UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A MANUAL 
 
 Equity Pleading 
 
 Practice. 
 
 B. M. THOMPSON. 
 
 Jay Professor of Law in Michigan University. 
 
 DETROIT: 
 
 FREE PRESS PRINTING COMPANY. 
 
 1889.
 
 T 
 
 Entered according to Act of Congress, in the year 1889, by 
 
 BRADLEY M. THOMPSON, 
 in the Office of the Librarian of Congress, at Washington. 
 
 / 
 
 tr, t
 
 r 
 
 TO THE STUDENTS OF THE LAW DEPARTMENT 
 OF MICHIGAN UNIVERSITY. 
 
 The following manual is intended simply as an 
 introduction to the study of Equity Pleading and 
 Practice, and to the course of lectures delivered 
 upon that subject. The manual has been divided 
 into lectures for the purpose of indicating the ground 
 which a particular lecture will cover. It is expected 
 that the student will master the printed synopsis 
 before attending a driven lecture. The lectures will 
 not be confined to the synopsis, and the class will 
 be quizzed and examined, both upon the manual, 
 and the lectures as actually delivered. The court 
 rules are to be considered a part of the manual, 
 and are to be studied in connection with the lec- 
 tures. 
 
 The work in the equity Moot Courts cannot be 
 successfully performed without a careful study of 
 the court rules. Under the Michigan rules will be 
 found references to the decisions of this State con- 
 struing; them. The United States rules have the
 
 IV INTRODUCTORY. 
 
 valuable annotations of Walter S. Harsha, Clerk 
 
 of the United States Circuit Court for the Eastern 
 
 District of Michigan. Mr. Harsha very generously 
 
 placed these annotations at my disposal, and they 
 
 are taken bodily from his Annotated Federal Court 
 
 Rules, a work indispensable to the practitioner in 
 
 the United States Courts. 
 
 B. M. Thompson. 
 
 Michigan Universitt, 
 October 1, 1889.
 
 A SUIT IN EQUITY. 
 
 The jurisprudence of the United States, and of 
 many of the several states, is divided into two depart- 
 ments, Common Law, and Equity. These two depart- 
 ments grew up side by side in England and came to 
 us as a part of our fatherland inheritance. The powers 
 of the High Court of Chancery in England and the 
 principles upon which it administered justice at the 
 time of the revolution, except so far as they have 
 since been modified by statute, or are inapplicable 
 to our institutions, are still in force in the United 
 States and the several states. We shall hereafter treat 
 of the jurisdiction of the Court of Equity. We pro- 
 pose first to examine the method of conducting busi- 
 ness in that court. We shall be able to do this more 
 satisfactorily b}' giving a sketch of a suit in equity 
 from its commencement to its close, under the present 
 practice of the United States Circuit Courts and the 
 Circuit Courts of this state. 
 
 COMMENCEMENT IN A SUIT OF EQUITY. 
 
 A suit in equity is commenced by filing in the court 
 having jurisdiction of the cause and the parties, a bill 
 or petition setting forth in a full, clear and methodical 
 l
 
 2 A SUIT IN EQUITY. 
 
 manner, the facts and circumstances upon which the 
 complainant bases his claim for aid and relief, and 
 praying that he may be given such relief as he believes 
 he is entitled to or as is agreeable to equity and good 
 conscience. The bill or petition in equity takes the 
 place of a declaration at common law. 
 
 The ordinary form of a bill in equity is not due to 
 any statute, but to the practice of the court, and has 
 been established by long usage. It was formerly sup- 
 posed that every bill must consist of nine parts, and, 
 although at no time were they all essential, and some 
 have been superseded by the rules of the court, it is 
 desirable in examining a bill that we should retain the 
 old divisions. Those parts consisted of, 1. The address. 
 2. The introduction. 3. The premises or stating part. 
 4. The confederating part. 5. The charging part. 
 6. The clause of jurisdiction. 7. The interrogating 
 part. 8. The prayer for relief. 9. The prayer for 
 process. 
 
 I. ADDRESS OF THE BILL. 
 
 In England the bill was addressed to the Lord 
 Chancellor or other person having for the time the 
 custody of the great seal. In a circuit court of the 
 United States : " In the Circuit Court of the .United 
 
 States in and for the District of . To the 
 
 Judges of the Circuit Court of the United States 
 
 within and for the District of , sitting in 
 
 equity." In this state the bill is addressed : " To the 
 Circuit Court for the County of , in Chan- 
 cery."
 
 A SUIT IN EQUITY. 3 
 
 II. THE INTRODUCTION. 
 
 This part of the bill should state the name, descrip- 
 tion and residence of the complainant in full and the 
 character in which he sues, whether in his own behalf 
 or in autre droit. This is necessary to fix the identity 
 of the parties and to enable the defendant to resort to 
 the complainant for his costs or to enforce compliance 
 with any other order that may be made by the court 
 during the progress of the proceedings ; e. <j., 
 
 " Your orator, A. 13., of the city of Ann Arbor, 
 Washtenaw County, in this state, humbly complain- 
 ing, respectfully shows unto this Honorable Court 
 that, etc." 
 
 III. STATING PART. 
 
 This part of the bill should contain a full narrative 
 of all the facts and circumstances of the complainant's 
 case. It is upon this part of the bill that he must 
 ground his right to relief. It must show that the 
 court has jurisdiction to hear and determine the mat- 
 ter in controversy and assuming that the statements 
 made are true, that the complainant is entitled to the 
 aid and assistance of the court. The testimony neces- 
 sary to establish the facts stated need not be set out in 
 full, but enough must be affirmed so that the com- 
 plainant may introduce his proof, because no evidence 
 will be considered by the court not having reference 
 to some fact put in issue by the pleadings. The com- 
 plainant is not required to set forth any fact of which 
 the court is bound to take judicial notice. Facts are 
 to be stated, not conclusions of law ; e. (/.,
 
 4 A SUIT IN EQUITY. 
 
 (3 Danl. Chy. p. 1907) : 
 
 "That your orator being seized, or well entitled in 
 fee simple of and to a certain messuage and dwelling 
 
 house, with the appurtenances situate at and 
 
 hereinafter described, and being desirous of selling 
 
 such premises, and D. E., of , being minded 
 
 to purchase the same, your orator and the said D. E., 
 
 on or about the day of , entered 
 
 into and signed a memorandum of agreement respect- 
 ing the said sale and purchase in the words and to the 
 purport and effect following, that is to say (stating the 
 agreement fully), as by the said memorandum of agree- 
 ment, to which your orator craves leave to refer, when 
 produced will appear. And your orator further shows 
 that the said D. E. paid to your orator the sum of one 
 thousand five hundred dollars, part of the said pur- 
 chase money, at the time of signing said agreement. 
 And your orator has always been ready and willing to 
 perform his part of said agreement, and, on being paid 
 the remainder of his said purchase money with inter- 
 est, to convey the said messuage to the said D. E. and 
 his heirs, and to let him into the receipt of the rents 
 and profits thereof, from the time in the said agree- 
 ment in that behalf mentioned." 
 
 IV. CHARGE OF CONFEDERACY. 
 
 This part of the bill charges that the defendants 
 intending to injure and defraud the Complainant have, 
 with divers other persons at present unknown to the 
 complainant, but when known he prays may be made 
 defendants to his bill, confederated and combined 
 together for the purpose of injuring and defrauding 
 him out of his rights. This clause is never necessary 
 unless there has been in truth an actual conspiracy 
 upon which fact the complainant relies as making a
 
 A SUIT IN EQUITY. O 
 
 part of his case. It is said to have arisen from a two- 
 fold error; first, that parties could not be added to 
 the bill by amendment, whereas there never was a time 
 when this could not have been done ; and, second, that 
 an allegation of a confederacy would be sufficient of 
 itself to sustain the jurisdiction of the court, but a 
 simple confederacy and combination was never suffi- 
 cient to give the court of equity jurisdiction ; e. g.< 
 
 " But now so it is, may it please the court, that the 
 said C. D., combining and confederating together to 
 and with divers other persons, as yet unknown to your 
 orator (but whose names, your orator prays, when dis- 
 covered, may be inserted herein as defendants and 
 made parties to this suit, with proper and sufficient 
 words to charge them with the premises), in order to 
 oppress and injure your orator do absolutely refuse, 
 etc." (here insert their refusal to do what the com- 
 plainant claims should be done and what he asks the 
 aid of the court in compelling to be done, in this par- 
 ticular case a demand for the balance of the money 
 due upon the land contract and the refusal of the 
 defendant to make the payment.) This part of the 
 bill is omitted from 3 Danl". Chy. p. 1907. 
 
 V. CHARGING PART. 
 
 This part of the bill alleges the pretences which it 
 is supposed that the defendant will make as his defence 
 to the case made by the complainant in the stating 
 part of his bill. It is used for the purpose of obtain- 
 ing a discovery of the defendant's case, or to put in 
 issue some matter which it is not for the interest of 
 the complainant to admit. The example given by 
 Lord Eedesdale (Mitford's PI. and Pr. in Eq. 36) is
 
 6 A SLIT IX EQUITY. 
 
 as follows : Pie states the case of an heir filing a bill 
 upon any equitable ground, and who apprehends that 
 his ancestor has left a will. He may state, by way of 
 pretence, that the defendant claims under such will, 
 and thus make it a part of his case, without admitting 
 it; and the heir then denies the existence or due exe- 
 cution of the will and charges that it is fraudulent. 
 Under the rules of the supreme court and those of 
 most of the states retaining chancery practice, this 
 portion of the bill may be inserted in the stating part 
 or altogether omitted ; e. g., 
 
 " But now so it is, may it please the court, that the 
 said D. E. alleges that he is, and always has been, ready 
 and willing to perform the said agreement on his part 
 in case your orator could have made or can make a 
 good and marketable title thereto ; whereas your orator 
 charges that he can make a good title to said messuage 
 and premises." 'J Danl. Ch. p. 1908. 
 
 VI. AVERMENT OF JURISDICTION. 
 
 This clause avers that the acts complained of are 
 contrary to equity, that the complainant has no remedy 
 at law and can only obtain relief in a court of equity. 
 This averment was intended originally apparently to 
 give the court jurisdiction, but it no longer answers 
 that purpose, if it ever did. No mere assertion of the 
 complainant will give the court jurisdiction. If the 
 facts and circumstances set forth do not make a case 
 coming within the jurisdiction of the court, the suit 
 will not be entertained ; and if they do, the court will 
 entertain the bill without any allegation on the part
 
 A SUIT IN EQUITY. 7 
 
 of the complainant that the court lias jurisdiction to 
 hear and determine the matter and ought so to do. 
 This clause seems therefore equally nugatory with that 
 of confederacy ; e. g., 
 
 "All of which actings, doings and pretences of the 
 said defendant are contrary to equity and tend to the 
 manifest injury of your orator. In tender considera- 
 tion whereof, and for that your orator is remediless 
 by the strict rules of the common law, and is relievable 
 only in a court of equity, where matters of this nature 
 are properly cognizable." 
 
 VII. INTERROGATING PART. 
 
 The bill having up to this point been drawn with a 
 view of showing that the complainant is entitled to 
 relief and that the court has jurisdiction to grant such 
 relief, now prays that the defendants may answer all 
 the matters therein set forth, not only according to 
 their positive knowledge of the facts stated, but also 
 according to their remembrance, the information they 
 may have received, and the belief they have been able 
 to form on the subject. At the first this clause closed 
 with this general request, that being supposed suffi- 
 cient to procure the discovery sought for. But it 
 was soon found that the ingenious solicitor could 
 answer in such general terms that the substance of 
 the question w r ould not be touched. To meet this 
 difficulty it became customary to set out specific 
 interrogatories covering every specific fact material to 
 be answered, and also as to all facts and circumstances 
 surrounding the main fact. The defendant cannot be
 
 6 A SUIT IN EQUITY. 
 
 in-terrogated as to any fact not charged in the bill. 
 He is simply required to answer the complainant's 
 case and these interrogatories are to enable him to do 
 so fully and fairly. He cannot be required to do 
 more than that, therefore he is not required to answer 
 any interrogatory the answer to which would not be 
 ■responsive to some fact charged in the bill ; e. </., 
 
 " To the end therefore that the said D. E. and the 
 rest of the confederates when discovered, may upon 
 their several, respective and corporal oaths, to the best 
 and utmost, full, true, direct and perfect answer make 
 to all and singular the matters hereinbefore stated and 
 charged, and that as fully and particularly as if the 
 same were here repeated and they distinctly interro- 
 gated thereto, and that not only as to the best of their 
 respective knowledge and remembrance, but also as to 
 the best of their respective information, hearsay and 
 belief, and more especially that they may answer and 
 set forth : 
 
 1. Whether he said D. E., etc. 
 
 2. Whether he said D. E., &c." 
 
 Since in most of the States parties may be exam- 
 ined as witnesses, it is customary now. in most cases, 
 to expressly waive an answer under oath, and to omit 
 interrogatories altogether. 
 
 VIII. FRAYER FOR RELIEF. 
 
 The prayer for relief is usually, first, a special prayer 
 for the particular relief that the pleader thinks he is 
 entitled to, and then for general relief, so that should 
 the court refuse to grant the specific relief asked, he 
 may obtain such relief as the court thinks he is entitled
 
 A SUIT IX EQUITY. \) 
 
 to, at the hearing. It is therefore never proper or 
 safe to omit a prayer for general relief. Indeed, 
 unless the plaintiff asks for an injunction or a ne exeat, 
 the prayer for general relief is sufficient to entitle him 
 to such a decree as his case merits, provided the relief 
 asked for at the hearing is authorized by the facts 
 stated in the bill. If an injunction or a writ of ne 
 exeat is desired, it must be specially prayed for; e. g., 
 
 " And that the said D. E. may be compelled by a 
 decree of this Honorable Court specially to perform 
 said agreement with your orator, and to pay to your 
 orator the balance of said purchase money, with inter- 
 est on the same from the time when such purchase 
 money ought to have been paid, your orator being 
 willing, and hereby offering specially to perform the 
 said agreement on his part, and on being paid the said 
 remaining purchase money and interest, to execute a 
 proper conveyance of said messuage and premises to 
 the said D. E., and to let him into the possession of 
 
 the rents and profits thereof from the day of 
 
 . And that your orator may have such further 
 
 and other relief in the premises as the nature of his 
 case shall require and to the court shall seem meet." 
 
 IX. PRAYER FOR PROCESS. . 
 
 The bill in the last place prays that a writ, of sub- 
 pcena may issue requiring the defendants to appear 
 and answer the matters alleged against them, and 
 abide the determination of the court on the subject. 
 The rules of the United States Supreme Court require 
 that the prayer for process in the bill shall contain the 
 names of all the defendants named in the introductory 
 part of the bill, and if any of them are known to be
 
 10 A SUIT IN EQUITY. 
 
 infants under age, or otherwise under guardianship, 
 shall state the fact so that the court may take order 
 thereon as justice may require. When a corporation 
 is made defendant, the bill should pray that it appear 
 according to law. If an injunction or a writ" of ne 
 exeat is desired, there must be a special prayer there- 
 for, and it must be also asked for in the prayer for 
 process ; e. g., 
 
 " May it please the court to grant unto your orator 
 the people's writ of subpoena, to be directed to the 
 said D. E., commanding him at a certain time, and 
 under a certain penalty, therein to be inserted, person- 
 ally to appear before said court, and then and there 
 full, true, direct and perfect answer make to all and 
 singular the premises, and further to perform and 
 abide by such further order and direction as said court 
 shall deem necessary." 
 
 If an injunction is asked, add: "And that said 
 D. E., his counselors, attorneys, solicitors, officers or 
 agents, may be restrained by an injunction issuing out 
 
 of this court directed to him from (here follow 
 
 an accurate description of all the acts he is to be 
 enjoined from doing) — until the further order of this 
 court." 
 
 JURAT AND SIGNATURE. 
 
 The bill of complaint need not be signed by the 
 complainant, but it must be signed by his solicitor. 
 Certain bills, bills for divorce and those asking an 
 injunction, for instance, must be sworn to. 
 
 Chancery, rule eight of the Supreme Court of this 
 State, prescribes that the oath administered to the 
 party shall be in substance as follows : " That he has 
 read the bill, or heard it read, and knows the contents
 
 A SUIT IN ENTITY. 11 
 
 thereof, and that the same is true of his own knowl- 
 edge, except as to the matters which are therein stated 
 to be upon information or belief, and as to those mat- 
 ters he believes it to be true, and that the substance of 
 the oath shall be stated in the jurat.' 1 
 
 The following is the form of the jurat when the bill 
 is sworn to by the complainant : 
 
 STATE OF MICHIGAN, } 
 
 „ > ss. 
 County, ) 
 
 Personally appeared before me X. Y. — (official char- 
 acter stated) — this day of , D. E., who, being- 
 sworn, deposeth and says, that he is the complainant 
 named in the foregoing bill of complaint ; that he has 
 read said bill of complaint (or has heard read), and 
 knows the contents thereof, and that the same is true 
 of .his own knowledge, except as to those matters 
 therein stated to be upon his information or belief, 
 and as to those matters he believes it to be true, and 
 further saith not. 
 
 X. Y. 
 Add Official Character. 
 
 Although not required by any rule, still it is advis- 
 able to divide a bill into paragraphs, and number each 
 paragraph for convenience of reference, or of amend- 
 ment if necessary. The statute of this state requires 
 that all pleadings and proceedings shall be fairly and 
 legibly written. In entitling and endorsing papers, 
 made by either party, the complainant's name must 
 be placed first. At least one copy of the bill should 
 be made and retained as an office copy. 
 
 The bill is then to be filed with the register of the 
 court. No process can issue in this state until the
 
 12 A SUIT IN EQUITY. 
 
 tiling of the bill, when it issues as a matter of course, 
 but in a United States court a praecipe must also be 
 filed with the clerk, directing the issuance of a sub- 
 poena, and naming the rule day to which process is to 
 be made returnable. (Rules 7, 11, 12.) 
 
 7 
 
 SUBP02NA TO APPEAK. 
 
 The subpoena is a writ under the seal of the court 
 directed to the defendant, requiring him to appear on 
 a certain day and answer the bill. It must contain 
 the names of all the defendants, be tested in the name 
 of the court from which it issues, and made returnable 
 on some day certain, except Sunday, either in vaca- 
 tion, or term not less than ten days from its issue. It 
 must be signed by the register of the court or his 
 deputy, and endorsed with the name of the solicitor. 
 (Mich. Oh. Rule.) e. g., 
 
 STATE OF MICHIGAN. j 
 The Circuit Court for the r to wit: 
 County of In Chancery. ) 
 
 In the name of the People of the State of Michigan. 
 To D E , , Greeting. 
 
 You are hereby notified that a Bill of Complaint 
 has been filed against yon in the Circuit Court for the 
 County of , in Chancery, by A. B., as Com- 
 plainant, and that if you desire to defend the same, 
 you are required to have your appearance entered with 
 the Register of said Court at his Office in the Court 
 
 House, in the City of , in person or by solicitor, 
 
 within twenty days after the day of , in the 
 
 year 188 — , which is the return day of this writ: 
 Hereof fail not under the penalty of having said bill 
 taken as confessed against you.
 
 A SUIT IN EQUITY. 13 
 
 Witness, The Honorable A. B., Circuit Judge at 
 -, this — day of , in the year of Our 
 
 Lord one thousand eiylit hundred and eighty 
 
 C. D. , Register. 
 L. M., Solicitor for Complainant. 
 
 The subpoena is to be served on or before the return 
 day, by delivering to the defendant a copy, inscribed 
 copy, endorsed by the solicitor, and by exhibiting to 
 him the original under the seal of the court. It may 
 be served in any part of the state. The service need 
 not be made by an officer of the court, but if made by 
 an individual, such service must be shown by affidavit. 
 If it is made by an officer, he makes his return of ser- 
 vice on the subpoena. 
 
 When the subpoena has been properly served, the 
 defendant is bound to appear and answer to the charges 
 preferred against him in the bill, within the time lim- 
 ited by the practice of the court, or, if required by 
 the complainant, compulsory process will be awarded 
 against him for his contempt in neglecting the requi- 
 sitions of the subpoena. Appearance is the formal 
 proceeding by which the defendant submits himself 
 to the jurisdiction of the court, and it is necessary in 
 every case before a decree can be rendered against 
 him that he appear. Formerly when the defendant 
 did not voluntarily appear after being served with 
 a subpoena, a number of successive processes were 
 resorted to, ending in a sequestration of his property 
 for the purpose of compelling an appearance. At the 
 present time in all the states there are statutory enact-
 
 14 A SUIT IN EQUITY. 
 
 ments making the process of the court more effectual, 
 and providing under certain circumstances that the 
 appearance of the defendant may be entered by an 
 order of the court and the bill taken pro confesso. 
 Process for effecting the compulsory appearance has 
 fallen into disuse since the enactment of these statutes. 
 Only one is in use in this state — attachment — and that 
 is only resorted to when the answer of the defendant 
 is essential to the complainant. 
 
 Under the practice in this state the defendant, after 
 being served with a subpcena, may enter his appearance 
 in the Register's office. This appearance is to be 
 made within twenty days after the return day of the 
 subpoena. 
 
 The practice in the United States Court is regulated 
 by Ch. Rules 2, 11, 12. 
 
 The defendant having appeared, proceeds to defend 
 himself against the allegations of the complainant's 
 bill. The character of his defence will depend upon 
 the nature of the case made in the bill, and is either 
 by disclaimer, by demurrer, by plea, or by answer. 
 All of these several defences may be joined, if some 
 one of them is the appropriate defence to some part 
 oi the bill. 
 
 DISCLAIMER. 
 
 If the defendant has no interest in the subject con- 
 cerning which the suit is brought, he may avoid the 
 plaintiff's claim by a disclaimer, which is a renuncia- 
 tion on his part of all interest or claim in the subject- 
 matter of the plaintiff's claim. For instance, suppose
 
 A SUIT IN EQUITY. 15 
 
 the bill is filed by A to quiet his title to a certain 
 messuage, and B is charged with claiming title to or 
 an interest in said land, when in point of fact he has 
 no interest and claims none, he may defend by filing 
 a disclaimer. Supposing the bill to have been filed 
 in this state and county, the disclaimer might be in 
 the following form : 
 
 V 
 
 State of Michigan — In the Circuit Court of the 
 County of Washtenaw — In Chancery. 
 
 A. B., 
 
 Complainant, 
 vs. 
 C. D., 
 J. L., 
 C. F., 
 J. A., 
 
 Defendants. 
 
 The disclaimer of C D., one of the defendants, to 
 the bill of complaint of A. B. 
 
 This defendant saving and reserving for himself 
 now and at all times hereafter, all manner of advan- 
 tage and benefit of exception and otherwise that can 
 or may be had or taken to the many untruths, uncer- 
 tainties and imperfections in said complainant's bill of 
 complaint contained, for answer thereto or unto so 
 much, or such part thereof as is material for this 
 defendant to make answer unto, he answers and says : 
 that he doth fully and absolutely disclaim all manner 
 of right, title, and interest whatsoever, in and to the 
 following described real estate, viz. : (describe land) 
 being the same real estate mentioned and described in 
 said bill of complaint, and to each and every part and 
 parcel thereof. And this defendant further answering 
 says, that he never had or claimed or pretended to 
 have any title to or interest in said land. 
 
 And this defendant denies all and all manner of
 
 16 A SUIT IN EQUITY. 
 
 unlawful combination and confederacy wherewith lie 
 is by the said bill charged, without this, that any other 
 matter, cause or thing, in the said complainant's said 
 bill of complaint contained, material or necessary for 
 this defendant to make answer unto, and not herein 
 and herebj 7 , well and sufficiently, answered, confessed, 
 traversed and avoided, or denied, is true to the knowl- 
 edge or belief of this defendant ; all of which matters 
 and things this defendant is willing to aver, maintain 
 and prove as this Honorable Court shall direct ; and 
 asks to be hence dismissed with his reasonable costs 
 and charges in this behalf sustained. 
 
 C. D. 
 J. C, Solicitor for Defendant C. D. 
 
 DEMURRER. 
 
 If there appears on the face of the plaintiff's bill 
 any defect or objection which can be offered in bar of 
 his suit, it should be presented by a demurrer. A 
 demurrer admits the facts as alleged in the bill to be 
 true, but denies that they are sufficient to require the 
 defendant to answer. The demurrer may be to some 
 part or to the whole bill ; e. g^ 
 
 TITLE. 
 
 The demurrer of J. L., one of the defendants to 
 the bill of complaint of A. B. 
 
 This defendant, by protestation, not confessing any 
 of the matters in and by said bill complained of to be 
 true in manner and form, as the same are set forth, 
 says that he is advised that there is no matter or thing 
 in said bill, good and sufficient in law, to call this 
 defendant to account in this Honorable Court for the 
 same ; but that there is good cause of demurrer there- 
 unto, and he does demur accordingly, and for cause of
 
 A SUIT IN EQUITY. 17 
 
 demurrer says, that said bill, in case the same were 
 true, contains no matter of equity whereon this 
 court can ground any decree, or give complainant any 
 relief as against this defendant. Wherefore, and for 
 divers other errors in said bill contained and appearing 
 on the face thereof, this defendant does demur thereto, 
 and humbly craves the judgment of this Honorable 
 Court, whether he is compellable or ought to make 
 any answer thereunto otherwise than as aforesaid. 
 And this defendant prays to be hence dismissed with 
 his costs and charges in this behalf most wrongfully 
 sustained. 
 
 J. L. 
 A. B. D., Solicitor for Defendant J. L. 
 
 The above form of demurrer extends to the whole 
 bill. When the demurrer does not extend to the whole 
 bill, it should designate the particular parts which it is 
 intended to embrace, for otherwise the court would be 
 compelled to examine the whole bill to discover them. 
 In case only a part of the bill is demurred to, an 
 answer to the remainder of the bill may be coupled 
 with the demurrer; e. g., 
 
 TITLE. 
 
 The demurrer of J. L. to that part, including para- 
 graphs numbered 3, 4 and 5, and his answer to the 
 residue of the bill of complaint of A. B. 
 (Set forth the demurrer as above, and add :) 
 "And as to the residue of said bill, this defendant 
 not waiving his demurrer, but relying thereon, and 
 saving and reserving to himself now, and at all times 
 hereafter, all manner of benefit and exception which 
 can be had, to the residue of said bill, for answer 
 thereto, or to so much thereof as this defendant is.
 
 18 A SUIT IN EQUITY. 
 
 advised is in any wise material or necessary for him to 
 answer unto, answers and says that, &c." 
 
 Every species of defence to a bill in equity is 
 required to be signed by counsel as evidence of its 
 propriety and sufficiency. Since a demurrer alleges 
 no facts, but rests upon matters appearing in the bill, 
 it need not be signed by the defendant. The rules of 
 the Supreme Court, and many of the state courts, 
 require that the counsel for the defendant shall file 
 with the demurrer his certificate that in his opinion it 
 is well founded in point of law, and also the affidavit of 
 the defendant that it is not interposed for delay merely. 
 
 When the defendant demurs to the whole bill, a 
 question of law is presented to the court which is 
 brought on for argument. If the court sustains the 
 demurrer that will end the proceedings, unless under 
 an order of the court the complainant can so amend 
 the bill as to cure the defect pointed out by the demur- 
 rer. In case the demurrer is overruled, the defendant 
 will be given leave to plead to, or to answer the bill. 
 
 A PLEA. 
 
 If there are defects in the complainant's case, which 
 do not appear upon the face of the bill, that constitute 
 a special defence to his recovery, they may be taken 
 advantage of by plea. A plea is defined as a special 
 answer, showing or relying upon one or more things, 
 as a cause why the suit should be either dismissed, 
 delayed or debarred ; it does not, like a demurrer, rest 
 on facts charged in the complainant's bill, but alleges
 
 A SUIT IN EQUITY. 19 
 
 other facts, to which the complainant may reply. The 
 office of the plea is to bring forward a fact which, if 
 true, displaces the equity of the bill. 
 
 Pleas have been arranged under four classes. 1. 
 To the jurisdiction. 2. To the person of the plaintiff. 
 3. To the bill or the form thereof. And, 4. In bar. 
 
 The form of a plea, like that of a demurrer, com- 
 mences with a protestation against confessing the 
 truth of any matter in the bill. It should distinctly 
 show whether it goes to the whole bill or only a part 
 of it. The defendant's grounds of objection to the 
 jurisdiction of the court, the person of the plaintiff or 
 in bar of suit, must be supported by averments, so 
 clear, positive and distinct of every fact and circum- 
 stance essential to render it a complete equitable bar, 
 that the complainant may be enabled to take issue 
 upon its validity. 
 
 1. A plea to the jurisdiction does not dispute the 
 right of the complainant in the suit, but asserts that 
 his claim is not a fit subject of cognizance in a court 
 of equity or that some other tribunal is vested with 
 the proper jurisdiction. Most jurisdictional defects 
 can be reached by a demurrer; but the truth may not 
 appear on the face of the bill. For instance, the Cir- 
 cuit Court of the United States has no jurisdiction to 
 hear and determine causes between citizens of the 
 same state, and if the bill should allege that the com- 
 plainant and defendant were citizens of different 
 states, the fact that they were citizens of the same state 
 could only be contested by the defendant by a plea to
 
 20 A SUIT IN EQUITY. 
 
 the jurisdiction. The plea must contain something 
 more than a mere allegation of a want of jurisdiction, 
 the court of chancery having general jurisdiction, 
 jurisdiction will be presumed unless the specific fact 
 is pointed out which deprives the court of jurisdiction. 
 
 2. A plea to the person merely disputes the right 
 of the complainant to sue ; for instance that he is an 
 infant, an idiot or a lunatic. 
 
 3. The usual plea to the bill or the" frame of the 
 bill are either, 1, the pendency of another suit for the 
 same matter in another court of equity, or, 2, the 
 want of proper parties to the bill. 
 
 4. Pleas in bar are, 1, pleas founded on some bar 
 created by the statute. The most usual of this char- 
 acter are the statute of limitations and the statute of 
 frauds. 2. Pleas founded on matter of record, that 
 there has been a judgment at law of a court of record 
 between the same parties for the same cause of action, 
 or a final decree or order of a court of equity in a suit 
 between the same parties and for the same subject- 
 matter. 3. Pleas of matter in pais are pleas of stated 
 account, of a release, of a purchase for a valuable con- 
 sideration without notice, &c, &c. 
 
 PLEA TO BILL. 
 
 TITLE. 
 
 The plea of C. F., one of the defendants to the bill 
 of complaint of A. B. 
 
 This defendant, by protestation not confessing any 
 of the matters in said bill contained to be true in man-
 
 A 8UIT IN EQUITY. 21 
 
 11 or and form, as the same are therein set forth does 
 plead thereunto, and for cause of plea sa\ T s, that here- 
 tofore, and before complainant exhibited his present 
 bill in this Honorable Court on the 9th day of Febru- 
 ary, 18S5, the said complainant did exhibit his bill of 
 complaint in this Honorable Court against these said 
 defendants for the same matters and to the same effect 
 and for the like relief, as the said now complainant 
 doth by his present bill demand and set forth ; to 
 which said first bill these defendants did put in there 
 joint and several answers, and the saicl complainant 
 thereunto did reply; and other proceedings were there- 
 upon had, and the said former bill is still depending 
 in this court, and the matters thereof undetermined ; 
 and, therefore, this defendant does plead the former 
 bill, answer and proceedings, in bar to the present bill ; 
 and humbly prays the judgment of this Honorable 
 Court, whether it behooves him to make any other or 
 further answer thereto than as aforesaid, and prays 
 to be hence dismissed with his reasonable costs and 
 charges, in this behalf most wrongfully sustained. 
 
 C. F. 
 
 J. K., Solicitor for Defendant C. F. 
 
 In case the complainant thinks the plea insutKcient 
 he may notice it for hearing, when the question of its 
 validity will be passed upon by the court. If the 
 court sustains the plea as good in form and substance, 
 the complainant may take issue as to the truth of its 
 alleged statements of fact by filing a replication ; e. (/., 
 
 TITLE. 
 
 The replication of A. B., complainant to the plea of 
 C. F., defendant, this repliant saving and reserving to 
 himself now and at all times hereafter, all and all 
 manner of advantage of exception which may betaken
 
 22 A SUIT IN EQUITY. 
 
 to the manifold insufficiencies of the said plea, for 
 replication thereunto, says that he will now maintain 
 and prove his bill of complaint to be true, certain and 
 sufficient in the law to be answered unto ; and that the 
 said plea is uncertain, untrue and insufficient, to be 
 replied unto by the repliant without this, that any 
 other matter or thing; whatever, in said plea contained, 
 material or effectual in the law, to be replied unto, and 
 not herein and hereby well and sufficiently replied 
 unto, confessed and avoided, traversed or denied, is 
 true ; all which matters and things the repliant is and 
 will be ready to aver, maintain and prove, as this 
 Honorable Court shall direct, and humbly prays that 
 as in and by his said bill he has already prayed. 
 
 A. L., 
 
 Solicitor for Complainant. 
 
 The replication admits that the plea is good inform 
 and substance and puts in issue the truth of its allega- 
 tions of fact, and the parties proceed to take proofs 
 the same as when a replication is filed to an answer. 
 
 ANSWER. 
 
 If there is nothing in the bill of the complainant to 
 which the defendant is able or willing to demur; and 
 if he have no extrinsic matter, which he can offer by 
 way of plea ; or if his plea or demurrer has been over- 
 ruled, he may proceed to controvert the claims of the 
 plaintiff by filing an answer to the bill. The answer 
 need have no particular form as to that part which 
 sets forth the defendant's case. It is usually drawn 
 so as to admit in the first instance all the allegations 
 contained in the complainant's bill which are true, 
 and then follows denials of all the allegations made
 
 A St'IT IN EQUITY. 23 
 
 which are in controversy. If there are any statements 
 in the bill upon which the defendant has no knowl- 
 edge or information he states that fact and leaves the 
 complainant to his proofs. Then follows a statement 
 of all facts and circumstances sustaining the equities 
 of the defendant's position. Each interrogatory is to 
 be answered separately and the answers numbered to 
 correspond with the numbers of the interrogatories. 
 When the defendant submits to answer at all, he must 
 make a full, frank and explicit disclosure of all mat- 
 ters material or necessary to be answered, whether 
 resting within his own knowledge or upon informa- 
 tion or belief; e. g.. 
 
 TITLE. 
 
 The answer of J. A., one of the defendants to the 
 bill of complaint of A. 13. 
 
 This defendant, now and at all times hereafter, 
 reserving all manner of benefit and advantage of 
 exception to the many errors and insufficiencies in said 
 bill contained, for answer thereto, or unto so much, 
 or such parts thereof as this defendant is advised is 
 material for him to make answer unto, he answers and 
 says (here follows a full and explicit answer to all the 
 allegations in the bill and answers to the interroga- 
 tions), and this defendant denies all unlawful combina- 
 tion in said bill charged, without this, that any other 
 matter or thing material for him to make answer to, 
 and not herein sufficiently answered, avoided or 
 denied, is true to the knowledge or belief of this 
 defendant. All which matters and things this defend- 
 ant is ready to aver and prove as this court shall direct, 
 and prays to be hence dismissed, with his reasonable
 
 24 A SI' IT IN EQUITY. 
 
 costs and charges, in this behalf most wrongfully sus- 
 tained. 
 
 J. A. 
 
 L. S., Solicitor for Defendant J. A. 
 
 The answer must be signed by the defendant and 
 must be sworn to, unless his answer under oath is 
 waived in the bill. 
 
 The defendant may claim in his answer the benefit 
 of a general demurrer. In case he desires to do so he 
 inserts, immediately preceding the closing part given 
 above, the following: 
 
 "And this defendant submits to this Honorable 
 Court that all and every of the matters in the said 
 complainant's bill, mentioned and complained of, are 
 matters which may be tried and determined at. law., 
 and with respect to which the said complainant is not 
 entitled to any relief from a court of equity ; and this 
 defendant hopes that he shall have the same benefit of 
 this defence as if he had demurred to said bill of com- 
 plaint." 
 
 It sometimes happens that the defendant will, in 
 order to obtain some affirmative relief to which he 
 conceives he is entitled, and which he could not obtain 
 under his answer, be compelled to file a cross bill. 
 This is in the nature of an original bill, there are the 
 same parties, reversed, and the two bills are heard 
 together. 
 
 If the complainant conceives that the admissions in 
 the defendant's answer are alone sufficient to entitle 
 him to such a decree as he desires he may set down 
 the cause for hearing upon bill and answer.
 
 A SUIT IN EQUITY. 20 
 
 EXCEPTIONS TO THE ANSWER. 
 
 If the discovery contained in the answer is incom- 
 plete, or the allegations contained in the bill are 
 insufficiently replied to, the complainant may prefer 
 exceptions to the defendant's answer and require it to 
 be more full and particular. The exceptions must be 
 in writing and signed by counsel, and they must also 
 state with precision, and accuracy, the points in which 
 the defendant's answer is defective, or they will be 
 rejected as vague and impertinent. Care must be 
 taken also to omit no point to which an exception 
 would lie, as the rules of the court do not permit 
 any others to be afterwards added. It may be stated 
 generally that any answer will be considered insuffi- 
 cient in which the defendant does not fully respond, 
 according to the best of his knowledge, remembrance 
 or belief, to every material allegation, charge or inter- 
 rogatory in the bill ; 
 
 TITLE. 
 
 Exceptions taken by the said complainant A. B. to 
 the answer of the said defendant J. A. to his bill of 
 complaint in this cause. 
 
 First Exception. — For that the said defendant has 
 not, according to the best of his information, knowl- 
 edge and belief set forth and discovered in his said 
 answer whether, &c. 
 
 Second Exception. — For that, &c. 
 
 In all of which particulars the complainant is advised 
 that the answer of the. defendant is altogether evasive, 
 imperfect and insufficient. Wherefore said complain- 
 ant doth except thereto, and prays that the defendant
 
 26 A SUIT IN EQUITY. 
 
 may be compelled to amend the same, and to put in 
 full and sufficient answer to the complainant's bill." 
 
 F. L., Solicitor for Complainant. 
 
 Exceptions may also be made to scandalous and 
 impertinent matter in the bill. 
 
 When exceptions are taken to the sufficiency of the 
 answer and the defendant does not amend his answer, 
 the exceptions are referred to a master, in this state to 
 a circuit court commissioner, who is directed to report 
 whether the answer is sufficient in the points excepted 
 to or not. If the master reports it to be insufficient, 
 the defendant must submit to answer more fully, 
 unless by exceptions to such report of the master, he 
 appeals to the judgment of the court, and obtains a 
 determination in his favor. 
 
 INTERLOCUTORY PROCEEDINGS. 
 
 During the progress of a suit in equity it frequently 
 becomes necessary to make what are known as inter- 
 locutory orders and decrees. The most important and 
 usual are those which relate to amendments of the 
 pleadings, the appointment of a receiver, payment of 
 money into court, issue of an injunction and reference 
 to a master. These orders are made by the court upon 
 motion made orally or upon petition in writing. 
 
 AMENDMENTS. 
 
 In a court of equity matters of form are never suf- 
 fered to prejudice the rights of a party ; and the 
 liberty of amendment, often upon condition however,
 
 A SUIT IN EQUITY. 27 
 
 is allowed to all kinds of pleading. It the bill has 
 not been sworn to, under the rules in this state, the 
 complainant can amend of course, without the pay- 
 ment of costs, before the demurrer plea or answer is 
 put in. And in certain other cases he may amend of 
 course afterwards, but usually application must be 
 made to court by motion or leave to amend. The 
 amendments must have reference to matters existing 
 before the commencement of the suit ; a matter 
 which "has occurred since the commencement of the 
 suit must be brought before the court by a supple- 
 mental bill. When amendments are made by leave 
 of the court, or of course, a copy of the bill as 
 amended is tiled and a copy served on the defendant's 
 solicitor, or a copy of the amendments referring to 
 the paragraphs and folios amended is tiled and a copy 
 of such amendments served. The amended and orig- 
 inal bill are considered, for most purposes, as one, and 
 make up the same record ; e. </., 
 
 TITLE. 
 
 Amendments to the bill of complaint in this cause, 
 
 made pursuant to an order of this court dated the 
 
 day of instant. 
 
 First. In the third line of the second folio of the 
 bill after the word "testator" interline "to-wit, on or 
 about the 5th day of June, 1880." 
 
 Second. After the word " satisfaction " in the tenth 
 line of the fifth folio insert the amendment marked 
 "A" which is annexed to the bill on file, and is as fol- 
 lows : "After," &c. * * * 
 
 Third. Strike the names of C. D. and M. F. out 
 of the sixth line of the third folio.
 
 28 A SUIT IN EQUITY. 
 
 Sir — Take notice that the foregoing is a copy of 
 the amendments as set forth. 
 
 F. L.. Solicitor for Complainant. 
 To J. L., Solicitor for Defendant. 
 
 APPOINTMENT OF A RECEIVER. 
 
 Whenever in the progress of a suit a proper show- 
 ing is made to the court that there is danger of the 
 waste and destruction of property which is the subject 
 of the litigation, a receiver may be appointed, charged 
 with the duty of caring for such property. 
 
 PAYMENT OF MONEY INTO COURT. 
 
 Whenever it appears to the court that there is a 
 balance of money which it is admitted is due to the 
 complainant in the hands of the defendant, he will, by 
 an order of the court, be directed to pay it into the 
 hands of the register. And the court may make a 
 still further direction and order the money so paid 
 into court to be deposited or invested on good security. 
 
 REFERENCES. 
 
 Whenever it is necessary in the progress of a cause 
 to take an account, to investigate the title of persons 
 to property in suit, or make any other inquiries neces- 
 sary to satisfy the conscience of the court, or to perform 
 some special ministerial act, such as to sell property, 
 etc., the court refers the matter to a circuit court com- 
 missioner. References are of such frequent occur- 
 rence, and so important, that they form the subject of
 
 A SUIT IN EQUITY. 29 
 
 a subordinate system of practice. (See Hoffman's 
 Master in Chancery.) 
 
 There is such a variety of orders that in this short 
 synopsis we can only indicate what the practice is. In 
 case, for instance, the defendant lias money in his 
 hands belonging to the complainant, which the com- 
 plainant desires to have paid into court, he notifies the 
 defendant's solicitor that he will make a motion to 
 that effect ; e. (/., 
 
 NOTICE OF MOTION, ETC. 
 
 TITLE. 
 
 Sir : — Take notice that I intend to move this Hon- 
 orable Court, on the day of next, at ten 
 
 o'clock in the forenoon, or as soon thereafter as counsel 
 
 can be heard, at , in the city of , for an 
 
 order that the above named defendant may, on or 
 
 before the day of next, pay into the 
 
 hands of the Register of this court, in trust, in this 
 
 cause, the sam of $ , admitted by the answer of 
 
 said defendant to be due from him, and that the same, 
 when paid in, may be deposited in trust by the Regis- 
 ter in such bank, or invested by him in trust, in such 
 manner as this court shall direct, with costs. And for 
 such further, or for such other order, or relief, as the 
 court may think proper to grant; which motion will 
 be founded on the bill and answer in this cause. 
 
 L. M. , Solicitor for Complainant. 
 To J. C. , Solicitor for Defendant. 
 
 At the time and place mentioned in such notice, an 
 oral motion is made and argument had. If the court 
 grants the motion, an order is entered in accordance 
 therewith, or such an order as the court deems proper 
 under the circumstances ; e. g.,
 
 30 A SUIT IN EQUITY. 
 
 order, etc. 
 
 State of Michigan, the Circuit Court for the 
 County of Washtenaw — In Chancery. 
 
 title. 
 
 At a session of said court, held at Ann Arbor, on 
 the day of , 1888. 
 
 Present, Hon. C. D., Circuit Judge. 
 
 Oh reading the bill and answer filed in this cause, 
 and on motion of L. M., solicitor for the complainant, 
 and on hearing J. C, solicitor for the defendant, in 
 opposition thereto : It is ordered that the defendant, 
 
 A. B., do, on or before the day of next, 
 
 pay into the hands of the .Register of this court, in 
 
 trust, in this cause, the sum of $ , admitted by the 
 
 answer of said defendant to be due from him ; and 
 that when such mone} r be paid in, it be deposited by 
 said Register in the First National Bank of Ann Arbor, 
 to the credit of this cause, there to remain until the 
 further order of this court. 
 
 C. D., Circuit Judge. 
 
 Another most important interlocutory proceeding 
 is that of granting an injunction restraining the 
 defendant from doing some particular act or acts which 
 will do irreparable injury to the complainant. When 
 an injunction is issued during the pendency of the suit, 
 it is called a preliminary injunction ; when it is made a 
 part of the final decree it is called a final injunction. 
 When the bill prays for an injunction it will be granted 
 if the court is satisfied that the plaintiff is entitled to 
 this relief.
 
 A SUIT IN EQUITY. 31 
 
 injunction. 
 
 State of Michigan, in the Circuit Court for the 
 County of Washtenaw, ss — In Chancery. 
 
 In the name of the people of the State of Michigan : 
 To L. C, and to his counsellors, attorneys, solicitors 
 and agents, and each and every of them, greeting : 
 
 Whereas, it has been represented to us, in the Cir- 
 cuit Court for the county of Washtenaw, in chancery, 
 on the part of C. D., complainant, that he has lately 
 exhibited his bill of complaint against you, the said 
 C. D., defendant, to be relieved, touching the matters 
 therein complained of, in which bill it is stated, 
 amongst other things, that you are combining and 
 confederating with others to injure the said complain- 
 ant, touching the matters set forth in the said bill, and 
 that your actings and doings in the premises are con- 
 trary to equity and good conscience ; we, therefore, in 
 consideration thereof, and of the particular matters in 
 the said bill set forth, do strictly command you, the 
 said C. D., and the persons before mentioned, and each 
 and every of you, under the penalty of ten thousand 
 dollars, to be levied on your lands, goods and chattels, 
 to our use, that you do absolutely desist and refrain 
 from selling, mortgaging and doing any other act which 
 will effect the title or change the possession of the 
 following described property, situated in the city of 
 Ann Arbor, in the county of Washtenaw, and State of 
 Michigan, viz. (here follow description), until the fur- 
 ther order of this court. 
 
 Witness the Honorable A Iv., Circuit Judge, and 
 
 the seal of said circuit court, at Ann Arbor, this 
 
 day of , in the year one thousand eight hundred 
 
 and eighty-eight. 
 
 D. F., Register. 
 
 L. M., Solicitor for Complainant.
 
 32 A SUIT IN EQUITY. 
 
 The injunction must be served on the defendant. 
 Service upon his solicitor is not good. The service is 
 made in the same manner as service of a subpcena, by 
 the sheriff who makes his return upon the original 
 writ as follows : 
 
 STATE OF MICHIGAN, ) 
 County of Washtenaw, f ' 
 
 I hereby certify that on the ■ — day of 
 
 A. D. 18S-, I served the within writ of injunction 
 upon the within named L. G., the defendant in per- 
 son, within the said county, by delivering to him a 
 copy of the said writ, subscribed by the complainant's 
 solicitor, and inscribed "copy," and showing the origi- 
 nal, under the seal of the court, at the time of such 
 delivery to the said defendant. 
 
 Dated this day of -, A. D. 188-. 
 
 A. J., Sheriff. 
 REPLICATION TO ANSWER. 
 
 As we have already said, if the answer is such that 
 the complainant is satisfied that he can" obtain the 
 relief he desires on the admissions made therein, he 
 notices the cause for hearing on the pleadings. If, 
 however, the answer controverts the facts charged in 
 the plaintiff's bill, or sets forth new facts and circum- 
 stances, which the plaintiff is not disposed to admit, 
 he files a replication to the defendant's answer. This 
 replication is identical with the replication to a plea 
 — already given — except where the word " plea " 
 occurs in that, the word "answer" is to be inserted. 
 Formerly, if the defendant's answer stated new facts, 
 in opposition to those alleged in the bill, the com-
 
 A SFIT IN EQUITY. 33 
 
 plain ant was accustomed to reply by a special state- 
 ment of other facts, not before charged. This pro- 
 duced a rejoinder by the defendant. A sur-rejoinder 
 frequently followed the rejoinder, and a rebutter the 
 sur-rejoinder, and so on as long as new facts were set 
 forth by one party and denied by the other. 
 
 TESTIMONY. 
 
 The cause being at issue, by the tiling of a replica- 
 tion, the parties may proceed to their proofs under 
 the rules of court for the purpose of establishing their 
 respective cases. 
 
 There have been within the past few years such 
 important and radical changes in this part of chancery 
 practice that we will confine our attention to the prac- 
 tice in this state. Similar changes have been made in 
 other states. 
 
 Within ten days after the cause is at issue either 
 party may give notice and have the testimony taken 
 in open court. If neither party has obtained the 
 right to an examination of witnesses in open court, 
 then either may within thirty days thereafter enter an 
 order of course, and give notice to the opposite party, 
 for the taking of testimony within sixty days before 
 a circuit court commissioner, or they may stipulate to 
 have it taken before a notary public. At any time 
 within the sixty days from the service of notice of 
 such order, either party by giving ten days' notice to. 
 the opposite party of the names and places of abode 
 of the witnesses to be examined, and of the time and 
 3
 
 34: A SUIT IN EQUITY. 
 
 place of such examination, may take the testimony of 
 his witnesses before such commissioner or notary pub- 
 lic. The testimony is taken orally, -questions, upon 
 the direct and cross-examination being asked by the 
 respective solicitors of the parties, which are written 
 out in full by the commissioner, together with the 
 witnesses answer. If any question is objected to such 
 objection is taken down by the commissioner and 
 then the answer. After the testimony is taken it is 
 read over to the witness who signs it. At the expira- 
 tion of the sixty days either party, on filing an affidavit 
 of the service, or receipt of such notice, may enter an 
 order of course that the proofs be closed. When an 
 order is entered closing the proofs the testimony taken 
 is filed in the cause. The time for taking testimony 
 may be extended by stipulation or by order of the 
 court on cause shown. 
 
 In case witnesses reside out of the state or more 
 than thirty miles from the residence of the commis- 
 sioner, either party wishing to examine them may, 
 during the time the order to take proofs is in force, 
 present a petition to the Register, stating the names 
 and residences of the witnesses and of the persons pro- 
 posed as commissioners, asking for the issuance of a 
 
 COMMISSION TO TAKE THE TESTIMONY 
 
 of such witnesses. The adverse party, if he wishes, 
 may join in such commission. 
 
 Formerly all the testimony taken in chancery pro- 
 ceedings was upon written interrogatories, but at the
 
 A SUIT IN EQUITY. 35 
 
 present time it is only necessary to resort to written 
 interrogatories when the witnesses reside out of the 
 state. The interrogatories, direct and cross, are settled 
 by the commissioner, the practice being for the soli- 
 citor, whose witness is to be examined, to serve upon 
 the opposing solicitor a copy of the direct interroga- 
 tories and a notice of the time and place of their 
 settlement. And such solicitor may, at such time and 
 place, have cross interrogatories settled ; e. <j., 
 
 COMMISSION TO TAKE TESTIMONY. 
 
 STATE OF MICHIGAN, ) gg 
 County op Washtenaw, f 
 
 In the Circuit Court for the County of Wash- 
 tenaw — In Chancery. 
 
 In the Name of the People of the State of Michigan : 
 To John Jackson, Notary Public, of the City of San 
 Francisco, in the State of California, greeting: 
 
 Know Ye, that in confidence of your prudence and 
 fidelity, the said Circuit Court for the County of 
 Washtenaw in Chancer}', has, by a rule entered upon 
 the records thereof, in a certain cause now pending in 
 said Court, wherein A. B. is complainant and C. D. is 
 defendant, and now at issue have nominated and 
 appointed, and do, by these presents, nominate and 
 appoint you, and give unto you full power and author- 
 ity, to examine upon oath (or affirmation) John Felix 
 and James Dale, of the City of San Francisco, in the 
 State of California, witnesses to be produced, sworn 
 and examined on the part and behalf of said com- 
 plainant, upon certain written interrogatories hereto 
 annexed ; and we therefore command you, that at a 
 certain day and place, to be by you appointed, you do 
 cause the said John Felix and James Dale to come
 
 36 A SUIT IN EQUITY. 
 
 before you, and then and there examine them, and each 
 of them, on his oath (or affirmation), first taken before 
 you (which oath or affirmation you may administer), 
 touching the matters and things referred to in said 
 interrogatories; and that you cause the examination 
 of said witnesses to be reduced to writing, and to be 
 subscribed by said witnesses, which examination is 
 also to be certified by you. And when you shall have 
 so taken the said depositions, you are to annex the 
 same, with any exhibits produced and proved before 
 you, to this commission, and to return the same into 
 said Court, according to the direction of this commis- 
 sion. And you are in all things to be governed in tlie 
 premises by the instructions hereto annexed. 
 
 Witness, the Honorable A. K., Circuit Judge of said 
 Circuit Court, at the Court House, in the City of Ann 
 
 Arbor, in said County, this day of , in 
 
 the year of our Lord one thousand eight hundred and 
 eighty-eight. 
 
