
said C. D., who is made party defendant to this bill, may be
required to make full and direct answer to the same, hut Tiot
xmder oatJi, the answer under oath heing herehy waived i and
that the said judgment against the said premises, the proceed-
ings thereon, the tax deed to the said O. P., and the deed from
the said O. P. to the defendant as aforesaid, may be set aside
and declared void as against your orator, as a cloud upon the
title of your orator ; and that the said deeds may be decreed
to be delivered up to be canceled ; and that your orator may
have such other and further relief in the premises as equity
may require and to your honor shall seem meet.
May it please your honor, etc. {Pray jproeess as in No.
198, ante, page S40.)
544 BILLS TO QUIET TITLE.
Form of Bill to Set Aside a Contract.
No. WO. Bill to quiet title and to set aside a contract of
sale, {e)
To the Honorable , Judge of the Court of the County
of , in the State of ,
In Chancery sitting :
Tour orator, A. B., of, etc., respectfully represents unto your
honor, that your orator is seized in fee simple of the following
described real estate, to wit : {Here insert descrijjtioni) that
on, etc., one C. D., of, etc., one of the defendants hereinafter
named, applied to your orator, and represented that he was the
agent of the Rock River College Association, and as such was
about to purchase lands in the vicinity of the above described
premises, and obtained from your orator a proposition for the
sale of the said premises, in the words and figures following,
to wit :
" Chicago, January 22, 1869.
" I will sell to C. D., Sup't Rock River College Association,
the {Here describe the 'premises) for dollars per acre, one
fourth cash, balance one, two and three years, with interest at
eight per cent. I further agree to wait until May 1, 1869, for
first payment, by purchaser giving bond with approved secu-
rity for payment, with interest at eight per cent, as above.
A. B."
Tour orator further r ^presents, that the said C. D., at the
time of the making of such proposition, requested your orator
to give him ten days' refusal upon the terms mentioned therein,
which your orator refused to do, but did tell him that if, within
the next ten days after that, he received an ofier to purchase
the said premises, he would advise the said C. D. of such offer
before selling the same.
Tour orator further represents, that your orator saw the
said C. D. almost daily for the next ten days after the making
of the said proposition ; that the said C. D. never notified your
orator during that time of any acceptance of said proposition ;
and that afterwards, on the 30th day of January, 1869, your
orator and the said C. D. met, and, by mutual consent, the
said proposition was abandoned ; that afterwards, on the
1st day of February, 1869, your orator contracted to sell an
undivided half of the said premises to one E. F. ; and after-
wards, on the 10th day of February, 1869, your orator bound
himself to convey five acres of the said premises to Cook
(e) Larmon vs. Jordan, 56 111. 204.
BILLS TO QUIET TITLE. 546
Form of Bill to Set Aaide a Contract.
county, for the purposes of a Normal school ; that on the 8th
day of the same month, the Park bill passed one branch of the
legislature, and was expected to pass the other branch, which
would greatly enhance the value of said premises ; that after-
wards, on the 17th day of February, 18G9, the said C. D.
applied to your orator and offered to pay him dollars,
and take a contract for the sale of the said premises, which
offer your orator declined, aiid declared the said former pro-
posal abandoned.
Your orator further represents, that on the 18th day of
February, 1869, the said C. D., in order to defraud your orator,
and to compel your orator to make sale of said premises to
him under said proposition, wrote, under the said proposal, the
following words, to wit : " The above proposal accepted, and
notice gi'ven February 18, 1869. C. D." And afterwards, on
the 26th day of March, 1869, caused the said proposal and
acceptance to be recorded in the recorder's office of Cook
county, wherein the said premises were situated.
Your orator further represents, that afterwards, the said
C. D. assigned the said proposal to one .G. H., of, etc., another
defendant hereinafter named, who now pretends to hold the
same as a valid contract with your orator.
Your orator further represents, that the said proposal, with
the said acceptance thereunder written, and recorded as afore-
said, is a cloud upon your orator's title in the said premises,
and has the effect to greatly depreciate the value thereof, and
to prevent your orator from making sale of the same.
Forasmuch, therefore, as your orator is without remedy in
the premises, except in a court of equity ; and to the end that
the said C. D. and G. H., who are made parties defendants to
this bill, may be required to make full and direct answer to the
same, hit not under oath, the answer under oath ieing hereby
waived I and that the said supposed contract may be declared
null and void, and as a cloud upon the title of your orator may
be removed, and be delivered up to be canceled ; and that your
orator may have such other and further relief in the premises
as equity may require, and to your honor shall seem meet.
May it please your honor, etc. [Pray process as in No..
198, ante, page 54-0.)
85
646 BILLS TO QUIET TITLE.
Form of Decree.
SECTION II.
FORM OF DECKEE.
No, ^01. Decree to quiet title and to cancel deed.
{Ca/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 herein, the answer thereto, the replication of the
complainant to such answer, and the proofs taken in said cause,
and having been argued by counsel for the respective parties,
and the court having duly considered the same, and being fully-
advised in the premises ;
Doth order, adjudge and decree that the said deed of con-
veyance from the said D. F. and C. F. to the defendant J. K.,
bearing date on, etc., of the said premises, to wit : {Here
describe the premises^) and recorded in the recorder's office of
the said county of , be and the same is hereby set aside
and declared null and void, as against the complainant, his
heirs and assigns, as a cloud upon the title of the complainant,
and that the defendant J. K. do deliver up the said deed to be
canceled by the clerk of this court.
It is further ordered, that the defendant pay the costs of
this suit, to be taxed by the clerk, and that execution issue
therefor.
On a bill to remove a cloud upon the title of complainant,
it is not proper for the court to decree a conveyance of the
title, alleged to be a cluud, to the complainant. It is sufficient
for the court to remove the deeds as a clond and no more. (/")
(/) Conwell vs. Watkins, 71 111. 488.
CHAPTER XXXV.
BILLS TO SET ASmE WILLS.
Section 1. Nature of, and When Proper.
2. What Necessary to Constitute a Valid Will.
3. Fraud in Procuring Execution of Will.
4. Want of Capacity to M^\:ke a Will.
5. Form of Bill.
6. Issue of Facts to be Tried by a Jury.
7. Decree.
SECTION I.
NATURE OF, AND WHEN PKOPER.
Parties in interest may contest the validity of a will by a
bill in chancery, as well as before the probate court, {a)
The 7th section of the statute of wills of Illinois provides,
that if any person interested shall, within three years after the
probate of a will or codicil in the county court, by his bill in
chancery, contest the validity of the same, an issue at law shall
be made up, whether the writing produced be the will of the
testator or not, which shall be tried by a jury in the circuit
court of the county wherein the will or codicil was proven and
recorded, according to the practice of courts of chancery in
similar cases ; but if no such suit shall be commenced within the
time aforesaid, the probate shall be forever binding and conclu-
sive on all parties concerned, saving to infants, J^emes covert,
persons absent from the state or non compos mentis, the like
period after the removal of their respective disabilities. And
in all such trials by jury the certificate of the oath of the wit-
nesses at the time of the first probate shall be admitted as
evidence, and have such weight as the jury shall think it may
deserve.
(a) Duncan va. Duncan, 23 111. 264 ; Flinn vs. Owen, 58 111. 111.
648 BILLS TO SET ASIDE WILLS.
What Necessary to Constitute a Valid Will.
The certificate of tlie oath of the witnesses at the time of the
first probate of the will \s> 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.
(<?) Munday vs. Taylor, 7 Bush, Ky. 491 ; see Burch vs. Brovm, 46 Mo.
441; see Rutherford vs. Morris, 77 111. 397; Carpenter vs. Calvert, 83 111. 62.
(;;) Gardner vs. Gardner, 22 Wend. 526; WhitenacJc vs. Stryker, 1 Green,
Ch. 8; see Yoe vs. McCord, 74 111. 73.
(g) Snow vs. Benton, 28 111. 306.
BILLS TO SET ASIDE WILLS. 651
Form of.
SECTION V.
FORM OF "BILL.
No. W^. Bill hy heirs at law to set aside a will.
To the Honorable , Judge of tlie Court of the County
of , in the State of ,
In Chancery sitting:
Your oratrix, A. B., and your orator, B. B., the husband of
the said A. B., of, etc., respectfully represents unto your honor,
that one C. D., the father of your oratrix, A. B., late of, etc.,
but now deceased, on, etc., executed a certain instrument in
writing purporting to be his last will and testament ; and after-
wards, on, etc., departed this life, leaving the follow^ing named
persons, besides your oratrix, his heirs at law, and legal repre-
sentatives, to wit : E. D., his widow, F. D., his son, G. H,,
his daughter, late G. D., since intermarried with L. H., of,
etc., H. D. and J. D., infant children of O. D., deceased, late
son of the said C. D,, deceased, the defendants hereinafter
named.
And your oratrix and orator further represent, that the said
C. D., in and by the said instrument of writing, so purporting
to be his last will and testament, professedly bequeaths all his
estate, both real and personal, as follows, that is to say : To the
said E. D., his widow, etc. etc. ; to the said F. D., his son, all,
etc. ; and to all the other of his children and grandchildren
nothing whatever, as will more fully appear from the said
instrument in writing, when produced in court, and from a
copy of the same which is hereto attached, marked " Exhibit
A," and is made a part of this bill.
Your oratrix and orator further represent, that on, etc., the
said instrument in writing, purporting to be the last will and
testament of the said C. D., was exhibited to the court of
the county of , for probate, and the same was then and
there probated, and letters testamentary thereon were granted
to one W. P., the person named in the said instrument of
writing, and one of the defendants hereinafter named, to act
as executor thereof; and tlie said W. P. then and there took
upon himself the burden of sole executor of tlie said supposed
will of the said C. D., deceased.
Your oratrix and orator further represent, that the said C.
D., at the tim.e of executing the said instrument in writing,
purporting to be his last will and testament, was not of sound
552 BILLS TO SET ASIDE WILLS.
Form of.
mind and memory ; but, on tlie contrary, was in his dotage,
and his mind and memory was so impaired as to render him
wholly incapable of making any just and proper distribution of
his estate.
Your oratrix and orator further represent, that the defendants
E. D. and F. D., the only legatees in the said pretended will,
used and exercised many undue arts and fraudulent practices, and
resorted to falsehood and misrepresentation to induce the said
C. D. to execute said instrument of writing, and the said C. D.,
in executing the same, was, in fact, under improper restraint
and undue influence from the said arts and fraudulent practices
of the defendants E. D. and F. D. And your oratrix and orator
particularly represent, that the defendants E. D. and F. D., in
order to induce the said 0. D. to execute the said instrument
in writing, did, etc. {Here set forth any 'particular acts resorted
to to obtain the execution of the will.)
Your oratrix and orator furtlier represent, that the said H.
D. and J. D., children of the said O. D. deceased, are infants
under the age of years, and have no legal guardian, and
therefore a guardian ad litem should be appointed by the court,
to appear for and represent the interests of the said minor
defendants.
Forasmuch, therefore, as your oratrix and orator are without
remedy in the premises, except in a court of equity, and to the
end that the said E. D., F. D., G. H., L. H., H. D., J. D. and
W. P., executor of the last M'ill and testament of C. D. deceased,
who are made parties defendants to this bill, may be required
to make full and direct' answer to the same, hut not under oath^
the answer under oath heing hereby waived j that a guardian
ad litem may be appointed for the court by the defendants H.
D. and J. D., infants ; that the said instrument in writing and
the probate thereof may be set aside and declared null and
void, and not tlie last will and testament of the said C. D.
deceased, and the estate of the said C. D. distributed among
his heirs according to law ; and that your oratrix and orator
may have such other and further relief in the premises as equity
may require and to your honor shall seem meet.
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 sunimou the defendants E. D., F.
D., G. H., L. H., H. D., J. D. and W. P., executor of the last
will and testament of the said C. D. deceased, to appear before
the said court on the tirst day of the next term thereof,
to be held at the court houso in , in the county of
afbresaid, then and there to answci- tliis bill, etc.
Sol. for Coviyilainants.
BILLS TO SET ASIDE WILLS. 553
Issue of Fact to be Tried by a Jury — Decree, etc.
SECTION VI
ISSUE OF FACTS TO BE TEIED BY A JURY.
The statute, as we have seen, requires an issue at law to be
made up, whether the writing produced be the will of the tes-
tator or not, which shall be tried by a jury in the circuit court
of the county wherein the will or codicil was proven and re-
corded, according to the practice of courts of chancery in similar
cases, [r)
No. W3. Order directing an issue of fact to he tried by a
jury as to the validity of a will.
{Caption, and title of cause as m No. 79, suite, page 198.)
This cause came on to be heard upon the pleadings filed, and
the issues made up by the pleadings. It is ordered that the
following issues of fact be made and tried by a jury, to wit :
1. Was the writing read in evidence, purporting to be the
last will and testament of E. F., deceased, the last will and testa-
ment of the said E. F. or not.
2. Was the said E. F., at the time of the execution and
attestation of the said writing read in evidence, purporting to
be the last will and testament of the said E. F., of sound mind
and memory.
3. Was, etc. {Here insert any other issue of fact raised hy
the pleadings.)
SECTION VII.
DECREE.
No. WJ^.. Decree setting aside a will, etc.
{Caption, and title of cause as in No. 79, ^nte, jjage 198.)
This cause having come on to be heard upon the bill of com-
plaint herein, the answer of the defendants thereto, and the
replication of the complainant to such answer; and the court
(r) See Hubbard vs. Hi<hhard, 6 Mass. 399; Brooks vs. Barrett, 7 Pick.
98; Rigg vs. Wifton, 13 11). 15; Mgatt vs. Walker, 44 111. 485; Pai>;.--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 rc<juircd.
(§ 36.) " If any contractor shall fail to furnish such state-
ment witliin five days after demand made, as aforesaid, he shall
forfeit to such owner the sum of fifty dollars for every such
off'ense, which may l:>e 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
<lay."(.;')
2^0. ^22. Suggestion of damages oti the dissolution of am
i7ijunction.
In the Court.
Term, 18—.
In Chancery.
And now on this day of , 18 — , comes the defend-
ant, by his solicitor, and according to the form of the statute in
such case made and provided, suggests to the court here, that
by reason of the wrongful suing out of said injunction in this
cause, this defendant was compelled to, and did, pay out and
expend divers sums of money, amounting to the sum of
dollars, for the fees and cliarges of solicitors and counsel, and
for other charges and expenses in and about his defense in that
behalf; {Any other damages may he here alleged in lilce man-
ner ^) by means of which premises, the defendant has sustained
damages to the amount of dollars, and the said damages
remain wholly unpaid to the defendant ; wherefore the defend-
ant asks that said damages may be assessed to him, against the
complainant, in pursuance of said statute. (Jc)
, Sol. for Defendant.
(j) See Langaher vs. Pontiac & N. W. R. R. Co. Chicago Legal News, 190.
{k) See note (/), ante, p. 614.
CHAPTEE XLI.
MISCELLANEOUS F0KM8.
During the preparation of this work want of space has been
constantly apprehended, and many less important forms were
omitted in their proper places. It has been thought advisable
to give some of them a place under the head of " miscellaneous
forms."
No. 223. Order where defendant appears^ or is hrought into
court hy attachment and admits his contempt, that he put
in his answer within a specified time, (a)
{Caption, with title of cause as in No. 79, ante, page 198.)
It appearing to the court that the defendant C. D. being in
contempt for not appearing or answering to the bill of com-
plaint in this cause, a writ of attachment had issued against
him, directed to the shei'iff of the county of , returnable
forthwith I whereupon the sheriff has returned that he had
attached the defendant C. J)., and had him in custody before
the court ; and the said C. D. now being before the court, and
consenting to put in his answer, in this suit, and to pay the
costs of his contempt, when duly taxed ; on motion of Mr. ,
solicitor for the complainant, it is ordered that the said C. D.
put in his answer to the bill of complaint within days
from the date of this order, or that the complainant may apply
to this court for such further order as may be just.
No. 22^. Order for commit7nent of defendant for disobeying
order to put in his answer. (5)
{Caption, with title of cause as in No. 79, ante, page 198.)
An order having been entered in this cause on the day
of , 18 — , requiring the defendant C. D. to put iii his an-
swer to the bill of complaint within days from the date
of said order, or that in default thereof the complainant might
(a) See ante, pp. 81-84.
lb) See ante, pp. 83-84.
MISCELLANEOUS EOKMS. 619
Orders.
be at liberty to apply to tliis court for such further order as might
be just ; and it appearing to the court that the defendant C. D.
has failed to put in his answer as required by said order ; and
this court now adjudging the said C. D. to have been guilty of
the misconduct alleged, and that such misconduct was calcu-
lated to, or did actually defeat, impair, impede or prejudice the
rights or remedies of the complainant in this cause, it is there-
upon, on motion of Mr. , solicitor for the complainant,
ordered that the said C. D. be, and he is hereby ordered, to
stand committed to the common jail of the county of ,
there to remain charged upon this contempt until he shall have
put in his answer as aforesaid ; unless the court shall see fit
sooner to discharge him. And it is further ordered that a
warrant issue for that purpose.
No. 2^5. Order in case of contempt, for not answering —
where defendant denies his contempt — directing the filing
of interrogatories, etc. (c)
{Caption, with title of cause as in No. 79, ante, page 198.)
It appearing to the court that the defendant C. D., being
in contempt for not appearing or answering to the bill of com-
plaint in this cause, a writ of attachment had issued against
him, directed to the sheriff of the county of , returnable
forthyjith J whereupon the sheriff has returned that he had
attached the defendant C. D., and had him in custody before
the court ; and the said C. D. being now before the court, and
denying that he is guilty of the misconduct alleged against
him ; it is ordered that the complainant do within days
file, with the clerk of this court, interrogatories specifying the
facts and circumstances alleged against the said C. D. ; and
that he serve a copy thereof on the said C. D. ; and that the
said C. D. put in written answers to such interrogatories, upon
oath, and file the same within days, after the time when
such interrogatories are served on him, in the office of the clerl'
of this court. And it is further ordered, that it be referred to
the master in chancery of this court, to examine the said C. D.,
on oath, upon the said interrogatories; and to take such fur-
ther proofs as either party may produce before him in relation
to the alleged contempt ; and that he report such answers and
proofs to this court. And it is further ordered that the said
sheriff detain the defendant in his custody ; and that the saif'
C D. attend, from day to day, before this court, until the fui
ther order of the court.
(c) See ante, pp. 81-84.
620 MISCELLANEOUS FOEMS.
Orders.
On a reference of this nature the master is not authorized to
receive the ex parte affidavits of witnesses, unless the order of
reference expressly authorizes him to do so. The parties must
produce and examine the witnesses before the master ; so that
they may be cross-examined by the adverse party. (^
No. 'B'26. Order convicting defendant of a contempt after his
examination upon interrogatories, [e)
{Caption, a/n,d title of cause as in No. 79, a,nte, page 198.)
A writ of attachment having been heretofore issued out of
and under the seal of this court, against the defendant C. D.,
for his contempt in not answering the complainant^ s bill, di-
rected to the sheriff of the county of , and returnable
forthwith', and the said sheriff having returned that he had
attached the said C. D., and taken his body, and had him in
custody before the court ; and the said C. D. having been by
virtue of such attachment personally before the court, on the
said day of instant ; and denying the alleged con-
tempt, it was thereupon ordered that the complainant in this
cause should, within days, file in the office of the clerk
of this court interrogatories specif^dng the facts and circum-
stances alleged against the said C. D. ; and that he serve a
copy thereof on the said C. D. ; and that tlie said C. D. should
put in written answers to such interrogatories, upon oath, and
file the same within da.ys after the service of such inter-
rogatories ; and that it should be referred to the master in
chancery of this court, to examine the said C. D., on oath, upon
such interrogatories, and to take such further proofs as either
party might produce before him in relation to the alleged con-
tempt ; and it now appearing to the court from the report of
the said master, and the answers and proofs thereto annexed,
that the said C. D. has committed the contempt with which he
is charged, and this court now adjudging him to have been
guilty of the misconduct alleged, and that such misconduct was
calculated to, or did, actually defeat, impair, impede or preju-
dice the riglits of the complainant in this cause ; it is therefore
ordered, that a fine of dollars be, and the same is hereby
imposed upon the said C. D. for his said misconduct. And it is
further ordered, that the said C. D. do pay to the said complain-
ant the costs and expenses of the proceedings for such miscon-
(d) Gumming vs. Wagoner, 7 Paige, Ch. 603.
(e) See ante, pp. 81-84.
MISCELLANEOUS FORMS. 621
Orders.
duct, and now taxed at the sum of dollars. And it i&
further ordered, that the said C. D. be, and he is hereby directed
to stand committed to the common jail of the county of ,
there to remain charged with this contempt until he shall have
fully answ^ered the said bill of complaint, and paid such fine
and costs ; unless the court shall see fit sooner to discharge
him. And that a warrant issue for that purpose.
Upon this order a mittiinus, or warrant of commitment for
contempt in not appearing, wnll issue.
No. ^27. Order to refer second or third answer on the old
exceptions. (/")
{Cajption, and title of cause as in No. 79, ante, page 198.)
Exceptions having been heretofore taken to the answer of the
defendant C. D,, and such answer having been reported insuffi-
cient in the matters of the first and fourth exceptions, the
defendant has put in a second {or third) answer to the bill in
this cause ; which answer the complainant alleges to be insuffi-
cient in the matters of the said first and fourth exceptions : It
is therefore ordered that it be referred to the master in chancery
of this court, to whom such exceptions were originally referred,
to look into the bill of complaint, the answer of the defendant,
and the said first and fourth exceptions, and to report whether
such second {or third) answer is sufficient in the matters of the
exceptions, or not.
No. 228. Order for sheriff acting as sergeant-at-arms. {g)
{Caption, and title of cause as in No. 79, ante, page 198.)
The defendant 0. D. being in contempt for not appearing
and answering to the bill of complaint in this cause, and a com-
mission of rebellion having been heretofore issued out of and
under the seal of this court, directed to certain commissioners
therein named, commanding them to attach the said C. D. as a
rebel and contemner of the law, and to have him before this
court, on the day of instant ; and the said commis-
sioners having returned that they had made diligent search and
inquiry after the said C. D. so as to attach his body by virtue
of the said commission, but that notwithstanding all their
endeavors they could not meet Avith him for that purpose, as
by such commission and the return thereto appears. It is
(/) See ante, pp. 81-84.
(g) See ante, p. 85.
MISCELLANEOUS FORMS.
Orders.
thereupon ordered that the sheriff of the county of , now-
attending this court at its present term, and executing all the
powers and duties of a sergeant-at-arms^ do forthwith go and
take the said C. D. into his custody, and him safely keep, and
bring him immediately into this court, before the court, to
answer for his contempt, and to do and receive what this court
shall thereupon further order in the premises. And it is fur-
ther ordered that the said sheriff do with all convenient speed
certify to this court, under his hand, his doings in the premises.
Upon this order a warrant to the sheriff acting as sergeant-at-
arms will issue.
No. 2^9. Order for a sequestration. (A)
(Caption, and title of cause as in No 79, £iTite,page 198.)
The defendant being in contempt for not appearing and
answering the bill of complaint in this cause, and a warrant
having been issued to the sheriff' of the county of , attend-
ing this court at lisjy^esent term, and as such, executing all the
duties of a sergeant-at-arms, requiring him forthwith to go and
take the said C. D. into his custody and bring him into this
court to answer for his contempt, in pursuance of an order of
this court made on the day of ; and the said sheriff,
acting as sergeant-at-arms, having returned that he had made
diligent search and inquiry after the said C. D., but that he did
so abscond and secrete himself that he could not be found to
be apprehended, as by the said warrant and the return thereof
appears ; it is therefore ordered that a commission of sequestra-
tion do issue against the said 0. D., directed to E. F., G. H. and
J. K., commissioners, directing them to sequester the defendant
C. D.'s personal estate, and the rents, issues and profits of his
real estate, until the defendant C. D. shall appear to the bill of
complaint in this cause, clear his contempt, and this court shall
malce an order to the contrary.
Upon this order being made, a writ of sequestration will
issue.
No. £30. Order of reference when defendant does not suhmit
to ansiver exceptions.
{Caption, and title of cause as iii No. 79, ante, page 198.)
Exceptions for insufficiency having been filed to the answer
of the defendant C. 1). on the day of last, and the
(h) See a?Ue, p. 86.
MISCELLANEOUS FORMS. 623
Orders.
eaid C. D. not having submitted to answer said exceptions, it
is ordered that it be referred to the master in chancery of this
conrt, to look into said bill and answer of the defendant C D.
and such exceptions, and report whether said exceptions are
well taken or not.
No. '231. Order for further answer after report of master.
{Caption, and title of cause as in Wo. 79, a.nte, page 198.)
Tlie answer of the defendant C. D. having been reported
insufficient in the matters of the hrst and fourth exceptions
thereto, by the master in chancery to whom the exceptions of
the complainant to such answer were referred, and the report
of the said master being approved by the court, against tlie
defendant C. D., it is therefore ordered tliat the said 0. D. put
in a further answer to the matters of the said first and fourth
exceptions within days from this date, and pay the costs
of such exceptions.
No. 222. Order for an attachment on third answer heing held
insufficient.
( Caption, and title of cause as in No. 79, ante, page 198.)
The third answer filed by the defendant C. D. having been
reported insufficient, on a reference to the master in chancery
upon the original exceptions, in the matters of the first and
fourth exceptions, and the report of said master having been
filed and having become absolute, it is ordered that an attach-
ment issue against the defendant C. D.
No. 233. Order for examination of defendant on interroga-
tories, etc., on third answer heing held insufficient.
{Caption, and title of cause as in No. 79, ante, page 198.)
The third answer of the defendant 0. D. having been r&-
ported insufficient, on a reference to the master upon the origi-
nal exceptions, in tlie matters of the first and fourth exceptions,
and the report of the said master having been filed, and having
become absolute, an attachment was thereupon issued against
the said C. D., in pursuance of an order of this court rendered
on the day of last. And the said C. D., now being
personally before the court by virtue of the said attachment,
and this court now adjudging the defendant to have been guilty
of the misconduct alleged, and that such misconduct was calcii-
»ated to, or actually did defeat, impair, impede or prejudice the
624 MISCELLANEOUS FORMS.
Orders.
lights or remedies of the complainant in this cause ; it is there-
fore ordered that the said C. D. be examined upon interroga-
tories before the master in chancery of this court, to the points
wherein his said tliird answer is reported insufficient ; and that
he stand committed to the common jail of the county of
until he shall have answered such interrogatories to the satis-
faction of the said master, and paid the costs incurred by reason
of his default, now taxed at dollars ; and that a warrant
issue for that purpose. And it is further ordered, that the
sheriff of said county do keep the defendant in his actual custody
until the court shall have made some order in the premises, and
that he take the said C. D. before the said master to be exam-
ined, at such times as such master shall appoint.
No. 234-. Order for leave to amend hill after a plea to part
is allowed, {i)
{Caption, and title of cause as in No. 79, ante, page 198.)
The plea of the defendant C. D. to the bill of complaint in
tliis cause having been, on argument, allowed as to part of said
bill, on motion of Mr. , of counsel for the complainant, it
is ordered that the complainant have leave to amend said bill
by, etc., {Here state the manner in which it is to he amended^
upon payment of costs to be taxed. It is further ordered that
such amendment be filed with the clerk of this court within
days from this date.
No. 235. Order of reference to the master, {j)
{Proceed as in No. 81, ante, page W2, to the *, and con-
ii/nue :) That this cause be, and the same is hereby, referred to
the master in chancery of this court, to inquire and state to
the court, etc. {Here insert the suhject matter of reference f)
and for the better discovery of the matter aforesaid, the par-
ties respectively are to produce before the said master all deeds,
books, papers and writings in their possession, custody or
power relating thereto, and are to be examined upon oath and
interrogatories as the said master shall direct ; and the said
master will cause to come before him all such witnesses whose
testimony he may deem necessary, and examine them upon
oath and interrogatories touching the matters aforesaid ; and
the said master will make his report thereon with all con-
(t) See ante, p. 168.
(j) See ante, pp. 182-186.
MISCELLANEOUS FOKMS. 625
Orders.
venient speed ; and if any special questions shall arise, the
eaid master is at liberty to state the same to the court.
Mo. 236. Order of reference of a plea of former suit
pend'mg. {k)
{CapUon, and title of cause as in N'o. 79, ante, page 198.)
On filing a plea in this cause averring that there is a former
suit depending in this court for the same matters as are
involved in the present suit, it is therefore ordered that it be
referred to the master in chancery of this court, to look into
the bill and the plea in this cause, and the bill in the said plea
alleged to have been exhibited by the complainant against the
defendant previous to the commencement of this suit, and into
the other pleadings and proceedings therein, and to report
whether the said plea is true.
JVb. 237. Order directing plea to stand for an answer, (l)
{Caption, and title of cause as in N'o. 79, smte,page 198.)
The plea of the defendant C. D. to the bill of complaint in
this cause having heretofore come on to be argued, and counsel
for the respective parties having been heard thereupon, it is
ordered that the said plea do stand for an answer, with liberty
to the complainant to except thereto.
No. 238. Order allowing the complaina/nt to dismiss his hill,
{Caption, amd title of cause as in No. 79, ante, page 198.)
The complainant applying to dismiss his bill in this cause,
on motion of Mr. , solicitor for the complainant, it is
ordered that leave to dismiss the same be granted accordingly,
on the complainant paying to the defendant his costs in tms
suit, to be taxed.
No. 239. Order to pay money into covH. (m)
{Caption, amd title of cause as in No. 79, ante, page 198.)
On reading and filing the bill and answer in this cause, and on
motion of Mr. , solicitor for the complainant, and on hear-
ing Mr. , solicitor for the defendant, in opposition to said
(k) See ante, p. 122.
(Q See ante, p. 130.
(m) See ante, p. 196. . „
626 MISCELLANEOUS FORMS.
Orders.
motion, it is ordered, that the defendant C. D. do, within
days from the date of this order, pay into the hands of the
clerk of this court, in trust in this cause, the sum of dol-
lars, admitted by the answer of the defendant to be due from
him ; and that when such money is paid in it be deposited by
Baid clerk, in trust, in the Bank of , to the credit
of this cause, there to remain until the further order of this
court.
No. ^Jfi. Final decree^ dismissing hill at the hearing, {n)
{Proceed as in No. 81, ante, page S02, to the *, and cotv-
ti/ntie:) That the complainant's said bill of complaint be and
the same is hereby dismissed, with costs to the defendant, to
be taxed.
No. 2Ji.l. Order for cause to stand over, to add new jparties. (o)
{Caption, a/nd title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard this day, and counsel for
both parties having been in part heard ; and it appearing to
the court that E. F. and G. H. are necessary parties to this
cause, it is ordered that this cause do stand over, to the end
that the complainant may make the said E. F. and G. H. par-
ties thereto, either by amendment or supplemental bill, as he
may be advised.
No. ^Jt.2. Order for cause to stand over to supply proof s. {p)
{Caption, and title of cause as in No. 79, ante, page 198.)
This cause coming on to be heard this day, and counsel for
both parties having been in part heard ; and it apjDcaring to the
court that tlie complainant has omitted to introduce proof of
the death of E. F., his intestate, it is ordered, that this cause
do stand over, to the end that the complainant may examine
witnesses to prove the death of such intestate.
(n.) See ante, p. 197.
(o) See a7ite, pp. 165-167.
(p) See ante, pp. 165-167.
MISCELLANEOUS FORMS. 627
Interrogatories — Answers to.
No. ^Jt3. Interrogatories for the examination of a jparty in
contempt for not answering, in i^ursuance of No. ^25, ante,
page 619. (q)
{Title of cause as in No. ^IfB., post, pa^e 6^8.)
Interrogatories to be exhibited on the part of the com-
plainant, for the examination of C. D., the defend-
ant in this cause, pursuant to an order made in said
cause on the day of , 18 — .
First. — Were you not, on or about the day of
last, or at any other and what time, duly served with a sum^
mons in the above entitled cause ? When and by whom and
how was such service made? Answer this interrogatory fully
and particularly.
Second. — Is not the writ of summons now shown to yon thp
one served, and a copy of the same left with vou ? x4>.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<jvemeuts.
Denies, etc.
Substantially admitted.
Denied.
General traverse, and usual con-
clusion.
For defendant, J. K. testifies that,
etc.
L. M, testifies that, etc.
In the
N'o. 251. Brief and points on heai^ig.
court.
In Chancery.
Term, 1&— ,
The complainant lias a perfect remedy at law whereby he
may avail himself of every ground of complaint set fortn in
the bill.
Authorities cited.
IL
The court of chancery will not assume jurisdiction in this
case upon the ground of its being a bill of peace. Because,
First. — The bill is iiled only against a single party, which
party has neither commenced nor threatened to commence i
multiplicity of suits, etc.
Second. — The apprehensions of the complainant that, etc.
Third. — That, etc.
Authorities cited.
632 MISCELLANEOUS FORMS.
Brief and Points, etc.
III.
The defendants are authorized by the act of, etc., to oass tLe
ordinance in question.
Authorities cited.
IV.
The ordinance is a reasonable regulation of trade, etc.
Authorities dted.
I
CHAPTEE XLII.
PRACTICE IN THE SUPEEME AND APPELLATE COURTS.
Section 1. Jurisdiction op the Supreme Court.
2. Jurisdiction op Appellate Court, etc.
3. Agreed Cases.
4. Writ op Error — Supersedeas.
5. Appeals.
6. Records op Inperior Courts.
7. Docket.
8. Assignment op Error and Proceedings Thereon.
9. Motions.
10. Suggestions op Diminution op Record.
11. Original Papers.
13. Abstract op the Record.
13. Brief and Argument.
14. Advance Fee to Clerk.
15. Cases taken prom Appellate to the Supreme Court.
16. Judgments.
17. Executions.
18. Rehearing.
19. Licensing Attorneys — Striking Names prom the Roll.
20. Library.
SECTION L
JURISDICTION OF THE SUPREME COURT.
By the first section of Article YI of the Constitution of
Illinois (1870):
"The judicial powers, except as in this article is other-
wise provided, shall be vested in one supreme court, circuit
•courts, justices of the peace, police magistrates, and such
other courts as may be created by law in and for cities and
incorporated towns."
The judiciary of this state cannot exercise any power or
authority except such as is granted by the Constitution, [a)
(a) Field vs. The People, 2 Scam. 79.
634 SUPREME AND APPELLATE COURTS.
Jurisdiction of the Supreme Court.
" Tlie supreme court shall consist of seven judges, and
shall have original jurisdiction in cases relating to the reve-
nue, in niandavius and habeas oorims^ and appellate jurisdic-
tion in all other cases. One of said judges shall be chief
justice ; four shall constitute a quorum, and the concurrence
of four shall be necessary to every decision." [IS)
Original Jurisdiction. — The provision of the Constitution
conferring original jurisdiction on the supreme court in
cases relating to the revenue, laandamus and hn.heas corjjus^
are not to be construed as making such jurisdiction exclu-
sive, (c)
In revenue cases. — Section 260 of the Revenue Act pro-
vides that
"When suit is instituted in behalf of the state it may be in
either division of the supreme court, or in the Sangamon
count}^ circuit court, or in any court of record in this state hav-
ing jurisdiction of the amount ; and process may be directed
to any county in the state. In any jDroceedings against any
officer or person whose duty it is to collect, receive, settle for
or pay over any of the revenues of the state, vv^hether the
proceeding be by suit on the bond of such officer or person,
or otherwise, the court in which such proceeding is pending
shall have power, in a summary way, to compel such officer
or person to exhibit, on oath, a full and fair statement of all
moneys by him collected or received, or which ought to be
settled for or paid over, and to disclose all such matters and
things as may be necessary to a full understanding of the
case; and the court may, upon hearing, give judgment for
such sum or sums of money as such officer or person is liable
in law or equity to pay. And if, in a suit upon the bond of
any such officer or person, he or his sureties, or any of them,
shall not for any reason be liable upon the bond, the court
may, nevertheless, give judgment against such officer or per-
{h) § 2, Art. VI, Const, of 1870.
(c) Hundley vs. Commissioners etc., 67 111. 559.
SUPREME AND APPELLATE COURTS. 635
Original Jurisdiction of Supreme Court.
son, or against sucli officer and such of his sureties as are
liable, for the amount ho or they may be liable to pay, with-
out regard to the form of the action or pleadings."
Section 261 provides that
"When suit has been instituted by the auditor, any party
aggrieved may proceed under the judgment obtained, upon
the bond, by writ of inquiry of damages, as in other cases
upon bonds."
In section 262 it is provided that
" Cities, towns, villages or corporate authorities, or per-
sons aggrieved, may prosecute suit against any collector or
other officer collecting or receiving funds for their use, by
suit upon the bond, in the name of the people of the state
of Illinois, for their use, in any court of competent jurisdic-
tion, whether the bond has been put in suit at the instance
of the auditor or not ; and in case of judgment thereon, the
auditor may, if he shall so elect, have a writ of inquiry of
damages for any amount that may be due to the state treas-
ury from such officer. Cities, towns, villages and other cor-
porate authorities or persons shall have the same rights in
any suits or proceedings in their behalf, as is provided in
case of suits by or in behalf of the state." {d)
The rules of the supreme court in relation to cases in rev-
enue suits are as follows :
Icule 17. — "In proceedings in original actions relating to
the revenue, the process or notice of a motion shall be
served on the defendant at least twenty days before the
first day of the term. If there shall not be twenty days
between the day of service and the first day of the term,
the cause may be continued on the application of the de-
fendant.
Rule 18. — "In such original actions, \f a declaration set-
ting forth the cause of action shall not be filed at least
(d) Rev. Stat. (1874) 900; Rev. Stat. (1877J 856.
636 SUPREME AND APPELLATE COURTS.
Original Jurisdiction of Supreme Court.
twenty days before the first day of the term, the cause may
be continued on the application of the defendant." {e)
Mandani'us. — For proceedings in mandamus^ see Puter-
baugh's Com. Law PL and Pr., ch. vi, pp. 671-683.
The supreme court is authorized to issue writs of manda-
TTius. Its process must run in the name of the people of
the state of Illinois, bear teste in the name of the chief jus-
tice, be signed by the clerk of the court for the grand divi-
sion from which it is issued, dated when issued, sealed with
the seal of the court, and made returnable according to law,
or such rules or orders as may or have been prescribed by
the court, and shall be executed by the officer or person to
whom it is directed, in any county or place in this state, in
the usual manner that process is or may be required to be
executed and returned. (/)
The rule of the supreme court in relation to mandamus is
as follows :
Rule 19. — "Before an application for a writ of mandamus
will be heard by this court, the applicant must show that
all the parties interested in the subject-jnatter to be reached
or eifected by the issuance of the writ have been notified in
writing of the time and place of the intended application, at
least ten days previous thereto, unless the court for special
reasons shall otherwise direct." {g)
By the practice act it is not necessary, in an action of man-
damus., to set out the cause of action in the writ, but it is
sufficient to summon the defendant in a summons in the
usual form, commanding him to appear and answer the
plaintiff in an action of mandamus., and the issue is made
up by answering, pleading or demurring to the petition, as
in other cases. (A)
(e) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. ix.
(/) Rev. Stat. (1874), 328; Rev. Stat. (1877) 321.
{g) 55 111. xxii; Puterbaugh's Cora. Law PI. and Pr. ix.
\h) Rev. Stat. (1874) 776; Rev. Stat. (1877) 735; The People vs. Glenn,
70 111. 232.
SUPEEME AND APPELLATE COURTS. 637
Appellate Jurisdiction of Supreme Court.
The first section of the statute in relation to mandamus
provides
"That upon the filing of a petition for a mandamus the
clerk of the court shall issue a summons in like form as
other summons in suits at law, commanding the defendant
to appear at the return term thereof, and show cause why a
writ of mandamus should not be issued against him. If the
summons is issued in vacation, it shall be returnable on the
first day of the next term ; or, if in term time, it may be
made returnable on any day of the term, not less than five
days after the date of the writ." (^)
Habeas corpus. — For proceedings in habeas corpus^ see
Puterbaugh's Com. Law PI. and Pr,, ch. xviii, pp. 712-731,
The supreme court is authorized by the statute to issue
the writ of habeas corpus, (j) But there is no provision in
the statute giving the judges in vacation power, like circuit
judges, to issue the writ, and determine the case ; and it
would seem that applications for the writ can only be made
to the court in session.
Appellate Jueisdigtion. — The appellatejurisdictionof the
supreme court is exercised in cases brought before it for
review by appeal or writ of error. And only in such cases
as is or may be provided by law. {k) And a joinder in
error will not confer jurisdiction in a case where the con-
stitution has not given it. (/) It will give jurisdiction of the
person, but not of the subject-matter, (m)
A case cannot be heard in the supreme court by appeal or
writ of error until after a final judgment or decree in the
(0 Rev. Stat. (1874) 691; Rev. Stat. (1877) 656.
(i) Rev. Stat. (1874) 328; Rev. Stat. (1877) 321.
(k) 0. <& Miss. R. R. Co. vs. Lawrence Co., 27 111. 50; Hobson vs. Paine,
40 111. 26; Holden vs. Herkimer, 53 111. 258; Moore vs. Mansfield, 47 111. 169;
Winkleman vs. The People, 50 111. 449; Peake vs. The People, 76 111. 289.
(0 The People vs. Peggy Royal, 1 Scam. 557.
(»j) Woodside vs. Woodside, 21 111. 207.
638 SUPREME AND APPELLATE COURTS.
Appellate Jurisdiction of Supreme Court.
court below. (?}) There must be a final disposition of the
case as to all parties. A cause of action cannot be reviewed
as to one party at one time, and as to another party at
another time, (o)
Whenever a decision of an inferior court is made which
finally disposes of the subject-matter of litigation, so far as
the court is concerned, of which a record can be made,
which decides the rights of property or personal liberty, the
same may be reviewed by tlie superior court, (jj)
An appeal or writ of error does not lie from an interlocu-
tory decree or judgment. (7)
Writs of error and appeals may be taken from judgments
on awards ; {r) from final judgments upon the reports of
auditors in an action of account ; (.?) from decisions upon
tnandamus / it) quo ivarranto y [u) condemnation cases ; {y)
contested election cases ; {w) escheat cases ; {x) from an
order of an inferior court suspending an attorney from prac-
{n) Cunningham vs. Loomas, 17 111. 555; Oder vs. Putnam, 22 III. 38;
Cruel vs. Keener, 17 111. 242; Gage vs. Ekh, 56 111. 297; Phelps vs. Fishes,
63 111. 201; Walker vs. Oliver, 63 111. 199; Williams vs. LaValle, 64 111. 110;
The People vs. Neal, 8 Bradwell, App. C. R. 181; Trustees of Schools vs.
School Directors, 88 111. 100.
(o) Thompson vs. Follansbee, 55 111. 427; Freeman on Judgments, § 28;
The People vs. McFarland, 3 Bradwell, App. Ct. R. 237; see Waugh vs.
Suter, lb. 271.
[p) Sloo vs. The State Bank, 1 Scam. 428; Stewart vs. The People, 3
Scam. 395; Harrison vs. Singleton, 2 Scam. 21; Myers vs. Manny, 63 111.
211.
{q) Keel vs. Bentley, 15 111. 228; Cornelius vs. Coons, Breese, 15; Penti-
cost vs. Magahee, 4 Scam. 326; Hayes vs. Caldwell, 5 Gilm. 33; Fleece vs.
Russell, 13 111. 41; Woodside vs. Woodside, 21 111. 207; Gage vs. Rohrback,
56 111. 262; Gage vs. Eich, lb. 297; Wright vs. Smith, 76 111. 216; see ante,
195-196; Puterbaugh's Com. Law PI. and Pr. 814.
(r) Rev. Stat. (1874) 150; Rev. Stat. (1877) 148.
(s) lb. 102; lb. 98.
(t) lb. 092; lb. 659.
(m) lb. 788; lb. 748.
(f) lb. 477; lb. 466.
iw) lb. 460; lb. 457; Hall vs. Thode, 75 111. 173.
(x) lb. 480; lb. 469.
SUPREME AND APPELLATE COURTS. 639
Appeals and Writs of Error from Appellate Court.
tice ; {y) and from tlie final judgment of tlie circuit court on
a certiorari at common law, iz)
Appeals and writs of error from appellate court. — Section
8 of the act of 1877, to establish appellate courts, provides
that
"The said appellate courts created by this act shall ex-
ercise appellate jurisdiction only, and have jurisdiction of all
matters of appeal, or writs of error from the final judgments,
orders or decrees of any of the circuit courts, or the superior
courts of Cook county, or from the city courts in any suit or
proceeding at law, or in chancery other than criminal cases,
and cases involving a franchise or freehold or the validity of
a statute. Appeals and writs of error shall lie from the final
orders, judgments or decrees of the circuit and city courts,
and from the superior court of Cook county, directly to the
supreme court in all criminal cases and in cases involving a
franchise or freehold or the validity of a statute. In all cases
determined in said appellate courts, in actions ex contractu,
wherein the amount involved is less than one thousand dol-
lars ( si, 000), exclusive of costs, and in cases sounding merely
in damages, wherein the judgment of the court below is less
than one thousand dollars (iBl,000), exclusive of costs, and
the judgment is atfirmed or otherwise finally disposed of in
the appellate court, the judgment, order or decree of the
appellate court shall be final, and no appeal shall lie or writ
of error be prosecuted therefrom : Provided, the term ex
contractu, as used in this section, shall not be construed to
include actions involving a penalty. In all other cases
appeals shall lie and writs of error may be prosecuted from
the final judgments, orders or decrees of the appellate courts
to the supreme court : Provided, cdso, that if in any case a
majority of the judges of the appellate court shall be of
opinion that a case decided by them involving a less sum
than one thousand dollars ($1,000), exclusive of costs, also
{y) Winhleman vs. The People, 50 111. 449.
(2;) Trustees of Schools vs. School Directors, 88 111. 100.
640 SUPREME AND APPELLATE COURTS.
Appeals and Writs of Error from Appellate Court.
involves questions of law of such importance, either on.
account of principal or collateral interests, as that it should
be passed upon by the supreme court, they may in such cases
grant appeals and writs of error to the supreme court on
petition of parties to the cause, in which case the said appel-
late court shall certify to the supreme court the grounds of
granting said appeal." {a)
Section 90 of the Practice Act, added by amendment by
the act of 1877, provides that
"In all criminal cases, and in all cases where a fran-
chise or freehold or the validity of a statute is involved,
and in all other cases where the sum or value in the
controversy shall exceed one thousand dollars (§1,000),
exclusive of costs, which shall be heard in any of the
appellate courts upon errors assigned, if the judgment of
the appellate court be that the order, judgment or decree
of the court below be affirmed, or if final judgment or decree
be rendered therein in the appellate court, or if the judg-
ment, order or decree of the appellate court be such that no
further proceedings can be had in the court below, except to
carry into effect the mandate of the appellate court, any
party to such cause shall be permitted to remove the same
to the supreme court by appeal or writ of error, in the same
manner as provided in sections sixty-seven (67) and seventy
(70) of this act for appeals to said appellate court : Provided,
that such appeal may be prayed for at any time within
twenty (20) days after the rendition of such judgment, order
or decree, whether such appellate court be in session or not ;
and if such appeal be prayed for in vacation, any one or more
of the judges of such appellate court may make and sign all
orders necessary for the perfecting of such appeal, and the
clerk shall enter up such orders as part of the record in the
case; and provided, further, that in all cases where the judg-
ment, order or decree is for the recovery of money only, if
the judgment, order or decree of the inferior or appellate
(a) Laws of 1877, p. 69; Rev. Stat. (1877) 323; Hartshorn vs. Daicson,
2 Bradwell, App. Ct. R. 80; City of Chicago vs. Valcum Iron Works, lb. 189.
SUPEEME AND APPELLATE COURTS. 641
Jurisdiction of Appellate Courts, etc.
court be affirmed bj tlie supreme court, or the appeal or
writ of error be dismissed, the supreme court may enter
judgment against the appellant or plaintiff in error for dam-
ages, not exceeding ten (10) per centum on the amount of
the judgment recovered, and shall award execution therefor
as on other judgments." (h)
Appeals from circuit courts^ etc. — Section 88 of the Prac-
tice Act, as amended by the act of 1879, (c) provides that
"Appeals and writs of error to circuit courts, the superior
court of Cook county, the criminal court of Cook county,
county courts and city courts, in all criminal cases, below
the grade of a felony, shall be taken directly to the appellate
court, and in all criminal cases above the grade of misde-
meanors ; and cases in which a franchise or freehold or the
validity of a statute or construction of the constitution is
involved, and in all cases relating to revenue, or in which
the state is interested as a party or otherwise, shall be taken
directly to the suj)reme court," etc. {(I)
SECTION II.
JTJKISDICTION OF APPELLATE COURTS, ETC.
It was provided in Section II, Article VI, of the Constitu-
tion of 1870, that
"After the year of our Lord 1874, inferior appellate courts
of uniform organization and jurisdiction may be created in
districts formed for that purpose, to which such appeals and
writs of error as the general assembly may provide may be
prosecuted from circuit and other courts, and from which
appeals and writs of error shall lie to the supreme court in
all criminal cases, and cases in which a franchise or freehold,
(6) Laws of 1877, p. 153; Rev. Stat. (1877) 746.
(c) Laws of 1879, p. 222; Bradwell's ed. 169.
{d) See Hartshorn vs. Dawson, 2 Bradwell's App. Ct. R. 80; City of Chi-
cago vs. Valcum Iron Works, lb. 189.
642 SUPREME AND APPELLATE COURTS.
Jurisdiction of Appellate Courts, etc.
or the validity of a statute, is involved, and in such other
cases as may be provided by law. Such appellate courts
shall be held by such number of judges of the circuit courts,
and at such times and places, and in such manner, as may
be provided by law ; but no judge shall sit in review upon
cases decided by him, nor shall said judges receive any ad-
ditional compensation for such services."
Under the above provision of the constitution the legis-
lature of 1877 passed an act to establish appellate courts,
dividing the state into four districts, — first, second, third and
fourth, — and providing that each shall be held by three of
the judges of the circuit court, to be assigned by the su-
preme court. Two of the judges so assigned in each district
to constitute a quorum, and the concurrence of two to be
necessary to every decision, {e)
Ajypellate jurisdiction only. — Section 8 of the act provides
that the said appellate courts created by this act shall exer-
cise appellate jurisdiction only, and have jurisdiction of all
matters of appeal, or writs of error, from the final judg-
ments, orders or decrees of any of the circuit courts, or the
superior courts, of Cook county, or from the city courts, in
any suit or proceeding at law, or in chancery, other than
criminal cases, and cases involving a franchise or freehold,
or the validity of a statute, if)
P-ovner of court. — Tlie appellate courts are vested with all
powers and authority necessary to carry into complete exe-
cution all their judgments, decrees and determinations in all
matters within their jurisdiction, according to the rules of
the common law and of the law of this state.
Practice and pleading. — The process, practice and plead-
ings in said courts shall be uniform, and shall be the same
as the process, practice and pleadings prescribed in and for
(e) Laws of 1877, p. 69; Rev. Stat. (1877) 322-323.
(/) Laws of 1877, p. 69; Rev. Stat. (1877) 323,
SUPEEME AND APPELLATE COURTS. 643
Jurisdiction of Appellate Courts, etc.
tlie supreme court of this state, so far as practicable ; and
the judges of said appellate court may establish such uni-
form rules for the keeping of dockets, records and proceed-
ings for the regulation of said court as shall be deemed most
conducive to the due administration of justice, except as
otherwise provided bj law.
May enter judgment in vacation. — The judges of the said
appellate courts respectively, or a majority of them, may
enter orders and judgments in vacation in all cases which
liave been argued, or submitted to the courts during any
term thereof, and which shall have been taken under advise-
ment.
To what district. — Appeals and writs of error may be
taken to the appellate court in the district in which tlie case
is decided ; or, by consent of the parties, to any other dis-
trict.
Opinions. — In case the judgment, order or decree from
■which an appeal or writ of error may have been prosecuted
shall be affirmed by the appellate court, such court shall
make an order affirming the same ; and in case such judg-
ment, order or decree shall be reversed and the cause re-
manded to the court from which such appeal or writ of
error shall have been prosecuted for a new trial thereon,
said appellate court shall state briefly in writing the reasons
for such reversal, and file the same with the files in said
cause: Provided., that the reasons so filed shall not be
binding authority in any cause or proceeding other than
that in which they may be filed or given, {g)
Appeals to appellate court — hond. — Section 68 of the Prac-
tice Act, as amended by act of 1877, provides that
"Appeals from, and writs of error to, all circuit courts, the
superior court of Cook county, and city courts, and from other
{g) Laws of 1877, p. 69; Rev. Stat. (1877) 322-324.
644 SUPKEME AND APPELLATE COURTS.
Jurisdiction of Appellate Courts, etc.
courts from whicli such appeals and writs of error may be
allowed by law, may be taken to the appellate courts, from all
final judgments, orders and decrees, except as hereinafter
stated : Provided^ such appeals shall be prayed for and allowed
at the term at which the judgment, order or decree was ren-
dered : And, provided, tlie party praying for such appeal
shall, within such time (not less than twenty days) as shall
be limited by tlie court, give and file in the office of the
clerk of the court from which the appeal is prayed, bonds
in a reasonable amount to secure the adverse party, to be
fixed by the court, with sufficient security, to be approved
by the court. If the appeal is from a judgment or decree
for the recovery of money, the condition of the bond shall
be for the prosecution of such appeal and the payment of
the judgment, interest, damages and costs in case the judg-
ment is affirmed. In all other cases the condition shall be
directed by the court with reference to the character of the
judgment, order or decree appealed from. The obligee in
such bond may at any time, on the breach of the condi-
tions thereof, have and maintain an action at law as on
other bonds." {k)
By section YO of the Practice Act, as amended by the act
of 1877, it is provided that
"In all cases where a judgment or decree shall be ren-
dered in any circuit court, or in the superior court of Cook
county, or in any city court, in any case whatever, either in
law or in chancery, against two or more persons, either one
of said persons shall be permitted to remove such suit to the
appellate court, by appeal or writ of error, and for that pur-
pose shall be permitted to use the names of all said persons,
if necessary ; but no costs shall be taxed against any person
who shall not join in said appeal or writ of error. All such
cases shall be determined in said appellate courts as other
{h) Laws of 1877, p. 149; Rev. Stat. (1877) 742.
SUPREME AND APPELLATE COURTS. G45
Agreed Cases.
suits are, and in the same manner as if all the parties had
joined in such appeal or writ of error." (i)
When the appeal is taken by one of several defendants,
no party except the appellant can be heard in support of the
appeal or receive any direct benefit therefrom. {J)
An appeal may be taken by one party and a writ of error
by the other, in the same cause, at the same time, and on
the same record, {k)
SECTION III.
AGREED CASES.
The 74th section of the Practice Act, as amended by the
act of 1877, provides as follows:
" The parties in any suit or proceeding at law or in chan-
cery in any circuit court or the superior court of Cook coun-
ty, or in any city court, may make an agreed case containing
the points of law at issue between them, and file the same
in such court ; and the said agreed case, with the decision
thereon, may be certified to the appellate court or supreme
court by the clerk of such court, without certifying any fuller
record in the case ; and upon such agreed case being so cer-
tified and filed in the appellate court or supreme court, the
appellant or jDlaintifi" in error may assign errors, and the
case shall then proceed in the same manner as it might have
been had a full record been certified to said appellate court
or supreme court." (/)
When the court has reason to believe that a cause is not
real, but a fictitious proceeding, proof will be required that
the action is not feigned, (jn)
(/) Laws of 1877, p. 149; Rev. Stat. (1877) 743; FonvUle vs. Sausser, 73
111. 451; Walker vs. Aht, 83 111. 226; Clarh vs. Marjield, 77 111. 258.
(j) Bees vs. C% of Chicago, 38 111. 832.
(/.■) Harding vs. Larkin, 41 111. 413.
(l) Laws of 1877, p. 150; Rev. Stat. (1877) 744.
(m) The People vs. Leland, 40 111. 118; Spraggins vs. Houghton, 3 Scam.
211; McConnell vs. Shields, 1 Scam. 582.
646 SUPREME AND APPELLATE COURTS.
Agreed Cases — Questions of Law.
Hules. — Rule 20 of the supreme court, (w) and rule 16 of
the appellate court iu each district (o), provide that
''No judgment will be pronounced in any agreed case placed
upon the records of this court unless an affidavit shall be filed
setting forth that the matters presented by the record were-
litigated in good faith about a matter in actual controversy^
between the parties, and that the oj)inion of this court is not
sought with any other design than to adjudicate and settle-
the law relative to the matter in actual controversy between;
the parties to the record."
In the second district of the appellate court an affidavit is^
not necessary if not required by the court. {jS)
The supreme court and appellate courts will not take juris-
diction of an agreed case unless there has been a final judg-
ment rendered in the court below, {q)
Judge may certify questio7is of law. — Section Y5 of the
Practice Act, as amended by the act of 1877, provides that
"Any judge of the circuit court or the superior court of*
Cook county, or of any city court, may, if the parties liti-
gant assent thereto, certify any question or questions of law"
arising in any case tried and finally determined before hiirt
to the appellate or supreme court, together with his decision
thereon ; or the parties in the case may agree as to the ques-
tions or points of law arising in the case, and the same may
be certified by the counsel or attorneys of the respective-
parties, who shall sign their names thereto ; and upon sucbf
certificate being made the same shall be filed in the court
rendering the decision, and a copy of such certificate, certi-
fied by the clerk of said court, with the decision thereon and
final decision in the case, to the appellate court or supreme-
court, and filed therein ; and upon filing the same the like-
proceedings may be had in the appellate court or supreme;
in) 55 111. 23; Puterbaugh's Com. Law PI. and Pr. 9.
(o) 1 Bradwell's App. Ct. R. 22, 33, 46, 57.
{p) See Rule 16, 1 Bradwell's App. Ct. R. 33.
(?) Crull vs. Keener, 17 111. 246.
SUPKEME AND APPELLATE COURTS. 647
, ■ — _ — __^ — *
Writ of Error — Supersedeas.
court as if a full and complete record had been transcribed
and certified to said court." (r)
Tlie statute in relation to agreed cases, and certifying ques-
tions of law, do not apply in cases in wliicli the title to real
estate is in question, nor to cases where any question of fact
appertaining to the constitutional enactments of a law of this
state is involved, {s)
SECTION IV.
WEIT OF ERROR SUPERSEDEAS.
\Vrit of error. — A writ of error is a writ of right, and may
be prosecuted in all cases, unless prohibited by some statute
or inflexible rule of law. {()
If a successful party is dissatisfied with a judgment ren-
dered in his own favor, he may prosecute a writ of error for
its reversal, but he cannot appeal. {%i)
Where a judgment is rendered against two or more per-
sons, either may sue out a writ of error, and for that purpose
may use the names of all said parties if necessary, but no
costs shall be taxed against any other person who shall not
join in suing out the writ, iv) But such plaintiflT in error
cannot allege errors which relate exclusively to a party wha
is not complaining, and who is not before the court. {\o)
Limitation. — Section 85 of the Practice Act, as amended.
by the act of 1877, provides that
(?•) Laws of 1877, p. 150; Rev. Stat. (1877) 744.
(s) Laws of 1877, p. 151; Rev. Stat. (1877) 744.
(0 McClay vs. Norris, 4 Gilm. 370; Bowers vs. Green, 1 Scam. 42; Hall
vs. Thode, 75 lU. 173.
[u] Addix vs. Fahnestoch, 15 111. 448; Jones vs. Wright, 4 Scam. 338;
Fuller vs. Rohh, 26 111. 246; see Teal vs. Russell, 2 Scam. 819; Davidson vs.
Bond, 12 111. 84; Harttnan vs. Belleville dt 0. F. R.R. Co., 64 111. 24.
(v) Rev. Stat. (1877) 743.
(w) Richards vs. Green, 78 111. 525; Fonrille vs. Saiisser, 73 111. 451;
Walker vs. Abt, 83 111. 226; Clark vs. Marfield, 77 111. 258; Kennedy vs.
Kennedy. 66 111. 190; Havinghorst vs. Lindberg, 67 111. 463; Smith vs. Hick-
man, 68 111. 314.
648 SUPREME AND APPELLATE COUKTS.
Writ of Errpr — Process, etc.
"A writ of error shall not be brought after the expiration
■of five years from the rendition of the decree or judgment
complained of; but when a person, thinking himself
aggrieved by any decree or judgment that may be reversed
in the supreme court or the appellate court, shall be an
infant, non. compos mentis, or under duress, when the same
was entered, the time of such disability shall be excluded
from the computation of the said five years." {x)
Where a writ of error is sued out within • five years, the
failure to have the process served within that period will not
bar the writ. {ij)
To lohom directed. — Rule 4 of the supreme court, (2) and
of the several appellate courts, ia) in relation to writs of
error to inferior courts, is as follows :
"IV. Writs of error shall be directed to the clerk or
keeper of the record of the court in which the judgment or
decree complained of is entered, commanding him to certify
a correct transcript of the record to this court ; but where the
plaintift* in ei'ror shall file in the office of the clerk of this
court a transcript of the record duly certified to be full and
complete, before a writ of error issues, it shall not be neces-
sary to send such writ to the clerk of the inferior court, but
such transcript shall be taken and considered as a due return
to said writ."
Process on writs of error. — The process on writs of error
is prescribed by the 5th rule of the supreme court, (h) and
of each of the appellate courts, (c) and is as follows :
"V. The process on writs of error shall be by scire-
facias to hear errors, issued on the application of the plaintiff
in error to the clerk, directed to the sheriff or other officer
{x) Laws of 1877, p. 153; Rev. Stat. (1877) 745.
0/) Burnap vs. Wight, 14 111. 303.
(2) 55 111. xviii; Puterbau^h's Com. Law PI. and Pr. vi.
{a) 1 Bradwell's App. Ct. R. 18. 30, 42, 53.
(h) 55 111. xviii; Pnterbang'h's Com. Law PI. and Pr. vi.
{c) 1 Bradwell's App. Ct. R. 19, 30, 42, 55.
SUPREME AND APPELLATE COURTS. 649
"Writ of Error — Prascipe for.
of the proper county, coiniiiandiiig liiiii to summon tlie de-
fendant in error to appear in court, and show cause, if any
he liave, why the judgment or decree mentioned in the writ
of error shall not be reversed. If the scire-facias be not
returned executed, an al'i<is and j/luric.s may issue without an
order of court."
The party or attorney prosecuting a writ of error should
file with the clerk of the supreme or appellate court, as the
case may be. aj/rcvcijje, giving a full statement of the names
of each of the parties to the judgment sought to be reversed,
and in whose favor the judgment was rendered, and then
directing the clerk to issue the writ in favor of the plaintiffs
in error, giving each of their names in full, and against the
defendants in error, giving the name of each in full, {d) The
prwci/pe should also direct the clerk to what county to issue
the 8Gire-facia8 to hear errors.
IS'o. 252. Pk^cipe for a writ of error.
In the Supreme Court (or Appellate Court) of the State of
Illinois.
Grand Division,
(or District)
To the Term, 18—.
CD., Plaintiff in Error, | j.^.^.^^. ^^ ^^^^ ^^^^^^ ^^ ^^^^
A. B., DeWant in Error, j ^""^"^ ^'^ •
Judgment [fxr decree) obtained by A. B. vs. C. D. in
the court of the county of , at the
term, 18 — , in an action of , for % and
costs of suit.
Issue a writ of error to the clerk of the court in and
for the county of , returnable on the first day of the next
term of said court.
Dated, etc.
Attorney for Plaintiff in Error.
To the Clerk of the Supreme Court of Grand Division [or
Appellate Court of District).
id) Napi)er vs. Short, 17 111. 119.
650 SUPREME AND APPELLATE COURTS.
Writ of Error — Praecipe for Scire-Facias.
If a transcrij)t of the record is filed before a writ of error
issues, it will not be necessary to send such writ to the infe-
rior court; in such case it will be necessary, however, to sue
out a scire-/ aclas to hear errors.
No. 253. Pk^ecipe for a scire-facias to hear errors.
{Insert, in lieu of the order for writ of error in the above forrriy
the folloiuing : )
"Issue a writ of scirefaoias to the said A. B., defendant
in error, to hear errors, directed to the sheriff of the county
of , to execute according to law, returnable on" the first
day of the next term of said court."
"Where no writ of error has been actually issued, the plain-
tiff has no right to the writ of scirefaoias until the transcript
of the record is filed, {e)
Return day. — Rule 6 of the supreme court and appellate
courts, respectively, provides :
" YI. The first day of each term shall be return day for
the return of process. And no party shall be compelled to
answer, or jjrepare for hearing, unless the scirefacias shall
have been served ten days before the return day thereof; nor
shall a defendant be at liberty to enter his appearance and
compel the plaintiff to proceed with the cause, unless he shall
have given the plaintiff ten days' notice, before the term, of
his intention to enter his appearance and have the case pro-
ceed to a hearing." {f)
ilule 7 of the same courts provides that:
" YII, Whenever a writ of error is made a supersedeas^
the plaintiff in error shall, on filing the record with the clerk,
at the same time order and direct a scirefacias to issue to
hear errors, and shall use reasonable diligence to have the
same served ten days before the first day of the term ta
which the writ of error is made returnable ; on failing to da
(e) Breaton vs. Johnson, 1 Bradwell's App. Ct. R. 160.
(/) 55 111. xviii; 1 Bradwell's App. Ct. R. 19, 31, 43, 54.
SUPEEME AND APPELLATE COURTS. 651
Writ of Error — Notice to Non- Residents.
SO, the defendant in error shall have the right to a hearing-
at the said term, after joining in error, without giving ten
days' notice, as required by rule 6 : Provided, if there be
not ten days between the allowance of the sti2}e7'sedeas and
the sitting of the court, the cause shall stand continued until
the next term, unless by consent of parties it shall be other-
wise ordered." {g)
Notice to non-resident defendants, etc. — Rule 8 of the su-
preme court, in relation to publication of notice to defend-
ants in error who are non-residents, or have gone out of the
state, or cannot be found, has, since July 1, 1872, been super-
seded by the 86th section of the Practice Act, which is as fol-
lows :
"When any plaintiff in error shall file in the office of the
clerk of the supreme court, or appellate court, as the case
may be, an affidavit showing that any defendant resides or
has gone out of this state, or on due inquiry cannot be found,
or is concealed within this state so that process cannot be
served upon him, and stating the place of residence of such
defendant, if known, and also the place of residence of the
attorney who appeared in the case in the court to which the
writ of error is directed ; or that upon diligent inquiry their
place of residence cannot be ascertained, the clerk of the
supreme court, or appellate court, as the case may be, wherein
the cause shall be pending, shall cause publication to be
made in some newspaper published in the county in which
the cause was originally instituted ; but if no newspaper shall
be published in such county, then such notice shall be pub-
lished in a newspaper published nearest to said county, con-
taining notice of the pendency of such suit, the names of the
parties thereto, the title of the court, and the time and place
of the return of the summons in the case ; and he shall also,
within ten (10) days of the first publication of such notice,
send a copy thereof by mail, addressed to such defendant
ig) 55 111. xix; Puterbaugh's Com. Law PI. and Pr. vi; 1 Bradwell's App.
Ct. R. 19, 31, 43, 54; see GMs vs. Blackwell, 40 111. 51.
652 SUPREME AND APPELLATE COURTS.
Writ of Error — Supersedeas.
and the attorney, whose place of residence are (is) state'd in
such affidavit. The certificate of the clerk, that he has sent
such notice in pursuance of this section, shall be evidence.
Such notice shall be published for four consecutive weeks,
the first insertion of which said notice shall be at least forty
days before the first day of the term to which said writ is
made returnable ; and unless said time has intervened, no
proceedings therein shall be had at said term, but the said
cause shall stand continued to the next term of the court:
Pi'omded^ that in case both parties appear and consent to
the hearing, the said cause shall then be heard." (/<)
Notice to purchasers and terre-tenants. — Rule 9 of the
supreme court {i) and rule 8 of the several appellate courts {j)
provide that
"In all cases wherein guardians, executors or adminis-
trators, or others acting in a fiduciary character, having
obtained an order or decree for the sale of lands in causes
ex-jyarte^ and a sale has been had under such decree or order,
and the same shall be brought to this court for revision, the
purchaser or terre-tenants of such lands, if known, shall be
suggested to the court by affidavit of the plaintifi^ in error,
and notice given them of the pendency of the writ of error
ten days before the first day of the term of the court to which
the writ of error is returnable, so that said terre-tenants may
appear and defend."
Supersedeas. — The supreme court (/■) and the appellate
courts respectively (/) may issue writs of supersedeas. Such
writs shall run in the name of the People of the State of
Illinois, and bear teste in the name of the chief justice or
presiding justice of the court from which it issues, be signed
[h) Laws of 1877, p. 152; Rev. Stat. (1877) 745; see Cameron \s.Sc(vage,
40 111. 124.
(0 55 111. XX; Puterbaugli's Com. Law PL and Pr. vii.
(i) 1 Bradwell's App. Ct. R. 20, 31, 43, 54.
(A-) Rev. Stat. (1877J 321.
(l) lb. 324.
SUPEEME AND APPELLATE COURTS. 653
Writ of Error — Supersedeas — When Granted, etc.
by the clerk, dated wlien issued, sealed with the seal of the
court, and made returnable according to law.
To have a writ of error made a supersedeas is not a consti-
tutional right, hence the legislature may impose terms upon
which it shall be granted, (vi)
Section 77 of the Practice Act, as amended by the act of
1877, provides that
''!No writ of error shall operate as a supersedeas unless
the supreme court or appellate court, as the case may
be, or some judge thereof in vacation, after inspecting a
copy of the record, shall order the same to be made a super-
sedeas, nor until the party procuring such writ shall file a
bond in the manner and with the conditions required in case
of appeal, when the clerk issuing such writ shall indorse
thereon that it shall be a supersedeas, and operate according-
ly ; and the parties in writs of error shall be subject to the
same judgment and mode of execution as is provided in case
of appeal." [o)
When granted — Application for. — Rules 1, 2 and 3 of the
supreme court {pi) and of the appellate courts respectively, {q)
in relation to supersedeas, are as follows :
"I. No supersedeas will be granted unless a transcript of
the record on which the application is made be complete,
and so certified by the clerk of the court below, and the
requisite bond be entered into and filed in the ofiice of the
clerk of this court, according to law, with an assignment of
errors written on or appended to the record. And on every
application for a snjiersedeas an abstract of the record, with a
brief containing the points and authorities relied upon, and
pointing specifically to those portions of the record upon
which the alleged errors arise, with the record, shall be pre-
sented to the court or judge to whom the application is made.
(w) Brijant vs. The People, 71 111. 32.
(o) Laws of 1877, p. 151; Rev. Stat. (1877) 744.
(jo) 55 111. xvii; Puterbaugh's Com. Law PI. and Pr. v.
(g) 1 Bradwell's App. Ct. R. 17, 27, 41, 52.
654 SUPREME AND APPELLATE COURTS.
Writ of Error — Supersedeas.
Every such application, whether made in open court or to a
justice in vacation, must be accompanied by an affidavit of
the proposed securities, or some other credible person, justi-
fying the sufficiency of bail, sworn to and properly certified.
" II. Whenever a bond is executed by an attorney in fact
the clerk shall require the original power of attorney to be
filed in his office, unless it shall appear that the power of
attorney contains other powers than the mere power to exe-
cute the bond in question, in which case the original power
of attorney shall be presented to the clerk, and a true copy
thereof filed, certified by the clerk to be a true copy of the
original.
"III. When a writ of error shall be made a supersedeas
the clerk shall indorse upon said writ the following words :
' This writ of error is made a swpersedeas^ and is to be obeyed
accordingly,' and he shall thereupon file the writ of error,
with the transcript of the record, in his office. Said tran-
script shall be taken and considered as a due return to said
writ, and thereupon it shall be the duty of the clerk to issue
a certificate, in substance as follows, to wit :
"State of Illinois, ss.
" Office of -the Clerk of the Supreme Court,
{ox Appellate Court of the District.)
" I do hereby certify that a writ of error has issued from
this court for the reversal of a judgment obtained by vs.
, in the Court of , at the term, A.D. 18 — ,
in a certain action of , which writ of error is made a
supersedenfi., and is to operate as a suspension of the execution
of the judgment, and as such is to be obeyed by all con-
cerned.
" Given under my hand and the seal of the Supreme Court
(or Appellate Court of the District), at , this
day of , A.D. 18—. , Cler'k.''
A supersedeas will not be granted on the application of a
plaintifi" in error who seeks the reversal of a judgment in his
own^favor. (r)
(r) Carr vs. Miner, 40 111. 33; see Addix vs. Fahnestock, 15 111. 448.
SUPEEME AND APPELLATE COURTS. 655
Writ of Error — Supersedeas — Costs.