 L. D. , Register. 
 
 C. G. and M. L. , Solicitors for Complainant. 
 
 Michigan chancery rule No. 52 requires the follow- 
 ing instructions to be annexed to such commission : 
 
 INSTRUCTIONS. 
 
 Hule 52. To every commission for the examina- 
 tion of witnesses out of the State, a copy of this rule 
 shall be annexed, as instructions to the commissioner 
 on the execution of the commission : 
 
 First. Any one of the commissioners may execute 
 the commission. 
 
 Second. The witness, before he is examined, must 
 take an oath or affirmation, to be administered by the 
 commissioner, that the answers to be given by him to 
 the interrogatories annexed to the commission, shall be 
 the truth, the whole truth, and nothing but the truth. 
 
 Third. The examination of the witness must be
 
 A SUIT IN EQUITY. -\7 
 
 reduced to writing by the commissioner, or by some 
 one in his presence, and under his direction, and must 
 be signed by the witness, and certified by the com- 
 missioner as follows : 
 
 "Examination taken, reduced to writing, and sworn 
 
 to (or affirmed), this day of , A. D. 188 — , 
 
 before me. 
 
 . Commissioner." 
 
 Fourth. Exhibits must be annexed to the deposi- 
 tion of the witness, and be signed by him and the 
 commissioners. 
 
 Fifth. The commissioner must subscribe each sheet 
 of the deposition, annex the deposition and exhibits to 
 the commission, and endorse his return on the back of 
 the commission : 
 
 " The execution of this commission appears in cer- 
 tain schedules hereunto annexed. 
 
 — , (Commissioner" 
 
 Sixth. The commissioner must inclose the commis- 
 sion, interrogatories, expositions and exhibits in a 
 packet, and bind it with tape, and set his seal at the 
 several meetings or crossings of the tape, and direct it 
 " To the Register of the Circuit Court for the County 
 of Washtenaw in Chancery, at Ann Arbor, State of 
 Michigan." 
 
 Seventh. He must then deposit the commission in 
 the postoffice, unless there are written directions on 
 the commission to return the same another way. 
 
 To such commission are annexed the interrogatories 
 and cross interrogatories upon which the witnesses are 
 to be examined, as the same have been settled by the 
 commissioner ; e. </., 
 
 Direct and cross interrogatories to be administered 
 to the witness John Felix in pursuance of the com- 
 mission annexed.
 
 A SUIT IN EQUITY. 
 
 DIRECT INTERROGATORIES. 
 
 First. What is your name, age, occupation and 
 place of residence? 
 
 Second. Do you know the complainant and defend- 
 ant in this cause, and if so, how long have you known 
 them ? 
 
 Third. Do you know, tfec, &c. 
 
 Lastly. Do you know or can you set forth any 
 other matter or thing which may in any wise tend to 
 the benefit of the complainant in this cause ? If so, 
 set forth the same and all the circumstances and par- 
 ticulars thereof, according to the best of your knowl- 
 edge, remembrance and belief, with your reasons at 
 large. 
 
 L. G., Solicitor for Complainant. 
 
 CROSS INTERROGATORIES. 
 
 First. Did you during the month of October, 1885, 
 reside in the City of Sacramento in the State of Cali- 
 fornia? 
 
 Second. Did you during the month of October, 
 1885, and about the 15th, see the complainants at the 
 Park Hotel in said City of Sacramento? 
 
 Third. If yon answer yes to the second cross inter- 
 rogatory above, state if you had any conversation with 
 said complainant at said time and place? 
 
 Fourth. If you answer yes to the third cross inter- 
 rogatory above, state such conversation in full. 
 
 Fifth. Did not the complainant say to you, etc., 
 &c. 
 
 Lastly. Do you know or can you set forth any 
 other matter or thing which may in any way tend to 
 the benefit of the defendant in this cause? If so, set 
 forth the same and all the circumstances and particu- 
 lars thereof according to the best of your knowledge, 
 remembrance and belief, with your reasons at large. 
 
 M. M., Solicitor for Defendant.
 
 A SUIT IX EQUITY. 30 
 
 Upon the return of the commission, the register is 
 required to open and endorse upon it the date of its 
 receipt. He is also to notify the solicitor in whose 
 behalf the testimony was taken of its receipt, and such 
 solicitor must notify the opposite solicitor. If there 
 has been any irregularity or informality in the taking 
 of the deposition which the opposing solicitor wishes 
 to take advantage of, he must to do so by making a 
 motion to suppress the deposition, and give notice of 
 such motion to the other solicitor within the time pre- 
 scribed. 
 
 Proofs having been closed and the testimony taken 
 filed in the court, the cause is read)' for hearing upon 
 pleadings and proofs. 
 
 NOTICE OF HEARING. 
 
 Either party may notice the cause for hearing. 
 Such notices must be in writing and served upon the 
 opposing solicitor; e. </., 
 
 TITLE. 
 
 Sir — Take notice, that the above entitled cause will 
 be brought on for hearing at the next term of said 
 court, on pleadings and proofs (or on bill and answer 
 or on &c, as the case ma} 7 be), at the opening of the 
 court on the first day thereof, or as soon thereafter as 
 counsel can be heard. 
 
 Dated this day of . 
 
 J. K., Solicitor for Complainant. 
 To M. M., Solicitor for Defendant.
 
 40 A SUIT IN EQUITY. 
 
 NOTE OF ISSUE. 
 
 The solicitor noticing the cause for hearing at any 
 term of court must furnish the register with a note of 
 issue, so that he may place the cause on the court 
 calendar. Causes in equity may be noticed during 
 term. In such case no note of issue need be given ; 
 e. g., 
 
 TITLE. 
 
 The above entitled cause will be brought on for 
 hearing at the next term of this court, notice having 
 been served on the part of the complainant on M. M., 
 Esq., solicitor for defendant. You will place said 
 cause on the issue docket of this court. This cause 
 belongs to the 4th class and is to be heard on pleadings 
 and proofs and is entitled to priority from July 1, 
 18S8. 
 
 J. K., Solicitor for Complainant. 
 To the Register of said court. 
 
 HEARING OF THE CAUSE. 
 
 Upon the hearing of a cause the rules require that 
 the court shall be furnished with certain abstracts of 
 the proceedings. Rules 62 and 65. When it is heard 
 on pleadings and proofs, the court is to be furnished 
 by the complainant with a statement showing when 
 the bill, answer and other pleadings were filed, the 
 names of the original parties in full, the change of 
 parties, if any has taken place pending the suit, a brief 
 history of the proceedings in the cause containing an 
 abbreviation of the pleadings not exceeding one-sixth 
 of the folios contained in the original pleadings
 
 A SUIT IN EQUITY. 41 
 
 respectively, and also with copies of the pleadings 
 and of the depositions, and with short abstracts of the 
 exhibits. These rules are not enforced in many of 
 the circuit courts, but a solicitor alive to the interests 
 of his clients will not disregard them, and he will, in 
 addition to what the rules require, furnish the court 
 with a caref ully prepared abstract of all the testimony 
 in his favor, containing extracts from such testimony 
 with references to the page of the proofs on file from 
 which they are taken. 
 
 CASE AND ABBREVIATIONS OF PLEADINGS. 
 
 TITLE. 
 
 The bill in this cause was iiled 
 
 The answer was tiled — ■. 
 
 The replication was filed 
 
 An order to take proofs was entered . 
 
 The following witnesses have been examined, viz : 
 A. B., C. D., and E. F., on the part of complainant, 
 and A. L., D. M., and P. M., on the part of defendant. 
 
 The object of the bill is to (state the object as 
 shown by the praj'er for relief). , 
 
 ABSTRACT OF PLEADINGS. 
 
 Bill states that (give all the facts charged in the 
 stating part of the bill in as condensed a form as pos- 
 sible, and by paragraphs, numbering the paragraphs 1, 
 2, 3, &c.) Answer on oath waived. 
 
 ANSWER. 
 
 1. Admits all the facts in paragraph one of bill 
 above except, &c. 
 
 2. Denies that, &c, as stated in paragraph two, but 
 admits, &c. 
 
 A. C. , Solicitor for Complainant.
 
 42 A SUIT IN EQUITY. 
 
 Upon the hearing complainant opens the argument. 
 It is usual for the court to request the solicitor for 
 complainant to give a statement of the case made by 
 the bill and a statement of the testimony sustaining 
 the complainant's contention, and then to call upon 
 the solicitor for defendant to make a brief statement 
 of the defence, as shown by the pleadings and proofs. 
 When the court has obtained in this manner a clear 
 conception of the case in all its bearings, the regular 
 argument is made and the cause submitted to the 
 court. At the time the cause is submitted, or on some 
 other day, the court announces its decision. This 
 decision is frequently given orally, the solicitors being 
 present. Sometimes a written memorandum of the 
 decision is made and filed by the court, at the time he 
 announces his decision, and sometimes the register 
 makes a minute of the decision in his minute-book. 
 The party in whose favor the decision is made then 
 prepares a draft of such a decree as he thinks he is 
 entitled to in accordance with the terms of the deci- 
 sion, and serves a copy upon the other solicitor, who 
 has a right to propose amendments to it, if he thinks 
 proper so to do. The draft and amendments, if any, 
 are then submitted to the court, and the solicitors are 
 heard upon the settlement thereof. 
 
 When the decree has been settled it is entered by 
 the register upon the journal. It is considered as 
 entered from the time it is settled and filed with the 
 register.
 
 A SUIT IN EQUITY. 43 
 
 A DEOBEE IX EQUITY. 
 
 Decrees in general consist of three parts: 1. The 
 date and title. 2. The recitals. 3. The ordering 
 part, to which is sometimes added : 4. The declara- 
 tory parti When this latter part is made use of, it 
 generall}' precedes the ordering part. 
 
 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. It was the 
 practice at one time to recite at length the pleadings 
 and evidence in the cause, but now the decree merely 
 recites the substance of the pleadings and the facts on 
 which the court founds its judgment. After the 
 recitals comes thp ordering or mandatory part of the 
 decree, containing the specified directions 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. When the suit seeks a declaration of 
 .the right of the parties, the ordering part of the 
 decree should be prefaced by such declaration. 
 
 The following is the form of a decree as formerly 
 rendered by the Court of Chancery in England: 
 
 DATE AND TITLE. 
 
 This cause, coming on this day to be heard and 
 debated before the Honorable the Lord High Chan- 
 cellor of Great Britain, in the presence of counsel 
 learned on both sides, the substance of the complain- 
 ant's bill seemed to be that, ifec. (Here the complain- 
 ant's bill is shortly recited.) Therefore, that the said 
 defendant may pay, etc. (the prayer of the bill), and
 
 44 A SUIT IN EQUITY. 
 
 to be relieved, is the scope of the complainant's bill ; 
 whereto the counsel for the defendant alleged that he 
 by answer admits, etc. (the substance of the answer 
 stated) ; whereupon, and upon debate of the matter, 
 and hearing the answers of the defendants, etc., and 
 the proofs taken in this cause read, and what was 
 alleged by the counsel on both sides, his lordship 
 declared that, etc (the decree of the court). 
 
 THURLOW C. 
 WINTER, for the Complainant. 
 
 DECREE AND ORDER OF SALE IN FORECLOSURE OF 
 MORTGAGE. 
 
 The following is the usual form of a final decree and 
 order of sale in tin's State in a suit to foreclose a mort- 
 gage : 
 
 State of Michigan — In the Circuit Court for the 
 County of Washtenaw — In Chancery. 
 
 C. D.. -i 
 
 Complainant, 
 
 vs. y 
 
 D. F., | 
 
 Defendant. J 
 
 At a session of said court held at Ann Arbor on the 
 first day of October, one thousand eight hundred and 
 eighty-eight. 
 
 Present, Hon. C. K., circuit judge. 
 
 This cause came on to be heard, and was argued by 
 counsel ; and thereupon, upon consideration thereof, it 
 was ordered, adjudged and decreed as follows, viz.: 
 
 On reading and filing the report of L. F., one of 
 the circuit court commissioners of Washtenaw county, 
 which report bears date the third day of August in 
 in the year one thousand eight hundred and eighty- 
 eight, and was made in pursuance of an order of this 
 court heretofore made in this cause, referring it to 
 one of the circuit court commissioners of this county
 
 A SUIT IN EQUITY. 45 
 
 to compute the amount due to the complainant on the 
 
 note and mortgage mentioned and set forth in the bill 
 of complaint, from which it appears that there was 
 due to the said complainant at the date of said report, 
 for said principal and interest the sum of three thou- 
 sand and twenty dollars, and on reading and filing the 
 affidavit of B. J., solicitor for complainant, showing 
 the regularity of the proceedings in this cause, to take 
 said bill of complaint as confessed ; and on motion of 
 B. J., counsel for the complainant, it is ordered, 
 adjudged and decreed, and this court, by virtue of the 
 authority therein vested, doth order, adjudge and 
 decree, that the said report, and all things therein 
 contained, do stand ratified and confirmed. And it is 
 further ordered, adjudged and decreed, that the 
 defendant pay or cause to be paid to said complainant 
 or to B. J., his solicitor, the amount so reported due 
 as aforesaid, together with the interests and costs, on 
 or before the first day of December, in the year one 
 thousand eight hundred and eighty-eight, and in de- 
 fault thereof, that all and singular the said mortgaged 
 premises mentioned in the bill of complaint in this 
 cause, and hereinafter described, or so much thereof 
 as may be sufficient to raise the amount due to the 
 complainant for the principal, interest and costs in 
 this case, and which may be sold separately without 
 material injury to the parties interested, be sold at 
 public auction, by or under the direction of L. F., one 
 of the circuit court commissioners of this county at 
 any time after the first day of December in the year 
 one thousand eight hundred and eighty-eight, that the 
 said sale be made in the county where the said mort- 
 gaged premises, or the greater part thereof, are situ- 
 ated ; that the said L. F. give public notice of the 
 time and place of such sale, according to the course 
 and practice of this court, and that the complainant, 
 or any of the parties in this cause may become the 
 purchaser ; that the said L. F. execute a deed to the
 
 16 A SUIT IN EQUITY. 
 
 purchaser or purchasers of the mortgaged premises on 
 the said sale ; and that the said L. F., out of the pro- 
 ceeds of said sale, pay to the complainant, or his solici- 
 tor, costs in the suit to be taxed, and also the amount 
 so reported to be due as aforesaid, together with the 
 legal interest thereon, from the date of said report, or 
 so much thereof as the purchase money of the mort- 
 gaged premises will pay of the same ; and that the 
 said L. F. take the receipt for the amount so paid, and 
 rile the same with his report ; and that he bring the 
 surplus money arising from said sale, if any there be, 
 into court without delay, to abide the further order 
 of this court. And it is further ordered, adjudged 
 and decreed, that the defendant and all persons claim- 
 ing or to claim from or under said D. F., defendant, 
 be forever barred and foreclosed of and from all 
 equity of redemption, and claim of, in and to said 
 mortgaged premises, and every part and parcel thereof. 
 And it is further ordered, that the purchaser or pur- 
 chasers of said mortgaged premises at such sale, be let 
 in possession thereof ; and that any of the parties of 
 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, deliver possession 
 thereof to such purchaser or purchasers, on produc- 
 tion of the circuit court commissioner's deed for such 
 premises, and a certified copy of the order confirming 
 the report of such sale, after such order has become 
 absolute. And it is further ordered and decreed, that 
 if the moneys arising from said sale shall be insuffi- 
 cient to pay the amount so reported due to the com- 
 plainant with interest and costs and expenses of sale 
 as aforesaid, that said L. F., circuit court commissioner, 
 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 D. F., who was person- 
 ally liable for the debt secured by said mortgage, pay
 
 A SUIT IN EQUITY. 47 
 
 to the complainant the amount of such deficiency, 
 with interest thereon from the date of such report, 
 and that the complainant have execution therefor. 
 The description and particular boundaries of the 
 property authorized to be sold under and by virtue of 
 this decree, so far as the same can be ascertained from 
 the mortgage above referred to or from the bill of 
 complaint in this cause, are as follows, viz.: Lot one 
 in block two, according to the original plat of the vil- 
 lage, now city, of Ypsilanti, in the county of Washte- 
 naw, according to the recorded plat thereof in the 
 register's office in said county. 
 
 C. K., Circuit Judge. 
 
 RECTIFYING DECREES. 
 
 After the court has formally announced its decision 
 and until the decree has been settled and entered, 
 either party feeling himself aggrieved may move the 
 court for a re-argument of the cause or that certain 
 parts of the decision be modified. 
 
 After the decree has been settled and entered and 
 before it is enrolled, either party may petition the 
 court for a re-hearing. The petition must state par- 
 ticularly the objections which are conceived to lie 
 against the decree, that the court may be competent to 
 decide upon the propriety of the application ; and if 
 the whole decree is objected to, the case of the peti- 
 tioner and the decretal part of the order are shortly 
 set forth, and an intimation is given of the decree 
 which the petitioner is advised ought to be entered. 
 If any of the facts stated in the petition do not appear 
 on the records of the court, they must be verified bv 
 affidavit. The petition for re-hearing must be accom-
 
 48 A SUIT IN EQUITY. 
 
 panied by the certificate of two counsel, setting forth 
 that they have examined the case, and that in their 
 opinion the decree is erroneous for the reasons stated. 
 This precaution is taken as a security that the appli- 
 cation is not made for the purpose of delay merely. 
 
 AFTEE ENROLLMENT. 
 
 The general rule is that a decree regularly obtained 
 and enrolled cannot be altered except by a Bill of 
 Review. 
 
 COSTS. 
 
 It is a general doctrine of courts of equity that 
 costs are entirety in the discretion of the court, to be 
 awarded or withheld according to the equity of each 
 particular case. This discretion is not a mere whim- 
 sical one, however, but is based upon certain fixed 
 principles, and as a general rule the prevailing party 
 is entitled to costs. When a party is entitled to costs, 
 he must apply for them and have their payment made 
 a part of the order or decree. When a definite sum 
 is allowed, as on overruling a motion, no further pro- 
 ceedings are necessary to fix the liability of payment 
 upon the party against whom the costs are given. In 
 final decrees the order is usually upon payment of 
 costs to be taxed. In that case the party in whose 
 favor the costs are to be allowed makes out a taxed 
 bill of costs which he thinks he is entitled to, verified 
 by affidavits, serves a copy upon the solicitor of the 
 opposing party, with notice that application will be 
 made to the register to have the same taxed at a cer-
 
 A SUIT IN EQUITY. 49 
 
 tain time and place. At such time and place the 
 costs are taxed by the register. 
 
 TAXED BILL OF COSTS. 
 
 TITLE OF CAUSE AND COURT. 
 
 COMPLAINANT S BILL OF COSTS. 
 
 Solicitor fee by rule $30 00 
 
 Sheriff's fees 10 00 
 
 Register's fees 15 00 
 
 Circuit Court Commissioner's fees 28 00 
 
 Witness fees, viz. : 
 
 A. B., 2 days and 20 miles travel $4 00 
 
 C. D., 1 day and 10 " " 2 00 
 
 L. G., 5 days and 30 " " 8 00—14 00 
 
 $97 00 
 STATE OF MICHIGAN. } OQ 
 Washtenaw County. > 
 
 L. C, being duly sworn, says that he is the solicitor 
 for the complainant in the above entitled cause, and 
 that the several items of disbursement and fees of offi- 
 cers of the court, charged in the foregoing bill of costs, 
 have been actually and necessarily incurred or paid, 
 according to his best information or belief. 
 
 L. C 
 
 Subscribed and sworn to before me this day 
 
 of ,188—. 
 
 X. Y., Notary Public. 
 
 ENROLLMENT OF DECREE. 
 
 The decree is enrolled in the following manner : 
 The register of the court in which the decree is entered 
 attaches together the bill, pleadings and such other 
 papers as the general rules direct, together with the 
 taxed bill of costs therein, and annexes thereto a fair 
 engrossed copy of the decretal order, signed by the 
 
 4
 
 50 A SUIT IN EQUITY. 
 
 circuit judge and countersigned by the register who 
 entered the same. The register then annexes to the 
 papers so attached together his certificate, under the 
 seal of the court, wherein he certifies according to the 
 fact, the time when the papers were attached together, 
 for the purpose of enrollment, and the names of the 
 parties at whose instance the same was done. 
 
 BILL OF REVIEW. 
 
 If, after the enrollment of the decree, any new 
 matter of j evidence be discovered, which could not 
 have been had or used when the decree was rendered, 
 or if any apparent error of judgment appear on the 
 face thereof, it may be reconsidered by means of a 
 bill of review. 
 
 When the bill of review is founded upon errors 
 apparent on the face of the decree, it may be filed 
 without leave of the court. When it is founded upon 
 newly discovered evidence, leave of the court must be 
 first obtained, and such leave will be given or withheld 
 in the discretion of the court. 
 
 This bill must recite the former bill and the pro- 
 ceedings had under it and the former decree of the 
 court. If it is founded upon error apparent on the 
 face of the decree, such error is specifically pointed 
 out. If upon facts which have come to light since 
 the hearing, those facts are stated, and when and how 
 they come to the knowledge of the complainant, after 
 which it is usual to add, just before the prayer for 
 subpu'na :
 
 A SUIT IX EQUITY. 51 
 
 " For all which errors and imperfections in the said 
 decree, your orator has brought this his hill of review, 
 and humbly conceives he should be relieved therein. 
 In tender consideration whereof, and for that there are 
 divers other errors and imperfections in said decree 
 and proceeding, by reason whereof the same ought to 
 be reviewed and reversed, added to, altered and 
 amended, and that the said 0. D. may answer the 
 premises, and that your orator may be relieved in all 
 and singular therein, according to equity and good 
 conscience. 
 
 May it please, etc." 
 
 Besides bills of review, there are two other classes 
 of bills which are exhibited subsequently to a decree, 
 namely : Bills to impeach a decree on account of 
 fraud, and bills to carry decrees into execution. If a 
 decree has been obtained by fraud, it may be im- 
 peached by an original bill without the leave of the 
 court, because the fraud used in obtaining the decree 
 being the principal point at issue, and necessary to be 
 established by proof before the propriety of the decree 
 can be investigated. When a decree has been thus 
 obtained, the court will restore the parties to their 
 original situation, whatever their rights may be. The 
 prayer of such a bill must be varied to meet each case 
 — especially if the decree has been executed. 
 
 Sometimes from the neglect of the parties, or other 
 reason, it becomes impossible to carry a decree into, 
 execution without the further order of the court. 
 This happens, generally, when the rights of parties 
 under the decree have become so entangled and embar- 
 rassed, from their neglect to proceed under it, by sub-
 
 52 A SUIT IN EQUITY. 
 
 sequent events, that it is necessary to have a decree 
 of the court to settle and ascertain them. This is 
 obtained by filing a bill in the nature of an original 
 bill to carry into execution the former decree. The 
 ■court in such cases merely determines in what manner 
 the former decree shall be executed, so as to do equity 
 to all the parties. 
 
 APPEALS. 
 
 There is usually a court to which the party, who 
 -deems himself aggrieved by the decree of the court 
 in which the suit is commenced, may appeal, and if 
 both parties desire, both may appeal. In this State 
 an appeal is taken from the Circuit Court in Chan- 
 cery to the Supreme Court. This is a purely statu- 
 tory right, and the provisions of the statute must be 
 strictly complied with. 
 
 Notice of claim of appeal is to be filed with the 
 register, together with the bond provided for in the 
 statute, and notice that an appeal has been taken 
 served upon the opposite solicitor. When the appeal 
 has been perfected, the register transmits the records 
 to the Supreme Court. 
 
 In the Supreme Court no further proof is taken, 
 but the cause is heard there upon the same pleadings 
 or pleadings and proofs as were before the Circuit 
 .Court, when it made the final order or decree from 
 which the appeal was taken. 
 
 The practice in the Supreme Court and the enforce- 
 ment of a decree, its execution, we do not examine, 
 but close our analysis of a suit in equity at this stage 
 of the proceedings.
 
 EQUITY PLEADING AND PRACTICE 
 
 LECTURE I. 
 
 PARTIES TO A SUIT IN EQUITY. 
 
 It is necessary for the pleader to determine, first of 
 all, what persons he shall make parties to the bill. It 
 is a rule of law, recognized by all courts, that no one's 
 rights, either of person or property, shall be adjudi- 
 cated unless he is present in court. Every one is 
 entitled to be heard, to have his day in court. It fol- 
 lows, therefore, from this rule that every person 
 against whom the pleader desires to obtain a personal 
 decree, that is a decree requiring him to do or to refrain 
 from doing some particular act, must be made a party. 
 Again a court of equity insists that all persons whose 
 interests will be affected adversely by the decree shall 
 be before the court, to the end that one litigation may 
 put at rest forever the controversy in all its ramifica- 
 tions. Combining these two rules we have the gen- 
 eral rule as to the proper parties to a suit in equity. 
 U A11 persons having an interest in the subject and 
 object of the suit, and all persons against whom relief 
 must be obtained in order to accomplish the object of 
 the suit, must be made parties." 
 
 [531
 
 54 EQUITY PLEADING AND PRACTICE. 
 
 Stevenson v. Austin, 3 Met. 474, 480; West v. Randall, 2 
 Mason 181; Walkins v. Worthington, 2 Bland 509; Russell v. 
 Clark, 7 Cranch 74; Williams v. Bankhead, 19 Wal. 563; McAr 
 thur v. Scott, 113 U. S. 340. 
 
 The parties to a suit in equity are styled plaintiffs 
 and defendants as at law, but while at law the inter- 
 ests of all the plaintiffs is adverse to that of all the 
 defendants, in equity the interest of the party does not 
 determine the question as to whether he is plaintiff or 
 defendant. It frequently happens that some of the 
 defendants to a suit have interests which are identical 
 with those of some of the plaintiffs. It is desirable 
 that all the persons having interests that will be 
 affected in the same manner should be arranged on the 
 same side, but it is far from necessary, and if any per- 
 son whose natural position is among the plaintiffs re- 
 fuses to so appear he can be made a defendant, and 
 the fact that he is a defendant will not affect his 
 rights. The court in ascertaining and determining 
 the rights and interests of the several parties to the 
 controversy does so without considering at all the fact 
 as to whether they are plaintiffs or defendants. 
 
 Contee v. Dawson, 2 Bland 264, 292 ; Fawkes v. Pratt, 1 Pere 
 Wm. 593; Bedford v. Leigh, 1 Dickens 707. 
 
 " All persons having an interest in the subject-matter 
 of the suit" refers to those having an interest which 
 will be affected by the decree rencfered. 
 
 Mich. State Bank v. Gardner, 3 Gray 305, 308. 
 
 The court will in its discretion, modify the rule 
 that all persons having an interest in the subject-
 
 EQUITY PLEADING AND PRACTICE. 55 
 
 matter must be made parties when its strict enforce- 
 ment would be equivalent to denying relief alto- 
 gether. 
 
 Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 349; Hallettv.Hal- 
 lett, 2 Paige 15; Cullen v. Duke of Queensbury, 1 Br. C. C. 101; 
 Whitney v. Mayo, 15 111. 251; Society for the Propagation of the 
 Gospel v. Hartland, 2 Paine C. C. 536. 
 
 When it appears that one or more who of right 
 ought to be made parties, are out of the jurisdiction 
 of the court, or that making them parties would oust 
 the court of jurisdiction, the court may proceed with- 
 out their presence, provided the interests of those 
 made parties are such that the controversy can be 
 satisfactorily determined as to them, without prejudic- 
 ing the rights of those not made parties. 
 
 Mulligan v. Melledge, 3 Cranch 220; Elmendorf v. Taylor, 10 
 Wheat. 152 ; Mallow v. Hinde. 12 Wheat. 193 ; Payne v. Hook, 
 7 Wall. 425 ; Bank v. Campbell, 14 Wall. 87 ; Story v. Living- 
 stone, 13 Pet. 359. 
 
 And when the parties on either side are very numer- 
 ous, and cannot, without inconvenience and delay, be 
 all brought in, the suit may proceed if all the adverse 
 interests are sufficiently represented by the parties 
 before the court. 
 
 Mandeville v. Riggs, 2 Pet. 482; Williams v. Bankhead, 19 
 Wall. 563; Robinson v. Smith, 3 Paige 222. 
 
 When parties who are known to be interested in the 
 suit are not made parties to the bill, the reason for 
 not making them parties should be set forth, because 
 if the interest of those not made parties is such that 
 a final decree cannot be made without injuriously
 
 56 EQUITY PLEADING AND PRACTICE. 
 
 affecting their interests, the court will require them 
 to be made parties, and if that cannot be clone the" bill 
 will be dismissed. 
 
 Riddle v. Mandeville, 5 Cranch 322; Russell v. Clark, 7 
 Cranck74: Marshall v. Beverly, 5 Wheat. 313; Mallow v. Hinde, 
 12 Wheat. 193; Barney v. Baltimore, 6 Wall. 280; Bank v. Rail- 
 road, 11 Wall. 624; Bank v. Campbell, 14 Wall. 87; Ribon v. 
 Railroad, 16 Wall. 446; Ober v. Gallagher, 93 U. S. 199; Cassidy 
 v. Shimin, 122 Mass. 406; McPike v. Wells, 54 Miss. 136; Tyler 
 v. Peatt, 30 Mich. 63. 
 
 Persons incapable of instituting suits for themselves 
 may sue by guardian or prochein ami, and the court 
 will appoint a guardian ad litem to defend a suit on 
 behalf of such a person. 
 
 U. S. Rule 87; Puterbaugh Ch. Pr., Chap. 40, § 1. 
 
 To illustrate the rule as to parties, take the case of 
 the foreclosure of a mortgage. 1. All persons against 
 whom a personal decree is desired must be made par- 
 ties ; that is, the maker of the note, the mortgage was 
 given to secure and other persons liable upon the note 
 as endorsers, &c. 2. All persons who have a right to 
 redeem from the mortgage lien must be made parties ; 
 that is, all who have any interest in the premises cov- 
 ered by the mortgage, and all who hold liens upon 
 them created subsequent to the mortgage being fore- 
 closed. 
 
 Cummings v. Fearey, 44 Mich. 39, 44; McGown v. Yerks, 6 
 Johns. Ch. 450; Reed v. Marble, 10 Paige 409; Goodenow v. 
 Ewer, 16 Cal. 461. 
 
 And it has been held that prior incumbrancers are 
 proper although not indispensable parties.
 
 EQUITY PLEADING AND PKACTIOE. 57 
 
 Haines v. Beach, 3 Johns. Ch. 459; Finley v. Bank, 11 Wheat. 
 304. 
 
 In a partition suit, all persons having an interest in 
 the premises, whether in possession or otherwise, even 
 a dower interest, which has not been admeasured, 
 must be made a party. 
 
 Striker v. Mott, 2 Paige Ch. 387. 
 
 In proceedings to enforce a mechanics' lien, all per- 
 sons having interests in the property affected or to be 
 affected by the lien, and all persons holding like liens 
 must be made parties. 
 
 Loniax v. Dore, 45 111. 379; Raymond v. Ewing, 26 111. 329. 
 
 Parties to a suit are sometimes designated as nom- 
 inal, proper or necessary, and indispensable. A 
 nominal party is one who has no legal or equitable 
 interest to be affected by the decree, but who stands 
 in such a relation to some of the other parties that he 
 is made a party for the sake of conformity. 
 
 A proper or necessary party is one who has such an 
 interest in the suit that he should be made a party to 
 enable the court to adjust all the rights involved. 
 
 An indispensable party is one whose interests are 
 such that a decree cannot be made without affecting 
 him. 
 
 Tobin v. Walkinshaw, 1 McAllister 26, 31 ; Shields v. Barrow, 
 17 Howard 130, 139. 
 
 The distinction between an interest in the suit and 
 an interest in the subject-matter of the suit, must be 
 borne in mind. One may have an interest in the
 
 58 EQUITY PLEADING AND PRACTICE. 
 
 subject-matter of the suit and have no interest in the 
 suit ; but having an interest in the suit presupposes 
 an interest in the subject-matter. For example, sup 
 pose A and B both claim title to a parcel of land, one 
 from the National and the other from the State gov- 
 ernment, and that several persons are interested as 
 mortgagees or otherwise under A, and others are 
 interested in like manner under B. Now, to a suit 
 involving the conflicting titles of A and B, both A 
 and B and all the persons interested under either of 
 them are necessary parties, but in a suit for the fore- 
 closure of a mortgage given by A, neither B nor any 
 person claiming under him is a proper party, because 
 the foreclosure of A's mortgage does not affect B or 
 any one claiming under him. 
 
 You must, therefore, in determining who ought to 
 be made parties to a particular suit, ascertain first who 
 are interested in the subject-matter, and secondly, 
 which of those so interested will be affected by the 
 decree you hope to obtain. The latter are to be made 
 parties and they only. If you make the others par- 
 ties, there will be a misjoinder. 
 
 "When the pleader is in doubt as to whether or not 
 a particular person is a proper party, it is advisable to 
 omit him, since if it should be found afterwards that 
 he is a necessary party he may be added. ' And if 
 such a person is made a party in the first instance, he 
 should be made a party defendant rather than com- 
 plainant. When parties are improperly joined as 
 complainants, the misjoinder is usually fatal, but when
 
 EQTJITT PLEADING AND PKACTICE. 59 
 
 there has been a misjoinder of defendants, the suit 
 wiil usually be dismissed as to those who are not 
 proper parties and proceed as to the others. 
 Daniel Ch. Pr., Chap. 5. 
 
 MULTIFARIOUSNESS. 
 
 Not all persons whose interests will be affected by 
 the decree are indispensable parties, and they are not 
 always proper parties. The rule that the whole of a 
 given controversy must be determined in one pro- 
 ceeding is limited by another rule which prohibits 
 uniting in one suit two or more causes of action. 
 For example, suppose A is about to erect on a stream 
 a mill-dam which B claims will necessarily cause the 
 water to overflow a portion of his lands above the dam, 
 and C claims that such dam will necessarily interfere 
 with his rights in the stream below the dam. Both 
 B and C desire that A should be enjoined from erect- 
 ing such dam, and both are interested in and will be 
 affected by a suit instituted for that purpose, but they 
 may not unite in a bill filed to enjoin A from erecting 
 such dam, for the reason that there are two separate 
 and distinct contentions, and the flooding of B's land 
 above the dam has no connection with C's rights in 
 the stream below the dam. They must bring separate 
 suits, and if they join in the same bill it is said to be 
 multifarious. 
 
 1 Don. Ch. Pr. 382, note. 
 
 Again, suppose there are several persons having 
 land in the same situation as B, which will be affected
 
 60 EQUITY PLEADING AND PRACTICE. 
 
 by the proposed dam in the same manner, they are all 
 proper parties complainant, having all the same 
 plaint, but they are not required to unite, and if any 
 of them refuse to do so they may not be made parties 
 defendant, for this reason, that they have no interest 
 in the other lands flooded, and as to their own lands 
 they may not be compelled to litigate. The subject- 
 matter of the controversy is the effect of the dam 
 upon the lands mentioned in the bill, and its effect 
 upon other lands is outside the record. 
 
 Judge Campbell, of this State, has given the fol- 
 lowing rule as to multifariousness: "The general 
 rule of equity is that every several grievance must be 
 redressed by a several proceeding. The only recog- 
 nized exception to it (and they are considerably quali- 
 fier!) are instances where there is a single right asserted 
 on one side which affects all the parties on the other 
 side in the same way, or a single wrong which falls on 
 them all simultaneously and together. The instances 
 which are most familiar are rights in common which 
 are resisted by the owner of the estate which is 
 charged, tax rolls assessing all parties on an equal ratio, 
 frauds by trustees affecting all the cestius que trustent, 
 and the like. * * * * If there is any distinction 
 in the proportion or character of the several griev- 
 ances, there can be no joinder." 
 
 "When the cause of grievance does not arise out of 
 the same wrong, affecting all at once as well as simi- 
 larly, there is no foundation for such joinder."
 
 EQUITY PLEADING AND PRACTICE. 61 
 
 Winslow v. Jenness, 64 Mich. 84-87; Kerr v. Lansing, 17 Mich. 
 34; Walsh v. Varney, 38 Mich. 73; Bigelow v. Booth, 39 Mich. 
 622; Woodruff v. Young, 43 Mich. 548; Brunner v. Bay City, 46 
 Mich. 236; Jones v. Garcia Del Reo, 1 Turn. & R. 297; Yeaton 
 v. Lennox, 8 Pet. 123. 
 
 One of the instances mentioned by Judge Camp- 
 bell is that of several taxpayers who may unite when 
 a particular tax lias been assessed against all of them 
 upon the same roll upon the same basis. But in this 
 class of cases they must not only have a common 
 grievance, but that common grievance must be the 
 result of the same facts and circumstances. They 
 must not only all object to the same tax, but they 
 must have one common objection. For instance, if it 
 is a tax levied for the cost of some public improve- 
 ment, a paving tax, ditch tax, or the like, the 
 irregularity complained of must affect them all alike. 
 One cannot complain of one irregularity which makes 
 the tax void as to him, and another of some other 
 irregularity which makes the tax void as to him. If 
 each has a separate grievance, although it goes to the 
 whole tax or to some part of the tax, each must bring 
 a separate suit. 
 
 Kerr v. Lansing, 17 Mich. 34; Barker v. Vernon, 63 Mich. 516- 
 519; Scofield v. Lansing, 17 Mich. 437; Sherlock v. Wenitka, 59 
 111. 389. 
 
 A bill is not multifarious because it unites several 
 parties as defendants, each of whom is not interested 
 in the whole of the subject-matter of the suit. As 
 when a bill is filed against several persons, for 
 instance, for an accounting for a stock of goods which
 
 62 EQUITY PLEADING AND PRACTICE. 
 
 one of the defendants has fraudulently disposed of to 
 the others, who had knowledge and were parties to 
 the fraud. 
 
 Ingersoll v. Kerby, Walk. Ch. 65; Blake v. Van Tilbury, 21 
 Wis. 679; Fellows v. Fellows, 4 Cow. 682; BrinkerhofI v. Brown, 
 6 Johns. Ch. 139; Salvidge v. Hyde, 5 Madd. 138. 
 
 X 
 
 A bill filed for a partition of land between tenants 
 
 in common is not multifarious, because it asks for an 
 
 accounting as to the property and that a tax title 
 
 obtained by one of the tenants for a tax levied while 
 
 the land was owned in common. 
 
 Page v. Webster, 8 Mich. 263; Williams v. Gray, 3 Greenl. 
 207; Overton v. Woolfolk, 6 Dana, 374; Woodruff v. Young, 43 
 Mich. 548. 
 
 When several persons hold each a separate and dis- 
 tinct claim of title to a parcel of ground, one of them 
 tiling a bill to quiet title cannot unite the others in 
 the same bill as defendants; but if, before the suit is 
 commenced, the others should have each conveyed 
 his title to some one person, then all these several 
 titles, .or claims to title, could be litigated in the same 
 suit. 
 
 Hunter v. Piatt, 11 Mich. 264; Blackwood v. Van Vleet, 11 
 Mich. 252; Woods v. Monroe, 17 Mich. 237; Finch v. Martin, 
 19 111. 105. Contra, Alterauge v. Christiansen, 48 Mich. 60; 
 Hammontree v. Lott, 40 Mich. 190-193. 
 
 To determine whether a bill is multifarious, you 
 must look to the stating part and not to the prayer. 
 The prayer may ask for separate and distinct relief, 
 only a part of which the plaintiff is entitled to under 
 the case made in his bill.
 
 EQ1 m PLEADING AND PRACTICE. 63 
 
 Hammond v. Bank, Walk. Ch. 214, 247. 
 
 If the defendant thinks that a bill is multifarious, 
 and he desires to take advantage of that defect, he 
 should demur, for if he answers, and the objection is 
 made for the first time at the hearing, the court will 
 act wholly upon its own judgment as to whether, 
 under the pleadings and proofs, a decree can conveni- 
 ently, be made which will readily settle the adverse 
 interests of all the parties. The proofs may have 
 eliminated the objection altogether. And the court 
 will, after the proofs are taken, dispose of the whole 
 matter upon the merits rather than submit litigants 
 to further expense and delay. 
 
 Ryan v. Shawneetown, 14 111. 20; Burnett v. Lester, 53 111. 
 325; Beach v. Shaw, 57 111. 17; Greenwood v. Churchill, 1 Myl. 
 & K. 546; Olion v. Piatt, 3 How. Sup. Ct. 333; Nelson v. Hill, 
 5 How. (U. S.) 127; Campbell v. McKay, 1 Mylne & Craig 003, 
 618, 624; Chew v. Bank, 14 Md. 299; Bartlett v. Boyd, 34 Vt. 
 256: Hoggart v.Uutts, 1 Craig & Phil. 204, 205.
 
 64 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE II. 
 
 CHANCERY PLEADINGS AND PRACTICE 
 
 By chancery pleadings we understand the written 
 allegations of the respective parties; the plaintiff's 
 statement of the facts upon which he relies in order 
 to obtain the aid of the court, and the defendant's 
 reply thereto, his defence. 
 
 By the practice of the court we are to understand 
 all of the various proceedings in the suit, outside the 
 pleadings, from its commencement to its final deter- 
 mination. In theory and upon principle, pleadings 
 and practice are entirely separate and distinct, and 
 that fact should be continually kept in mind, but since 
 in the conduct of a suit, there is necessarily a step 
 taken in pleading followed by one in practice, it will 
 be more convenient and satisfactory to consider plead- 
 ings and practice together, as questions touching the 
 one or the other naturally arise in the conduct of a 
 suit. 
 
 THE FRAME OF THE BILL. 
 
 Before noticing the different parts of the bill it may 
 be said generally, that the whole bill should be drawn 
 with the utmost care. All the facts necessary to be 
 set forth at all should appear clothed in language sim- 
 ple, precise and certain, omitting nothing which ought 
 to be said and stating nothing which ought to have
 
 EQUITY PLEADING AND PRACTICE. 65 
 
 been omitted. Speaking of the degree of certainty 
 with which the allegations in the bill must be made, 
 Justice Story says " that there are three kinds of cer- 
 tainty applicable to different parts of the pleadings; 
 the first kind is certainty to a common intent, and that 
 is sufficient as a bar, which is sufficient to defend a 
 party, and to excuse him. The second is, certainty to a 
 certain intent in general, as in counts, replications and 
 other pleadings of the plaintiff; that is, to convict the 
 defendant as in indictments, etc. The third is, cer- 
 tainty to a certain intent in every particular, as in 
 estoppels, which are odious in the law." 
 
 Story Eq. PI. §240; Co. Litt. 303 a. 
 
 It is somewhat difficult to clearly distinguish these 
 different degrees of certainty from each other and 
 especially to indicate clearly the distinction betwi 
 the first and second which are often confounded both 
 by text writers and courts. There is a certainty to a 
 common intent, when the usual meaning of the words 
 used convey to the ordinary mind a clear statement of 
 a fact, although the same words may also have an 
 artificial meaning. 
 
 Dovastin v. Payne, 2 H. Black 530. 
 
 It is a rule of construction. Do the words used 
 express a clear and well defined idea, or is their mean- 
 ing uncertain or ambiguous? If there is uncertainty 
 or ambiguity they are not certain to a common intent. 
 As an illustration a suit of replevin was brought for 
 certain cattle. There was an avowry on the part of
 
 66 EQUITY PLEADING AND PRACTICE. 
 
 the defendant that the animals were distrained doing 
 damage to his close. The plaintiff to this pleaded that 
 the cattle were in the highway and from there escaped 
 into the close, which was not fenced as by immem- 
 orial custom the defendant was required to fence it. 
 To this plea the defendant demurred specialty, for 
 that the plaintiff did not state that the animals were 
 rightfnlly in the highway. The demurrer was held 
 good for the reason that the plea did not state 
 with certainty, to a common intent, that the cattle 
 were rightfully in the highway. The certainty to a 
 common intent must appear from the language of the 
 pleader and other words cannot be added thereto to 
 make his language certain and unambiguous. 
 
 Dovastin v. Payne, 2 H. Black 530. Fuller v. Hampton, 5 
 Conn. 416. 
 
 Certainty to a certain intent in general is required 
 in indictments charging a crime and may be illus- 
 trated as follows: Suppose a party is charged with 
 publishing a libel and the meaning which he intended 
 to convey is certain, plain and unambiguous to the 
 ordinary reader, but it is thus plain, certain and un- 
 ambiguous because the reader reads between the lines, 
 as it was intended he should do by the writer, and 
 there finds the real meaning. The language is sar- 
 castic. In such a case the pleader cannot set forth the 
 anguage simply, he must by innuendo, that is by com- 
 ment, charge explicitly the meaning the writer 
 intended to convey. 
 
 Rex v. Home, Cowp. (572, 682. Rex v. Linn, Regis. Doug. 158.
 
 EQUITY PLEADING AND PRACTICE. 07 
 
 Certainty to a certain intent in every particular is 
 when the pleader after pleading with certainty to a 
 common intent goes on to negative any and every 
 other possible construction of which the language used 
 is susceptible. 
 
 Certainty to a common intent is usually all that is 
 required of the pleader in equity. But this certainty 
 is made up of two distinct elements. 1. Certainty as 
 to the matter and 2. Certainty as to the manner of 
 charging it. 
 
 As to the matter. All the facts necessary to con- 
 stitute a case for the complainant must be stated with 
 the requisite certainty. For instance, if the pleader 
 desires to charge that the defendant has been guilty 
 of a fraud, since fraud is not a fact but a conclusion 
 of law, the pleader must set forth with certainty to a 
 common intent all the requisite elements constituting 
 the particular fraud of which he complains. 
 
 Or, again, if the pleader desires to compel the 
 defendant to carry out and fulfill a verbal contract 
 with regard to land, since a verbal agreement with 
 reference to land is within the statute of frauds and 
 not enforceable in a court of equity any more than at 
 law, unless it has been partially performed, or some 
 other equitable reason exists, the pleader must with 
 certainty to a common intent show that this particular 
 verbal contract has been taken out of the statute of 
 frauds by part performance or in some other manner. 
 
 So much for the matter. As to the manner each 
 of the allegations of fact, or circumstance, which it is
 
 68 EQUITY PLEADING AND PRACTICE. 
 
 necessary for the pleader to allege in order to consti- 
 tute a fraud or to show that the complainant is enti- 
 tled to a specific performance of the verbal contract, 
 must be stated with the requisite degree of certainty. 
 
 FORM OF THE BILL. 
 
 The address must contain a proper description of 
 the court in which it is filed, and since that differs in 
 the different states the bill must be varied accordingly. 
 (U. S. Ch. R. 20, and Mich. Oh. R. 4.) A bill which 
 is not properly addressed is defective. 
 
 Bow v. Butters, 2 Chicago Legal News 33. 
 
 INTRODUCTION. 
 
 Owing to the fact that the jurisdiction of the 
 United States is limited, it is necessary that the fact 
 of jurisdiction should appear upon the face of the 
 record. Therefore, the particular facts which give 
 the federal court jurisdiction should be clearly set 
 forth in the bill, whether they have reference to the 
 diverse citizenship of the parties, or the subject-matter 
 in controversy, otherwise the bill will be demurrable, 
 or may be dismissed by the court of its own motion. 
 
 Hornthal v. Collector, 9 Wall. 560; Hancock v. Holbrook. 112 
 U. S. 229; Everhart v. Huntsville College, 120 U. S. 223. 
 
 A corporation is deemed to be a citizen of the state 
 under whose laws it is organized. When a corpora- 
 tion is a party it should be described by its proper 
 name, followed by an averment that it is a corporation
 
 EQUITY PLEADING AND PRACTICE. 69 
 
 created and organized under the laws of the state of 
 
 , and has a place of business at . 
 
 Winneposaugee v. Young, 40 N. H. 420; Central Mnfg. Co. v. 
 Hartshorne, 3 Conn. 199; Penn. Co. v. Railroad, 118 U. S. 290; 
 Goodlett v. Railroad, 122 U. S. 391. 
 
 The court will take judicial notice of a public cor- 
 poration. 
 Withers v. Warner, 1 Str. 309. 
 
 A voluntary association has no right to sue in the 
 name of the association. The action must be brought 
 in the names of the persons composing the corporation. 
 
 Story Eq. PI. § 386; 1 Daniel Chy. Pr. 29, 30. 
 
 When a bill is filed by a person in a representative 
 capacity, the averment must be sufficiently full and 
 explicit to show that he has a right to maintain the 
 suit. Thus, when a bill was filed by persons who 
 described themselves as executors of the last will and 
 testament of A. B., but did not aver the death of A. 
 B., nor the probate of the will, the bill was held 
 fatally defective. But when the complainants de- 
 scribed themselves as administrators, who had been 
 duly appointed and were acting as such, the averments 
 were held sufficient. 
 
 Middlesworth v. Nixon, 2 Mich. 425; Manning v. Drake, 1 
 Mich. 34. 
 
 When a bill is filed by one of a class, it must be so 
 stated. 
 
 Bedford v. Leigh, 2 Dickens 707; Coshy v. Wickliffe, 7 B 
 Mon. 120.
 
 TO EQUITY PLEADING ANT) PRACTICE. 
 
 LECTURE III. 
 
 STATING PART OF THE BILL. 
 
 The very marrow and pith of a bill in equity is 
 found in the statimg^art. It is here that the ability, 
 learning anA jwy of the pleader is made to appear. 
 OutsidU^of Tjhe stating part, the bill can be built up 
 and patlddd % out [with the dry formula supplied by pre- 
 djed£ntk]>nt in tile stating part, precedents and formula 
 can render little service, since in each instance it must 
 be Wried to embody the particular facts and circum- 
 stances of the particular case in hand. General rules 
 only, for the guidance of the practitioner, can be given ; 
 his success will depend upon that skill which comes 
 from a union of learning and practice. 
 
 In drafting the stating part, the pleader must bear 
 in mind : 
 
 4. That he must state facts, and that such facts must 
 be stated directly and positively, and not inferentially. 
 *2. He must show that the court has jurisdiction. 
 ^3. That the complainant is entitled to the relief 
 prayed for. 
 
 }■ 4. That all the persons interested in the subject- 
 matter of the controversy are made parties to the suit. 
 
 The order in which such facts shall be set forth is 
 left wholly to the judgment and taste of the pleader. 
 The arrangement should be such that the narration
 
 EQUITY PLEADING AND PRACTICE. 71 
 
 will arrest the attention and interest the eonrt, and 
 each statement should be set forth with that precision, 
 force and felicity of expression as will insure recollec- 
 tion, and the spirit pervading the whole must, while 
 it is vigorous and aggressive, be so tempered with fair- 
 ness and justice, that the judgment of the court will 
 be unconsciously convinced of the manifest equity of 
 the plaintiff's cause. 
 
 The bill should contain allegations of fact, and not 
 mere recitals of circumstantial evidence from which 
 a fact may be inferred. The allegations must be 
 plainly and distinctly made, so that the defendant 
 may be explicitly informed of the claim made against 
 him, and the theory upon which the complainant 
 intends to rely. 
 
 Wilson v. Eggleston, 27 Mich. 257; Search v. Search, 12 C. E. 
 Green 137. 
 
 When the facts are within the knowledge of the 
 
 complainant, they must be charged positively, but 
 
 when such facts are not within his knowledge, they 
 
 may be stated upon the information and belief of 
 
 complainant, followed by the averment, that he 
 
 charges them to be true. 
 
 Wells v. Bridgeport, 30 Conn. 316j Campbell v. Railroad Co. 
 71 111. 611. 
 
 Charging a fact upon information and belief alone 
 is insufficient, because a traverse of such an allegation 
 puts in issue, not the existence of the fact, but the in- 
 formation and belief. 
 
 Ex parte Re id, 50 Ala. 439.
 
 72 EQUITY PLEADING AND PRACTICE. 
 
 It is sometimes difficult to determine whether a 
 particular fact has been averred directly or inferen- 
 tially. If from the facts which are directly and 
 positively averred, the existence of some other fact is 
 necessarily and conclusively presumed, such other fact 
 has been sufficiently alleged, but anything short of 
 such conclusive presumption is regarded as mere infer- 
 ence, and will not be considered. 
 
 And it has been held that when the statute required 
 
 the agreement set forth in the bill to be in writing, 
 
 and there was no direct averment that it had been 
 
 reduced to writing, but a positive allegation of an 
 
 agreement, that the court would presume it was a 
 
 legal agreement. But on the other hand, if it 
 
 appeared elsewhere in the bill, that the agreement was 
 
 in parol, the objection could be taken advantage of by 
 
 demurrer. 
 
 Dudley v. Bachelor, 53 Me. 403; Cozine v. Graham, 2 Paige 
 177; Macy v. Guilders, 2 Tenn. Ch. 43S, 442; Redding v. Wilkes, 
 3 Bro. C. C. 400. 
 
 The facts constituting the plaintiff's case must be so 
 fully stated, that if they are admitted by the answer or 
 established upon the hearing, that the court can render 
 a decree upon them ; the complainant must make a 
 case by his bill and the case made must be established 
 by admissions or proof. The allegations and the 
 proofs must reciprocally meet and conform to each 
 other. Facts established by the admissions of the 
 defendant, or the testimony of witnesses, will not. be 
 considered by the court, unless they established some
 
 EQUITY PLEADING AND PRACTICE. 73 
 
 distinct allegation made in the bill no matter of what 
 weight and importance they may be intrinsically. 
 