It will be granted when it appears, upon inspection of the
record, that there is probable cause for reversing the judg-
ment of the court below, {s)
An application for a supersedeas made in open court in
the grand division or appellate district in which the writ of
error must be sued out, will not be entertained unless the
record has been filed and the cause docketed. In vacation
the application may be made to one of the justices without
. having first filed the record, (i^)
The transcript of the record on which the application is
made must be complete, and so certified by the clerk of the
court below, or a writ of supersedeas will not be allowed,
and if granted will be quashed. (?i) And errors must be
assigned. If the court should inadvertently award a snper-
sedeas without an assignment of errors on the record, it
will, upon its attention being called to the omission, require
them to be assigned at once, and in default thereof, will dis-
miss the cause, (y)
Effect of supersedeas. — An order allowing a supersedeas
does not operate as a suspension of the judgment until the
Dond is filed and a writ of error is issued. (?/j")
The granting of a supersedeas will not have the effect to
prevent the clerk of the court below from issuing his fee
bills to collect the costs in the cause, occasioned by the par-
ties respectively ; it would only restrain the successful party
from proceeding under his own judgment. (»)
Security for costs. — A writ of error is considered a new
action; and the statute requiring non-resident plaintiff's, etc.,
(s) Loivry vs. Bryant, 2 Scam. 2.
{t) Anonymous, 40 111. 115.
(m) Thompson vs. County Comrs., 3 Scam. 66; Frink vs. Phelps, 4 Scam.
558.
[v) Gibhs vs. BlackweU, 40 111. 51.
(w) Blackberry vs. The People, 5 Gilm. 266; see Ambrose vs. Weed, 11
ni. 488.
{x) Carr vs. Minor, 40 111. 33; Perteet vs. The People, 70 111. 171.
656 SUPREME AND APPELLATE COURTS.
Appeals — Filing of Record.
to file a bond for costs before commencing suits applies in
the case of a writ of error, {s) And where it is made to
appear that the plaintiff in error has no property out of which
the costs of the suit can be collected, (a) or where a writ of
error has been sued out by an administrator, or a person act-
ing in a fiduciary capacity, and it is shown that the estate he
represents is utterly insolvent, (h) security for costs will be
required.
Rule 25 of the supreme court (f), and rule 20 of the first
and 21 of the third and fourth districts of the appellate
court (d), provide that
"Upon filing an affidavit that any plaintiff" in error is not
a resident of this state, and that no bond for costs has been
filed, a rule shall be entered against him, of which he shall
take notice, to show cause why the writ shall not be dis-
missed."
The motion for security for costs must be made at the
earliest proceedings in the case, and before any pleadings in
the case. It comes too late after a plea of release of errors. ((?)
SECTION V.
APPEALS.
We have already seen in what cases and from what courts
appeals will lie to the supreme or appellate courts. (/")
Whe7i record to he filed in appeal cases. — Section 72 of the
Practice Act, as amended by the act of 1879, provides that
{z) Roberts vs. Trustees etc., 32 111. 474; Ripley vs. Morris, 2 Gilm.
382; Hickman vs. Haines, 5 Gilm. 20.
(a) Parr vs. Van Home, 40 111. 122.
(6) Phelps vs. Funkhouser, 40 111. 27. t
(c) 55 111. xxiv; Puterbaugh's Com. Law PI. and Pr. x.
{d) 1 Bradwell's App. Ct. R. 23, 46, 57.
[e) Ruckman vs. Allwood, 40 111, 128; also see Puterbaugh's Com. Law
PI. and Pr. 41, 42.
(/) Ante, pp. 638-641.
SUPREME AND APPELLATE COURTS. 657
Appeals — Dismissal of, etc.
"Authenticated copies of the records of judgments, orders
and decrees appealed from, shall be filed in the office of the
clerk of the supreme court, or of the appellate court, as the
case may be, on or before the second day of the succeeding
term of said courts : Provided, twenty (20) days shall have
intervened between the last day of the term at which the
judgment, order or decree appealed from shall have been
entered and the sitting of the court to which the appeal
shall be taken; but if ten (10) days, and not twenty (20),.
shall have intervened as aforesaid, then the record shall be-
filed as aforesaid on or before the tenth (10th) day of said
succeeding term, otherwise the said appeal shall be dismissed
unless further time to file the same shall have been granted
by the court to which said appeal shall have been taken,
upon good cause shown." {g)
Prior to this amendment, the time within which the record
was required to be filed was computed from the date of the
judgment, instead of the last day of the term, ih)
An application for further time within which to file a tran-
script of the record in appeal cases must be made to the court
within the time prescribed by law for the filing of such tran-
script. (^)
A motion for an extension of time to file a transcript of
the record must be in writing and be supported by an affida-
vit. {j)
Dismissal of appeal — damages. — Section 73 of the Prac-
tice Act, as amended by the act of 1877, provides that
"When appeals from judgments, orders or decrees for the
recovery of money are dismissed by the supreme or appel-
late court for want of prosecution or for failing to file authen-
ticated copies of records as required by law, the court shall
{g) Laws of 1879, p. 221; BradweU's ed. 170.
Qi) Rev. Stat. (1877) 743; T. P. d- W. R. W. Co. vs. Comes, 40 HI. 37.
(0 Adams vs. Robertson, 40 III. 40; Ragar vs. Tilford, Breese, app., 21
(Beecher's ed. 407); Frink vs. Phelps, 4 Scam. 581.
ij) Webster vs. Pierce, 40 111. 39.
658 SUPREME AND APPELLATE COURTS.
Appeals — Effect of, etc.
enter judgment against the appellants for not less than five
(5) nor more than ten (10) per cent damages on the amount
recovered in the inferior court, for the collection of which
the appellee shall be entitled to execution as on other judg-
ments." {k)
Rule 37 of the supreme court (I) and rules 30 of the first,
31 of the second, 34 of the third and 32 of the fourth dis-
trict of the appellate court, (m) provide that
" When appeals from decrees, judgments or orders for the
recovery of money are dismissed by this court for want of
prosecution or for failing to file authenticated copies of records
as required by law, the court will award damages against the
appellant at ten per cent upon the amount recovered in the
court below, if it be less than one hundred dollars, and at
five per cent upon the amount of such recovery if it equals
or exceeds that sum."
"Where the record fails to show any such judgment as the
appeal professes to be taken from, the appeal will be dis-
missed, {n)
]Vo dismissal for want of sufficient bond. — Section 69 of
the Practice Act provides that
"No appeal to the supreme or appellate court shall be
dismissed by reason of any informality or insufficiency of
the appeal bond, if the party taking such appeal shall, with-
in a reasonable time to be fixed by the court, file a good
and sufficient bond in such case, to be approved by the said
court." (p)
Effect of an appeal. — The perfection of an appeal in an
{k) Laws of 1877, p. 150; Rev. Stat. (1877) 743; see Colby vs. Small, 40
111.42.
{I) 55 111. xxvi; Puterbaugh's Com. Law PI. and Pr. xii.
(w) 1 Bradwell's App. Ct. R. 26, 37, 49, 60.
(n) Armstrong vs. The People, 74 111. 178.
(o) Rev. Stat. (1877) 743; Willeriborg vs. Murphy, 40 lU. 46; Propeller
Niagara vs. Martin, 42 111, 106.
SUPREME AND APPELLATE COURTS. 659
Records of Inferior Courts.
inferior court suspends all proceedings under the judg-
ment. {]))
Upon what a motion to dismiss appeal may he based. — The
usual and correct practice on a motion to dismiss an appeal
is, to base the motion upon a certified copy of the record of
the judgment of the court appealed from, or a certificate of
the clerk that an appeal had been allowed and perfected,
whereby the judgment of the inferior court had been sus-
pended, {q)
SECTION VI.
RECORDS OF INFERIOR COURTS.
How prepared. — Kules 10 and 11 of the supreme court, (r)
and rules 9 and 10 of the appellate court of the first, third
and fourth districts, {s) are as follows :
10 (9). "Hereafter the clerks of the inferior courts of
this state, in cases of appeal and of error or certiorari, in
making up " an authenticated copy of the record of the judg-
ment appealed from," or in sending up a transcript of the
record to this court as a return to a writ of error or certio-
rari, shall certify to this court : -first, a copy of the process ;
second, the pleadings of the parties, respectively ; third, the
verdict in jury trials ; fourth, the judgment of the court be-
low whether tried by the court or jury ; fifth, all orders in
the same cause made by the court ; sixth, the bill of excep-
tions ; and seventh, the appeal bond in cases of appeal.
And in no case shall the said clerk insert in such transcript
any affidavit, account, or other document or writing, or other
matter, which according to the decisions of this (supreme
court) court, have been held to constitute no part of the
{p) Ambrose vs.Weed, 11 111. 488; see BlacJcberrt/ vs. The People, 5 Gilm.
66.
(g) The People vs. Public Officers, 4 Gilm. 149.
(r) 55 111. XX; Puterbaugh's Com. Law PI. and Pr. vii.
(s) 1 Bradwell's App. Ct. R. 20, 44, 55.
660 SUPEEME AND APPELLATE COURTS.
Records of Inferior Courts, etc,
record of a cause. (*) This rule shall not extend to appeals
or writs of error in chancery or criminal causes."
The ninth rule of the appellate court of the second district
is the same as the above to the asterisk (*), with the follow-
ing addition after the asterisk (*) :
"The transcript of the record in chancery causes shall
contain, unless unnecessary to copy all, a copy of the pro-
cess or of the notice, and proof of publication and of mail-
ing or excuse for not mailing, the pleadings, the decree, and
other record entries, the evidence as contained in the certifi-
cate of evidence, the appeal bond, and such other matters
only, if any, as may be necessary to properly present in this
court the matters in controversy." {t)
Rule 11, supreme court, and rule 10 of all the appellate
courts :
"The clerk of the court below shall arrange the several
parts of the record aforesaid according to their chronological
order. The clerk of this court shall not tax as costs in this
court any matter, inserted in such transcript contrary to the
rule."
Placita, or convening order. — If the transcript of the
record contains no placita or convening order of the court,
it will be a ground of reversal. {\i) But it may be cured by
its appearance in an additional record filed in the case, {v)
It should show that the judge, clerk and sheriff were pres-
ent, {w) But it cannot be aided by the bill of exceptions, {x)
What is not jpart of the record. — Affidavits in support of a
{i) 1 Bradwell's App. Ct. R. 31.
{xi) Planing Mill Lumber Co. vs. CiUj of Chicago, 56 111. 304; Rich vs.
Citi/ of Chicago, 5Q 111. 286; Lawrence vs. Fast, 20 111. 338; Dukes vs. Row-
lei/, 24 111. 210; Keller vs. Brickley, 63 111. 496.
{v) Dunham vs. City of Chicago, 55 111. 357; Truit vs. Griffin, 61 111. 26.
\w) Dukes vs. Rotvley, 24 111. 220.
{x) Planing Mill Lumber Co. vs. City of Chicago, 56 111. 304.
SUPKEME AND APPELLATE COURTS. 661
Records of Inferior Courts — Praecipe for.
petition for change of venue, {y) affidavits and motions of
any kind, {z) reasons in writing for a new trial, {a) sworn
answers of parties to an attachment for contempt, (Z*) a copy
of instrument indorsed on declaration, (c) affidavits in aid of
motion to set aside default, {d) the minutes of the judge, {e)
affidavits for continuance, {f) the evidence on the trial, and
instructions of the court, are no part of the record, unless
preserved by a bill of exceptions.
The appellate courts will not consider any question arising
upon a record without it is full, or presents all parts or mat-
ters material to the questions submitted. If the transcript
is not certified to be a full copy of the recoj'd^ but merely of
certain papers and proceedings, the court will not reverse, {(f)
PrcBcipe for record. — Rule 12 of the supreme court, {h)
and rule 11 of the appellate courts respectively, (?) provide
that
"The party or his attorney may, by j9rflpc^^<?, indicate to
the clerk, and direct what of the files of the cause shall be
copied into the record ; and in such case, if the record shall
be insufficient, it shall be supplied at his costs, and if un-
necessarily voluminous, he shall pay the costs accrued on
account of the copying of such unnecessary matters."
(</) Schlump vs. Beidersdorf, 28 111. 68.
(z) Lucas vs. Farrington, 21 111.31; McDonald vs. Arnoitt, 14 111. 58;
Murphey vs. The People, 37 111. 447; McKmdlet/ vs. Buck, 43 111. 488; Cun-
ningham vs. Craig, 53 111. 252; Hat/ vs. Hayes, 56 111. 342; Snell vs. Church
Trustees, 58 111. 292; Thompsonws. White, 64111. 314; Van Pelt ys. Dumford,
58 111. 145.
(a) Boyle vs. Levings, 28 111. 314; Nason vs. Letz, 73 III. 371.
(6) Commissio7iers etc. vs. The People, 31 111. 97.
[c) Franey vs. True, 26 111. 184.
[d) Horn vs. Neu, 63 111. 539.
[e) Suttler vs. The People, 59 111. 68.
(/) Pick vs. Ketchum. 73 111. 366.
(a) Bertrand vs. Taylor, 87 111. 235.
(h) 55 111. xxi; Puterbaugh's Com. Law PI. and Pr. viii
(0 1 Bradwell's App. Ct. R. 21, 32, 44, 55.
662 SUPREME AND APPELLATE COURTS.
Records of Inferior Courts — Praecipe for.
No. 254. Pk^cipe for record in inferior court, in common
law cases.
In the Circuit Court,
A B ) ^ Term, 18
vs. y In an action of
C D )
The clerk of said court will make up an authenticated copy
of the record in the above entitled cause, and will insert :
1. A copy of the process ;
2. The pleadings of the parties respectively ;
3. The verdict of the jury.
4. The judgment of the court ;
5. All orders in the cause made by the court ;
6. The bill of exceptions ;
7. The appeal bond {in case of appeal).
Attorney for
No. 255. Precipe for record in inferior court in chancery
case.
{Title of court and cause, as in last form.)
The clerk of said court will make up an authenticated
copy of the record in the above entitled cause, and will
insert :
1. A copy of the process {or notice and proof of publica-
tion and of mailing, or excuse for not mailing) ;
2. The pleadings in the cause ;
3. The decree, and other record entries ;
4. The evidence as contained in the certificate of evidence.
5. The appeal bond {in case of appeal),
{and direct such other matters, if any, as may he necessary to
present the matters in controversy).
Solicitor for
Enough of the record should be certified to enable the
court to determine whether the errors complained of have
intervened, {f)
A transcript of a record in the circuit court, certified by
the clerk, under the seal of the court, to be a true and full
0') Miller vs. Whitaker, 33 111. 386.
SUPREME AND APPELLATE COURTS. 663
Records of Inferior Courts — Additional Record.
copy of the proceedings in the cause, not shown by any evi-
dence to be otherwise, must be taken to be the record in the
cause, and imports verity. Tliey are made uj) from the
entries of the clerks in their minutes and order books, and
from the files in the cause. The clerk takes daily minutes
of the proceedings, and generally, at their leisure, enter them
in the proper form in the order book, which, with the files,
are the records in the cause, {k)
A bill of exceptions in a suit at law, or a certificate of evi-
dence in chancery, when properly filed, becomes a part of
the record. (/)
All proceedings in chancery other than oral evidence are
a part of the record. The oral evidence must be preserved
by a certiHcate of evidence, (m.)
The papers of a cause, when filed under our statute, be
come a part of the record, and transcripts are made by
copying the tiles, the orders of the court, and such papers as
are made a part of the record by a bill of exceptions or cer-
tificate of evidence. (;?)
Amending the transcript — The supreme or appellate court
cannot amend a transcript of a I'ecord, even by the original
papers, should they be produced by a party for that pur-
pose ; (o) nor can the transcript be withdrawn from the files
for the purpose of an amendment, [jji)
Additional record.— K party may file an additional tran-
script of the record, under certain circumstances, to correct
{k) SchWmer vs. The People, 33 111. 276; Garden Chij Ins. Co. vs. Stag-
art, 79 111. 259; C. B. d- Q. R. R. Co. vs. Lee, 68 111. 576.
(l) Wallahan vs. The People, 40 111. 102.
(»i) Ferris vs. McClure, 40 111. 99; Smith vs. Newland, 40 111. 100;
Mason vs. Bair, 33 111. 195; Waiigh vs. Robbins, 33 III. 181; Eaton vs.
Sanders, 43 111. 435; Bressler vs. McCune, 56 111. 475.
(n) Stevison vs. Ernest, 80 III. 513; Harding vs. Larkin, 41 111. 423.
(o) III. C. R. R. Co. vs. Garish, 40 111. 70; Ballance vs. Leonard, 40 111.
72; Wilder vs. House, 40 111. 93.
ip) Rowley vs. Hughes, 40 111. 71; Rimrd vs. Walker, 40 111. 120.
664 SUPREME AND APPELLATE COURTS.
Records of Inferior Courts — Removing, etc.
errors or omissions in the original transcript ; {q) and when
it is so filed it becomes a part of the record in the case, and
will be considered as such. (7')
Amendment of record in inferior courts. — The supreme or
appellate court will not undertake to amend or correct the
record of an inferior court. That belongs alone to the court
where the record was made and the cause was tried, {s)
If a party desires an amendment or correction of the
record in a cause after the term at which the judgment was
rendered therein, application for that purpose must be made
in open court, and upon notice to the opposite j^arty. if)
Removing records from office of clerTi. — Rule 15 of the
supreme court, {^i) and rule 14 of the appellate courts, (v)
respectively provide that
"No person shall remove from the office of the clerk any
record of this court except on special leave granted for that
purpose. No record shall be taken from the files of the
court except on application therefor to the clerk or his
deputy; and it is made the duty of the clerk to report
promptly to the court every violation of this rule. The
clerk shall be held responsible for the safe keeping and
production of the records. Application for leave to remove
records may be considered at any time in the discretion of
the court."
iq) Flagler vs. Crow, 40 111. 70; Roivley vs. Hughes, 40 111. 71.
(r) Goodrich vs. Cook, 81 111. 41.
(s) Wilder vs. House, 40 111. 92; Gecum vs. Dean, 40 111. 92; Bergan vs.
Eiggs,'iO 111. 61; Underwood vs. Hossack, 40 111. 98.
it) Wallahan vs. The People, 40 111. 102; Shepley vs. Speyicer, ^ 111.
105; Smith vs. Trimble, 27 111. 152; Brooks vs. Bruyn, 40 111. 64.
(m) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. viii.
(r) 1 Bradwell's App. Ct. R. 21, 33, 45, 56.
SUPREME AND APPELLATE COURTS. 665
Docket — Docketing and Hearing.
SECTION VII.
DOCKET.
Rules 13 and 14 of the supreme court {w), and rules 12 and
13 of the appellate courts, respectively, (a?) provide that
13. (12) '' No case brought to this court by appeal shall be
placed on the court docket for hearing unless the record is
iiled within the time now prescribed by law (y), or within
the further time allowed by the court for filing the record,
€xcept in extraordinary cases the court, upon special appli-
cation, may order a cause to be placed on the hearing
docket.
14. (13) "No case which may be brought to this court
on writ of error shall be placed on the court docket for hear-
ing, unless the record shall be filed on or before the second
day of the term, or within such further time as may be
allowed by the court for filing the same, except in extraordi-
nary cases the court, upon special application, may oi'der a
■cause to be placed upon the hearing docket."
Docketing and hearing. — Rule 30 of the supreme court, (s)
and rules 25 of the first, and 26 of the third district of the
appellate court, {a) provide that
" Causes in which the people are a party, and in which
they have a direct interest in the decision, shall be placed at
the head of the docket ; all other cases shall be docketed and
called for argument in the order in which the records shall
have been filed with the clerk."
Advancing causes on the docket. — Rule 61 of the supreme
court (b) provides as follows :
(«') 55 111. xxi; Puterbaugh's Com. Law PI. and Pr. viii.
(x) 1 Bradwell's App. Ct. R. 21, 32, 45, 56.
(y) See ante, p. 656; Laws of 1879, 221; Bradwell's ed. 170.
{z) 55 111. XXV; Puterbaugh's Com. Law PI. and Pr. xi.
(a) 1 Bradwell's App. Ct. R. 24, 48.
(6) 79 111. vii; Puterbaugh's Com. Law PL and Pr. xv.
666 SUPREME AND APPELLATE COURTS.
Docket — Call of Docket.
Rule 61. — '■'■ Ordered^ That causes which, in the judgment
of the court, involve important public interests, may be
advanced on the docket."
Re-docketi7i(j causes not decided. — The 63d rule of the
supreme court, adopted at the September term, 18T6, (c) is as
follows :
Rule 63. — '''-Ordered.^ That the clerks of this court, in the
several grand divisions, are hereby directed, in preparing
dockets of the business of all terms subsequent to this, to
place upon the same all cases pending in their respective
divisions, and in which final judgment has not been entered ;
and in all such cases, where the case shall have been submit-
ted to the court for consideration, the clerk shall note upon
the docket the term at which such case was submitted."
Call of docket. — Rule 31 of the supreme court, (c?) and rules
26 of the first, 25 of the second, 26 of the third and 26 of
the fourth district of the appellate court, {e) provide
"That civil docket shall be called numerically, and the
causes shall be argued, continued, or otherwise disposed of,
as they are called, unless for good cause shown they be
placed at the foot of the docket; all unexpired rules will
terminate upon the call of the cause for hearing : Provided^
That if the court shall give time to either party without the
consent of the other, the cause shall not lose its precedence
on the docket."
Call of the docket — Time for filing abstracts and hriefs —
Supreme Court. — Rule 32 of the supreme court (/") pro-
vides that
"Hereafter, in the northern and central divisions, the call
of the docket will commence with the second week of th&
(c) 79 111. vii; Puterbaugh's Com. Law PI. and Pr. xv.
(fZ) 55 111. XXV; Puterbaugh's Com. Law PI. and Pr. xi.
(e) 1 BradwelPs App. Ct. R. 24, 36, 48, 59.
(/) 55 111. XXV ; Puterbaugh's Com. Law PI. and Pr. xi.
SUPREME AND APPELLATE COURTS. 667
Docket — Time for Filing Abstracts, etc.
term, and in the southern division on the third day of the
term, and twenty ctifses per day will be subject to call. The
abstract and brief of plaintiff in error or appellant must be
filed in the clerk's office one day before the day when a cause
stands subject to call, and in the event that either the abstract
or brief is not filed within the prescribed time, the judgment
or decree of the court below will, on the call of the docket,
be affirmed. The defendant in error or appellee, in case he
does not argue orally, can file a brief within ten days after
the time fixed for filing the brief of plaintiff" in error or appel-
lant, and the latter can have ten days for a reply, at the
expiration of which time the cause will stand for decision, and
no further arguments will be received."
First district of appellate court. — Rule 27 of the first dis-
trict of the appellate court {g) provides that
" In all cases where the record shall have been filed with
the clerk not less than twenty days before the first day of the
term, and including all causes continued from a former term,
the plaintiff" in error or appellant shall file with the clerk his
abstract and brief at least five days before the first day of the
term ; and in all other cases, down to and including number
fifty of the term docket, the plaintiff" in error or appellant
shall file his abstract and brief on or before Monday of the
second week of the term ; and in all cases from number fifty-
one to number seventy-five inclusive, on or before Monday
of the third week of the term ; and in all cases from num-
ber seventy-six to one hundred inclusive, on or before Mon-
day of the fourth week of the term ; and in all cases from
number one hundred and one to and including one hundred
and twenty-five, on or before Monday of the fifth week of
the term ; and in all cases subsequent to number one hun-
dred and twenty-five, on or before Monday of the sixth week
of the term. In case of the failure of the plaintiff" in error
or appellant to file either his abstract or brief within the
time above prescribed, the judgment or decree of the court
{g) 1 Bradwell's App. Ct. R. 25.
668 SUPKEME AND APPELLATE COURTS.
Docket — Time for Filing Abstracts^ etc.
below will, on the call of the docket, be affirmed. In all
cases the appellee or defendant in error shall file his brief
at least one day before the day the cause is called for hear-
ing."
Second distinct appellate court— 'Rule 26 of the second dis-
trict of the appellate court (A) provides that
"Hereafter the call of the docket will commence with the
third day of the term, and fifteen cases per day will be sub-
ject to call. The appellant or plaintiff" in error shall file his
abstracts and briefs on or before the day fixed by law or by
rule of this court for' filing the transcript of the record of the
court below, unless, for cause shown, the time shall be ex-
tended. In the event that either the abstract or briefs be not
filed within the prescribed time, the judgment or decree of
the court below will, on the call of the docket, be affirmed.
The defendant in error or appellee, if he do not argue
orally, can file a brief within ten days after the time fixed for
filing the brief of plaintiff* in error or appellant, and the
latter can have five days for a reply. At the expiration of
this time the case will stand for decision, and no further
argument will be received."
Third district appellate court. — Rules 28 and 29 of the
third district of the appellate court (^) provide that
28. "In all cases when the record shall have been filed
with the clerk not less than ten days before the first day of
the term, and in all cases continued from a former term, the
plaintiff* in error or appellant shall file with the clerk his
abstracts and briefs at least five days before the first day of
the term, and the defendant in error or appellee shall file
his briefs one day before the case is subject to call for
trial. All such cases shall be subject to call at the rate of
twenty cases per day on and after the first day of the term.
{h) 1 Bradwell's App. Ct. R. 36.
(i) 1 Bradwell's App. Ct. R. 48.
SUPREME AND APPELLATE COURTS. 669
Docket — Time for Filing Abstracts, etc.
This rule shall not be in force at the present term. (No-
vember t. 1877.)
29. " In all other cases not included in the above rule, the
plaintiff in error or appellant must file his abstracts and
briefs in the office of the clerk six days before the day when
the cause stands subject to call ; and in all cases in the event
that either the brief or abstract is not filed within the pre-
scribed time, the judgment or decree of the court below will,
on call of the docket, be affirmed. The defendant in error
or aj)pellee must file his brief in the clerk's office one day
before the case is subject to call for hearing ; and no case
under this rule shall be called before the second Tuesday of
the term. All cases shall be called at the rate of twenty
cases per day."
Fourth district appellate court. — Rule 27 of the fourth
district of the appellate court (^') provides that
"Hereafter the call of the docket will commence on the
third day of the term, and fifteen cases per day will be sub-
ject to call. The abstract and brief of plaintiff in error or
appellant must be filed in the clerk's office one day before the
day when a cause stands subject to call ; and in the event that
either abstract or brief is not filed within the prescribed time,
the judgment or decree of the court below will, on the call of
the docket, be affirmed. The defendant in error or appellee
can file a brief within ten days after the time fixed for filing
the brief of plaintiff in error or appellant, and the latter
can have five days from the date of filing brief of appellee
or defendant in error for a reply, at the expiration of which
time the cause will stand for decision."
Effect of failure of defendant in error or appellee to fie
hriefs. — Rule 33 of the supreme court {k) and rules 27 of the
(j) 1 Bradwell's App. Ct. R. 59.
{k) 55 111. xxvi; Puterbaugh's Com. Law PI. and Pr. xi.
670 SUPREME AND APPELLATE COURTS.
Assignment of EiTors, and Proceedings Thereon.
second, 30 of the third and 28 of the fourth district of the
appellate court (1) provide that
" If the defendant in error or appellee fail to file his brief
within the prescribed ten days, the judgment or decree will
be reversed j?ro forma, unless the court, on examination of
the record, shall deem it proper to decide the case upon its
merits."
Rehearing docket. — Rule 57 of the supreme court (m) and
rules 36 of the second, and 3Y of the fourth district of the
appellate court (w) provide that
"The clerk of this court shall, at each term, docket all
petitions for rehearing, separate and apart from the trial
docket."
In the first district of the appellate court, all cases in
which a rehearing has been granted, or in which a petition
therefor is pending, are to be placed by the clerk on the
term docket, in the order of their general number. (<?)
SECTION VIII.
ASSIGIOIENT OF ERRORS, AND PROCEEDINGS THEREON.
Rule 16 of the supreme court {p) and rule 15 of the ap-
pellate courts, respectively, {q) provide that
"The appellant or plaintifi" in error shall in all cases assign
errors at the time of filing his record in this court, and on
failing to do so the case may be dismissed, but other errors
may be assigned after the filing of the record, by leave of
the court. The appellee or defendant in error shall have the
[1) 1 Bradwell's App. Ct. R. 36, 49, 59; Cox vs. City of Tuscola; 3 Brad-
well's App. Ct. R. 628.
(m) 59 111. xxi.
(n) 1 Bradwell's App. Ct. R. 38, 61.
(o) 1 Bradwell's App. Ct. R. 26, rule 32.
(jo) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. ix.
(3) 1 BradweU's App. Ct. R. 22, 38, 45, 56.
SUPREME AND APPELLATE COURTS. 671
Assignment of Errors, and Proceedings Thereon.
right to assign cross-errors witliin two days after the record
is filed in this court, and not afterward without special leave
of the court. The assignment of errors and cross-errors
must be written upon or attached to the record." (r)
An assignment of errors is in the nature of a declaration,
and at common law was either of errors in fact, coratn nohis^
or errors in law. The former consisted of matters of fact
not appearing on the face of the record, which, if true, prove
the judgment to have been erroneous. An error of fact
and error of law could not be joined in one assignment. If
the}^ were so joined it could be taken advantage of by de-
murrer, {s)
Writs of error in fact, or coram 7iohis, are no longer in use
in this state. The 66th section of the Practice Act provides
that
' ' The writ of error coram 7iohis is hereby abolished, and
all errors in fact committed in the proceedings of any court
of record, and which by the common law could have been
corrected by said writ, may be corrected by the court in
which the error was commited, upon motion in writing made
at anytime within five years after the rendition of final judg-
ment in the case, upon reasonable notice. When the person
entitled to make such motion shall be an infant, feme covert^
non compos mentis^ or under duress, at the time of passing
judgment, the time of such disability shall be excluded from
the computation of said five years." {f)
Writs of error to correct errors of law appearing in the
record of the proceedings, apparent on the face thereof, is
the writ in common use in this state. Its object is to review
and correct an error of the law committed in the inferior
(r) ailhs vs. Blackwell, 40 111. 51.
is) Tidd's Pr. 1168; Freeborn vs. Denman, 2 Halst. 190; Fitch vs.
Lothrop, 2 Root, 524; Clarke vs. Bell, 2 Litt. 162; Moody vs. Vreeland, 7
Wend. 55.
(0 Rev. Stat. (1874) 782; Rev. Stat. (1877) 743; see Coursen vs. Hixon,
78 111. 339; Fix vs. Quinn, 75 lU. 233.
672 SUPEEME AND APPELLATE COURTS.
Assignment of Errors — Form of.
court, which is not amendable or cured at common law or bj
sonie statutes of amendment or jeofail, {u)
The supreme or appellate court will not consider any errors
not assigned uDon the record, {v)
Additional errors may be assigned, in the discretion of the
court. But after issue is formed leave will not be granted
to assign additional errors, except upon good cause shown,
and a motion for that purpose must be in writing, {yo)
They cannot be assigned after the argument of the cause,
unless by consent of the appellee or defendant in error, (a?)
One defendant cannot assign or urge error as to another
who is not complaining, unless it prejudices his rights or
affects his interests, (y)
No. ^56. Form of assignment of errors.
In the Supreme {or Appellate) Court of the State of Illinois.
Grand Division
{or District)^
Term, 18-
C. D., plaintiff in error ~|
{or appellant) \ Writ of error to {or appeal
vs. V froiii) the Court of the
A. B,, defendant in error County of .
{or aiypellee). J
And now comes C. D., the plaintiff in error {or appellant)^
by his attorney, and says, that in the record and pro-
ceedings and in rendering judgment aforesaid, there is mani-
fest error in this, to wit :
(m) Tidd's Pr. 1060; Bacon's Abr., Error; 3 Black. Comm. 405.
{v) Gilbert vs. Maggard, 1 Scam. 433; Jackson vs. Warren, 32 111. 331;
Protection Life his. Co. vs. Foote, 79 111. 361; Meyers vs. Andrews, 87 III.
433.
[w) Anonymous, 40 111. 54.
{x) Bristol vs. City of Chicago, 21 111. 605. ■
(//) Reed vs. Boyd, 84 111. 66; L. S. & M. S. R.R. Co. vs. McMillan, 84
111. 208; Stone vs. Wood, 85 111. 603; Robinson vs. Broivn, 82 111. 279; ShoH
vs. Raub, 81 111. 509; Rowand vs. Carroll, 81 111. 224; Kolb vs. O'Brien, 86
111. 210; Dickerson vs. Hendryx, 88 111. 66; Pierson vs. Hendryx, 88 111. 34;
see Curtis vs. Baugh, 90 111. 184.
SUPEEME AND APPELLATE COURTS. 673
Assignment of Errors — Cross-Errors.
I. The court below admitted improper evidence on the
part of the plaintiff.
II. The court below rejected proper evidence on the part
of the defendant.
III. The court erred in giving improper instructions on
behalf of the plaintiif.
ly. The court refused proper instructions asked by the
defendant.
Y. The court erred in overruling the motion of the de-
fendant to set aside the verdict of the jury, and for a new
trial.
VI. The court erred in rendering a judgment in favor of
the plaintiff and against the defendant.
By reason whereof the plaintiif in error {or ajyjpellant)
jDrays that said judgment may be reversed, etc.
By , his attorney.
Cross-errors. — Section 78 of the Practice Act, as amended
by the act of 1877, provides that
"In all cases of appeal to the supreme court or appellate
court, or writ of error, the appellee or defendant in error
may assign cross-errors, and the court shall dispose of the
same as in other cases of assigment of error." (s)
"When the appellee or defendant in error does not assign
cross-errors, he cannot insist on any errors as against him-
self, {a)
Joinder in error. — To an assignment of errors the appellee
or defendant may plead the common plea, ov joinder., as it is
frequently called, is in nullo est erratum ; or that there is no
error in the record or proceedings ; which is in the nature of
a demurrer, and at once refers the matter of law arising
thereon to the judgment of the court.
By joining in error the appellee or defendant in error
(z) Laws of 1877, p. 151; Rev. Stat. (1877) 744; see rule 16 of supreme
court and 15 of appellate court, ante, p. 670; Hatfield, vs. Fowler, 60 111. 15;
Cable vs. EUh, 86 111. 525.
(a) Dickson vs. C. B. <£: Q. R.R. Co., 81 111. 215; The People vs. Brislin,
80 111. 423; Johnston vs. Maples, 49 111. 101; Pollard vs. King, 63 III. 286;
HI. B. Society vs. Baldwin, 86 111. 479.
674 SUPKEME AND APPELLATE COURTS.
Assignment of Errors — Form of — Release of.
admits the record to be perfect ; the effect of his plea is that
the record in its present state is without error ; [h) and there-
fore after joining in error neither party can allege diminu-
tion, or praj a certiorari, {c) without obtaining leave to
withdraw the joinder for that purpose, (d)
No. 257. Form of joinder in error.
In the Supreme {or Appellate) Court of the State of Illinois.
Grand Division
{or District).,
Term, 18—.
A. B. )
(its ' > ^^^^ ^^ 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 (</) provide that
"When the defendant in error or appellee desires to
plead instead of joining in error, he shall file his plea or
pleas in the office of the clerk within one day after the time
at which the transcript of the record of the court below is
required to be filed, unless for cause shown, the time for
filing such plea or pleas be extended."
No. 258. Plea of Release of Errors.
In the Supreme {or Appellate) Court of the State of Illinois.
Grand Division
{or District),
Term, 18 — .
A. B., deft in error "^
{or appellee) \ ^^..^ ^^ ^^^^^, ^^ ^^^ ^^^^^^^ ^^^^^^ ^^^
r, T^ f^S' • I Court of the County of .
C. D., pin m error | ''
{or appellant^. J
And the defendant in error, {or apj)ellee) by , his at-
torney, comes and says that the plaintiif in error {or appel-
lant) ought not to maintain his said writ of error {or appeal)
in this behalf against him, the defendant in error {or ap-
pellee)., because, he says, that after the rendition of said de-
cree {or judgment)., and before the suing out of the writ of
error {or the prosecution of said appeal)., on to wit, the
day of , 18 — , the plaintiff in error {or appellant)., by his
deed, bearing date of that day, and now to the court here
shown, released to the defendant in error {or appellee) any
and all errors in the record and proceedings aforesaid, as by
the said deed, reference thereto being had, will more fully
(o) Kern vs. Zink, 55 111. 449; Trustees of Schools vs. Hihler, 85 111.
409.
(p) 59 III. xxi; Puterbaugh's Com. Law PI. and Pr. xv.
(q) 1 Brad well's App. Ct. R. 39, 61.
SUPKEME AND APPELLATE COURTS. 677
Release of Errors — Motions.
appear ; and this the defendant in error {or ajjpellee) is ready
to verify. Wherefore, he prays judgment if the plaintiff in
error {or appellant) ought to maintain his said writ of error
{o7' appeal) against him, etc.