 Harrison v. Wixon, 9 Peters 483, 503; Jackson v. Ashton, 11 
 Peters 229; Mead v. Askew, 56*Ala. 584; Moran v. Palmer, 13 
 Mich. 307; CoDneston v. Miller, 41 Mich. 608; Fox v. Pierce, 50 
 Mich. 500. 
 
 Facts and not conclusions of law must be alleged. 
 Therefore, if the bill seeks to have a tax deed set aside 
 on the ground that the tax for which the land was 
 Bold was an illegal tax, the facts upon which the 
 pleader relies to show that the tax was in fact void 
 must be averred, and a positive allegation that the tax 
 is void is not sufficient. 
 
 (nimble v. East Saginaw, 43 Mich. 367; Foster v. Hill, 55 
 Mich. 540; Le Baron v. Shepherd, 21 Mich. 263. 
 
 As a rule a general allegation of fraud is insufficient 
 to support proof of facts establishing the fraud. Such 
 facts should have been alleged. On the other hand if 
 the allegations of fact clearly show that a fraud has been 
 committed there need be no positive allegation of fraud. 
 
 Long v. Marvin, 15 Mich. 00; Hubbard v. McNaughton, 43 
 Mich. 221: Hale v. Chandler, 2 Mich. 531; Merrill v. Allen, 38 
 Mich. 487. 
 
 When the right of the complainant depends upon 
 the performance of a condition which has not been 
 performed, he must set forth the facts which excuse 
 its performance, an allegation that there is a good 
 excuse is not sufficient to support testimony as to the 
 facts which excused performance. 
 
 Le Baron v. Shepherd, 21 Mich. 263.
 
 74 EQUITY PLEADING AND PRAl r I < E. 
 
 If the bill shows that the injuries complained of are 
 
 of such long standing that unexplained they impute 
 
 laches to the complainant, the facts relied upon as 
 
 excusing the delay must be set forth in the bill, or 
 
 otherwise it may be attacked by demurrer or plea, or 
 
 the court of its own motion may refuse to consider 
 
 the case. 
 
 Sullivan v. Railroad, 94 IT. S. 806: Hayward v. Bank, 96 U. S. 
 611; Spridel v. Henrici, 120 U. S. 377; Richards v. Mackal. 124 
 U. S. 183. 
 
 As an illustration of the necessity which rests upon 
 
 the complainant of alleging all the facts in his bill 
 
 necessary to constitute his case, a bill filed to enforce 
 
 rights conferred by the statute is a good example. In 
 
 such a case the bill must show a substantial compliance 
 
 with every provision of the statute upon which the 
 
 right depends. 
 
 Remeau v. Mills, 24 Mich. 15; Bangs v. Stephenson, 63 Much. 
 661; Paine v. Newell, 66 Mich. (June 9, 1887.) 
 
 And when a complainant claims rights under any 
 
 judicial proceeding the averments of the bill must 
 
 show all the facts necessary to establish the validity of 
 
 such proceedings. 
 
 Hobart v. Frisbie, 5 Conn. 592; Kunkel v. Marked, 26 Md. 
 390-408; Frost v. Flanders, 37 N. H. 549; Mayor v. Signoret, 50 
 CaL 298. 
 
 When a bill is filed to enforce rights given by a 
 
 statute, and there is an exception in the enacting clause 
 
 of such statute, it must negative such exception ; but 
 
 where there is no exception iu the enacting clause but 
 
 an exemption in a proviso thereto, or in a subsequent
 
 EQDITX PLEADING AND PRACTICE. . ■ > 
 
 section of the act, the bill need not aver that the 
 
 defendant does not come within the exemption. The 
 
 exemption of the defendant, if it exists, is a matter of 
 
 defence and must be shown by the defendant. 
 
 Attorney General v. Oakland Co. Bk., Wal. Cb. 90; Tcel v. 
 Fonda, 4 Johns. 304. . 
 
 The bill must contain " arguments of every fact 
 necessary to give the court jurisdiction. For instance, 
 except in certain cases, the court of equity is not 
 given jurisdiction unless the amount involved is at 
 least a specified sum. In this state the minimum sum 
 is one hundred dollars. When the bill on its face 
 shows that the amount in controversy is not sufficient 
 to give the court jurisdiction, the defect is fatal, and 
 if called to the attention of the court, or discovered by 
 the court, the bill will be dismissed. 
 
 Gamber v. Holbeu, 5 Micb. 331. 
 
 But although the bill may not contain the specific 
 allegation that the amount in controversy is sufficient 
 to give the court jurisdiction, still if there are aver- 
 ments which clearly and unequivocally show that it 
 must necessarily be of sufficient value, such averments 
 will be sufficient to give the court jurisdiction. 
 
 Abott v. Gregory, 39 Micb. 68; Glidden v. Morrell, 44 Mich. 
 202. 
 
 In setting forth the facts in the bill, the pleader 
 should avoid, as far as possible, all unnecessary recitals 
 of deeds, documeuts, contracts, or other instruments 
 verbatim. After referring to a document, the pleader 
 may add the following formula : " As by said inden-
 
 76 EQUITY PLEADING AND PRACTICE. 
 
 ture (or agreement), when proved, will appear." This 
 
 makes the whole document referred to a part of the 
 
 record. 
 
 Harmer v. Gooding, 3 DeG. & S. 407-410; Swetland v. Swet- 
 land.SMich. 482. 
 
 But the pleader must be careful that the body of 
 his bill contains averments of all the facts which he 
 claims are established by any such document, for 
 while, by the above formula, he makes the document 
 a part of the record, it is only a part of the record for 
 the purpose of amplifying and more particularly and 
 fully setting forth the particular allegations contained 
 in the bill, and only those parts of the document will 
 be considered that refer to averments in the bill. 
 
 Mayor v. Siguoret, 50 Cal. 298; Moses v. Brodie, 1 Tena. Ch. 
 :*97. 
 
 It is a maxim of equity that he who seeks equity 
 must do equity. Therefore if, under the facts stated, 
 any duty devolves upon the plaintiff which in good 
 conscience he ought to perform, although its perform- 
 ance could not be compelled at law, he must aver a 
 readiness and willingness on his part to perform it, 
 otherwise he, will not be heard to complain. 
 
 Perry v. Carr, 41 K H. 371. 
 
 THE CONFEDERATING PART. 
 
 It is not necessary that the bill should aver that the 
 defendant is confederating with unknown parties with 
 intent to injure and defraud the complainant, unless 
 such is the fact, and that fact is of importance to the
 
 EQUITY PLEADING AND PRACTICE. I i 
 
 complainant. In case, however, that fact exists, and 
 is important, it should be set out as fully and precisely 
 as possible. 
 
 THE CHARGING PART. 
 
 The original purpose of the charging part was to 
 meet and answer some special defence of the defend- 
 ant. This was done by averring, by way of pretense, 
 such special defence, and then adding matter of reply 
 in the form of a charge. 
 
 Stafford v. Brown, 4 Paige 88; Van Riper v. Claxton, 1 Stock- 
 ton 302; Conneston v. Miller, 41 Mich. 608. 
 
 THE JURISDICTIONAL CLAUSE. 
 
 This clause is usually retained in this state, although 
 its omission does not render the bill defective. The 
 averment that the court has jurisdiction is a mere 
 conclusion of law at best, and does not strengthen the 
 averments of fact, which show that the cause is cogni- 
 zable in a court of equity, nor on the other hand will 
 it make good the want of some necessary averment. 
 Bateman v. Wilboe, 1 Sch.&Lef. 201, 204; Story Eq. PI. § 34. 
 In the United States court it is not necessary to 
 insert in the bill the confederating or charging part 
 or the jurisdictional clause. 
 
 U. S. Rule 21; Perry v. Corning, 7 Blatch. 195; Dunham v. 
 Railroad, 1 Bond 492; Walden v. Bodley, 14 Pet. 156; Railroad 
 v. Bradleys, 10 Wall. 299; Wilson v. Graham, 4 Wash. 53.
 
 78 equity pleading and practice. 
 
 LECTURE IV. 
 
 INTERROGATING part. 
 
 Formerly this was an essential and important^part 
 of the bill. When parties in interest were not per- 
 mitted to testify, the complainant could in this way 
 alone obtain from the defendant important admissions, 
 but now, since the statute permits all parties to be 
 examined as witnesses, the interrogating part of the 
 bill in most cases is of no importance whatever. The 
 rules permit the complainant to waive his right to 
 have the answer made under oath, and unless for some 
 reason he still desires a discovery, he adopts that course, 
 since an answer not under oath has the force and effect 
 merely of a pleading. 
 
 Hopkins v. Granger, 52 111. 504. 
 
 When an answer under oath is not waived, and 
 the answer is put in under oath, so much of it as 
 is responsive to the interrogating part of the bill is 
 evidence for the defendant, and its force cannot be 
 overcome except by the testimony of two witnesses. 
 Putting an answer in on oath, when an answer under 
 oath has been waived, does not make it evidence for 
 the defendant. 
 
 Wallwork v. Derby, 40 111. 527. 
 
 When an answer on oath is waived no relief can be 
 prayed which rests solely upon the necessit}' of dis-
 
 EQUITY PLEADING AND PRACTICE. 79 
 
 covery, for the reason that by waiving the right to an 
 answer upon oath, the complainant has thereby waived 
 all right to discovery. 
 
 Torrent v. Rogers, :59 Mich. 85. 
 
 Where discovery therefore is desired, an answer 
 upon oath must not be waived and interrogatories 
 should be added, so drawn that the defendant's atten- 
 tion will be particularly called to all those facts and 
 circumstances as to which a full discover}' is desired. 
 The rules of the Supreme Court of the United States 
 require that these interrogatories shall be numbered 
 and that the complainant shall designate the particu- 
 lar interrogatories which each of the defendants is to 
 answer, bv a note at the end of the bill. 
 
 " ml 
 
 Rules 40 to 44 inclusive. 
 
 PRAYER FOR RELIEF. 
 
 Having fully stated to the court his cause of action 
 and explained wherein the complainant has already 
 been deprived of his just rights, or in what manner he 
 is threatened -with a deprivation of those rights, the 
 pleader asks, in the prayer for relief, the aid and 
 assistance of the court. The prayer usually is for 
 specific and general relief. The prayer for specific 
 relief may be in the alternative, that is the pleader 
 may ask for some particular thing and then add a 
 specific prayer for some other thing in lieu of the first, 
 in case that should be denied. The pleader is fre- 
 quently compelled to resort to this course. He may 
 be in doubt in regard to the facts in controversy, or if
 
 80 EQUITY PLEADING AND PRACTICE. 
 
 he is perfectly familiar with the facts he may be in 
 doubt as to the conclusion the court will draw from 
 them. In all such cases of doubt it is proper to have 
 a prayer for specific relief drawn in the alternative. 
 But a bill so drawn that specific relief in the alterna- 
 tive may be prayed for, must be consistent with itself. 
 The bill must not contain distinct causes of complain- 
 ant which are inconsistent with and defeat each other. 
 The pleader must not blow hot and cold. 
 
 Lloyd v. Brewster, 4 Paige, 537: Cotton v. Ross, 2 Paige, 396; 
 Hart v. McKeen, Wal. Ch. 417; Farwell v. Johnson, 34 Mich. 
 342. 
 
 If there is a prayer for special relief merely and 
 
 upon the pleadings and proofs, the complainant is not 
 
 entitled to that particular relief, he will not be given 
 
 any relief at all and his bill will be dismissed, unless 
 
 he is permitted to amend. 
 
 Polk v. Clintou, 12 Ves. 48; Story Eq. PI. §§ 40, 41 ; English v. 
 Poxall, 2 Peters, 595. 
 
 If, in addition to the prayer for special relief, there 
 is added a prayer for general relief, in case the particu- 
 lar relief asked for is denied, the complainant will be 
 allowed such other relief as is agreeable to the case 
 made by the bill. It has been said that a prayer for 
 general relief was sufficient, and that a prayer for 
 special relief might be omitted in the bill and asked 
 for at the hearing. 
 
 Hiern v. Mill, 13 Ves. 114; Coltonv. Ross, 2 Paige, 396; Texas 
 v. Heidenberg, 10 Wal. 68; Pleasants v. Glasscock, 1 Sm. & 
 Mar. 17, 24, 25; Story Eq. PI. § 41; Wilson v. Graham, 4 Wash. 
 C. C. 53.
 
 EQUITY PLEADING AND PRACTICE. 81 
 
 When a bill is filed for discovery merely and the 
 complainant is not entitled to any relief in addition to 
 the discovery, he must confine his prayer for relief to 
 the particular relief to which he is entitled. 
 
 Wells v. Railroad, Wal. Ch. 35; Loker v. Roll, 3 Ves. 4-7. 
 
 If. an injunction or a writ of ne exeat regno is 
 required it must be specially prayed for. 
 
 Spoonerv. McConnell, 1 McLean 337; Story Eq. PI. §41; U. 
 S. Ch. R. 21. 
 
 PRAYER FOR PROCESS. 
 
 The prayer for process is an essential part of the 
 bill, and if it is omitted the bill may be demurred to. 
 
 Wright v. Wright. 4 Halst. Ch. 143. 
 
 In the prayer for process must be inserted the 
 names of all the persons whom the complainant desires 
 to make defendants and only those whose names art- 
 inserted are made defendants. 
 
 Verplank v. Ins. Co., 2 Paige 438; Lyle v. Bradford. 7 I>. Mon- 
 roe 113. 
 
 If a suit is against a person both in his individual 
 and representative capacity, process must be asked 
 against him in both capacities. 
 Carter v. Iugrahaui, 43 Ala. 78. 
 
 Ordinarily the bill need not be sworn to but there 
 are certain exceptions. Bills must be verified when 
 they are filed. 
 
 1. To obtain the benefit of an instrument upon 
 which an action at law will lie. 
 
 March v. Davidson, 9 Paige 580; Bennett v Waller, 23 111. 97. 
 6
 
 82 EQUITY PLEADING AND PRACTICE. 
 
 2. To perpetuate the testimony of witnesses. 
 Laight v. Morgan, 1 Johns. Cas. 429; Story Eq. PI. §§304, 300. 
 
 3. To obtain a divorce. 
 Mich. Ch. Rule 95. 
 
 4. Bills of interpleader. 
 
 Edrington v. Allsbrook, 21 Tex. 186; Monks v. Holroyd, 1 
 Cow. 691. 
 
 5. Bills praying for a preliminary injunction. 
 
 Holdredge v. Gwynne, 3 C. E. Green 26 ; Moore v. Cheese- 
 man, 23 Mich. 327. 
 
 6. Bills pra}*ing for a writ of ne exeat. 
 Rice v. Hale, 5 Cush. 238. 
 
 The bill having been drafted, signed by counsel, 
 verified when necessary and properly endorsed, is 
 filed, with the clerk in the United States court, with 
 the register in the circuit court in this state. The 
 county clerk in this state is clerk of the circuit court, 
 and register of the circuit court in chancery. But 
 since in popular language he is spoken of as clerk 
 simply and the same officer in the United States court 
 is styled clerk, to prevent confusion we shall refer to 
 him as clerk. 
 
 In this state upon filing the bill a subpoena issues 
 a6 a matter of course under the seal of the court dated 
 and tested of the day of issue and made returnable on 
 a day certain (except Sunday) in term time or vaca- 
 tion, not less than ten days from the issuing thereof. 
 
 Anderson v. Brice, 3 Mich. 280; Peck v. Cavell, 16 Mich. 8; 
 Fenton v. Kyle, 27 Mich. 454; Hemmens v. Bently, 32 Mich. 
 89; Torrens v. Hicks, 32 Mich. 307; Mich. Ch. R. 9.
 
 KQUITY PLEADING AND PRACTICE. 88 
 
 When there are several defendants more than one 
 subpoena may issue for convenience in service. The 
 names of all the defendants must be inserted in the 
 subpoena. 
 
 Mich. Ch. R. 10; Richardson v. Thompson, 41 111. 202. 
 Formerly the subpoena required the defendant to 
 appear under a certain penalty, mentioned therein, 
 but to remove the danger of mistake among defend- 
 ants ignorant of the meaning of this command, the 
 rules now provide that the penalty shall be omitted 
 and the defendant shall be notified simply that a bill 
 has been filed and that unless he appears within a 
 given time his default may be entered. This same 
 rule also requires that there shall be underwritten a 
 notice designating against what defendants a personal 
 decree is desired. 
 
 Mich. Rule 122; U. S. Rule 12. 
 
 In the United States court when the bill is filed a 
 praecipe must also be filed with the clerk, directing 
 the issuance of a subpoena and naming the rule day to 
 which it is made returnable, which must be the first 
 or second rule day occurring twenty days after its 
 issuance. 
 
 U. 8. Rules 7, 11, 12. 
 
 A subpoena issued out of the United States court is 
 served by the marshal, his deputy, or by some other 
 person specially appointed by the court. 
 
 U. S. Rule 15, Re. St. §922. 
 
 It is served by the officer making the service
 
 84: EQUITY PLEADING AND PRACTICE. 
 
 delivering a copy thereof to the defendant personally 
 or leaving a copy at his usual place of abode, with 
 some adult person who is a member or resident in the 
 family. 
 
 U. S. Rule 13. 
 
 A subpoena issued by the state circuit court in 
 chancery may be served anywhere within the state on 
 or before the return day thereof. It may be served 
 by the sheriff of any county or by any other person. 
 It is served by delivering a copy of the writ sub- 
 scribed by the complainant, his solicitor or the officer 
 or person serving the same, inscribed copy and show, 
 ing the original, under the seal of the court, at the 
 time of such delivery, to the defendant. 
 
 Mich. Ch. Rule 10; Creveling v. Moore, 39 Mich. 563; Soule v. 
 Hough, 45 Mich. 418-422. 
 
 If service is made by an officer he makes an official 
 return of the fact. If service is made by a person 
 delegated by the United States court or by a private 
 person in this state the return of service must be 
 under oath. 
 
 U. S. Rule 15. 
 
 If a subpoena is returned not served upon a defend- 
 ant, the complainant is entitled to another subpoana 
 against such defendant, until due service is made. 
 
 U. 8 Rule 14, Mich. Rule 9. 
 
 The statutes of this State provide that when per- 
 sonal service cannot be had on account of the defend- 
 ant being a non-resident, absent from his home, or
 
 EQUITY PLEADING AND PRACTICE. 85 
 
 concealed, that substituted service may be obtained by 
 publication. 
 
 How. St. §§ 6670-6686. 
 
 The U. S. Statutes provide for substituted service 
 by publication in suits to enforce a lien upon, or 
 claim to, or to remove any incumbrance, lien or cloud, 
 upon the title to any real or personal property within 
 the district wherein the suit is brought, if one or more 
 of the defendants shall not be an inhabitant of, or 
 found within the district. 
 
 18 Statutes at Large, 472. ' 
 
 Under the U. S. Statute the defendant may appear 
 within one year, have the decree opened and be per- 
 mitted to defend. Under the Michigan Statute he 
 has for that purpose seven years, unless notice of the 
 decree has been served upon him, in which event the 
 time within which the decree may be opened is limited 
 to one year. 
 
 Since the time when parties to a suit were permitted 
 to be examined as witnesses, it is seldom necessary to 
 have answer from the defendant, and therefore if he 
 fails to appear in the cause and answer, plead or de- 
 mur, his default is entered and the cause proceeds 
 ex parte. There may still be cases, however, when 
 discovery is required, and in such a case the defendant 
 may be compelled to appear by attachment. 
 
 U. S. Rule 18, Mich. Rule 18, 13; Riopelle v. Doellner, 26 
 Mich. 102; Thompson v. Wooster, 114 U. S. 104. 
 
 If the defendant's default is entered for his not
 
 86 EQUITY PLEADING AND PRACTICE. 
 
 appearing and answering, pleading or demurring 
 within the prescribed time, the effect is the same as 
 though he had appeared and answered admitting all 
 the material allegations of the bill. 
 Ward v. Jewett, Walk. Ch. 19, 45. 
 
 A decree may then be taken by the complainant, 
 termed a decree pro confesso. Such decree must be 
 limited strictly to the case made by the bill. Those 
 allegations, and those only, has the defendant by his 
 default admitted to be true. If, therefore, the com- 
 plainant should find it necessary to amend his bill and 
 add new and material allegations, the effect of the 
 amendment will be to violate the order taking the bill 
 as confessed, and new process must issue and be served 
 upon defendant and the same proceedings had a* 
 though the suit had been commenced de novo. 
 
 Harris v. Deitrich, 29 Mich. 366. 
 
 If the order to take the bill as confessed is entered 
 
 for default of the defendant's appearing, the cause 
 
 proceeds ex parte, and the defendant is not entitled to 
 
 notice of further proceedings, but if his default is for 
 
 not answering, pleading or demurring having after 
 
 appeared, the cause proceeds ex parte as before, but 
 
 the defendant is entitled to notice of each subsequent 
 
 step in the cause. 
 
 Mich. Rules 2, 15; Warren v. Juif, 38 Mich. 662; Watson v. 
 Hinchman, 41 Mich. 716. 
 
 The entry of an order taking a bill for divorce pro 
 eonfesso on account of defendant's default in not
 
 EQUITY PLEADING AND PRACTICE. 87 
 
 appearing or answering, pleading or demurring, doe* 
 
 not have the effect of making the allegations in the 
 
 bill evidence for the complainant. The public are 
 
 interested in preserving the marriage contract. As 
 
 we have seen, such bills must be verified. They must 
 
 contain distinct allegations that the bill is not filed in 
 
 collusion with the defendant, directly or indirectly, 
 
 and the allegations contained in the bill as to the 
 
 grounds of divorce must be established by satisfactory 
 
 proof. And the officer before whom the proofs are 
 
 taken is required to make such full inquiries of the 
 
 witnesses as shall be necessary to arrive at all the 
 
 material facts in the case. 
 
 Emmons v. Emmons, Walk. Ch. 532; Pugsley v. Pugsley, ^ 
 Paige 589.
 
 88 EQUITY PLEADING AND PRACTI0E. 
 
 LECTURE V. 
 
 APPEARANCE OF DEFENDANT, KTO. 
 
 The defendant having been personally served with 
 
 process must cause his appearance to be entered in 
 
 the common order book within the time prescribed by 
 
 the rules and serve a notice of such appearance upon 
 
 complainant, if he would prevent his default being 
 
 entered and an order made taking the bill as confessed. 
 
 1 Barb. Cb. Pr. 78; Jennison Cb. Pr. 40; Mich. Rules 11, 14: 
 U. S. Rules 17, 18. 
 
 The defendant having appeared, if the occasion 
 exists, may except, to the bill on the ground that it 
 contains impertinent or scandalous matter, and in the 
 United States Court if it is made unnecessarily prolix 
 by recitals of matters not pertinent or relevant to the 
 real cause of action, or by needless repetitions. 
 
 Upon exceptions of this nature being filed they may 
 be referred to a master. If the master or the court 
 find that the exceptions are well taken, the objectional 
 matter will be expunged at the expense of complain- 
 ant, and he may be adjudged to pay all the defendant's 
 costs up to that time. 
 
 U. S. Rules 25, 26, 27; Mich. Rules 30, 31, 32, 33, 34. 
 
 Impertinences are wholly irrelevant or unnecessary 
 allegations and statements, and they have been de- 
 scribed to be "when the records of the court are 
 stuffed with long recitals, or with long digressions of
 
 EQUITY PLEADING AND PRACTICE. M -* 
 
 mutters of fact, which are altogether unnecessary and 
 
 totally immaterial to the matter in question; as where 
 
 a deed is unnecessarily set forth in haec verba.'''' The 
 
 test as to whether a particular allegation is or is not 
 
 impertinent is this, is it material? If it is not material 
 
 it is impertinent, but its immateriality must clearly 
 
 appear. If the court is in doubt, the matter will not 
 
 be stricken out as impertinent. 
 
 Rickards v. Attorney-Gen] . 12 CI. and Fl. 30; Railroad v. Stew- 
 art, 4 C. E. Green 343; Whaley v. Norton, 1 Vern. 483; Clark v. 
 Periam, 2 Atk. 333, 337; Woods v. Morrell, 1 Johns. Ch. 103. 
 
 Scandal is an irrelevant allegation of some matter 
 
 which is unbecoming the dignity of the court to hear, 
 
 or is contrary to good manners, or which charges some 
 
 person with the commission of a crime not necessary 
 
 to be shown in the cause ; in short, any unnecessary 
 
 allegation bearing cruelly upon the moral character of 
 
 an individual. Nothing is scandalous, however, which 
 
 is relevant. A man may be called a thief when that 
 
 fact is pertinent to the issue involved. 
 
 Fisher v. Owen, 8 Ch. Div. 045; Gleaves v. Morrow, 2 Tenn. 
 Ch. 593; Goodrich v. Roduey, 1 Min. 195: Desplacea v. Goris, 1 
 Edw. Ch. 350. 
 
 The objection to the bill for impertinence must be 
 
 taken before answering or submitting to answer, i. e., 
 
 obtaining an extension of time within which to answer. 
 
 Anon, 2 Vesey Sen., 630; Ferrar v. Ferrar, 1 Dick. 173; Anon, 
 5 Vesey Jr., 050; Jones v. Spencer, 2 Tenn. Ch. 770. 
 
 But an objection for scandal may be taken after 
 answer. The reason for the distinction is that imper- 
 tinence involves merely a question of costs, while
 
 90 EQUITY PLEADING AND PRACTICE. 
 
 scandal is regarded as an indignity to the court. 
 
 Same authorities. 
 
 And the objection to the bill for scandal may be 
 
 made by one not a party to the suit. 
 
 Coffin v. Cooper, 6 Ves., 513; Williams v. Douglas, 5 Beav. . 
 82, 85. 
 
 No pleading may contain impertinent or scandalous 
 matter, and if it does it may be excepted to for that 
 reason. 
 
 Mich. Ch. Rules. 18, 30. 
 
 DISCLAIMER. 
 
 If the defendant has no interest whatever in the 
 subject-matter of the suit, and never had any, or 
 claimed to have had any, he may answer by disclaiming 
 all interest in the proceedings. A simple disclaimer, 
 however, is seldom sufficient, except in those cases 
 where the defendant has been made a party by mis- 
 take. If, as a matter of fact, although the defendant 
 may not, at the time the suit was commenced, have 
 any interest in the subject-matter of the controversy, 
 if he once had and has since parted with such interest, 
 he may be called upon to disclose to whom he has 
 assigned the interest, that the complainant may make 
 the assignee a party defendant. 
 
 Spoffordv. Manning, 2 Edw. Ch.358; Elbsworth v. Curtis, 10 
 Paige 105. 
 
 A mere disclaimer is not sufficient if the defendant 
 
 is charged with being a party to a fraud, or, if the 
 
 allegations of the bill show that the defendant has go
 
 KQUITY PLEADING AND PRACTICE. 9 1 
 
 entangled himself up with the whole transaction that 
 
 the complainant was obliged to make him a party, for 
 
 in such a ease the complainant is entitled to an answer 
 
 explaining the defendant's conduct. 
 
 Grabam v. Cooper, 9 Sim. 93, 102; Glassington v. Thwaits, 2 
 Russ. 458. 
 
 If there is no objection to the bill on the ground 
 that it contains impertinent or scandalous matter, and 
 the defendant desires to interpose a defence, the next 
 step for him to take will depend entirely upon the 
 nature of his defence. For example, A may have 
 filed a bill to enforce a contract made with B, by the 
 terms of which B agreed to sell a certain parcel of 
 land for a given sum to A. B's defence may be that 
 the contract is void, not having been reduced to 
 writing, and the fact that it was not reduced to writ- 
 ing may or may not appear upon the face of the bill, or 
 B's defence may be that the contract is void on account 
 of some fraud or imposition practiced by A whereby 
 he was induced to execute the contract — or in other 
 words, the defence may consist of : 
 
 1. Some objection to the case made by the bill 
 which appears upon the face of the bill, showing that 
 the complainant has no cause of action ; or, 
 
 2. There may be some fact not appearing upon the 
 face of the bill, and not going to the merits of the 
 cause, which will prevent the court from taking cogni- 
 zance of the cause ; or, 
 
 3. The defence may go to the merits of the defend- 
 ant's cause, the defendant claiming that upon all the
 
 92 EQUITY PLEADING AND PRACTICE. 
 
 facts and circumstances that the plaintiff is not entitled 
 to any relief. 
 
 The first two are called dilatory defences, because 
 they merely postpone or at best prevent an investiga- 
 tion into the merits of the matters in controversy. 
 The last is called a defence upon the merits, because 
 it puts in issue the allegations upon which the com- 
 plainant bases his right to relief, and the trial of the 
 cause upon such an issue will result in a final disposi- 
 tion o # f the whole matter. 
 
 These several defences have each a particular form 
 in which they are to be presented. 
 
 If the defence is based upon some matter which 
 appears upon the face of the bill, it is by demurrer. 
 
 Insurance Co. v. Field, 2 Story 59. 
 
 [f the defence rests upon some fact which does not 
 appear upon the face of the bill, the defence is by 
 plea, which brings to the attention of the court the 
 fact relied upon. 
 
 Story Eq. PI. § 437. 
 
 If the defence rests upon the actual merits of the 
 defendant's case, the defence is by answer. 
 
 Story Eq. PI. § 437. 
 
 DEMURRER. 
 
 A demurrer is the proper mode of defence, when 
 
 the ground of defence is a defect in the frame of the 
 
 bill or in the case made by it, or the matter contained 
 
 it it. 
 
 •Tones v. Earl of Strafford, 3 P. Wms. 79, 80; Mitford'sEq. 206.
 
 EQUITY PLEADING AND PRACTICE. 93 
 
 The demurrer alleges in substance that if the mat- 
 ters contained in the bill were true they do not sus- 
 tain the complainant's contention, or that, for some 
 reason apparent on the face of the bill, or because of 
 the omission of some matter, which ought to be con- 
 tained therein, or for want of some circumstance which 
 ought to be attendant thereon, the defendant ought 
 not to be compelled to answer, and it therefore 
 demands the judgment of the court whether the 
 defendant shall be compelled to answer the complain- 
 ant's bill, or that, particular part of it to which the 
 demurrer applies. 
 
 Mitford's Eq. 80. 
 
 When it is clear, absolute and certain, that taking 
 
 the charges made in the bill to be true the bill will be 
 
 dismissed at the hearing, a demurrer will lie, but not if 
 
 there is uncertainty in that regard. 
 
 Atterson v. Mair, 2 Ves. 94; S. C. 4 Bro. C. C. 270; Havenden 
 v. Ld. Annesley, 2 Sch. & Lef. 607; Brooks v. Hewitt, 3 Ves. 253. 
 
 But while the demurrer assumes and confesses, for 
 
 the purposes of the argument, that the allegations in 
 
 the bill are true, the admission extends only to such 
 
 matters as are well pleaded, matters of fact, and not 
 
 matters of law, arguments and inferences, nor false 
 
 allegations of fact of which the court is bound to take 
 
 judicial notice. And when there are matters of fact 
 
 pleaded which are repugnant to some other, that one 
 
 is admitted, which is of least benefit to the pleader. 
 
 Looke v. Tlolle, 3 Ves. 4-7; Campbell v. Mackay, My. & Cr. 
 603, 613; Wales v. Bank of Mich., Har. Ch. 308; Griffing v. Gibb,
 
 94 EQUITY PLEADING AND PRACTICE. 
 
 2 Black U. S. 519; Roby v. Cossitt, 78 111. 638; Croft v. Thomp- 
 son, 51 N. H. 530; 1 Greenl. Ev. §§ 4, 6. 
 
 A demurrer may be to the relief prayed, or to the 
 
 discovery or to both. But the demurrer must not be 
 
 both to discovery and relief if the complainant is 
 
 entitled to either. If the demurrer is to the whole 
 
 bill and the complainant is entitled to either discovery 
 
 or relief it will be overruled. 
 
 Livingstone v. Story, 9 Peters 633; Wright v. Dame, 1 Met 
 237-241 ; Holmes v. Holmes, 36 Vt. 525, 537; Laightv. Morgan, .1 
 Johns. Cas. 434. 
 
 Demurrer to the relief may be : 
 
 I. To the jurisdiction. 
 
 II. To the person. 
 
 III. To the matter of the bill, either in substance 
 
 or form. 
 
 I. TO THE JURISDICTION. 
 
 Demurrers to the jurisdiction are (1) either on the 
 ground that the case made by the bill does not fall 
 within that of any class of causes over which the court 
 assumes jurisdiction. 
 
 A discussion of the cases that fall under this head 
 properly belongs to the subject of equity jurisdiction. 
 
 Stephenson v. Davis, 56 Me. 73, 74; Cookney v. Anderson, 31 
 Beav. 452; Cookney v. Anderson, 8 Jur. N. S. Part I 1220; Bos- 
 ton Water Power Co. v. Railroad, 16 Pick. 512. 
 
 The demurrer to the jurisdiction may be (2) on the 
 ground that the subject-matter of the suit is within 
 the jurisdiction of some other court. 
 
 If it appears from the bill that the complainant has
 
 EQUITY I'LKADING AND PRACTICE. 5J5 
 
 as effectual and complete a remedy at law as in equity 
 
 the bill is demurrable. 
 
 Lynch v. Williard, 6 Johns. Ch. 342; Bank v. Lee, 11 Conn. 
 Ill; Hammond v. Messinger, 9 Sim. 327; Ohling v. Luitjens, 32 
 111. 23; Parry v. Owen, 3 Atk. 740; Kemp v. Prior, 7 Ves. 237. 
 
 II. TO THE PERSON. 
 
 If it appears on the face of the bill that the com- 
 plainant cannot maintain the suit on account of some 
 personal disability that objection can be taken by 
 demurrer.
 
 96 EQUITY PLEADING AND PRACTICE 
 
 LECTURE VI. 
 
 III. TO THE MATTER OF THE BILL. 
 
 Demurrers arising from objections to the matter of 
 the bill are either to the substance of the bill or to the 
 form in which it is stated. 
 
 Demurrers ii£ the substances- are : 
 
 1. That the plaintiff has no interest in the subject. 
 
 2. That the defendant is not answerable to the 
 plaintiff. 
 
 3. That the defendant has no interest. 
 
 4c. That the plaintiff is not entitled to the relief he 
 has prayed. 
 
 5. That the value of the subject-matter is insuffi- 
 cient to give the court jurisdiction. 
 
 6. That the bill does not embrace the whole of the 
 subject-matter. 
 
 7. That there is a want of proper parties. 
 
 8. That the bill is multifarious. 
 
 9. That the plaintiff's remedy is barred by lapse of 
 time. 
 
 10. The Statute of Frauds. 
 
 11. That there is another suit pending for the same 
 matter between the same parties. 
 
 1. If there are several plaintiffs some of them hav- 
 ing an interest and others none in the subject-matter, 
 a general demurrer to the whole bill is a good defence.
 
 EQUITY PLEADING AND PRACTICE. 97 
 
 _Kimjof Spain v. Ma chad o, 4 Rnss. 224j Clarkson v. DcPeya- 
 ter, 8 Paige 336-339; Dias v. Boucbaud, 10 Paige 445; HaskeUv. 
 Hilton, 30 Mc. 419; Atwell v. Perrett, 2 Blatch C. C. 39. 
 
 2 and 3. If the plaintiff lias an interest the hill 
 must show the defendant answerahle to him. 
 
 Ld. Uxbridue v. Stoveland, 1 Ves. Sen. 53; Crossing v. Honor, 
 1 Vern. 180; White v. Sinale. 23 Beav. 72. 
 
 4. When the plaintiff prays merely for some special 
 
 relief to which he is not entitled, or to any relief of 
 
 the same nature. 
 
 Rollins v. Forbes, 10 Cal. 29:); Bleeker v. Bingham, 3 Paige 
 246; Dike v. G*ant, 4 R. I. 285; Sayles v. Tibbitts, 5 R. I. 79. 
 
 5. If it does not appear on the face of the bill that 
 the matter in controversy is sufficient to give the court 
 jurisdiction, the defendant may move to strike the bill 
 off from the file or demur. 
 
 Carr v. Inglehart, 3 Ohio St. 45 8; McElwain v. Willis, 3 Paige 
 505; S. C. 9 Wend. 548. 
 
 6. The court will not permit a bill to be brought 
 for a part of the matter only, but requires that every 
 bill shall be so framed as to afford ground for decis- 
 ion uponthe whole matter at one and the same time. 
 
 Panfoy v. Panfoy, l^Vecr^ 29j Margrov v. Le Hooke, 2 Vern, 
 207; Jones v. Smith, 2 Ves. 372. 
 
 7. When a defendant demurs to the bill for the 
 arrest of parties, the demurrer must point out who are 
 necessary parties, not necessarily by name, but in a 
 manner clearly to indicate who they are. 
 
 Att'y-Genl. v. Poole, 4 M. & C. 17; Robinson v. Smith, 3 Paige 
 222; Story Eq. PI. § 543. 
 
 7
 
 98 EQUITY PLEADING AND PRACTICE. 
 
 8. A demurrer for multifariousness goes to the 
 whole bill and it is not necessary to specify the par- 
 ticular parts of the bill which are multifarious. 
 
 Dimmock v. Bixby, 20 Pick. 363; Gibbs v. Claggett, 2 Gill & 
 J. 14; Boyd v. Hoyt, 5 Paige 65. 
 
 9. The Statute of Limitations of 21 Jac. 1, c. 16, 
 
 did not in terms include equitable actions, but courts 
 
 of equity have been disposed to treat a claim as stale 
 
 that was barred at law, and in short to be governed by 
 
 the statute. 
 
 Miller v. Mclntyre, 6 Peters 61 ; Denny v. Oilman, 26 Me. 149, 
 151; Robinson v. Hook, 4 Mason 139, 150; Brown v. Buena 
 Vista, 95 U. S. 157. 
 
 10. If it closely appears on the face of the bill that 
 the contract upon which the complainant rests his 
 claims is within the statute of frauds, the objection 
 can be taken advantage of by demurrer. 
 
 Field v. Hutchinson, 1 Beav. 599, 6D0; Crenston v. Smith, 6 
 R. I. 231; Dudley v. Bachelder, 58 Me. 403, 406. 
 
 11. If it appears, also, that there is another suit 
 pending in another court, in which the complainant 
 could obtain the same relief, the defendant may de- 
 mur for that reason. 
 
 Low v. Rigby, 4 Bro. C. C. 60, 63; Peareth v. Peareth, 9 Jur. 
 N. S. 1149. 
 
 The grounds of demurrer to a bill by reason of 
 deficiency in matters of form are : 
 
 1. Omission to state complainant's residence. 
 
 2. Neglect to state positively, allegations within the 
 complainant's knowledge.
 
 EQUITY PLEADING AND PRACTICE. 99 
 
 3. Lack of certainty in the bill. 
 
 4. Failure of the complainant to offer to do equity. 
 
 5. Want of counsel's signature to the bill. 
 
 6. Neglect to verify in those cases where the statute 
 or rules require the bill to be sworn to. 
 
 The above grounds of demurrer are simply an enu- 
 meration of the essentials of a bill in equity which 
 we have already pointed out. 
 
 The defendant may not only demur to the relief, 
 but he may demur to the discovery sought when the 
 complainant is entitled bj T his bill to relief. The 
 several grounds of demurrer to discovery are : 
 
 1. That the discovery may subject the defendant to 
 some penalty or forfeiture. The defendant will not 
 be required to either criminate himself or place him- 
 self in a position in which he may be prosecuted. 
 
 Harrison v. Soutb co te. 1 Atk. 539; Duke v. Harper, 66 Mo. 51; 
 ATlyn v. Hanna, 47 Iowa 264; McPherson v. Cox, 96 U. S. 404; 
 Livingston v. Tompkias, 3 Johns. Ch. 452; U. S. v. Twenty- 
 eight Pac kages. Gilpin 0. C. 306 . 
 
 2. Because in equity and good conscience the de- 
 fendant's right is equal to the complainant's. If for 
 example the defendant has in conscience as good a 
 title, but not as perfect a legal title as the complain- 
 ant, he will not be compelled to make a discovery 
 which will endanger his own title. 
 
 Howell v. Ashman, 1 Stockt, (N. J.) 83; Glegg v. Legh, 4 
 Mad. 104; Story Eq. P. §§ 603, 604; Boone v. Chiles, 10 Peters 
 177; McNeil v. Magee, 5 Mason 209. 
 
 3. Because the discovery sought is immaterial to 
 the relief prayed. The complainant is not entitled in
 
 100 EQUITY PLEADING AND PEACTICI5. 
 
 equity any more than at law to introduce immaterial 
 
 evidence. Therefore, if lie calls upon the defendant 
 
 to answer interrogatories in reference to some matter 
 
 which is immaterial, the defendant ma}' demur to that 
 
 much of the discovery for immateriality. 
 
 Lord Montague v. Dudman, 3 Ves. Sen. 396, 393; Baker v. 
 Pritchard, 2 Atk. 388; Iliucks v. Melthrope, 1 Vern. 204. 
 
 4. Because the discovery would be a breach of pro- 
 fessional confidence. All confidential communications 
 between attornej' and client, husband and wife, phy- 
 sician and patient, priest and penitent, may not be 
 disclosed in any proceeding, either at law or in equity. 
 And if the plaintiff seeks to have the defendant make 
 any such disclosure, he may demur to that part of the 
 discovery, if it appears on the face of the bill that the 
 information is in fact confidential. 
 
 State v. White, 19 Kan. 445; Insurance Co. v. Schaffer, 94 U. 
 8. 457; Bigler v. Reyher, 43 Ind. 112; Barnham v. Roberts, 70 
 111. 19. 
 
 5. That the discovery relates only to the defendant's 
 
 case. The complainant is not entitled to obtain from 
 
 the defendant a disclosure of facts material only to 
 
 the defence. For example, where the plaintiff and 
 
 defendant claim through adverse sources of title, the 
 
 one is not entitled to the other's evidences of title. 
 
 Ingilby v. Shaf to, 33 Beav. 31 ; Joy v. Kekewick, 2 Ves Jr. 
 679; Badou v. Dure, 2 Ves. Sen. 445; Moore v. Caron, L. R. 7 
 Ch. App. 94, note. 
 
 6. That the discovery might be injurious to the 
 public interest. This ground of objection is confined
 
 EQUITY PLEADING AND PRACTICE. 101 
 
 to information which the defendant has obtained while 
 
 occupying a public or semi-public position. 
 
 Smith v. East India Co., 1 Phil. 50, 55, 6 Jur. 1; Bellows v. 
 Stone, 18 N. II. 465, 485; 1 Greenl. Ev. %$ 250, 251. 
 
 Any irregularities in the frame of the bill may be 
 
 taken advantage of by demurrer, which will be deemed 
 
 to have been waived if the defendant consents to 
 
 answer. 
 
 Reedy v. Soott, 23 Wall. 352, 365; Hubbard v. Turner, 2 Mc- 
 Lean, 519, 539; Campbell v. Foster, 2 Tenn. Ch. 402. 
 
 A demurrer cannot be good in part and bad in part, 
 but the defendant may put in separate and distinct 
 demurrers to separate and distinct parts of the bill 
 for separate and distinct causes, and in that case one 
 demurrer may be sustained and another overruled. 
 
 Mayor of London v. Levy, 8 Ves. 39?, 403; Biker v. Mullish, 
 11 Ves. 68, 70; North v. Stafford, 3 P. Wms. 149; Itober leau v. 
 Rous, 1 Atk. 543; Barstow v. Smith, Walk. Ch. 3J4; Railroad 
 v. Schuyler, 17 N. Y. 592. 
 
 FORM OF DEMURRER. 
 
 The demurrer must be entitled in the cause. In- 
 deed, all the papers filed in a cause, or served after the 
 bill, are to be entitled. Following the title is the 
 heading, indicating whether it is a joint or several 
 demurrer, whether it is to the whole or a part of the 
 bill, and if to a part, whether it is accompanied by a 
 plea, or answer, or both. Then comes the protestation 
 of the defendant as to the truth of the matters con- 
 tained in the bill. The object of this protestation ia
 
 102 EQUITY PLEADING AND PRACTICE. 
 
 to avoid a tacit admission, either in this or some other, 
 suit of the truth of the averments in the bill. 
 Story Eq. PI. §§ 453, 457. 
 
 The demurrer then proceeds, if it is to a part and 
 not to the whole bill, to point out distinctly those 
 parts of the bill to which it applies. The rule as to 
 this, given by Lord Iiedesdale, is: "That where a 
 defendant demurs to part, and answers to part of a 
 bill, the court is not to be put to the trouble of look- 
 ing into the bill or answer to see what is covered by 
 the demurrer; but it ought to be expressed in clear 
 and precise terms what it is that the party refuses to 
 answer, and I cannot agree that it is the proper way 
 of demurring to say that the defendant answers to 
 6uch a particular fact and demurs to all the rest of a 
 bill ; the defendant ought to demur to a particular 
 part of the bill, specifying it precisely." 
 
 Deomsher v. Newenham, 2 Sch. Lef. 199, 205; Atwell v. Fer 
 rett, 2 Blatch. C. C. 39; Story Eq. PI. £§ 457, 458. 
 
 Since a demurrer cannot be good in part and bad 
 in part, and the defendant is permitted to put in sep- 
 arate demurrers to separate parts of the bill, this 
 should be done when the pleader is in doubt whether 
 a given ground of demurrer covers more than one 
 part of the bill. But where there are two or more 
 separate demurrers to different parts of the bill, each 
 must point out distinctly what part of the bill each is 
 intended to cover. 
 
 Mynd v. Francis, 1 Anst. 5; Burch v. Coney, 14 Jur. 1009. 
 
 A demurrer is said to be general when it is to the
 
 EQUITY PLEADING AND PRACTICE. 103 
 
 jurisdiction, or the substance of the bill, and special 
 when it is to a defect in the form ; but whether gen- 
 eral or special it must assign some cause of demurrer, 
 and it will not be good if the defendant says generally 
 that he demurs to the bill. 
 
 Duffleld v. Graves, Casey 87; OfTely v. Morgan, Casey 107; 
 Peache v. Twyecrosse, Casey 118; Nash v. Smith, G Conn. 421; 
 Howland v. Kenosha, 19 Wis. 264; Wellhorn v. Tiller, 10 Ala. 
 305. 
 
 A defendant may demur generally to the whole 
 bill, and assign as cause want of equity, without being 
 more specific : 
 
 1. When the facts stated are insufficient to entitle 
 the plaintiff to relief. 
 
 2. When he has omitted to verify the bill, when 
 that is necessary. 
 
 3. When he has neglected to offer to do equity in 
 cases where such an offer ought to be made. 
 
 4. When the allegations of fact within the personal 
 knowledge of the complainant are not made with 
 sufficient positiveness. 
 
 The reason for the rule in all these cases is that the 
 plaintiff, by his bill, does not bring his case within 
 the description of cases over which the court exercises 
 jurisdiction. 
 
 Caren v. Johnson, 2 Sell. Let'. 230; 2 Danl. Ch. Pr. 1 ed. 73. 
 
 But in all cases of general demurrer, the pleader 
 may point out the specific objections, and in some 
 cases he is required to do so. When there is a want
 
 104 EQUITY PLEADING AND PRACTICE. 
 
 of parties, he must point out who the proper parties 
 are, and for multifariousness, that specific objection. 
 Royner v. Julien, 2 Dick. 677. 
 
 Objections for want of jurisdiction and want of 
 equity should be taken by separate demurrers. 
 
 Barber v. Barber, 5 Jur. N. S., Part I., 1197.
 
 EQUITY PLEADING AND PRACTICE. 105 
 
 if 
 
 LECTURE VII. 
 
 DEMURRER CONTINUED. 
 
 In assigning cause for demurrer care must be taken 
 that no new fact is imported into the bill. A bill 
 which alleges a fact not contained in the bill is termed 
 a speaking demurrer and for that reason will be over- 
 ruled. 
 
 QEdsall^ Buchanau,_U|rp- 0. C. 254; S. C. 2 Ves. Jr. 83; 
 Brooks v. Gibbons, 4 Paige 375. 
 
 If the fact imported is immaterial and is not relied 
 
 upon to support the demurrer it will be treated as 
 
 surplusage. 
 
 Jones v. Charlemont, 12 Jur. 532; Knypus v. Reformed 
 Dutch Church, 6 Paige 570; Davis v. Williams, 1 Sim. 5, 8. 
 
 Not onl} 7 may more than one demurrer be filed, but 
 
 more than one cause for demurrer may be assigned in 
 
 the same demurrer. 
 
 Brinkerliolf v. Brown, (5 Johns. Ch. 139, 149; Robinson v. 
 Smith, 3 Paige 222-231. 
 
 And the pleader at the hearing of a demurrer may 
 also assign one or more causes of demurrer in addition 
 to those already assigned. This is called demurring 
 ore tenus. Causes of demurrer assigned ore tenus 
 must, however, be co-extensive with the demurrer 
 filed. A cause of demurrer which goes to a part of 
 the bill cannot be assigned ore temis upon the argu- 
 ment of demurrer to the whole bill. 
 Crouch v. Hicken. 1 Keen 385; Pitts v. Short, 17 Ves. 213, 216;
 
 106 EQUITY PLEADING AND PRACTICE. 
 
 Rump v, Grcenbill, 20 Beav. 512: Thompson v. University of 
 London, 10 Jur. N. S. 66!), 671. 
 
 While a defendant may demur as to a part of the 
 bill, plead as to another part and answer as to an- 
 other, these defences cannot be united as to any one 
 part or the whole bill for the reason that they are 
 defences which are inconsistent. The demurrer 
 demands the judgment of the court as to whether the 
 defendant shall be compelled to answer, if he theo 
 answers, it must be presumed that he has purposely 
 waived the objection made. Formerly this rule was 
 enforced with great strictness and it was held that the 
 answer overruled the demurrer even if the part of the 
 bill covered by the answer was immaterial, and that it 
 had a like effect if it answered some part of the bill 
 which might have been covered by the demurrer. 
 And the effect of the plea is the same as an answer, it 
 being regarded as a special answer. 
 
 Tiddv. Clare, 2 Dick. 712; Hester v. Weston, 1 Vern. 463; 
 j> Clark .y^JPh el ps, 6 Johns. C b^gjjj Pieri v. Shiedsborro, 42 Miss. 
 493; Chase*s~Case, 1 Bland 217~T~ 
 
 The above rule has been modified by the rules of 
 
 practice in the chancery court of this state, and of the 
 
 United States. 
 
 Mich. Rule 41, 42; U. S. Rules 36, 37. 
 
 The demurrer must be signed by counsel, but, since 
 it relies upon matters appearing upon the face of the 
 bill it need not be signed by defendant or sworn to. It 
 must be filed and a copy served upon the solicitor for the 
 complainant within the time prescribed by the rules. 
 
 Mich. Rule 11; U. S. Rule 18.
 
 EQUITY PLEADING AND PEACTIOE. 107 
 
 By the 31st United States rule a demurrer cannot 
 be filed unless it is accompanied by certificate of 
 counsel, that in his opinion it is well founded in law, 
 and supported by the affidavit of defendant that it is 
 not interposed for delay merely. 
 
 Under the practice of this State (Rule l 25) the com- 
 plainant may within twenty days after the demurrer is 
 filed amend his bill. If the bill is not amended either 
 party may set it down for argument. In the United 
 States courts complainant must set down the demurrer 
 for argument, and if he neglects to do so, he will be 
 presumed to admit its sufficiency, and the bill of com- 
 plaint will be dismissed. 
 
 U. S. Rules, 33, 38. 
 
 Upon the arguments of the demurrer tbe facts in 
 
 the bill, or that part of it covered by the demurrer, 
 
 which are well pleaded, as we have said, are assumed 
 
 to be true. If the demurrer is sustained the court in 
 
 effect says that the bill is insufficient in whole or in 
 
 part, and the plaintiff's cause would, to that extent be 
 
 finally disposed of, if he was not permitted to amend 
 
 his bill. This permission is always granted upon 
 
 request if the defect upon which the demurrer was 
 
 grounded is one that the plaintiff can cure by an 
 
 amendment. 
 
 Lord Comingshy v. Jekyll, 2 P. Wins. 300; Bank of Michigan 
 v. Niles, Walk. Ch. 398. 
 
 The effect of overruling a demurrer is to require 
 
 the defendant to answer. The admission of the truths 
 
 of the allegations of the bill made by the demurrer
 
 108 EQUITY PLEADING AND PRACTICE. 
 
 are admissions for the purpose of the argument solely, 
 and consequently such admission does not entitle the 
 complainant to a decree. He is no nearer a decree 
 than he was before, except he has obtained the judg- 
 ment of the court that his bill in form and substance 
 is good and sufficient. The defendant is not required 
 to ask the leave of the court to answer. He is required 
 to answer. He by his demurrer asked the judgment 
 of the court if he should be required to answer, and 
 he has obtained that judgment, and must answer. 
 
 Sometimes when the court is in doubt it will over- 
 rule the demurrer and reserve the question of the 
 sufficiency of the bill to the hearing. 
 