By his attorney.
For form of a release of error by deed by one of several
defendants in error, see Henrickso7i vs. Van Winkle^ 21 111.
2Y4; and that plaintiff in error has received the benefit of
the decree sought to be reversed, see Austin vs. Bainter^ 40
111. 85 ; Corwin vs. Shoup^ Y6 111. 248 ; Smucker vs. Lari-
more, 21 111. 267.
Replications to special pleas may be filed traversing the
allegations.
Trial of issues. — Issues of fact will not be tried by the
supreme or appellate courts, except by consent. If the par-
ties consent, the issues will be tried upon evidence in writing.
The court will not hear oral testimony. If the parties do
not consent to have the issues tried in the court of appeal, or
if the evidence is not to be presented in writing, the issue
will be sent to the court below to which the writ of error
was sued out, or from which the appeal was taken, to be
there tried by a jury, and their finding certified to the su-
preme or appellate court, as the case may be. (r)
SECTION IX.
MOTIONS, {s)
When to he made. — Rule 21 of the supreme court, and rule
lY of the third and fourth districts of the appellate court,
provide that
(r) Austin vs. Bainter, 40 III. 82; People vs. Young, 40 111. 87j People
vs. Supervisors, 40 111. 87.
(s) 55111. xxiii; Puterbaugh's Com. L. PI. and Pr. ix, x; Bradwell's App.
Ct. R. 22, 34, 46, 57.
678 SUPREME AND APPELLATE COURTS.
Motions — Affidavits in Support of, etc.
"Motions may be made immediately after the decisions
of tlie court are announced, but at no other time, unless in
case of necessity, or in relation to a cause wLon called in
course."
And in addition to the above in rule 17 of the first and
second districts of the appellate court, the following clause
was added : "Motions for orders of course will be entered by
the clerk, with orders of course made thereon, viz : for hear-
ing, taken under advisement and entering decisions, in such
manner that a perfect record may be kept of each step in the
cause.''
In ivhat order.— Y\\\\q 22 of the supreme court, and rule 18
of the third disti'ict of the appellate court, provide that
" Motions are to be made by the attorneys in the following
order : First, by the attorney-general ; next, by the oldest
practitioner at the bar and so on to the youngest."
Special motixms. — The 23d rule of the supreme court, and
rule 18 of the first, second and fourth and 19 of the third
districts of the appellate court, provide that
"All special motions shall be in writing and filed with the
clerk, together with the reasons in support thereof, at least
one day before they shall be submitted to the court. Objec-
tions to motions must also be in writing. Oral arguments will
not be heard."
Special motions are not considered by the court until the
day following that on which they are entered, {p
Affidavits in support of motion. — Rule 2-1 of the supreme
court, and rule 19 of the first, second and fourth and 20 of
the third districts of the appellate court, provide that
" When a motion is intended to be based on matters which
do not appear by the record, the facts must be disclosed and
supported by affidavit."
Thus, a motion for extension of time for filing a transcript
{t) U. S. Ex. Co. vs. Bedbury, 40 111. 122.
SUPREME AND APPELLATE COURTS. 679
Suggestion of Diminution of Record.
of the record, {u) and a suggestion of diminution of record,
must be in writing, and supported by an affidavit, {v)
Motion to vacate orders. — Rule 20 of the appellate court of
the fourth district provides that
"Motions to vacate orders, affirming or reversing judg-
ments ^j/'O forma and of continuance, and taking causes on
the docket, will not be considered by the court unless reason-
able notice, in writing, shall have been given to the opposite
party or his attorney, of an intention to present such
motion."
SECTION X.
SUGGESTION OF DIMINUTION OF RECORD.
If there is any portion of the record in the court below
which has been omitted from the transcript of the record, it
can only be supplied upon a suggestion of a diminution of the
record, supported by an affidavit of that fact, when the court
will award a writ of certiorari to the court from which the
cause is brought for a complete record, {to)
Should matter be copied into the transcript as a part of
the bill of exceptions which is not contained in the original
bill of exceptions, the proper course is, upon proper sugges-
tion, supported by affidavit, to ask for a writ of certiorari^
so that a correct record may be brought up. (x)
When to he suggested. — A defendant in error, to avail him-
self of a diminution of record, should move for a writ of cer-
(m) Webster vs. Pierce, 40 111. 39.
[v) Von Glahn vs. Von Glahn, 40 111. 73; Waterman vs. Raymond, 40
111. 63.
[w) Von Glahn vs. Von Glahn, 40 111. 73; Ballance vs. Leonard, 40 111.
72; Gardner vs. Diedrich, 40 111. 72; Rowley vs. Hughes, 40 111. 71; Schirmer
vs. The People, 40 111. 66; Gihbs vs. Blackwell, 40 111. 66; Steele vs. The People,
40 111. 59; Boynton vs. Champlin, 40 111. 63; Waterman vs. Raymond, 40 111.
63; Bergan vs. Riggs, 40 111. 61; Brooks vs. Bruyn, 40 111. 64.
[x) III. C. R.R. Co. vs. Parish, 40 111. 70; Reed vs. Curry, 40 111. 73.
€80 SUPKEME AND APPELLATE COUKTS.
Suggestion of Diminution of Record — Form of.
tiorari before joinder in error, or in case he has joined in
error, should obtain leave to withdraw his joinder for that
purpose, {y)
An application for a writ of certiorari^ to enable the party
to bring up a more perfect transcript of the record, will not
be entertained after the term at which the cause was sub-
mitted to the court for decision, (2) nor will it be entertained
on an application for a rehearing.
Costs on certiorari. — If it shall appear, upon a return of a
aertiorari.^ that the application for the writ was frivolous, the
party will not be allowed any costs therefor.
No. 259. Form, of suggestion of dirninution of record.
In the Supreme [or Apjyellate) Court of the State of Illinois.
Grand Division
{or District),
Term, 18—.
A. B., pi' if in error ^
^ , [ "Writ of error to [or appeal from) the
€. D., deft in error | ^^^^^^ ^f the county of .
{or appellee). J
And now, on this day of , 18 — , comes the de-
fendant in error {or appellee)., by , his attorney, and sug-
gests to the court here that in the transcript of the record
returned in tliis cause from the Court of the County of
there are certain defects, that is to say : {Here set forth
jparticularly the defects or om.issions.)
Wherefore, the defendant in error (or aiJpellee) prays that
a writ of certiorari may be awarded, directed to the clerk of
said court, to send up a true transcript of the record and pro-
ceedings of the said court, etc.
. Atty.for deft, in error.,
{or appellant.)
{Add affidavit of the defects or omissions'.)
iy) Boynton vs. ChampUn, 40 111. 63; Gibbs vs. Blackivell, 40 111. 66; see
Jones vs. Sprague, 2 Scam. 55.
{z) Steele vs. The People, 40 111. 59; f7. S. Ex. Co. vs. Bedbunj, 40 111. 60.
(a) Boynton vs. Champlin, 40 111. 63.
SUPKEME AND APPELLATE COURTS. 681
Original Papers — Abstract of the Record.
The granting of the writ of certiorari does not delay the
hearing of the cause, without a special order to that effect, {h)
SECTION XI.
ORIGINAL PAPERS.
When they loill he compelled to he produced. — "Where it
is made to appear by affidavit that an original paper used on
the trial below ought to be inspected by the supreme or
appellate court, and such paper is in the hands of a party to
the suit, a rule will be entered requiring such party to pro-
duce the paper or show cause why he should not do so. (c)
But when the paper is in the custody of the court below, or
of its legal custodian, the court above has no control over
it. {d)
The supreme or appellate court will, upon mere suggestion
that the inspection of an original paper is important in
determining the rights of the parties, request the clerk of the
court below to send them up for that purpose. Or perhaps,
upon proper application, the necessity of so doing being
shown, the court would award a suhpmia duces tecum^ and
thereby require the clerk to appear in person and produce
the original papers for the inspection of the court, {e)
SECTION XII.
ABSTRACTS OF THE RECORD.
Rule 26 of the supreme court (^/") is as follows:
"In all cases, the party bringing a cause into this court
(fe) Beed vs. Curry. 40 111. 73.
(c) Holhrook vs. Nichol, 40 111. 75; Cameron vs. Savage, 40 111. 76; Anontf'
tnous, 40 111. 77.
(d) Cameron vs. Savage, 40 111. 76; Anonymous, 40 111. 77.
(e) Anonymous, 40 111. 77; Cameron vs. Savage, 40 111. 76.
(/) 55 111. xxiv; Puterbaugh's Com. Law PI. and Pr. x.
682 SUPREME A.ND APPELLATE COURTS.
Abstract of the Record.
shall furnish a complete abstractor abridgment of the record
therein, referring to the appropriate pages of the record by
numerals on the niai-gin. and shall cause such abstract to be
printed in a neat and workmanlike manner, with small-pica
type and leaded lines, on one side only, ujjon white foolscap
paper, leaving a margin at least two inches in width on the
left-hand side of each sheet. Ten copies of such printed
abstract shall be filed in each case, one for each of the judges,
one for the defendant in error or appellee, one for the report-
er, and one to be filed with the record."
Rule 21 of the first district, 20 of the second, 22 of the
third and fourth, are substantially the same as the rule of the
supreme court, except that only six copies of the abstract are
required to be filed in the first district, and five in each of
the second, third and fourth districts. (^)
Rule 27 of the supreme court, (A) and rules 22 of the first,
21 of the second, 23 of the third and fourth districts of the
appellate court, {%) provide that
"The defendant's counsel shall be permitted, if he is not
satisfied with the abstract or abridgment furnished by the
plaintifi''s counsel, to furnish each of the justices of this
court with such further abstracts as he shall deem necessary
to a full understanding of the merits of the cause."
When the defendant in error files an additional abstract,
"under the above rule, the court will, upon examining the
case, determine upon the necessity of the additional abstract,
and award the costs accordingly, {j)
The supreme or appellate court will refuse to consider
a case where a defective abstract is furnished, which only
refers to the pages of the record to be examined, instead
(g) 1 Bradweirs App. Ct. R. 23, 34, 47. 58.
{h) 55 III. xxiv; Puterbaugh's Com. L. PI. and Pr. x.
(i) 1 Bradwell's App. Ct. R. 23, 35. 47. 58.
0*) Fhelps vs. Funkhouser, 40 111. 27; Bosttvickys. Williams, 40 111. 113j
Johnston vs. Bancock, 38 111. 111.
SUPREME AND APPELLATE COURTS. 683
Abstract of the Record.
of presenting the questions of fact ; (k) and where no printed
abstracts are filed the court may, in its discretion, dismiss the
cause. (/)
Wliere the abstract fails to present the evidence satisfac-
torily, it is the privilege and duty of the appellee or defend-
ant in error to file a corrected one, showing what is omitted
or not fully stated, (m)
Where an insufficient number of abstracts are filed, a
short rule may be taken on the plaintiff" in error or appellant
to file the proper number, (n)
Amended abstracts may be filed without leave of the
court, (o)
Evidence must be condensed in tlie abstract. If that
which purports to be an abstract contains the questions pro-
pou'nded, and the answers of the witnesses in full, it is in no
sense an abstract of the testimony, but is in direct violation
of the rules of the supreme court, and the party furnishing
it will be allowed no costs for printing it. (2^)
If the error assigned is in sustaining a demurrer to pleas,
the abstract should set out the demurrer and pleas, so as to
enable the court to determine whether there was error or
not. {q)
Rule 59 of the supreme court, adooted at the January
term, 1874, is as follows :
'■^Ordered, In all cases where the evidence shall be taken
and written out by a short-hand reporter, and shall be em-
bodied in the bill of exceptions or certificate of evidence,
{k) Kelleher vs. Tisdale, 23 111. 405: Shacl-Ieford vs. Bailey, 35 111. 387;
see Marseilles Land Co. vs. Aldrich, 86 111. 504; Israel vs. Town of White-
hall, 2 Brad well's App. Ct. R. 509.
(I) Buttenvorth vs. Brown, 26 111. 156; Prettyman vs. Barnard, 37 III.
105; Holden vs. Herkimer, 53 111. 258; Chavis vs. Reed, 40 111. 55.
(w) Yazel vs. Palmer, 88 111. 597.
(n) Spear vs. D'Clerc)/, 40 111. 56.
(0) Anonymous, 40 111. 56.
(p) Kelly vs. Kellogg, 79 111. 477; Chicago d- A.R.R. Co. vs. Rockford,
R. I. <& St. L. R.R. Co., 72 111. 34; Skiles vs. Caruthers, 88 111. 458.
(g) III. Cent. R.R. Co. vs. Parks, 88 111. 373.
€84 SUPREME AND APPELLATE COURTS.
Abstracts — Brief and Argument.
the same shall not be printed in the abstract as returned by
such reporter, but the same shall be by plaintiff in error or
appellant condensed so as to present the substance of such
evidence clearly and concisely in the abstract." (r)
Tiine for filing abstracts. — See rules 32, 33 and 34 of the
supreme court, and rules 27, 28 and 29 of the first and
fourth, 26 and 27 of the second and 28, 29 and 30 of the
third district of the appellate court, ante^ page ^^^.
Costs of abstracts. — Rule 53 of the supreme court, as
amended by the court at October term, 1875, {s) and rules 36
of the first, 37 of the second, 44 of the third and 38 of the
fourth district of the appellate court, {t) provide that
"Upon printed abstracts being furnished, in any of the
grand divisions, in conformity to the rules of this court, it
shall be the duty of the clerk to tax a printer's fee, at the rate
of twenty cents for each one hundred words of one copy of
such abstract, against the unsuccessful party not furnishing
such abstracts, as costs to be recovered by the successful
party furnishing the same."
When an abstract is so imperfect and inartistically drawn
as to give the court but little aid in examining the record,
no costs will be allowed the appellant or plaintifl' in error
for making or printing the same. {}i)
SECTION XIII.
BRIEF AND ARGUMENT.
Briefs. — Rule 28 of the supreme court, {v) and rules 23 of
the first and 24 of the third and fourth districts of the appel-
late court, iio) are as follows:
(r) Puterbaugh's Com. Law PI. and Pr. xv; 59 111. xxii.
(s) 55 111. xxix; 69 111. x; Puterbaugh's Com. Law PI. and Pr. xiv.
(<) Bradwell's App. Ct. R. 27, 39, 51, 61.
(m) Marseilles Land Co. vs. Aldrich, 86 111. 505.
(r) 55 111. xxv; Puterbaugh's Com. Law PI. and Pr. x.
(w) 1 Bradwell's App. Ct. R. 24, 47, 58.
SUPREME AND APPELLATE COURTS. 685
Brief and Argument.
"Printed briefs will be required in all eases, whether
argued orally, in full, or in part only, or when submitted on
briefs without oral argument. The briefs required should
contain a short, clear statement of the points and the au-
thorities in support thereof; and in citing cases from pub-
lished reports, counsel will be required not only to give the
book and page, but also the names of the parties as they
appear in the title of the reported case ; and the names of
counsel filing brief or abstract must appear to the same.
But the filing of a printed brief shall not preclude the party
from filing full printed or written arguments in support of
his brief, of points and authorities, provided he does so
within the time his printed brief is required to be filed."
Rule 22 of the second district of the appellate court is the
same as the above, with the following clause added:
"Briefs and arguments must not contain personal reflec-
tions upon the court below, uncivil and unkind remarks or
epithets in relation to the opposing counsel, nor unnecessary
and irrelevant vilification of the opposite party and wit-
nesses." {x)
Number of copies. — Rule 29 of the supreme court provides-
that
"Ten copies of the briefs must be filed in each case:
one for each of the judges, one for the opposite party, one
for the reporter, and one to be filed with the record." {y)
Rule 24 of the second district of the appellate court {z) pro-
vides that
"In addition to the number of copies of abstracts, briefs
and arguments required or permitted to be filed, the re-
spective parties shall cause to be delivered to the opposite
party, or his attorney, through the mail or otherwise, a copy
{x) 1 Bradwell's App. Ct. R. 35; see Confrey vs. Starh, 73 lU. 187.
(y) 55 111. XXV; Puterbaugh's Com. Law PI. and Pr. xi.
[z) 1 Bradwell's App. Ct. R. 35.
686 SUPREME AND APPELLATE COURTS.
— — — _ — »
Brief and Argument — Oral Argument.
of the printed abstract, brief and argument, or brief and
argument, as the case may be, on or before the day it is
required to tile the same in this court, unless the residence
or address of such opposite party or liis attorney cannot
upon reasonable inquiry be ascertained."
Rules 23 of the second and 25 of the third and fourth dis-
tricts of the appellate court (a) are as follows:
"Five copies of the briefs must be tiled in each case: one
for each of the judges, one for the opposite party, and one
to be filed with the record."
Rule 24 of the first district of the appellate court {h) is the
same as the above, except that it requires six copies of the
brief to be filed, two to be filed with the record.
If the briefs of counsel in the citation of cases from pub-
lished reports fail to give the names of the parties as required
by rule 28, they will not be regarded by the court. The
necessity for the rule is obvious, for if a mistake occurs in
referring to the page, the case cannot be readily found, (c)
Printed briefs are required, whether the cause is submitted
with or without oral argument, or though written arguments
are filed, {d) And this rule applies though there be a printed
argument, unless the points are clearly and separately set
down in the argument, with the authorities in support thereof
immediately following, {e)
If the plaintiflf in error, or appellant, fails to comply with
the rule by filing a printed brief, the cause may, in the dis-
cretion of the court, be dismissed. (/")
Oral argument. — One party may argue the case orally,
and the other may file a written argument, {g) But oral
(a) 1 Bradwell's App. Ct. R., 35, 47, 58.
(fc) 1 Bradwell's App. Ct. R. 24.
(c) Smll vs. Stanley, 63 111. 391.
(d) Anonymous, 40 111. 57; Gochenour vs. Mowry, 40 lU. 57.
(e) Gillespie vs. Rout, 40 111. 58.
(/) Holden vs. Herkimer, 53 111. 258.
ig) Bentley vs. Ull, 40 111. 58.
SUPEEME AND APPELLATE COURTS. 687
Brief and Arguments — Oral Arguments.
argument will not be allowed by one party on the first call
of the docket, and by the other on the second call. (A)
Rule 34 of the supreme court {i) and rule 28 of the second
district of the appellate court {J) are as follows :
" Oral argument will be heard on the calling of a cause upon
the regular call of the docket on behalf of the appellant or
plaintiff in error, if he shall have complied with the rule
in regard to filing printed abstracts and briefs, and on behalf
of the appellee or defendant in error if he shall have filed
his printed brief on or before tlie day preceding the calling
of the cause.* Where a cause shall be argued orally in be-
half of either party, printed or written argument in addition
to his brief will not be received from such party, unless the
same shall have been filed within the time prescribed in this
rule for the filing of his printed brief."
Rule 28 of the Jirst district of the appellate court {k) is
the same as above to the asterisk (*), and then continues as
follows :
"Printed or written arguments on behalf of either party,
in addition to the brief, will not be received unless the
same shall have been filed within the time prescribed by
these rules for the filing of printed briefs by such party,
except that the appellant or plaintiff" in error shall be at lib-
erty to file a written or printed rej^ly at any time before the
argument of the case is commenced."
Rule 31 of the third district of the appellate court {I) is as
follows :
"On the calling of a case for hearing, it may be argued
orally if the rules for filing abstracts and briefs have
been complied with, or the case may be submitted on such
{h) Comstock vs. Hitt, 40 111. 121.
(t) 55 111. xxvi; Puterbaugh's Com. Law PI. and Pr. xi.
Ij) 1 Bradwell's App. Ct. R. 37.
Qc) 1 Bradwell's App. Ct. R. 25.
{l) 1 Bradwell's App. Ct. R. 49.
688 SUPREME AND APPELLATE COURTS.
Abstracts and Briefs — Oral Arguments.
abstracts and briefs, and the cause, in eitber case, shall then
be taken for final determination ; but in case the appellant
or plaintiff in error does not argue the case orally, he shall
be allowed three days after the call to file a brief in reply."
Rule 29 of the fourth district of the appellate court {m)
provides that
"When any cause wherein the appellant or plaintiff
in error shall have complied .with the rule in regard to
filing printed abstracts and briefs shall be called on the
regular call of the docket, if either party shall desire to
argue the case orally, then such case shall be set down for
oral argument on the day succeeding the time fixed by rule
for brief of appellee or defendant in error to be filed, unless
appellee or defendant in error shall waive his right to argue
the case orally, in which event the apjjellant or plaintiff in
error may submit an oral argument on call : Provided^ no
oral argument will be heard from the appellee or defendant
in error unless he shall have complied with the rule in re-
gard to filing his brief: Provided^ also, oral arguments may
be heard on call if both parties shall so agree, and if both
parties shall have filed the abstract and briefs required."
Rule 35 of the supreme court {n) and rule 29 of the second,
32 of the third and 31 of the fourth districts of the appellate
court (o) provide that
"Oral arguments will not be heard upon any motion,
nor upon the rehearing of a cause, unless specially directed
by the court."
Time allowed for oral argument. — Rule 36 of the supreme
court {p) and rules 30 of the second, 33 of the third and 31
of the fourth district {q) provide that
(m) 1 Brad well's App. Ct. R. 59.
(n) 55 111. xxvi; Puterbaugh's Com. Law PL and Pr. xii.
(o) 1 Bradwell's App. Ct. R. 37, 49, 60.
(p) 55 III. xxvi; Puterbaugh's Com. Law PI. and Pr. xii.
{q) 1 Bradwell's App. Ct. R. 37, 49, 60.
SUPREME AND APPELLATE COURTS. 689
Advance Fees to Clerk.
"The time allowed for each oral argument shall be re-
stricted to one hour, unless otherwise specially permitted."
Rule 29 of the first district of the appellate court (?•) pro-
vides that
"The time allowed for each oral argument upon the
hearing of a cause shall be restricted to one hour, except
the closing argument, which shall be restricted to thirty
minutes, unless otherwise specially permitted. Oral argu-
ments will not be heard upon any motion, unless specially
directed by the court."
SECTION XIV.
ADVANCE FEES TO CLEEK.
The last clause of section 12 of the act in relation to " Fees
and Salaries," as amended by the act of 1875, (s) provides
that
"The clerk shall receive an advance fee of ten dollars
when the record is filed, which shall be credited on the fees,
and the clerk shall repay the same to the party entitled
thereto, when the costs are collected. The clerk shall not be
required to issue a final order in any cause until all costs for
which the party seeking such final order is liable, in such
cause, have been paid."
Clerks of the appellate courts are allowed the same fees for
services in the appellate court as are allowed for like services
in the supreme court, (t)
Rules 50 and 51 of the supreme court, adopted at the Jan-
uary term, 1875, are as follows :
50. "There shall be advanced by the party filing the tran-
script of the record from the court below in this court, in any
(r) 1 Bradwell's App. Ct. R. 26.
(s) Laws of 1875, p. 79; Rev. Stat. (1877) 489.
(0 Laws of 1877, p. 69; Rev. Stat. (1877) 322.
690 SUPREME AND APPELLATE COURTS.
Cases taken from Appellate to Supreme Court.
of the several grand divisions, at the time of filing the same,
the sura of five dollars, and there shall be advanced bj the
partj filing abstracts in any such cases, at the filing the same,
the further sum of five dollars, both said sums to apply on
account of the taxable fees to the clerk.
51. "In the northern grand division the clerk shall not be
allowed any fee for abstracts, except the fee allowed by law
for filing the same." (u)
Rule 55 of the supreme court, adopted at the September
term, 1872, {v) provides that
"The first clause of rule 50 is to be construed that the
party filing the record shall only be required to advance five
dollars on fees when a case is first placed on the docket, and
no additional advanced fees shall be required of either party
if the case shall be again docketed on any motion, petition
for rehearing, or for any other purpose."
It will be seen that rules 50 and 55, so far as the amount
of the advance fees is concerned, are superseded by the
statute above quoted, and that in all cases an advance fee of
ten dollars is required when the record is filed.
For the taxable fees of the clerk of the supreme court see
Revised Statutes of 1877, page 489.
SECTION XV.
CASES TAKEN FKOM THE APPELLATE TO THE SUPREME COUET.
We have already seen in what cases appeals and writs of
error may be prosecuted from the ap23ellate courts to the
supreme court, {w) In addition to the statutes already quoted,
section 87 and 89 of the Practice Act, as amended by act of
1877, (a?) provide that
{u) 55 111. xxix; Puterbaugh's Com. Law PI. and Pr. xiv.
(v) 56 111. xvi; Puterbaugh's Com. Law PI. and Pr. xix.
Iw) Ante, p. 639; §90 Pr. Act, Rev. Stat. (1877) 748.
{x) Laws of 1877, p. 153; Rev. Stat. (1877) 746.
SUPREME AND APPELLATE COURTS. 691
Appeals from Appellate to Supreme Court, etc.
§ 87. " If any final determination of any cause, as specified
in tlie preceding sections, shall be made by tlie appellate
court, as the result wholly or in part of the finding of the
facts concerning the matter in controversy, different from
the finding of the court from which such cause was brought
by appeal or writ of error, it shall be the duty of such appel-
late court to recite in its final order, judgment or decree, the
facts as found, and the judgment of the appellate court shall
be final and conclusive as to all matters of fact in contro-
versy in such cause.
§ 89. " The supreme court shall re-examine cases brought
to it by appeal or writ of error as to questions of law only ;
and no assignment of error shall be allowed which shall call
in question the determination of the inferior or appellate
courts upon controverted questions of fact in any case, ex-
cepting those enumerated in the preceding section" (§88).
Manner of making up records in appellate courts and certi-
fying to supreme court. — Section 91 of the Practice Act, as
amended by the act of 1877, (y) provided that
"It shall be the duty of the supreme court to direct, by
general rule, what portions of, and the manner in which, the
records of the appellate court shall be made up and certified
in cases removed from such appellate court to the supreme
court by appeal or writ of error, except as otherwise provided
in section eighty-eight (88) aforesaid."
By rule (64) o. the supreme court, adopted at the Septem-
ber term, 1877, iz) it was provided that
"Pursuant to section 91 of 'An act in regard to practice
in courts of record,' approved June 2, 1877: Ordered by the
court. That in all cases removed from the appellate courts to
this court by appeal or writ of error, only so much of the
record shall be made up and certified as shall be necessary
to clearly and fully present the question upon which the
{y) Laws of 1877, p. 154; Rev. Stat. (1877) 746.
{z) 83 111. xi; Puterbaugh's Com. Law PI. and Pr. xvi.
692 SUPREME AND APPELLATE COURTS.
Appeals from Appellate to Supreme Court, etc.
decision of this court shall be sought, and the same shall be
directed by at least two of the judges of the court from
which the record is brought, and their order to that effect
shall be certified as a part of the record."
Rule 37 of the first district of the appellate court id) pro-
vided as follows :
''Whereas, by a rule of the supreme court it is ordered,
etc. {(.Ls above)^ Therefore, it is ordered by this court that
the counsel for the party desiring to remove a cause
from this court to the supreme court shall prepare and
submit to the counsel for the opposite party a draft of
an order of this court, as required by said rule of the su-
preme court; which draft shall contain, first, a designation
of the several j)arts of the record, including the final judg-
ment or decree of the court below, and the final judgment
of this court necessary to present clearly and fully the ques-
tions upon which the decision of the supreme court shall
be sought ; and secondly, the facts found by this court from
the evidence in the record, so far as said facts are j)erti-
nent to said questions ; and if the counsel cannot agree,
they shall, after reasonable notice, each present to this court,
or one of the judges thereof, their suggestions in relation
thereto, in writing, in order that the points in difterence, if
any, may be fairly settled in compliance with said rule of the
supreme court."
Eule 39 of the second district of the appellate court (5)
provided that
' ' Whereas, by a rule of th e supreme court, etc. (as above
set forth) It is hereby required by this court that the counsel
of appellant or plaintiif in error shall pre.pare and submit
to the counsel for appellee or defendant in error a draft of
the order of this court, containing the statement of facts,
and portions of the record only necessary to present clearly
(a) 1 Bradwell's App, Ct. R. 27.
(6) 1 Bradwell's App. Ct. R. 39.
SUPREME AND APPELLATE COUETS. 693
Appeals from Appellate to Supreme Court, etc.
and fully the questions aforesaid ; and if tlie counsel cannot
agree, they shall, after reasonable notice, each present to
this court, or one of the judges thereof, their suggestions, in
writing, in relation thereto, in order that the points in
difference, if any, may be fairly settled and adjusted, iq
compliance with said order of the supreme court."
Rules 40 of the third and 41 of the fourth districts of the
appellate court (c) are as follows :
"All parties praying an appeal, or prosecuting a writ of
error to the supreme court, shall present to the court or
judge allowing such appeal, or in case of a writ of error, to
one of the judges, a brief statement in writing, stating the
points or questions he desires to present to the supreme
court for review, together with a statement of the parts of
the record he desires sent up."
Since the adoption of the above rules by the supreme and
appellate courts, section 88 of the Practice Act was amended
by the act of 1879, {d) which provides that
* * * "In all cases of writs of error and appeals, prose-
cuted or taken from any decision of any of the aj)pellate courts
to the supreme court, it shall not be necessary for the clerk of
the appellate court, in which said cause was heard and deter-
mined, to make out and certify a copy of the original transcript
of the record, filed in the said appellate court, but it shall be
suflicient for, and it is hereby made the duty of the clerk of
said appellate court to transmit the original transcript of the
record filed in his oflice, with his official certificate and seal
of office authenticating the same, with a true and j^erfect
copy of all the orders and proceedings appearing of record
in said cause ; which said coj^y of the record, and proceed-
ings duly authenticated with the seal of said court, shall be
transmitted to and filed in the supreme court ; and the clerk
of the appellate court shall be entitled to receive from the
(c) 1 Bradwell's App. Ct. R. 50, 62.
{d) Laws of 1879, p. 223; Bradwell's ed. 169.
694 SUPREME AND APPELLATE COURTS.
Appeals from Appellate to Supreme Court — Judgments.
party procuring said record and transcript the fees allowed
by law for his certificate and copy of the proceedings had
in the appellate court, and he shall not be entitled to charge
or receive any fee for copying or transmitting said original
transcript, other than for his certificate, and the reasonable
cost of sending said transcript and record from his office,
either by mail or by express, to the clerk of the supreme
court. That all laws or parts of laws in conflict with this
act are hereby repealed."
Application for an appeal in vacation. — Rules 39 of the
third and 40 of the second district of the appellate court (<?)
provide that
' ' In all cases where an application is made in vacation
for an appeal from this court to the supreme court, the
party making such application shall present to one of the
judges of this court a brief statement in writing, giving the
title of the cause, the nature and amount of the judgment,
order or decree from which the appeal is desired, the date
of the rendition of such judgment, order or decree, and the
names of the sureties proposed, accompanied with affidavit
showing the solvency and sufficiency of the security so pro-
posed."
SECTION XVI.
JUDGMENTS.
In all cases of appeal and writ of error the supreme court
or appellate court may give final judgment and issue execu-
tion, or remand the cause to the inferior court, {f) And tlie
said courts, or a majority of the judges thereof, may enter
orders and judgments in vacation in all cases which have been
argued or submitted to the court during any term thereof,
and which shall have been taken under advisement, {g)
{e) 1 Bradwell's App. Ct. R. 50, 62.
(/) Rev. Stat. (1877) 744.
(g) Rev. Stat. (1877) 321, 324; see Bills vs. Stanton, 69 111. 51; Coursen
vs. Browning, 86 111. 57.
SUPREME AND APPELLATE COURTS. 69&
Judgments — Remittitur.
The 81st section of the Practice Act, as amended by the
act of 18T7, (A) provides that
" The supreme court or appellate court, in case of a partial
reversal, shall give such judgment or decree as the inferior
court ought to have given, and for this purpose may allow the
entering of a remittitur, either in term time or vacation, or
remand the cause to the inferior court for further proceed-
ings, as the case may require. ' '
Remittitur. — Where the judgment of the inferior court is
for too large a sum, the error may be cured by a remittitur of
the excess, {i) and the judgment be affirmed as to the resi-
due, and the costs will be taxed against the appellee or de-
fendant in error, {j)
When the supreme court or appellate court has the power
to render such judgment as the inferior court ought to have
rendered, it will do so without sending the cause back for
that purpose, (1") and a cause will not be remanded where
the proceedings of the court below are coram non judice. {I)
If the bill of exceptions enables the court to ascertain the
sum that would have been recovered, if instructions asked
for had been given, it is unnecessary to send the case back
for a new trial, and judgment will be rendered for the proper
amount in the supreme or appellate court, {in)
But the court will not render such a judgment as the infe-
rior court should have rendered, unless the evidence on which
a verdict is founded is before it. {n)
(h) Laws of 1877, p. 151; Rev. Stat. (1877) 745.
(0 Thomas vs. Fisher, 71 111. 576; IVelsh vs. Johnson, 76 111. 295; Cheeney
vs. Citi/ N. Bank, 77 111. 562; Trustees vs. Hihler, 85 111. 400.
ij) Welsh vs. Johnson, 76 111. 295; Nixon vs. Halley, 78 111. 611; Pixleif
vs. Boynton, 79 111. 351; Convey vs. Sheldon, 1 Bradwell's App. Ct. R. 555.
(A-) Prince vs. Lamh, Breese, 378; Boyle vs. Carter, 24 111. 49; Lazell vs.
Francis, 4 Scam. 422.
(Z) Dutch vs. Edwards, 1 Scam. 127.
(m) Pearson vs. Bailey, 1 Scam. 507; Williams vs. Bank of Illinois, 1
Gilm. 667; Peck vs. Stevens, 5 Gilm. 127.
(n) Howell vs. Barrett, 3 Gilm. 433.
«96 SUPREME AND APPELLATE COURTS.
Judgments, etc. — Executions.
Reversal — Remanding. — The statute which provides that
no more than two new trials shall be granted in the same
case has special application to suits in the circuit court, and
does not operate to restrict the power of the supreme or
appellate court in reversing judgment in the same case any
number of times. (<?)
Special directions. — A cause may be remanded with special
directions, and when this is done the inferior court has no
alternative but to enter judgment in conformity there-
with, {p)
Effect of reversal. — When a judgment of the inferior court
has been affirmed, and upon a rehearing it is reversed, such
judgment of reversal will not retroact and disturb any rights
which may have been innocently acquired under the judg-
ment of affirmance, and upon the faith of it whilst it was in
full force. {c[)
SECTION XVII.
EXECUTIONS.
Rule 35 of the first district of the appellate court {f) pro-
vides that
"Upon the affirmance of judgments, executions may
issue, at the option of the party, from this court; or if
such party so elect, a writ of procedendo shall be issued to
the court below, upon the pajanent, by the successful party,
of the costs made by him in this court."
(o) Stanberry vs. Moore, 56 111. 473; see Sllsbe vs. Lucas, 53 111. 479; Wol-
brecht vs. Baumgarten, 26 111. 291.
[p) Winchester vs. Grosvenor, 48 111. 515; see Hunter ys. Hatch, 45 III.
178; Edwards vs. Evans, 61 111. 492; Thompson vs. Hoagland, 65 111. 310;
Northern Trans. Co. vs. McClary, 66 111. 233; First Baptist Church vs. An-
dreivs, 87 111. 172.
{q) Montague vs. Wallahan, 84 111. 355; Wadhams vs. Gay, 73 111. 415.
(r) 1 Bradwell's App. Ct. R. 27.
SUPREME AND APPELLATE COURTS. 697
Judgments — Executions — Rehearing, etc.
Section 80 of the Practice Act, as amended by the act of
1877, (.«) provides tliat
"In all cases of appeal and writ of error the supreme
court or appellate court may give final judgment and issue
execution, or remand the cause to the inferior court, in
order that an execution may be there issued, or that other
proceedings maybe had thereon. Any judgment rendered
in the supreme court or appellate court shall become a lien
on real estate after execution shall be issued and levied
and a certificate thereof filed in the office of the circuit clerk
of the county where the real estate levied on is situated."
SECTION XVIII.
KEHEAEING.
Application for — when and how made. — Rules 38 and 39
of the supreme court [t) are as follows :
38. "The manner of applying for a rehearing shall be as
follows : Within fifteen days after an oj)inion is filed a party
desiring a rehearing shall give actual notice in writing to the
opposite party or to his attorney of his intention to make
such application, and within thirty days after the filing of
the opinion shall place on file in the clerk's office ten printed
•copies of the petition.
39. "Application for a rehearing of any cause shall be
made by petition to the court, signed by counsel, briefly
stating the grounds for a rehearing and the authorities relied
on in support thereof When a rehearing is granted, notice
shall be given to the opposite party of the time when such
rehearing will be had."