 Brownswonl v. El wards, 2 Ves. Sr. 243,247; Thomas v. Tyler, 
 8 Y. &Coll, 255; 1 Danl. Ch. Pr. (5th ed.) 267, 2G3, 4G5, 4G6; 
 Trafford v. Wilkinson, 3 Tenn. Ch. 449; Forbes v. Turkeman. 
 115 Mass. 115. 
 
 It is discretionary with the court where a demurrer 
 
 is meritorious, but is overruled on account of some 
 
 technical defect, to permit the defendant to demur a 
 
 second time. 
 
 Devonsher v. Newenham, 2 Sch. & Lef. 190; Glegg v. Legh, 
 4 Mad. 207; Thorpe v. Macauley, 5 Mad. 218; Baker v. Mellich, 
 11 Ves. G3. 
 
 And sometimes when the bill has been so artfully 
 drawn that, admitting its several allegations, the de- 
 murrer must be overruled, the court will permit the 
 defendant to make the defence he sought to make by 
 demurrer, by plea, putting in issue some fact fatal to 
 the plaintiff's cause. But since but one dilatory plea 
 is permitted without leave of the court, if the defend-
 
 EQUITY PLEADING AND PRACTICE. 100 
 
 ant desires to plead to the same part of the bill to 
 which he has demurred, he must, before filing his 
 plea, obtain the leave of the court. 
 
 Rowley v. Eecles, 1 S & S. 512; Hudson v. Hudson, 1 S. & 8. 
 512, note; Milford's Eq. (Tyler td.) 310. 
 
 PLEAS. 
 
 There may be some fact which, while it does not go 
 to the merits of the con trovers} 7 , is decisive of the 
 rights of the parties to the cause. As we have seen, 
 if this appears upon the face of the bill the defendant 
 can take advantage of it by demurrer. If it docs not 
 appear upon the face of the bill it may be taken 
 advantage of by plea. 
 
 Pleas are divided into three classes. 
 
 1. Pure or affirmative. 
 
 2. Negative. 
 
 3. Anomalous. 
 
 This division is due primarily to the allegations 
 contained in the bill with reference to the fact pleaded. 
 
 The complainant may, in his bill, make no refer- 
 ence whatever to a fact which is a complete bar to 
 his action. In that case all that is necessary for the 
 defendant is to plead such fact affirmatively, i. e., to 
 aver by pica the existence of such fact, that would 
 be an affirmative plea. Again, the bill may state 
 affirmatively the existence of some particular fact upon 
 which his/vholc right of action depends, and that par- 
 ticular allegation may be false. It is necessary for 
 the defendant in such a case to plead the non-existence
 
 110 EQUITY PLEADING AND PRACTICE. 
 
 of that particular fact alleged, to negative that much 
 of the bill. That would be a negative plea. Or 
 again, the complainant may set forth in his bill the 
 apparent existence of a fact which is a complete bar 
 to his action, and then allege certain other facts and 
 circumstances which show that in truth, it is no bar. 
 In such a case the plea must affirm the existence of 
 the fact admitted by the bill, and then negative all 
 those facts and circumstances alleged in the bill tend- 
 ing to destroy its effect as a bar. That would be an 
 anomalous plea. 
 
 It will be noticed at the outset that pleas differ 
 materially from demurrers. A demurrer takes the 
 bill as drawn and assuming that all its allegations are 
 true, points out some defect appearing upon its face. 
 Such defect very seldom goes to the very heart of the 
 plaintiff's cause of action. It is usually some fact 
 showing a disability in the parties, want of jurisdic- 
 tion in the court, or some inherent defect in the case 
 as stated. Pleas not only include all these special 
 objections when they do not appear on the face of the 
 bill, but they also include a large number of defences 
 which go to the merits of the cause in some one par- 
 ticular, which are decisive of the suit upon the merits. 
 The plea is therefore frequently in its nature a special 
 answer to the case made by the complainant, and it is 
 in its particular character as an answer which a plea 
 possesses that we find the reason for certain rules that 
 have been adopted] with reference to them. As we
 
 KQUTTY PLEADING AND PRACTICE. Ill 
 
 shall see hereafter, a plea is frequently ordered by the 
 court to stand as an answer. 
 
 The plea must be single. It must present a single 
 ground of defence which will be decisive of the con- 
 troversy, or of so much of the plaintiff's claim for 
 relief or discovery as is covered by the plea, and a 
 plea presenting two or more grounds of defence is bad. 
 
 flNo bkissen v. Hastings. 2 Ves . 83: Whittled v. Brockhurst, 1 
 Bro. C. C. 404; Coath v. Jackson, 6 Ves. 11; Albany City Bk v. 
 Dorr, Walk. Ch. 317, 322; Goodrich v. Pendleton, 3 Johns. Ch. 
 £22;JRtiode Island v. Massachusetts, 14 Peters, 210; Loud v. Sar- 
 gent, 1 Edw. Ch. 163. 
 
 This rule does not preclude the pleader from setting 
 forth in the plea all the facts tending to establish his 
 single defence. Multifariousness in a plea is not pro- 
 duced by the averment of several separate and distinct 
 facts, all of which tend to establish a single proposi- 
 tion, but separate propositions, either of which is a 
 separate defence. 
 
 # Fox v. Yeates, 24 Beav. 2 71; Harrison v. Southcote, 1 Atk. 
 528. 
 
 The pleader may, however, sometimes obtain leave 
 
 of the court to file a double plea. This is sometimes 
 
 necessary, especially when the bill has been drawn 
 
 with a double aspect. Thus, where a bill was drawn 
 
 seeking to charge real estate with certain debts of the 
 
 ancestor, and alleged that they were : 1. Made a 
 
 charge by the will ; and, 2, if not made a charge by 
 
 the will, they were a charge from the fact that the 
 
 ancestor was a trader. The court permitted a. plea to 
 
 be filed denying the allegation that the will made the
 
 112 EQUITY PLEADING AND PRACTICE. 
 
 debts a charge upon the real estate, and also as to the 
 ancestor being a trader, which would make them a 
 charge under the statute. 
 
 Gibson j. Whitehead, 4J \lad^l29, 241; Hardman v. Ellames, 
 5 Sim. 010; Kay v. Marshall, f Keen 190, 192. 
 
 The reason for the rule that a plea must he single is 
 that the advantage which a plea has over an answer in 
 shortening the proceedings, would be destroyed if the 
 pleader were permitted to introduce into his plea more 
 than one defence. When he is permitted, by leave 
 of the court, to plead more than one defence to the 
 same bill, or the same part of a bill, he must not unite 
 the separate defences in the same plea, but file sep- 
 arate pleas. 
 
 Gibson v. Whitehead, 4 Mad. 129, 241; Scott v. Broadwood, 2 
 Coll. C. C. 447; Haidman v. Ellames, 5 Sim. 640; Benson v. 
 Jones, 1 Tenn. Ch. 498; Brinkerhoff v. Brown, 7 Johns. Ch. 216; 
 Salliers v. Tobias, 7 Johns. Ch. 214. 
 
 A plea cannot be made to perform the office of a 
 demurrer. If it sets forth no new matter, but relies 
 upon the allegations contained in the bill, it will be 
 overruled. 
 
 Black v. Black, 15 Ga. 445; Andrews v. Lockwood, 11 Jur. 956. 
 
 The plea must clearly and distinctly aver all the 
 facts necessary to render it a complete defence to the 
 case made by the bill so far as the plea extends. 
 When such facts are within the knowledge of the 
 defendant, they must be averred positively, but when 
 they are not within his personal knowledge, they may 
 be averred upon information and belief. All intend-
 
 EQUITY PLEADING AND PRACTICE. 113 
 
 ments against the pleader must be excluded by proper 
 
 averments of facts, and not conclusions of law. 
 
 Parker v. Parker, Walk. Ch. 457. 458; Drew v. Drew, 2 V. & 
 B. 159; Madison v. Watertown, 5 Wis. 173. 
 
 For example : 
 
 L When the defendant pleads want of proper par- 
 ties, that fact not appearing on the face of the bill, 
 the objection must be made in a clear and explicit 
 manner, and the plea, like the demurrer, must show 
 who are the proper parties. 
 
 Robinson v. Smith, 3 Paige 222; Mitchell v. Lennox, 2 Paige 
 280. 
 
 2. The plea of another suit pending for the same 
 cause, and for like relief, is insufficient. The plea 
 should set forth the general character and objects of 
 such suit, and the relief prayed. 
 
 Bank of Michigan v. Williams, Hir. Ch. 219; Bell v. Read 3 
 Atk. 590; Lyon v. Brock way, 14 Johns. Rep. 501. 
 
 3, A plea of a stated account must aver that the 
 accounts were just and fair, and those averments must 
 be supported by an answer to the same effect. 
 
 Schwartz v. Wendell, Har. Ch. 395. 
 
 When the defence is based upon some fact which 
 
 has arisen after the filing of the bill, and before other 
 
 defence is put in, it can be taken advantage of by 
 
 plea, but if the defence has been made, it must be 
 
 taken advantage of by supplemental or cross bill. 
 
 Payne v. Beach, 2 Tenn. Ch. 708; Miller v. Fenton, 11 Paige 18; 
 j^Lane v. Smith, 14 Beav. 49; Wallace v. Dunning, Walk. Ch. 416. 
 
 It is within the discretion of the court to permit a
 
 114* KQUITY PLEADING AND PRACTICE. 
 
 plea to be amended when the application for the pur- 
 pose shows mistake, inadvertence, etc. 
 
 Freeman v. Michigan Bank, Har. Ch. 811; Greene v. Harris, 
 11 R. I. 5. 
 
 We have seen that a demurrer admits, for purposes 
 •of the argument, that all the facts well pleaded in the 
 bill are true, but introduces no new fact. The pur- 
 pose of the plea on the other hand, is to call the atten- 
 tion of the court to a fact not appearing on the face of 
 the bill, which is a bar to the plaintiff's action; but 
 while the pleader may deny any allegation of fact 
 made in the bill, yet the plea admits all the allegations 
 of the bill, which it does not by averment deny. It fol- 
 lows, therefore, that when there are any allegations of 
 fact in the bill inconsistent with the plea, such allega- 
 tions must be negatived by specific averments in the 
 plea, otherwise the pleader would by his plea aver a 
 fact and by the same plea constructively, but none the 
 less positively, admit the truth of an allegation in the 
 bill wholly at variance with his averment. It is therefore 
 necessary for the pleader in drawing his plea, to ex- 
 amine the bill and to negative by positive averment 
 every allegation contained therein which is inconsis- 
 tent with the truth of the plea. 
 
 Formerly, one of the principal objects gained by a 
 plea, was to prevent a discovery on the part of the de- 
 fendant. It is evident that if the defence made by 
 the plea goes to the whole bill, that the complainant has 
 no right to discovery, since he has no right of action. 
 Therefore, if there are no allegations in the bill which
 
 EQUITY PLEADING AND PRACTICE. 115 
 
 rend to negative the plea, or in other words, to dis- 
 prove the existence of the particular fact which the 
 plea avers and sets up as a special defence, the pleader 
 is not required to make any answer to the bill what- 
 ever. 
 
 If, however, there are allegations of fact in the 
 bill negativing the truth of the plea, the plaintiff is enti- 
 tled to discovery. They are put in issue by the aver- 
 ments of the plea, and the plaintiff is entitled, as to 
 them, to have the defendant's testimony. Therefor, 
 the pleader must not only in his plea negative, by 
 proper averments, all the allegations in the bill inconsis- 
 tent with the truth of the plea, but he must also answer 
 fully and explicitly, as to those allegations. Such an 
 answer is said to be an answer in support of the plea. 
 
 These rules are applicable to all pleas whether 
 pure, negative or anomalous.
 
 116 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE VIII.. 
 
 PURE PLEAS. 
 
 A pure plea is one which avers some fact not ap- 
 pearing upon the face of the bill, as a bar to the plain- 
 tiff's claim. 
 _2 Daniels Oh. Pr^Q Ed .) 97. 
 The theory upon which the pleader proceeds with 
 the affirmative plea is, assuming that the allegations 
 of the bill are true, that there is a fact or circumstance 
 not mentioned in the bill, which is a good and sufficient 
 reason why the complainant should not be permitted 
 to proceed with his suit. The court in order to save 
 expense to the parties decides upon the validity of the 
 objection, taking the bill so far as it is not contradicted 
 by the plea as true. 
 
 NEGATIVE PLEAS. 
 
 But there are cases in which some allegation made 
 in the bill and which is absolutely essential to the 
 complainant's right to be heard is denied by the de- 
 fendant. For instance A may file a bill against B, 
 claiming to do so as the heir of C, and A may deny 
 that he is in fact the heir of C. This is called a nega- 
 tive plea, and always by its averments denies the 
 truth of some allegation in the bill which is vital to the 
 complainant's case. It was at first held that such a 
 plea could not be tiled. Lord Thurlow so decided in
 
 EQUITY PLEADING AND PRACTICE. 117 
 
 1787 in a cause where the complainant claimed to be 
 
 the heir of a certain person and the defendant sought 
 
 by plea to deny that allegation in the bill. 
 
 Newman v. JVallace_£ Bro. Q^C. US^Jjfi^flnnn v Prior, 2 
 ni£iL_657. 
 
 The Chancellor himself, however, afterwards ad- 
 mitted that he had arrived at a wrong conclusion, and 
 since then negative pleas have been allowed. 
 
 ♦3 Hall v. Noyes, 3 Bro. C. C. 4 83 :L 489iJ^MsjJtogfe ^yes^6 2. 
 — " o 
 
 ANOMALOUS PLEAS. 
 
 An anomalous plea is resorted to in those eases where 
 the bill admits the existence of a certain fact, and then 
 by distinct allegations seeks to avoid the legal effect 
 of such fact, by setting up fraud or mistake. The 
 anomalous plea avers the existence of the fact 
 admitted by the bill and then denies the allegations 
 of mistake or fraud contained in the bill. For exam- 
 ple, suppose A and B had been copartners and upon 
 the dissolution of the copartnership had submitted the 
 differences between them, growing out of the partner- 
 ship business, to arbitrators who had duly made an 
 award. A afterwards files a bill against B praying 
 for an accounting of the partnership business. Now, 
 if he said nothing about the arbitration and award in 
 his bill, B could by an affirmative plea set that up. But 
 in such a case the bill probably would not be silent on 
 the snbject of the arbitration, and would allege that 
 there had been an arbitration and a pretended award, 
 but that said award was null and void because, for
 
 118 EQUITY PLEADING AND PBAOHOE. 
 
 instance, there had been collusion between the arbi- . 
 trators and B, and it would then set forth several 
 alleged facts and circumstances which if true would 
 tend to establish the collusion and fraud. In such a 
 case B must resort to an anomalous plea, averring the 
 arbitration and award, denying collusion and fraud 
 and specifically denying each allegation of fact in the 
 bill tending to establish such collusion and fraud, and 
 this plea must be supported by an answer making a 
 full disclosure in regard to all the allegations in the 
 bill tending to show collusion and fraud. The com- 
 plainant is entitled to have the allegations of fraud 
 denied, because his right of actions, as appears from 
 his bill, depends upon his showing collusion and 
 fraud. Otherwise, when he tiled his replication to 
 the plea, he would put in issue, not the existence of 
 the facts showing fraud, upon which he depends 
 solely for relief, but upon the facts appearing in the 
 plea, that is the existence of the award about which 
 there is no dispute. But if the plea traverses the 
 allegations of fraud, then a replication to the plea puts 
 those allegations in issue. The defendant must trav- 
 erse all the allegations tending to negative the plea, in 
 the plea itself, but, as we have said, the plea must be 
 accompanied by an answer in its support in which such 
 allegations shall be fully and explicitly answered. The 
 plea traverses the allegations in the bill tending to 
 negative the plea, in order that the truth of those 
 allegations may be put in issue. The plea must be sup- 
 ported by an answer as to those same allegations for a
 
 EQUITY PLEADING AND PRACTICE. 119 
 
 very different but equally satisfactory reason. The 
 complainant is entitled to a full discovery from the 
 defendant of all the facts within his knowledge or 
 belief which tend to establish the complainant's right 
 to relief or to discovery even. Therefore, when relief 
 is based upon the ground of fraud and the defendant 
 is asked to discover certain facts within his knowledge 
 tending to establish such fraud, he must answer and 
 make the discovery asked, to the end that the com- 
 plainant may have the advantage of the answer as 
 evidence upon the hearing of the plea to establish his 
 case by disproving the case made by the plea. 
 
 We have already called your attention to the rule 
 that if an answer covers any material part of the bill 
 demurred or pleaded to, the demurrer or plea will be 
 overruled. In the case we have supposed where the 
 bill is tiled to set aside an award which, if good, 
 would be a complete bar to the complainant's cause of 
 action, and the defendant pleads the award, it would 
 seem at first glance that if the defendant answered the 
 averments in the bill showing that such award was 
 void, that the answer covered the same part of the bill 
 as the plea. It is not the case, however. The bill in 
 such case is filed for the purpose of obtaining discov- 
 ery and relief. The plea is to relief and not to dis- 
 covery. The defendant relies upon the award as a 
 complete bar to all relief. That it is a complete bar if 
 valid the bill in substance admits, for the complainant 
 asks to be relieved from its effects by having it set 
 aside. The defendant, therefore, by pleading the
 
 120 EQUITY PLEADING AKI> PRACTICE. 
 
 award and denying the allegations of fraud puts in 
 issue the validity of the award. Hut the fact that 
 there is a valid award and that therefore the complain- 
 ant is not entitled to relief, is not a denial that the 
 complainant is entitled to a full discovery from the 
 defendant of all the facts within his knowledge or 
 belief, tending to disprove the plea. The answer 
 therefore which supports the plea does not cover any 
 portion of the bill covered by the plea. 
 / iSgUjdfil^vjMQg. Q >TaA fU; Thrin gjv. Edgar. 2 S. & S. 274- 
 277; J^Xjtg v. Edgiuy-gfo <fr S 234=281; Hardman v. Ellames, 
 5 Sim^64Q£DeDYS v^Lowck , 3 M yl. and C. 205. 
 
 The answer is said to support the plea, for the 
 reason that the court will intend all matters alleged in 
 the bill, to which the complainant is entitled to re- 
 quire an answer, to be against the pleader unless they 
 are fully and clearly denied, and therefore, if in the 
 case we have supposed, the defendant should plead the 
 award and not full} 7 and clearly answer as to the alle- 
 gations of fraud, the court would assume that such al- 
 legations are susceptible of proof, and on that ground 
 would overrule the plea. If there is a proper answer 
 in support of the plea, such answer is no part of the 
 defence, but onlj r what the complainant is entitled to 
 have to enable him to avoid the defence made by the 
 plea and establish the case made by the bill, and the 
 complainant is entitled to read the answer on the 
 hearing of the plea. 
 
 Ajlildyard v. Cressy, 3 Atk. 303; Horur_Tr TJnn-y, 1 8, ^S. 568. 5 80; 
 ] Gordon v. Shaw, 14 Sim. 393; 1 Rochv L M orgell. 2 Se n, and Lef^ 
 I? 1 -
 
 EQUITY PLEADING ANH PRACTICE. 1 'J 1 
 
 Whenever notice or fraud is alleged in the bill the 
 
 plea must by positive averments negative the notice 
 
 or fraud averred, and Buch notice or fraud must also be 
 
 negatived by the answer which supports the plea. 
 
 ^ Meadows v. The Duchess of Kingston, Arab. 756; Devie v. 
 
 J Chester, 1 Cox 224; Hoarev. Parker, 1 Bro. C. C. 578; Bicknell 
 
 J v.,Hojlg h^ :) AU ^Jiris, 
 
 DIFFERENT GROUNDS OF PLEA. 
 
 Pleas to relief are: 
 
 1. To the jurisdiction. 
 
 2. To the person of the complainant or defendant. 
 
 3. In bar of the suit. 
 
 1. 
 
 Pleas to the jurisdiction, do not deny the right of 
 
 of the complainant in the subject of the suit or assert 
 
 that there is any disability on the part of either the 
 
 complainant or defendant, but asserts that a court of 
 
 chancery is not the proper court to take cognizance 
 
 of the cause. 
 
 Storv Eq. PI. §706. 
 
 2. 
 
 Pleas to the person, do not dispute the jurisdiction 
 of the court, or the interest of the complainant, but 
 assert that the complainant is incapacitated to sue, or 
 that the defendant is not the person" who ought to be 
 sued. 
 
 Story Eq. PI. §706. 
 
 3. 
 A plea in bar alleges some matter which displaces 
 the equity of the bill.
 
 122 EQUITY PLEADING AND PRACTICE. 
 
 FORM OF PLEA. 
 
 A plea is entitled in the cause, and like a demurrer 
 is introduced by a protestation against the confession 
 of the truth of any matter contained in the bill. 
 
 The extent of the plea, that is whether it is in- 
 tended to cover the whole bill, and if not the whole, 
 what portion, should be distinctly shown, 
 k T.p.!«>rnftj v. Dm-prpv, 4 Btuwvto.i- Summers v. Murray, 2 Edw. 
 Ch. 205. 
 
 Then follows a clear and positive statement of the 
 matter relied upon as an objection to the suit accom- 
 panied, when neeessary, by such averments as are nec- 
 essary to its support. When the objection is to the 
 frame of the suit, it must point out the particular de- 
 fect and how it may be remedied. 
 Merre wether v. Mellish, l3 _Ves. 435 , 438. 
 
 The general requisites of a plea have already been 
 given. They are : 
 
 1. It must be founded on matter not apparent on 
 the face of the bill. 
 
 2. It must reduce the case to a simple point. 
 
 3. It must be supported by proper averments. 
 After the plea has been drawn, it is to be signed 
 
 by counsel and sworn to by the defendant, that it 
 is true in point of fact. 
 
 By the rules of the United States courts it is pro- 
 vided that no plea shall be filed unless it is accom- 
 panied by a certificate of counsel that it is, in his 
 opinion, well founded in point of law, and by the 
 affidavit of the defendant that it is not interposed
 
 EQUITY PLEADING AND PRACTICE. 123 
 
 merely for the purpose of causing delay in the pro- 
 gress of the suit. 
 
 U. S. Rule 81. 
 
 When the plea is filed the complainant must cither 
 set the cause down for hearing on the plea, or file a 
 replication to the plea. If the plea is set down for 
 hearing the truth of all the averments in the plea 
 well pleaded is admitted, and the only question for 
 the court to pass upon is the sufficiency of the plea. 
 
 If a replication is filed to the plea, the complainant 
 thereby admits the sufficiency of the plea in law, and 
 the only question in issue is the truth of the matter 
 pleaded. 
 
 • It becomes very important therefore, for the corn 
 plainant to determine in the first instance, whether 
 the plea is good in form, because, if it should be bad 
 in form, but the matters pleaded true in fact, and he 
 should take issue upon the plea, by filing a replication 
 the plea would be sustained, notwithstanding it was 
 bad in form and the matters pleaded were no bar to 
 complainant's bill, because, by filing the replication, the 
 complainant admits that the matter as pleaded is a 
 bar if true, and he denies merely the truth of the 
 matters pleaded. 
 
 Bogardus v. Trinity Church, 4 Paige 178; Harris v. I ngledew , 
 
 If the plea is set down for hearing and the court 
 holds that it is good in form, the complainant may then 
 take issue upon it by filing a replication. After a 
 replication is filed proofs are taken as to the truth of
 
 12 i KQUITY PLEADING AND PRACTICE. 
 
 the plea and then a hearing is had upon that issue. 
 The sufficiency of the plea is no longer in issue, the court 
 is simply called upon to determine whether or not the 
 defendant has by his proofs maintained the truth of 
 his plea. 
 
 McEwen v. Broadhead, 3 Stockt. (N. J.) 129-131. 
 
 If the plea is allowed, it is thereby determined to be 
 a full bar to so much of the bill as it covers. If the 
 defect in the bill can be cured by ah amendment, it is 
 usual for the court to permit the complainant to 
 amend his bill. If the defect cannot be cured, then, 
 of course, the controversy is at an end as to that much 
 of the matter covered by the plea. 
 
 Story Eq. PI. § 697. 
 
 If the court should consider that although the plea 
 may be good and the facts pleaded true from the proofs 
 then before the court but that there may be matter 
 disclosed in evidence which would avoid it, in order 
 that the complainant may not be deprived of his 
 rights, it will direct that the benefit of the plea shall 
 be reserved to the defendant at the hearing. 
 
 Lord Redesdale, 245.
 
 EQUITY PLEADING AND PRACTICE. 125 
 
 LECTURE IX. 
 
 OVERRULING PLEAS. 
 
 When a plea has been set down for argument and 
 on the argument the court is satisfied that the plea 
 cannot under any circumstances be made use of as a 
 defence, it will be overruled. And if it is a frivolous 
 plea the complainant may, if he desires, have an order 
 to. take the bill as confessed. 
 
 If the plea is not frivolous, the effect of overruling 
 the plea is to impose upon the defendant the necessity 
 of making a new defence. This he may do, by a new 
 plea or by an answer. 
 
 Chadwick v. Broadwo od. 3 Beav. 308, 316. 
 
 This rule giving the defendant a right to plead de 
 novo does not permit him to rest his second plea upon 
 the same ground as the first. And when a plea has 
 been overruled upon the merits, the same matter can- 
 not be set up in the answer as a defence without per- 
 mission of the court. 
 
 TWnshP-ad v Tnwimhpnri 9, p*i<rf, ij ^ J Piatt V. Olive r . 1 Mq- 
 
 ^eau-aaa; ( Ringgold v. Stone, 20 Ark. 52«y 
 
 And if the defendant desires to plead de novo he 
 should obtain leave of the court; for a defendant may 
 not interpose more than one plea without special leave 
 of the court. 
 
 McEwan v. Sanderson, L. R. 16 Eq. 31(i.
 
 126 EQUITY PLEADING AND PRACTICE. 
 
 The effect of allowing or overruling a plea upon 
 the argument, and the effect of finding a plea true or 
 false upon the hearing, are widely different in their 
 effects upon the rights of both the complainant and 
 defendant. 
 
 If the plea is allowed upon the argument, the effect 
 is to hold that the plea is good in law, assuming that 
 it is true in fact, and the complainant is stilj at liberty 
 to take issue upon the facts pleaded. 
 
 If the plea is overruled upon the argument, the 
 defendant may put in a new defence, as we have just 
 seen. 
 
 On the other hand, the decision of the court upon the 
 hearing of the plea is decisive and final as to so much 
 of the bill as is covered by the plea. If the plea is 
 found true, the bill is dismissed, and if found false, 
 the complainant is entitled to a decree ; for the reason 
 that when issue is taken upon the plea, after argument 
 and allowance, its validity as a complete bar to the 
 complainant's suit has been found by the court, and 
 nothing further remains, except to ascertain whether 
 or not the facts upon which its validity depends are 
 true. If the truth is established, then the plea is 
 found to be both true in fact as well as good in law. 
 
 But if the complainant takes issue upon the plea by 
 filing a replication before argument, and, consequently 
 before the court has passed upon its sufficiency, by so 
 doing he admits that the plea, if true in fact, is a bar 
 to his suit, and this admission is conclusive so far as 
 the sufficiency of the plea is concerned, it being pre
 
 KylllTY PLEADING AND PJBAOTIOE. 127 
 
 cisely the same in effect as the allowance of the plea 
 by the court. After the replication is filed, the only 
 question in issue, as to so much of the bill as is covered 
 by the plea, is the truth of the plea. The complain- 
 ant says by his pleadings, in effect, if what the 
 defendant has alleged in his plea is true, I am not 
 entitled to my relief. While the defendant has, by 
 his pleadings, admitted that all the allegations made 
 in the complainant's bill are true, except so far as they 
 are denied by the plea, and that his sole and only 
 defence to the complainant's suit are the matters 
 which he has pleaded, and if those matters are not 
 established, that he has no further or other defence, 
 and that the complainant is entitled to a decree. 
 
 Story Eq. PI. § 697; U. S. Rule 33; Hughes v. Blake, 6 Wheat. 
 453. 
 
 It follows that where the complainant files a repli- 
 cation to a plea, which is true in fact, but insufficient 
 in law, that the bill must be dismissed upon the hear- 
 ing, because upon the hearing the court will not 
 examine into the sufficiency of the plea, because under 
 the pleadings it is admitted to be good in law. 
 
 Harris v. Ingledew, 3 P. Wilis. 91, 94, 95; Bogardus v. Trinity 
 Church, 4 Paige 178. 
 
 On the other hand, if the defendant has a complete 
 defence to the complainant's suit, but rests his defence 
 upon a plea of some matter which he cannot establish, 
 he loses all the benefit of his defence upon the merits, 
 and cannot prevent the complainant from obtaining a 
 decree. 
 
 Hughes v. Blake, 6 Wheat. 453.
 
 128 EQUITY PLEADING AND PRACTICE. 
 
 If the complainant, on the face of the bill, is en- 
 titled to a final decree, he may have such decree upon 
 the plea being found false upon the hearing. If, 
 however, he is not entitled to final and complete relief 
 upon the case made, he is entitled to an order that the 
 bill be taken as confessed, and for a reference to a 
 master to take proofs. He may also, if necessary, 
 examine the defendant upon interrogatories as to all 
 matters which, by an answer, the defendant should 
 have discovered. 
 
 Dows v. McMichael, 2 Paige 345; Brownswood v. Edwards, 2 
 Ves. Sen. 243. 247. 
 
 THE ANSWER. 
 
 From what has been said, you have learned that 
 little or no .advantage, except delay, is gained by a 
 demurrer or plea, unless the cause for demurrer or the 
 special defence made by the plea cannot be overcome 
 or met by an amendment to the bill. Whenever the 
 complainant can cure the defect pointed out by these 
 dilatory defences through an amendment, the attack 
 has had no other effect save that of strengthening and 
 fortifying the complainant's position. When, how- 
 ever, the defect cannot be cured by amendment, these 
 defences should be resorted to, as they shorten the liti- 
 gation and save expense. And in case of want of 
 parties, or a misjoinder of parties, or multifariousness, 
 the benefit of a defence on that ground is frequently 
 lost when not taken by demurrer or plea. (Turner v. 
 Hart, 71 Mich. [July 11, 1888].) But since nearly
 
 HXJIHTY PLEADING KtiU PRACTICE. 129 
 
 every defence that can be made by demurrer or plea 
 ean be taken advantage of equally well by an answer, 
 they are usually set up in the answer. This practice 
 inure largely prevails at present than formerly, because 
 since parties can now be witnesses, avoiding discovery 
 called for by the bill is now of little consequence, 
 while formerly it was of the utmost importance. 
 
 When the bill does not waive an answer on oath, 
 the answer properly consists of two parts : 
 
 1. A. statement of the defence. 
 
 •2. Answers to the complainant's interrogatories. 
 
 It is not necessary that the answer should be divided 
 into two separate and distinct parts, the one being 
 devoted exclusively to setting forth the defendant's 
 defence and the other to answering the complainant's 
 interrogatories. The two may be interlaced, but 
 the pleader in drawing the answer, should keep its 
 twofold character in mind, and it should be so drawn 
 as to set out clearly, distinctly and fully, all the separ- 
 ate grounds of the defence, and it should at the same 
 time, answer fully and explicitly, all matters in regard 
 to which the complaiuant asks and is entitled to dis- 
 covery. 
 
 Youle v. Richards, Sexton (N. J.) 534; Warren v. Warren, 80 
 Vt. 530. 
 
 It is a general rule that the complainant cannot rely 
 upon any ground for relief except those contained in 
 the bill, and that the defendant cannot rely upon any 
 ground of defence except that set up in his answer, 
 and that all testimony introduced for the purpose of
 
 130 EQUITY PLEADING AND PRACTICE. 
 
 establish iug some matter not claimed in the bill as 
 ground for relief or in the answer as ground of de- 
 fence, is immaterial and irrevalent and will not be 
 •considered by the court. 
 
 Moors v. Moors, 17 N. H. 481; Buckley v. Sutton, 38 Mich. 1; 
 Harrington v. Brown, 56 Mich. 301. 
 
 The defendant may set up in his answer any num- 
 ber of defences that are consistent with each other, or 
 rather that are not inconsistent. But the defendant 
 may not setup two or more grounds of defence which 
 are inconsistent with each other, and the error will not 
 be cured in such a case by stating the inconsistent 
 grounds of defence in the alternative. 
 
 Hopper v. Hopper, 11 Paige. 46; Jesus College v. Gibbs, 1 Y. 
 .& 0. Ex. 145, 160. 
 
 Not the same degree of certainty is required in an 
 answer as in a bill. There must be such a degree of 
 certainty, however, as is sufficient to inform the com- 
 plainant of the nature of the defendant's case. 
 
 Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509. 
 
 The same strictness is not requisite in an answer as 
 in a plea, where the statute of limitations is set up as 
 a defence. This defence if relied upon, must how- 
 ever be distinctly made, either by answer or plea, 
 although the defence that the claim is stale may be 
 made without any averment to that effect having 
 been made in the answer. 
 
 Maury v. Mason, 8 Porter (Ala.) 211; Sullivan v. Portland, 
 94 U. S. 806. 
 
 When matters of defence are set up in the answer,
 
 EQUITY PLEADING AND PRACTICE. 131 
 
 which might have been taken advantage of by de- 
 murrer or plea, and the defendant, as to those matters, 
 claims the same benefit in his answer as though he 
 had demurred or pleaded, it is only at the hearing of 
 the cause that any such benefit can be insisted upon. 
 
 Wray ^. Hutchinson, 2 M. & K. 235; Mulloy v. Paul . 2 Tenn. 
 C b^l55/ Hume v. Com'] Bk., 1 Lea, 229; Zabel v. Harsh man, 68 
 Mich. (Jan. 12, 1888.)
 
 132 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE X. 
 
 FORM OF THE ANSWER. 
 
 The answer must be entitled in the cause and agree 
 with the bill as to the parties named therein. It' a 
 mistake as to the name of a defendant has been made 
 in the bill, such mistake cannot be corrected in the 
 title, but if the defendant has been misnamed in the 
 bill, he may make the correction in the body of his 
 answer; thus for instance : u The answer of Robert 
 Sharp (in the bill bv mistake called Roland Sharp), n 
 etc. 
 
 '/Attorney General v . Wo rcester, 1 CoophJT^ CotL JSjff 
 
 If there is such a defect in the heading of the answer, 
 
 that it does not appear distinctly whose answer it is, 
 
 or in what case it is filed, it will be taken off the tile 
 
 for irregularity. 
 
 ; t PritU3_v. Thompson, _G. Qaop. 249 f? Griffiths v. Wood^ 1 l^Vea. 
 62;_Pry_v. Mantell, 4_Beav._485 ; Upton v. SowTou^lS Sim~40* 
 
 If, however, it is evident, what bill is answered, it 
 will not be stricken from the files although certain 
 prescribed words have been omitted. 
 
 Bowes v. Farrar, L. R. 14 Eq. 71. 
 
 Two or more persons may join in the same answer, 
 and when they appear by the same solicitor, and have 
 the same defence, they ought to join, and the court 
 will not, in case they should succeed in the suit, allow 
 them any more costs in ease they file separate answers
 
 KQUITY PLEADING AND PRACTICE. 183 
 
 than would have been allowed, if they had filed a 
 joint answer. 
 
 Story Eq. PI. § 869;^ Woods v. WoocK - r> Warp » aQ , 9: ¥H> 
 The answer should be divided into paragraphs num- 
 bered consecutively and each paragraph should contain 
 a full and distinct statement of some allegation. Docu- 
 ments not on file in the case cannot be referred to and 
 made a part of the answer, but may when so filed. 
 
 Wells v. Stratton, 1 Tenn. Ch. 328; Attorney-General v. Ed- 
 munds, 15 W. R. 138; U. S. C. C. Rule 4. 
 
 When two defendants answer jointly and one 
 speaks positively for himself, the other may say that 
 he has perused the answer, believes it to be true and 
 that he makes it a part of his answer. This he may 
 not do, however, if they answer separately. 
 
 Binney's Case, 2 Bland. 99; Warfield v. Banks, 11 Gill & J. 
 98; Carr v. Weld, 3 C. E. Green (N. J.) 41. 
 
 The answer must be signed by the defendant or 
 defendants putting it in, unless leave has been ob- 
 tained to file an answer not signed, because originally 
 the answer was always under oath and was testimony 
 in the cause. j 
 
 oDenn ison v. Bassford. 7 Paig^Liil Qi Cook v. Dews, 2 Tenn. 
 Ch. 496; Kimball v. Ward, Walk. Cb. 439; Supervisors &c. v. 
 Miss. &c. R. R. 21 111. 337. 
 
 The answer must also be signed by counsel. When 
 such counsel are a firm, the firm signature may be 
 used. 
 
 Bisbop v. Willis. 5 Beav. 83 n; Hampton v. Coddington, 1 
 8tew. Eq. 557; Henry v. Gregory, 29 Micb. 68; Eveland v. 
 S tephenson. 45 M jfh Ml- Dwight v. Humphreys, 3 McLean 
 104: U. S. Cb. Rule 24.
 
 134 EQUITY PLEADING AND PKACTICE. 
 
 The copy of the answer served on the defendant is 
 presumed to be a correct copy of the answer filed, and 
 if the signature of counsel is omitted from the copy 
 served, the complainant may move to take the answer 
 off the files for irregularity. 
 
 Littlejohn v. Munn, 3 Paige 280. 
 
 The signing of the answer by the defendant may be 
 waived by the complainant, and if an unsigned 
 answer is put in and the complainant files a replication, 
 that step on his part will be held to be such a waiver. 
 Fulton Bank v. Beach, 2 Paige 307; Collard v. Smith, 2 Beas- 
 ley, (N. J.) 43, 45. 
 
 The court, under special circumstances will permit 
 the defendant to file an answer not signed by him as 
 when he resides at a distance, or has gone abroad 
 before an answer could be prepared or the like. 
 
 Dumond v. Magee, 2 Johns. Ch. 240; Harding v. Harding, 12 
 Ves. 159. 
 
 Unless answer under oath is expressly waived in the 
 bill the answer must be sworn to before the proper 
 officer. Who is such proper officer depends upon the 
 provisions of the local statute and the rules of the 
 court. 
 
 Sitlington v. Brown, 7 Leigh (Va.) 271. 
 
 The answer of a corporation is put in under the 
 corporate seal and not under oath. If it is put in not 
 under seal it will be taken from the files as irregular. 
 
 Ransom v Stonington, Sav. Bk. 2 Beasley, (13 N. J. Eq.) 212; 
 Mill Dam Foundry v. Hovey, 21 Pick. 417; Brumly v. Westches- 
 ter Mnfg Co., 1 Johns. Ch. 365; Beecher v. Anderson. 45 Mich. 
 543. 
 
 But unless the answer of the corporation is sworn to
 
 KQUITY I'LTCADlNf} AND PRACTICE. L35 
 
 it cannot bo made the basis of a motion to dissolve a 
 temporary injunction ; since an injunction will not be 
 dissolved upon the filing of an answer not on oath 
 denying the equities of the bill. 
 
 Fulton Bk. v. New York, etc., 1 Paige, 811; Griffin v. State 
 Bk., 17 Ala. 25S. 
 
 When the complainant desires to obtain from a cor- 
 poration the answer of some officer of the corporation 
 under oath, such officer must be named and made one 
 of the defendants in the bill. 
 
 Buford v. Rucker, 4 J. J. Marsh, 551; Vermilyca v. Fulton 
 Bk., 1 Paige 37; Beecher v. Anderson, 45 Mich. 543. 
 
 When the complainant waives an answer on oath, 
 the answer is treated as a mere pleading and is not 
 evidence for the defendant, but the plaintiff may take 
 advantage of any admissions made in it. 
 
 Bartlett v. Gale, 4 Paige, 004; Wilson v. Towle, 36 N. H. 129; 
 Durfee v. M.CIurg, <> Mich. 223; Union Bk., etc. v. Geary, 5 
 Pet. 99, 110, 113. 
 
 When the bill waives an answer under oath the 
 defendant cannot make his answer evidence by put- 
 ting it in under oath. Under such circumstances the 
 sworn answer will be considered as one not under oath. 
 
 Hyer v. Little, 5 C. E. Green 443; Syuies v. Strong, 1 Stew. 
 Eq. 131. 
 
 As we have stated, an -unsworn answer cannot be 
 made the foundation of a motion to dissolve an injunc- 
 tion ; therefore, if an injunction bill waives an answer 
 under oath, the defendant may still put in an answer 
 under oath and so treat it, for the purpose of. moving 
 to dissolve the injunction grante I on the bill. 
 
 Dougrey v. Topping, 4 Paige 9 4 ; Mahony v. Lazier, 16 Md. 69; 
 Rainey v. Rainey, 35 Ala. 2^2.
 
 13(5 EQUITY PLEADING AND PRACTICE. 
 
 When the answer is signed, drawn, and if necessary 
 sworn to, it must be filed and a copy served upon the 
 complainant within the time prescribed by the rules. 
 
 U. S. Rule 18; Mich. Rule 11. 
 
 If an answer on oath has been waived in the bill the 
 complainant cannot except to the bill filed as not hav- 
 ing fully answered the allegations contained in the 
 bill. In such a case the answer is a mere pleading, 
 but lie may still except to the answer for impertinence 
 or scandal, if it is padded with irrelative matter, or 
 tainted with unnecessary comments affecting the 
 moral character of any one. If an answer on oath has 
 not been waived and it does not contain a full disclos- 
 ure of ail the matters in regard to which the defend- 
 ant has been interrogated, it may be excepted to for 
 insufficiency. The steps necessary for the complain- 
 ant to take in excepting to the answer either for 
 insufficiency, impertinence or scandal, are prescribed 
 by the rules. 
 
 D. S. Rules 2(i. 27; Mich. Rules 27, 28; Brooks v. Byam, 1 
 Story 296; Stafford v. Brown, 4 Paige 88. 
 
 The exceptions are entitled in the cause and they 
 must point out positively and distinctly the matters in 
 the answer which are objected to as impertinent or 
 scandalous, or those parts of the bill which have not 
 been fully answered. They pray that the scandalous 
 and impertinent matter may be expunged, or that the 
 defendant may put in a full answer. They are signed 
 by counsel, filed, and a copy served upon the opposing 
 solicitor. The defendant may submit to make a 
 further answer or to have the matter, objected to as 
 impertinent or scandalous, expunged, rf he does not,
 
 KQOITY PLEADING AND PEACTIOB. 137 
 
 the answer is referred to the proper officer to examine 
 and report whether the exceptions are well taken. 
 
 Brooks v. Byam, 1 Story 29(5; Stafford v. Brown, 4 Paige 88; 
 Evans v. Owen, 2 M. & K. 382; Craven v. Wright, 2 Peere Wms. 
 182. 
 
 AMENDING ANSWERS. 
 
 When an answer has been put in upon oath, the 
 court will not permit it to be amended in matters of 
 substance, except under very exceptional and special 
 circumstances. Where the proposed amendment is to 
 the form of the answer merely, or to correct some 
 mistake of date, or a verbal inaccuracy, the court will 
 not hesitate to grant leave to amend. 
 
 Campion v. Kille. 1 McCarter (N. J.) 229, 232; McKim. v. 
 Thompson, 1 Bland 162; Bowen v. Cross, 4 Johns. Ch. 375: 
 Dearth v. Hide and Leather Natl. Bk., 100 Mass. 540; Web- 
 ster Loom Co. v. Higgins 13 Blatchf. 349; Ji Gain8l 
 ^ ifford 2 P Wms A^U til 
 
 The court will also allow the defendant to amend 
 his answer, where new matter has been discovered 
 since the answer was put in. 
 
 Tillinghast v. Champlin. 4 R. I. 128. 
 
 Or to correct a mistake, when owing to such mis- 
 take, an admission has been made to the prejudice of 
 the defendant. 
 
 Hughes v. Bloomer, 9 P;iige 269. 
 
 The court will not, however, permit amendments of 
 this nature to be made merely on the ground that the 
 defendant, when he made the admissions, was labor- 
 ing under a mistake of law, and when no mistake of 
 fact has been made. , v 
 
 Pf.Ko wlips v. Powell, 1 P. Wms. '29S;j Peurce v. Grove, Amb. 
 ^SfT'earce y. Grove. 3 Alk. 522.
 
 138 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XI. 
 
 SUPPLEMENTAL ANSWERS. 
 
 It is the usual practice, at the present time, to file a 
 
 supplemental answer instead of amending the original, 
 
 answer. Application must be made to the court for 
 
 leave to file such supplemental answer, and the same 
 
 rules govern such applications as those for leave to 
 
 amend. 
 
 P Rainc ock v. Young, 16 Sim. 122^/Arnand. v. Grigg, 3 Stew. 
 Eq. 1; Smith, v. Smith, 4 Paige 92. 
 
 In making an application to file a supplemental 
 
 answer, the defendant must show that justice requires 
 
 that he should be permitted to make the correction in' 
 
 his answer or the additional defence. And the 
 
 motion for leave to file the supplemental answer must 
 
 be accompanied by an affidavit setting forth the facts 
 
 upon which the motion is founded. 
 
 Thomas v. Doub, 1 Md. 252; McKim v. Thompson, 1 Bland 
 lBO / Wella-J>^-Weod^JLflLyes. 401. 
 
 When a defendant has obtained leave to file a sup- 
 plemental answer, he must confine such answer 
 strictly to the matters set forth in his application and 
 which he has received the leave of the court to 
 embody in such answer. If he goes beyond that, his 
 supplemental answer will bo taken off the files. 
 
 Str ange v. Collins, 2 V. & B 4 __lG:j 1 _JJi7 J / ^ 
 
 There is no particular time within which the,
 
 KQUITY PLEADING AND PKA.CTICB. 139 
 
 defendant must make an application to file a supple- 
 mental answer, provided lie make it as soon as the 
 error or omission in. his answer, or the newly dis- 
 covered evidence, has come to his knowledge. He 
 must not be guilty of inexcusable laches and further- 
 more, it must be possible to place the complainant in 
 the same position that he would have been in, had the 
 correction or new matter been stated in the original 
 answer. 
 
 Martin v. Atkinson, 5 Ga. 390; Wilson v. Wintermute, 12 C. 
 E. Green (N. J.) 63; Ruggles v. EdcJx^LBhll^ 524; Fulton 
 
 v. Gilman, 8 Beav. 154, 158; F urnani v. Edw ards, 3 Ti-nn. Ch. 
 365; Smallwood v. Lewin, 2 Beasley (N. J.) 123. 
 
 TAKING ANSWERS OFF THE FILE, 
 
 As we have seen an answer may be taken off the file 
 if any irregularity has occurred in its frame or form. 
 But the plaintiff must apply to have tiie answer taken 
 off the tile before he excepts to it, otherwise he will 
 have waived the irregularity. It is a general rule in 
 pleading that a positive step on the basis of some prior 
 pleading is a waive of any irregularity in such plead- 
 ing. 
 
 Steele v. Plomer, 2 Phil. 780 pult on Bank v. Beach.- 2 Paige. 
 JO?; S. C, 6 Wend. 36; Seifried v. People's Bank, 1 Baxt. 200. 
 
 Not only may an answer be taken off the tilt 
 an irregularity in its form, but. if on its face it is evi- 
 dently evasive the complainant may, before he excepts 
 to it for insufficiency move to have it taken off the 
 files. 
 
 Qlaesington v. Thwaites, 2 Russ. 458, 462; Seaton v. Grant, L. 
 R. 2 Ch. App. 459.
 
 140 (EQIIippCspLBADING AND PRACTICE. 
 
 The court will also, sometimes, in case the plead- 
 ings, affidavits or other documents contain matter 
 which on account of its character is desirable should 
 not remain of record, although not scandalous because 
 pertinent, permit them to be taken off the file upon 
 the consent of all the parties to the suit. 
 
 Clifton v. Bental, 9 Beav. 105; Walton v. Broadbent, 3 Hare 
 334; Seaton v. Grant, L. R. 2 Ch. App. 459. 
 
 JOINDER OF SEVERAL DEFENCES. 
 
 All or any two of the several modes of defence may 
 be joined. A defendant may demur to part of the 
 bill, plead to another part, answer to a third part and 
 disclaim as to a fourth part. Each separate defence, 
 however, must relate to a separate and distinct part of 
 the bill. 
 
 Clark v. Phelps, t> Johns. Ch. 214; Livingston v. Story, 9 Pet. 
 632, 
 
 A defendant as we have seen cannot plead to that 
 part of the bill to which he has demurred, nor answer 
 any part to which he has demurred or pleaded, nor by 
 answer claim what by disclaimer he has declared he 
 has no right to ; because a plea, or answer, will overrule 
 a demurrer, and an answer a plea, the one defence being 
 inconsistent with -the other and the court preferring 
 that which rests nearest upon the merits. 
 
 Bolton v. Gardner, 3 Paige 273; Spofford v. Manning, 6 Paige 
 383. 
 
 When a demurrer is to a part of the bill, and there 
 
 is an answer or other defence to the remainder of the 
 
 bill, it should be entitled : " The demurrer of A. B.
 
 EQUITY PLEADING AND PRACTICE. 141 
 
 the above named defendant, to a part of the bill of 
 complaint of the above named complainant, and the 
 answer of said A. 13. to the remainder of said bill.*' 
 When there is a plea to a part of the bill accompanied by 
 an answer to the remainder, the plea and answer should 
 be entitled as above, except plea is inserted in place of 
 demurrer. 
 
 Tomlinson v. Swinnertou, 1 Keen. 9, 13. 
 
 When the answer, however, is in support of the 
 plea, the title is " Plea and answer." 
 
 These captions are not mere matters of form. If 
 the answer by its commencement is apparently an 
 answer to the whole bill, it will overrule aV plea or 
 demurrer to a part of the bill, although it does not 
 answer that part covered by the demurrer or plea. 
 f) Leaycraf t v. Dempsev. 4 Paige 12 4: Summers v. Murry, 8 
 
 If the answer contains a full and complete disclos- 
 ure and there is no impertinent or scandalous matter in 
 it to which the complainant desires to except, he must 
 determine whether he will go to a hearing upon the 
 bill and answer. If, assuming that all the mate- 
 rial averments of fact contained in the answer are 
 true, the case made by the bill has been admitted, he 
 may notice the cause for hearing. In this case no al- 
 legation made in the bill, although put in under oath, 
 will be considered as evidence in the cause, and all the 
 material averments contained in the answer, although 
 not put in under oath, are held to be true. In short, 
 the complainant must rely wholly upon those allega-
 
 142 EQUITY PLEADING AND PRACTICE. 
 
 tions in the bill which the defendant by his answer 
 has admitted, and those admissions are to be taken 
 with all the reservations and explanations contained in 
 the answer. The allegations in the bill, admitted by 
 the answer, must be sufficient, after being emasculated 
 by the explanatory matter contained in the answer, to 
 entitle the complainant to the relief prayed for, or he 
 will fail in his suit. The case must be clear and 
 strong, therefore, which will justify the complainant 
 ingoing to a hearing on the bill and answer. 
 
 Contee v. Dawson, 2 Bland 264; Childs v. Hon - , 1 Cole (la. 
 482; Rogers v. Mitchell, 41 N. H. 154; Pierce^v. West, 1 Peters 
 C. C. 351ft Cinnmini.''s v. Core v. 58 Mich. 4i)4ff Wek-ert v. Frank, 
 56 Mich. 21)0; Duri'ee v. McClurg, (i Mich. 2213. 
 
 There is an exception to the rule that the complain- 
 ant can <?o to a hearing on the bill and answer when 
 the admissions contained in the answer are sufficiently 
 full and explicit. No decree can be taken on a bill 
 confessed against an infant defendant, or on an answer 
 of a guardian ad litem, admitting the allegations con- 
 tained in the bill, but the complainant must in either 
 case sustain his bill by evidence. 
 
 Tha yer v._ Lane, Walk. Ch. 200; Chandler v. McKinney, 6 
 Mich, iiltf; Smith v. Smith, 13 Mich. 258. 
 
 Upon the hearing of a cause upon bill and answer 
 no proof is introduced by either party, but if the 
 answer refers to matter of record proved by the record 
 itself, or to exhibits, the record and exhibits are re- 
 garded as a part of the answer and may be read in 
 evidence. 
 
 Rowland v. Sturgis, 2 Hare 520; Chalk v. Haine, 7 Hare 393; 
 Legard v. Sheffield, 2 Atk. 377.
 
 KtJUITY PLEADING AND PRACTICE. 143 
 
 REPLICATION. 
 
 If the complainant cannot go to a hearing upon the 
 bill and answer he must join issue by filing a replica- 
 tion to the answer. According to the early system of 
 equity pleading, if the defendant setup in his answer 
 some new matter by way of defence or avoidance, to 
 which new matter the complainant had a perfect de- 
 fence, he set this up in a replication, and if he wanted 
 a discovery from the defendant in reference to such 
 new matter, he was required to set forth the evidence 
 to which he desired the defendant's oath. Under the 
 modern system of pleading, this purpose is accom- 
 plished by the complainant amending his bill and 
 inserting such new matter, and requiring the defend- 
 ant, if necessary, to file an amended answer. 
 
 Upon the replication being filed, the cause is at 
 issue, and the next step is for the complainant and 
 defendant to take such proof as is necessary to sus- 
 tain the contention on the part of each. 
 
 But before any proofs are taken it is important that 
 each party should determine how much of his case has 
 been established by the pleadings ; what facts have 
 been admitted, and what have been denied. 
 
 Admissions are either 
 
 I. Upon the record, or, 
 II. By agreement between the parties. 
 
 I. ADMISSIONS UPON THE RECORD. 
 
 These may be, 
 
 1. Constructive ; such statements of fact as the
 
 144 EQurrr pleading and practick. 
 
 parties are conclusively presumed to have admitted 
 under the forms of pleading, and, 
 
 2. Actual ; such statements of fact as are actually- 
 set out in the pleadings. 
 
 We have seen that if the defendant puts in a plea 
 to the bill, he thereby admits the truth of all the mat- 
 ters well pleaded by the complainant and not traversed 
 by the plea. In such a case the facts set forth in the 
 bill are constructively admitted to be true, and the 
 complainant is not required, upon filing a replication 
 to the plea, to introduce any proof to sustain his bill, 
 except as to those matters specifically denied by the 
 plea. 
 
 When the bill charges a fact to be within the 
 knowledge of the defendant, or which from the whole 
 context of the bill can be fairly presumed to be within 
 his knowledge, and the answer is silent as to that fact, 
 it will be taken as admitted. 
 
 McAllister v. Clopten, 51 Miss. 357. 
 
 But when the fact is not charged as within the 
 
 knowledge of the defendant and can not be presumed 
 
 to be so, it is not admitted by the silence of the 
 
 answer. 
 
 Hardy v. Heard, 15 Ark. 184; Moore v. Lockett, 2 Bibb. «7, 
 69; Neal v. Hagthorp, 3 Bland 551. 
 
 Any material matter, as a general rule, charged in 
 
 the bill, and neither admitted nor denied, must be 
 
 proved by the complainant. 
 
 Brown v. Pierce, 7 Wall.. 205, 211 fl3mitb. v. St. Louis M. L . 
 Co.. 2 Tenn. Ch. 599,( f 6l)2; /Hardwick v. Bassett. 25 Mich. 149. 
 
 a.*-** 
 
 o.
 
 EQUITY PLEADING AND PRACTICE. 
 
 145 
 
 It* answer upon oatli has been waived, all admissions 
 made by the defendant in his answer may be read in 
 evidence against . him, without making the denials 
 contained in the answer evidence in his favor. 
 
 Smith v. Potter, 3 Wis. 432. 
 
 The facts positively alleged in the bill may be read 
 in evidence by the defendant as admissions made by 
 the complainant. The complainant as a matter of 
 course cannot read his own bill as evidence in his 
 favor, unless the defendant has, by his answer, 
 admitted, directly or by implication, the truth of cer- 
 tain parts of the bill, in which case the complainant 
 may read such portions of his bill as the admissions: 
 of the defendant. 
 
 McGowan v. Young, 2 Stewart 276. 
 
 Although by his replication the complainant denies 
 the truth of the whole of the defendant's answer, he is 
 not precluded from using any part of it as evidence 
 in his favor, unless it be the answer of an infant. 
 When the complainant reads a part of the defendant'- 
 answer as an admission in his favor, he must read all of 
 the answer bearing on that subject and any other 
 writings referred to; he must take the admission with 
 all the limitations and explanations with which it is 
 accompanied. 
 
 Bartlett v. Gillard, 3 Russ. 149: Beech v. Havues. 1 Tenn. Ch. 
 569, 57 1 ; Lad y Ormond v. Hutchinson, 13 Ves. 47, 53. 
 
 It is not necessary that the defendant should in his 
 answer make a positive admission in order to have it 
 10
 
 146 EQUITY PLEADING AND PRACTICE. 
 
 read in evidence against him, it will be sufficient if be 
 alleges, that he believes, or is informed and believes, 
 it to be true ; unless it is accompanied by some state- 
 ment which prevents its being considered as an admis- 
 sion. 
 
 Potter v. Potter, 1 Ves. Sen. 274; Hills v. McKinney, 3 Stew. 
 Eq. 465; Jackson v. Oglander, 2 H. & M. 465. 
 
 When answer under oath has not been waived so 
 much of the answer as is responsive to the discovery 
 sought by the bill may be read in evidence by the 
 defendant. And where the allegations in the bill 
 have been positively denied in the answer the com- 
 plainant will not be entitled to a decree, based upon 
 such allegations, unless they are supported by two 
 witnesses, or by one witness with corroborating cir- 
 cumstances, or from corroborating circumstances or 
 documentary evidence alone. 
 
 Hart v. Ten Eyck, 2 Johns. Ch. 62, 92; Panton v. Tefft, 22 
 111. 367; Gould v. Gould, 3 Story 516, 540. 
 
 The right of the defendant to have his answer taken 
 in evidence is co-extensive with his obligation to 
 answer. 
 
 Blaisdell v. Bowers, 40 Vt. 126. 
 
 And the complainant is not permitted to impeach 
 
 the character of the defendant for truth and veracity. 
 
 He has made him his witness. 
 
 Vandergrift v. Herbert, 3 C. E. Green 466, 460 : Chambers v. 
 Warren, 13 111. 318, 321 ^ " 
 
 When, however, the answer contains allegations not 
 responsive to anything contained in the bill, upon
 
 EQUITY PLEADING AND PRACTICE. 147 
 
 which the defendant was interrogated, but in opposi- 
 tion to, or avoidance of the plaintiff's case, such alle- 
 gations are not made evidence by the answer, but 
 must be established by independent proof. 
 
 Clements v. Moore, 6 Wall. 299, 315; Seitz v. Mitchell, 91 U. 
 8. 580; Roberts v. Stigleman, 78 111. 120; Hart v. Carpenter, 36 
 Mich. 402. 
 
 It is not always easy to determine whether a par- 
 ticular allegation in the defendant's answer is new 
 matter, or is matter responsive to the bill. It has been 
 said, that if the particular allegation can be omitted 
 from the answer, and the complainant's interrogatories 
 will still be fully answered, it is new matter, but if, 
 when stricken out, the answer could be excepted to 
 for insufficiency, that it is responsive. 
 
 Bellows v. Stone, 18 N. H. 465.
 
 148 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XII. 
 
 II. ADMISSIONS BY AGREEMENT. 
 
 These are admissions made by the parties to pre- 
 vent delay and save expense. It is the practice in 
 this state, and undoubtedly in other states also, to put 
 such admissions in the form of a written stipulation. 
 Such stipulation is entitled in the cause, and usually 
 proceeds as follows : 
 
 In this cause it is hereby stipulated by and between 
 said parties ; 
 
 1st, That, &c. 
 
 2d. That, &c. 
 
 Finally, that the facts hereby and herein set forth 
 shall be considered by the court upon the hearing of 
 said cause as admissions made therein by said parties, 
 and may be read as evidence upon the hearing of said 
 cause. 
 
 The stipulation is signed by the solicitors for com- 
 plainant and defendant and is filed with the other 
 proof. 
 
 TAKING TESTIMONY. 
 
 Formerly all testimony in chancery was taken upon 
 interrogatories before an examiner, and neither party 
 to the suit was permitted to be present in person or 
 by counsel. Nor was either party entitled to a copy 
 of the^ interrogatories prepared by the other for his
 
 EQUITY PLEADING AND PKACTICE. 149 
 
 witnesses. As we Lave seen, the bill did not set forth 
 the evidence tending to establish the case made by the 
 bill, but merely the facts which snch evidence would 
 tend to establish when introduced. Each party drew 
 up the interrogatories for his own witnesses and the 
 witnesses were secretly examined by the examiner and 
 no part of the testimony was divulged to either side. 
 Each party was, however, entitled to be furnished 
 with a list of his opponent's witnesses, that he might 
 examine them upon cross interrogatories if he desired, 
 but since he neither knew what the direct interrog-a- 
 tories were nor how they had been answered, such 
 cross-examination was not only unsatisfactory, but 
 quite likely to do his cause more harm than good. 
 Full directions were given as to how the examiners 
 were to proceed. The witness was not permitted to 
 see the interrogatories he was to answer ; each one was 
 read over to him and he was required to answer it in 
 full before the next was read. After the testimony 
 was taken it was riled in court and then published, i. e., 
 opened for inspection, and each side was furnished 
 with copies, and thus after the cause was ready for 
 hearing, the counsel for the first time learned what 
 evidence had been introduced. 
 
 Daniel Ch. Pr. Chap. XX. 
 
 This system was cumbrous, unsatisfactory, often 
 unfair and fell into merited disrepute. The rules for 
 taking proofs were from time to time modified, until 
 at the present time testimony is taken with the same 
 publicity and with little more formality than proofs
 
 150 KQUITY PLEADING AND PRACTICE. 
 
 are taken in a law court. In tills State, under the 
 statute, either party, by giving the other notice within 
 ten days after a cause is at issue, may have all the 
 witnesses examined in open court. 
 H. S. § 6647. 
 
 The Supreme Court are empowered by the statute 
 to regulate the taking of testimony in chancery, and 
 in pursuance of such power, they have adopted certain 
 rules which provide that when a cause is at issue, if 
 neither party has obtained the right of examination of 
 witnesses in open court, either party may enter an 
 order of course within thirty days after the expiration 
 of the time for obtaining the right to examine wit- 
 nesses in open court, to take proof within sixty days 
 from service of notice of such order, and that there- 
 after either party may within the sixty days, upon 
 giving the other party ten days' notice of the time, 
 place and names of the witnesses he intends to exam- 
 ine, take the testimony of any of his witnesses. 
 Mich. Rule 47; Brown v. Brown, 33 Mich. 242 . ^ 
 Parties may stipulate to take proofs before a notary 
 public, and this is frequently done when there is a 
 notary who is a stenographer and the Circuit Court 
 Commissioner is not. But in the absence of a stipu- 
 lation the proofs are taken before a Circuit Court 
 Commissioner. At the time and place designated the 
 party appears with his witnesses and proceeds to 
 examine them orally. If the opposite party is present 
 and does not object, the testimony may be taken in a 
 narrative form omitting the questions asked, but if
 
 EQUITY PLEADING AND PRACTICE. 151 
 
 objection is made to that course, the Circuit Court 
 Commissioner writes down each interrogatory at 
 length, followed by the answer as given by the wit- 
 ness. Should the opposite attorney object to any 
 question for any reason, for instance, that it is leading 
 or irrelevant, etc., the commissioner writes down the 
 objection, but does not pass upon it. After he has 
 taken down the objection he writes out the answer of 
 the witness in the language of the witness. If objec- 
 tion is made, the court regards such testimony as taken 
 snbject to the objection, which is considered and ruled 
 upon at the hearing. Although the commissioner can- 
 not pass upon objections made to testimony, it would 
 seem that he may exercise some discretion in the first 
 instance in regard to taking down scandalous matter, 
 or testimony that the witness is privileged from giv- 
 ing. 
 
 Storrs v. Scougale, 48 Mich/333; Rea v. Rea, 53 Mich. 40. ) 
 In nearly every instance, however, it is the better 
 practice for the commissioner to take down all the 
 testimony offered, together with the objections made 
 to it, and leave the admissibility of the testimony to 
 the Circuit and Supreme Court. The Supreme Court 
 have held that it is not the proper practice, for the 
 circuit court even, to expunge testimony that in its 
 judgment is inadmissible, but to allow it to stand, so 
 that, in case of an appeal to the Supreme Court, that 
 court may be in a position to consider and pass upon 
 its admissibility. The Supreme Court, sitting in 
 chancery, is not a court of errors, but an appellate
 
 152 EQUITY PLEADING AND PRACTICE. 
 
 court, and it hears the cause de novo, and must there- 
 for pass upon all questions of the admissibility of 
 testimony which was before the lower court. 
 
 ttilg v Ttil r °,7 Mirh, 1lfi- "Rrm-n v. Brown, 22 Mich. 242; 
 Collins v. Jackson, 53 Mich. 40; Hewlet v. Shaw, 9 Mich. 346. 
 
 • If any documents are introduced in evidence before 
 the commissioner, he receives them and marks them 
 as exhibits, numbering them consecutively. When 
 notified of the entry of an order closing- proofs, the 
 commissioner files the testimony taken by him in the 
 cause, and it is published. 
 
 If any of the witnesses in a cause reside out of the 
 state, or more than thirty miles from the commissioner, 
 the party, desiring to take the testimony of such wit- 
 nesses, may apply to the judge or the register, for a 
 commission to examine such witnesses. 
 
 Mich. Rules 48, 49, 50, 51, 52, 53. 
 
 The statute provides that the counsel of the respect- 
 ive parties may be present at such examination, and 
 that witnesses may be examined and cross-examined 
 orally, and that the testimony so taken shall be reduced 
 to writing and subscribed by the witnesses, and filed 
 in the court where the cause is pending. 
 
 H. S. §§ 6639-6646. 
 
 When a deed or other instrument in writing which is 
 duly acknowledged or proved, in such manner as to au- 
 thorize it to be read in evidence, is stated in the bill, 
 such deed or instrument may be read upon the hearing 
 of the cause, unless the defendant has in his answer 
 denied the due execution of the deed, or the existence
 
 EQUITY PLEADING AND PRACTICE. 153 
 
 of the instrument ; but documents which are of them- 
 selves evidence, without further proof, shall not be 
 read on the hearing, unless they have been made 
 exhibits before the commission. 
 
 Mich. Rule 50; Bachelor v. Nelson, Walk. Ch. 449; Jerome v. 
 Seymour, Har. Ch. 255; Swetlaud v. Swetland, 3 Mich. 482. 
 
 The method of taking testimony in the United 
 States court is regulated by Kules 67, 68 and 69, 
 which provide that the testimony of witnesses may be 
 taken upon direct and cross interrogatories, or orally, 
 before an examiner. When it is taken orally, the 
 court may, on motion of either party, assign a time 
 within which the complainant shall take his evidence, 
 and the time thereafter within which the defendant 
 shall rake his. The rules prescribe that the testimony 
 in a cause shall be taken within three months after 
 the cause is at issue, unless further time is given by 
 the court, or judge, upon cause shown. 
 
 When a witness is infirm or about to depart out of 
 the country, or is the sole witness to a material fact, 
 his testimony may be taken at any time after the 
 cause is at issue d< bent esse, upon leave granted. 
 
 U. S. Rule 70. 
 
 HEARING OF THE CAUSE. 
 
 When the proofs are closed and the cause is ready 
 for hearing, it may be noticed for hearing by either 
 party, and causes are entitled to be heard in this state 
 in the order in which the replication to the answer 
 was filed. 
 
 Mich. Rule 63.
 
 154 EQUITY PLEADING AND PRACTICE. 
 
 Upon the hearing the complainant has the opening 
 and closing. As a rule, the judge, before the hearing 
 on the merits commences, has the counsel for the 
 complainant state in his own language the purpose 
 for which the bill was filed, and its principal allega- 
 tions of fact, and he then requests the defendant to 
 state the defence made in the answer. Having thus 
 made himself familiar with the matters in issue, he 
 next proceeds to ascertain what facts are admitted, and 
 about which there is no controversy, and what facts 
 are in dispute. If only a part of the facts in the case 
 are in dispute, he confines the reading of the testimony 
 and the comments of counsel to that part of the testi- 
 mony bearing upon those question?. 
 
 In reading the testimony to the court, the com- 
 plainant reads the direct testimony given by his own 
 witnesses, and the defendant reads the cross-examina- 
 tion. When the defendant's testimony is reached, the 
 defendant's counsel reads the direct and the com- 
 plainant's the cross-examination. At the close of the 
 hearing the court may decide the case, or hold it under 
 advisement, and render his decision at some future 
 day. Causes are frequently heard out of term, and at 
 chambers by arrangement made between the court and 
 counsel. In such a case the cause is formally submitted 
 to the court in term, and the argument made after- 
 wards before the court. In this manner it appears 
 upon the record that all the proceedings were had in 
 court, and all appearances of irregularity are avoided. 
 The argument of a cause before the court at chambers
 
 EQUITY PLEADING AND PRACTICE. 155 
 
 is indeed not an irregularity, but the submission of a 
 cause to the court in vacation would be, and a decree 
 rendered in vacation upon the final hearing of a cause 
 would be a nullity. 
 
 If there is any good reason, on account of the na- 
 ture of the testimony, a cause will be heard in private, 
 and the public will be excluded. The court may 
 direct that the cause shall be heard in private at the 
 request of counsel, or on its own motion. 
 
 JVlatter of Lord Portsmouth Cooper, Rep. IPC; Ogle v. Brond- 
 ling, 2 Rnss. & Mv. fiflfl. 
 
 An objection to the bill based on want of proper 
 parties may be made at the hearing, but if the defect 
 can be cured by amendment and service be had upon 
 the new parties, the court will, upon terms, allow the 
 cause to stand over and the proper parties may be 
 added. 
 
 Jones v. Jones, 3 Atk. 110; Palmer v. Rich, 12 Mich. 414. 
 
 The objection, however, must come from the 
 
 defendant, as the complainant cannot postpone the 
 
 cause without his consent, unless the complainant was 
 
 ignorant of the persons whose claims will be affected 
 
 by the decree. 
 
 Inness v. Jackson. 16 Ves. 356; Thomas v. G aines, 35 Micih_ 
 155-165. 
 
 If the objection of want of parties has been made by 
 the defendant in his answer and the complainant has 
 neglected to amend his bill in that particular, the
 
 156 EQUITY PLEADING AND PRACTICE. 
 
 court may in its discretion refuse to allow the cause to 
 stand over and dismiss the bill. 
 
 Van Epps v. Van Deusen, 4 Paige 64; Bank v. Seton, 1 Peters 
 299; Story v. Livingstone, 13 Peters 359; U. S. Rule 52. 
 
 When upon the hearing it is discovered that the 
 proofs are defective in some formal matter, the court 
 will, if a reasonable excuse is given for the omission, 
 allow the cause to stand over for the purpose of sup- 
 plying such defects. 
 
 1 Barbour Cb. Pr. 322-323; U. S. Rule 53. 
 
 DISMISSING THE BILL AT THE HEARING. 
 
 When the pleadings are defective, or when through 
 some informality in the bill the court cannot give the 
 complainant relief, or where from some other cause 
 the bill is dismissed without the courts passing upon 
 the merits, and it appears that the complainant may be 
 entitled to some relief, it will be dismissed without 
 prejudice. 
 
 Story Eq. PI. §§456, 793; Wilson v. Egleston, 25 Mich. 257. 
 
 But if a bill is dismissed by the court upon the hear- 
 ing absolutely, such dismissal may be pleaded in bar 
 to a new bill filed for the same cause of action ; and a 
 bill cannot be dismissed without prejudice when a 
 new bill must cover the same ground. 
 
 Crozier v. Acre, 7 Paige 137; Gale v. Gould, 40 Mich. 515. 
 
 A bill is sometimes dismissed and the complainant 
 given leave to bring an action at law. The court may 
 make an order retaining the bill for a certain period
 
 EQUITY PLEADING AND PRACTICE. 157 
 
 with liberty to the complainant to proceed at law, con- 
 ditioned, that if he fails to do so, that the bill be dis- 
 missed absolutely. 
 
 1 Barb Ch. Pr. 324, 325. 
 
 In this state the court may at the hearing upon 
 pleadings and proofs call upon either party or any 
 witness to testify before the court orally. 
 
 Rule 99; Hamilton v. Hamilton, 37 Mich. 003. 
 
 FEruNED ISSUES. 
 
 It sometimes happens that the testimony is so con- 
 flicting and unsatisfactory, that the court or the 
 parties may desire, that a particular question of fact 
 be found by a jury. An issue made for that purpose 
 is called a feigned issue. 
 
 3 Black. Cases 452. 
 
 The court approves the frame of the issue and it is 
 tried substantially as a suit at law. 
 
 3 Barbour Ch. Pr. 484; Milk v. Moore, 39 III. 584-58S; Rus- 
 sell v. Paine, 45 111. 350; Wood v. Wood, 2 Paige 109; Dunn v. 
 Dunn, 11 Mich. 285; Brink v. Morton, 2 Cole (la.) 411; Hall v. 
 Doran, 6 Cole (la.) 433.
 
 158 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XIII. 
 
 DECREES. 
 
 A decree is a sentence of a court of chancery deter- 
 mining the rights of the parties to the suit. 
 
 Decrees are of two kinds, Interlocutory and 
 Final. 
 
 An interlocutory decree is a decree made during the 
 pendency of the cause to facilitate the taking of proofs, 
 or to protect the rights of the parties, or to aid the 
 court in arriving at a correct conclusion in regard to 
 some disputed fact, but which is not a final determi- 
 nation of the rights of the parties in whole or in part. 
 
 A final decree is one that disposes of the whole 
 or some part of the case on the merits and reserves 
 no question for the further judgment of the court 
 thereon. 
 
 Crosby v. Buchanan, 23 Wall. 420; Lewis v. Campau, 14 Mich. 
 458-460; Winthrop v. Muker, 109 U. S. 180; Bank v. Shedd, 
 121 U. S. 74. 
 
 It is sometimes exceedingly difficult to draw the 
 distinction between an interlocutory and final decree. 
 The distinction is, however, an important one, since 
 the right to appeal from a decree is a statutory right 
 and must be strictly followed, and the statute usually 
 restricts the right of appeal to final decrees. It may 
 be said that any decree which finally disposes of the
 
 EQUITY PLEADING AND PRACTICE. 15 ( J 
 
 rights of the parties upon the merits of any branch of 
 the controversy is final, but that if the merits are not 
 passed upon and the order is made simply to take an 
 additional step towards a final determination upon the 
 merits, it is interlocutory, provided, the rights of the 
 parties remain in statu quo, for any decree which 
 divests a party of a pre-existing legal right is final. 
 
 Barry v. Briggs, 22 Mich. 201; Tawas, etc. R. R. v. Iosco Ct., 
 44 Mich. 479; Jennison Cb. Pr. Chap. 18; Bank v. Whitney, 
 121 U. S. 284; Railroad v. Simmons. 123 U. S. 52; Grant v. In- 
 surance Co., 121 U. S. 105 
 
 SETTLING DECREES. 
 
 The party in whose favor the judgment of thecourt 
 is made, makes a draft of such a decree as he deems he 
 is entitled to under the decision. He serves upon the 
 opposite solicitor a copy of this draft, with notice of 
 the time and place, when he will apply to the court to 
 have it settled. If the draft is satisfactory to the so- 
 licitor upon whom service is made, he usually indicates, 
 by an indorsement on the draft, his consent to have a 
 decree settled in that form. If it is not satisfactory, 
 he proposes amendments and appears before the court, 
 and the court settles the decree, after the parties are 
 heard and signs it. The decree is then countersigned 
 by the register and entered in the journal of the court 
 at length. 
 
 The decree should in apt terms set forth clearly and 
 methodically the judgment of the court. If the de- 
 fendant is required to do or to refrain from doing some
 
 160 EQUITY PLEADING AND PRACTICE. 
 
 act it should be distinctly set forth, and if the defend- 
 ant is required to perform some act the time within 
 which it is to be performed and the manner of per- 
 formance, and the conditions, should be made exceed- 
 ingly plain. 
 
 FORM OF DECREE. 
 
 The formal parts of a decree are : 1. Date and 
 title. 2. Recitals. '■). Ordering part ; and to this is 
 sometimes added the declaratory part. 
 
 At first the decree on its face set forth the plead- 
 ing's and the evidence, but usually at the present time 
 the decree recites merely the substance of the plead- 
 ings and the facts upon which it is founded, and in 
 the United States court not even that is done. Rule 
 86 provides that no part of the bill, answer or other 
 pleadings or report of the master, or other prior pro- 
 ceedings, shall be recited in a decree. 
 
 U. S. Rule 86; Dexter v. Arnold, 5 Mason 303, 311; Bartlett 
 v. Fifield, 45 N. H. 82, 83. 
 
 It is still the practice in some of the states, however. 
 
 to set forth the evidence in substance in the decree. 
 
 Walker v. Carey, 53 111. 470; Moss v. McCall, 75 111. 190; 
 Hilleary v. Thompson, 11 W. Va. 113; Allen v. Blunt, 1 Blatcb. 
 C. C. 480. 
 
 In the mandatory part of the decree great care 
 
 should be taken to meet the case disclosed and secure 
 
 the rights of each of the parties. The decree must 
 
 be consistent with itself. But the court may without 
 
 contradiction pass a separate, a reciprocal, a direct or 
 
 an inverted decree to meet the nature of the case.
 
 EQUITY PLEADING WD PBAGTIOE. 
 
 161 
 
 Lingou v. Henderson, 1 Bland 275 ; Hodges v. Milliken, 1 Bland 
 507; Owens v. Case, 1 Bland 404; Elliot v. Pell, 1 Paige 263. 
 
 When a mistake or clerical error has been made in a 
 
 decree, it may be corrected by the court upon motion 
 
 or petition, made after entry and before enrollment. 
 
 Bates v. Garrison, Har. Ch. 221; U. S. Rules 85; Dexter v. 
 Arnold, 5 Mason 303; Whiting v. Bank, 13 Peters G; Tilton v. 
 Barnee, 17 Fed. Rep. 59, Coleman v. Neil, 11 Fed. Rep. 461. 
 
 The party making the application must show that 
 
 he has been injured by the error or mistake however. 
 
 Russell v. Wake, Walk. Ch. :)1 ; Insurance Co. v. Wkittmore, 
 12 Micl). 427; York v. Ingham Ct. Judge, 57 Mich. 421; Hart v. 
 Lindsay, Walk. 72. 
 
 At common law a decree did not become a final 
 
 record of the court until it was enrolled. It must be 
 
 enrolled before a deed can be executed on a sale under 
 
 a decree and before an execution can issue to enforce 
 
 performance of such a decree. 
 
 Minthorne v. Thomas, 2 Paige 102; Taylor v. Gladwin, 40 
 Mich. 233; Mickle v. Maxfield, 42 Mich. 304; Law v. Mills, 61 
 Mich. 35; Long v. Long, 59 Mich. 296. 
 
 The decree is enrolled in the following manner : 
 The register of the court in which the decree is en- 
 tered, attaches together the bill, pleading and such 
 other papers as the general rules direct, together with 
 the taxed bill of costs therein, and annexes thereto a 
 fair engrossed copy of the decretal order, signed bv 
 the circuit judge and countersigned by the register 
 who entered the same. The register then annexes r>> 
 the papers so attached together his certificate, under 
 the seal of the court, wherein he certifies according to 
 11
 
 162 EQUITY PLEADING AND PRACTICE. 
 
 the fact, the time when the papers were attached to- 
 gether, for the purpose of enrollment and the names 
 of the parties at whose instance the same was done. 
 
 Schwab v. Mabley. 47 Mich 512; Long v. Long, 59 Mich. 296; 
 Loud v. Winchester, 52 Mich. 174; Low v. Mills, 61 Mich. 35; 
 Mickle v. Maxfield, 42 Mich. 304 
 
 After a decree has been duly enrolled it cannot be 
 disturbed upon motion or petition. It can only be 
 opened upon a bill of review tiled upon leave granted, 
 and the power of the court to grant leave is discre- 
 tionary. 
 
 Maynard v. Pereault, 30 Mich. 160; Vaughn v. Black, 63 Mich. 
 215; Clark v. Circuit Judge, 40 Mich. 166. 
 
 As a general rule, all who are parties or privies to 
 a decree are bound by it, and no one who is not a 
 party, or is not represented by or in privity with a 
 party to the suit, is bound. 
 
 Burk v. Sherman, 2 Doug. 176; Greiner v. Klein, 28 Mich. 12, 
 17; Brown v. Wynkoop, 2 Blackf. 230; Com. v. Cambridge, 4 
 Mass 627; Mallow v. Hinde, 12 Wheat. 193; Richter v. Jerome, 
 123 U. S. 233; Atkinson v. Flanigan, Mich. Jan. 1888; German 
 Seminary v. Saenger, Mich. Jan. 1888. 
 
 ENFORCEMENT OF DECREES. 
 
 It is one of the maxims of equitiy that it acts in 
 personam. " The strict primary decree in this court," 
 said Lord Chancellor Hardwicke, "is in personam, 
 and although this court cannot issue execution in rem, 
 e. g., by elegit, still I can enforce the judgment of 
 the court, which is in personam by process in per- 
 sonam, e. g., by attachment of the person when the
 
 EQUITY PLEADING AND PRACTICE. 163 
 
 person is within the jurisdiction, and also by seques- 
 tration, so far as there are goods and lands of the 
 defendant within the jurisdiction of the court, until 
 the defendant do comply with the order or judgment 
 of the court, which is against the defendant personally, 
 to do or cause to be done, or to abstain from doing 
 sotne act." 
 . Penn. v. Lord Baltimore, 1 Ves. 385. 
 Therefore, unless the power of the court has been 
 enlarged by the statute, the performance of an order 
 or decree of the court is enforced by what is termed 
 a process of contempt. The process is based upon 
 the theory that the defendant having been commanded 
 to do, or to refrain from doing a particular act, his 
 neglect to do, or not to do that particular act, is in 
 contempt of the authority of the court, and for that 
 contempt he has merited punishment. The law courts 
 acts upon an entirely different theory. They do not 
 regard the defendant, who fails to satisfy a judgment 
 rendered against him, as in contempt of the court, 
 but issue a process to satisfy the plaintiff's demand. 
 That may be satisfied by seizure and sale of the 
 defendant's property or the imprisonment of the body 
 of the defendant, and when both remedies are given 
 the plaintiff must elect which he will pursue. 
 
 Contempt of the court of equity is technically dis- 
 regarding a command of the court evidenced and 
 authenticated by its great seal, and consequently 
 before a party can be said to have incurred such con- 
 tempt, he must be personally served with the mandate
 
 164 EQUITY I'LKADING AND PRACTICE. 
 
 of the court under seal, and the mere service of a copy 
 of the decree, or order of the court, without the writ, 
 is not sufficient. 
 
 This writ is called a writ of execution, and it recites 
 the order or decree, or that part of it, which the 
 defendant is to obey. At first it was the practice to 
 insert the entire decree, but afterwards, by order of 
 the court, if the decree was for the payment of money 
 the substance of that part directing the payment of 
 money was inserted. 
 
 When the order or decree directs the defendant to 
 do a particular act, which he neglects to do, the writ 
 of execution commands him to do the act within a 
 specified time, and if it is not done within the time 
 limited, the party is then in contempt. 
 
 The statute has, however, very materially enlarged 
 the powers of the court, and in this State the statute 
 provides that courts of equity may enforce the per- 
 formance of any decree or obedience thereto, by exe- 
 cution against the body of the party, against whom 
 such decree shall have been made, or by execution 
 against the goods and chattels, and in default thereof, 
 the lands and tenements of such party. 
 
 H. S . § 6653; Mickle v. Maxfield, 42 Mich. 304. 
 
 Generally the writ of execution must be served upon 
 the party himself in order to bring him into contempt. 
 
 This is done by handing him a copy and showing 
 him the original under the seal of the court. But 
 when personal service cannot be had upon a party 
 owing to his own misconduct, substituted service will
 
 EQUITY PLEADING AND PRACTICK. 165 
 
 be directed. A party will not be permitted to put 
 
 the court at defiance. 
 
 Tyson v. Ward, 1 Dickens 166; Rider v. Kidder, 12 Ves. 202; 
 DeManneville v. DeManneville, 12 Ves. 203. 
 
 The party having been duly served with a writ of 
 execution, if he neglect to obey the mandate, and 
 that fact is brought to the attention of the court by 
 affidavit, a writ of attachment is issued, upon which 
 the party is arrested and brought before the court, and 
 unless he can purge himself of the contempt, i. e., 
 offer a good excuse for not obeying the mandate, he is 
 by order of the court directed to comply with the 
 mandate instanter or stand committed to jail. 
 
 2 Danl. Ch. Pr. Sec. 7. 
 
 INTERLOCUTORY PROCEEDINGS. 
 
 The proceedings we have already noticed are the 
 usual atid regular proceedings had in every cause in 
 chancer} 7 . There are certain interlocutory proceed- 
 ings to which we will now call yonr attention, none of 
 which may be had in any given cause, but some of 
 which are usually taken at some stage in the progress 
 of every cause, and which are of great practical impor- 
 tance. 
 
 An interlocutory application is a request made to 
 the court for its aid and assistance in some matter aris- 
 ing in the cause, either to further the proceedings or 
 to protect the rights of some of the parties to the 
 suit. These applications are made either orally,
 
 166 EQUITY PLEADING AND PRACTICE. 
 
 when they are called motions, or in writing, when 
 they are designated petitions. 
 
 There is no inflexible and certain ride given by 
 which yon can determine whether a particular appli- 
 cation shall be made by motion or petition. As a 
 general rule, when the application is based upon a 
 long or intricate statement of facts, it should be 
 made by petition and not by motion. Otherwise 
 the application may be made by motion. 
 
 Shipbrooke v. Hinchinbrook, 1:! Ves. 387, 393; Shaft v. Phoenix 
 Ins. Co., 67 N. Y. 544, 547; Bergan v. Jones, 4 Met. 371; Jone3 
 v. Roberts, 12 Sim. 189; Anon, 4 Madd. 229; Skinner v. Sweet, 
 Coop. 55. 
 
 A motion may be made by or on behalf of any 
 of the parties to the suit, who is not in contempt. 
 If a party is in contempt, he cannot be heard until 
 he purges himself of his contempt. 
 
 Johnson v. Pinney, 1 Paige 646; Rogers v. Paterson, 4 Paige 
 450; Lane v. Ellzeg, 4 H. & M. 504. 
 
 A MOTION IS EITHER OF COURSE OR SPECIAL. 
 
 A motion of course is one which will grant upon 
 an exparte application and without hearing the other 
 side, under some standing rule or the known practice 
 of the court. It requires no notice to be given the 
 opposite party as no opposition will be allowed to it. 
 
 Eyles v. Ward, Mos. 255; Barbour Ch. Pr., 566. 
 
 Motions of course are understood to be confined to 
 orders which are entered by the register, at the re- 
 quest of a party, without any application being made 
 to the court. 
 
 Mich. Rule 24; U. S. Rule 5.
 
 EQUITY PLEADING AND PRACTICE. U'»7 
 
 A special motion is one which is not granted by 
 the court as a matter of course, but one which the 
 court may, in its discretion, after cause shown, grant 
 or refuse. They are made either ex parte or upon ' 
 motion. 
 
 There is no clear and well defined rule under which 
 special motions may be classified into those which 
 may be made ex parte and those requiring notice. 
 You must in a great measure rely upon the rules of 
 the court which state usually whether the special mo- 
 tion requires notice or not. If the rules are silent, 
 and the practice is uncertain, the safest course is to 
 give notice. 
 
 Marshall v. Mellnisb, 5 Beav. 496; Isnard v. Cazeaux, 1 Paige 
 39; Hart v. Small, 4 Paige 551; U. S. Rules 3, 4; Mich. Rule 61. 
 
 Ex parte motions are made for a variety of pur- 
 poses — for instance : 
 
 For an order that an absent defendant appear; that 
 complainant's bill be taken as confessed; to show cause 
 why injunction should not issue ; to enlarge the time 
 for taking testimony; for time to answer for appoint- 
 ment of a guardian ad litem, etc. 
 
 Sometimes upon an ex -parte 'motion an order is 
 entered that a particular act is to be done unless the 
 appointed party show cause to the contrary within a 
 specified time. Such an order is called an order nisi. 
 After the time limited for showing cause, or doing the 
 act required, upon motion and proof by affidavit of 
 non compliance, the order nisi, is made absolute. 
 
 Dan. Ch. Pr. 1594.
 
 168 EQUITY PLEADING AND PRACTICE. 
 
 All ex parte motions nmst be supported by affidavit 
 or other proof sufficient to make a case for the inter- 
 ference of the court. 
 
 When the motion is not of course and cannot be 
 made ex parte, notice must be given in writing to the 
 opposite party. This being simply a notice that an 
 oral motion will be made to the court, the form of 
 the notice becomes important. It must be entitled in 
 the court and cause and directed to the solicitor of the 
 opposite party and signed by the party giving the 
 notice. In the body of the notice the particular order 
 or direction of the court which will be asked for must 
 be set out clearly and distinctly, and the party must be 
 informed of the grounds upon which the application 
 is made, and consequently the notice must be accom- 
 panied with copies of all affidavits and other proofs 
 not on file in the cause, and previously known to the 
 other solicitor, which will be read upon the hearing of 
 such notion. The time and place of hearing must be 
 also given. This part of the notice usually concludes 
 with the words " or as soon thereafter as counsel can 
 be heard." 
 
 Isnard v. Cazeaux, 1 Paige 39; Brown v. Rickelts. 2 Johns. Ch. 
 425; Jackson v. Stiles, 1 Cow. 134, 135 n. 
 
 The time and manner of service is fixed by the 
 
 rules. After the notice has been served the party 
 
 making the service should prepare an affidavit setting 
 
 forth the time and manner of service to be used in 
 
 case the opposite party does not appear to oppose the 
 
 motion.
 
 EQUITY PLEADING AND I'RACTICE. 169 
 
 It is the practice of the court when served motions 
 are to be made to hear ex parte motions and those 
 which are not opposed first. When a motion is 
 opposed it is the usual practice for the party making 
 the motion, to first read the notice and the affidavits, 
 if any, in its support, and then for the opposing party 
 to read any opposing affidavits, after which the mov- 
 ing party opens and closes the argument. The deci- 
 sions of the court may be rendered at the hearing or 
 the motion may be taken under consideration and the 
 verdict rendered at a subsequent sitting of the court. 
 
 The court will not upon motion make an order 
 which will decide the principal point in the case, 
 except upon consent of all the parties affected by it. 
 For instance if the bill is filed to enforce the specific 
 performance of a contract, and the only question in 
 dispute is the title of the vender, the contract being 
 admitted by the answer, the court will upon 
 motion direct a reference to a master to enquire into 
 the title, but the court will not upon motion before 
 the hearing enquire into any other objection. 
 
 Like v. Beresford, 3 Bro. C. C. 366; Moss v. Mathews, 3 Ves. 
 279.
 
 170 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XIV. 
 
 PETITIONS. 
 
 Petitions are entitled in the court and cause and 
 addressed in the same manner as a bill, when they are 
 made in a cause already pending. 
 
 The petition should briefly and clearly set forth the 
 particulars of the case and conclude with praying the 
 court to grant the order desired " or such other and 
 further relief as may be agreeable to equity and good 
 conscience." The petition must be signed and sworn 
 to by the petitioner and also signed by the counsel. 
 
 Matter of Christie, 5 Paige 242. 
 
 When a person not a party to the original bill has 
 an interest by way of title, lien or otherwise in the 
 property which forms the subject-matter of the suit, 
 and such interest is liable to be affected by the pro- 
 ceedings, he may by petition apply to the court for 
 leave to intervene for the protection of his rights, and 
 such leave will be granted when the cause exists. 
 
 When leave is granted the party must forthwith, or 
 within such time as the court determines, file his peti- 
 tion in the cause setting forth his rights and praying 
 for the relief sought, and give notice of the filing 
 thereof to the other parties to the cause. 
 
 Freeman v. Howe, 24 How. 450; Stewart v. Durham, 115 U.S. 
 61 ; Gumbel v. Pitkin, 124 U. S. 131-143.
 
 EQUITY PLEADING AND PRACTICE. 171 
 
 Petitions are noticed, and heard in the same man- 
 ner as motions. 
 
 ORDERS. 
 
 Orders are either common, special or by consent. 
 
 A common order is one that the party is entitled as 
 of course and is made without notice to the opposite 
 party. 
 
 A special order is one made by the court upon 
 special application, either ex parte or upon notice. 
 
 An order by consent is 6ne made upon stipulation 
 of the parties or their solicitors. 
 
 All common orders and orders by consent of the 
 parties, may be entered in the common rule book in 
 the register's office, at the peril of the party taking 
 such order. The day on which the order is entered 
 must be noted in the entry. All special orders made 
 by the court must be entered in the record of the pro- 
 ceedings of the court. When an order is entered by 
 consent, the consent must be in writing signed by the 
 parties or their solicitors and filed in the cause. , 
 
 Hammond v. Place, Har. Ch. 438; Crone v. Angel], 14 Mich. 
 339; Mich. Rules 24. 
 
 Orders for injunctions, and all other special orders, 
 
 must be entered with the register before process 
 
 issues. 
 
 Hoffman v. Tread well, 5 Paige 82; Skinner v. DaytOD, 2 
 Johns. Ch. 226. 
 
 It frequently happens that the entry of a common 
 
 order is not made at the proper time. In such a case, 
 
 if no great length of time has intervened, a motion of
 
 172 KQUTTY PLEADING AND PRACTICE. 
 
 cause may be made to the court to enter the order 
 nunc pro tunc: but after a considerable length of 
 time, there ought to be notice of the motion. 
 Williamson v. Henshaw, 1 Dick. 129. 
 
 Neither party can have any benefit from a decision 
 of the court until the order thereon is drawn up and 
 perfected. When the order granted is special in its 
 provisions the party in whose favor it is granted 
 should submit a copy to the adverse party that he 
 may submit amendments thereto if he desired. The 
 draft and the amendments are then given to the reg- 
 ister that the order may be settled by him and 
 entered. If the register is in doubt as to the decision 
 of the court, he is, in such a case, to apply to the 
 court to settle the order. 
 
 Whitney v. Belden, 4 Paige 140; Earl of Fingal v. Blake, 3 
 Molloy 50. 
 
 SERVICE OF ORDERS. 
 
 Not all orders need be served, and whether or not 
 an order must be served depends usually upon the 
 form of the order. Special orders obtained ex parte, 
 usually provide that the act designated shall be per- 
 formed by the opposite part} 7 within the time specified 
 after service of the order. But where a special order 
 is obtained upon notice the order usually provides 
 that the act shall be performed within the time desig- 
 nated after entry of the order. The reason for this 
 distinction is that in the first instance the opposite 
 party has no personal knowledge of the order until
 
 EQUITY PLEADING AND PRACTICE. 173 
 
 lie is notified, and in the later case he has such notice, 
 having had notice of the motion for the order. 
 
 But in all cases as we have seen, where it is intended 
 to bring the party into contempt for not complying 
 with the order, notice must he served upon him per- 
 sonally. The service in such ease is made in the 
 same manner as notice of a decree, by delivering to 
 him a copy of the order and at the same time show- 
 ing him a certified copy of the original order under 
 the seal of the court. 
 
 Ex parts Gwynne, 12 Ves. 380; Cooper 282; Laton v. Seaman, 
 9 Paige 609; Young v. Goodson, 2 Russ. 255. 
 
 When the party has appeared by solicitor, and it is 
 not desired to bring him into contempt, service of 
 notice, when notice is necessary, upon the solicitor is 
 sufficient. 
 
 Stafford v. Brown, 4 Paige, 360-362. 
 
 ENFORCING ORDERS. 
 
 It is sometimes provided by statute that orders for 
 the payment of money may be enforced by means of 
 an execution running against the property of the 
 defendant. At common law orders o e n»e . in general, 
 enforced by process of contempt. Upon motion, and 
 proof that an order had been personally served, for 
 the payment of costs for instance, and that the order 
 had not been obeyed, attachment issued and the defend- 
 ant was committed to prison for contempt. 
 Danl. Chr. P. 1454.
 
 174 EQUITY PLEADING AND PRACTICE. 
 
 MODIFYING AND DISCHARGING ORDERS. 
 
 It is a general rule that every order made in the 
 progress of a cause, may for cause shown, be modi- 
 fied or re ceive d at any time before the final disposi- 
 tion of the suit. 
 
 Ashe v. Moore, 2 Mer. 383; Fanning v. Dunham, 4 Johns. Ch. 
 35; Isnaid v. Cazeaux, 1 Paige 39. 
 
 An order will not be vacated, however, except to 
 
 permit the party applying to secure rights that are 
 
 meritorious. If he simply desires to delay a cause, or 
 
 take advantage of some technical defence or objection, 
 
 the court will allow the order to stand although the 
 
 party has excused himself from all fault. 
 
 Champlin v. Mayor of N. Y., 3 Paige 573; Townsend v. 
 Townsend, 2 Paige 413; Hunt v. Wallis, 6 Paige 371. 
 
 INJUNCTIONS. 
 
 It is very frequently necessary for a court of equity 
 to restrain a party from doing some particular act in 
 order to prevent irreparable injury to another, or to 
 maintain the statu quo pending the determination of 
 the legal rights of the parties to the subject-matter in 
 litigation. This object is accomplished by the writ of 
 injunction, a writ of the greatest importance and of 
 very frequent use especially in this country during 
 the past half century. We can do no more than 
 merely to indicate the existence and purpose of the 
 writ, and refer the the student to the exhaustive trea- 
 ties on the subject by Dr. High. 
 
 A writ of injunction is a judicial process acting in
 
 EQUITY PLEADING AND PRACTICE. 175 
 
 personam requiring the party to whom it is directed to 
 do or to refrain from doing some act therein specific- 
 ally described. It is used both for the enforcement of 
 a right and the prevention of a wrong, but it must be 
 an actual right or a positive wrong, and the withhold- 
 ing of the right or the doing of the wrong must work 
 a positive injury to the person complaining, or the 
 court will not interfere. 
 
 McDonogh v. Calloway, 7 Rob. La. 442; Goodrich v. Moore, 2 
 Minn. 49. 
 
 Injunctions are either mandatory, commanding 
 
 something to be done, or preventive, forbidding the 
 
 doing of something. A mandatory injunction is 
 
 seldom issued and then only upon the final hearing. 
 
 Robinson v. Byram.l Bro. C. C. 588; Gale v. Abbott,8 Jur. N. S. 
 987; Worthington v. Green, 1 Md. Ch. 97; Rogers v. Railroad, 5 
 C. E. Green, 379. 
 
 With reference to their duration injunctions are 
 either interlocutory or perpetual. Interlocutor}' in- 
 junctions are issued at any time during the progress 
 of the suit, usually at the filing of the bill, to continue 
 until the coming in of the answer, or the hearing, or 
 the further order of the court. A perpetual injunc- 
 tion is never granted except at the final hearing and is 
 usually a part of the decree. 
 Chapman v. Harrison. 4 Bland 336. 
 
 The sole object of an interlocutory injunction is to 
 preserve the present situation of the parties, and 
 therefore it will go no further than is necessary to 
 preserve all the rights in issue between them in
 
 17f» EQUITY PLEADING AND PRACTICE. 
 
 statu quo. They are divided into two elasses, com- 
 mon and special. 
 
 A common injunction is one that issues to aid the 
 court in granting the ultimate relief asked, which is 
 something different from the injunction itself, while a 
 special injunction is issued to prevent irreparable 
 injury and the obtainingof which is the sole or prin- 
 cipal object and purpose of the suit. 
 
 Purnell v. Daniel, Sired. Eq. 9; Troy v. Norman, 2 Jones 
 Eq. 318; Peterson v. Mathis, 3 Jones Eq. 31. 
 
 An injunction becomes operative from the time the 
 
 party to whom it is directed has actual notice. It is 
 
 not necessary that he should be actually served with 
 
 the writ and therefore it may be served outside the 
 
 jurisdiction of the court. 
 
 Ramsdall v. Craighill, 9 Ohio 197; Little v. Price, 1 Md. Ch. 
 182; Milne v. Van Buskerk, 9 Iowa 558; Osborne v. Tennant, 14 
 Ves. 136. 
 
 A perpetual injunction is one that is issued under a 
 final decree as an interlocutory injunction which is 
 made perpetual by the final decree. By its terms the 
 defendant is forever inhibited from doing certain acts, 
 or making certain specific claims therein set forth, 
 which would be contrary to equity and good con- 
 science. Such an injunction will issue whenever it is 
 necessary to protect the rights of the complainant. 
 
 Bushnell v. Hartford, 4 Johns. Ch. 301; Caruthers v. Harts- 
 field. 3 Yerg. 356; Kenson v. Kenson, 1 Bibb. 184. 
 
 Injunctions in this state may be granted by a circuit 
 court commissioner. 
 Mich. Rule 112; see also 17, 21, 23, 109.
 
 EQUITY PLEADING AND PBACTOCE. 177 
 
 Special injunctions are not granted in the United 
 
 States Court except upon notice to the opposite party, 
 
 and they continue in force until the next term of the 
 
 court, or until the further order of the court. 
 
 U. S. Rule 55. Revised St. §§ 718, 719, 720; Parker v. Judges, 
 12 Wheaton561. 
 
 WBIT OF NE EXEAT. 
 
 A writ of ne exeat is the process of the court issuing 
 under its seal to prevent a person who is a party to a 
 suit from leaving the jurisdiction of the court. It is 
 resorted to for the purpose of compelling a defendant 
 to give bail conditioned that he will do and perforin 
 the decree of the court. 
 
 Gilbert v. Colt, Hopk. 496; De Rivafiuoli v. Consetti, 4 Paige, 
 264; Gleason v. Bisby, 1 Clarke, 551. 
 
 The statutes of the United States provide that when 
 a suit in equity is commenced, and satisfactory proof 
 is made to the circuit court, or to the circuit justice 
 or judge, that the defendant designs quickly to depart 
 from the United States ; that there is due from him 
 a sum certain or capable of reduction to a certainty ; 
 that complainant has no sufficient legal redress, and 
 that irreparable injury or a denial of justice will be 
 caused to complainant if the defendant so departs, 
 such court or judge may order the issuance of a writ 
 of ne exeat, upon which the marshal arrests the defend- 
 ant and keeps him in custody, unless he gives security 
 to abide the order and decree of the court. 
 Revised Statutes § 717; U. S. Rule 21. 
 
 The writ may be applied for at any stage of the 
 12
 
 178 EQUITY PLEADING AND PltACTICE. 
 
 proceedings after, but not before, the filing of the bill 
 
 of complaint. 
 
 Ex pr. Brurnker, 3 P. Wms. 312: Dunham v. Jackson, 1 Paige 
 629. 
 
 The application for the writ may be made ex parte. 
 
 The application is founded upon affidavit or petition, 
 
 and, unlike the writ of injunction, it need not be 
 
 prayed for in the bill. The writ may be allowed 
 
 by the same officers who are authorized to allow writs 
 
 of injunction, and the officer making the allowance 
 
 directs in what amount the defendant shall give bail. 
 
 Elliott v. Sinclair, Jac. 545; Gleason v. Bisby, 1 Clarke 551; 
 Brehm v. Wood, 1 Turner & Russ. 332; McNauiara v. Dvvyer, 
 7 Pa'ge 239. 
 
 The writ commands the sheriff to have the defend- 
 ant personally to come before him and give a bond in 
 the penal sum endorsed thereon, that he will not go, 
 or attempt to go, beyond the jurisdiction of the court 
 — at common law beyond the four seas — and in 
 default of his giving such bond that he commit him to 
 prison. 
 
 Gibert v. Colt, 1 Hopk. 500; Rice v. Hale, 5 Cash. 233; Mich. 
 Rule 17. 
 
 KKOEIVEKS. 
 
 A receiver is a suitable person appointed to take 
 charge of property which is involved in the suit, when 
 for any reason, the court regards the parties to the 
 suit not to be the proper persons to have the custody 
 or management of such property. The appointment 
 of a receiver is discretionary with the court. When
 
 EQUITY PLEADING AND PK ACTIO E. 170 
 
 appointed he is regarded as an officer acting under 
 the orders of the court. The power of appointment 
 is usually called into action either to prevent fraud or 
 save property in litigation from material injury. 
 
 In re Receivers' Globe Ins. Co, G Paige 102; Baker v. Barkies, 
 42 111. 79; Vorhill v. Hynson, 26 Mil. 83, 92; Mich. Rules, 104, 
 106, 107, 108; U. S. C. C. Rules 8, 9, 11. 
 
 When the application for a receiver is made during 
 the pendency of the suit and before a decree, there 
 must be a foundation laid for the application in the 
 bill, but the bill need not contain a prayer for a 
 receiver. The application is made upon motion, 
 notice of which must be served upon the opposite 
 party, unless he has absconded or has concealed him- 
 self to avoid service. 
 
 Dowling v. Hudson, 14 Beav. 423, 424; Pitcher v. Hilliar, 2 
 Dick. 580.
 
 180 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XV. 
 
 PRODUCTION OF PAPERS. 
 
 It is the practice of the court of chancery to require 
 the defendant to produce any papers in his posses- 
 sion relevant to the matters in question, which the 
 complainant of right ought to have the privilege of 
 examining. It is the complainant's privilege to apply 
 for the production of such papers as a part of his 
 general right of discovery. 
 
 Warrick v. Queen's College L. R. 3 Eq. 683; Att'y-Genl. v. 
 Thompson, 8 Hare 106. 
 
 When the complainant has books, papers or other 
 documents in his possession, material for the defend- 
 ant's defence, the defendant was required at common 
 law to file a cross bill by which means he obtained the 
 same right for production of papers as the complainant 
 had under his bill. 
 
 Kell^v. Erkf nrri 5 Paig e 548. --J^nni tip- v. §nijik^3 Johns Ch. 
 |09. 
 
 When a bill is filed for the purpose of obtaining 
 a partnership accounting, and the partnership books 
 are in the hands of one of the partners, the court upon 
 application will direct such books to be placed in the 
 hands of an officer of the court for the purpose of 
 allowing the other partner to inspect them. 
 