In first district appellate court. — Rules 31 and 32 of the
^first district {u) provide that
{s) Laws of 1877, p. 151; Rev. Stat. (1877) 745.
{t) 55 111. xxvii; Puterbaugh's Com. Law PI. and Pr. xii.
(m) 1 Bradwell's App. Ct. R. 26.
698 SUPREME AND APPELLATE COURTS.
Rehearing, etc.
31. "The manner of applying for a rehearing shall be as
follows : Within fifteen days after a decision is entered of
record, party desiring a rehearing shall give actual notice in
writing to the opposite party or to his attorney of his inten-
tion to make such application, and within thirty days after
the filing of the opinion shall place on file in the clerk's
ofiice six printed copies of the petition.
32. "Application for a rehearing of any cause shall be
made by petition to the court, signed by counsel, briefly
stating the grounds for a rehearing and the authorities relied
on in support thereof. All cases in which a rehearing has
been granted, or in which a petition thereof is pending, shall
be placed by the clerk on the term docket in the order of
their general number,"
In the second and fourth districts, rules 32 and 33 of the
second and 33 and 34 of the fourth districts {v) provide that
32-33. "Applications for rehearing will be entertained
in that class of cases only in which the decision of this
court cannot be reviewed by the supreme court. The man-
ner of applying for a rehearing shall be as follows : "Within
fifteen days after a decision shall have been entered of record
the party desiring a rehearing shall give notice in writing ta
the opposite party or to his attorney of his intention to make
such application, and within thirty days after the entry of
such decision shall place on file in the clerk's ofiice five
printed copies of the petition, and deliver one through the
mail or otherwise to the opposite party or his attorney, if
the address of such party or his attorney can, upon reason-
able inquiry, be ascertained.
33-34. "Applications for rehearing shall be made by pe-
tition to the court, signed by counsel, briefiy stating the
reasons therefor and the authorities relied on in support
thereof. If the application be allowed, notice of the time
when such rehearing will be had shall be given to the oppo-
site party."
{v) 1 Bradwell's App. Ct. R. 37, 38, 60, 61.
SUPREME AND APPELLATE COURTS. 699
Rehearing — Stay of Proceedings, etc.
In the third district. — Rules 35 and 36 of the third dis-
trict {w) provide tluit
35, "Application for a reliearing of any cause shall be
made by petition to tlio court, signed by counsel, briefly
stating the grounds for a rehearing and the authorities relied
on in support thereof. AVhen a rehearing is granted, notice
shall be given to the opposite party of the time when such
rehearing will be had.
36. "The manner of applying for a rehearing shall be as
follows : Within fifteen days after a decision is announced,
a party applying for a rehearing shall give actual notice in
writing to the opposite party or to his attorney of his intention
to make such application, and within thirty days after the
decision is announced shall .place on file in the clerk's oflice
five printed copies of his petition."
Order in vacation of stay of proceedings. — Rules 40 and
41 of the supreme court (x) provide :
40. "Any two of the justices of this court may, in vaca-
tion, issue an order which shall operate as a supersedeas in
any case which has been submitted to this court for hearing
and judgment, whenever a reargument of the same shall, in
their opinion, be advisable.
41. "Where an opinion in any case is filed in vacation,
and a petition for a rehearing shall be presented to either of
the justices of this court, if he shall certify that there is
probable grounds for granting a rehearing, all further pro-
ceedings authorized by the judgment of this court shall be
stayed until the next term of the court in the division in
which the judgment shall have been rendered." •
Appellate courts. — Rules 33 of the first., 34 of the second^
37 of the third and 35 of the fourth districts, respectively,
{y) are the same as the 40th rule of the supreme court above
set forth.
iw) 1 Bradwell's App. Ct. R. 50.
[x) 55 111. xxvii; Puterbaugh's Com. Law PI. and Pr. xii.
(y) 1 Bradwell's App. Ct. R. 26, 38, 50, 61.
700 SUPREME AND APPELLATE COURTS.
Rehearing — Stay of Proceedings, etc.
First district. — Rule 34 of the first district {z) provides
that
"TThenever a petition for a rehearing shall be presented
to either of the justices of this court in vacation, if he shall
certify that there is probable grounds for granting a rehear-
ing, all further proceedings authorized by the judgment of
this court shall be stayed until the next term of the court."
Second .1 tJiird and fourth districts. — Rules 35 of the second,
38 of the third and 36 of the fourth districts, respectively,
(«) provide that
" AYhen a decision shall have been entered of record in
vacation, and a petition for a rehearing shall be presented to
either of the justices of this court, if he shall certify that
there is probable grounds for granting a rehearing, all
further proceedings authorized by the judgment of this court
shall be stayed until the next term of this court."
Where a judgment has been affirmed by the supreme court,
and a writ of restitution issued under it, and a tenant evicted,
a motion for a rehearing entered and a stay-order made will
not affect what has already been done. (Jj)
The only mode by which the final decision of a case in the
supreme court, and in cases in the appellate court where it
has final jurisdiction, can be reversed or set aside at a subse-
quent term, is by petition for rehearing, {c)
The time for filing petitions for rehearing will be extended
beyond the limit fixed by the rules of the court only under
special circumstances, except by the consent of the parties.
An oral motion for a rehearing is not necessary. The
filing of the petition and docketing the cause, after due
{z) 1 Bradwell's App. Ct. R. 27.
(a) 1 Bradwell's App. Ct. R. 27, 38, 50, 61.
(6) Montague vs. WaUahan, 84 111. 355.
(c) HoJlowbush vs. McComiel, 12 111. 203.
(d) Mills vs. Lockwood, 40 111. 130; see Pearl vs. Wellman, 4 Gilm. 395;
Selby vs. Hutchinson, 5 Gilm. 261; Lampsett vs. Whitney, 3 Scam. 170;
People vs. Pearson, 3 Scam. 405; Delahay vs. McConnel, 4 Scam. 157,
SUPREME AND APPELLATE COURTS. 701
Licensing Attorneys — Examination, etc.
notice given, is sufficient to bring the matter before the
court, {e) '
Answer to petition. — It is not consistent with the uniform
practice of the court to receive suggestions or to permit an
answer to be filed to a petition for rehearing. Shoukl a re-
hearing be granted, then both parties will be heard. (/*)
Nor will affidavits be received upon such application, or
suggestions be entertained of a diminution of the record, {g)
A rehearing will not be granted on new questions raised
for the first time in the petition, unless it be to prevent
manifest injustice. (A)
SECTION XIX.
LICENSING ATTORNEYS — STRIKING NAMES FROM THE ROLL.
Examination. — Rule 43 of the supreme court (?") provides
that
"Every applicant for license to practice law in the courts
of this state will be required to appear before the supreme
court, at one of its regular terms in any of the grand divi-
sions, and then and there, in open court, be examined by the
court touching his qualifications as an attorney and counselor-
at-law, and shall also, then and there, present to the court a
certificate from some court of record of the county in which
such applicant resides, of good moral character : Provided^
however.^ it shall be requisite of such examination that such
applicant shall have pursued a regular course of law studies
in the office of some lawyer in general practice, for at least
two years, of which fact he shall satisfy the court by the cer-
tificate of such lawyer and his own affidavit : Provided, f ur-
ic) Anonymous, 40 111. 129.
(/) Anonymous, 40 111. 130.
{g) Boynton vs. Chnmplin, 40 111. 63; McPhearson vs. Nelson, 44 111. 124.
[h) Fuller vs. Little, 61 111. 21.
(t) 55 111. xxviii; 69 111. x; Puterbaugh's Com. Law PI. and Pr. xiii, 732;
adopted at January term, 1872, and amended at September term, 1875.
702 SUPREME AND APPELLATE COURTS.
Licensing Attorneys — Examination.
the7\ that the time employed at any law school, as a law stu-
dent, shall be considered as part of the two years, of which
the court shall be satisfied in the manner above specified.
Thursday of the first week of each term shall be the day on
which such examination shall be had."
By a rule of the supreme court, adopted at the January
term, 1878 {j\ amended at January term, 1879, it was
(65) '■'• Ordered^ That the appellate courts in the several
appellate districts be authorized to examine applicants for
admission to the bar, in open court, subject to the same rules
for admission to examination and in regard to qualifications
as are applicable to like admissions and examinations in this
court, and that licenses hereafter will be issued by the judges
of this court, in term time, on certificates from such courts,
under the seal thereof, showing that the applicants have been
admitted to and passed such examinations, and been found
entitled to be admitted to the bar : Provided^ that such cer-
tificates shall be accompanied with the afiidavit of the appli-
cant, or some other credible person, that he is of the age of
twenty-one years or over, and a citizen of the state, and also
a certified transcript from a court of record in this state,
showing that he is a man of good moral character ; but no
applicant who shall be rejected shall be permitted to be
again examined within less than six months from the time
of such rejection."
Wlien examined in a-ppellate courts. — In the first district,
Friday- of the first week ; second district, the second day ;
third district, Tuesday of the third week ; and in the fourth
district, the second day of the term, ijc)
Rule 42 of the third district of the ajDpellate court provides
that every applicant for certificate for qualification for admis-
sion to the bar by the supreme court of this state will be
required to appear before the court at one of its regular terms,
and then and there, in open court, be examined by the court
[j) 82 111. xi; Puterbaugh's Com. Law PL and Pr. xvi.
(t) 1 Bradwell's App. Ct. R. 28; 40, 51, 62.
\
SUPREME AND APPELLATE COUKTS. 703
Licensing Attorneys — From other States.
in the same manner and have the same certificates, etc., as pro-
vided in rule 43 of the supreme court, above set fortli. {1}
Withdrawal of certi^cates, etc. — Rule 43 of the third district
of the appellate court (w?) is as follows:
" Ordered^ That each applicant for examination to be admit-
ted to the bar, be permitted, after the examination is over, to
withdraw his certificate of good moral character, and affidavit
showing that he is over twenty-one years of age, and a citizen
of the state, for the purpose of presenting the same to the
supreme court with his certificate of examination."
The statute provides that no person shall be refused a license
to practice as an attorney or counselor-at-law on account of
sex. {ii)
Rule 41 of the tldrd district of the appellate court (c) pro-
vides
" That the clerk of this court be and he is hereby allowed
for his fee for making out and certifying under seal to tlie
supreme court, for each certificate of qualification of any law
student for admission to the bar, the sum of two dollars."
Licensing attorneys from oilier states. — The statute provides
that
"Any person producing a license or other satisfactory
voucher proving that he hath been regularly admitted an attor-
ney-at-law in any court of record within the United States, and
obtained a certificate of good moral character, as required in
the preceding section, may be licensed and permitted to prac-
tice as a counselor and attorney-at-law, in any court in this
state without examination." (/;)
Rule 44 of the supreme court {q) provides that
{I) 1 Bradwell's App. Ct. R. 51.
im) 1 Bradwell's App. Ct. R. 51.
(n) Rev. Stat. (1874) 169; Rev. Stat. (1877) 161.
(o) 1 Bradwell's App. Ct. R. 51.
Ip) Rev. Stat. (1874) 169; Rev. Stat. (1877) 161.
{q) 55 111. xxviii; Puterbaugh's Com. Law PL and Pr. xiii.
704 SUPREME AND APPELLATE COURTS.
Licensing Attorneys — Striking Names from Roll, etc.
"Any application for admission to the bar, based upon a license
granted in another state, must be made in term time by motion of
some attorney of this court, made in open court ; and no appli-
cant will be admitted upon such license without examination^
except it appear to the court, by affidavit or otherwise, that in
the state in which the license was issued a course of study was
required at least equal to that prescribed in this state by the
preceding rule (43), or the applicant has been engaged in active
practice for a period of two years under such license."
By whom issued — Blank licenses — Clerhs'' fees. — By rule
45 of the supreme court (r) it is provided that:
45. "License which may be granted upon such applica-
tions (rules 43 and 44) shall be issued by the clerk of the
grand division in which the order of admission shall be
made."
Oath to l)e taken. — Every person admitted to practice as
an attorney and counselor-at-law shall, before his name is
entered upon the roll to be kept as hereinafter provided,
take and subscribe an oath substantially in the following
form:
"I do solemnly swear (or affirm, as the case may be) that
I will support the Constitution of the United States and the
Constitution of the State of Illinois, and that I will faithfully
discharge the duties of the office of attorney and counselor-
at-law to the best of my ability."
Roll of attorneys ; striking names from, roll., etc. — "It shall
be the duty of the clerk of the supreme court, in each grand
division, to make and keep a roll or record, stating at the
head thereof that the persons whose names are therein
written have been regularly licensed and admitted to prac-
tice as attorneys and counselors-at-law within this state, and
that they have duly taken the oath of office as prescribed
(r) 55 111. xxviii; Puterbaugh's Com. Law PI. and Pr. xiii.
SUPREME AND APPELLATE COURTS. 705
Attorneys — Striking Names from Roll.
by law, which shall be certified and indorsed upon the li-
cense." (s)
And "No person, whose name is not on the said roll,
with the day and the year when the same was written there-
on, shall be suffered or admitted to practice as an attorney
or counselor-at-law, in any court of record within this state ;
and the justices of the supreme court, in open court, shall
have power at their discretion to strike the name of any
attorney or counselor-at-law from the roll for malconduct in
his office; and any judge of a circuit court or of the su-
perior court of Cook county shall, for like cause, have power
to suspend any attorney or counselor-at-law from practice in
the court over which he presides during such time as he
may deem proper, subject to the right to have such order set
aside by the supreme court on appeal." {i)
Refusal to pay over money collected. — "In all cases where
an attorney of any court in this state or solicitor in chancery
shall have received, or may hereafter receive, in his said
office of attorney or solicitor, in the course of collection or
settlement of any claim left with him for collection or settle-
ment, any money or other property belonging to any client,
and shall, upon demand made, and a tender of his reason-
able fees and expenses, refuse or neglect to pay over or de-
liver the same to said client, or to any person duly authorized
to receive the same, it shall be lawful for any person inter-
ested to apply to the supreme court of this state for a rule
upon the said attorney or solicitor to show cause, at a time to
be fixed by the said court, why the name of the said attorney
or solicitor should not be stricken from the roll, a copy of
which rule shall be duly served upon said attorney or solicitor
at least two days previous to the day upon which said rule
shall be made returnable ; and if, upon the return of said rule,,
it shall be made to appear to the said court that such attorneys
(s) Rev. Stat. (1874) 169; Rev. Stat. (1877) 161.
it) Rev. Stat. (1874) 170; Rev. Stat. (1877) 162; see Winkleman vs. The
People, 50 111. 449; Puterbaugh's Com. Law PI. and Pr. 742.
706 SUPKEME AND APPELLATE COURTS.
Striking Names of Attorneys from Roll, etc.
or solicitor has improperly refused or neglected to pay over or
deliver said money or property so demanded as aforesaid, it
shall be the duty of the said court to direct that the name of
the said attorney or solicitor be stricken from the roll of attor-
neys in said court." (u)
Notice of com^jplaint. — " Every attorney, before his name is
stricken from the roll, shall receive a written notice from the
clerk of the supreme court stating distinctly the grounds of
complaint, or the charges exhibited against him, and he shall,
after such notice, be heard in his defense, and allowed reason-
able time to collect and prepare testimony fbr his justification.
And every attorney whose name shall at any time be stricken
from the roll by order ot the court in manner aforesaid shall
be considered as though his name had never been written
thereon, until such time as the said justices, in open court,
shall authorize him to sign or subscribe the same." {v)
Information. — By rule 62, adopted by the supreme court
at the September term, 1876, {w) it is
''''Ordered. In case an application shall be made to strike
the name of an attorney from the rolls, there shall be filed an
information making clear and specific charges, giving time,
place and acts of misconduct with reasonable certaint}^, signed
by the attorney-general or some state's attorney. When the
information shall be deemed sufficient the court will enter a
rule to show cause on a day named, and when the rule shall
be answered, the court will tlien set the cause for a hearing on
some day during the term, and will prescribe the time of clos-
ing proofs by the respective parties. The proofs shall be in
writing."
(u) Rev. Stat. (1874) 170; Rev. Stat. (1877) 162.
(v) lb.
(w) 79 111. vii; Puterbaugh's Com. Law PI. and Pr. xvi.
SUPREME AND APPELLATE COURTS. 707
Library.
SECTION XX.
LIBRARY.
Rules 47, 48 and 49 of the supreme court are as follows :
47. " The librarians of the law libraries attached to this court
shall not permit any person, except those authorized by these
rules, or by the laws of the state, to take from the rooms of
this court any book or books belonging to said libraries, with-
out the consent of the court being first obtained for that pur-
pose ; and if any person not so authorized shall take away a
book without such consent, such person shall be considered in
contempt of the court, and may be fined at the discretion of
the court.
48. " Books may be taken from the library in the central
grand division upon the written order of a judge of the United
States circuit or district court.
49. " The books of the law libraries shall not be marked or
underlined with pen or pencil, nor shall the pages of the same
be folded down. The librarians shall adopt such rules as to
the safe keeping of the books as they may deem expedient." (x)
{x) 55 111. xxix; Puterbaugh's Com. Law PI. and Pr. xiii.
RULES OF PKACTICE FOE THE COUETS OF EQUITY
OF THE UNITED STATES.
Revised and corrected at Decemher Term, 1870.
Section 1. Preliminaiiy Reqitlations.
2. Process.
3. Service of Process.
4. Appearance.
6. Bells taken Pro Conpesso.
6. Frame of Bills.
7. Scandal and Impertinence in BhiLB.
8. Amendment op Bills.
9. Demurrers and Pleas.
10. Answers.
11. Parties to Bh^ls.
13. Nominal Parties to Bills.
13. Bills op Revivor and Supplement al Bills.
14. Answers.
15. Amendment op Answers.
16. Exceptions to Answers.
17. Replication and Issue.
18. Testimony, how Taken.
19. Testimony De Bene Esse.
20. Form op the Last Interrogatory.
21. Cross-Bill.
22. Reference to and Proceedings bepobk Masters.
23. Exceptions to Report op Master.
24. Decrees.
25. Guardians and Prochein Amis.
SECTION I.
PJRELIMINAKY KEGULATI0N8.
1. The circuit courts, as courts of equity, shall be deemed
always open for the purpose of filing bills, answers, and other
pleadings, for issuing and returning mesne and final process
RULES OF U. S. SUPREME COURT. 709
Preliminary Regulations.
and commissions, and for making and directing all interlocu-
tory motions, orders, rules, and other proceedings, preparatory
to the hearing of all causes upon their merits.
2. The clerk's office shall be open, and the clerk shall be in
attendance therein, on the first Monday of every month, for
the purpose of receiving, entering, entertaining, and disposing
of all motions, rules, orders, and other proceedings, which are
grantable of course, and applied for, or had by the parties, or
their solicitors, in all causes pending in equity, in pursuance
of the rules hereby prescribed.
3. Any judge of the circuit court, as well in vacation as in
term, may, at chambers, or on the rule-days at the clerk's office,
make and direct all such interlocutory orders, rules, and other
proceedings, preparatory to the hearing of all causes upon their
merits, in the same manner and with the same efi'ect as the
circuit court could make and direct the same in term, reason-
able notice of the application therefor being first given to the
adverse party, or his solicitor, to appear and show cause to the
contrary at the next rule-day thereafter, unless some other time
is assigned by the judge for the hearing.
4. All motions, rules, orders, and other proceedings made
and directed at chambers, or on rule-days at the clerk's office,
whether special or of course, shall be entered by the clerk in
an order-book, to be kept at the clerk's office, on the days when
they are made and directed ; which book shall be open at all
office hours to the free inspection of the parties in any suit in
equity, and their solicitors. And, except in cases where per-
sonal or other notice is specially required or directed, such
entry in the order-book shall be deemed sufficient notice to the
parties and their solicitors, without further service thereof, of
all orders, rules, acts, notices, and other proceedings entered in
such order-book, touching any and all the matters in the suits
to and in which they are parties and solicitors. And notice to
the solicitors shall be deemed notice to the parties for whom
they appear and whom they represent, in all cases where per-
sonal notice on the parties is not otherwise specially required.
Where the solicitors for all the parties in a suit reside in or near
the same town or city, the judges of the circuit court may, by
rule, abridge the time for notice of rules, orders, or other pro-
ceedings not requiring personal service on the parties, in their
discretion.
5. All motions and applications in the clerk's office for the
issuing of mesne process and final process to enforce and exe-
cute decrees, for filing bills, answers, pleas, demurrers, and
other pleadings ; for making amendments to bills and answers ;
710 RULES OF U. S. SUPEEME COURT.
Process.
for taking bills pro confesso / for filing exceptions, and for
other proceedings in the clerk's ofiice which do not, by the
rules hereinafter prescribed, require any allowance or order of
the court, or of any judge thereof, shall be deemed motions
and applications, grantable of course by the clerk of the court.
But the same may be suspended, or altered, or rescinded by
any judge of the court, upon special cause shown.
6. All motions for rules or orders and other proceedings,
which are not grantable of course, or without notice, shall,
unless a difierent time be assigned by a judge of the court, be
made on a rule-day, and entered in the order-book, and shall
be heard at the rule-day next after that on which the motion
is made. And if the adverse party, or his solicitor, shall not
then appear, or shall not show good cause against the same,
the motion may be heard by any judge of the court ex parte
and granted, as if not objected to, or refused, in his discretion.
SECTION II.
PROCESS.
7. The process of subpoena shall constitute the proper mesne
process in all suits in equity, in the first instance, to require
the defendant to appear and answer the exigency of the bill ;
and, unless otherwise provided in these rules, or specially
ordered by the circuit court, a writ of attachment, and, if the
defendant cannot be found, a writ of sequestration, or a writ
of assistance to enforce a delivery of possession, as the case
may require, shall be the proper process to issue for the pur-
pose of compelling obedience to any interlocutory or final
order or decree of the court.
8. Final process to execute any decree may, if the decree be
solely for the payment of money, be by a writ of execution, in
the form used in the circuit court in suits at common law in
actions of assumpsit. If the decree be for the performance of
any specific act, as, for example, for the execution of a convey-
ance of land or the delivering up of deeds or other documents,
the decree shall, in all cases, prescribe the time within which
the act shall be done, of which the defendant shall be bound
without further service to take notice ; and upon afiidavit of
the plaintifli', filed in the clerk's office, that the same has not
been complied with within the prescribed time, the clerk shall
issue a writ of attachment against the delinquent party, from
which, if attached thereon, he shall not be discharged, unless
RULES OF U. S. SUPEEME COURT. 711
Service of Process.
upon a full compliance with the decree and the payment of all
costs, or upon a special order of the court, or of a judge
thereof, upon motion and affidavit, enlarging the time for the
performance thereof. If the delinquent party cannot be found,
a writ of sequestration shall issue against his estate upon the
return of non est inventus, to compel obedience to the decree.
9. When any decree or order is for the delivery of possession
upon proof made by affidavit of a demand and refusal to obey
the decree or order, the party prosecuting the same shall be
entitled to a writ of assistance from the clerk of the court.
10. Every person, not being a party in any cause, who has
obtained an order, or in whose favor an order shall have been
made, shall be enabled to enforce obedience to such order by
the same process as if he were a party to the cause ; and every
person, not being a party in any cause, against whom obedience
to any order of the court may be enforced, shall be liable to
the same process for enforcing obedience to such order as if he
were a party in the cause.
SECTION IIL
SERVICE OF PEOCE88.
11. No process of subpoena shall issue from the clerk's office
in any suit in equity until the bill is filed in the office.
12. Whenever a bill is filed, the clerk shall issue the process
of subpoena thereon, as of course, upon the application of the
plaintiff, which shall be returnable into the clerk's office the
next rule-day, or the next rule-day but one, at the election of
the plaintiff, occurring after twenty days from the time of the
issuing thereof At tlie bottom of the subpoena sliall be placed
a memorandum, that the defendant is to enter his appearance
in the suit in the clerk's office on or before the day at which
the writ is returnable ; otherwise the bill may be taken j^o
confesso. Where there are more than one defendant, a writ
of subpoena may, at the election of the plaintiff', be sued out
separately for each defendant, except in the case of husband
and wife defendants, or a joint subpoena against all the defend-
ants.
13. The service of all subpoenas shall be by a delivery of a
copy thereof by the officer serving the same to the defendant
personally, or, in case of husband and wife, to the husband
personally, or by leaving a copy thereof at the dwelling-house
or usual place of abode of each defendant, with some free
white person who is a member or resident in the family.
712 KULES OF U. S. SUPEEME COURT.
Appearance — Bills taken Pro Confesso. *
14. Whenever any subpoena shall be returned not executed
as to any defendant, the plaintiff shall be entitled to another
subpojna, toties quoties, against such defendant, if he shall
require it, until due service is made.
15. The service of all process, mesne and final, shall be by
the marshal of the district, or his deputy, or by some other
person specially appointed by the court for that purpose, and
not otherwise. In the latter case, the person serving the pro-
cess shall make aflSdavit thereof.
16. Upon the return of the subpoena as served and executed
upon any defendant, the clerk shall enter the suit upon his
docket as pending in the court, and shall state the time of the
€ntry.
SECTION IV.
APPEAJBA2TCE.
17. The appearance-day of the defendant shall be the rule-
day to which the subpoena is made returnable, provided he has
been served with the process twenty days before that day;
otherwise his appearance-day shall be the next rule-day suc-
ceeding the rule-day when the process is returnable.
The appearance of the defendant, either personally or by
his solicitor, shall be entered in the order-book on the day
thereof by the clerk.
SECTION V.
BILLS TAKEN PRO CONFESSO.
18. It shall be the duty of the defendant, unless the time
shall be otherwise enlarged, for cause shown, by a judo-e of
the court, upon motion for that purpose, to file his plea, de-
murrer, or answer to the bill, in the clerk's office, on the rule-
day next succeeding that of entering his appearance. In
default thereof, the plaintiff may, at his election, enter an order
(as of course) in the order book, that the bill be taken pro
confesso J and thereupon the cause shall be proceeded in ex
parte, and the matter of the bill may be decreed by the court
at the next ensuing term thereof accordingly, if the same can
be done without an answer, and is proper to be decreed ; or the
plaintiff", if he requires any discovery or answer to enable him
to obtain a proper decree, shall be entitled to jM-ocess of attach-
ment against the defendant, to compel an answer, and the
KULES OF U. S. SUPREME COURT. 713
Frame of Bills.
defendant shall not, when arrested upon such process, be dis-
charged tlierefrom unless upon filing his answer, or otherwise
complying with such order as the court or a judge thereof may
direct, as to pleading to or fully answering the bill, within a
period to be fixed by the court or judge, and undertaking to
speed the cause.
19. When the bill is taken ^;>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 <fc Milwaukee
R. R. Co. 2 Wall. U. 8 313
Brownsword v. Edwards, 2 Ves. .. 105, 130
Bruen V. Bruen, 43 111 45
Bruere v. Wharton, 7 Sim 350
Brannenmeyer v. Buhre, 32 111 570
Brush V. Vandenberg, 1 Edw. Ch 323
Bryan v. Blythe, 4 Blackf 50
Buchanan v. Hart, 31 Texas 570
Buchter V. Dew, 39 111 583
Buck V. Beekly, 45 111 92, 614
Buckholtz V. Buckholtz, 24 Geo 509
Buckingham v. Peddicord, 2 Bland 135
Buckland v. Goddard, 36 111 96
Buckley v. Corae, Saxon, N. J 164
Buckley v. Starr, 2 Day 49
Buflfalow V. Buffalow, 2 Ired. Ch. . . . 48, 102
Bugbee v. Sargeant, 23 Maine 49, 65
Bulkley v. VanWyck, 5 Paige, Ch 141
Buloid V. Miller, 4 Paige, Ch. R... 158, 161
Buntain v. Wood, 29 111 142
Burch V. Brown, 46 Mo 550
B-urdell V. Burdell, 2 Barb 510
Burger v. Potter, 32 111 115
Burgess v. Wheats, 1 Blacks 308
Burke v. Smith, 15 111 164, 165, 203, 205
Burkeley v. Dunbar, 1 Anst. R 153
Burkhart v. Reisig, 24 111 576, 579, 591
Burn V. Poang, 3 Dessau 249
Burnett v. Anderson, 1 Mer 280, 283
Burnett v. Lester, 53 111 49, 51, 102
Burnett v. Sanders, 4 Johns. Ch. R. 277
278
Berney v. Chambers, Bumb 152
Burney v. Morgan, 1 Sim. & Stu 400
Burnham v. Rangeley, 1 W. & M. C. C.R. 115
Burnley v. Jeffersonville, 3 McLean . . . 135
Burr V. Burr, 7 Hill, Ch 532
Burr V. Burr, 10 Paige, Ch 526, 532
Barrall v. Raineteaux, 2 Paige, Ch. R. . 151
Burrell v. Leslie, 6 Paige, Ch 403
Burroughs V. Oakley, 3 Swanst... a33, 334
Burrows v. Taylor, Wright 228
Burt V. Rynex, 48 Mo 189
Burtis V. Burtis, 1 Hopk. Ch 487
Burton v. Black, 32 Geo 280
Burton V. Todd, 1 Swanst 333
Bnsfleld v. Solomons, 9 Ves 314
Bush V. Connelly, 33 111 591
Bushnell v. Bishop Hill Colony, 28 III. . 175
Butler V. Catling, 1 Root 133
Buttrick v. Holden, 13 Met 321
Byrne V. Byrne, 3 Texas 503
c
Cabeen v. Gordon, 1 Hill, Ch 818
Cadwallader v. Granville Alexrtndrian
Society, 11 Ohio 406
Cady V. Porter, 55 Barb. N. T. 279, 280, 281
Caldwell v. Blackwood, 1 Jones, N. 0.
Eq 105
Caldwell V. Boyer, 3 Atk 206
Caldwell v. Myers, Hardin 322
Calhoun v. Powell, 42 Ala 103
Caller v. Shields, 2 Stew. & Port. ai9, 251
252, 253
Calmes v. Ament, 1 A. K. Marsh. 250
Calverley v. Williams, 1 Ves. Jr 308
Camblat v. Tapcry, 2 La. An 340
Campbell's Case, 2 Bland 403
Campbell v. Hannan, 43 111 183
Campbell v. McCanham, 41 111 538
Campbell v. Misier, 4 Johns. Ch 201
Campbell v. Morrison, 7 Paige, Ch 61
Campbell v. Solomons, 1 Sim. <fc Stu.. 291
Canfleld v. Morgan, Hopk. Ch 291
Cann v. Cann, 1 P. Wms 296
Cannon v. Norton, 14 Vt 65
Cannon v. Watson, 1 How. Miss 89
Capner v. Flemington Mining Co. 2
Green, Ch 565
Carmichael v. Reed, 45 El 649
Carnochan v. Christie, 11 Wheat 306
Carpenter v. Mutual Safety Ins. Co. 4
Sandf . Ch 822
Carr v. Duval, 14 Pet 321
Carr v. Fielden, 18 111 144, 145
Carre v. Carre, 2 Yeates 490
Carroll V. Parren, 1 Bland 256
Carroll v. Saflford, 3 How. U. 8 635
Carter v. Lewis, 29 111 89
Carter v. Longworth, 4 Ham 101
Cartwright v. Clark, 4 Met 307, 312
Cartwright v. Green, 8 Ves 105
Cary v. Ector, 7 Geo 143
Cary v. Hatch, 2 Edw. Ch 60
Cassell V. Ross, 33 HI 142
Cassidy v. Meacham, 3 Paige, Ch.. 404, 405
Caton V. Willis, 5 Ired. Ch 48
Catton V. Carlisele, 5 Mad 204-214
Cawthorn v. Chalic, 2 Sim. & Stu 105
C. B. & Q. R. R. Co. V. Dunn, 52 HI.... 121
Central Pacific R. R. Co. v. Dyer, 1
Sawyer 637
Chaffin V. Heirs of Kimball, 23111 145
Chalmers v. Chalmers, 4 Gill. <fc J 46
Chamberlain v. Blue, 6 Blackf 333
Chambers v. Goldwin, 9 Ves 357
Chambers v. Rowe, 36 HI. ..56, 141, 171, 324
Chambers v. Warren, 13 111 277
Champlin v. Champlin, 2 Edw. Ch 134
Chandler v. Barrett, 21 La. An 650
Chandler V. Pcttit, 1 Paige, Ch 203
Chapin v. Coleman, 11 Pick 135
Chapman v. Beach, 2 Jac. & W 841
Chapman v. Turner, 1 Atk 114
Chase's Case, 1 Bland 100
Chase v. Palmer, 12 Shep. 54 64
TABLE OF CASES CITED.
737
Cherry v. Legh, 1 Bligh, N. S 315
Chicago Artesian Well Co. v. Conn. M.
Life Ins. Co. 57 111 306
Chicago Dock Co. v. Kinzie, 49 III 466
Chichester v. Vase, 1 Munf 269
Chickering v. Hatch, 3 Sum 351
Chicott V. Lequnee, 2 Ves 43
Child V. Brace, 4 Paige, Ch 401
Childress v. Holland, 3 Hey 320
Chipman v. Thompson, Walker, Ch 65
Cholmley v. Duchess ot Oxford, 2 Atk. 368
Cholmondeley v. Clinton, 2 Jac. & W.
354, 377
Choteaa v. Rice, 1 Minn 99, 204, 214
Chrishmau v. Sutphen, 42 111 359
Christian v. Crocker, 25 Ark 102
Christianherry v. Christianberry, 8
Blackf 491, 510
Christie V. Hale, 46 HI 535
Chute V. Dacre, 1 Eq. Ca. Ab 153
City Bank v. Bangs, 2 Paige, Ch. 288, 290
291, 293
Claiborne v. Creditors, 18 La. An 339
Claiborne v. Gross, 7 Leigh 403
Clamorgan v. Guisse, 1 Mo 51
Clapp V. Clapp. 97 Mass 491, 510
Clare v. Clare, 4 C. B. Green, N. J 514
Clare V. Wordell, 2Vern 241
Clark V. Banner, t Dev. & Bat. Ch 897
Clark V. Bell, 2 B. Monr 45
Clark V. Boyle, 51 HI 599
Clark V. Byne, 13 Ves 282
Clark V. Henry, 2 Cow 358
Clark V. Lott, 11 111 484, 486, 490
Clark V. Phelps, 6 Johns. Ch 99, 100
Clark V. Quackenboss, 28 HI 37
Clark V. Keins, 12 Gratt. Va 822
Clark V. Reyburn, 8 Wallace 391
Clarkv. Savier, 7 Watts 322
Clark V. Thompson, 47 HI 145
Clarkv. Tinsley, 4 Rand. 162
Clarke v. Periam, 2 Atk 43
Clarkson v. Bowy er, 2 Vem 356
Clarkson v. De Peyster, 3 Paige, Ch. 49, 400
Clay V. Turner, 3 Bibb 319
Claycomb V. Cecil, 27 111 580
Clayton v. Frazier, 33 Texas 324
Clearwater v. Kimler, 43 HI 550
Clement V. Reid, 9 S. &M 818
Clement v. Wheeler, 25 N. H 564
Cleveland V. Benton, 11 Vt 318
Clifton V. Haig, 4 Dessau 166
Clitherall v. Ogilvie, 1 Dessau 317
Cloud v. Hamilton, 3 Yerg 306
Cloud V. Whitman, 2 Har 195
Clough V. Radcliffe, 1 De Qex AS 839
Clowes V. Clowes, 9 Jur 517
Clnte V. Boal, 8 Paige, Ch 399
Coale T. Barney, 1 Gill & J 319
Coatee V. Woodworth, 13 HI... 103, 351, 569
47
Cobum V. Tyler, 41 111 679
Cochrane v. O'Brien, 2 Jones & Lft. T. 286
Cock V. Evans, Yerg. R 164
Cocke V. Gilpin, 1 Rob. Va 196
Cockrell V. Gnrley, 26 Ala 43
Cody r. Hough, 20 111 175
Coe T. Turner, 5 Conn 49
Coffin V. Coffin, Jac. R. 564
Coffin V. Cooper, 14 Ves 334
Coffin V. Cooper, 6 Ves 51, 160
Cohen V. Carroll, 5 S. & M 398, 400
Colclough V. Evans, 4 Sim 164, 211
Cole V. Choteau, 18 111 178, 181
Cole V. VanRiper, 44 HI 121
Coleman v. Lyne, etc. , 4 Rand. 163
Coleman v. Moore, 3 Litt 813
Coles V. Forrest, 10 Bear 373
Collier V. Collier, 1 Dev 509
Collins V. Carlile, 13111 876
Collins V. Collins, 19 Ohio St. R 535
Collins V. Lavenberg, 19 Ala 204
Collinsv. Riggs, 14 Wall 854
Collins V. St. Clair, 51 111 614
Collins V. Townley, 21 N. J. Eq 550
Colson V. Thompson, 2 Wheat 821
Colt V. Wollaston, 2 P. Wms 339
Colton V. Earl of Carlisle, 5 Mad 236
Colton V. Ross, 2 Paige, Ch 58
C. & N. W. R. R. Co. V. Nichols, 57 HI. 103
Columbus Mach. M. Co. v. Dorwin, 25 HI 591
Combs V. Proud, 1 Ch. Cas 252
Comber's Case, 1 P. Wms 234
Commack v. Johnson, 1 Green, Ch 40S
Commercial Bank of Lake Erie v.