 Kelly v. Eckford, 5 Paige 548
 
 EQUITY PLEADING AND PRACTICE. 181 
 
 To obtain an order for the production of papers or 
 books, application is made to the court by special mo- 
 tion and the bill or affidavit made to sustain the 
 motion that the production of the papers or books are 
 necessary to enable the party making the application 
 to prosecute or defend the suit. 
 
 ABATEMENT AND REVIVOR. 
 
 Abatement of a suit in equity is the effect produced 
 by the happening of some event whereby the further 
 progress of the cause is temporarily or permanently 
 suspended. 
 
 Hoxiev. Carr, 1 Sumner 173. 
 
 The abatement may be due to some event whereby 
 the interest of one of the parties becomes extinguished, 
 for instance, when joint tenants as such are parties 
 and one of them dies, in such a case the abatement is 
 said to be as to a party; or, the abatement may be due 
 to the transfer of the interest of one of the parties to a 
 third person ; for instance, when upon the death of 
 one of the parties, his interest is vested in heirs 
 or devisees, in such case there is an abatement as to the 
 suit. 
 
 Leggettv. Dubois, 2 Paige 211, 212; Barbour Cb. Pr. 675. 
 
 In the first instance there is no abatement as to the 
 surviving parties, and the court will on the motion of 
 either of the parties, order the cause to proceed between 
 such survivors. But in the other case there is no 
 longer the proper persons before the court against or
 
 1^0 EQUITY PLEADING AND PRACTICE. 
 
 by whom proceedings can be lutd and the suit must 
 therefore be revived. 
 
 Leggett v. Dubois, 2 Paige 211, 213. 
 
 When there is an abatement of the suit by the death 
 or bankruptcy, for instance, of the complainant, no 
 further proceedings can be had, as a general rule, until 
 this defect has been cured, and if any proceedings are 
 had, they will be set aside as irregular. 
 
 Insurance Co. v. Slee, 2 Paige 36) ; Canhone v. Vincent, 8 Sim. 
 277. 
 
 The proceedings are merely suspended by the abate- 
 ment and those already had in the cause are not an- 
 nulled thereby. If a party has been imprisoned for 
 contempt, abatement of the suit does not discharge 
 him from custody, neither is a receiver discharged for 
 that reason. 
 
 Dan. Ch.Pr. 225; 1 Hogan 174. 
 
 And the court will sometimes permit necessary pro- 
 ceedings to be had pending abatement. Thus orders 
 will be made for the preservation of property, and 
 proceedings had to punish a party for breach of an 
 injunction. 
 
 Washington Ins. Co. v. Slee, 2 Paige 365, 368; Hawley v, 
 Bennet, 4 Paige 163. . • 
 
 In many of the states the statutes provide that suits 
 may be revived upon petition. These statutory pro- 
 ceedings are usually confined to cases where the suit 
 abates by the death of a party, the statute substituting
 
 EQUITY PLEADING AND PRACTICE. 183 
 
 a petition for a bill of revivor. When the abatement 
 is one that can be remedied under the statute, the 
 statutory proceedings are usually resorted to as being 
 simpler and more expeditions, but a party is not pro- 
 hibited from resorting to a bill of revivor even in 
 those cases when the statute has given ample relief by 
 petition. 
 
 The statute is necessarily confined to those cases in 
 which there can be no legal controversy with reference 
 to the right of a part} 7 to revive the suit in his favor 
 or against whom it may be revived; in other words, 
 to those cases where, at common law, an abatement 
 could be remedied by a bill of revivor. It is laid 
 down as the rule that a bill of revivor may be filed 
 whenever by death of one of the parties his interest 
 vests as a matter of law in some other person, so that 
 the only question for the court to determine is the 
 question whether or not such person is the one desig- 
 nated by the law. 
 
 Story Eq. PI. §364; Freematee v. Markhous, 2 J. J. Marsh. 
 Ky. 303; Boynton v. Boynton, 1 Foster 246. 
 
 But when the party against whom or in whose be- 
 half the suit is sought to be revived, is not designated 
 by the statute as the person who represents the orig- 
 inal party to the bill, but his representative character 
 depends upon some question of fact an original bill in 
 the nature of a bill of revivor and supplement must 
 be filed. 
 
 Douglass v. Sherman. 2 Paige 358, 360, 361 ; Monteith v. Taylor, 
 9 Ves. 615; Mendhomv. Robinson, 1 My. & K. 217.
 
 184 EQUITY PLEADING AND PRACTICE. 
 
 The reason for the above rules, is, that in the later 
 class of cases, the title depending upon a question of 
 fact, it is necessary to put the question of title in issue 
 that it may be litigated. 
 
 SUPPLEMENTAL BILLS. 
 
 When the bill becomes defective by some event oc- 
 curring after it is filed and too late to be cured by 
 amendment; or when by an event subsequent to the 
 filing of the bill a new interest in the matter in litiga- 
 tion is claimed by one of the parties to the suit, or a 
 new party claims, otherwise than by mere operation 
 of law, the interest which belonged to some other 
 party at the commencement of the suit, a supple- 
 mental bill is the proper remedy to cure the defect. 
 
 Jones v. Jones, 3 Atk. 110; Dormer v. Fortescue, 3 Atk. 124, 
 133; Humphreys v. Humphreys, 3 P. Wms. 349; Pelkington v. 
 Moss, 2Madd. 240, 466; Knight v. Mathews, 1 Madd. 566, 304; 
 Usborn v. Baker, 2 Madd. 37J; 539. 
 
 It is filed on leave, to supply some defect in the 
 structure of the original bill, caused by the happening 
 of some event after the filing of the original bill. 
 
 Kennedy v. Georgia St. Bank, 8 How. U. S. 586; Winn v. 
 Albert, 2 Md. Ch. 42. 
 
 It is not proper to file a supplemental bill to put in 
 issue new matters which can be added to the bill by 
 way of amendment. Therefore if there has been no 
 change in the parties and the bill is defective from 
 the complainant having omitted to make certain alle- 
 gations, though ignorance of fact, and no proofs have
 
 EQUITY PLEADING AND PRACTICE. 185 
 
 been taken, the complainant should apply to the court 
 
 for leave to amend, and if he has filed a replication to 
 
 withdraw his replication. 
 
 Dias v. Merle, 4 Paige 259; Colclough v. Evans, 4 Sim. 76; 
 Stafford v. Hewlett, 1 Paige 200; Chandler v. Pettit, 1 Paige 168. 
 
 If proofs have been taken he must in that event ask 
 leave to file a supplemental bill. 
 
 Dias v. Merle, 4 Paige 259. 
 
 Not all matters, however, that have ariseu since the 
 
 commencement of suit can be put in issue even by a 
 
 supplemental bill. If the complainant had no cause 
 
 of action when the bill was filed he cannot cure the 
 
 defect by putting in issue matters which have since 
 
 occurred. He will not, for instance, be permitted to 
 
 support a bad title held by him at the time the bill 
 
 was filed, by subsequently acquiring a good one and 
 
 setting up such acquired title by a supplemental bill. 
 
 Tonkin v. Litbbridge, Coop. R. 43; Davidson v. Foley, 3 Bro. 
 C. C. 598; Pritchard v. Draper, 1 Russ. & My. 191. 
 
 This rule does not, however, bar a complainant who 
 has a good inchoate title, from showing by a supple- 
 mental bill that such inchoate title has because vested 
 through some formal act. 
 
 Mutter v. Chanvoe, 5 Russ. 42; Sadler v. Lovett, 1 Molloy 162. 
 
 A supplemental bill cannot be filed without leave of 
 the court first obtained. The motion for an order 
 giving permission need not be noticed however, un- 
 less an injunction is prayed for in the supplemental bill. 
 
 Eager v. Price, 2 Paige 333; Lawrence v. Bolton, 3 Paige 294; 
 Winn v. Albert, 2 Md. Ch. 42.
 
 180 EQUITY PLEADING ANT) PRACTICE. 
 
 If an injunction is prayed for and the defendant 
 has appeared, a copy of the proposed bill is served 
 upon him with a notice of the motion, together with 
 copies of the affidavits or other proofs upon which the 
 motion is based. 
 Eager v. Price, 2 Paige 333; Winn v. Albert, 2 Md. Ch. 42. 
 
 CKOSS BILL. 
 
 Formerly a defendant could not pray for any relief 
 
 in his answer, except to be dismissed the court with 
 
 his reasonable costs and charges, and therefore, if he 
 
 sought any relief, he must do so by a bill of his own r 
 
 filed in the same cause and designated a cross bill. 
 
 Morgan v. Tipton, 3 McLean 339; Cullom v. Erwin, 4 Ala. 
 452. 
 
 Under the practice in this state and in some other 
 states the defendant can in his answer ask for affirma- 
 tive relief thus in many instances doing away with the 
 necessity of a cross bill. It is still however desirable, 
 and in some cases, necessary. It frequently happens 
 that a complete decree cannot be made under the orig- 
 inal bill, due to the fact that the conflicting rights of 
 the defendants are not put in issue, or that some of 
 the defendants are entitled to affirmative relief, and 
 that a cross bill or cross bills are necessary to com- 
 pletely bring the whole matter in dispute before the 
 court. In such a case it becomes necessary for one or 
 more of the defendants to file a bill against the com- 
 plainant, and if they are necessary parties, against one 
 or more of the defendants.
 
 EQUITY PLEADING AND PRACTICE. 187 
 
 White v. Buloid, 2 Paige 164; Anglo-Egyptian Co. L. R. 1 
 Ch. Ap. 103; Mich. Rule 123. 
 
 A Gross bill is regarded as a defence and the original 
 and cross bills are considered together as constituting 
 one suit. 
 
 Field v. Schieffelin, 7 Johns. Ch. 249-252; Cartwright v. Clark, 
 4 Mete. 104. 
 
 Formerly no person could be made a party to a cross 
 bill who was not a party to the original bill, but now 
 in many of the states new parties when necessary may 
 be thus brought in. 
 
 Blodgett v. Hobart, 18 Vt. 414; Brandon Mfg. Co. v. Prime, 
 14 Blatch. 371; Kennedy v. Kennedy, 66 111. 190; Cobb v. Bax- 
 ter, 1 Tenn. Cb. 405. 
 
 As to the proper practice in this state under rule 
 123 which permits the defendant to ask for affirma- 
 tive relief in his answer see 
 
 McGuire v. Buck, Mich. April, 1888; Barkley v. Mack, 60 Mich. 
 591. 
 
 The proper time for filing a cross bill is at the time 
 the answer is put in. If it is not then filed and no suffi- 
 cient excuse is given for the delay, the proceedings in 
 the original suit will not be stayed. 
 
 White v. Buloid, 2 Paige 164; Josey v. Rogers, 13 Ga. 473; 
 Irving v. DeKay, 10 Paige 319. 
 
 The cross bill should be confined to the matters 
 stated in the original bill and must not introduce new 
 and distinct matters not embraced therein. If it 
 should it would be an original bill as to such matters. 
 It must not contradict the allegations made by the
 
 188 EQUITY PLEADING AND PRACTICE. 
 
 defendant in his answer to the bill, and it is proper, if 
 not necessary, that the answer should set ont all the 
 allegations contained in the bill. 
 
 Harkley v. Mack, 60 Mich. 591; Irving v. DeKay, 10 Paige 
 319, 322; Hudson v. Hudson, 3 Rand. 117. 
 
 The original bill must be answered before the com- 
 plainant in the original bill will be compelled to 
 answer the cross bill. 
 
 After both causes are ready for a hearing either 
 upon the pleadings, or pleadings and proofs, either 
 party may obtain an order ex parte to have both 
 causes heard together. 
 
 White v. Buloid, 2 Paige 164; U. 8. Rule 72; Mich. Rule 20.
 
 EQUITY PLEADING AND PRACTICE. 189 
 
 LECTURE XVI. 
 
 BILLS OF INTERPLEADER. 
 
 When a person is in possession of a specific chattel, 
 or a definite sum of money, which two or more per- 
 sons claim adversely to each other, but in the same 
 right, or privity of estate, he may exhibit a bill of 
 interpleader against such adverse claimants and thus 
 relieve himself from the liability incident to deliver- 
 ing the article, or the money to the wrong claimant, 
 by compelling them to litigate their adverse claims 
 between each other. 
 
 Child v. Mann, L. R. 3 Eq. 805-806, 808; Bedell v. Hoffman, 
 2 Paige 199; Green v. Mumford, 4 R. I. 313; Farley v. Blood, 30 
 N. H. 354; Horton v. Baptist Church &c, 34 Vt. 309. 
 
 To entitle a party to file a bill of interpleader he 
 must be a mere stakeholder, having, himself, no inter- 
 est in the property in controversy, so that when the 
 court decrees an interpleader, he may step out of the 
 case altogether. 
 
 Lincoln v. R. & B. R. R. Co., 24 Vt. 639; Angell v. Hadden, 
 15 Ves. 244; Bowditch v. Soltyk, 99 Mass. 136. 
 
 Strictly speaking the complainant does not ask any 
 relief against either of the defendants, but simply the 
 aid of the court in determining to whom the property 
 of right belongs, that he may deliver it to such right- 
 ful person and be relieved against the claims of the 
 other.
 
 190 EQUITY PLEADING AND PRACTICE. 
 
 Bedell v. Hoffman, 2 Paige 199; Badeau v. Rogers, 2 Paige 
 209; Lazin v. Van Saun, 2 Green Cb. 325. 
 
 There must be privity of some sort between the 
 
 parties, such as privity of estate, title, or contract, 
 
 and the claims must be all of the same nature. If the 
 
 adverse claimants assert rights under adverse titles, and 
 
 have claims differing in their nature, the bill cannot 
 
 be maintained. Thus when two assessing districts 
 
 have assessed the same person for the same property 
 
 in each district, claiming to act under the statute, the 
 
 owner of the property may file a bill of interpleader 
 
 against the two corporations, or when a tenant owes 
 
 rent to his landlord, and two persons claim through 
 
 the same title to be such landlord, the tenant may file 
 
 a bill against both, but if in the latter case the claim of 
 
 one was based upon a title paramount to the other, as 
 
 when one claims under the original title, and the other 
 
 under a tax title, the bill may not be maintained. 
 
 M. & H. R. R. Co.v.Clute, 4 Paige 384; Thompson v. Ebbitts, 
 Hopk. 272; Stanley v. Sidney, 14 M. & W. 800; Story Eq. PL 
 § 239. 
 
 The claims of the several defendants must not only 
 be substantially the same in their nature, but this must 
 appear in the bill. The bill must also show that the 
 defendants claim an interest in the whole subject- 
 matter of the suit and be so framed that the decree 
 may embrace the whole of it. 
 
 Hoggart v. Cutts, 1 Cr. & P. 197, 205; Crawford v. Fisher, 1 
 Hare 43G, 440. 
 
 If the matter in dispute is money in the hands of
 
 EQUFTY PLEADING AND PRACTICE. 191 
 
 the complainant he should offer in his bill to bring 
 it into court, to enable the court to direct that to be 
 done upon the application of either of the other parties. 
 Shaw v. Coster, 8 Paige 339. 
 
 As a general rule a sheriff, who has seized property 
 under an execution which is claimed by a party other 
 than the defendant named in the writ, cannot file a 
 bill of interpleader making such adverse claimants 
 parties. If, however, there are conflicting equitable 
 claims, or claims due to some event happening after 
 the levy, for instance the bankruptcy of the execution 
 defendant, he may file a bill. 
 
 Tufton v. Hardinge, 6 Jur. N. S. 116; Child v. Mann, L. R. 3 
 
 Eq. 805, 807. 
 
 There are conflicting claims sometimes to funds in 
 the sheriff's hands arising from the sale of property 
 on several executions running against the same person 
 and in favor of divers persons. In such a case it is 
 held in Arkansas that the sheriff may file a bill of 
 interpleader. 
 
 Lawson v. Jordan, 19 Ark. 297. 
 
 But as a general rule this cannot be done. 
 
 Shaw v. Coster, 8 Paige 339; Parker v. Barker, 42 N. H. 78; 
 Nash v. Smith, 6 Conn. 421. 
 
 In theory the bill is filed solely for the benefit of 
 the complainant to relieve him from vexatious litiga- 
 tion and liability to pay the same amount twice, and 
 the court will not permit the bill to be filed if there 
 is collusion between the complainant and one of the
 
 192 EQUITY PLEADING AND PRACTICE. 
 
 parties. The complainant must therefore file with 
 the bill an affidavit that there is no collusion between 
 him and either of the parties ; and if there are several 
 complainants they must all join in the affidavit. 
 
 Atkinson v. Monks, 1 Cow. 091; Farley v. Blood, 30 N. H. 
 354, 361; Story Eq. PI. §§ 291, 297; Shaw v. Coster, 8 Paige 
 339. 
 
 In the bill of interpleader the complainant sets 
 forth fully the subject-matter of the controversy; that 
 the property is in his hands ; that he has no interest in 
 it ; that the defendants named claim the property and 
 the nature of their claim, but not their title. This 
 part of the bill must be drawn so as to show that the 
 complainant has a right to compel the defendants to 
 interplead. The complainant must also aver, that he 
 is ignorant, or in doubt, as to which of the parties are 
 entitled to the property. The bill prays that the 
 defendants may interplead, so that the court may 
 determine to whom the property belongs. It usually 
 prays also, if the matter of controversy is a money 
 demand, that the complainant may pay the money 
 into court. If a suit at law has been commenced by 
 either, or both the defendants, or threatened by either 
 or both, the bill also prays, that the defendants may 
 be enjoined from further proceedings against the com- 
 plainant at law. 
 
 Union Bank v. Kerr, 2 Mil. Cu. 460; French v. Robechard, 50 
 Vt. 43.
 
 EQUITY PLEADING AND PJRACTICE. 193 
 
 BILLS TO PE11PETUATE TESTIMONY. 
 
 Any person, who would, under the allegations con- 
 tained in his bill, become entitled, upon the happening 
 of some future event, to an estate, or interest in any 
 property, real or personal, the right to which cannot 
 by him be legally investigated, by being brought to 
 trial before the happening of such event, may main- 
 tain a bill to perpetuate the testimony material for 
 establishing such estate, or interest. 
 
 Lord Dursley v. Fitzhardinge, 6 Ves. 251-259; Allen v. Allen, 
 15 Ves. 129-135. 
 
 The interest which the complainant has, must be a 
 present interest and not a mere contingent interest. 
 But if it is a present interest it is wholly immaterial 
 how minute it may be, or how remote the possibility 
 may be, of the happening* of the event upon which it is 
 to be enjoyed. 
 
 Lord Dursley v. Fitzhardinge, 6 Ves. 251-259; Allen v. Allen, 
 15 Ves. 129-135. 
 
 I The bill must set forth the matter touching which the 
 complainant desires to take testimony. It must show 
 that he has an actual and not a contingent interest, and 
 that the facts to which the proposed testimony relates 
 cannot be investigated immediately in a court of law 
 or equity, or that before the facts can be adjudicated 
 upon, the evidence of such witness, is in danger of 
 being lost by his death or departure from the state. 
 In the latter case the bill must be accompanied witli 
 13
 
 194 EQUITY PLEADING AND PRACTICE. 
 
 affidavit setting forth the danger of the loss of such 
 testimony. 
 
 Phillip v. Carew, 1 P. Wins. 110, 117. 
 
 When a suit at law can be commenced immediately, 
 a suit must be actually commenced before a bill to 
 perpetuate testimony will be entertained. 
 
 Angell v. Angell, 1 Sim. & Stu. 83, 93. 
 
 It would seem that the bill is demurrable unless it 
 shows that the complainant's interest is actual, and not 
 capable of being barred by the defendant ; that the 
 interest cannot be investigated immediately, and that 
 the defendant has an interest to contest the complain- 
 ant's claim. 
 
 Allen v. Allen, 15 Ves. 129, 135; Larkins v. Ayleworth, 1 Vern, 
 105; Dursley v. Fitzhardinge, 6 Ves. 262; Ellice v. Roupelle, 32 
 Beav. 308. 
 
 The defence to a bill to perpetuate testimony is by 
 demurrer, plea or answer, as in other cases. The 
 cause, however, is never brought to a hearing. After 
 the cause is at issue a commission issues for the exam- 
 ination of witnesses. 
 
 Vaughan v. Fitzgerald, 1 Sell. & Lef. 316. 
 
 At common law the court would not permit the 
 testimony to be published except in support of a suit or 
 action, and not then, unless the witness, whose testi- 
 mony had been taken, was dead, or sick, or so aged, 
 or infirm, that he could not be examined in the cause. 
 
 Morrison v. Arnold, 19 Ves. 669; Jackson v. Rice, 3 Wend. 
 180; Jackson v. Perkins, 2 Wend. 308.
 
 EQUITY PLEADING AND PRACTICE. 195 
 
 To obtain the order of publication, a notice of the 
 motion must be served, which must be supported by 
 an affidavit, that the testimony is necessary to be 
 made use of in the complainant's behalf, that the wit- 
 nesses are dead or so sick, aged or infirm, that they 
 cannot travel to give evidence in the cause, or that 
 they are out of the state. Upon such a showing the 
 order of publication will be made. If a portion only 
 of the testimony taken is to be used the order will des- 
 ignate what testimony is to be published. 
 
 Bills to perpetuate testimony are seldom resorted to 
 at the present time, the statute in many of the states 
 having provided a cheaper and more expeditious 
 method of accomplishing the same purpose.
 
 196 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XVII. 
 
 BILL TO EXAMINE WITNESSES DE BENE ESSE. 
 
 This species of bills bears a close analogy to bills to 
 perpetuate testimony. But the two differ widely, 
 standing upon distinct considerations. A bill to per- 
 petuate testimony cannot be maintained except in 
 cases where no suit can then be commenced in which 
 the desired testimony can be taken. Bills to take tes- 
 timony de hene esse are on the other hand sustained 
 only in aid of a suit already pending. 
 
 Story Eq. PL §250; Angell v. Angell, 1 S. & S. 83. 
 
 The object of the bill is to take the testimony of 
 witnesses to be used in a pending action at law in case 
 where delay may result in the loss of such testimony, 
 and the bill may be filed by the plaintiff or defendant 
 in such suit at law. 
 
 The danger of the loss of a witness's testimony 
 may arise from the age of the witness or his state 
 of health, or from the fact that he is the only witness 
 i>y whom a given fact can be proved. In this later 
 case the court, in view of the uncertainty of life, will 
 admit the testimony of such a witness to be taken 
 although he is neither sick, infirm or aged. 
 
 Shirley v. Earl of Fenus, 1 P. Wms, 97; Pearson v. Ward, 2 
 Dick. 648.
 
 EQUITY PLEADING AND PRACTICE. 197 
 
 As a general rule a witness is not treated as being 
 aged unless he is seventy years of age. 
 
 Fitzhugh v. Lee, Amb. 65 
 
 But if a witness is infirm, or in ill health to an 
 extent to endanger life, or to prevent his attendance 
 at the trial, the court will permit his testimony to be 
 taken, no matter what his age may be. 
 
 Phillips v. Carew, 1 P. Wms. 117. 
 
 If a witness is going out of the jurisdiction of the 
 court his testimony also may be taken. At common 
 law this was the case, although the witness was going 
 from one division of the kingdom to another, as 
 from England to Scotland. 
 
 Botts v. Verelst, 2 Dick. 454. 
 
 In framing a bill to examine witnesses de bene esse, 
 care must be taken to allege all the material facts 
 upon which the right to maintain the bill can be 
 maintained, that is, that the witness whose testimony 
 you desire to take is aged, infirm, about to leave the 
 jurisdiction of the court, or is the only witness by 
 whom you ean prove a material fact, as the case may 
 be. The bill should be supported also by an affi- 
 davit showing the circumstances by which the evi- 
 dence intended to be taken may be otherwise lost. 
 
 Angell v. Angell, IS. & S. 83, 91; Phillips v. Carew. 1 P 
 Wms. 117; Story Eq. PI. §257. 
 
 The affidavit must be positive as to the material 
 facts, and not rest upon belief merely. Thus where 
 a bill was filed to take the testimony of a witness
 
 198 EQUITY PLEADING AND PRACTICE. 
 
 alleged to be the only witness, and the affidavit alleged 
 that he was the only witness in the belief of the party, 
 it was held insufficient, and that the affidavit should 
 have stated positively that lie was the only witness 
 who knew the fact. 
 
 Rowe v. , 13 Ves. 260. 
 
 Testimony taken de bene esse is only valid in the 
 cause in which it is taken, and against those who are 
 parties to such cause. In other respects the rules 
 applicable to bills to perpetuate testimony apply to 
 these bills. 
 
 There are several other bills which we do not 
 notice for the reason that their form depends largel} 7 
 upon local statutes, for instance bills for divorce, bills 
 filed by judgment creditors against their debtors, bills 
 for the partition of land, bills for the foreclosure of 
 mortgages, etc., etc. 
 
 Having now gone over the various steps taken in 
 the progress of a suit in equity we will close tin's 
 short synopsis of equity pleadings and practice with 
 Lord Redesdale analysis of the different kinds of 
 bills. He says: "The several kinds of lulls have 
 been usually considered as capable of being arranged 
 under the general heads: I. Original bills, which 
 relate to some matters not before litigated in the 
 court by the same parties standing in the same inter- 
 ests. II. Bills not original which are either an addi- 
 tion to, or a continuance of an original bill, or both. 
 III. Bills which, though occasioned by or seeking the
 
 EQUITY PLEADING AND Pf&AOTICE. L99 
 
 benefit of a former bill, or of a decision made upon 
 it, or attempting to obtain a reversal of a decision, are 
 not considered as a continuance of a former bill but in 
 the nature of original bills. And though this arrange- 
 ment is not perhaps the most perfect, yet, as it is 
 nearly just, and has been very generally adopted in 
 argument, and in the books of reports and of practice, 
 it will be convenient to treat the different kinds of 
 bills with reference to it. 
 
 I. A bill may pray relief against an injury suffered, 
 or only seek the assistance of the court to enable the 
 defendant to defend himself against a possible future 
 injury, or to support or defend a suit in a court of or- 
 dinary jurisdiction. Original bills have, therefore, 
 been again divided into bills praying relief, and bills 
 not praying relief. An original bill praying relief 
 may be: 1. A bill praying the order or decree of the 
 court touching some right claimed by the person ex- 
 hibiting the bill, in opposition to some right claimed 
 by the person against whom the bill is exhibited. 2. 
 A bill of interpleader, when the person exhibiting the 
 bill claims no right in opposition to the rights claimed 
 by the persons against whom the bill is exhibited, but 
 prays the decree of the court touching the rights of 
 those persons for the safety of the persons exhibiting 
 the bill. 3. A bill praying the writ of certiorari to 
 remove a cause from an inferior court of equity. An 
 original bill not praying relief may be : 1. A bill to 
 perpetuate the testimony of witnesses. 2. A bill for 
 the discovery of facts resting within the knowledge
 
 200 EQUITY PLEADING AND PRACTICE. 
 
 of the person against whom the bill is exhibited, or 
 of deeds, writings, or other things in his custody or 
 power. 
 
 II. A suit imperfect in its frame, or becomes so 
 by accident, before its end has been obtained, may, in 
 many cases, be rendered perfect by a new bill, which 
 is not considered as an original bill, but merely as an 
 addition to or continuance of the former bill, or both. 
 A bill of this kind may be: 1. A supplemental bill, 
 which is merely an additional to the original. 2. A 
 bill of revivor, which is a continuance of the original 
 bill, when by death some party to it has become inca- 
 pable of prosecuting or defending a suit, or a female 
 plaintiff has by marriage incapacitated herself from 
 suing alone. 3. A bill both of revivor and supple- 
 ment which continues a suit upon an abatement and 
 supplies defects arisen from some event subsequent to 
 the institution of the suit. 
 
 III. Bills for the purpose of cross litigation of 
 matters already depending before the court, of con- 
 troverting, suspending, avoiding or carrying into exe- 
 cution a judgment of the court, or obtaining the ben- 
 efit of a suit which the plaintiff is not entitled to add 
 to or continue for the purpose of supplying any de- 
 fects in it, have been generally considered under the 
 head of bills in the nature of original bills, though 
 occasioned by, or seeking the benefit of former bills; 
 and may be : 1. A cross-bill, exhibited by the defend- 
 ant in a former bill, against the plaintiff in the same 
 bill, touching some matter in litigation in the first
 
 EQUITY PLEADING ANT) PRACTICE. 203 
 
 bill. 2. A bill of review to examine and reverse 
 a decree made upon a former bill and signed by the 
 person holding the great seal, and enrolled, whereby 
 it has become a record of the court. 3. A bill in the 
 nature of a bill of review, brought by a person not 
 bound by the former decree. 4. A bill to impeach a 
 decree on the ground of fraud. 5. A bill to suspend 
 the operation of a decree on special circumstances, or 
 to avoid it on the ground of matter arisen subsequent 
 to it. 6. A bill to carry a decree made in a former 
 suit into execution. 7. A bill in the nature of a bill 
 of revivor, to obtain the benefit of a suit after abate- 
 ment in certain cases which do not admit of the 
 coutin nance of the original bill. S. A bill in the 
 nature of a supplemental bill, to obtain the benefit of 
 a suit, either after abatement in other cases which do 
 not admit of a continuance of the original bill, or after 
 the suit is become defective without abatement, in 
 cases which do not admit of a supplemental bill to 
 supply that defect.
 
 INDEX TO LECTURES. 
 
 Page 
 
 Abatement and revivor, bills of 181 
 
 Accounting — production of papers in 180 
 
 Admissions — by agreement and of record 143 
 
 made in answer 145 
 
 made by agreement 148 
 
 Appearance of defendant how entered 88 
 
 Answer 128 
 
 consists of two parts 129 
 
 certainty required in 130 
 
 form of 132 
 
 divisions of 133 
 
 must be signed by defendant and by counsel. . . . 133 
 
 copy of served presumed correct 134 
 
 of corporation, bow put in 134 
 
 effect of when answer under oath waived 135 
 
 under oath waived cannot be excepted to for in- 
 sufficiency 136 
 
 amending 137 
 
 supplemental 138 
 
 when may be taken off file 139 
 
 joinder of several defences in 140 
 
 when accompanied by demurrer or plea, how 
 
 entitled 140 
 
 evidence for complainant, when not under oath.. 145 
 
 under oath, evidence in the cause 146 
 
 Bill — in equity, frame of 64 
 
 address of 68 
 
 must show that the court has jurisdiction 68, 75 
 
 stating part to contain what 70 
 
 facts, how stated in 71, 72 
 
 when must be sworn to 81 
 
 must be signed by counsel 82 
 
 [202]
 
 INDEX TO LECTURES. 202« 
 
 Page 
 
 Bill — evidence for defendant 145 
 
 dismissing, effect of 156 
 
 to examine witnesses de bene esse, object of 196 
 
 of revivor, when may be filed 183 
 
 cross bill, when may be filed 186 
 
 Bills — in equity, classification of 198 
 
 original 198 
 
 supplemental 199 
 
 to examine witnesses de bene esse 196 
 
 supplemental, may be filed when 185 
 
 Books and papers — production of 180 
 
 application for 181 
 
 Charging part of bill not necessary 77 
 
 Certaintj r — degrees of 65 
 
 required in equity pleading 66 
 
 required both as to matter and averment! 67 
 
 Confederating part of bill may be omitted 76 
 
 Cross bill — when may be filed 186 
 
 regarded as a part of defendant's suit 187 
 
 and original to be heard together 188 
 
 when to be filed 188 
 
 need not be answered until after answer to 
 
 original bill 188 
 
 Default — how entered 85 
 
 when defendant entitled to notice of proceedings 
 
 after default 86 
 
 Decree — definition of 158 
 
 interlocutory 158 
 
 final 158 
 
 form of 160 
 
 settling manner of 159 
 
 mistake in how corrected 161 
 
 final record, when enrolled 161 
 
 how enrolled 161 
 
 enforcement of 162 
 
 pro confesso 85 
 
 Defences — kinds of 91 
 
 Demurrer — when proper defence 92 
 
 admits what 93
 
 202& INDEX TO LECTURES. 
 
 Page 
 
 Demurrer — may be to relief or discovery 94 
 
 to jurisdiction 94 
 
 to the person 95 
 
 to substance of bill 96 
 
 to matters of form 98 
 
 grounds of as to discovery 99 
 
 form of 101 
 
 general 102 
 
 general when permissible 103 
 
 speaking demurrer ■ 105 
 
 ore tenus 105 
 
 overruled by plea when 106 
 
 overruled by answer when 106 
 
 must be signed by counsel 106 
 
 effect of overruling 107 
 
 effect of sustaining 107 
 
 second may be filed when 108 
 
 advantage of at hearing 108 
 
 Disclaimer — when defendant may file 90 
 
 Documents — how set forth in bill 75 
 
 Facts — allegations of when to be stated positively and 
 
 when upon information and belief 71 
 
 Feigned issues 157 
 
 Guardian ad litem when and how appointed 56 
 
 Interpleader — bills of 189 
 
 when bill of may be filed 189 
 
 bill of what to contain 192 
 
 Interest — in suit and subject-matter 57 
 
 Injunction — writ of 174 
 
 mandatory and preventative 175 
 
 Impertinent matter — defined 88 
 
 exception for 88 
 
 Interlocutory proceedings 165 
 
 Interrogatories — when specific, not necessary 78 
 
 when discovery sought must be added. . . 79 
 
 Motions— special and of course 166 
 
 Multifariousness 59 
 
 not determined by the prayer 62 
 
 how taken advantage of 63
 
 INDEX TO LECTURES. 202o' 
 
 Page 
 
 Ne exeat — writ of 177 
 
 Orders — how classified 171 
 
 how entered 171 
 
 how served 172 
 
 how enforced 173 
 
 modifying and discharging 174 
 
 Parties to bill — who must be made 53, 56 
 
 when suit will proceed when all proper 
 
 parties are not made parties 55 
 
 proper and necessary parties 57 
 
 Papers — production of 180 
 
 application for production of 181 
 
 Pleadings and practice defined G4 
 
 Practice, pleadings and, defined 64 
 
 Petitions — definition of 170 
 
 Perpetuate testimony — bills to 193 
 
 must contain what 194 
 
 Process — prayer for 81 
 
 must contain names of defendants 81 
 
 Pleas — how classified 109 
 
 pure, negative and anomalous 116, 117 
 
 anomalous 120 
 
 when to be supported by answer 120 
 
 different grounds of plea 121 
 
 form of 122 
 
 replication to 123 
 
 effect of allowing 124 
 
 effect of overruling 125 
 
 Relief — prayer for 79 
 
 special and general 80 
 
 Revivor— bill of when may be filed 182, 183 
 
 Receivers — when may be appointed 178 
 
 Replication — to answer 143 
 
 to plea 123 
 
 Scandalous matter — defined 89 
 
 exceptions for 89 
 
 Supplemental bills 184 
 
 may be filed when 185 
 
 Substituted service — how made 85
 
 2026? INDEX TO LECTURES. 
 
 Pag© 
 
 Subpoena 82 
 
 how served 83 
 
 when may be served 84 
 
 return of service, how made 84 
 
 substituted service 85 
 
 Testimony — how taken 148
 
 GENERAL EQUITY RULES 
 
 PRESCRIBED BY 
 
 THE SUPREME COURT OF THE UNITED STATES. 
 
 PRELIMINARY REGULATIONS. 
 
 1 
 
 The Circuit Courts, as courts of equity, shall be deemed al- 
 ways open for the purpose 'of filing bills, answers and other 
 pleadings, for issuing and returning mesne and final process and 
 commissions, and for making and directing all interlocutory 
 motions, orders, rules and other proceedings, preparatory to the 
 hearing of all causes upon their merits. 
 Ewing v. Blight, 1 Phila. 57G. 
 
 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 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 proceed- 
 ings, preparatory to the hearing of all causes upon their merits, 
 in the same manner and with the same effect as the circuit court 
 could make and direct the same in term, reasonable 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. 
 
 3 McLean, 503. 
 
 4 
 
 All motions, rules, orders and other proceedings made and 
 
 directed at chambers, or on rule days at the clerk's office, whether 
 
 [2031
 
 204 GENERAL EQUITY KULES. 
 
 special or of course, shall be entered by the clerk in an order 
 book, to be kept in the clerk's office, on the day 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 pergonal 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 personal 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 proceedings, not requiring per- 
 sonal service on the parties, in their discretion. 
 
 U. S. v. Parrott, 1 McAll. 457; McLean v. Lafayette Bank, 
 3 McLean 503; New by v. Or. Cent. R. Co., 1 Saw. 63; 
 Bronson v. Kensey, 3 McLean 180; Halderman v. Haider- 
 man, Hemp. 407; Wilkins v. Jordan, 3 Wash. 226; Bennett 
 v. Hoefner, 17 Blatch. 341; Chicago, etc., Co., 1 Woolw. 63. 
 
 5 
 
 All motions and applications in the clerk's office for the issuing 
 of mesne process and final process to enforce and execute de- 
 crees; for filing bills, answers, plea3, demurrers, and other 
 pleadings; for making amendments to bills and answers; for 
 taking bills pro confesso; for filing exceptions, and for other 
 proceedings in the clerk's office, which do not, by the rules here- 
 inafter 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. 
 
 Poultney v. Lafayette, 13 Peters, 472. 
 
 6 
 
 All motions for rules or orders and other proceedings, which 
 are not grantable of course, or without notice, shall, unless a dif- 
 ferent time be assigned by the judge of the court, be made on a
 
 U. S. SUPREME COURT. 205 
 
 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. 
 U. S. v. Parrott, 1 McAll. 477. 
 
 7 
 The process of subpoena shall constitute the proper mesne pro- 
 cess 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 
 can not be found, a writ of sequestration, or a writ of assistance 
 to enforce a delivery of possession, as the case may require, shall 
 be the proper process to issue for the purpose of compelling 
 obedience to any interlocutory or final order or decree of the 
 court. 
 
 5 Mass. 35; R. S. sec. 911; Herndon v. Ridgway, 17 
 How. 424; Toland v. Sprague, 12 Peters 300; Nazro v. Cra- 
 gin, 3 Dill. 474; Ex parte Graham, 3 Wash. C. C. 456; Mid- 
 dleton Paper Co. v. Rock River Paper Co., 19 Fed. Rep. 252; 
 Crellin v. Ely, 13 Fed. Rep. 420; Johnson v. Waters, 111 
 U. S. 610. 
 
 8 
 Final process to execute any decree mar, 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 conveyance of land, 
 or the delivering up of deeds or other documents, the decree 
 shall, in all cases, prescribe the time within which the act shall 
 be done, of which the defendant shall be bound, without further 
 service, to take notice; and upon affidavit of the plaintiff, filed 
 in the clerk's office, that the same has not been complied with 
 within the prescribed time, the clerk shall issue a writ of attach- 
 ment against the delinquent party, from which, if attached 
 thereon, he shall not be discharged, unless upon a full compli- 
 ance with the decree and the payment of all costs, or upon a 
 13*
 
 206 GENERAL EQUITY EULES. 
 
 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 can not be found, a writ of sequestration 
 shall issue against his estate, upon the return of non est inventus, 
 to compel obedience to the decree. 
 
 R. S. sees. 985, 986; Toland v. Sprague, 12 Peters 300; 
 Gwin v. Breedlove, 2 How. 29; Griffin v. Thompson, 2 
 How. 245; McFarland v. Gwin, 3 How. 720. 
 
 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 en- 
 titled to a writ of assistance from the clerk of the court. 
 
 Terrell v. Allison, 21 Wall. 289; Pratt v. Burr, 5 Biss. 
 36; Thompson v. Smith, 1 Dill. 458. 
 
 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 pro- 
 cess 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. 
 
 SERVICE OP PROCESS. 
 
 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 plain- 
 tiff; which shall be returnable into the clerk's office the next rule 
 day, or the next rule day but one, at the election of the plaintiff, 
 occurring after twenty days from the time of the issuing thereof. 
 At the bottom of the subpoena shall be placed a memorandum, 
 that the defendant is to enter his appearance in the suit in the 
 clerk's office, on or before the day at which the writ is returnable; 
 otherwise the bill may be taken pro confesso. Where there is 
 more than one defendant, a writ of subpoena may, at the election
 
 U. 8. SUPREME COURT. 207 
 
 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 defendants. 
 
 Treadwell v. Cleveland, 3 McLean 283; O'Hara v. Mac- 
 Connell, 93 U. S. 150. 
 
 13 
 
 The service of all subpoenas shall be by a delivery of a copy 
 thereof, by the officer serving the same to the defendant person- 
 alty, or by leaving a copy thereof at the dwelling-house or usual 
 place of abode of each defendant, with some adult person who 
 is a member or resident in the family. 
 
 Ward v. Seabry, 4 Wash. 426; Ward v. Sebrinc, 4 Wash. 
 472; Sawyer v. Gill, 3 W. & M. 97; Hyslop v. Hoppock, 5 
 Ben. 533; Weiberg v. The St. Oloff, 2 Pet. Adm'y 428; 
 Segee v. Thomas, 3 Blatch. 11: Robinson v. Cathcart, 2 Cr. 
 C. C. 590; Doe ex dem. v. Johnston, 2 McLean 323; K'y 
 Silv. M'g Co. v. Day, 2 Saw. 468; Hitner v. Suckley, 2 
 Wash. 465; Read v. Consequa, 4 Wash. 174; Eckert v. 
 Bauert, 4 Wash. 370; Parsons v. Howard, 2 Woods 1; Reid 
 v. Rochereau, 2 Woods 145; Dunn v. Clark. 8 Peters 1; 
 Lowenstein v. Glidewell, 9 Blatch. 324; pacific R. R. Co. 
 v. Mo. R'y Co., 1 McCrary 647; Bronson v. Keokuk, 2 
 Woods 498; O'Hara v. McConnell, 3 Otto 151; Phoenix M. 
 1. Co. v. Wulf, 9 Biss. 285; Jobbius v. Montague. 5 Ben. 
 429; Gracie v. Palmer, 8 Wheat. 299; Thayer v. Wales 5 
 Dill. 325; Young v. Montgomery, etc.. Co., 2 Woods 607; 
 Kibbe v. Benson, 17 Wall. 624; Settlemeier v. Sullivan, 97 
 U. S. 444. 
 
 14 
 
 Whenever any subpoena shall be returned not executed as to 
 any defendant, the plaintiff shall be entitled to another subpoena, 
 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 other- 
 wise. In the latter case, the person serving the process shall 
 make affidavit thereof. 
 
 Jobbins v. Montague, 5 Ben. 428; U. S. v. Montgomery, 
 2 Dall. 335; Hyman v. Chales, 12 Fed. Rep. 855; Kennedy 
 v. Brent, 6 Cranchl87; Wortman v. Coj^ningham, 1 Peters
 
 208 GENERAL EQUITY RULES. 
 
 C. C. 241; Life and F. Ins Co. v. Adams, 9 Peters 573; 
 Harrirnan v. Rockaway B. P. Co., 5 Fed. Rep. 561; U. S. 
 v. Moore, 2 Brock. 317. 
 
 16 
 Upon the return of the subpoena, as served and executed upon 
 any defendant, the clerk shall enter the suit upon his docket as 
 pending in the court, and shall state the time of the entry. 
 
 APPEARANCE. 
 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 succeeding 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. 
 
 Treadwell v. Cleveland, 3 McLean 283; Poultney v. Lafay- 
 ette, 12 Peters 472; Nelson v. Moon, 3 McLean 319; Car- 
 rington v. Brent, 1 McLean 167; Gracie v. Palmer, 8 Wheat. 
 699; Goodyear v. Chaffee, 3 Blatch. 268; Marye v. Strauss, 
 5 Fed. Rep. 494; Knox v. Summers, 3 Crauch 496; Segee 
 v. Thomas, 3 Blatch. 11; Jones v. Andrews, 10 Wall. 327; 
 Dore v. Gibbouey, 3 Hughes 382; Kentucky, etc., Co. v. 
 Day, 2 Sawy. 468; Virginia, etc., Co. v. U. S., Taney 418; 
 Shelton v. Tiffin, 6 How. 163; Osborne v. U. S. Bank, 9 
 Wheat. 739; Buerk v, Imhaeuser, 8 Fed. Rep. 457; Hale v. 
 Continental Ins. Co., 12 Fed. Rep. 359; Graham v. Spencer, 
 14 Fed. Rep. 603; Patterson v. U. S., 2 Wheat. 222. 
 
 BILLS TAKEN PRO CONPESSO. 
 18 
 
 It shall be the duty of the defendant, unless the time shall be 
 otherwise enlarged for cause shown, by a judge of the court, 
 upon motion for that purpose, to file his plea, demurrer, or 
 answer to the bill, in the clerk's office, on the rule day next suc- 
 ceeding that of entering his appearance. In default thereof, the 
 plaintiff may, at his election, enter an order (as of course) in the 
 order book, that the bill be taken pro confesso; and thereupon 
 the cause shall be proceeded in ex parte, and the matter of the 
 bill may be decreed by the court at any time after the expiration
 
 I . s. SUPREME COURT. 209 
 
 of thirty days from and after the entry of said order, if the same 
 can be dune without an answer, and is proper to be decreed; or 
 the plaintiff, if he requires any discovery or answer to enable 
 him to obtain a proper decree, shall be entitled to process of 
 attachment against the defendant to compel an answer; and the 
 defendant shall not, when arrested upon such process, be dis- 
 charged therefrom, unless, upon filing his. answer, or otherwise 
 complying with such order, as the court, or a judge thereof, may 
 direct, as to pleading to or fully answering the bill within a 
 period to be fixed by the court, or judge, and undertaking to 
 speed the cause. 
 
 Amended 7 Otto VIII; O'Hara v. McConnell, 03 (J. S. 
 150; Halderman v. Qalderman, Mem}). 407; Dean v. .Mason, 
 20 How. 198; Walz v. Brookville National Bank, 11 Chi, 
 Legal News 392; 8 Reporter 580. 
 
 19 
 When the bill is takeu pro confesso, the court may proceed if 
 a decree any time after the expiration of thirty days from and 
 after the entry of the order to take the bill pro confesso, and 
 such decree rendered shall be absolute, unless the court shall, at 
 the same term, set aside the same, or enlarge the time for riling 
 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 reasonable. 
 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. 
 
 Amended 7 Otto VIII; Scott v. Blaine, Bald. 287; Allen 
 v. Thomas, 1 Cr. C. C. 294; Stewart v. Smith, 2 Cr. C. C. 
 615; McMicken v. Perin, 18 How. 507; Kemball v. Stewart, 
 1 McLean 332; Piatt v. Oliver, 2 McLean 281, 283; Lincoln 
 v. Tower, 2 McLean 487; Fellows v. Hall, 3 McLean 281; 
 Cameron v. McRoberts, 3 Wheat. 591; Suydam v. Beals, 4 
 McLean 12; Read v. Consequa, 4 Wash. C. C. 175; Pendle- 
 ton v. Evan's Ex'rs, 4 Wash. C. C. 336; Pendleton v. Evan's 
 Ex'rs, 4 Wash. C. C. 336; Boudinot v. Symmes, Wall. C.C. 
 139; O'Hara v. McConnell. 3 Otto 150; Bennett v. Hoefner, 
 17 Blatch. 341; Blackburn v. Selma R. Co., 3 Fed. Rep. 689; 
 Walz v. Brookville Nat'l Bank, 11 Chi. Legal News 392; 8 
 Reporter 580. 
 
 14
 
 210 GENERAL EQUITY KULES. 
 
 FKAME OF BILLS. 
 20 
 Every bill, in the introductory part thereof, shall contain the 
 name3, places of abode, and citizenship of all the parties, 
 plaintiffs and defendants, by and against whom the bill is 
 brought. The form, in substance, shall be as follows: "To the 
 Judges of the Circuit Court of the United States for the District 
 
 of , A. B., of , and a citizen of the State of , brings 
 
 this, his bill, against C. D. , of , and a citizen of the State of 
 
 , and E. P., of , and a citizen of the State of . And 
 
 thereupon, your orator complains, and says that," etc. 
 
 Dodge v. Perkins, 4 Mason 435; Jackson v. Ashton, 8 Pet 
 148; K'y Silv. M'g Co. v. Day, 2 Saw. 468; Barth v. Mc 
 Keever, 4 Biss. 206; Str. Shark v. Lee Choi Chum, 1 Saw 
 717; Harrison v. Nixon, 9 Peters 483, 505; Speigle v. Mere 
 dith, 4 Biss. 120; Merserole v. P. C. Union Co., 6 Blatch 
 356; National Bank v. Baack, 8 Blatch. 137; Findlay v. U 
 S. Bank, 2 McLean 44; Vose v. Philbrook, 3 Story 336; 
 Sterrick v. Pagslev, 1 Flippin 350; U. S. v. Pratt Coal Co., 
 18 Fed . Rep. 708." 
 
 21 
 The plaintiff, in his bill, shall be at liberty to omit, at his 
 option, the part which is usually called the common confederacy 
 clause of the bill, averring a confederacy between the defendants 
 to injure or defraud the plaintiff; also what is commonty called 
 the charging part of the bill, setting forth the matters or excuses, 
 which the defendant is supposed to intend to set up by wa} r of 
 defence to the bill; also, what is commonly called the jurisdiction 
 clause of the bill, that the acts complained of are contrary to 
 equity, and that the defendant is without any remedy at law; 
 and the bill shall not be demurrable therefor. And the plaintiff 
 may, in the narrative or stating part of the bill, state and avoid, 
 by counter- averments, at his option, any matter or thing which 
 .he supposes will be insisted upon by the defendant, by way of 
 defence or excuse to the case made by the plaintiff for relief. 
 The prayer of the bill shall ask the special relief to which the 
 plaintiff supposes himself entitled, and shall also contain a 
 prayer for general relief; and if an injunction, or a writ of ne 
 exeat regno, or any other special order pending the suit is re- 
 quired, it shall also be specially asked for.
 
 U. 8. SUPREME COURT. 211 
 
 Perry v. Corning, 7 Blatch. 195; Dunham v. Eat. & Ham. 
 R. R. Co., 1 Bond 492; Georgia v. Braiseford, 2 Dall. 405; 
 Taylor v. Mercli. Fire Ins. Co., 9 How. 390; Spooner v. Mc- 
 Connell, 1 McLean 337; Smith v. Foxall, 2 Pet. 595; Union 
 Bank of Georgetown v. Geary, 5 Pet. 99; Harrison v. INixon, 
 9 Pet. 483; Boone v. Chiles, 10 Pet. 177; Walden v. Bodley, 
 14 Pet. 156; Hobson v. Mc Arthur's Heirs, 16 Pet. 182; 
 Washington R. R. v. Bradleys, 10 Wall. 299; Wilson v. 
 Graham, 4 Wash. 53; Penhallow v. Doane, 3 Dall. 86; Moore 
 v. Mitchell, 2 Woods 483; Lewis v, Shainwald, 7 Saw. 403; 
 Poultney v. City of Lafayette, 3 How. 81; see also Gen. Eq. 
 Rule 23. 
 
 22 
 
 If any person, 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. 
 
 Abbott v. Am. H'd Rub. Co , 4 Bl. C. C. 489; Bunce v. 
 Gallagher, 5 Bl. C. C. 481; Barnev v. Baltimore City, 6 
 Wall. 280; Hob v. Wilson, 9 Wall. "501; Tobin v. Walkin- 
 shaw, 1 McAll. 26. 
 
 23 
 The prayer for process of subpoena in the bill shall contain 
 the names of all the defendants named in the introductory part 
 of the bill, aud if any of them are known to be infants, under 
 age, or otherwise under guardianship, shall state the fact, so that 
 the court may take order thereon as justice may require, upon 
 the return of the process. If an injunction, or a writ of ne 
 exeat regno, or any other special order pending the suit, is asked 
 for in the prayer for relief, that shall be sufficient without re- 
 peating 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 before him, there 
 
 is good ground for the suit, in the manner in which it is framed. 
 
 Roach v. Hulings, 5 Cr. C. C. 637; Dwight v. Humphreys, 
 3 McLean 104: Stinson v. Hildrup, 8 Biss. 376.
 
 212 GENERAL EQUITY RULES. 
 
 25 
 
 In order to prevent unnecessary costs and expenses, and to 
 promote brevity, succinctness, and directness in the allegations 
 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 if shall not exceed the sum of three dollars 
 for every bill or answer. 
 
 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 hac 
 verba, or any other impertinent matter, or any scandalous matter 
 not relevant to the suit. If it does, it may, on exceptions, lie 
 referred to a master by any judge of the court for impertinence or 
 scandal, and if so found by him, the matter shall be expuuged 
 at the expense of the plaintiff, and he shall pay to the defendant 
 all his costs iu 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 impertinent, the plaintiff shall 
 be entitled to all costs occasioned by the reference. 
 