Meach, 7 Paige, Ch . . 401
Commercial Mutual M. Ins. Co. v.
Union Mutual Ins. Co. 19 How.
U. S 322
Comstock V. Purple, 49 111 451
Conant v. Sparks, 3 Edw. Ch. 405
Conesey v. Conesey, 60 111 502, 503, 508
Congden v. Lee, 3 Edw. Ch 398
Conklin V. Foster, 57 HI 538
Conley v. Good, Breese 98
Conner v. Board of Supervisors, 10
Minn 106
Conner V. Drake, 1 Ohio St. R. 324
Conover v. Warren, 1 Gilm 581
Contee v. Dawson, 2 Bland 63, 140
Conway v. Cable, 37 HI 535
Conwell v. Claypool, 8 Blackf 160
Conwell v. McCowen, 53111 138
Cook V. Arnham, 3 P. Wms 263
Cook V. Bamficld, 3 Swanst 265
Cook V. Bay, 14 How. Mise 19T.
Cook V. Hadley, Cooke 63
Cook V. Heald, 21 111 691
Cook V. Martyn, 2 Atk 68, 166
Cook V. Rofinot, 21 HI 591
Cook V. Vick, 2 How. Miss. R 324
738
TABLE OF CASES CITED.
Cook T. Vreeland, 21 Dl 579
■C!ook V. Wood, 24 m 91
Cooley V. Scarlett, 38 ni 37, 187, 198
■Cooper V. Davis, 15 Conn 565
Cooper V. De Tastel, 1 Taml 283
-Cooper V. McCloo, 16 111 569
Cooper V. Tyler, 46 III 322
Cooth V. Jackson, 6 Ves 129
■Copen V. Flesher, 1 Bond. . .99, 164, 204, 214
Copous V. Kauffman, 8 Paige, Ch 402
Copper V. Wells, Saxon 324
Coquilland v. Snydam, 8 Blackf 143
Corby v. Bean, 44 Mo 47
Corey v. Croskey, 57 HI 577
Corey v. Gertaken, 2 Mad 193
Corgan V. Anderson, 30 111 177, 178
Corneal v. Banks, 10 Wheat 195
Cornell v. Bostwick, 3 Paige, Ch 96
Cornell v. Pierson, 4 Halst. Ch 351
Corning V. White, 2 Paige, Ch.... 401, 404
Cost V. Rose, 17 111 75, 144, 145, 438
Coster V. Murray, 5 Johns. Ch 102
Cottington v. Fletcher, 2 Atk. R 275
Cotton V. Ulmer, 45 Ala 550
Conlson v. City of Portland, 1 Deady.. 536
Coulson V. Walton, 9 Pet 320
Countess v. Gifferd, 2 P. Wins. R 152
County of Green, v. Bledsoe, 12 111. . . . 181
Cowdin V. Cram, 3 Edw. Ch 556, 560
Cowle V. Varnum, 37 HI 580
Cowles V. Buchanan, 3 Ired. Ch. R.43, 46, 55
Cowles V. Whitman, 10 Conn 322
Cozine v. Graham, 2 Paige, Ch 114
Craig V. Hone, 2 Edw. Ch 398, 399
Craig V. Leiper, 2 Yerg 330
Craig V. The People, 47 111.. 137, 158, 165, 566
Crane v. Decamp, 21 N. J. Eq 319
Creeley v. Bay State Brick Co., 103
Mass 1.36
Crews V. Burcham, 1 Black, U. S 537
Crocker v. Higgius, 7 Conn 62
Crocket v. Lee, 7 Wheat 45, 46, 195
Crompton v. Womb well, 4 Sim. . . . 203, 204
Cronau v. Frizcll, 42 111 88, 89
Crook V. The People, 16 111 614
Crook V. Andrews, 40 N. Y 536
Croskey v. Corey, 48 El . . . 578, 580, 581, 583
Croskey v. Northern Manuf. Co. 48 111. 306
582, 583
Cross V. DeValle, 1 Wall, U. S 307
Crouch V. Hicken, 1 Keen 106
Crouch V. Puryear, 1 Rand 565
Crowder v. Turney, 3 Cald. Tenn 108
Crutchfleld v. Patten, 44 Geo 305
Cull cm V. Batre, 2 Ala 225, 373
Cullom V. Erwin. 4 Ala .306
Cnmmings v. Wagoner, 7 Paige, Ch 620
Cunningham v. Rogers, 14 Ala 204
Cunningham v. Stelle, 1 Litt 89
Curtiss V. Brown, 29 111 570
Curtias V. Martin, 20 111 181
Cnshman v. Sutphen, 42 El 880
Cutlet V. McDonald, 13 La. An 61
Cutter V. Jones, 52 III 874
Cutting Y. Gilbert, 5 Blatchf . C. C 51
D
Dabbs V. Dabbs, 27 Ala 196
Dagley v. Crump, 1 Dick 152
D'Aguilar v. D'Aguilar, 1 Hagg. Ch. R.
3 Eng. Eccl. R 517
Dailey v. Dailey, Wright, O. Ch 492
Dais V. Bouchaud, 10 Paige, Ch 102
Dakin v. Cope, 2 Russ 334
Dalton V. Thompson, 1 Dick 297, 299
Damond v. Mayer, 2 Johns. Ch. R 140
Dana v. Banks, 6 J. J. Marsh 397
Dancer v. Evett, 1 Vern 262
Danforth v. Smith, 23 Vt 57
Daniel v. Bishop, 13 Price 140
Daniels v. Taggart, 1 Gill & J 127, 311
Darcey V. Hall, 1 Vern 358
Darcy v. Lake, 46 Miss 49, 102
Davenport V. Farrer, 1 Scam.. 457, 458
David V. David, 27 Ala 502
Davies v. Davies, 55 Barb 510
Davies v. Williamp, 1 Sim. 105
Davis V. Collier, 13 Geo 133
Davis V. Davidson, 4 McLean 139
Davis T. Davis, 19 111 491, 509
Davis v. Davis, 2 Keen 99
Davis V. Davis, 30 111 182, 513
Davis V. Harrison, 4 Litt 326
Davis V. Leo, 6 Ves 563
Davis V. Mapes, 2 Paige, Ch. R. . . . 140, 160
Davone v. Fanning, 4 Johns. Ch 50
Dawson v. Dawson, 7 Ves 557
Dawson v. Pilling, 16 Sim 114
Dawson v. Sadler, 1 Sim. & Stu 101
Day V. Day, 3 Green, Ch 492
Day V. Perkins, 2 Sandf . Ch 376
Day V. Potter, 9 Paige, Ch. R 234, 23'"
Dean v. O'Meara, 47 111 438, 444
Dean v. Smith, 23 Wis 556, 557
Deare v. Attorney Gen. 1 Young & Col.. 273
Deatley v. Murphy, 3 A. K. Marsh 46
Decordova v. Smith, 9 Texas 320
Deichman v. Deichman, 49 Mo 227
Deininger v. McConnell, 41 HI 175
Delahay v. Clement, 3 Scam 581
Delahay v. McConnel, 4 Scam 351
De la Hay v. De La Hay, 21 HI 503
Dela Vergnev. Everston, 1 Paige, Ch. 65
Del. & H. Canal Co. v. Penn. Canal Co.
21 Penn 195
Dell V. Hale, 2 Younge & Call. NewR.. 100
Delliber v. Dclliber, 9 Conn 509
Demaree v. Driskell, 3 Blackf 171, 172
398, 400
TABLE OF CASES CITED.
739
DemarcBt v. Wynkoop, 3 Johns. Ch. . . 353
Deuiuon v. Bassford, 7 Paige, Ch. R... 140
Dc.riny v. Filmer, 2 Freem 262
Denny V. Oilman, 26 Maine 102
Betiton V. Denton, 1 Johns. Ch 557
Derby v. Derby, 6 C. E. Greene, N. J.. 514
Derby V. Gage, 38 111 171
Detillin v. Gale, 1 Him. & Stu 86
Devanbagh v. Devanbagh, 5 Paige, Ch. 488
DevajTies v. Morria, 1 Milne & Craig, 227
2;38
Devereaux V. Cooper, 11 Vt 134
Dew V. Clark, 1 Sim. & Stu 297
Dewen v. Blake, 44 111 351
De Wolf V. Long, 2 Gilm 171
DeWolf V. Pratt, 42 111 47, 165, 166, 324
DeWolfe v. Long, 2 Gilm 327
DeWolf e v. Strader, 26 111 351
Dexter v. Arnold, 6 Mason.. . 249, 252, 253
254, 260, 264, 265
Dexter v. Arnold, 1 Sumner 356
Dexter v. Arnold, 2 Sumner 186
Dexter v. Arnold, 3 Sumner 353
Dickenson v. Codnise, 11 Page, Ch 197
Dickie V. Carter, 42 111 548, 549
Dickinson v. Morgan, 8 Dana 195
Dickson v. Todd, 43 111 428
Dilley V. Bernard, 8 Gill & J 46
Dillon v. Francis, Dick 60
Dineley v. Dineley, 2 Atk 103
Dingledine v. Hcrshman, 53 111 583
Divilbliss v. Whitmire, 20 111 76
Doble V. Potman, Hardr 308, 314
Dodge V. Perkins, 4 Mason 42, 115
Bolder v. Bank of England, 10 Ves. . . . 158
Donaher v. Prentiss, 22 Wis 281
Donaldson v. Holmes, 23 111 577, 578
Donne v. Lewis, 11 Ves 201
Donoghue v. City of Chicago, 57 111 477
Dormer v. Fortesque, 2 Atk.. 100, 205, 276
Dorsey V. Garey, 30 Md 569
Dougherty v. Colgan, 6 Gill & J 358
Dougherty v. Hampston, 2 Blackf 318
Dougherty v. Morgan, 6 Monr 252, 259
Douglas V. Evans, 1 Overton 88, 89
Douglas V.Sherman, 2 Paige, Ch.R.. 230, 241
Douglas V. Wiggins, 1 Johns. Ch 503
Dow V. Chamberlin, 5 McLean 351
Dowes V. McMichael, 6 Paige, Ch. 113, 128
130
Downe v. Morris, 3 Hare 352
Downing v. Palmater, 1 Monr 565
Doyle V. Mnrphy, 22 111 569
Doyle V. Teas, 4 Scam 318, 327
Doyle V. Wiley, 15 111 177
Drew V. Harman, 5 Price 357
Driver v. Fortner, 5 Porter 57
Droullard v. Baxter, 1 Scam 164, 165
Drnry v. Molins, 6 Ves 228
Duberry v. Petrie, IS. & M. Ch 397
Duke of Cumberland v. Coddrington,
3 Johns. Ch 355
Duman v. Pepper, 43 Geo 198
Dumont v Ruepprecht, 38 Ala 339
Duncan V. Charles, 4 Scam 98
Duncan t. Duncan, 23 111 548
Duncan v. Ingles, Breese . . 267
Duncan V. Morrison, Breese 613
Duncan v. Wickliffe, 4 Scam 326
Duncan v. Wilson, 32 111 56, 142
Dundant v. Redman, 1 Vern 105
Dungey v. Angove, 2 Ves. Jr 282, 284
Dunham v. Eaton & H. R. R. C. 1 Bond
43, 45
Dunlap ▼. Wilson, 32 111.. 351, 352, 374, 375
Dunnv. Keegin, 3 Scam...90, 126, 127, 151
Dunn v. McNaught, 38 Geo 342
Dunning v. Dunning, 37 111. . . . 97, 201, 451
Dunscomb v. Dunscomb, 2 Hen. & M. 570
Dunyan v. Vatlier, 3 Blackf 400
Durant v. Redman, 1 Vern 107
Durbin v. Barber, 14 Ohio 340
Burling V. Hammer, 20 N.J. Eq. 49, 100, 102
Dwen v. Blake, 44 111 358
Dvright v. Humphreys, 3 McLean 60
E
Eager v. Price, 2 Paige, Ch 399, 404
Eager v. Price, 2 Paige, Ch. .. 210, 215, 216
Earle v. Holt, 5 Hare 99
Earl of Bathurst v. Burden, 3 Bro. Ch.
Ca 565
Earl of Portsmouth v. Fellows, 5 Mad. 52
Earl of Suffolk v. Green, 1 Atk 296
East India Co. v. Edwards, 18 Ves. .282, 283
East India Co. v. Hinchman, 1 Ves. Jr. 107
Easton v. Altum, 1 Scam 74
Eberly v. Groff, 9 Harris 55
Edgar v. Clevenger, 2 Green, Ch 203
Edmeston v. Lyde, 1 Paige, Ch. 398, 400, 403
Edmundson v. Moseby, 4 J. J. Marsh. 249
Edwards v. Beaird, Breese 70, 94
Edwards v. Carroll, 2 Bro. P. C 263
Edwards v. Chilton, 4 W. Va 44
Edwards v. Edwards, Wright, O. Ch. . . 511
Edwards v. Helm, 4 Scam 138
Edwards v. Massey, 1 Hawks 45, 46
Egremont v. Cowell, 5 Beav 44
Egremont V. Hamilton, 1 B. & Beat... 234
Eidenmuller v. Eidenmuller, 37 Cal 502
Eldridge v. Jenkins, 3 Story 351
Ellsworth v. Curtis, 10 Paige, Ch. R. 153, 154
Ellzey V. Lane, 2 Hen. & M 250
Elmendorf v. Delancy, Hopk. 58
Elston V. Blanchard, 2 Scam 47
Embree v. Embree, .53 111 497, 502
Emerson V. Clayton, 111 121
Emerson v. Dallison, 1 Ch 60
English V. Poxall, 2 Pet 67
740
TABLE OF CASES CITED.
Ennor Y. Thompson, 46 111 351
Enos V. Hunter, 4 Gilm 57
Enos V. Hunter, 4 Gilm 556
Ensign v. Colburn, 11 Paige, Ch 565
Ensworthv. Lambert, 4 Johns. Ch. . 205-206
373
Errington v. Attorney General, Bumb. 283
Errissman v. Errissraan, 25 111 512, 523
Estabrook v. Hapgood, 10 Mass 478
Estep V. Watkins, 1 Bland 42, 45
Eubank v. Hampton, 1 Dana 320
Evans v. Billings, 5 Ala 166
Evans v. Clement, 14 111 251, 252, 253
Everett v. Winn, 1 S. M. Ch. R 168
Ewins V. Gordon, 49 N. H 318
Executors, etc. v. Roberts, 1 Wash. C.
C. R 128
Ex parte Broadbent, 1 Mont. & A 340
Ex parte Dunham, 29 Leg. Int 404
Ex parte McEl wain, 29 111 464
Ex parte ^m\i'h,\^l\\ 557
Ex parte '^mmo, 1 Bailey, Ch 570
Eyere v. Dolphin, 2 Ball & B 129
F
Fahs V. Roberts, 54 111 203
Fairthorne v. Weston, 3 Hare 341
Fallon V. Railroad Co. 1 Dillon 321
Fallovces V.Williamson, lives. 229,233, 234
Falls V. Carpenter, 1 Dev. & Bat. Ch.. .320
Fancher v. Ingraham, 6 Blackf. . . . 100, 101
Farebrother v. Prattent, Dan. R. . . 282, 289
Farley v. Blood, 10 Foster 279
Farmers' Loan & Trust Co. v. Seymour,
9 Paige, Ch. R 229
Farnsworth v. Agnew, 27 III 96
Famsworth v. Strasler, 12 HI 182
Farrant v. Lovell, 3 Atk 563-564
Farrt-ll v. McKee,36Hl 171
Farrell v. Parlier, 50 111 385
Farwell v. Meyer, 35 HI 165
Fash v. Blake, 38 HI 177
Fawkes v. Pratt, 1 P. Wms 58
Fay V. Jewett. 3 Edw. Ch 160
Feary v. Stephanson, 1 Beav. Ch. Pr. . . 206
Felch V. Hooper, 20 Maine 65
Fell V.Brown, 2 Bro. Ch. R 356
Fellows V. Fellows, 4 Cowen 135, 402
Fellows V. Fellows, 8 N. H 502, 503
Fellows V. Shelmire, 5 Blackf 88, 89
Ferguson V. Ferguson, 3 Sandf. Ch. .. 492
Ferguson v. Paschall, 11 Miss 322
Ferguson v. Sutphan, 3 Gilm 88
Ferrie v. Ferris, 8 Conn 488
Ferris v. McClure, 36 111 306
Field V. Jackson, 2 Dick 566
Field V. Ross, 1 Monroe 197
Field V. Schieffelin, 7 Johns. Ch.. 307, 812
813, 814
Finch V. Lord Winchelsea, 1 Eq. Ca.
Ab... • 227, 228
Finch V. Martin, 19 HI 63
Findlay v. Smith, 6 Munf 564
Fish V. Miller, 5 Paige, Ch 127
Fisher v. Fisher, 54 111 75, 76, 144, 182
Fisher v. Fisher, 32 Iowa 533
Fisher v. Stone, 3 Scam 45, 103, 556
Fishli V. Fishli, 2 Litt 532
Fitch V. Boyd, 55 111 317, 318
Fitch V. Creighton, 24 How. U. S 49
Fitts V. Davis, 42111 535, 539
Fitzhugh V. Lee, Amb 296
Fitzpatrick v. Beatty, 1 Gilm 321
Fitzpatrick v. Beaty, 1 Gilm 44, 137
Flack V. Holm, 1 Jac. & Walk 555
Flagler v. Crow, 40 111 250
Flint v. Field, 2 Anst 43, 44, 53
Fleece v. Russell, 13 111 313
Fleetwood v. Green, 15 Ves 334
Fletcher v. Holmes, 32 Ind 374
Fletcher v. Wilson, 1 S. & M. Ch. . 306, 307
Flinn v. Owen, 58111 '547, 548
Fludyer V. Cocker, 12 Ves 334
Fogg V. Johnston, 27 Ala 339, 340
Foley V. Hill, 4 Milne & Craig 131
Fonda v. Sage, 48 N. T 536
Foot v. Van Raust, 1 Hill, Ch. R 186
Foote V. Foote, 22 111 528
Forbes v. Whitlock, 3 Edw 104
Ford V. Ford, 104 Mass 502
Ford V. Peering, 1 Vee. Jr 99
Forman v. Hanfray, 2 Ves. & B. . 340, 341
Forney v. Perrell, 4 W. Va 549
Forni v. Tesson, 51 111. . 613
Forrest v. Forrest, 3 Abbott, N. Y 5;J3
Forrest v. Forrest, 5 Bosw 533
Forrest v. Robinson, 4 Porter, Ala 108
Forsyth v. Baxter, 2 Scam 181
Forth V. Town of Xenia, 54 111. . . . 187, 614
Fobs v. Haynes, 31 Maine 133
Foster v. Deacon. 6 Mad. R 218
Foster v. Hodgson, 19 Ves 102, 263
Foster v. Hunt, 3 Bibb 167
Foster v. Swasey, 2 W. & M. C. C 103
Fowler v. Fowler, 4 Abbott, N. T 518
Fowler v. Lewis, 3 A. K. Marsh 114
Fowler v. Sanders, 4 Call 45
Fraglcr v. Crow, 40 HI 200
Frame V. Frame, 16111 200
Francisco v. Hendricks, 28 111 464
Franklin v. Keeler, 4 Paige, Ch 161
Franklin v. Wilkinson, 3 Munf 251
Fraser v. Hart, 2 Strobh. Eq 47
Erasure v. Zimmerly , 25 111 97
Freake v. Horsley, 2 Freem 873
Freeman \ . Freeman, 43 N. Y 324
Freeman v. Keagan, 26 Ark 47
French V. Creath, Breese 81
French v. Dear, 5 Ves 60
TABLE OF CASES CITED.
741
Frisbie V. Ballance, 4 Scam 318
Fryrear v. Lawrence, 5 Gilm 142
Fuller V. Gibson, 2 Cox 283
Fulton V. Railroad Co. 1 Dillon 323
Fulton Bank y. Beach, 6 Wend 140
Fulton Bank r. Beach, 3 Paige, Ch. R. . 140
Fulton Bank v. N. Y. & S. Canal Co. 4
Paige, Ch 203
Furman v. Coe, C. C. E 250
G
Gadsden v. Lord, 1 Dessau 269
Gage V. Billings, 5(5 111 539
Gage V. Chapman, 56 111 537, 539
Gage V. Rohrback, 56 111 539
Gaines v. Chew, 2 How. U. 8 49
Gaines y. Hennen, 24 How. U. S 490
Gaines v. Relf, 12 How. U. 8 490
Galatian v. Erwin, Hopk. Ch.. 98, 306, 307
314
Galbraith v. Galbraith, 5 Kansas 325
Gallaher v. Roberts, 1 Wash. CO 98
Gardiner v. Bering, 1 Paige, Ch 565
Gardner v. Emerson, 40 III. . . . 249, 259, 353
Gardner v. Gardner, 22 Wend 550
Gardnerv. Hall, 29 111 581
Gardner v. Kersey, 89 Geo 46
Garland V. Britton, 12 111 74
Garlick v. Strong, 3 Paige, Ch 106, 164
Garner v. Beaty, 2 J. J. Marsh 313
Garnett v. Mason, 2 Brockenbrough,
2 R 321
Garretson y. Weaver, 3 Edw. Ch. . 339, 341
Garrett v. Moss, 22 El 249, 251, 252
Garrett v. Stevenson, 3 Gilm 578, 581
Garth V. Cotton, 1 Dick 563
Garth V. Wood, 2 Atk 215
Gasque v. Small, 2 Strobh. Eq 317
Gault V. Hoagland, 25 111 90
Gayle v. Singleton, 1 Stew 167
Geizer v. Burk, 3 S. & M 141
Gentry v. Thornberry, 3 Dana 254
German v. Machine, 6 Paige, Ch. R 159
Gcrmond v. Germond, 4 Pai-;e, Ch 6.32
Gerrish v. Black, 104 Mass 359
Gaty V. Casey, 15 111 582
Getchell v. Jewett, 3 Qrcenl 323
Getzler v. Saroni, 18 HI.. . 249, 254, 256, 259
Gibbs V. Blackwell, 37 111 324, 326
Gibson v. Carson, 3 Ala 44, 46
Gibson v. Chehone, 5 Pick .359
Gibson v. Clarke, 2 V. & B 334, 335
Gibson v. Golthwaite, 7 Ala 281, 286
Gibson v. McCormick, 10 Gill & J 57
Gibson v. Reece, 50 111 89, 194. 205
Gibson v. Smith, 2 Atk 564
Gilbert V. Colt, Ilopk. Ch 560
Gilchrist v. Buie, 1 Der. & Bat Ch. R.
250, 259
Gilham y. Cairnes, Breese 6S
Gill V. Clagftt, 2 Gill <t J 50
Gillett V. Hall, 13 Conn 204-214
Gilmer V. Felhoun, 45 Miss 305
Gilmore v. Nowland, 26 111 98
Giles V. Giles, 1 Keen 215
Glassington t. Thwaites, 2 Russ. R. 153-154
Glastonbury v. McDonald, 44 Vt 47
Gleason V. Bisby, 1 Clarke 556
Gleason v. Gage, 7 Paige, Ch 401, 405
Glegg V. Legh, 1 Bligh, N. S 315
Glover v. Fisher, 11 111 320
Gold V. Ryan, 14 HI 464
Goodell V. Field, 15 Vt 818
Gooding V. Reiley, 50 N. H 369
Goodman v. Whitcomb, 1 Jac. & W.. . 341
Goodrich V. Hanson, 33 HI 181
Gorden v. Hobart, 2 Sum 375
Gorden v. Lowell, 21 Maine 403
Gordon v. Gordon, 3 Swanst 43, 200
Gore v. Cather, 23 111 458
Gore y. Pettis, 4 Saund. Ch 42
Gorelin v. Holland, 3 Ired. Ch 167
Gorman y. McCullock, 5 Bro. PC 264
Goudy v. Hall, 36111 145
Gould V. Barnes, 1 Dick 233
Gould V. Ryon, 14 111 57
Gould V. Womack, 2 Ala 318
Gourley v. Woodbury, 43 Vt 427
Gowan v. Jeffries, 2 Ashm 339, 342
Gowkoski V. Day, 16 111 .323
Graham v. Coape, 9 Sim 154
Graham V. Elmore, Harring. Ch 90, 197
Graham v. Skeken, 16 Legal Iiit 351
Grant v. Dnane, 9 Johns 353
Grant v. Van Schoonhoven, 9 Paige, Ch. 64
Graves v. Miles, Harring. Ch 204
Gray v. Baldwin, 8 Blackf 565
Gray v. Campbell. 1 Russ. & M'y 83
Gray v. Davis, 3 J. J. Marsh ... 326
Gray v. Hays, 7 Humph 196
Gray v. Regan, 23 Miss. Cush 135
Greathouse v. Kipp, 3 Scam 103
Green v. Barrett, 1 Sim 339
Green v. Campbell, 2 Jones, N. C. Eq. . 48
Green v. Dodge, 6 Ham 80, 99
Green v. Graig, 47 Mo 98
Green v. Massie, 21 Gratt. Va 268
Green v. Mumford, 4 K. 1 279
Greenleaf v. McDowell, 4 Ired. Eq. R.. 249
Greenman v. Harvey, 53 111 76
Greenoughv. Gaskell, 1 Mylne & Keen. 133
Greenup v. Scwell. 18 111 444
Greenup v. Strong, 1 Bibb 319
Greenway v. Thomas, 14 111 397, .398
Greenwich Bank v. Loomis, 2 Sandf.
Ch. R 250, 253
Greenwood v. Atkinson, 4 Sim 204
Gregg V. Renf rews, 24 111 142
Gregor v. Molesworth, 2 Ves 263
r42
TABLE OF CASES CITED.
Gregory v. Gover, 19 111 425
Gregory v. Molesworth, 3 Atk 53, 54
Gregson v. Oswald, 1 Cos 238
Gresham v. Peterson, 25 Ark 555, 556
Grey v. McCance, 11 111 615
Giifliii V. Due, 1-2 Ala 197
Grifflu V. Gnfflu, 21 Uow. X. Y 518
Griffin v. Griffin, 8 B. Monr 509, 526
Griffin v. Lovell, 42 Miss 373
Griffing v. Gibb, 2 Black, U. S . 99
Griffith V. Frederick Co. Bank, 6 Gill
& J 318
Griffith V. Ricketts, 3 Hare 230
Griffith V. Wood, 11 Vee 138, 139
Griggs V. Gear, 3 GOm. . .. 225, 249, 251, 254
256, 260
Griggs V. Thompson, 1 Geo. Decia 101
Grobb \. Cushman, 45 111 88, 174, 186
Grnbb v. Crane, 4 Scam 88, 90
Gni"lford v. Guilford, 9 Conn 487
Guion V. Pickett, 42 Miss 670
Gunnell v. Bird, 10 Wall. U. S. R 183
Gwin V. HarriB, 1 S. & M. Ch 90
H
Haffner v. Dickson, 2 Har. & J 320
Hagthorp v. Hook, 1 Gill & J 134
Haines v. Beach, 3 Johns. Ch 373
Haines v. Haines, 6 Md 323
Hale V. Wilkinson, 21 Gratt. Va 317
HaU V. DaviH, 44 111 145
Hall V. Hall, 4 N. H 509
Hall V. Hall, 12 Beav 340
Hall V. Huddeston, 2 P. Wms 299
Hall V. Towne, 45 111 195
Hallock V. Hallock, 4 How. N. Y 532
Hamersley v. Wickoff, 8 Paige, Ch 61
Hamilton v. Cummings, 1 Johns. Ch. . . 536
Hamilton v. Dunn, 22 LI 97, 575
Hamilton V. Luberken, 51 111 354
Hamilton v. Quigley, 46 HI 539
Hamilton v. Stokes, 4 Price 339
Hamilton V. Stuart, 59 111 614
Hammond V. Hammond, 1 Clarke, N. Y. 519
529, 557
Hampton v. Hodges, 8 Ves 565
Hand V. Dexter, 41 Geo 102
Handly V. Young, 4 Bibb 195
Handsand v. Hardy, 18 Ves 368
Hankinson v. Lombard, 25 111 177
Hanks v. Baber, 53 111 341
Hanna v. Ratekin, 43 111 138, 306
Hannum v. Thompson, 1 Scam 74
Hansley v. Ilansley, 10 Ired. Eq 514
Happy V. Morton, 33 111 .570
Happy V. Morton, 33 111 . 47
Hardemann v. Harris, 7 How. U. S 161
Harding v. Bickford, Seaton Decrees.. 333
Harding v. Handy, 11 Wheat 46, 186
Harding v. Parehall, 56 HI 323
Hardy v. Reeves, 4 Ves 102
HarknesB v. Underbill, 1 Black 318
Harmon v. Campbell, 30 111 88, 90
Harmon v. Harmon, 16 111 503, 506
Harper V. Ely, 56 111 371
Harper v. Lamping, 83 Cal 339
Harrington v. McLean, 1 Phillips, N. C.
Eq 104
Harrington v. Slade, 22 Barb. N. Y 204
Harris v. Carter, 3 Stewart 62
Harris v. Galbraith, 43 111 94, 103, 268
Harris v. Harris, Tur. & Russ 315
Harris v. Ingledew, 3 P. Wms 127
Harris v. Johnson, 3 Young & Coll. ... 238
Harris v. Knickerbocker, 5 Wend 44
Harris v. Polland, 3 P. Wms.. 113, 233, 234
237
Harris v. Reese, 5 Gilm 140
Harrison v. Armitage, 4 Mad 340
Harrison v. Hogg, 2 Ves. Jr 49, 104
Harrison v. Lemon, 3 Blackf 351
Harrison v. Nixon, 9 Pet 43
Harrison v. Rumsey, 2 Ves 200
Harrison v. Tennant, 21 Beav 339
Harrison v. Urann, 1 Story 115
Harsha v. Raid, 45 N. Y 324
Hart V. Lindsay, Harring. Ch 90, 91
Hart V. McKeen, Walker, Ch 47, 50
Hartwell v. Black, 48 111 325, 614
Hartwell v. Townsend, 2 Bro. P. C 264
Harvey v. Branson, 1 Leigh 197
Harvey v. Sullens, 46 Mo 549, 550
Harvey V. Thornton, 14111 873
Harward v. St. Clair & Monroe Levee
and Drainage Co. 51 111 51, 6,')
Harwood v. Kirby, 1 Paige, Ch 427
Hasbrook v. Shuster, 4 Barb 204
Haseltine v. Brickcy, 16 Gratt. Va 281
Haseett v. Ridgely, 49 HI 62, 428
Hatch V. Bnffalo, 38 N. Y 535
Hatch V. Cobb, 4 Johns. Ch. R 318
Hatcher v. Hatcher, 1 McMullen, Ch... .326
Hathoway V. Foy, 40 Mo 279, 280
Haven V. Wakefield, 39111 338
Hawes V. Hawes, 33 HI 513
Hawkins v. Clement, 15 Mich 100
Hawkins v. Hunt, 14 111 325
Hawkins v. Taber, 47 111 438
Hawks V. Lands, 3 Gilm 181
HawKy v. Clowes, 2 Johns. Ch 564
Hawley v. Cramer, 4 Conn 135, 269
Hawley v. Sheldon, Harring. Ch 318
Hayes v. Caldwell, 5 Gilm 133, 268, 275
Hayes v. Johnson, 4 Ala 279
Hayes v. Reese, 34 Barb 340
Hays V. Borders, 1 Gilm 177
Hays V. Mays, 1 J. J. Marsh 196
Hay thorp V. Hook, 1 Gill & J 65
Hayward v. Carroll, 4 Har. & J 43, tf
TABLE OF CASES CITED.
743
Heacock v. Durand, 42 111 164, 397
Heartt v. Corning, 3 Paige, Ch. 114, 126, 129
Heath v. Erie R. R. Co. 8 Blatchf . . 99, 100
Heath v. Erie R. R. Co. 9 Blatchf 268
Hedden v. Hedden, 6 C. E. Greene, N. J. 492
Hedrie k v. Hcru, 4 W. Va 325
Hees V. Voss, 52 111 144, 182
Henden V. Henden, 6 C. E. Greene 492
Henderson v. Cummings, 44 111 102
Henderson v. Hajs, 2 Watts 317
Henn v. Walsh, 2 Edw. Ch 338
Henry v. Davis, 7 Johns. Ch 358
Henry Co. v. Winnebago Brain Co. 62
111 47, 103
Henser v. Harris, 42 III 549
Hepburn v. Auld, 5 Cranch 321
Hepburn V. Dnnlap, 1 Wheat 3.34
Herbert v. Hobbs, 3 Stewart 45
Hercy v. Dinwdody, 2 Ves. Jr 234
Herrington v. Hubbard, 1 Scam 62
Hester v. Hooper, 7 S. <fe. M 318
Hester v. Weston, 1 Vern 106
Hewett V. Dement, 57 111 161
Hickenbotham v. Blackledge, 54 111. . 62, 100
101, 145, 428, 438
Hickey v. Forristal, 49 HI 107
Hickman v. Cooke, 3 Humph 50
Hickman v. Haines, 5 Gilm 37, 96
Hickson v. Aylward, 3 Molloy 314
Hiem v. Mill, 13 Ves 5"
Higgen v. Ferguson, 14 111 578
Hildyard v. Cressy, 3 Atk. .128, 131, 132, 152
Hill V. Adams, 2 Atk 357
Hill V. Bishop, 25 111 576
Hillv. Hill, 10 Ala 503
Hilliard v. Scoville, 42 111 427
Hilliary V. Hurdle, 6 Gill 57
Hilton V. Barrow, 1 Ves. Jr 305
Hindman v. Taylor, Dick. R 275
Hitchell V. Hayne, 2 Sim. & Sta 281
Hitt V. Ormsbee, 14 HI 142, 144
Hoarv. Harris, 11 Bl, 62,64, 5.36
Hobart v. Abbott, 2 P. Wms.. 356, 857, 385
Hobson V. McArthnr, 16 Pet 57
Hodgen v. Guttery, 58 HI 35, 92, 5.38
Hodges V. Mulliken, 1 Bland. . 249, 254, 255
Hodges V. Smith, 1 Cox's Ca 291
Hodgins v. White, 2 Ired. Ch 45
Hodgkin v. Longden, 8 Ves. R 273
Hodle V. Healey, Mad. & Geld 353
Hodson V. Ball, 11 Sim 218
Hodson V. Butteraeld, 2 Sim. & Stu. . . 158
Hoffman v. Shields, 4 W. Va 402
Hogan V. Walker, 14 How. U. S 397
Holbrook v. Prettymau,44 111 314
Holbrook v. Winson, 2? Mich 536
Holbrook v. Worcester Bank, 2 Curtis. .353
Holder v. Mount, 2 J. J. Marsh 225
Holdsworth v. Holdsworth, 2 Dick 205
Holleclan v. Johnson, 2 Geo. Dccis 101
Holligan v. C. & R. I. R. R. Co. 15 HI. . 47
Hollingshead's Case, 1 P. Wms 234
HoUingsworth vs. McDonald, 2 Har. &
J 249, 250, 255
Hollister v. Hollister, 6 Barr 50»
Uollovvay v. G.'.lloway, 51 111 548
Holman v. Bank, etc. 12 Ala 388
Holman v. Uulman, 3 Dessau. 45
Holmes V. Field, 11 111 64
Holmes v. Holmes, 2 Lee 517
Holmes v. Holmes, Walk 510, 517
Holmes v. Stateler, 57 111 613, 614
Holmes v. Waring, 8 Price 108
Holt V. Rogers, 8 Pet 316, 320
Hony V. Hony, 1 Sim. & Stu 131
Hood V. Inman, 4 Johns. Ch 44, 45
Iloofman v. Marshall, J. J. Marsh 167
Hook V. Dorman, 1 Sim. & Stu.... 61, 105
Hook V. Whitlock, 7 Paige, Ch 102
Hooper V. Bailey, 28 Miss 358
Hoots V. Graham, 23 111 466
Hopkins v. Granger, 52 111. 56, HO, 141, 142
536
Hopper v. Hopper, 11 Paige, Ch 508
Horner v. Zimmerman, 45 III. . 249, 256, 259
385, 39T
Horton v. Baptist Church, etc. 34 Vt... 291
Horwood V. Schmedcs, 12 Ves. 227, 228, 233
Hough v. Coughlan, 41 111 318
Houghton V. Murphy, 21 N. J. Eq 318
Hovenden v. Lord Anncslcy, 2 Sch. &
Lef 102, 2.34
Hovey v. Holcomb, 11 111 47
How V. Best, 5 Mad 103
Howe V. Harvey, 8 Paige, Ch 42
Howe V Howe, 4 Nev 502
Howe V. Rogers, 32 Texas 319, 324
Howell V. Ashmore, 1 Stockt. N. J 269
Howell V. Harvey, 5 Ark 340
Howell V. Price, 1 P. Wms 355
Howett V. Selby, 51 111 138, 306, 582, 683
Hoxie V. Carr, 1 Sum 378
Hoy V. Hansborough, 1 Frcem. Ch 322
Hoyle V. Livesey, 1 Mer 193
Hubbard v. Hubbard, 6 Mass 553
Hubbard v. Turner, 3 McLean 388
Hudson V. Hudson, 3 Rand 306, 307
Huffacre v. Green, 4 Heyw 253
Hughes v. Bloomer, 9 Paige, Ch. R. . . . 143
Hughes V. Edwards, 9 Wheat .... 351, 376
Hughes V. Hughes, 19 Ala 502
Hughes V. Jones, 3 Md. Ch. Decis 254
Hull V. Peer, 27 111 102, 327
Humphreys V. Hollis, Jacob 229
Humphreys v. Humphreys, 3 P. Wms.. 61
Humphreys V. Incledon, 1 P. Wms 230
Hunt V. Holland, 3 Paige, Ch. R 169
Hunt V. Wallii*, 6 Paige, Ch 91
Hunter v. Blauchard, 18 111 576
Hunter v. Hatch. 45 111 351
744
TABLE OF CASES CITED.