 Nourse v. Allen, 4 Blatch. 376; Perry v. Corning, 7 Blatch. 
 195; Capen v. Flesher, 1 Bond 440; Gaines v. Chew, 2 How. 
 019; Oliver v. Piatt, 3 How. 333; McLean v. Lafayette Bank, 
 3 McLean 415; Gier v. Gregg, 4 McLean 202; Griswold v. 
 Hill, 1 Paine 390; Langdon v. Goddard, 3 Story 13; Wood 
 v. Mann, 1 Sum. 579; Chapman v. School District, Deadv 
 108. 
 
 27 
 No order sball be made by any judge, for referring any bill, 
 answer, or pleading, or other matter, or proceeding depending 
 before the court for scandal or impertinence, unless exceptions 
 are taken in writing, and signed by counsel, describing the par- 
 ticular passages which are considered to be scandalous or imper- 
 tinent; nor unless the exceptions shall be tiled on or before the 
 next rule day after the process on the bill shall be returnable, or 
 after 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, pro-
 
 U. S. SUPREME COURT. 213 
 
 cure 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. 
 
 Oliver v. Piatt, 3 How. 333; Nelson v. Hill, 5 How. 127; 
 Surget v. Byers, Hempst. 715; U. S. v. Sturges, 1 Paine 525; 
 Chapman v. School District, Deady 108. 
 
 AMENDMENTS 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 afterwards, such as rilling blanks, 
 correcting errors of dates, misnomer of parties, misdescription 
 of premises, clerical errors, and generally in matters of form. 
 But if he amend in a material point (as he may do of course), 
 after a copy has been so taken, before any answer or plea, or 
 demurrer to the bill, he shall pay to the defendant the costs 
 occasioned thereby, and shall, without delay, furnish him a fair 
 copy thereof, free of expense, with suitable references to the 
 place* where the same are to be inserted. And if the amend- 
 ments are numerous, he shall furnish, in like manner, to the de- 
 fendant, a copy of the whole bill, as amended; and if there be 
 more than one defendant, a copy shall be furnished to each de- 
 fendant affected thereby. 
 
 Capen v. Flesher, 1 Bond 440; Shields v. Barrow, 17 How. 
 130; Holmes v. Heirs of Trout, 1 McLean 1; Longworth v. 
 Taylor, 1 McLean 514; Walden v. Bodley, 14 >et. 156; 
 Peirce v. West's Ex'r, 3 Wash. 354; Read v. Consequa, 4 
 Wash. 175; Goodyear v. Bourn, 3 Blatch. 266; Harrison v. 
 Rowan, 4 Wash. 202; Fisher v. Rutherford, Bald. 188; 
 Hilliard v. Brevoort, 4 McLean 25; Swatzel v. Arnold, 
 Woolw. 383; Coghlan v. Stetson, 19 Fed. Rep. 727; Douglas 
 v. Butler, 6 Fed. Rep. 228; Hardin v. Boyd, 113 U. S. 756. 
 
 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 payment 
 of costs, or without payment of costs, as the court or a judge 
 thereof, may, in his discretion, direct. But after replication
 
 214 GENERAL EQUITY RULES. 
 
 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 pro- 
 posed 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. 
 
 Fisher v. Rutherford, Bald. 188; Goodyear v. Bourn, 3 
 Blatch. 266; Wharton's Ex'rs v. Lowrey, 2 Dall. 364; Snead 
 v. McCoull, 12 How. 407; Shields v. Barrow, 17 How. 130; 
 Hunt v. Rousemaniere, 2 Mason 342; Ross v. Carpenter, 6 
 McLean 382; Conolly v. Taylor, 2 Pet. 556; Jackson v. 
 Ashton, 10 Pet. 480; Walden v. Bodley, 14 Pet. 156; Neale v. 
 Neales, 9 Wall. 1; Wash. R. R. v. Bradleys, 10 Wall. 299; 
 Pierce v. West's Ex'r, 3 Wash. 354; Duponti v. Mussy, 4 
 Wash. 128; Tufts v. Tufts, 3 W. & M. 457; Clifford v. Cole- 
 man, 13 Blatch. 210; The Tremolo Patent, 23 Wall. 518; 
 Battle v. Mutual L. I. Co., 10 Blatch. 418; Lichtenauer v. 
 Cheney, 3 McCrary 119; Brown v. White, 16 Fed. Rep. 900; 
 National Bank v. Carpenter, 101 U. S. 567; Graffan v. Bur- 
 gess, 117 U. S. 181; Clements v. Moore, 6 Wall. 310; Adam's 
 Equity, p. 346, note 3. 
 
 30 
 
 If the plaintiff so obtaining any order to amend his bill, after 
 answer, or plea, or demurrer, or after replication, shall not file 
 his amendments or amended bill, as the case may require, in the 
 clerk's office, on or before the next succeeding rule day, he shall 
 be considered to have abandoned the same, and the cause shall 
 proceed as if no application for any amendment had been made. 
 Marshall v. Vicksburg, 15 Wall. 146. 
 
 DEMURRERS 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. 
 
 Goodyear v. Toby, 6 Bl. C. C. 130; Newby v. Oregon 
 Cent. R. Co., 1 Saw. 63; Ewing v. Blight, 3 Wall. Jr. 134;
 
 17. S. SUPKEME COTJBT. '_' 1 5 
 
 Sims v. Lyle, 4 Wash. 301; National Bank v. Insurance Co , 
 104 U. S.55. 76; Secor v. Singleton, 3 McCrary 230; Filer 
 v. Levy, 17 Fed. Rep. 610. 
 
 32 
 
 The defendant may, at any time before the bill is taken for 
 confessed, or afterwards, with the leave of the court, demur or 
 plead to the whole bill, or to part of it, and he may demur to 
 part, plead to part, and answer as to the residue; but in every 
 cast-, in which the bill specially charges fraud or combination, 
 a plea to such part must be accompanied with an answer fortify- 
 ing the plea, aud explicitly denying the fraud and combination 
 and the facts on which the charge is founded. 
 
 Atwill v. Ferrett, 2 Blatch. 39; Maxwell v. Kennedy, 8 
 How. 210; -Rhode Island v. Massachusetts, 15 Pet. 233; Fos- 
 ter v. Swasey, 2 W. & M. 217; Pierpont v. Fowle, 2 W. & 
 M. 23; Wisner v. Barnett, 4 Wash. 631; Gallagher's Ex'rs 
 v. Roberts. 1 Wash. 320; Livingston v. Story, 9 Peters 632; 
 Oliver v. Decatur, 4 Cranch C. C. 458; Heath v. Erie R. R. 
 Co., 8 Blatch. 348; Brandon Co. v. Prime, 14 Blatch. 371; 
 Perry v. Littlefield, 17 Blatch. 273; Crescent City Co. v. 
 Butchers, etc., Co., 12 Fed. Rep. 225; Hayes v. Davton, 18 
 Blatch. 420; Beard v. Bowler, 2 Bond 13; Wythe v. Palmer, 
 3 Saw. 412; Kirkpatrick v. White, 4 Wash. C. C. 595; 
 Wheeler v. McCormick, 8 Blatch. 267; Lamb v. Starr, 
 Deady 351; Noyes v. Williard, 1 Woods 187; Lewis v. Baird, 
 3 McLean 5fi; Burnley v. Jeffersonville, 3 McLean 336; 
 Sbeltou v. Tiffin, 6 How. 163; House v. Mullen, 22 Wall. 42; 
 Chicago, St. L. & N. O. R. Co. v. Macomb. 2 Fed. Rep. 18. 
 
 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. 
 
 Meyers v. Dorr, 13 Blatch. 22; Gallagher's Ex'rs v. Rob- 
 erts, 1 Wash. 320; Rhode Island v. Massachusetts, 14 Peters 
 210; Melius v. Thompson, 1 Cliff 125; Parton v. Pranc, 3 
 Cliff 537: S. C. 2 Off. Pat. Gaz. 619; Gernon v. Boccalinc, 
 2 Wash. C. C. 199. 
 
 34 
 
 If, upon the hearing, any demurrer or plea is overruled, the 
 
 plantiff shall be entitled to his costs in the cause up to that 
 
 period, unless the court shall be satisfied that the defendant had 
 
 good ground, in point of law or fact, to interpose the same, and
 
 216 GENERAL EQUITY RULES. 
 
 it was not interposed vexatiously or for delay. And upon tbc 
 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 pro confesso, and the matter thereof proceeded in and de- 
 creed accordingly. 
 
 Poultney v. City of Lafayette, 3 How. 81; Sims v. Lyle, 
 4 Wash. C. C. 303; Wooster v. Blake, 7 Fed. Rep. 816; 
 Halderman v. Halderman, Hemp. 407; Suydam v. Beals, 4 
 McLean 12; Fellows v. Hall, 3 McLean 487; Ormsby v. 
 Union Pac. R'y Co., 4 Rep. Fed. 170; Newman v. Moody, 
 19 Fed. Rep. 858. 
 
 35 
 
 If, upon the hearing, any demurrer or plea shall be allowed, 
 the defendant shall be entitled to bis 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 reasonable. 
 
 Brooks v. By am, 2 Story 553; National Bank v. Carpen- 
 ter, 101 U. S. 567; Hunt v. Rousemaniere, 2 Mason 342; 
 Dwight v. Humphreys, 3 McLean 104; Ketchum v. Driggs, 
 6 McLean 14; Gaylor v. R. R. Co., 6 Biss. 286. 
 
 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. 
 
 Livingston v. Story, 9 Pet. 633; Kirkpatrick v. White, 4 
 Wash. 595. 
 
 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 de- 
 murrer or plea. 
 
 Lewis v Baird, 3 McLean 56; Ferguson v. O'Hara, 1 
 Peters C. C. 493; Crescent City Co. v. Butchers, etc., Co., 
 12 Fed. Rep. 225; Hayes v. Dayton, 18 Blatch. 420. 
 
 38 
 If the plaintiff shall not reply to any plea, or set down any 
 plea or demurrer for argument, on tbe rule day when the same
 
 I. 8. SUPREME COURT. 21 T 
 
 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. 
 
 Poultneyv. Lafayette, 3 How. 81; Parton v. Prang, 3 Cliff 
 537; S C, 2 Off. Pat. Gaz. 619; Hughes v. Blake, 6 Wheat. 
 453; Leeds v. Marine Ins. Co.. 2 Wheat. 380; Newby v. 
 Oregon C. R. R. Co., 1 Saw. 03; National Bank v. Insurance 
 Co.; 104 U. S. 54. 
 
 ANSWERS. 
 
 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 defence (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 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 riling 
 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 
 defence. Thus, for example, a bona ride purchaser for a valu- 
 able consideration, without notice, may set up that defence 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. 
 
 Hardeman v. Harris. 7 How. 720; Piatt v. Oliver, 1 Mc- 
 Lean 295; Mech. Bank of Alexandria v. Lynn, 1 Pet. 376; 
 Boone v. Chiles, 10 Pet. 179; Brooks v. Byam. 1 Story 296; 
 Kittredc;e v. Pres. Claremont B'k, 3 Storey 590; Gaines v. 
 Agnelly, 1 Woods 238; Samples v. The Bank, 1 Woods 523; 
 Vose v. Reed, 1 Woods 047; Livingstone v. Story, 11 Peters 
 352; Wickliffe v. Owings, 17 How. 47; Wood v. Mann, 1 
 Sum. 578; Clark v. White, 12 Peters 178: Randall v. Phillips, 
 3 Mason 378; Bailey v. Wright, 2 Bond 181 ; Lenox v. Prout, 
 
 3 Wheat, 520; Union Bank v. Geary, 5 Peters 98; Higbe v. 
 Hopkins, 1 Wash. C. C. 230; Carpenter v. Prov. W. I Co., 
 
 4 How. 185; Hughes v. Blake, 1 Mason 515; Langdon v. 
 •Goddard. 2 Story 2(i7; Gould v. Gould, 3 Story 516; Greeley
 
 218 GENERAL EQUITY RULES. 
 
 v. Smith, 3 Story 659; Town v. Smith, 1 Wood & M. 115; 
 Delano v. Winsor, 1 Cliff. 501; Pomeroy v. Manin, 2 Paine 
 476; Toby v. Leonard, 2 Cliff. 40; Gilman v. Libbey, 4 Cliff. 
 447; Hayward v. National Bank, 2 Cliff. 294; Gernon v. 
 Boccaline. 2 Wash. C. C. 199; Walker v. Derby. 5 Biss. 134; 
 Field v. Holland, 6 Cranch 8; Russell v. Clark, 7 Cranch 69; 
 Clark's Ex'rs v. Van Reimsdyk, 9 Cranch 153; Leeds v. 
 Marine Ins. Co., 2 Wheat. 380; Morris v. Nixon, 1 How. 
 119; Van Reimsdyk v. Kane, 1 Gall. 630; Osborne v. U. S. 
 Bank, 9 Wheat. 738. 
 
 40 
 
 A defendant shall not be bound to answer any statement or 
 charge in the bill, unless specially and particularly interrogated 
 thereto; and a defendant shall not be bound to answer any in- 
 terrogatory in the bill, except those interrogatories which such 
 defendant is required to answer; and where a defendant shall 
 answer any statement or charge in the bill to which he is not 
 interrogated, only by stating his ignorance of the matter so stated 
 or charged, such answer shall be deemed impertinent. 
 
 Ordered, that the fortieth rule, heretofore adopted and promul- 
 gated 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 necessary to inter- 
 rogate a defendant specially and particularly upon any statement 
 in the bill, unless the complainant desires to do so, to obtain a 
 discovery. 
 
 10 How. v. ; Young v. Grundy, 3 Cranch 51 ; Treadwell 
 v. Cleveland, 3 McLean 283; Langdon v. Goddard, 3 Story 
 13; Parsons v. Cumming, 1 Woods 461; Bailey v. Young. 
 12 Blatch. 200. 
 
 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 follow- 
 ing, 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 re- 
 quired to answer, unless such defendant shall require to be fur 
 nished with a copy of the whole bill.
 
 U. S. SUPREME COURT. 2U> 
 
 If the complainant, in his bill, shall waive an answer under 
 oath, or shall only require an answer under oath, with regard to 
 certain specified interrogatories, the answer of the defendant, 
 though under oath, except such part thereof a9 shall be directly- 
 responsive to such interrogatories, shall not be evidence in his 
 favor, unless the cause be set down for hearing on bill and 
 answer only; but may nevertheless be used as an affidavit, with 
 the same effect as heretofore, on a motion to grant or dissolve an 
 injunction, or on any other incidental motion in the cause; but 
 this shall not prevent a defendant from becoming a witness in his 
 own behalf under section 3 of the act of Congress of July 2, 
 18G4. 
 
 R. S. sec. 858; 13 Wall. xi. ; Slessinger v. Buckingham, 8 
 Saw. 469; Patterson v. Gaines, 6 How.' 550; Amory v. Law- 
 rence, 3 Cliff. 524; Holbrook v. Black, 8 L. R. N. S. 89; 
 Heath v. Erie R. R. Co., 8 Blatch. 348. 
 
 42 
 
 The note at the foot of the bill, specifying the interrogatories 
 which each defendant is required to answer, shall be considered 
 and treated as part of the bill, and the addition of any such note to 
 the bill, or any alteration in or addition to such note, after the bill 
 is filed, shall be considered and treated as an amendment of the 
 bill. 
 
 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 here after be used the 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, remem- 
 brance, information and belief, full, true, direct, and perfect 
 answer make to such of the several interrogatories hereinafter 
 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. 
 
 Langdon v. Goddard, 3 Story 13.
 
 220 GENERAL EQUrfY RULES. 
 
 44 
 A defendant shall beal liberty, by answer, to decline answer- 
 ing 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 him- 
 self by demurrer. 
 
 Mech. Bank of Alexandria v. Lynn, 1 Pet. 376. 
 
 45 
 No special replication to any answer shall be filed; but if any 
 matter alleged in the answer shall make it necessary for the 
 plaintiff to amend his bill, he may have leave to amend the same 
 with or without the payment of costs, as the court, or a judge 
 thereof, may, in his discretion, direct. 
 
 Taylor v. Benham, 5 How. 233; Wilson v. Stolly, 4 Mc- 
 Lean 275; Colman v. Martin, 6 Blatch. 291; Duponti v. 
 Massy, 4 Wash. C. C. 128: Clements v. Moore, 6 Wall. 299; 
 Mason v. Hartford P. & F. R. Co., 10 Fed. Rep. 334. 
 
 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 therefor 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. 
 
 PARTIES TO BILLS. 
 
 47 
 In all cases where it shall appear to the court that persons who 
 might otherwise be deemed necessary or proper parties to the suit, 
 cannot be made parties, by reason of their being out of the jur- 
 isdiction of the court, or incapable otherwise of being made par- 
 ties, or because their joinder would oust the jurisdiction of the 
 court as to the parties before the court, the court may, in its dis- 
 cretion, proceed in the cause without making such persons par- 
 ties; and, in such cases, the decree shall be without prejudice to 
 the rights of the absent parties.
 
 U. S. SUPJREME COURT. 'I'll 
 
 R. S. Sec. 737; Louisville It. R. Co. v. Letson, 2 liow. 556; 
 Shields v. Barrow, 17 How. 130; Shields v. Barrow, 17 How. 
 141; Herndon v. Ridgway, 17 How. 425; Coiron v. Millau- 
 don, 19 How. 113; Taylor v. Cook, 2 McLean 510; Bargh v. 
 Page, 4 McLeaa 11; Doremus v. Bennett, 4 McLean 224; 
 Bank of Vicksburg v. Slocomb, 14 Pet. GO; Caldwell v. Tag 
 gart, 4 Peters 190; Morgan v. Morgan. 2 Wheat, 298; Wil- 
 liams v. Bankhead, 19 Wall. 263; Van Reimsdyk v. Kane, 1 
 Gall. 371; West v. Randall, 2 Mason 181; Elmendorf v. Tay- 
 lor, 10 Wheat. 152: Finley v. Bank of U. S., 11 Wheat. 30*4 ; 
 French v. Shoemaker, 14 Wall. 314; Fitch v. Creitihton. 24 
 How. 159; Heath v. Erie Railway Co., 8 Blatch. 347; Abbott 
 v. American H. R. Co., 4 Blatch. 491; Mallow v. Hinde. 12 
 Wheat. 193; Vattierv. Hinde, 7 Peters 252; McCoy v. Rhodes, 
 11 How. 131; Cameron v. McRoberts, 3 Wheat. 591; Hard- 
 ing v. Handy, 11 Wheat. 103; Gray v. Larrimore, 2 Abb. U. 
 S. 542; Cole S. M. Co. v. Virginia & C. Co.. 1 Saw. 470; 
 Payne v. Hook, 7 Wall. 425; Mechanics' Bank v. Seaton, 1 
 Peters 299; Calhoun v. St. Louis, etc.. Co., 14 Fed. Rep. 4; 
 Wormley v. Wormley, 8 Wheat. 421; Carneal v. Banks. 10 
 Wheat. 181; Ward v. Arredondo, 1 Paine, 410; Harrison v. 
 Urann, 1 Story 64; Joy v. Wirtz, 1 Wash. C. C. 517; Drake 
 v. Goodridge, 6 Blatch. 151; Riddle v. Mandeville, 5 Cranch 
 322; Russell v. Clarke, 7 Cranch 64; Marshall v. Beverly, 5 
 Wheat. 313; Connecticut v. Pennsylvania, 5 Wheat. 
 424; Barney v. Baltimore, 6 Wall. 280; Bank v. Car- 
 rollton R. R., 11 Wall. 624; Traders Bank v. Campbell, 14 
 Wall. 87; Ribon v. R. R. Co.. lfi Wall. 446; Young v.Cush- 
 ing, 4 Biss. 456; Bunce v. Gallagher, 5 Blatch. 481; Florence 
 S. M. Co. v. Singer S. M. Co., 8 Blatch. 113; Carson v. Rob- 
 ertson, Chase 475; Bank v. Smith, 6 Fed. Rep. 215; Dorrnit- 
 zer v. 111. etc., B. Co., 6 Fed. Rep. 217; Milligan v. Milledge, 
 3 Cranch 220; Hoxie v. Carr, 1 Sum. 173; Hunt v.Wyoliffe, 
 2 Peters 201; Dandridge v. Washington's Ex'rs, 2 Peters 
 370; Parsons v. Lyman, 4 Blatch. 432; Brown v. Pacific M. 
 S. S. Co., 5 Blatch. 526; Harrison v. Brown, 4 Wash. C. C. 
 202; Connolly v. Tayler, 2 Peters 556; Mollan v. Torrance, 
 9 Wheat. 537; Coanu v. Atlanta, etc., Co., 14 Fed. Rep. 4; 
 Kerr v. Watts, 6 Wheat. 550; McArthur v. Scott, 113 U. 8. 
 340. 
 
 48 
 
 Where the parties on either side are very numerous, and can 
 not, without manifest convenience 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 proceed in 
 the suit, having sufficient parties before it to represent all the 
 adverse interests of the plaintiffs and the defendants in the suit
 
 222 GENERAL EQUITY RULES. 
 
 properly before it. But in such cases the decree shall be without 
 prejudice to the rights and claims of all the absent parties. 
 
 Mandeville v. Ri'jgs, 2 Peters 482; Brown v. Pacific M. S. 
 S. Co., 5 Blatch. 525; Campbell v. R. R. Co., 1 Woods 368; 
 Wilmer v. Atlanta, etc. Co., 2 Woods 447; West v. Randall, 
 2 Mason 181; Calhoun v. St. Louis Ry. Co., 14 Fed. Rep. 4. 
 
 49 
 In all suits concerning real estate, which is vested in trustees 
 by devise, and such trustees are competent to sell and give dis- 
 charges for the proceeds of the sale, and for the rents and profits 
 of the estate, such trustees shall represent the persons benefic- 
 ially interested in the estate or the proceeds, or the rents and 
 profits, in the same manner, and to the same extent as the execu- 
 tors or administrators in suits concerning personal estate repre- 
 sent the persons beneficially interested in such personal estate: 
 and in such cases it shall not be necessary 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. 
 
 Chew v. Hyman, 10 Biss. 240. 
 
 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. 
 
 Ware v. Galveston City Co., Ill U. S. 170. 
 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 to a 
 suit concerning such demand, all the persons liable thereto ; but 
 the plaintiff may proceed against one or more of the persons 
 severally liable. 
 
 French v. Shoemaker, 14 Wall. 314. 
 52 
 Where the defendant shall, by his answer, suggest that the 
 bill is defective for want of parties, the plaintiff shall be at
 
 U. S. SUPREME COURT. '2'2'-> 
 
 liberty, within fourteen days alter answer filed, to set down the 
 cause for argument upon that objection only; and the purpose 
 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 effect 
 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 hear- 
 ing, notwithstanding an objection for want of parties taken by 
 the answer, he shall not, at the hearing of the cause, if the 
 defendant's objections shall then be allowed, be entitled, and 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 dis- 
 miss the bill. 
 
 Greenleaf v. Queen, 1 Peters 138; U. S. v. Gillespie, 6 
 Fed. Rep. 803; Segee v. Thomas, 7 Blatch. 11; Harrison v. 
 Rowan, 4 Wash. C. C. 202. 
 
 53 
 If a defendant shall, at a hearing of the 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 saving 
 the rights of the absent parties. 
 
 Segee v. Thomas, 3 Blatch. 11; Bank v. Seton, 1 Peters, 
 299; Story v; Livingstone, 13 Peters 959; Wallace v. Holmes, 
 9 Blatch. 65; Greenleaf v. Green, 1 Pet. 138. 
 
 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. 
 
 Wormley v. Wormley, 8 Wheat. 422.
 
 224: GENERAL EQUITY RULES. 
 
 55 
 Whenever an injunction is asked for by the bill to stay pro- 
 ceedings at law, if the defendant do not enter his appearance, 
 and plead, demur or answer to the same within the time pre- 
 scribed 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 uot appear at the time and place ordered. In every 
 case where an injunction, either the common injunction or a 
 special injunction, is awarded in vacation, it shall, unless pre- 
 viously dissolved by the judge granting the same, continue until 
 the next term of the court, or until it is dissolved by some other 
 order of the court. 
 
 R. S. sec. 718, ill), 720; Simms v. Guthrie, 9 Cranch 19; 
 Dunn v. Clark, 8 Peters 1 ; McKinne v. Voorheis, 7 Cranch 
 279; Dial v. Reynolds, 3 Otto 34; Diggs v. Walcott. 4 
 Cranch 179; Haines v. Carpenter, 1 Otto 254; City Bank v. 
 Skelton, 2 Blatch. 26; Whepley v. Erie Rv. Co., 2 Blatch. 
 271; Ewingv. Blight. 3 Wall. Jr. 139; Fanshawe v. Tracy, 
 4Biss. 490; Fremont v. Merced Mf'g Co., 1 McAll. 268; 
 Walworth v. Board of Supervisors, 5 Biss. 133 ; McOauley v. 
 Kellogg, 2 Woods 13; Marsh v. Bennett, 5 McLean 117; 
 Mowrey v. R. R. Co. 4 Biss. 78; Gray v. Chicago, etc Co., 
 1 Woolw. 63; Coleman v. Hudson R. R. Co., 5 Blatch. 57; 
 Read v. Consequa. 4 Wash. C. C. 174; Farmer v. Calvert 
 Lith. Co., 1 Flippin 228: Poor \. Carleton, 3 Sum. 70. 
 
 BILLS OK REVIVOR AND SUPPLEMENTAL BILLS. 
 56 
 
 Whenever a suit in equit} r shall become abated by the death 
 of either party, or by any other event, the same may be 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, upon suggestion of the facts 
 the proper process of subp(ena 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
 
 U. 8. SUPREME COURT. "225 
 
 time of the service of the same process, the suit shall stand re- 
 vived, as of course. 
 
 Glenn v. Capp. 11 Gill. & J. 1; Thorn v. Germand, 4 
 
 Johns. Ch. 363; Requav. Holmes. 16 N. Y. 193; Wa<m. Ins. 
 
 Co. v. Slee, 2 Paige 365; Minnesota Co. v. St. Paul Co., 2! 
 
 Wall 609; Mayorfetc, of Springfield v. Edwards. 10 C. L. 
 
 N. 51; Kennedy v. Georgia St. B'k, 8 How. 586: Fitzpatrick 
 
 v. Domingo, 14 Fed. Rep. 216; Clarke v. Mathewson, 12 
 
 Peters 164; Clarke v. Matthews, 2 Sum. 262; Vattier v. 
 
 Hinde, 7 Peters 252; Mason v. Hartford, P. & F. R. Co., 19* 
 
 Fed. Rep. 53; Chester v. Life Ass'n of America, 4 Fed. Rep. 
 
 487; Barribeau v. Brant, 17 How. 43; Illinois Cent. R. R. 
 
 Co. v. Turrill, 110 U. S. 301. 
 
 57 
 
 Whenever any suit in equity shall become defective from any 
 event happeuing after the filing of the bill (as, for example, by- 
 change of interest in the parties), or for any other reason, a sup- 
 plemental bill, or a bill in the nature of a supplemental 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. 
 Oliver's Ex'r v. Decatur, 4 Cr. C. C. 458; Slack v. Walcott, 
 3 Mason 508; Greenleaf v. Queen, 1 Pet. 138; Clarke v. 
 Matthewson, 12 Pet. 161; Winter v. Ludlow, 3 Phila. 464; 
 Baker v. Whiting, 1 Story 218; Jenkins v. Eldredge, 3 Story 
 300; Hoxie v. Carr, 1 Sum. 173; Kennedy v. Georgia St. 
 B'k, 8 How. 610; Tappan v. Smith, 5 Biss. 73; Cohen v. 
 Flesher, 1 Bond. 440; Caster v. Wood, 1 Bald. 289; Park- 
 hurst v. Kinsman, 2 Blatch. 72; Snead v. McCoull, 12 How. 
 407; Mosgrove v. Kountze, 14 Fed. Rep. 315; Chester v. 
 Life Ass'n of America, 4 Fed. Rep. 487. 
 
 58 
 It shall not be necessary, in any bill of revivor or supple- 
 mental bill, to set forth any of the statements in the original suit, 
 unless the special circumstances of the case may require it. 
 
 ANSWERS. 
 59 
 Every defendant may swear to his answer before any justice 
 or judge of any court of the United States, or before any com- 
 15
 
 226 GENERAL EQUITY RULES. 
 
 missioner appointed by any circuit court to take testimony or 
 depositions, or before any master in chancery appointed by any 
 circuit court, or before any judge of any court of a State or Ter- 
 ritory. 
 
 Read v. Consequa, 4 Wa9h . C. C. 335; Herman v. Her- 
 man, 4 Wash. C. C. 555. 
 
 AMENDMENT TO ANSWERS. 
 60 
 After an answer is put in, it may be amended, as of course, 
 in any matter of form or by filling up a blank, or correcting 
 a date or reference to a document, or other small matter, and 
 be re-sworn 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 
 defences, 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, sup- 
 ported, 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. 
 
 Caster v. Wood, 1 Bald. 289; Foote v. Silsby, 1 Blatch. 
 545; Calloway v. Dobson, 1 Brock 119; Wilson v. Turber- 
 ville's Ex'r, 2 Cr. C. C. 27; Suydam v. Truesdale, 6 McLean 
 459; Smith v. Baboock, 3 Sum. 583; Rhode Island v. Massa- 
 chusetts, 13 Peters 23; Walden v. Bradley, 14 Peters 156; 
 India Ruhber Co. v. Phelps. 8 Blatch. 85; Grier v. Gregg, 4 
 McLean 202. 
 
 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 file in the clerk's 
 office exceptions thereto for insufficiency, and no longer, unless 
 a longer time shall be allowed for the purpose, upon cause 
 shown to the court, or a judge, thereof; and if no exception 
 shall be filed thereto within that period, the answer shall be 
 deemed and taken to be sufficient.
 
 U. 8. SUPREME COURT. 227 
 
 Brent v. Venable, 3 Cr. C. C. 227; The Patriotic Bank v. 
 Bank of Washington, 5 O. C. C 602; Brooks v. Byam, 1 
 Story 296; Hardeman v. Harris, 7 How. 726; Read v. Con- 
 sequa, 4 Wash. C. C. 335; Bradford v, Geiss, 4 Wash. C. C. 
 513; Chapman v. School District, Deady 108; Griswold v. 
 Hill, 1 Paine 390; Kitredge v. Race, 93 U. S. 116; Adamsv. 
 Bridgewater Iron Co., 6 Fed. Rep. 179; Allis v. Stowell, 5 
 Fed. Rep. 203. 
 
 62 
 
 When the same solicitor is employed for two or more defend- 
 ants, and separate answers shall be filed, or other proceedings 
 had by two or more of the defendants separately, costs shall not 
 be allowed for such separate answers or other proceedings, un- 
 less 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 insufficiency, 
 within the period prescribed by these rules, if the defendant shall 
 not submit to the same, and tile 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 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. 
 
 Read v. Consequa, 4 Wash. 335; La Vega v. Lapsley, 1 
 Woods, 428; Penn v. Butler, Wall. C. C. 4. 
 
 64 
 
 If, at the hearing, the exceptions shall be allowed, the defend- 
 ant shall be bound to put in a full aud 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 defendant to make a 
 a better answer to the matter of the exceptions; and the defend-
 
 228 GENERAL EQUITY RULES. 
 
 ant, 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. 
 
 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 succeed- 
 ing rule day thereafter; and in all cases where the general repli- 
 cation is filed, the cause shall be deemed to all intents and pur- 
 poses at issue, without any rejoinder or other pleading on either 
 side. If the plaintiff shall omit, or refuse, to file such replica- 
 tion within the prescribed period, the defendant shall be entitled 
 to an order, as of course, for a dismissal of the suit; and the suit 
 shall thereupon stand dismissed, unless the court, or a judge 
 thereof, shall, upon motion, for cause shown, allow a replication 
 to be filed nunc pro tunc, the plaintiff submitting to speed the 
 cause, and to such other terms as may be directed. 
 
 Coleman v. Martin, 6 Bl. C. C. 291 ; Robinson v. Satterlee, 
 3 Saw. 134; Clements v. Moore, 6 Wall. 299; Duponti v. 
 Mussy, 4 Wash. 128; Jones v. Brittau, 1 Woods, C67; Bullin- 
 t^erv. Mackey, 14 Bla'ch. 355; Fisher v. Wilson, 16 Blalch. 
 220; Washington K. R. v. Bradlevs, 10 Wall. 302; Fischer 
 v. Hayes, 19 Blatch. 26; S. C 6 Fed. Rep. 76; Vattier v. 
 Hinde, 7 Pet. 252; Warren v. Van Brunt, 19 Wall. 646; AUia 
 v. Store, 10 Biss. 57; S. C. 5 Fed. Rep. 203. 
 
 TESTIMONY, HOW TAKEN. 
 67 
 
 1. 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 filed 
 by the party taking out the same, in the clerk's office, ten days' 
 notice thereof being given to the adverse party to file eras*-
 
 V. S. SUPREME COURT. 
 
 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- 
 sioner or commissioners shall be named by the court, or by a 
 judge thereof. If the parties shall so agree, the testimony may 
 be taken upon oral interrogatories by the parties or their agents, 
 without filing any written interrogatories. 
 
 2. 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 thereof 
 can do by the said sixty-seventh rule. 
 
 3. 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 examiner to be fur- 
 nished 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 re-examination, and 
 which shall be conducted as near as may be in the mode now 
 used in common law courts. The depositions taken upon 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 deposi- 
 tion, 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 examiner upon the 
 deposition; but he shall not have power to decide on the compe- 
 tency, materiality, or relevancy of the questions; and the court 
 shall have power to deal with the costs of incompetent, immate- 
 rial, or irrelevant depositions, or parts of them, as may be just. 
 
 In case of refusal of witnesses to attend, to be sworn, or to 
 answer any question put by the examiner, or by counsel or solici-
 
 230 GENERAL EQUITY RULES. 
 
 tor, 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 wiitten 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 pre- 
 scribed in the 30th section of Act of Congress, September 24th> 
 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. 
 
 4. 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 defence, 
 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. 
 
 17 How . vii. ; 1 Black vi. ; 9 Wall. vii. ; R. 8. § 865; Van 
 Hook v. Pendleton, 2 Blatch. 85; Pierce v. Strickland, 2 
 Story 292; Blease v. GarliDgton, 92 U. S. 1; Sickles v. The 
 Gloucester Co. 3 Wall. Jr 193; Coleman v. Martin, 6 Blatch. 
 291; Bronson v. LaCross R. R. Co. 9 Am. Law R. 350; 
 Bi-choffscheim v. Baltzen, 10 Fed. Rep. 1; In re Clarke, 9 
 Blatch. 372; N. C. It. R. Co. v. Drew, 3 Woods 692; U. S. 
 v, Parrott, 1 McAll. 447; Armstrong v. Brown, 1 Wash. C. 
 C. 43; Menus v. Dupont, 3 Wash. C. C. 31; Willings v. 
 Consequa, 1 Peters 3ul; Lonsdale v. Brown, 3 Wash. C. C. 
 404; Boudereau v. Montgomery, 4 Wash. C. C. 186; Rhodes 
 V. Selin, 4 Wash. C. C. 715; Read v. Bertrand, 4 Wash. C. 
 C. 558; Crocker v. Franklin Co., 1 Story 169; Ketland v. 
 Bissett, 1 Wash. C. C. 144; Dodge v. Israel, 4 Wash. C. C. 
 323; Richardson v. Golden, 3 Wash. C. C. 109; Bell t.
 
 U. S. SUPREME 0OUKT. 231 
 
 Davidson, 3 Wash. C. C. 328; Gilpins v. Consequa, 3 Wash. 
 C. C. 184; Gass v. Stinson, 3 Sum. ( J8; Frese v. Biedenfeld, 
 14 Blatch. 402; De Butts v. Bacon, 1 Cranch C. C. 569; Liv- 
 ingston v. Story, 9 Peters G32. 
 
 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 affi- 
 davit of the fact, be entitled to a cross-examination of the wit- 
 ness, 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. 
 
 R. S. sees. 868-875; Phettiplace v. Sayles, 4 Mason 312; 
 Gass v. Stinson, 3 Sum. 98; Russell v. McLellan, 3W.&M. 
 157; The Ruby, 5 Mason 451. 
 
 69 
 
 Three months, and no more, shall be allowed for the taking of 
 testimony after the cause is at issue, unless the court, or judge 
 thereof, shall, upon special cause shown by either party, enlarge 
 the time; and no testimony taken after such period shall be 
 allowed to be read in evidence at the hearing. Immediately 
 upon the return of the commissions and depositions containing 
 the testimony, into the clerk's office, publication thereof may be 
 ordered in the clerk's office, by any judge of the court, upon due 
 notice to the parties, or it maj' 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 book, or indorsed upon the depo- 
 sition or testimony. 
 
 9 Wall, vii.; Brown v. Hall, 6 Bl C. C. 401; Patten v. 
 Darling, 1 Cliff. 254; Melius v. Howard, 2 Curt. 2(54; Ingle 
 v. Jones, 9 Wall. 480; Wood v. Mann, 2 Sum. 31(5; Gilbert 
 v. Van Arman, 1 Flippin 421 ; Co eman v. Martin, 6 Blatch. 
 291; De Butts v. Bacon. 1 Craneh C. C. 569; Gass v. Stin- 
 son. 3 Sum. 005; Fischer v. Hayes, 19 Blatch. 25; S. C, 
 Fed. Rip. 70; Wooster v. Clark, 9 Fed. Rep. 854; Bischoff- 
 6cheim v Ba tzer, 10 Fed. Rep. 1; Thayer v. Swift, Walk. 
 Ch. 384; Bachelor v. Nelson, Walk. Ch. 441); Sargeant v. 
 National Bank, 7 Rep. 231.
 
 232 GENERAL EQUITY RULES. 
 
 TESTIMONY, DE BENE ESSE. 
 70 
 
 After any bill filed, and before the defendant bath answered 
 the same, upon affidavit made that any of the plaintiff's wit- 
 nesses are aged and infirm, or going out of the country, or that 
 any of them is a single witness to a material fact, the clerk of the 
 court shall, as of course, upon the application of the plaintiff, 
 issue a commission to such commissioner or commissioners as a 
 judge of the court may direct, to take the examination of bucIi 
 witness or witnesses de bene esse, upon giving due notice to the 
 adverse party of the time and place of taking his testimony. 
 
 Eslava v. Mazange, 1 Wood 623"; Richter v. Union Trust 
 Co., 115 U. S. 209. 
 
 FORM OF LAST INTERROGATORY. 
 71 
 
 The lust 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 ad- 
 vantage to the parties at issue in this cause, or either of them, or 
 that may be material to the subject of this your examination, or 
 the matters in question in this cause? if yea, set forth the same 
 fully and at large in your answer." 
 
 Rimadesv. Seliu,4 Wash. C. C. 715; Richardson v. Golden, 
 3 Wash. C. C. 109; Dodge v. Israel, 4 Wash. C. C. 323. 
 
 CROSS 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 
 same manner, and under the same restrictions as the answer, 
 praying relief, may now be used and read. 
 
 Allen v. Allen, Hemp. 58; Shields v. Barrow, 17 How. 
 130; Cross v. De Valle, 1 Wall. 1; Bronson v. LaC. & M. R. 
 It. Co., 2 Wall. 283; Rubber Co. v. Goodyear, 9 Wall. 837; 
 Heath v. Erie R'y Co., 9 Blatcli. 316; Forbes v. R. R. Co., 

 
 I . s. SUPREME OOUBT. 233 
 
 2 Woods 323; Putnam v. New Albany, 4 Biss. 365; Weaver 
 v. Alter, 3 Woods 152; Young v. Pott, 4 Wash. C. C. 521; 
 Carnochan v. Christie, 11 Wheat. 446; Peay v. Schenck, 1 
 Woolw. 175; Brandon, etc., Mfg Co. v. Prime, 14 Blatch. 
 371; Moore v. Huntington. 17 Wall. 417; Loewenstein v. 
 Glidewel), 5 Dill. 325; Washington Railroad v. Bradleys, 10 
 Wall. 299. 
 
 KEFERENCE TO AND VROCEED1NOS BEFORE MASTERS. 
 73 
 
 Every decree for an account of the personal estate of a tes- 
 tator, 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 out- 
 standing or undisposed of, unless the court shall otherwise 
 direct. 
 
 Kelsey v. Hobby, 16 Peters 269; Pendleton v. Evans 
 Exrs.. 4 Wash. C. C. 391; Allen v. Blunt. 1 Blatch. 480; St. 
 Colombe v. U. S., 7 Peters 625; Field v. Holland, 6 Cranch 
 8; Lawrence v. Dana, 4 Cliff. 6; Jewett v. Cunard, 3 Wood 
 & M. 277; Harding v. Handy, 11 Wheat. 103. 
 
 74 
 Whenever any reference of any matter is made to a master to 
 examine and report thereon, Ihe party at whose instance and 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 solici- 
 tors; and if either party shall fail to appear at the time and place 
 appointed, the master shall be at liberty to proceed ex parte, or, 
 in his 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 duty of the master to 
 proceed with all reasonable diligence in every such reference,
 
 234 GENERAL EQUITY ROLES. 
 
 and with the least practicable delay, and either party shall be at 
 liberty to apply to the court, or a judge thereof, for an order to 
 the master to speed the proceedings and 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 the court, no part of any 
 state of facts, charge, affidavit, deposition, examination or an- 
 swer, brought in or used before them, shall be stated or recited. 
 But such stale of fact*, ch irge, affidavit, deposition, examination 
 or answer shall be identified, specified and referred to, so as to 
 inform the court what state of facts, charge, affidavit, deposition, 
 examination, or answer, was 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, touch- 
 ing all matters contained in the reference; and also to require 
 the production of all books, papers, writings, vouchers and other 
 documents, applicable thereto; and also to examine, on oath, 
 viva voce, all witnesses produced by the parties before him, 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 in- 
 quiries 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. 
 
 Foote v. Silsby, 3 Blatcb. 507; Story v. Livingston, 18 
 Peters 359; Harding v. Handy, 11 Wheat. 103; Wooster v. 
 Gumbiruner, 20 Fed. Rep. 167; Hatch v. Indianapolis & 8. 
 R. Co., 9 Fed. Hep. 856. 
 
 78 
 
 Witnesses who live within the district may, upon due notice 
 to the opposite party, be summoned to appear before the com- 
 missioner appointed to take testimony, or before a master or 
 examiner appointed in auy 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, master or exam-
 
 U. 8. SUPREME COURT. 235 
 
 iner requiring the attendance of the witnesses at the time and 
 place specified, who shall be allowed for attendance the same 
 compensation as for attendance in court; and if any witness shall 
 refuse to appear or to give evidence, it shall be deemed a con- 
 tempt 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 give testimony in the court. But nothing herein 
 contained shall prevent the examination of witnesses viva voce 
 when produced in open court, if the court shall, in its discretion, 
 deem it advisable. 
 
 Erie Rv. Co. v. Heath, 8 Blatch. 413; R. R. Co. v. Drew, 
 8 Woods 692; In re Clarke, 9 Blatch. 372; Gass v. Stinson, 
 2 Sum. 605: Jenkins v. Eldridge, 3 Story 299; see also Gen. 
 Eq. Rule 67. 
 
 79 
 
 All parties accounting before a master, shall briDg in their re- 
 spective accounts in the form of debtor and creditor; and any of 
 the other parties, who shall not be satisfied with the accounts so 
 brought in, shall be at liberty to examine the accounting party 
 viva voce, or upon interrogatories, in the master's office, or by 
 deposition, as the master shall direct. 
 Ransom v. Winn, 18 How. 295. 
 80 
 
 All affidavits, depositions and documents, which have been 
 previously made, read, or used in the court, upon any proceed- 
 ing in any cause or matter, may be used before the master. 
 
 81 
 
 The master shall be at liberty to examine any creditor or other 
 person coming in to claim before him, either upon written inter- 
 rogatories, or viva voce, or in both modes, as the nature of the 
 case may appear to him to require. The evidence upon such 
 examination 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 concurring in the 
 appointment; and they may also appoint a master pro hac vice in
 
 236 GENERAL EQUITY RULES. 
 
 any particular case. The compensation to be allowed to every 
 master in chancery for his services, in any particular case, shall 
 be fixed by the circuit court, in its discretion, having regard to 
 all the circumstances thereof; and the compensation shall be 
 charged upon and borne by such of the parties in the cause as 
 the court shall direct. The master shall not retain his report as 
 security for his 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. 
 
 Van Hook v. Pendleton, 2 Blatch. 85; Acts of Congress, 
 
 1879, ch. 183, p. 415; Frese v. Biedenfeld, 14 Blatch. 402; 
 
 Myers v. Dunbar, 12 Blatch. 380. 
 
 EXCEPTIONS TO MASTER'S REPORT. 
 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 is expired. If exceptions 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. 
 
 Troy Iron and Nail Fact, v Corning, 6 Bl. C. C. 328; 
 Greene v. Bishop, 1 Cliff. 186; Brockett v. Brockett, 3 How. 
 691; Ward v. Peck, 18 How. 289; McMicken v. Perin, 18 
 How. 507; Story v. Livingston, 13 Pet 359; Dexter v. Ar- 
 nold, 2 Sum. 108; Gordon v. Lewis, 2 Sum. 143; Canal Co. 
 v. Gordon, 6 Wall. 561; Harding v. Handy, 11 Wheat. 103; 
 Gaines v. New Orleans. 1 Woods 104; Stanton v. Al. & Chat. 
 R. R. Co., 2 Woods 506; Mason v. Crosby, 3 W. & M. 258; 
 St. Colombe v. U. S., 7 Peters 625; Foster v. Goddard, 1 
 Black 506; Chappedelaine v. Dechenaux, 4 Cranch 306; 
 Turrill v. R. R. Co., 5 Biss. 345; Garretson v. Clark. 15 
 Blatch. 70; Oliver v. Piatt, 3 How. 334; Cowdrey v. R. R. 
 Co., 1 Woods 331; Fischer v. Hayes, 16 Fed. Rep. 469; 
 Hatch v. Indianapolis & S. R. Co., 9 Fed. Rep. 856. 
 
 84 
 
 And in order to prevent exceptions to reports from being filed 
 for frivolous causes, or for mere delay, the party whose excep-
 
 IT. S. 8UPBEME COURT. 237 
 
 tions are overruled shall for every exception overruled pay costs 
 to the other party, and for every exception allowed shall be en- 
 titled to costs — the costs to be fixed in each case by the court, 
 by a standing rule of the circuit court. 
 Garretson v Clark, 17 Blatch. 256. 
 
 DECREES. 
 85 
 Clerical mistakes in decrees, or decretal orders, or errors aris- 
 ing 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, with the form or 
 expense of a rehearing. 
 
 Dexter v. Arnold, 5 Mason 303; Whiting v. U. S. Bank, 
 t3Peters6; Tiltou v. Barrel!, 1? Fed. Rep. 59; Coleman v. 
 Neill, 11 Fed. Rep. 461. 
 
 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 any other prior proceedings, shall be recited or 
 stated in the decree or order; but the decree and order shall 
 begin in substance as follows: "This cause came on to be heard 
 (or to be further heard, as the case may be) at this term, and 
 was argued by counsel; and thereupon, upon consideration 
 thereof, it was ordered adjudged, and decreed as follows, viz." 
 [Here insert the decree or order.] 
 
 Whiting v. TJ. S. Bank, 13 Peters 16; Putnam v. Day, 22 
 Wall. 60; Forgay v. Conrad, 6 How. 21; R. R. Co. v. 
 Swasey, 23 Wall. 405. 
 
 87 
 
 GUARDIANS AND PROCHEIN AMIS. 
 
 Guardians ad litem to defend a suit may be appointed by the 
 court, or by any judge thereof, for infants, or other persons 
 who are under guardianship, or otherwise incapable to sue for 
 themselves. All infants, and other persons so incapable, may 
 sue by their guardians, if any, or by their prochein ami, subject, 
 however, to such orders as the court may direct for the protec- 
 tion of infants and other persons. 
 
 Bank of U. S. v. Ritchie. 8 Peters 128.
 
 238 GENERAL EQUITY RULES. 
 
 88 
 REHEAIUNG. 
 
 Every petition for a rehearing shall contain the special matter 
 or cause on which such rehearing is applied for, shall be signed 
 by counsel, and the facts therein stated, if not apparent on the 
 record, shall be verified by the oath of the party, or by some 
 other person. No re-hearing shall be granted after the term, 
 at which the final decree of the court shall have been entered 
 and recorded, if an appeal lies to the 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. 
 
 Clark v. Threlkeld, 2 Cr. C. C. 408; Daniel v. Mitchell, 1 
 Story 198; Jenkins v. Eldredge, 3 Story 229; Emerson v. 
 Davies, 1 W. & M. 21; Browder v. McArthur, 7 Wheat. 58; 
 Hunter v. Town of Marlboro. 2 W. & M. 169; Bentley v. 
 Phelps, 3 W. & M. 403; Tufts v. Tufts, 3 W. & M. 426; 
 Roemer v. Simon, 91 U. S. 149; Baker v. Whiting. 1 Story 
 218; Giant Powd. Co. v. Cal. V P. Co.. 6 Saw. 509; Scott 
 v. Blaine, 1 Bald. 287; Scott v. Hore, 1 Hughes 103; Ameri- 
 can, etc.. Co. v. Slieldon, 18 Blatch. 50; The Collins Co. v. 
 Coes, 8 Fed. Rep. 519; Hicks v. Ferdinand, 20 Fed. Rep. 
 Ill; Hayes v. Dayton, 20 Fed. Rep. 6u0: Adair v. Thayer, 7 
 Fed. Rep 920; Coburn v. Suroeder, 11 Fed. Rep. 425; New- 
 man v. Moody, 19 Fed. Rep. 858; Arnold v. Nye, 11 Mich. 
 456. 
 
 89 
 The circuit court (both judges concurring therein) may make 
 any other and further rules and regulations for the practice, 
 proceedings, and process, mesne and final, in their respective 
 districts, not consistent with the rules hereby prescribed, in 
 their discretion, and from time to time alter and amend the 
 same. 
 
 U. S. Bank v. White, 8 Pet. 262; Phila, etc., Co. v. Stim- 
 son, 14 Peters 448; Steam S. C. Co. v. Jones, 13 Fed. Rep. 
 581; Poultney v. Lafayette, 12 Peters 472; Russell v. Mc- 
 Lellan, 3 Wood & M. 157; Jenkins v. Greenwald, 1 Bond 
 127. 
 
 00 
 
 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 reasonably be
 
 U. S. SUPREME COURT. 239 
 
 applied consistently with the local circumstances and local con- 
 venience of the district where the court is held, not as positive 
 rules, but as furnishing just analogies to regulate the practice. 
 
 Van Hook v. Pendleton. 2 Bl. C. C. 85 Hubbard v. Turner, 
 2 McLean 519; Pomeroy v. Manin, 2 Paine 476; Vattier v. 
 Hinde, 7 Pet. 253; Livingston v. Slory, 9 Pet. 032; Rhode 
 Island v. Massachusetts, 14 Pet. 210; Smith v. Burnham, 2 
 Sum. 612; Badger v. Badger. 1 Cliff. 237; Lewis v. Shain- 
 wald, 7 Saw. 403; Boyle v. Zacbarie, 6 Peters 648; Emerson 
 v. Davies, 1 Wood and M 21 ; Lorillard v. Standard Oil Co., 
 18 Blatch. 199; Goodvear v. Prov. Rub. Co., 2 Cliff. 351; U. 
 8. v. Parrott, 1 McAJl. 447; Martindale v. Waas, 11 Fed. 
 Rep. 551; U. S. Bank v. White, 8 Peters 262. 
 
 91 
 
 Whenever, under these rules, an oath is or may be required to 
 be taken, the party may, if conscientiously scrupulous of taking 
 an oath, in lieu thereof make solemn affirmation to the truth of 
 the facts stated by him. 
 
 92 
 
 In suits in equity for the foreclosure of mortgage in the circuit 
 court 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 eighth rule 
 of this court, regulating the equity practice, where the decree 
 is solely for the payment of money. 
 
 1 Wall., v. ; 2 Jones on Mortgages 574; Moore v. Shaw, 15 
 Hun N. Y. 428; Boyce's Ex'rs v. Grundy, 9 Peters 2S6; 
 Howe v. Lemon, 37 Mich. 164; White v. Zust, 28 N. J. Eq. 
 107; Lawrence v. Fellows, Walk. Ch. 468. 
 
 93 
 
 When an appeal from a final decree, in an equity suit, granting 
 or dissolving an injunction, is allowed by a justice or judge who 
 took part in the decision of the cause, he may, in his discretion, 
 at the time of such allowance, make an order suspending or mod- 
 ifying the injunction during the pendency of the appeal, upon 
 such terms as to bond- or otherwise as he may consider proper 
 for the security of the rights of the opposite party. 
 
 7 Otto, vii.; Leonard v. Ozark Land Co., 115 U. S. 465.
 
 240 GENERAL EQUITY RULES. 
 
 94 
 
 Every bill brought by one or more stockholders in a corpo- 
 ration against the corporation and other parties, founded on a 
 right which may properly be asserted by the corporation, must 
 be verified by oath, and must contain an allegation that the 
 plaintiff was a shareholder at the time of the transaction of 
 which he complains, or that his share has devolved on him since 
 by operation of law; and that the suit is not a collusive one to 
 confer on a court of the United States jurisdiction of a case of 
 which it would not otherwise have cognizance. It must also 
 set forth with particularity the efforts of the plaintiff to secure 
 such action as he desires on the part of the managing directors 
 or trustees, and, if necessary, of the shareholders, and the cause 
 of his failure to obtain such action. 
 