Hunter v. Nelson, 6 Blackf 556
Hard v. Case, 32 111 306, 307, 313
HtBsey V. Dole, S4 Maine 62
Hatch V. Eustaphieve, 1 Clarke 69
Hutchenson V. McNutt, 1 Ham 318
Hatchinson v. Reed, 1 Hoff. Ch. . . . 166-167
Hyde v. Forster, 1 Dick. R. . . 239
Hyde v. Warren, 19 Ves 283
Hyde v. Wroughton, 3 Mad 335
Idler V. Routh, 3 How. Misa.. 249, 250, 253
Ingersoll v. Ingcraoll, 42 Miss 89
IngersoU v. Kirby, Walker's Ch 49
Inglehart v. Crane, 42 111 306, 388
Inglehart V. Gibson, 56 111 318, 319
Irnham v. Child, 1 Bro. Ch 43
Irvin V. Bleakley, 67 Pa. St. R 327
Irving V. De Kay, 10 Paige, Ch. . . . 312. 313
lemael v. Parker, 13 111 318, 397, 405
Jackson V. Ashton, 8 Pet 42
Jackson v. Ashton, 11 Pet 46, 317
Jackson v. Edwards, 22 Wend 320
Jackson v. Edwards, 7 Paige, Ch 481
Jackson v. Honey cat, 1 Overton 88
Jackson v. Warren, 32 111 390, 428
James v. Bird, 8 Leigh 57
James v. Fisk, 9 Smedes & M 249
James v. Hambleton, 42 111 579
James v. Morgan, 36 Conn 98
J. G. V. H. G., 33 Md 488
Jameson v. Conway, 5 Gilm 172
Japling V. Stuart, 4 Ves 165
Jaqaes v. Methodist Church, 1 Johns.
Ch 55
Jaques v. M. E. Church, 17 Johns. Ch. . 196
Jaqaes v. Weeks, 7 Watts 351
Jefferson v. Dawson, 3 Ch. Cas 126
Jefferson Co. v. Ferguson, 13 111 165
Jeneson v. Garden, 29 111 460
Jenkins v. Eldridgc, 3 Story, R 251
Jenkins v. Freyer, 4 Paige, Ch 229
Jenkins v. Green, 1 A. K. Marsh 269
Jenkins v. Hilcs, 6 Ves 334
Jenkins v. Prewitt, 6 Blackf 258, 259
Jenkins v. Prewitt, 7 Blackf 249, 254
Jenkins v. Pye, 12 Pet 550
Jennings v. Hopton, 1 Mad 334, 335
Jennings V. Nugent. 1 Moll 291
Jennings v. Smith, 29 111 462
Jennings v. Springs, 1 Bailey, Ch. . . 165
Jcnonr v. Jenour, 10 Ves 200
Jerome v. Jerome, 5 Conn 297, 2'.)9
Jesson V. Brewer, 1 Dick 201
JesoB College v. Gibbs, 1 Young & Coll. 137
Jevne v. Osgood, 57 111 108
Jew V. Wood, 1 Craig & Phil 281, 283
Jewett V. Cunard, 3 W. <fe M. C. C 351
Johns V. Brown, Scaton on Decrees.... 215
Johns V. Norris, 22 N. J. Eq 318
Johnson v. Clendenin, 5 Gill. & J 556
Johnson v. Dodge, 17 111 318
Johnson v. Donnel, 15 111 252, 385
Johnson v. Everett, 9 Paige, Ch. . . 196, 197
Johnson V. Johnson, 30 111 538
Johnson v. Johnson, 14 Wend 509
Johnson v. Johnson, 1 Edw. Ch 509
Johnson v. Johnson, 4 Paige, Ch 509
Johnson V. Johnson, 14 Cal 502
Johnson V. Montgomery, 51 111... 4frl, 466
Johnson v. Northey, Prac. in Ch 222
Johnson v. Pinney, 1 Paige, Ch 83
Johnson v. Rankin, 3 Bibb 63
Johnston v. Johnston, Wright, Ch 511
Johnston v. Mitchell, 1 A. K. Marsh... 320
Joliffv. Joliflf, 32 111 523
Jones v. Bradshaw, 16 Gratt. Va 269
Jones V. Bush, 4 Harring 57
Jones V. Earl of Strafford, 3 P. Wms. . . 106
Jones V. Frost, 3 Mad 104, 118
Jones V. Garcia D 1. Riv. 1 Turn. &
Ruse 49
Jones V. Hawkins, 3 Ired. Eq. R 134
Jones V. Jones, 3 Atk 205, 206, 241
Jones V. Jones, 2 Barb. Ch. R 517
Jones V. Kenrick, 5 Bro. C. P 268
Jones V. Lewis, 2 Sim. & Stu 96
Jones V. Millcreek Corporation, 4 Pick. 324
Jones V. Parishes, etc. 3 Swanst 58
Jones V. Pilcher, 6 Munf 254
Jonep V. Pugh, 12 Sim 1*3
Jones V. Smith, 14 111 306, 307, 313
Jones V. Strafford, 3 P. Wms 100, 276
Jones V. Yates, 9 B. & C 339
Jones V. Zollicoffer, 1 Car. L. R 250
"Jonit V. Gaither, 6 Monr 197
K
Kane v. Kane, 3 Edw. Ch 493
Keating v. Keating, 48 111 523
Keelcr v. Eastman, 11 Vt 564
Kelley V. Payne, 18 Ala 57
Kellom V. Easley, 2 Abbot, C. C. R.... 259
Kelsey V. Hobby, 16 Pet 306
Kelso V. Blackburn, 3 Leigh 397
Kemp V. Humphreys, 13 111 320
Kempsey v. Maginnis, 2 Mich. N. P 549
Kendall V. Almy, 2 Sumner 319
Kennedy v. Georgia State Bank, 8 How.
U. S 210, 249
Kennedy V. Kennedy, 2 Ala 50
Ki'nnedy v. Kennedy, 3 Dana 339, .340
Ki!unedy v. Northup, 15 111 . . . 103, 636, 536
Kernegay v. Carroway, 2 Dev. Ch OT
TABLE OF CASES CITED.
745
Kerr v. Watt«, 6 Wheat 64
Keeter t. Stark, 19 111 428, 437, 444
Keys V. Test, 33 111 324
Kidd V. Manley, 6 Cush 46
Kidder v. Aholtz, 30. Ill 187, 577, 606
Kilgour V. Crawford, 51 111. ... 127, 151, 427
Kimball v. Cook, 1 Gilm 181, 575
Kimball v. Ward, Walk. Ch 141
Kimpton v. Eve, 2 Ves. & B 566
Kinnoul v. Money, 3 Swaust 352
King V. Clark, 3 Paige, Cli. R 277, 278
King V. French, 5 Cliicago Legal News. 536
Kingv. namilton,4 Pet 317
King V. Henry, 9 Sim 273
King V. Higgins, 3 Oregon 536
King v. Morf ord, Saxton '318
King V. Ray, 11 Paige, Ch. R 134
King V. Trice, 3 Ired. Ch 48
Kinney v. Yardley, Dick 86
Kinney v. Harvey, 2 Leigh 401
Kinney v. Hudnut, 2 Scam 584
Klnnler v. Kinnier, 53 Barb. N. Y 490
Kinzey v. Thomas, 28 111 581, 591
Kirby v. Ingersoll, Harring. Ch 342
Kirby v. Kirby, 1 Paige, Ch 532
Kirby v. Taylor, 2 Johns. Ch. R 161
Kirkhamv. Justice, 17 111 63
Kirkley v. Burton, 5 Mad 60
Kirksey V. Fike, 27 Ala 324
Kisor V. Staneifer, Wright 46, 55
Kittridge v. Claremont Bank, 3 Story,
116 124
Kivard v. Gardner, 39 HI 76
Klein v. Horine, 47 HI 47
Knapp V. Marshall, 26 HI. 65 196, 197
Knight V. Knight, 31 Iowa 502
Knight V. Knight, 3 P. Wms 325
Knight V. Knight, 4 Mad 294, 295
Knight V. Moseley, Ambl 100
Knowles v. Haughton, 11 Ves 340, 341
Knox T. Smith, 4 How. U. S. 44 149
Keen V. White, Meigs 320
Krebell v. White, 2 Yonnge & C 341
Kuckenbcirer v. Beckert, 41 111 57
Kuritz V. Hibner, 55 HI 438, 444, 445
Kuyo V. Moore, 1 Sim. & Stu. . . 49
KuyperB v. Dutch Ref. Ch. 6 Paige,
Ch 100, 105
La Framboise v. Grow, 56 111 466
La Grange R. R. Co. v. Raincy, 7 Cold.
Tenn 65
Laight V. Morgan, 1 Johns. Cas 268
Lake v. Austwick, 4 Lond. Jurist 238
Lamb v. Starr, 1 Deady 105
Lamar v. Jones, 3 Har. & McHen 353
Lane v. Erskiue, 13 111 373
Lane v. Stebbins, 9 Paige 268
Langahcr v. Pontiac & N. W. R. R. Co.,
6 Chicago Legal News 675
Langdon v. Goddard, 2 Story, 43, 47. . . 160
Langdon v. Pickering, 19 Maine, 52, 95, 160
Langdon v. Roane, 6 Ala 195
Laugford v. Pitt, 2 P. Wms ... 334
Langston v. Baylston, 2 Ves. Jr. . . 282, 284
Lanmon v. Clark, 4 McLean 398
Lannon v. Jordon, 56 111 537, 544
Larrison v. Larrison, 5 C. E. Greene,
N.J 492
Larson v. Moore, 1 Texas 250
Larue v. Lame, 2 Little 197
Laswell v. Bobbins 39, 183
Lathan v. Wiswall, 2 Ircd 167
Latouche v. Dunsaney, 1 Sch. & Lef. .. 313
Law V. Ford, 2 Paige, Ch 341
Lawrencev. Bolton, 3 Paige, Ch. 210, 211, 213
Lawrence v. Lane, 4 Gilm 390
Lawrence v. Lawrence, 3 Paige, Ch. 526, 532
Lawrence v. Richmond, 1 Jac. & W 201
Lawson v. Grubbs, 44 Geo 397
Leacraf t v. Demprey, 4 Paige, Ch 130
Leadbeater v. Roth, 25 111 96
Lear v. Choteau, 23 111 102, 318
Leavycraf t v. Dempsey, 15 Wend 161
Le Barron v. Le Barron, 35 Vt 488
Leddle V. Starr, 20 N. J. Eq 281
Lee V. Lee, Hare, R 218
Lee V. Kirby, 104 Mass 318
L'Estrange v. Maloney, 1 Hogan 159
Lefavour v. Justice, 5 Blackf 108
Leftwich v. Orne, 1 Freem. Ch 161
Legal V. Miller, 2 Ves 58
Leggett V. Cooke, 10 Ves 227
Leggett V. Dubois, 2 Paige, Ch. R 228
Leggett V. Postley, 2 Paige, Ch 133
Legoux V. Wante, 3 Har. & J 133
Le Grand v. Whitehead, 3 Rnss 333
Leigh V. Crump, Ired. Ch 318
Lemon v. Stevenson, 36 HI 47
Lennon v. Porter, 2 Gray 357
Lentilhon v. Moffat, 1 Edw. Ch 400
Leonard v. Jamison, 2 Edw. Ch 388
Leonard V. Morris, 9 Paige, Ch 376
Leonard V. Villars, 23 HI 374
Llewellen V. Mackworth, 2 Atk 263
Le Roy v. Veeder, 1 Johns. Ch 45
Lesseuer v. Lesseuer, 31 Barb 491, 510
Lester v. Stevens, 29 HI 107, 115, 127
Leverton v. Waters, 7 Cold. Tenn 427
Levil V. Darcey, 1 Ch. Cas. 3 Mur 256
Lewis v. Baird, 3 McLean 114, 135
Lewis V. Bridgman, 2 Sim 234
Lewis V. Lewis, Minor 186
Lewis V. Lewis, 9 Mo 47
Lewis V. Wood, 4 How. Miss 86
Liggon V. Smith, 4 Hen. & Munf 152
Lill V. Neafie, 31 111 569
Lindley v. Cravens, 2 Blackf 167
746
TABLE OF CASES CITED.
Lindsay v. Lindsay, 50 111 550
Lindsley v. James, 3 Cold. Tenn 268
Lingan v. Henderson, 1 Bland.. . 42, 46, 57
Litton's Case, Cary 234
Livingston v. Freeland, 3 Barb. Ch. . . 205
Livingston v. Hubbs, 3 Johns. Ch. R.. 253
254, 256
Livingston v. Reynolds, 2 Hill, Ch 565
Livingston V. Reynolds, 26 Wend 564
Livingston v. Story, 9 Pet 99, 101
Livingston v. Story, 11 Pet 115
Lloyd V. Malone, 23 111 144
Lock V. Fulford, 52 111 388. 390
Lockridge v. Lockridge, 2 B. Monr 633
Lockwood V. Mills, 39 111 177
Logan V. Logan, 2 B. Monr 517
Logan V. McChord, 1 A. K. Marsh 319
Logan V. McChord, 2 A. K. Marsh 320
Lomaxv. Dore,45Ill 682, 591
Looker v. Roll, 3 Ve« 61
Loomia v. McKenrie, 31 Iowa 338
Loomis V. Riley, 24 111 427, 428
London v. Warfield, 5 J. J. Marsh 564
Longfellow v. Longfellow, 1 Clarke,
N. Y 518
Longworth t. Taylor, 1 McLean 318
Lord Cartaret v. Paschal, 3 P. Wms. .. 222
Lord Dersley v. Fitz Hardinge Berkley,
6 Ves 295
Lord Gray de Wilton v. Saxton, 6 Ves. 566
Lord Herbet v. Pusey, 1 Dick 159
Lord Newburgh v. Wren, 1 Vern 315
Lord North v. Lady Cray, Dick 299
Lorillard v. Coeter, 5 Paige, Ch 65
Loring v. Cook, 3 Pick 359
Loscomb V. Russell, 4 Sim 341
Louvalle v. Menard, 1 Gilm 429, 445
Loud V. Sargeant, 1 Edw. Ch 114
Love V. Blewett, 1 Dev. & Bat. Ch 253
Lovev Braxton, Wythe 369
Lowe V. Richardson, 3 Mad 282
Lowe V. Tragnor, 6 Coldw. Tenn. R... . 189
Lownsdalc v. City of Portland, 1 Oregon 161
Lo wndise v. Comfort, 18 Ves 282
Lowry v. Harris, 12 Minn 102
Lowther v. Carlton, 2 Atk 357
Loyd V. Malone, 23 111 475
Lozier v. Van Saun, 2 Green, Ch 280
Lnbiere v. Genon, 2 Ves 193
Lnbin v. Lightbody, 8 Price 335
Luckett V. White, 10 Gill & J 48, 102
Lucus V. Atwood, 2 Stewart 403
Lnpton v. Hercolt, 1 Sim. & Stu 86
Lynch v. Johnson, 2 Litt 50
Lynch v. Lynch, 33 Md 503
Lynch v. Sumrall, 1 A. K. Marsh 269
Lynch v. Willard, 6 Johus. Ch 103
Lyou v. Lyon, 62 Barb. N. Y 492
Lyon v. Robbing, 46 111 92, 259, 403
Lyon v.Talmadge. 1 Johns. Ch..l65, 167, 171
M
Mackey V. BelJ, 2 Mnnf 19ft
Magniac v. Thompson, 2 Wall. Jr. 0. C.
R 47
Maher v. Bull, 39 111 143, 186
Mahar v. O'Hara, 4 Gilm 137, 140
Mahone V. Mahone, 19 Cal 499
Manchester v. Matthewson, 2 S. 1 247
Manchester v. McKee, 4 Gilm 88
Manigault v. Deas, 1 Bailey, Ch. R 251
Manning v. Rixf ord, 44 111 121
Mansfield v. Hoagland, 46 111 64
Mansfield y. Mansfield, Wright, Ch 493
Many v. Beckman Iron Co. 9 Paige, Ch.
Maple V. Scott, 41 111 56, 142, 171,
Marble V. Bonhotel, 35 Dl.... 164, 165,
Marble Co. v. Ripley, 10 Wall
March v. Davidson, 9 Paige, Ch. R. 268,
Margraviue of Auspach v. Noel, 1 Mad.
102
172
166
318
270
275
Marker V. Marker, 9 Hare 564
Martin v. Marlin, 2 Johns. Ch 166
Marsh v. Marsh, 2 Beasley, N. J 609
Marsh v. Marsh, 1 Green, N. J 104
Marshall v. Vickbburg, 15 Wall 100
Marston v. Humphreys, 24 Maine 65
Marten V. Van Schaick, 4 Paige, Ch. 341, 342
Martin v. Dryden, 1 Gilm 62
Martin v. Eversal, 36 111. ... 56, 142, 580, 583
Martin v. Hargarden, 46 HI 76, 89, 187
Martin v. Maberry, 1 Dev. Ch 280
Martin v. McBryde, 3 Ired. Ch 48
Martin V. Martin, 47 N. H 506
Martine v. Nelson, 51 111 676
Martinius v. Helmuth, 2 Ves. & Bea. 283, 290
Marvin v. Collins, 48 111 464
Marvin v. Trumbull, Wright 259
Maryland V. Northern, etc. 18 Mad 565
Mason v. Bair, 33 111 165
Mason v. Gardiner, 4 Bro. C. C 308, 314
Mason v. McGirr, 28 111 138, 171
Mason v. Hamilton, 5 Sim 291
Mason v. Mason, 1 Edw. Ch 526
Mason V. Wallace, 3 McLean 320
Massie v. Graham, 3 McLean 249, 254
Massie v. Grant, 3 McLean 254
Master v. Kirton, 3 Ves 340
Master v. Master, 15 N. H 509, 610
Masterson v. Craig, 5 Litt 138, 141
Masterson V. Wiswold, 18111.. 89, 144, 145
Matchin v. Matchin, 6 Barr 49?
Matter of^Hutchkins, 7 Phil. Pa. R.... 650
Mattocks V. Tremain, 3 Johns. Ch 560
Mattox V. Mattox, 2 Ham 491, 610
Mauck V. Mauck, 54 111 19»
Maude v. Eodes, 4 Dana SS9
Maury v. Lewis, 10 Yerg 4ft
TABLE OF CASES CITED.
747
Maury V. Mason, 8 Porter 195
Maxwell V. Fiuiiie, 6 Coklw. Tenn. ... 570
Maxwell v. Kennedy, 8 How. U. S. 99, 102
May V. Armstrong, 3 J. J. Marsh 307
May V. Parker, 12 Piek 54
Mayer v. Mayer, (i C. E. Greene, N. J.. 492
Maynard v. Moscley, 3 Swanst 200
Mayor of London v. Levy, 8 Ves 101
Mazareddo v. Maitland, 3 Mad. K 270
McArtee v. Engart, 13 111 165
McCagg V. Ileacock, 42 111 138, 306
McCall V. Yard, 1 Stockt. N. J 373
McCalniont v. Lawrence, 1 Blatchf. C.
C. R 401, 403
McCann v. Dorsheimer, 1 Clarke 399
McCarkle v. Brown, 9 S. & M 321
McCarter v. Carter, 49 111 577
McClay V. Norris, 4 Gilm. 89, 144, 145, 183
McClellan v. Darrah, 50 111 318
McCloBkcy V. McCormick, 44 111 ... . 98, 104
McClurg V. Phillips, 40 Mo .389
McClurpen v. Deirich, 33 III 318
McComas v. Easley, 21 Gratt. Va 317
McComas v. Minor, Walker 167
McConnel v. Gibson, 12 111 47
McConnel v. Dickson, 43 111 397
McConnel v. Smith, 23 111 ... 226
McConnell v. Ayres, 3 Scam 612
McConnell v. Hodson, 2 Gilm 138
McConnell V. Holobush, 11 lU... 51, 60, 95
160
McConnell v. McConnell, 11 Vt 62
McConnell V. Smith, 27 111 ... 189
McConniccs v. Moseley, 4 Call 194
McCormick v. Wheeler, 36 111 200
McCosker v. Brady, 1 Barb. Ch 569
McCrackiu V. Finley, 1 Bibb 253 254
McCullom V. Tnrpie, 32 Ind 390
McDaniel v. Canell, 19 111 145
McDaniel v. James, 23 111 249. 250
McDerraot v. Blois, Charl. R. M 397
McDermaid v. Russell, 41 111 145
McDonald v. McDonald, 10 Vt.... 134, 135
McDonald v. Starkey, 42 HI 570
McDonough v. Shewbridge, 2 Ball & B. 308
McDowell V. Cochran, 11 111 108, 397
McElwaine v. Willis, 9 Wend.. 44, 104, 397
McElwee v. Sutton, 1 Hill, Ch. R.. 277, 278
McFadden v. Worthington, 45 111 535
McGalliard v. Aiken, 2 Ired. Ch 320
McGarrah v. Prather, 1 Blackf . . . . 281, 286
McGown V. Yorks, 6 Johns. Ch .. . 206, 373
McGrew Tombeckbee Bank, 5 Porter. . 45
McHcnry V. Hazard, 45 N. Y 297
McIntirev.Trustees, etc. 6 Paige, Ch. 44, 161
McKaig V. Piatt, 34 Md 123
McKeen v. Field, 4 Edw. Ch. R 158
McKim V. Thompson, 1 Bland 143
McLagan v. Brown, 11 111 576, 591
McLain v. Van Winkle, 46 Dl. . 200, 449
McLaughlin v. Van Keuren, 21 N. J. Eq. 65
McLean V. Lafayette, etc., 3 McLean. 49, 388
McMillin v. McMillin, 7 Monr 320
McMuUen v. Furness, 1 Smith 375
McMurtrie v. Bennett, Hirring. Ch 318
McNab V. Heald, 41 111 57
McNamara, v. Williams, 6 Ves 3.35
McNeil V. Mageo, 5 Mason 317, 324
McRae v. McKinzie, 2 Dev. & Bat 340
Mead v. Arras, 3 Vt 250
Meaher v. Cox, 37 Ala 339
Means v. Means, 42 111 195
Mebane T. Mebane, 1 Ired. Ch 46
Mechanic's Bank v. Levy, 1 Edw. Ch.. 137
Mechanic's Bank v. Levy, 3 Paige, Ch. 46
55
Mechanic's Bank v. Lynn, 1 Pet 135
Mechanic's Bank v. Seaton, 1 Pet. . 62, 322
Meeker v. Marsh, Saxon 114
Meeker v. Meeker, 16 Conn 318
Melde v. Lapeyrollerie, 16 La. An 492
Melick v. Melick, 2 Green, N. J 102
Mellish v. Williams, 1 Vern 252
Mercier v. Lewis, 39 Cal 44, 305
Merrywether v. Mellich, 13 Ves.lH, 242, 247
Messervey v. Beckwith, 41 111 91
Metcalfe v. Hervey, 1 Ves. 100, 282, 283, 286
Metcalfe v. Metcalfe, 1 Keen 229, 233
Methodist Church v. Jaques, 3 Johns.
Ch.R ... 135, 186
Metropolitan Bank v. Godfrey, 23 111.. 165
Meux V. Bell, 6 Sims 288
M. & H. R.R.Co.v.Clate, 4Paige,Ch. 280, 281
Meyer v. Pfeiffer, 50 111 -45
Miers v. Zauesville & Maysville Tnrn-
pikeCo.,11 Ohio 405
Miles V. Bacon, 4 J. J. Marsh 313
Miles V. Thomas, 9 Sim 341
Milk V. Moore, 39 111 188, 189, 190, 512
Millard v. Bramsdell, Harring. Ch 321
Miller v. Bear, 3 Paige, Ch. R 320
Miller v. Colton, 5 Geo 47
Miller V. Davidson, 3 Gilm 88, 397
Miller v. Furse, 1 Bailey, Ch 43, 44, 99
Miller v. McCan, 7 Paige, Ch 65
Miller v. Miller, 6 Johns. Ch 532
Miller v. Miller, Saxton, N.J 530
Miller V. Mills, 29 111 75, 77
Miller v. Thomas, 14 111 351
Milligan v. Milledge, 3 Cranch 117
Mills v. Brown, 2 Scam 99
Mills v. Heeney, 35 111 89
Mills v. Hoag, 7 Paige, Ch 197
Mills V. Keeney, 35 111 591
Mills V. Met calf, 1 A. K. Marsh 326
Millspaugh v. McBride, 7 Paige, Ch. R. 251
Milner v. Hanwood, 17 Ves 164
Milnor v. Willard, 34 111 318. 320
Milwaukee & Minn. R. R. Co. v. Soutter,
13 Wallace 404
748
TABLE OF CASES CITED.
Mines v. Moore, 4 111 372
Mine v. Mins, 3 J. J. Marsh 65
Misi>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.«<sell v. Loscombe, 4 Sim 340, 341
Russell v. Payne, 45 111 188, 189
Russell V. Rogers, 56 111 614
Russell V. Rumsey, 35 111 464
Russell V. Russell, 54 111 56, 142
Russell V. Topping, 5 McLean 850
Russell V. Waite, Harring. Ch 90
Rust V. Mansfield, 25 111 142
Ryan v. Jones, 15 III 397
Ryan v. Trustees, etc. 14 111 49
Rylands v. Latouche, 2 Bligh. 222, 242, 247
Sackville v. Ayleworth, 1 Vern 295
Sagory v. Wissman, 2 Benedict 385
Sale V. Fiske, 54111 92
Sailers v. Tobias, 7 Johns 114
Salmon v. Clagett, 3 Bland 140, 563
Saltmarsh v. Bower, 22 Ala 161
Samauda v. Furtado, 3 Bro. C. C 2.34
Samuel v. Wiley, 50 N. H 556
Sanders v. King, 6 Mad 113
Sanquirico v. Benedetti, 1 Barb 322
Saunders v. Frost, 5 Pick 358
Saunders v. Leslie, 2 Ball & B 129
Savage v. Smalebroke, 1 Vern 106
Savery v. Spence, 13 Ala 322
Saxon V. Barksdale, 4 Dessau 100
Sayle v. Graham, 5 Sim 214
Scales v. Labor, 51 111 90,91
Schnebly v. Schnebly, 26 111 458, 475
Schneider V. Seibert, 50 111... 201, 426, 437
Scholes V. Ackerland, 13 111 181
School, etc. v. Miller, 54111 46
School Trustees V. Wright, 12 111 102
Schwartz v. Saunders, 46 111 577, 578
Schwarz v. Sears, Walk. Ch 306
Schwarz V. Wendell, Harring. Ch 119
Schyler v. Pelissier, 3 Edw. Ch 2S0
Sconce V. Whitney, 12 111 144, 145
Scott V. Barker, 14 Ohio 320
Scott V. Bennett, 1 Gilm 65
Scott V. Moore, 3 Scam 62
Scott V. Ondeudonk, 14 N. Y 5-35
Scott V. Shepherd, 3 Gilm 319, 326
Scott V. Wallace, 4 J. J. Marsh 397
Scott V. Whitlow, 20 111 47
Scoville V. Billiard, 48 111 427
Screven v. Bostwick, 2 McCord, Ch 397
Scrimeyer v. Buchannon, 3 A. K. Mareh. 51
Scruggs V. Blair, 44 Mise 103
752
TABLE OF CASES CITED.
Scudder V. Young, 25 Maine 67, 58
Suaga V. Harrison, 43 Geo 46
Sea Insurance Co. v. Day, 9 Paige, Ch. 171
Sebring V. Mersereau, Hopk...- 427
Sedam v. Williams, 4 McLean 49
Seeley v. Boehn, 2 Mad 52
Seighortner v. Weissenborn, 5 C. E.
Green 342
Sellen V. Lewen, 3 P. Wms 130
Stltz V. Unna, 6 Wall 44
Senior V. Brebnar, 22 ni 579
Seton V. Slade, 7 Ves 334
Sevier v. Magguire, 49 111 249
Seymour v. Delanccy, 6 Johns. Ch. R.
317, 318
Seymour v. Hazard, 1 Johns. Ch 556
Shackell v. Macauley, 2 Sim. & Stu. . . . 299
Shaeffer v. Weed, 3 Gilm. 170, 577, 581, 582
591
Shaffer v. Sutton, 49 111 614
Shaver v. Woodward, 28 111 351
Shaw V. Chester, 2 Edw. Ch 286, 288
Shaw V. Coster, 8 Paige, Ch. 280, 281, 283
286
Shaw V. Livermore, 2 Green, N. J. Ch. 321
Shaw V. Shaw, 17 Conn 502
Shay V. Norton, 48 111 536, 537
Shed V. Garfield, 5 Yt 375
Shelby v. , 13 Ves 294
Sheldon v. Hardin, 44 111 45
Sheldon v. Patterson, 55 111 385
Sheldon v. Robbins, 2 Root 45
Shell V. Shell, 2 Sneed, Tenn 502
Shepard v. Shepard, 6 Conn 44
Shepherd v. Larue, 6 Munf 263
Shepherd v. Lloyd, 2 Y. & Jerv 106
Shepherd v. Shepherd, 1 Md. Ch. Decis. 323
Shepherd v. Titley, 2 Atk. . . 223
Sheppard v. Starke, 3 Munf 57
Sheriff'/. Oil Co. 7 Phil. Pa. R 49
Sherman v. Partridge, 4 Duer 279
Sherman V. Sherman, 18 Texas 506
Sherrington v. Smith, 2 Bro. P. C 263
Shields v. Bryant, 3 Bibb 89
Shillinger v. Shillinger, 14 111 513
Shirley v. Ferrers, 3 P. Wms 295, 296
Shortall v. Mitchell, 57 111 319
Shotwell V. Smith, 20 N. J. Eq 267
Shubrick v. Shubrick, 1 McCord, Ch... 401
Sibert v. McAvoy, 15 111 189
Sibley v. Baker, 23 Mich 390
Sidney v. Sidney, 3 P. Wms 43
Sieveking v Behrens, 2 My. & Craig.. 288
Siffkin V. Manning, 9 Paige, Ch 161
Simes v. Smith, 4 Mad 126
Simmons v. Johnson, 47 111 463
Simms v. Thompson, 1 Bev. Ch 249
Simons v. Guthrie, 9 Cranch 195
Sims v. Lyle, Wash. C. C. R 117
Singleton v. Gale, 8 Porter 65
Singleton v. Singleton, 8 B. Monroe. . . 340
Sisk V. Smith, Admr. 1 Gilm 464, 465
Sizer v. Miller, 9 Paige, Ch 405
Sizer v. Sizer, 9 Paige, Ch 61
Skinner v. Bailey 43, 46
Skinner v. Judson, 8 Conn . . 268, 269
Skinner V. Newberry, 51 111 462
Skinner V. Skinner, 5 Wis 502
Slack v. Wolcott, 3 Mason 241
Slade V. Riggs, 3 Hare 373
Slee v. Manhattan Co. 1 Paige, Ch. 353, 358
Slingsby v. Hale, 1 Ch. Cas 254, 262
Sloan V. Little, 3 Paige, Ch 134
Sloan v. Maxwell, 2 Green, Ch 550
Sloan V Moore, 37 Pa. St. R 341
Slocum V. Marshall, Wash. C. C 550
Sloman v. Kelly, 3 Younge & Coll 133
Small V. Allen, 8 Tenn 549
Small V. Small, 4 Greenl 549
Smedley v. Moore, 26 Wend 320
Smell V. Boudinot, 1 Stockt. N. J 47
Smith y. Babcock, 3 Sumner 164
Smith V. Ballentyne, 10 Paige, Ch 108
Smith V. Barnes, 1 Dick 107
Smith V. Clarke, 4 Paige, Ch 142
Smith V. Collyer, 8 Ves 565
Smith V. Doyle, 46 HI 351
Smith V. Hampton, 13 Texas 320
Smith V. Henry, 15 Iowa 99
Smith V. Hollenbeck, 46 111. S. C. 51 HI. 64
Smith V. Kelley, 27 Maine 359
Smith V. Kornegay, 1 Jones, N. C. Eq. . 102
Smith V. Lasher, 5 Johns. Ch 134
Smith V. Loomis, 1 Halst. Ch 134
Smith V. McConnell, 17 111 535
Smith V. Moore, 26 HI 582
Smith V. Moreland, 6 Jones, N. C. Eq. . 102
Smith V. Newton, 38 m 388
Smith V. Powell, 50 111 46, 251, 614
Smith V. Price, 39 111 565
Smith V. Rotan, 44111 62, 63
Smith V. Sacket, 5 Gilm 63
Smith V. Searle, 14 Ves 152
Smith V. Sheppard, 2 Hey 397
Smith V. Smith, 1 Edw. Ch 618
Smith V. Smith, 4 Paige, Ch 509, 510
Smith V. Smith, 1 Ired. Ch 195
Smith V. Smith, 32 111 372
Smith V. Trimble, 27 111 88
Smith V. Turner, 1 Vern 262
Smith V. Wildham, 37 Conn 670
Smith V. Wilson, 26 111 91
Smythe V. Clay, 1 Bro. P. C 223, 263
Snell V. Stanley, 58 111 389
Snow V. Benton, 28 111 550
Snydam v. Truosdale, 6 McLean 143
Snyder v. Griswold, 37 111 359, 389
Snyder v. Spaulding, 57 111 320
Soheir v. Williams, 1 Curtis 821
Souillard v. Dias, 9 Paige, Ch. 887
TABLE OF CASES CITED.
753
Southard v. Russell, 16 How. U. 8 250
Southern Bank v. Humphreys, 47 111. . . 92
Spear v. Campbell, 4 Scam 62, 65
102, 401
Speight V. Adams, 1 Freeman, Ch 254
Spence v. Duren, 3 Ala 44
Spencer v. Bryan, 9 Ves 127
Spencer v. Van Imsen, 1 Paige, Ch. .. 160
Spencer v. Wray, 1 Vern 226
Spoflford V. Manning, 6 Paige, Ch 99
Spofford V. Manning, 2 Edw. Ch 154
Sprigg V. Bank of Mt. Pleasant, 14 Pet. 351
Spring V. Haines, 21 Maine 372
Spring V. South Carolina Ins. Co. 8
Wheat 291
Springer v. Rossette, 47 111 539
Stacy V. Randall, 17 HI 136, 140
Stafford v. Brown, 4 Paige, Ch. . . . 158, 159
Stafford v. Howlett, 1 Paige, Ch... 164, 165
203, 213
Stafford v. Mott, 3 Paige, Ch 100
Stalling's Admr. r. Goodloe's Exr. 3
Mur 256
Stamps V. Kelley, 22 111 64
Stanberry v. Moore, 56 111 169
Stark V. Hillibut, 19 111 172
Stark V. Starr, 6 Wallace 536
Starke v. Mercer, 3 How. Miss 249
State Bank v. Stanton, 2 Gilm 103
Statham v. Hall, Tur. & Russ 290
St. Clair v. Piatt, Wright 249, 254, 266
Steed V. Baker, 13 Gratt 47
Steegleman V. McBride, 17111 591
Steele v. Gellatly, 41 111 464
Steele v. Magie, 48 111 458
Steere v. Hoagland, 39 111 397, 398
Stephens v. Bichnell, 27 El. . . . 90, 374, 385
Stephens v. Terrell, 3 Monr 167
Sterling V. Sterling, 12 Geo 510
Stevens v. Coffeen, 39 111 200, 201
Stevens v. Guppy, 3 Russ 333
Stevens v. Hay, 15 Ohio 249, 254
Stevenson V. Anderson, 2Ve8. &Bea. 289
Stewart v. East Ind. Co. 2 Vern 103
Stewart V. Howe, 17 111 64
Stewart v. Winters, 4 Sandf. Ch 566
Stewartson V. Stewartson, 15 HI 522
Stillwell V. McNeeley, 1 Green, Ch.... 106
Stockton V. Williams, Barring. Ch 91
Stokes V. Clendon, Swanst 375
St. Louis, A. & T. R. R. Co. v. South,
4SI11 97
Stone V. Anderson, 6 Poster 57
Stone V. rouse,3Cal 338
Stone V. Moore, 26 HI 107, 137
Stone V. Smoot, 39 HI 306
Stooke V. Vincent, 1 Collyer 103
Storms V. Ruggles, 1 Clarke 401
Story V.Livingston, 13 Pet.. 62,65,183, 186
Story V. Moon. 8 Dana 339
48
Story V. Norwick & Wcs. B. R. Co. 34
Conn 834
Story V. Randall, 17 111 133
Stouffer V. Machen, 16 111 142
Stout V. Cook, 37 Hi 635, 538
Stow V. Robinson, 24 111 320
Stowe V. RuBsell, 36 HI 47, 99
Stowe V. Steele, 45 111 458, 477
Strader v. Byrd, 7 Ham 250
Strafford v. Ilogan, 2 Ball, and Beatt.. . 133
Strang V. Allen, 44 111 183, 353
Strange v. Longlcy, 3 Barb. Ch 401
Strawn v. Strawn, 46 111 458, 467
Strawn v. Strawn, 50 111 477
Stribling v. Robs, 16111 457, 462
Strickland v. Strickland, 12 Sim 166
Strickland v. Towler, 1 Dev. & Bat. Ch. 320
Striker v. Mott, 2 Paige, Ch 427
Strong T. Clawson, 5 Gilm 338
Strong V. Downing, 34 Ind 63
Stuart V. Coalter, 4 Rand 48
Stuart V. M. & T. Bank, 18 Johns 195
Stuart V. Worrall, 1 Bro. C. C 368
Sullivan v. Finnegan, 101 Mass 537
Sullivan v. Sullivan, 42 111. 88, 145, 443, 445
Sullivan v. Sullivan, 2 Add. 2 Eng. Eccl.
R 517
Sullivan v. Tuck, 1 Md. Ch. Decis 322
Summers v. Babb, 13 HI 458, 46a
Sumrall v. Ryan, 1 J. J. Marsh 166
Supervisors Fulton Co. v. M. & W. R. R.
Co. 21 HI 134, 138
Supervisors v. States Attorney, 81 111.. 48
49
Snrget v. Byers, 1 Hemp 43, 4%
Surrey V. Waltham, 2 Anst 283,288
Surtser V. Skiles, 3 Gilm 102
Sutherland v. Ryerson, 24 111 575, 591
Sutphen v. Cushman, 35 HI 183, 351
Sutton V. Gatewood, 6 Munf 108
Suydam v. Beals, 4 McLean 898
Swift V. Allen, 55 111 197
Swift V. Eckf ord, 6 Paige, Ch 60
Swift V. Swift, 13 Geo 184
Sydolf V. Monkston, 2 Dick 169
Taintor v. Keyes, 43 HI 861
Talbot v. McGhee, 4 Monr 818
Talbot V. Todd, 7 J. J. Marsh 197
Tallmadge v. Lovett, 3 Edw. Ch 105
Talmage v. Pell, 9 Paige, Ch 813, 316
Tanner V. Hicks, 4 S. & M. R 164
Tappan v. Evans, 12 N. H 210
Tarbell v. Bowman, 103 Mass 103, 136
Tarleton v. Viotes, 1 Gilm 107, 306
Tasker v. Small, 3 Mylne & Craig. 326
Taylor v. Luther, 2 Sumner 1S5, 140
\
754
TABLE OF CASES CITED.
Taylor v. Merchant's Fire Ins. Co. 9
How. U.S 322
Taylor v. Merrill, 55 111 317, 318
Taylor v. Person, 2 Hawks 256
Taylor v. Porter, 7 Mass 359
Taylor v. Taylor, 1 Mac. & Gord. 218, 254
Taylor V. Taylor, 8 How. U. S 560
Taylor v. Titus, 2 Edw. Ch 306
Temple v. Lawson, 19 Ark 280
Teunent v. Patton, 6 Leigh 197
Thanet v. Paterson, Barnard 283
Thayer v. Lane, Harring. Ch 44, 425
Thayer v. Thayer, 101 Mass 492
The Bank, etc. v. Dunyan, 2 Bland 401
The Farmers' Loan & T. Co. v. Sey-
mour, 5 Paige, Ch. R 242
Theirman v. Roland, 3 Harris 320
The Justices v. Croft, 18 Geo 322
The People v. City of Galesburg, 48 111. 103
The People v. Cloud, 50 111 97
Thomas v. Brashear, 4 Monr 107, 127
Thomas v. Caldwell, 50 111 46
Thomas v. County of Morgan, 39 El... 196
Thomas v. Harvie's Heire, 10 Wheat.254, 255
Thomas V. Morris, 57 111 89
Thomas v. Thomas, 51 111. 492, 497, 506. 514
Thomas v. Warner, 15 Vt 46
Thomas Trustee v. Adams, 30 111. 65, 103, 401
Thomason V. Smithson, 7 Porter... 57, 58
Thompson v. Baskerville, 3 Ch. R 356
Thompson v. Bruen, 46 111 318
Thompson v. Dudley, 3 Edw. Ch. 226
Thompson v. Ebbets, Hopk. Ch.. 280, 291
Thompson v. Kyuer, 65 Penn. St 550
Thompson v. Nixon, 3 Edw. Ch. . . 398, 399
Thornberry v. Thornberry, 4 Litt 532
Thorne v. Ilalsey, 7 Johns. Ch 560
Thorpe V. Macauley, 5 Mad 299
Thuiman v. Sheldon, 10 Yerger 48, 102
Tibbs V. Allen, 27 111. . 144, 145, 443, 444, 451
Tidd V. Clare, Dick 99, 106
Tiernan v. Poor, 1 Gill & J 43
Tilford V. Henderson, 1 A. K. Marsh. . . 51
Tillson V. Moulton, 23 111 351
Tilton V. Tilton, 9 New Hamp 44
Tingley v. Cowgill, 48 Mo 548, 549
Tinlcy v. Bank of U. S. 11 Wheat 373
Tirrell v. Cox, 1 Rol. Abr 299
Tittsworth v. Stout, 49 HI. . . . 138, 306, 4.38
Titus V. Mabce, 25 111 615
Tobey v. County of Bristol, 3 Story. . . 318
Todar v. Saneam, 7 Bro. P. C 200
Toddv. Gee,17Ves 100
Todd V. Lackey, 1 Litt 251
Todd V. Laughlin, 3 A. K. Marsh 251
Tomlinson v. McKaig, 5 Gill 253
Tompkins v. Wiltberger, 56 111 76, 92
Tonkin V. Letherbridge, Coop. R. 206, 212
242
Torrent v. Browning, 22 Mich 536
Town of Tamarora v. Normal Univer-
sity, 54111 94, 95, 103, 104
Townsend V. Camperdown, 9 Trice ... 325
Townsend v. Griggs, 2 Scam 76
Townsend v. Townsend, 21 111 80
Townshend v. Duncan, 2 Bland 45, 46
Tradesman's Bank v. Hyatt, 2 Edw. Ch. 134
Trailar v. Hill, 2 Gilm 225
Traip v. Gould, 15 Maine 269
Travis v. Waters, 1 Johns 197
Treadwell v. Brown, 44 N. H 100
Tripp V. Vincent, 8 Paige, Ch. R 251
Troughton v. Binkes, 8 Ves 355
Trout V. Emmons, 29111 142
Trowbridge v. Carlin, 12 La. An 502
True V. Haley, 2i Maine 355
Truett V. Warnwright, 4 Gilm 103
Trumbull v. Trumbull, 23 Ark 509
Turbitt V. Turbitt, 21 111 502
Turleton v. Vietes, 1 Gilm 138
Turner v. Adams, 46 Mo 397
Turner v. Berry, 3 Gilm. . 210, 251, 252, 254
259
Turner v. Clay, 3 Bibb 318
Turner v. Crebill, 1 Ham 197
Turner v. Dickerson, 1 Stockt. N. J. . . 269
Turner v. Hand, 3 Wall, Jr 550
Turner v. Turner, 44 Ala 532
Turney v. Saunders, 4 Scam 578, 581
Turpin v. Bauton, Hardin 324
Turst V. Turst, 2 Lee 517
Tuttle V. Garrett, 16 111 144
Twyman v. Twyman, 27 Mo 509
Tyns V. Bust, 37 Geo 281, 283
Tyson V. Watts, 1 Md. Ch. Decis 3!8
U
Union Bank V. Geary, 5 Pet 142
Union Ins. Co. v. Van Rensselaer, 4
Paige, Ch 376
U. S. V. Stm-ges, 1 Paine's R, 397
United States v. Sampeyas, 1 Hemp.. . 249
United States Bank v. Saline Bank, 1
Pet.: 268
United States Bank v. Shultz, 3 Ham.
43, 44
University Col. v. Foxcroft, 2 Chan R. 233
Upham V. Brooks, 2 W. & M . . 352
Urlin V. Hudson, 1 Vcrn 126
Urmston v. Singleton, cited in Seaton
on Decrees 335
Utslerv. Utsler, Wright, Ch. 506
V
Vail V. Nelson, 4 Rand 319
Valleau v. Valleau. 6 Paige, Ch 492
Van Antwerp v. Hulburd, 8 Blatchf . U.
S.O. C 44
TABLE OF CASES CITED.
755
Van Cleef v. Sickles, 5 Paige, Ch. . 401, 405
Van Court V. BuBhnell, 21 HI 578, 580
Vandcrveer v. Holcomb, 21 N. J. Eq... 312
Vane v. Barnard, 1 Salk 564
Van Epps v. Van Epps, 6 Barb. N. Y.. 492
Vanhorn v. Duckworth, 7 Ired. Ch 105
Van Horn v. Keenan, 28 111 550
Vanmeter v. Vanmeter, 3 Gratt. Va 197
Van Pelt v. Dunford, 58 111 582
Van Rensselaer v. Price, 4 Paige, Ch.. 161
Van Sandon v. Moore, 11 Ves 138
Vansant v. Allmon, US 111. 371, 372, 376, 385
Vansendan v. Rose, 2 Jac. & W 565
Van Syckel v. Richardson, 13 111 397
Vanzant v. Vanzant, 23 111 511
Varick v. Dodge, 9 Paige, Ch. 114, 115, 149
Varick v. Smith, 5 Paige, Ch. . . . 47, 49, 101
Varm v. Harget, 2 Dev. & Bat 50
Vasser v. Vasser, 23 Miss 323
Vanghanv. Fitzgerald, ISch.i&Lef. 297, 299
Vcazie v. Williams, 3 Story 204
Vennum v. Davis, 35 111 268
Vere V. Glynn, 2 Dick 165
Vermillian v. Bailey, 27 111 340
Vermilyea v. Fulton Bank, 1 Paige, Ch. 144
Vermilyea v. Odell, 4 Paige, Ch 172
Verplank v. Caines, 1 Johns. Ch 98
Verplank v. The M. Ins. Co. 1 Ed. Ch.
165, 166, 167, 168
Vertner v. Griffiths, Walker 166, 167
Very v. Levy, 13 How. U. S 47
Vlcary v. Widger, 1 Sim 288
Vieley v. Thompson, 44 111 45, 104
Vigers v. Lord Audley, 9 Sim. 207, 214, 219
230
Vignos V. Vignos, 15 111 502
Vining v. Leeman, 45 111 47
Von Glahn v. Von Glahn, 39 111. 502, 512
523
Von Glahn v. Von Glahn, 46 111 196
Voorhees v. Demeyer, 2 Barb. R 321
Vose v. Philbrick, 3 Story 42
Vroom V. Ditmas, 4 Paige, Ch 201, 358
w
Wabash & Erie Canal Co. v. Beers, 2
Black, U. S. R 401
Waddams v. Humphrey, 22 HI ... 189, 190
Wagoner v. Speck, 3 Ham 398
Wagstaff V. Bryan, 1 Russ. & My . . 161, 235
Wakeman v. Grover, 4 Paige, Ch. 134, 400
401, 403
Walburn v. Ingilby, 1 Mylne & Keene. 47
Walden v. Brady, 14 Pet 166
Waldron v. Waldron, 5 P. E. Smith, Pa. 533
Wales v. Bank of Michigan, Barring.
Ch 107
Waif ord v. Phelps, 2 J. J. Marsh 102
Walker V. Cary, 53111. 187,198
Walker v. Devereaux, 4 Paige, Ch... 58, 69
Walker v. Gilbert, 7 S. & M 203
Walker V. Ilallett, 1 Ala 164,210
Walker v. Laflin, 26 HI 425
Walker v. Taylor, 42 Ala 49
Walker v. Walker, 3 Kelly 134
Wall V. Stubbs, 2 Ves. &B 120
Wallace v. Ilawley, 4 J. J. Marsh 65
Wallace v. McLaughlin, 57 111 321
Waller V. Taylor, 42 Ala 102
Wallwork v. Derby, 40 111 56, 140, 141
Walsh v.Reis, 50 111 477
Walsh V. Smythe, 3 Bland 168, 169
Walton V. Crowley, 14 Wend 351
Walton V. Van Mater, Halst. Dig 193
Walts V. Waddle, 6 Pet 319
Walworth v. Holt, 4 Milne & Craig. ... 341
Ward V. Davidson, 2 J. J. Marsh 313
Ward V.Dewey, 16 N. Y 536
Ward V. Jewett, Walker 88
Ward V. Owens, 12 111 187
Warner V. Campbell, 26 111 175
Warner v. Hilm, 1 Gilm 385
Warner v. Tomlinson, 1 Root 196
Warren v. Richmond, 53 111 47, 319
Warren v. Warren, 56 Maine 49
Warring v. Mackreth, Forrest, Ex. Rep. 273
Warrington v. Wheatstone, 1 Jac. 283, 388
Washburn v. Dewey, 17 Vt 323
Washburn v. Washburn, 5 N. H 493
Washington etc. Road v. State, 19 Md.. 99
Waters v. Brown, 7 J. J. Marsh 321
W aters v. Glan ville, Gilb. R 132
Waters v. Howard, 1 Md. Ch. Decis.... 322
Waters v. Taylor, 2 Ves. & B 340, 341
Waters v. Taylor, 15 Ves 340
Waters v. Travis, 9 Johns. R 320
Watkins v. Bush, 2 Dick 107
Watkyns V. Watkyns, 2 Atk 43
Watson V. Cox, 1 Ired. Ch 50
Watson V. Hunter, 5 Johns. Ch 565
Watts V. Crawford, 11 Paige, Ch 205
Watts V. Lawrence, 3 Paige, Ch 96
Watts V. Waddle, 6 Pet 321
Waugelin v. Goe, 50 111. . 88, 95, 98, 103, 108
615
Waugh V. Robbins, 33 111 44
Weaver v. Wilson, 48 111 388
Webb v. A. M. & P. Ins. Co. 5 Gilm. 172, 177
Webb V. Pell, 3 Paige, Ch. R...251, 252, 255
256, 265
Webster v. Fol.«om, 58 Maine 398, 402
Webster v. French, 11 111 63, 327
Webster v. Webster, 55 111 44
Weed V. Pierce, 9 Cow 398
Weed V. Terry, 2 Doug 322
Weider v. Clark, 27 111 143
Weirick v. De Zoya, 2 Gilm 47
Wellesly v. Wellesly, 17 Sim 218
Welsh v. Bayard, 21 N. J. Eq SS6
r56
TABLE OF CASES CITED.
Welsh V. Byrns, 38 Dl 612, 614
Welsh V. Lewis, 31 111 241
Wells V. Wood. 10 Ves 152
Welton V. Copelaud, 7 Johns. Ch 427
Wendell v. New Hampshire Bank, 9 N.
H 359
Wener v. Heintz, 17 111 285
West V. Fleming, 18111 575, 581
West V. Hall, 3 Har. & J 46
West V. McCarty, 4 Blackf 397
West V. Randall, 2 Mason 49, 63
West V. Schucbly, 54 111 47, 536
West V. Williams, 1 Md. Ch. Decis 158
West. Un. Teleg. Co. v. P. & A. Teleg.
Co. 49 111 80, 313, 316
West y. Walker, 6 Blackf 557
Westcott V. Cady, 5 Johns. Ch. R 246
Westcott V. Minn. Mining Co. 23 Mich. 62
Wetherell v. Collins, 3 Mad 357-358
Wetherell v. Ohlendorf , 61 111 580
Wetherf ord v. James, 2 Ala 197
Wheeler v. Kinzie, 49 111 466
Wheeler v. Trotter, 3 Swanst 43
Wheeler v. Wheeler, 18 111 523, 533
Whispell V. Whispell, 4 Barb 509, 526
Whistler v. Webb, Bumb 357
WTiitcomb v. Golding, 2 P. Wms 61
Whitcomb v. Murchin, 5 Mad 206
White V. Buloid, 2 Paige, Ch.. 307, 312, 314
316
White V. Delschneider, 1 Oregon 102
White V. Hoflfackcr, 27 111 182
White V. Law, 7 Vt 318
White V. Lewis, 2 A. K. Marsh 45
White V. Morrison, 11 111... 44, 89, 170, 187
White V. White, 45 N. H 514
White V. Yaw, 7 Vt 43, 44
Whitehurst v. Coleen, 53 HI 37
Whitemarsh v. Campbell, 1 Paige,
Ch 161, 165, 168
Whitenack v. Stryker, 1 Green, Ch 550
Whiteside v. Pulliam, 25 111 183
Whiting V. Bank of U. S. 13 Pet. 197, 250, 252
Whiting V. Rush, 2 Younge & Coll 153
Whiting V. White, Coop 353
Whitney v. Mayo, 15 111 62, 63
Whitney v. McKenney, 7 Johns. Ch.. . 373
Whitney v. Whitney, 5 Dana 50
Whittaker v. Degraflfenreid, 6 Ala 45
Whittingham v. Burgoyne, 3 Anst 104
Wichalse v. Short, 3 Bro. P. L 127
Wickley v. Thompson, 44 111 94
Wiggin V. Mayor, etc. 9 Paige, Ch 46
Wightmanv. Hart, 37 111 142
Wightman v. Hatch, 17 111 398, 400
Wigley V. Whitaker, 1 Beavan 315
Wilber V. Collier, 1 Clarke 166
Wilbur V. Almy, 12 How. U. S 373
Wilbur V. Collier, 1 Clarke 404
Wilday v. Webster, 42 111 56, 142
Wiley V. Platter, 17 HI 3ia
Wiley V. Sutherland, 41 HI. 613
Wilford V. Beaseley, 3 Atk 194
Wilkes V. Rogers, 6 J ohns. Ch 43, 186-
Wilkinson v. Beal, 4 Mad 57
Wilkinson v. Lovell, 2 Dick 234
Wilkinson v. Yale, 6 McLean 397, 39&
Willard v. Taylor, 8 Wallace 326
Willenborg v. Murphy, 36 111. . . 56, 140, 141
Willetts V. Burgess, 34 111 350
Willhite V. Pierce, 47 111 89, 182, 187
Williams v. Bishop, 15 111 189, 190
Williams v. Chapman, 17 111.. . 576, 583, 591
Williams v. Cooke, 10 Ves. R 227
Williams v. Mattocks, 3 Vt 32(y
Williams v. Soulier, 55 111 130
Williams V. Springfield, 1 Vem 358
Williams v. Stewart, 3 Meriv 99-
Williams v. Wiggand, 53 111 426, 42f
Williamson V. Champlin, 1 Clarke 375
Williamson v. New Albany & S. R. R.
Co. 2 Red. Railw 371
Williamson v. Williamson, 1 Johns. Ch. 509
Williamson V.Wilson, 1 Bland. 340, 342, 401
Willis r. Henderson, 4 Scam... 56, 63, 140-
141
Wilson V. Geislcr, 19 111 385
Wilson V. Greathouse, 1 Scam 75
Wilson V. Greenwood, 1 Swanst 340
Wilson V. Lussen, 5 Cal 338
Wilson V. Nettleton, 12 111 96
Wilson v. Webb, 2 Cox 254
Wilson V. Wilson, 23 Md 102
Wilson V. Wilson, Wright, O. Ch 511
Wilson V. Wilson, 2 Hagg. Ch. R 517
Windham v. Windham, Freem 200
Windsor v. Windsor, 2 Dick 58
Winkler V. Winkler, 40 HI. 45, 46, 103, 614
Winn V. Albert, 2 Md. Ch. Decis 210
Winnipiseogee Lake Co. v. Worster, 9
Foster 42
Winslow V. Newlan, 45 111 177
Winston v. Johnson, 2 Mnnf 253, 254
Wise V. Twiss, 54 111 164, 166
Wiser v. Blackley, 2 Johns. Ch. R. 249. 250
253, 256
Wisner V. Barnet, 4 Wash. C. C... 99, 102
Witeman v. Witeman, 45 HI 523
Witherspoon v. Carmichael, 6 Ired. Eq. 47
Wolf V. Wolf, Wright, Ch 514
Wolfe V. Wolfe, 3 Har. & J 133
Wood V. Beadel, 3 Sim 59
Wood V. Genet, 8 Paige, Ch 44
Wood V. Gosa, 24111 96
Wood V. Keyes, 6 Paige, Ch 201
Wood V. Mann, 1 Sumner 115, 135, 161
Wood V. Mann, 2 Sumner 254
Wood V. Morrell, 1 Johns. Ch 134
Wood V. Rowe, 2Bligh... 114
Wood V. Scott, 14 Vt 65
TABLE OF CASES CITED.
Wood V. Strickland, 2 Vee. & B 131
Wood V. Wood, 2 Paige, Ch 518
Wood V. Wood, Sired. Eq 510
Woodsidc V. Woodside, 21 111 190
Woodward v. Aatley, Bund 95
Woodward v. Harris, 2 Barb. R 321
Woodward v. Schatzell, 3 Johns. Ch... 560
Woodward v. Woodward, 1 Dick 205
Woodworth V. Huntoon, 40 111 195
Wooley V. Stone, 7 J. J. Marsh 397
WooUey v. Magie, 26 111 458
WooHter V. Woodhull. 1 Johns. Ch. . . . 90
Woots V. Tucker, 2 Vern 263, 265
Worthington v. Lee, 2 Bland 154
Wray v. Hutchinson, 2 Mylne & Keene 303
Wray v. Wray, 19 Ala 492
Wray v. Wray, 33 Ala 492
Wright V. Atkyns, 1 Ves. & B 59
Wright V. Bates, 13 Vt 358
Wright V. Bond, 11 Ves 334
Wright V. Dane, 22 Pick 42, 44, 45
Wright V. Howard, 6 Mad 164
Wright T. Langley, 36 111 374
Wright V. McNeely, 11 111 327
Wright T. Wright, 3 Texas 608
Wych V. Meal, 3 P. Wms 103
Wylder v. Crane, 53 111 ... 66, 108, 141, 162
Wynkook V. Cowing, 21I1L 142
Wynn v. Morgan, 7 Vea 834
Wynn V. Smith, 40 Geo 817
Wynne V. Jackson, 1 McClel. & Yonngo. 100
Y
Yarborough v. Thompson, 3 S. & M.. . 279
Yates V. Monroe, 13 111. .. 251, 253, 267, 278
Yates V. Tisdale, 3 Edw. Ch 280, 288
Young V. Keighly, 16 Ves 254
Young V. Overseers, etc. 2 Green, N. J. 312
Young V. Young, 4 Mass 493
Youngblood v. Scamp, 3 S. & M 61
Younge v. Forgey, 4 Hey w 251
z
Zoll V. Campbell. 3 W. Va t70
TABLE OF ADDITIONAL CASES CITED IN SECOND EDITION.
A
Adams v. Adame, 79 111 570
Adams v. Robertson, 40 111 657
Adams v. Russell, 85 111 611
Addix V. Fahnestock, 15 111 654
Adlard v Adlard. 65 111 140
Alley V. Supervisors. 76 111 281
Ambre v. Weishaar, 74' 111 548
Ambrose v. Weed, 11 111 659
Andrews v. Andrews. 69 111 524
Andrews v. Knox Co., 70 111 141
Angles V. Angles, 81 111 492
Armstrong v. The People, 74 111 658
Attorney General v. 111. Agr. College,
85 111 570
Austin v. Bainer, 40 111 674, 675, 677
B
Babbitt v. Babbitt, 69 El 526
Baker v. Palmer, 83 111 38
Ballance v. Leonard, 40 111 663, 679
Barnes v. Bragg, 70 111 164
Bassett v. Bratton, 86 111 559
Bast V. Bast, 82 111 492
Becker v. Becker, 79 111 524
Bentley v. Lill, 40 111 686
Berdell v. Berdell, 80 111 503
Bergen v. Riggs, 40 111 664, 679
Bertrand v. Taylor, 87 111 661
Biggs V. Clapp, 74 111 611
Bills V. Stanton, 69 111 694
Black v. Lusk, 69 III 89
Blackberry v. The People, 5 Gilm. 655, 659
Blake v. Blake, 70 111 492 ; 80 111 517
Board of Ed. v. Neidenbergcr, 78 111 ... 575
Bostwick v. Williams, 40 111 681
Bouton v. Supervisors, 84 111 575
Bowers v. Green, 1 Scam 647
Boyle V. Carter, 24 111 695
Boyle V. Levings, 28 111 661
Boynton v. Champlin, 40 111. 674, 679, 680, 701
Breaton v. Johnson, 1 Bradwell's App.
Ct. R 650
Bressler v. McCune. 56 111 663
Bridge Co. v. L. N. A. & St. L. Ry. Co.,
72111 611
Bristol v. City of Chicago. 21 111 672
Brizzolari v. Mosher, 71 111 537
Brockenbrough v. Dresser, 67 111 187
Brooks V. Bruyn, 40 111 664, 679
Brooks V. Kerns, 86 111 525
Brown v. Lowell. 79 111 611
Bryant v. The People, 71 111 653
Burham v. Lamar Ins. Co., 79 111 422
Bumap V. Wight, 14 111 648
Butterworth v. Brown, 26 111 683
C
Cable V. Ellis, 86 111 395. 673
Cameron v. Savage, 40 111 652, 681
Carpenter v. Calvert, 83 111 550
Carr v. Miner, 40 111 654, 655
758
TABLE OF CASES CITED.
C. B. & Q. R.R. Co. V. Lee, 68 111 663
Chamblin v. Blair, 58 111 675
Chavis V. Reed, -lO 111 683
Cheeney v. City Nut. Bank, 77 111 695
Chestnut v. Chestnut. 77 111 534
C. & A. R.R. Co. V. R. R. I. & St. L.
R.R. Co. 72 III 683
City of Chit-asro v. Valcum Iron Works,
2 Bradu ell's App. Ct. R 640, 641
Clark V. Manning, 90 111 579
Clark V. Marfleld, 77 111. . . . 77, 192, 193, 647
Clarke v. Bell, 2 Litt 671
Clement v. Newton, 78 111 581
Cogswell V. Armstrong, 77 111 279, 281
Colby V. Small, 40 111 658
Commissioners v. The People, 31 111. .. 661
Comstock V. Ilitt. 40 111 687
Confrey v. Stark, 73 111 685
Convey v. Sheldon, 1 Bradweirs App.
Ct. R 695
Conwell V. Watkins, 71 111 65, 539, 546
Corbus V. Teed, 69 111 171, 335
Cornelius v. Coons, Breese 638
Corwin V. Shoup, 7o 111. 675
Coarsen v. Browning, 86 111 694
Coursen v. Hixon, 78 111 671
Cox V. City of Tuscola, 2 Bradwell's
App. Ct. R 670
Crain v. Kennedy. 85 111 102
Crowl V. Nagle, 86 111 581
Crull V. Keener. 17 111 638, 646
Culver V. Elwell, 73 111 581, 611
Cunningham V. Craig, 53 111 661
Cunningham v. Ferry, 74 111 611
Cunningham V. Loomis, 17 111 638
Curtis V. Baugh, 90 111 673
D
Davidson V. Bond, 12 111 647
Davis V. Conn. M. Life Ins. Co., 84 111.. 611
Deenis v. Deenis, 79 111 524
Delahay v. McConnel, 4 Scam 700
De Leu w v. Neeley, 71 111 89, 395
Dickerson v. Hendryx, 88 111 672
Dickman v. Wood, 69 111 395
Dickson v. C. B. & Q. R.R. Co., 81 111. . 673
Dinet v. Eigenmann, 80 111 . . . 524
Dinet v. Pfirshing, 86 111 517, 674
Dobschuets v. Holliday, 82 111 578
Dowden v. Wilson, 71 111 395
Drew v. Mason, 81 111 511
Dukes v. Rowley. 24 111 660
Dunham v. City of Chicago, 55 111 660
Dunham v. Hyde Park, 75 111 99
Dunphey v. Riddle, 86 111 611
Dutch v. Edwards, 1 Scam ... 695
E
Eaton v. Sanders, 43 111 663
EdwardB v. Evans, 61 Ul 696
Elder v. Jones, 85 111 64
Emmons v. Moore, 85 111 538, 570
Emerson V. W. U. R.R. Co., 75 111 115
Erickson v. Rafferty, 79 111 164
F
Farnham v. Famham, 73 111 503, 509
Fellers v. Rainey, 82 III 251
Ferris V. McClure. 40 111 663
Field V. The People, 2 Scam 633
Fight V. Hall, 80 111 452
First Baptist Church v. Andrews, 87 111.
611, 696
Fitch V. Lathrop. 2 Root 671
Fix V. Quinn, 75 111 671
Flagle V. Crow, 40 111 664
Fleese v. Russell, 13 111 638
Fleming v. Carter. 87 111 317
Fonville v. Sau sser, 73 111 647
Foreman v. Stickney, 77 111 144, 256
Franey v. True, 26 111 661
Freeborn v. Denman, 2 Halst 671
Frink v. Phelps. 4 Scam 655, 657
Fuller V. Little. 61 111 701
Fuller V. Robb, 26 111 647
G
Gage V. Eich, 56 HI 638
Gage V. Rohrbach, 56 111 6:i8
Gale V. Kinzie. 80 HI 458, 478
Garden City Ins. Co. v. Stagart, 79 111. . 663
Gardner v. Diedrich. 40 111 679
Gecura v. Dean, 40 111 664
Gibbs V. Blackwell, 40 111. 651, 665, 671, 674
679, 680
Gilbert v. Maggard, 1 Scam 672
Gillespie v. Rout. 40 111 686
Gochenour v. Mowry, 40 111 686
Goodman v. Jones, 26 Conn 186
Goodrich v. Cook, 86 111 664
Gould V. Steinbury. 84 111 422. 5.37
Grandeis v. Hartwell. 90 111 583, 591
Gregg V. Brower. 67 111 164, 193
Greenbaum v. Austrian. 79 111 478
Greenleaf v. Beebe. 80 111 581
Groves v. Webber, 73 111 538
Gunnell v. Cockerill, 84 111 57
H
Haas V. Chicago Building Co., 89 111. . . . 395
Hahn V. Huber, m 111 189, 373
Hall V. FuUerton, 69 HI 448
Hall V. Hamilton. 74 111 675
Hall V. Jones, 32 111 675
Hall V. Thode. 75 111 638, 647
Hancock v. Harper. 86 111 352
Hanford v. Blessing, 80 111 395
Harding v. Jones, 86 111 535
Harding v. Larkin, 4i 111 645, 663
Hards v. Burton, 79 111. . . . 371, 372, 395, 43T
TABLE OF CASES CITED.
759
Harper v. Ely, 70 111 358
Harrison v. Siugleton, 2 Scam 638
Hartman v. Belleville & O. F. R.R. Co.
64 111 647
Ilartshorn v. Dawson, 2 Bradwell's
App. Ct. R 64u, 041
Haskell v. Brown, 65 III 152
Hatfield v. Fowler, 60 111 673
Havinghorst v. Lindberg, 67 111 647
Hawhe v. Snydaker, 86 111 388, 390
Haworth V. Uuling, 87 111 395
Hay V. Hayes, 56 111 661
Hayes v. Caldwell, 5 Gilm 6:^8
Heald V. Wright, 75 111 352
Heath v. Hurless, 73 111 279
Hedges v. Mace, 73 111 76
Hellinan v. Schneider, 75 111 281
Hemiup, in the matter of, 3 Paige Ch. . 186
Ilenrichsen v. Hodgen, 67 111 425
Henrickson v. Van Winkle, 21 111 675
Hickman v. Haines, 5 Gilm 656
Iliggins V. Curtis, 82 111 422
Hitt V. Scammon, 82 111 478
Hoag V. Starr, 69 111 389
Hob!<on V. Paine, 40 111 637
Hochlander v. Hochlander, 73 111 74, 75
Hoigv. Sharp, 84 111 251
Holbrook v. Nichol, 40 111 681
Holden v. Herkimer, 53 111 ... . 637, 683, 686
Hollowbush V. McConnel, 12 111 700
Holt V. Rees, 46 111 675
Hopkins v. Snedaker, 71 111 57
Horn V. Neu, 63 II! 661
Howell V. Barrett, 3 Gilm 695
Hoyt V. Tuxbury, 70 111 165
Hundley v. Commissioners etc., 67 111.. 634
Hunter v. Hatch, 45 111 696
I
111. B. Society v. Baldwin, 86 HI 673
111. Cent. R.R. Co. v. Garish, 40 111. 666, 679
111. Cent. R.R. Co. v. Parks. 88 111. . . . 373
111. L. L. Co. V. Bonner, 75 111 452
Israel v. Town of Whitehall, 2 Brad-
well's App. Ct. R 683
J
Jackson v. Warren, 32 HI 672
Jefferson v. Kennard, 77 111 141
Jenkins v. Doolittle, 69 111 .' 570
Jenkins v. Jenkins, 86 111 492
Johnson v. Estabrook. 84 111 611
Johnston v. Bancock. 38 111 682
Johnston v. Maples, 49 111 673
Jones V. Kennicott, 83 111 557
Jones V. Neely, 72 HI 199
Jimes V. Sprague, 2 Scam 680
Jones V. Wright, 4 Scam 647
Judson V. Stephens, 75 111 99, 252, 578
K
Keel V. Bentley, 15 111 638
Kelleher v. Tisdale, 23 111 683
Keller v. Brickley, 63 111 660
Kelly V. Kellogg, 79 111 511, 683
Kendall v. Liuibrrg. (,i) 111 181
Kennedy v. Kennedy, 66 111. 647, 87 111.. 497
Kerfoot v. Brcckcuridge, 87 111 317
Kern v. Zink, .55 111 675, 676
Kingsbury v. Buckner. 70 111 452
Klock V. Walter, 70 111 395
Knowles v. Knowles, 86 111 352
Kolb V. O'Brien, 86 111 210
L
Labidie v. Hewitt, 85 111 425, 452
Lampsett v Whitney, 3 Scam 700
Langston v. Bates. 84 111 324
Larrison v. P. A. & D. R.R. Co., 77 111. 143
Lawrence v. Fast, 20 111 660
Lawrence v. Lawrence, 73 111 92
Lazell V. Francis, 4 Scam 695
LeMoyne v. Quimby . 70 111 452
Lcufers v. Henke, 73 111 478
Lewis V. Lamphere, 79 111 422
Lombard v. Kinzie, 73 111 478
Long V. Barker, 85 111 281
Lowry v. Bryant, 2 Scam 655
L. S. & M. S. R.R. Co. V. McMillan, 84
III 599, 672
Lncas v. Farrington, 21 111 661
Lunt V. Stephens, 75 111 581, 583
M
Mack V. Brown, 73 111 75, 77
ISIahcr v. Laiifrom. 86 111 .395
Marlow v. Marlow, 77 111 570
Marseilles Land Co. v. Aldrich, 86 111. 6a3. 684
Marsh v. Green. 79 111 164, 373, 374
Martin v. Gilmore, 72 111 9>
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.)
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