 14 Olio ix ; Leo v. U. P. R R. Co., 17 Fed. Hep. 373; 
 Dannineyer v. Coleman, 11 Fed. Rep. 101.
 
 RULES 
 
 OF THE 
 
 CIRCUIT COURTS OF THE UNITED STATES 
 
 FOB THE 
 
 DISTRICTS OF MICHIGAN, 
 
 IN EQUITY. 
 
 Note. — For authority of circuit courts to make rules and to regulate 
 practice in cases not provided for by General Equity Rules, see General 
 Equity Rule 89, and R. S., Sec. 918. 
 
 1 
 
 SERVICE OP COPIES. 
 
 If the defendant appears, the complainant shall serve him 
 with a copy of the bill, if required, within twenty days after 
 receiving notice of such appearance; and after such appearance, 
 the party filing any pleading or proceeding in the cause, 
 whether plaintiff or defendant, shall, at the time of filing the 
 same, serve a copy thereof on the opposite party, or his attorney. 
 
 2 
 
 SECURITY FOR COSTS. 
 
 Upon the commencement in this court, or removal thereto," of 
 any suit or proceeding in equity, there shall be paid to the 
 clerk by the party so commencing or removing such suit or pro- 
 ceeding, advance fees to the sum of five dollars. 
 
 The clerk shall require of all non-resident plaintiffs of this 
 district security for costs. The following form indorsed on the 
 writ or declaration, or upon a separate paper entitled and filed in 
 the cause, may substantially be pursued: I (A B) acknowledge 
 myself security for all costs for which the plaintiff may become 
 liable in this suit." 
 
 The surety shall be a resident of this district, unless the court 
 for sufficient cause direct the acceptance of a nonresident as such 
 surety. 
 
 16 [241]
 
 242 GENERAL EQUITY KULES. 
 
 The clerk may, in his discretion, in lieu of the written under- 
 taking above set forth, accept as such security, a money deposit 
 of fifty dollars; provided, that if at any time said deposit shall 
 appear to the clerk inadequate or insufficient security, he shall 
 require the plaintiff to either furnish the written security above 
 provided or make a further money deposit. 
 
 In cases removed from a state court the party in whose behalf 
 the case is removed, if a non-resident of the district, shall, on 
 filing a copy of the record in such suit, give security for costs in 
 like manner as is required of non residents in cases commenced 
 in this court. In default thereof it shall be competent for the 
 opposite party, upon the usual notice, if defendant, to have the 
 case dismissed, or if plaintiff, to have the same remanded. 
 
 If the plaintiff or defendant in any suit where security for 
 costs has been given, as above provided, shall fail or neglect to 
 pay any costs for which he is liable, for ten clays after the final 
 determination of the suit, or if marshal's or clerk's fees, for ten 
 days after a demand for the same by such officer, the person to 
 whom such costs are due may have judgment and execution 
 against the surety for the amount so due, upon motion filed and 
 ten days' notice thereof, in writing, to such surety. 
 
 3 
 
 ADMINISTRATION OP OATHS. 
 
 Jurats and affidavits to be used in this court may be verified 
 before the clerk of any court of record, or before any notary 
 public; provided, however, that where such clerk or notary is a 
 non resident of this district, his signature shall be attested by 
 his official seal. 
 
 Gen. Eq. Rules, 59, 91. 
 
 4 
 
 FRAME OF BILLS AND ANSWERS. 
 
 Every bill of complaint shall contain, as concisely as may be, 
 a narrative of the material facts, matters and circumstances on 
 which the complainant relies, such narrative being divided into 
 paragraphs, numbered consecutively, and each paragraph con- 
 taining, as nearly as may be, a separate and distinct matter or 
 allegation, and shall pray specifically for the relief which the 
 complainant may conceive himself entitled to, and also for gen- 
 eral relief; and the prayer shall be subdivided into paragraphs
 
 U. S. CIRCUIT COURTS. 243 
 
 numbered consecutively, each praying separate relief, following, 
 as nearly as may be, the form set forth by the English General 
 Order No. 14, Daniel. Ch. Prac, page 319. Every answer shall 
 contain not only the defendant's answer to the several paragraphs 
 of the bill, but, thereafter, such statement of his case as he may 
 deem it necessary or advisable to make; and such answer shall 
 also be divided into paragraphs, numbered consecutively, each 
 paragraph containing, as nearly as may be, a separate and dis- 
 tinct allegation; and such answer must be full and explicit and 
 distinct to each separate paragraph in the bill, in the same order 
 as numbered in the bill, before it enters upon any statement of 
 the defendant's case; and the common commencing clauses, 
 reserving exceptions, and containing protestations, and the com- 
 mon concluding clause, denying combination, and the general 
 traverse, and the common repetitions, "This defendant, further 
 answering, saith," and the like, shall be omitted. 
 
 Gen. Eq. Rules, 20, 21, 22, 23, 24, 26, 39, 41, 42, 43, 44, 
 59, 93. 
 
 5 
 FORECLOSURE BILLS. 
 
 In a bill for foreclosure or satisfaction of a mortgage, it shall 
 not be necessary or allowable to set out at length the rights and 
 interests of the several defendants who are purchasers of, or who 
 have liens on, the equity of redemption in the mortgaged 
 premises, subsequent to the registry or recording of the com- 
 plainant's mortgage, and who claim no right in opposition 
 thereto; but it shall be sufficient for the complainant, after set- 
 ting out his own right and interest in the premises, to state 
 generally that such defendants have, or claim, some interest in 
 the premises, as subsequent purchasers or incumbrancers, or 
 otherwise; and if any such defendants are, by the misstatements 
 of the complainant in his bill, or otherwise, unnecessarily com- 
 pelled to put in an answer to protect their rights, the costs 
 occasioned thereby may, in the discretion of the court, be 
 charged on the complainant personally; and if such defendants 
 unnecessarily put in answer to such bill, the extra costs occa- 
 sioned by such answer may be charged on the defendants per- 
 sonally, in the discretion of the court.
 
 244 GENERAL EQUITY RULES. 
 
 6 
 
 creditors' bills. 
 When a creditor by judgment, or decree, files a bill in this 
 court against his debtor to obtain satisfaction out of the equitable 
 interests, things in action, or other property of the latter, after 
 the return of an execution unsatisfied, he shall state in such bill 
 the true sum actually and equitably due on such judgment or 
 decree, over and above all just claims of defendant by way of 
 set-off, or otherwise. The bill shall likewise contain an allega- 
 tion that the same is not exhibited by collusion with the defend- 
 ant, or for the purpose of protecting the property or effects of 
 the debtor, against the claims of other creditors, but for the sole 
 purpose of compelling payment and satisfaction of complainant's 
 own debt. 
 
 7 
 
 VERIFICATION OF CREDITORS' BILL. 
 
 Every such creditor's bill shall be verified by the oath of the 
 complainant, or of his agent or attorney : or the material allega- 
 tions in the bill as to the recovery of the judgment or decree, 
 the return of execution unsatisfied, the amount justly due 
 thereon, and that the bill is not exhibited by collusion with the 
 defendant, but for the sole purpose of compelling payment and 
 satisfaction of the complainant's own debt, shall be established 
 by affidavit. The charging part of the bill shall not be consid- 
 ered as sworn to unless it is expressly so stated in the jurat. 
 
 Gen. Eq. Kule 95. 
 
 8 
 
 RECEIVERS IN CREDITORS' SUITS. 
 
 Every receiver of the property and effects of the debtor, 
 appointed in a suit upon a creditor's bill, shall, unless restricted 
 by the special order of the court, have general power and 
 authority to sue for and collect all the debts, demands and rents 
 belonging to such debtor, and to compromise and settle such as 
 are unsafe and of a doubtful character. He may also sue in the 
 name of the debtor where it is necessary or proper for him to do 
 so, and he may apply for and obtain an order of course that the 
 tenants of any real estate belonging to the debtor, or of which 
 he is entitled to the rents or profits, attorn to such receiver and 
 pay their reuts to him. He shall also be permitted to make 
 leases from time to time, as may be necessary, for terms not
 
 U. 8. CIRCUIT COURTS. 245 
 
 exceeding one year. And it shall be his duty, without any 
 unreasonable delay, to convert all the personal estate and effects 
 into money; but he shall not sell any real estate of the debtor, 
 without the special order of the court. He is not to be allowed 
 for the costs of any suit brought by him against an insolvent 
 from whom he is unable to collect his costs, unless such suit is 
 brought by order of the court, or by the consent of all persons 
 interested in the funds in his Lands. But he may sell such des- 
 perate debts, and all other doubtful claims to personal property, 
 at public auction, giving at least ten days' notice of the time and 
 place of such sale. 
 
 De Visser v. Blackstone, 6 Bl. C. C. 235. 
 9 
 DUTIES OP RECEIVERS. 
 
 Where several bills are riled by different creditors against the 
 same debtor, no more than one receiver of his property and 
 effects shall be appointed, unless the first appointment has been 
 obtained by fraud or collusion, or unless the receiver is an im- 
 proper person to execute the trust. The receiver shall' give 
 security sufficient to cover the whole property and effects of the 
 debtor which may come in his hands by virtue of his office; and 
 he shall hold such property and effects for the benefit of all 
 creditors who have commenced, or shall commence, similar suits 
 during the continuance of his trust, to be disposed of according 
 to their legal or equitable priorities. He shall not pay over the 
 funds in his hands to the parties, or to any other person, without 
 being specially authorized to do so by an order or decree by the 
 court; nor shall he be discharged from his trust without a special 
 order, to be obtained upon a written consent by all the parties 
 interested in the property in his hands, or upon due notice of 
 the' application. 
 
 10 
 
 INJUNCTION UPON CREDITORS' BILLS. 
 
 No injunction issued upon any such creditor's bill shall be 
 construed to prevent the debtor from receiving and applying the 
 proceeds of his subsequent earnings to the support of himself or 
 of his family, or to defray the expenses of the suit, or to prevent 
 him from complying with any orde'- of this court, made in any 
 other cause, to assign and deliver his property and effects to a
 
 246 GENERAL EQUITY KULES. 
 
 receiver; or to restrain bim from making the necessary assign- 
 ment to obtain bis discbarge under the insolvent laws, unless an 
 express provision to that effect is contained in the injunction. 
 
 11 
 
 ORDER FOR RECEIVERS. 
 
 An injunction may be allowed and a receiver appointed in any 
 stage of the cause, either on stipulation or on motion. The court 
 may appoint such receiver, or may make an order referring it to 
 a master to appoint a receiver with the usual powers, and to take 
 from him the requisite security. The order shall also direct the 
 defendant to assign, transfer, convey, and deliver over to the 
 receiver, on oath, under the direction of the master, all his 
 property, equitable interests, things in action, and effects, 
 and all notes, bonds, mortgages, deeds, books of accounts, 
 contracts, papers, evidences, and securities relating to the same; 
 and that he appear before the master from time to time, and 
 produce such books and papers, and submit to such examination, 
 on oath, as the master shall direct, in relation to any matter 
 which he might be legally required to disclose. The complain- 
 ant shall also be at liberty to examine witnesses before the mas- 
 ter as to the property of the defendant, or as to any other matter 
 charged in the bill and not admitted by the defendant. 
 
 12 
 
 DUTIES OP MASTERS AND EXAMINERS. 
 
 That such masters' and examiners in chancery as may be or 
 have been appointed by this court, shall perform all duties which, 
 according to law and the practice of courts of chancery, apper- 
 tain to the office, in all causes depending on the equity side of 
 this court; and they shall be entitled to such fees and charges 
 for their services as are prescribed by the statutes of Michigan, 
 or which may be allowed by this court. And a master or mar- 
 shal making sale under an order or decree shall be entitled to 
 commission on the proceeds thereof as follows: On the first 
 $500, two per cent. ; on the next $500, one and one-half per cent. ; 
 on the next $4,000, one per cent., and on the excess over $5,000, 
 one-half of one per cent., not exceeding in all $250. And in 
 case the master shall be required to make sale under any order 
 or decree, or examine witnesses at a place distant from his resi- 
 dence, he shall be allowed his necessary and reasonable expenses
 
 U. S. CIRCUIT COURTS. 247 
 
 incurred attending such sale or examining such witnesses, and a 
 reasonable remuneration for his time, to be fixed by the court, 
 for going to, remaining at, and returning from such place. 
 
 13 
 SERVICE ON NON-RESIDENT SOLICITORS. 
 
 In all cases where opposing solicitors reside in different towns, 
 
 cities or villages, service of notices or other papers may be made 
 
 by depositing them in the postofflce directed to the solicitor, or 
 
 party on whom service is to be made, at his place of residence, 
 
 to be ascertained according to the best information of the person 
 
 making the service. 
 
 14 
 
 WAIVER OP OATH. 
 
 The complainant may in his bill waive the necessity of defen- 
 dant's answer being put in on oath, in pursuance of section 6621 
 of Howell's Annotated Statutes of this State, and in such case 
 the answer shall have no greater force as evidence than the bill. 
 
 Baker v. Biddle, Bald. 407; Chace v. Holmes, 2 Gray 433; 
 Armstrong v. Scott, 3 Greene 433; Patterson v. Gaines, 6 
 How. 550; Clements v. Moore, 6 Wall. 314; Bronson v. 
 Green, Walk. Ch. 486. 
 
 15 
 
 PINAL RECORD AND ENROLLMENT. 
 
 A record of everj r suit finally determined in equity shall be 
 made in the manner provided by section 750 of the Revised 
 Statutes. 
 
 Upon the written request of the solicitor for either party, duly 
 filed, the clerk shall attach together the bill, pleadings and other 
 papers in the cause, with the final decree, and annex thereto his 
 certificate under the seal of the court, of the date and at whose 
 request the same was done, and file the same in his office. 
 
 R. S., sec. 750; How. Mich. Stat., sees. 6648-6649; Mar- 
 tindale v. Waas, 11 Fed. Rep. 551 ; Steam Stone Cutter Co. 
 v. Jones, 13 Fed. Rep. 567. 
 
 16 
 
 DECREES PRO CONPESSO. 
 
 When the defendant having been served with process, as pro- 
 vided by the 15th Gen. Eq. rule, does not appear as required by 
 the 17th Gen. Eq. rule, a decree pro confesso under the 18th 
 Gen. Eq. rule may be entered against him.
 
 248 GENERAL EQUITY RULES. 
 
 17 
 NOTICES OP MOTIONS. 
 
 Like notice shall be given of the argument of special motions, 
 as is required by the rules of this court, in cases of law, and 
 such notice shall be addressed and served in the manner pre- 
 scribed in these rules. 
 
 Law Rules, 2, 7. 
 
 18 
 
 NOTICES OF HEARING. 
 
 A notice of hearing of every case of issue upon pleadings and 
 proofs shall be given at least ten days before the first day of the 
 term, and a note of issue of every such case shall at the same 
 time be filed with the clerk; provided, that where the time for 
 taking proofs in any case shall expire after the first day of the 
 term, or within ten days before said first day, such case may be 
 noticed for hearing during the term; and after the lapse of ten 
 days from the giving of such notice, on filing due proof of ser- 
 vice of notice, such case shall be placed by the clerk on the 
 chancery docket for the term, at the foot of the docket, and shall 
 stand for hearing at any time before said docket shall have been 
 finally called and disposed of. Issues of law may be called up 
 at any time upon five days' notice. 
 
 19 
 PRINTING RECORDS. 
 
 Any judge holding the circuit court may, upon the application 
 of either party, or upon his own motion, enter an order in any 
 case in equity standing for final hearing in said court upon plead- 
 ings and proofs, requiring the pleadings and proofs in such case, 
 or the material portion thereof, to be printed, and thereupon 
 each party shall cause to be printed all the pleadings of, and 
 proofs taken by, such party in such cause, or the material por- 
 tion thereof, and shall deliver Ihree printed copies of such plead- 
 ings and proofs to the opposite party at least eight days before 
 the hearing of such cause, and three copies to the clerk on the 
 hearing for the use of the court. 
 
 The order provided for by this rule may be entered as of course 
 by the clerk upon filing the written consent of the solicitors for 
 all parties thereto. 
 
 A party recovering costs shall be entitled to tax against the
 
 U. S. CIRCUIT COURTS. 249 
 
 opposite party his actual disbursements for all printing required 
 to be done by him under this rule. 
 
 20 
 
 GENERAL RULE FOR THE HEARING AND ARGUMENT OF CASES. 
 
 Preparatory to the argument of a case other than in jur}' trials, 
 counsel for the respective parties are required to furnish to the 
 court, printed, or plainly written, and in the order following: 
 
 1. The legal questions of the cuse. 
 
 2. The nature of the case, briefly stated. 
 
 8. The relevant and material facts, in numbered paragraphs, 
 together with the points made, and the authorities cited in sup- 
 port of them arranged under the respective points. 
 
 4. Abstracts of pleadings and proofs, so far as material and 
 relevant, preserving the numbering of the para-graphs of the 
 pleadings, and folioing the proofs. 
 
 It will greatly facilitate the argument of the legal propositions 
 of a case if counsel, before citing authorities, will first state legal 
 propositions insisted upon; then give the authority; next state 
 the point decided in the cited case, and then the facts upon 
 which the ruling is based. Finally read only the language of 
 the court in deciding the point; when more is desired the court 
 will indicate it. 
 
 Abstracts of the material testimony generally give all that is 
 necessary to an understanding of the case upon the facts. The 
 original testimony can be read from when essential to a proper 
 understanding of it, or where the accuracy of the abstract i& 
 questioned. 
 
 21 
 
 VERIFICATION OF BILLS. 
 
 That bills in equity may be verified by the agent or solicitor 
 for the complainant: 
 
 1. When the party is at the time absent from the district. 
 
 2. When the facts are within the personal knowledge of the 
 agent or solicitor.
 
 INDEX TO EQUITY RULES. 
 
 (C. C, Circuit Court.) 
 
 Abatement, Rule 
 
 in case of, bill of revivor may 
 
 be filed 56 
 
 Account, 
 
 decree for, what to contain 73 
 
 examination of party account- 
 ing 79 
 
 Admissions, 
 
 by failure to deny 38 
 
 Advance Fees, 
 
 to be paid to clerk C. C. 2 
 
 Affidavit, 
 
 for writ of attachment 5 
 
 to set aside decree by default. . 19 
 
 to plea or demurrer 31 
 
 when may be used before mas- 
 ter 80 
 
 Affirmation, 
 verification of pleadings by, in- 
 stead of oath 91 
 
 Agknt, 
 when bill may be verified by, 
 
 C. C. 21, 95 
 Amendment, 
 
 of bill, when allowed 28-30 
 
 by order of court 29 
 
 when to be deemed waived 30 
 
 upon order sustaining plea or 
 
 demurrer 35 
 
 after answer filed 45 
 
 adding new parties 52 
 
 of answer, when allowed .... 60 
 
 upon exceptions filed 63 
 
 of decree 85 
 
 to rules of Circuit Court 89 
 
 Answer, 
 
 when to be filed 18 
 
 motion to enlarge time for 19 
 
 copy of, to be served on plain- 
 tiff C. C. 1 
 
 attachment to compel 18-64 
 
 pro confess-o for want of . . . 18, 19, 34 
 
 waiver, of sworn C. C. 14 
 
 rule that defendant shall an- 
 swer fully, when not to apply, 39 
 matters in bar or on the merits 
 which ought to be taken ad- 
 vantage of by plea, defendant 
 
 may answer to 39 
 
 interrogatories to be answered, 
 
 to be noted in bill 41, 42 
 
 what interrogatories defendant 
 
 may decline to answer 44 
 
 new or supplemental when 46 
 
 [250] 
 
 Answer— Continued. Rule 
 
 suggestion of defect of parties 
 
 by 52 
 
 effect of omission to set down 
 
 objection for argument 52 
 
 court at liberty to dismiss bill.. 52 
 
 before whom to be sworn 59 
 
 amendment of, when allowed . 60 
 exceptions to, and proceedings 
 
 thereon 61-65 
 
 reference to master for scan- 
 dal, etc 27 
 
 to te deemed sufficient unless 
 
 excepted to. 61. 63, 66 
 
 amendment of, upon excep- 
 tions filed 63 
 
 frame of C. C. 4 
 
 to be divided into paragraphs, 
 
 CO. 4 
 upon overruling of plea or de- 
 murrer 34 
 
 separate, costs t hereon.. C. C. 5 62 
 
 taxable costs for 25 
 
 new or supplemental, after 
 
 amended bill 46 
 
 remedy of plaintiff on default, 64 
 objection to bill as defective for 
 
 want of parties 52 
 
 special replications to, not ne- 
 cessary .... 45 
 
 to original bill to be filed before 
 
 answer to cross bill 71-72 
 
 Appearance, 
 when and how to be entered. . . 17 
 memorandum of subpoena for 
 defendant to enter. . . ... 12 
 
 wh^n party need not appear. . . 54 
 
 injunction on failure of 55 
 
 Appeal, 
 injunction may be suspended 
 
 or modified 93 
 
 Argument, 
 
 on plea 33 
 
 on objection for want of parties 52 
 
 printed, how prepared C. C. 20 
 
 Arrest. 
 
 of defendant on default. 18 
 
 Assistance, 
 
 writ of, to enforce decree 7-9 
 
 Attachment. 
 
 to enforce decree 7-8 
 
 to compel answer 18 
 
 to compel further answer 64 
 
 to collect master's fees 82
 
 [JNDEX TO EQUITY RULES. 
 
 251 
 
 Attorney and Counsel, Rule 
 
 signature to bill 24 
 
 Bill, 
 court always open for filing: of, 1 
 must be filed before subpoena 
 
 issues 11 
 
 upon filing of, process to issue 
 
 as of course 12 
 
 frame of S- C. 20-25; C. C. 4 
 
 to be divided iuto paragraphs. . 4 
 
 when taken pro confesso 18 
 
 decree on default 19 
 
 introductory part what to state 20 
 confederacy and jurisdiction 
 clauses and charging part 
 
 may be omitted 21 
 
 may waive necessity of answer 
 
 under oath 0. C. 14 
 
 stating part, rule in regard to. . 21 
 
 prayer, form of 21 
 
 injunction and ne exeat regno 
 
 to be specially prayed f ><r . . . 21 
 as to parties on' of jurisdiction, 22 
 but need not be repeated in 
 
 prayer for process 23 
 
 to have signature of counsel. . . 24 
 to state reasons when necessary 
 
 persons not made parties 22 
 
 prayer of, in last case 22 
 
 prayer for process, what to 
 
 state 23 
 
 verification of, when party ab- 
 sent from district C C. 21 
 
 when the facts within 
 knowledge of agent or 
 
 solicitor C. C. 21 
 
 when may be verified by solici- 
 tor or agent 95 
 
 interrogatories, how divided 
 
 and numbered 41 
 
 form of last interrogatory 71 
 
 interrogatories to be auswered, 
 
 to be noted 41, 42 
 
 introduction to interrogatory 
 
 part of 43 
 
 taken pro confesso 18, 19. 64 
 
 exceptions to 26,27 
 
 reference to master upon ex- 
 
 ceptioi s 26 
 
 amendment of, when allowed .28-30 
 amendments by leave of c<>urt, 29 
 taken pro confesso on demur- 
 rer overruled 34 
 
 after answer filed 44 
 
 upon sustaining plea or demur- 
 rer 35 
 
 parties to (see parties) 47-53 
 
 trustees, etc., as parties 49 
 
 heir, when necessary party.... 50 
 
 joint dehti -rs as parties 51 
 
 nominal parties to 54 
 
 objection to, as defective for 
 
 want of parties 52, 53 
 
 dismissal of, as defective for 
 want of parties 52 
 
 | Bill— Continued. Rule 
 I dismissal of, for want of repli- 
 cation 66 
 
 for not replying to plea, etc, 38 
 
 of revivor 56-58 
 
 supplemental 57, 58 
 
 cross 72 
 
 for foreclosure of mortgage, 92; 
 
 C. C. 5 
 creditors (see creditors' 1 bill) . . 
 
 C. C. 6-8 
 copy of, to be served on de- 
 fendant appearing. C. C 1 
 
 taxable costs for 15 
 
 by stockholders in corporation, 94 
 
 what to contain 94 
 
 Certificate of Counsel, 
 
 to bill 24 
 
 to plea or demur er 31 
 
 Cestuis Qua Trust, 
 
 when to be made parties. . . 49 
 
 Chambers, 
 
 powers of judge at 3 
 
 Charging Part, 
 
 may be omitted in bill 21 
 
 Circuit Court, 
 
 when open 1 
 
 may appoint standing masters, 82 
 
 \ compensation of master 82 
 
 may make rules 89 
 
 Circuit Judges, 
 may make orders in vacation. . 3 
 ! may abridge time for notices. . 4 
 ' Citizenship. 
 
 j of parties to be stated in intro- 
 ductory part of bill 20 
 
 Clerk, 
 to be in his office on rule days, 
 
 etc 2 
 
 to enter motions, rules and 
 
 orders 4 
 
 what motions and orders grant- ■ 
 
 able by 5 
 
 duty when papers in foreign 
 
 language 11 
 
 te enter appearance of defend- 
 ant 17 
 
 when to name commissioners. . 67 
 to is^ue blank subpcen;is to 
 
 master 78 
 
 may charge advance fee. .C. C. 2 
 may take money deposit in lieu 
 
 of written security C. C. 2 
 
 may have judgment and execu- 
 tion for costs C. C. 2 
 
 shall make final record. C. C. 15 
 Clerk's Office, 
 
 to be open on rule days 2 
 
 authority of judge to grant mo- 
 tions at 3 
 
 motions made at, to be entered 
 
 in order book 4 
 
 Commissions, 
 
 to take testimony 67 
 
 who to name commissioners. . . 67
 
 252 
 
 INDEX TO EQUITY RULES. 
 
 Commissions— Continued. Rule 
 
 publications of testimony taken 
 
 by • 67 
 
 to take testimony de bene esse, 7o 
 Commissioners, 
 
 by whom appointed 67 
 
 transmission of depositions ... 67 
 
 clerk to issue subpoenas for 78 
 
 compensation of masters 82 
 
 compulsory process 7 
 
 Confederacy Clause, 
 
 may be omitted in bill 21 
 
 Copies, 
 of pleadings to be served on op- 
 posite party. C. C. 1 
 
 of amended bill to be served on 
 
 defendant 28 
 
 Corporation, 
 bill by stockholders, what to 
 
 contain 94 
 
 Costs, 
 
 security for C. C. 2 
 
 money deposit for C. C. 2 
 
 clerk and marshal may have 
 
 execution for C. C. 2 
 
 proceeding on failure to give 
 
 security C. C. 2 
 
 for printing C. O. 21 
 
 upon setting aside pro confesso 18 
 
 taxable for bill and answer 25 
 
 to nominal defendant, com- 
 pelled to answer 54 
 
 to defendant upon sustaining 
 
 exceptions to bill 26 
 
 to plaintiff upon overruling ex- 
 ceptions to bill. . ". 26 
 
 to plaintiff upon overruling 
 
 plea or demurrer 34 
 
 to defendant upon sustaining 
 
 plea or demurrer 35 
 
 on amendment of bill 45 
 
 when same solicitor appears for 
 
 several defendants 63 
 
 upon overruling exceptions to 
 
 answers 66 
 
 on neglect to present reference 
 
 to master 74 
 
 upon overruling exceptions to 
 
 master's report 84 
 
 Counsel, 
 
 bill to have signature of 24 
 
 certificate of, to plea or demur- 
 rer 31 
 
 Courts, 
 always open for filing plead- 
 ings, etc 1 
 
 Creditors' Bill, 
 
 what to state C. C. 6, 7 
 
 to be verified by oath C. C. 7 
 
 rights and duties of receiver 
 
 on ('. C. 8, 9 
 
 injunction, effect of C. CIO, 11 
 
 Cross Bill, 
 proceedings upon 72 
 
 Cross Bill— Continued. Rule 
 -before plaintiff to answer, de- 
 fendant to original bill to an- 
 swer 72 
 
 Death of a Pariy, 
 
 bill of revivor may be filed 56 
 
 De Bfne Esse, 
 
 taking of testimony 70 
 
 Df.crek, 
 
 form of 86 
 
 clerical mistakes.how remedied 85 
 for specific performance', what 
 
 to state 8 
 
 how enforced 8 
 
 for payment of money, how en- 
 forced 8 
 
 for delivery of possession, how 
 
 enforced . 9 
 
 pro confesso 18: C. C. 16 
 
 when absolute 19 
 
 motion to set aside terms of... 19 
 not to prejudice persons not 
 
 parties 47, 48 
 
 saving rights of absent parties. 53 
 for accounting to contain order 
 
 of reference 73 
 
 correction of clerical mistakes, 85 
 
 what not to contain 86 
 
 form of introductory part 86 
 
 in foreclosure suits 92 
 
 final record C. C. 15 
 
 enrollment of C. C. 15 
 
 Deeds, 
 when deemed admitted by con- 
 sent 13 
 
 Default, 
 effect of failure to appear and 
 
 answer 18 
 
 failure to reply to plea in abate- 
 ment 38 
 
 of failure to answer . upple- 
 
 mental bill 46 
 
 effect of on prayer for injunc- 
 tion 55 
 
 Demurrer, 
 
 time for filing 18,32 
 
 to bill, to have certificate of 
 counsel, and affidavit at- 
 tached 31 
 
 may be to part or whole bill ... 32 
 setting down of, for argument, 33 
 if overruled, plaintiff to answer, 34 
 
 costs upon overruling of 34 
 
 amendment of bill upon order 
 
 sustaining . . 35 
 
 costs upon order sustaining 35 
 
 good though not covering all of 
 
 bill subject to 36 
 
 good though answer covers 
 
 same matter 37 
 
 when truth of admitted 38 
 
 interrogatories subject to, need 
 
 not be answered 44 
 
 to supplemental bill 57 
 
 how authenticated 67
 
 INDEX TO EQUITY KULES. 
 
 253 
 
 Deposition, Rule 
 
 taking of testimony by 68 
 
 de bene esse 70 
 
 what used before master 80 
 
 Dismissal, 
 for omission to reply to plea. . . 38 
 of bill for want of proper par- 
 ties 52 
 
 for want of replication. . . 66 
 for want of security for 
 
 costs C. C. 2 
 
 Discovery, 
 cross bill for, need not be an- 
 swered before defendant an- 
 swers original bill 72 
 
 Docket, 
 
 when cases to be placed on 18 
 
 Enrollment, 
 
 of decrees and proceedings, C.C. 15 
 Evidencr, 
 deeds, when deemed admitted 
 
 by consent 13 
 
 answer when not 41 
 
 testimony, how taken 67 
 
 what admitted before master. . 80 
 
 how taken 81 
 
 Examination, 
 
 of party as to accounts 79 
 
 of creditor or claimant, 81 
 
 Examiners, 
 duties and compensation of, 
 
 C. C. 12 
 
 taking testimony before 66 
 
 evidence to be taken before 67 
 
 Exception, 
 
 to bills for scandal, etc 26, 27 
 
 when to be filed 27 
 
 to be in writing, and s gned by 
 
 counsel 27 
 
 when deemed sufficient 27 
 
 to answer for insufficiency 61, 66 
 
 when to be filed 61 
 
 to answer, court may enlarge 
 
 time for 63 
 
 unless made, answer suffi- 
 cient 61 
 
 when to be set down for 
 
 hearing... 63 
 
 when to be deemed aban- 
 doned 63 
 
 if allowed, proceedings 
 
 thereon 64 
 
 if overruled, proceedings 
 
 thereon 65 
 
 to master's report C. C.83, 84 
 
 Execution, 
 
 final process by 8 
 
 in foreclosure suits 92 
 
 Fees, 
 of masters and examiners, 82; 
 
 C. C. 12 
 clerk may charge advance fees, 
 
 C.C. 2 
 clerk may have execution for, 
 
 C. C. 2 
 
 Fees— Continued. Rule 
 
 marshal may have execution 
 for C.C. 2 
 
 Final Record C. C. 15 
 
 Foreclosure Suits, 
 
 decree in . 92 
 
 bill in, what to state C. C. 5 
 
 Form, 
 of bill in equity 20 
 
 Guardian Ad Liteu, 
 appointment of 87 
 
 Hearing, 
 
 notice of C. C. 18 
 
 of cases, rule for <J. C. 20 
 
 Heir, 
 when to be made party in suits 
 to execute trusts of will etc.. 50 
 
 Impertinence, 
 exception to bill for 26, 27 
 
 Infant, 
 prayer for process to specify if 
 
 defendant is 23 
 
 appointment of guardian ad 
 litem 87 
 
 Injunction, 
 
 to be specially prayed for 21, 23 
 
 to stay proceedings at law 55 
 
 special, grantabie only on mo- 
 tion 55 
 
 how long to continue in force.. 55 
 pending appeal may be sus- 
 pended or modified 98 
 
 upon creditors' bill C.C. 11 
 
 effect of C. C. 10 
 
 Interlocutory Orders, 
 by judge at chambers 3 
 
 Interrogatories. 
 not necessary unless complain- 
 ant seeks recovery 40 
 
 in bill, division and numbering 
 
 of 41 
 
 firm of last 71 
 
 those to be answered, to be 
 
 noted in bill 41, 42 
 
 introduction to 43 
 
 what need not be answered 44 
 
 depositions on written 67 
 
 Issue of Law, 
 how may be called up C. C. 18 
 
 Issue, 
 
 when suit to be deemed at 66 
 
 note of C. C. 18 
 
 Judge, 
 
 powers of at chambers 3 
 
 single 3 
 
 Jurats, 
 how verified C.C. 3 
 
 Jurisdiction, 
 clause of bill may be omitted. . 21 
 prayer when parties out of 22 
 
 Law, 
 injunction to stay proceedings 
 at 56 
 
 Mail, 
 service of paper by C.C. 13
 
 254 
 
 INDEX TO EQUITY KULES. 
 
 Marshal, Rule 
 
 process to be served by 15 
 
 may have execution lor fees, 
 
 C. C. 2 
 Masters in Chancery, 
 appointment an^ compensa- 
 tion 82; C. C. 12 
 
 reference to, upon exceptions 
 
 for scandal, etc 26, 27 
 
 to ascertain necessity of separ- 
 ate answers 62 
 
 for accounting of estates 73 
 
 when reference to be laid before 74 
 duty of on order of reference . . 75 
 proceedings before, upon refer- 
 ence 73,77 
 
 report of 76 
 
 how witnesses compelled to at- 
 tend before 78 
 
 accountants, how examined. . . 79 
 answers may be sworn to be- 
 fore 59 
 
 evidence used in court may be 
 
 used before 80 
 
 evidence before to be taken 
 
 down 81 
 
 appointment of standing mas- 
 ters 82 
 
 exceptions to report of 83 
 
 costs on exceptions overruled, 84 
 Memorandum, 
 
 at foot of subpoena 12 
 
 Mesne Process (see Process). 
 Minors 
 prayer for process to state if 
 
 defendants are 23 
 
 guardians ad litem for 87 
 
 Mistakes, 
 
 Cierical in decrees corrected ... 85 
 Mortgage, 
 
 bdl for foreclosure of C. C. 5 
 
 decree in suits for f oreclo.^ure 
 
 of 92 
 
 Motion Book (see Order Book). 
 
 Motions 1-4 
 
 before judge at chambers, no- 
 tice of 3 
 
 to be entered in order book 4, 6 
 
 what, grantable of course 5 
 
 proceedings when not grantable 
 
 of course 6 
 
 to be heard ex parte when no 
 
 appearance 6 
 
 for further time to answer 19 
 
 for leave to amend bill 29 
 
 answer 60 
 
 for injunction 55 
 
 notice of, in vacation C. C. 3 
 
 Ne Exeat Regno, 
 
 to be specially prayed for 21, 93 
 
 Nominal Parties, 
 
 to bill 54 
 
 jjon-Rksidents, 
 
 solicitors, how served C. C. 13 
 
 to give security for costs, C. C. 2 
 
 Non-Residents— Continued. Rule 
 clerk or notary must affix offi- 
 cial seal C. C. 3 
 
 Note, 
 in bill specifying interrogato- 
 ries to be answered 41 
 
 to be considered part of bill 42 
 
 Notices, 
 
 of motions C. C. 17 
 
 in vacation 3 
 
 of hearing C. C. 18 
 
 to solicitors, when to be deemed 
 
 notice to parties 4 
 
 of motions before judge at 
 
 chambers 3 
 
 when entry in order book suffi- 
 cient 4 
 
 when time may be abridged ... 4 
 
 of motion to amend bill 29 
 
 amend answer 60 
 
 of application for injunction ... 55 
 of taking testimony before ex- 
 aminers 67 
 
 to rile cross interrogatories ... 67 
 of taking testimony before 
 
 commissioners 68 
 
 of publication of testimony 69 
 
 of taking testimony de bene ess© 70 
 
 of proceedings before master. . 75 
 Oath, 
 
 who may administer C. C. 3 
 
 to answers, who may take 59 
 
 waiver of answer under. . .C. C. 14 
 
 affirmation equivalent to 91 
 
 Objection, 
 to bill as defective for want of 
 
 parties 52, 3 
 
 setting down of, for argument, 52 
 Order Book, 
 
 motions, etc , to be entered in, 4 
 
 to be kept open for inspection, 4 
 
 entry in, when notice 4 
 
 appearance to be entered in. . . 17 
 order pro conf esso to be entered 
 
 in..:. 18 
 
 Orders, 
 interlocutory, by judge at 
 
 chambers 3 
 
 circuit court always open for. . 1 
 
 office of clerk always open for, 2 
 
 entry and notice of 4 
 
 of course on default 18 
 
 for amendment abandoned 30 
 
 to take tesiimony in vacation . . 67 
 Paragraphs, 
 bill and answer to be divided 
 
 into C.C. 4 
 
 Parties 47, 53 
 
 how affected by process 10 
 
 to be stated in introductory part 
 
 of bill, state reasons 20 
 
 form of prayer when out of ju- 
 risdiction ' 22 
 
 defendants to be named in 
 
 prayer for process 23
 
 INDEX TO KQUITY RULES. 
 
 255 
 
 Parties— Continued. Rule 
 
 proper persons not made, when 
 
 ca u e to proceed without 47 
 
 decree in above case 47 
 
 when very numerous, proceed- 
 ings . . 48 
 
 cestuis que trust, when to be 
 
 made 49 
 
 when heir to be, in suit to exe- 
 cute trusts of a will 50 
 
 defendant, upon joint and sev- 
 eral demand 51 
 
 objection to bill as defective for 
 
 want of 52, 53 
 
 nominal 54 
 
 bill of revivor on death of 56 
 
 change of interest of 57 
 
 examination before master as 
 
 to account 79 
 
 Petition, 
 
 for rehearing 88 
 
 Plea, 
 
 time for filing 18, 32 
 
 to have certificate of counsel 
 
 and affidavit 31 
 
 may be to part or whole bill ... 32 
 to fact alleging fraud, to be ac- 
 companied by answer deny- 
 ing fraud 32 
 
 plaintiff may set down for ar- 
 gument or take issue 33 
 
 if overruled, defendant to an- 
 swer bill 34 
 
 costs on overruling of 34 
 
 amendment of bill on order sus- 
 taining 35 
 
 costs on order sustaining 35 
 
 good, though not covering all 
 
 of bill subject to 36 
 
 good, though answer covers 
 
 same ground 37 
 
 when truth of, deemed admit- 
 ted 38 
 
 when defendant may protect 
 
 himself by 39 
 
 to supplemental bill 57 
 
 Pleadings, 
 court always open for filing of, 1, 5 
 copies to be served on opposite 
 
 parties > C. C. 1 
 
 Practice, 
 when English chancery rules 
 
 to govern 90 
 
 regulation of 89 
 
 Prayer in Bill 21 
 
 for process 23 
 
 Proceedings, 
 
 regulation of, by circuit court, 89 
 Printing, 
 what for hearing and argu- 
 ment C. C. 20 
 
 what for record C. C. 19 
 
 copies to be furnished C. C. 19 
 
 costs for C. C. 19 
 
 order for C. C. 19 
 
 Process, Rule 
 
 mesne, grantable of course 5 
 
 what constitutes 7 
 
 final what 8 
 
 writ of assistance when 9 
 
 parties how affected by 10 
 
 not to issue before bill filed, 11 
 
 when returnable 12 
 
 separate writs, when 12 
 
 service, how made 13 
 
 alias subpoena, when 14 
 
 by whom to be served 15 
 
 to make parties to bill 22 
 
 prayer for, what to state. . . 23 
 
 final, forms of 78 
 
 courts always open for issuing 
 
 of 1 
 
 in favor of or against third per- 
 sons 10 
 
 rules and regulations for 89 
 
 Prochein Amis, 
 
 suits by 87 
 
 Pro Confesso, 
 
 and proceedings thereon 18, 19 
 
 C. C. 10 
 on failure to put in answer to 
 
 amended bill 46 
 
 Publication, 
 of testimony, when and how 
 
 made 69 
 
 Receivers, 
 on creditor's bills, rights and 
 
 duties of CO. 8, 9 
 
 may be appointed at any stage 
 
 of suit CO. 11 
 
 Record, 
 
 final C. C. 15 
 
 Reference, 
 
 of account of personal estate . . 73 
 
 when to be laid before master, 74 
 
 duty of master as to 75 
 
 report, what it need not contain 76 
 
 proceedings before master 77 
 
 witnesses, how summoned 78 
 
 account, production of 79 
 
 examiination of party 79 
 
 affidavits, etc., what used 80 
 
 examination of creditor and 
 
 claimant 81 
 
 appointment and compensation 
 
 of master 82 
 
 exceptions to report of master, 83 
 
 costs on exceptions overruled, 84 
 Rhference to Master, 
 upon exceptions for scandal, 
 
 etc 26,27 
 
 to ascertain if separate an- 
 swers necessary 62 
 
 Rehearing, 
 
 petition for, form of 88 
 
 when will be granted 88 
 
 Replication, 
 
 special not necessary 45 
 
 amendment of answer before 
 
 and after 60
 
 256 
 
 INDEX TO EQUITY RULES. 
 
 Replication— Continued. Rule 
 
 when to be filed 66 
 
 proceedings on failure of 66 
 
 Report, 
 
 of master 76 
 
 exceptions to 83, 84 
 
 not to be recited in decree 86 
 
 master may not retain for his 
 fees 82 
 
 Rbturn Day, 
 of subpcena 12 
 
 Revivor, 
 bill of 56,58 
 
 Rule Days, 
 
 what to be 2 
 
 powers of judges on 3 
 
 Rules, 
 power of Circuit Courts to make 
 
 further 89 
 
 when not applicable, English 
 
 Chancery Rules to govern 90 
 
 when to take effect 92 
 
 Scandal, 
 exceptions to bill for 26, 27 
 
 Seal, 
 non-resident clerk or notary 
 must affix C. C. 3 
 
 Security for Costs, 
 
 when required C. C. 2 
 
 form of C. C. 2 
 
 Sequestration, 
 writ to enforce decree 7, 8 
 
 Service, 
 
 of subpcena, how made 13 
 
 of copies of pleadings required, 
 
 C. C. 1 
 
 of papers by mail C. C. 13 
 
 of process, by whom to be made 15 
 to be docketed when made 16 
 
 Signature of Counsel, 
 to bill. . 24 
 
 Solicitor, 
 when bill may be verified by, 
 
 C C.21, 95 
 notice to. notice to parties 4 
 
 Specific Performance, 
 
 decree for, what to state 8 
 
 how executed 8 
 
 Subpcena, 
 to be mesne process in all suits, 7 
 issuable as of course upon bill 
 filed 12 
 
 Subpcena— Continued. Rule 
 
 not lo issue until bill filed 11 
 
 return day of 12 
 
 memorandum on . 12 
 
 when more than one defendant, 12 
 
 how served 18 
 
 alias served 14 
 
 who may serve 15 
 
 upon bill of revivor 56 
 
 ad. tes. before master, commis- 
 sioner or examiner 78 
 
 Supplemental Bill, 
 
 when proper 57 
 
 when not necessary in 58 
 
 Stockholders in Corporation, 
 bill, what to contain 94 
 
 Testimony, 
 
 commission to take 67 
 
 taking of, by oral interrogato- 
 ries, before examiner 67 
 
 taking of by deposition 68 
 
 time allowed for taking 67-69 
 
 publication of 69 
 
 de bene esse, taking of 70 
 
 form of last interrogatory 71 
 
 Third Persons, 
 
 process for or against 10 
 
 not parties, decree not preju- 
 dice 47-48 
 
 Trusts, 
 of will, suit to execute 50 
 
 Trustees, 
 when to sue alone, and when 
 cestuis que use to be joined. . 49 
 
 Vacation, 
 powers of judges in 3 
 
 Verification, 
 of answers, before whom to be 
 
 made 59 
 
 of bills, by agent or solicitor, 
 
 C. C 21 
 
 Will, 
 suit to execute trusts of 50 
 
 Witnesses, 
 how attendance compelled be- 
 fore examiners 67 
 
 before masters, commissioners 
 or examiners 78 
 
 Writ, 
 
 of assistance 9 
 
 of sequestration 8
 
 STATE OF MICHIGAN. 
 
 RULES OF THE CIRCUIT COURTS. 
 
 IN CHANCERY. 
 
 AGENTS, THEIR APPOINTMENT AND LIST. 
 
 Rule 1. Every solicitor shall have an agent at the county- 
 seat in each county of this state where a circuit court is estab- 
 lished, except in the county where such solicitor keeps his office. 
 The register, deputy register and practicing solicitors, or any 
 other person specially authorized by the court, may be such 
 agents; but the agent must have an office or a regular and known 
 place of business within two miles of the register's office, in the 
 city or town for which he is appointed agent. The appointment 
 of an agent shall be in writing, signed by the solicitor, and 
 specifying his place of residence. It shall be filed with the reg- 
 ister at the place for which the appointment is made, who shall 
 keep in his office a list of such agents, with the names and resi- 
 dence of the solicitors appointing them. 
 
 SERVICE ON AGENT, OR BY MAIL — NOTICE OP FILING PAPERS — 
 
 NOTICE NOT NECESSARY WHEN DEFENDANT 
 
 HAS NOT APPEARED. 
 
 Rule 2. When the solicitors for adverse parties do not reside 
 in the same city, village or township, service of papers contem- 
 plated by these rules may be made on an agent ; but if there be 
 no such agent, such service must be made by mail, post- 
 paid. Notice of the filing of all pleadings shall be given to the 
 adverse party, except when otherwise provided by these rules, 
 within the time limited for filing the same. But no service of 
 notice in the ordinary proceedings in a cause shall be necessary 
 to be made on a defendant who has not appeared therein. — As 
 amended October 30, 187 If. 
 
 5 Mich. 215; 33 Mich. 298; 11 Mich. 344: 12 Mich. 427; 
 22 Mich. 212; 26 Mich. 390; 38 Mich. 132. See H. 8. ^§6636- 
 6638. 
 
 17 [257|
 
 258 MICHIGAN CHANCERY RULES. 
 
 DOUBLE TIME WHEN SELIVICE ON AGENT — HOW PAPERS SERVED 
 ON SOLICITORS AND AGENTS. 
 
 Rule 3. When the service is on an agent, or by putting in 
 the postoffice for want of an agent, it must be double the time of 
 service which would be requisite if the service was on the solic- 
 itor in person. And if the solicitor resides more than one hun- 
 dred miles from the agent or office where the service is made, 
 the time of such service shall in no case be less than fifteen days. 
 Notices and other papers may, in absence of a solicitor or agent 
 from his office, be served by leaving the same with his clerk or 
 law partner in such office, or with a person having charge 
 thereof; and if no person is found in the office, by leaving the 
 same, between the hours of six in the morning and nine in the 
 evening, in a suitable and conspicuous place in such office; or if 
 the office be not open so as to admit of service therein, then by 
 leaving the same at the residence of the solicitor or agent, with 
 some person of suitable age and discretion. 
 5 Mich. 215. 
 
 ADDRESS OF BILLS AND PETITIONS — CAPTION OF DECREES AND 
 ORDERS. 
 
 Rule 4. All bills and petitions hereafter to be filed in any 
 of the circuit courts, shall be addressed: " To the Circuit Court 
 
 for the County of , in Chancery;" and the caption of 
 
 decrees shall be as follows, viz. : " State of Michigan, The Cir- 
 cuit Court for the County of , in chancery. At a session 
 
 of said Court, held at , on the day of , in the 
 
 year one thousand eight hundred and . 
 
 "Present — Hon. , 
 
 Circuit Judge. 
 
 The caption of orders made by circuit court commissioners 
 shall be as follows: 
 
 "State of Michigan, Judicial Circuit, in Chancery. 
 
 Suit pending in the Circuit Court for the County of , in 
 
 Chancery; at , on the day of , A. D. 18 — . 
 
 " It is ordered," etc. 
 
 51 Mich. 623; National Bank v. Byles, 67 Mich.— (Oct. 20, 
 87), 45 Mich. 394. 
 
 MOTIONS TO BE MADE ON DAY FOR WHICH NOTICED— CONTINU- 
 ANCE OF MOTIONS. 
 
 Rule 5. In all cases, motions shall be made and petitions
 
 MICHIGAN CHANCERY RULES. 259 
 
 presented on the day for which they are noticed, if the party has 
 an opportunity to be heard on that day, unless the court (or cir- 
 cuit court commissioner, in a matter pending before him) shall 
 otherwise direct. And if there is not sufficient time to finish the 
 business noticed for any day, it may be continued from day to 
 day until it is completed; or it may be adjourned to some subse- 
 quent day. And motions made for a day in term, and which can 
 not be heard on the da}' for which they are noticed, shall stand 
 continued from day to day without any special continuance. 
 
 Walk.Ch. 309; Har. Ch. 19; Har. Ch. 258; 19 Mich. 157; 
 47 Mich. 177. See H. S. §§6603-6610-6627. 
 
 BECUKIT.Y FOR COSTS BY NONRESIDENT — RESIDENTS MAY BE 
 REQUIRED TO GIVE. 
 
 Rule 6. In all cases where the complainant or complainauts 
 are not residents of this state, before process shall issue, a bond 
 in the penal sum of one hundred dollars shall be filed with the 
 register, to be approved of by him, conditioned to pay all such 
 costs as shall be decreed against the complainant in such case; 
 and the court or a circuit court commissioner may, upon motion , 
 upon sufficient cause shown, require a new bond to be filed, in 
 the same or an additional amount; and may also require security 
 where complainants are residents of this state, if the justice of 
 the case demand it. 
 
 BY WHOM BILLS MAY BE VERIFIED. 
 
 Rule 7. Sworn bills may be verified by the oath of the com- 
 plainant, or in case of his absence from the state, or other suffi- 
 cient cause shown, by the oath of his agent, attorney or solicitor. 
 Walk. Ch. 5. 
 
 MANNER OF VERIFYING BILLS, ETC. 
 
 ItuLii 8. In bills, answers and petitions which are to be veri- 
 fied by the oath of the party, the several matters stated, charged, 
 averred, admitted, or denied, shall be stated positively, or upon 
 information and belief only, according to the fact. The oath 
 administered to the party shall be, in substance, that he has read 
 the bill, answer or petition, or has heard it read, aud knows the 
 contents thereof, and that the same is true of his own knowledge, 
 except as to the matters which are therein staled to be on his
 
 260 MICHIGAN CHANCERY BULKS. 
 
 information or belief, and as to those matters he believes it to be 
 true; and the substance of the oath shall be stated in the jurat. 
 
 See H. S. § 6621; Walk. Cn. 809; Walk. Ch. 439; Har. Ch. 
 243; 23 Mich. 332; 31 Mich. 290; 20 Mich. 34; 26 Mich. 437; 
 20 Mich. 34; Hr. Ch. 301; 12 Mich. 297; 55 Mich, 190; 61 
 Mich. 9; 53 Mich. 228; 45 Mich. 543; 46 Mich. 489; 56 Mich. 3. 
 
 RETURN DAY OF PROCESS— FURTHER PROCESS. 
 
 Rule 9. All process, unless otherwise directed, shall be made 
 returnable on a day certain (except Sunday) either in vacation or 
 in term, not less than ten days from the issuing thereof; and if 
 process is not executed before the return day, new process may 
 be taken out, of course, as often as may be necessary, or an alias 
 or pluries may be issued. 
 
 See H. S. §§ 6629, 6632, 6636; 3 Mich. 280; 16 Mich. 9; 27 
 Mich. 454; 32 Mich. 89; 32 Mich. 307. 
 
 SUBPCENA — HOW SERVED. 
 
 Rule 10. The names of all the defendants in a cause shall be 
 inserted in the subpoena. It may be served by delivering a copy 
 of the writ, subscribed by the complainant, his solicitor, or the 
 officer or person serving the same, and inscribed "copy," and 
 showing the original, under seal of the court, at the time of such 
 delivery to the defendant. The service may be on or before the 
 return day mentioned in the subpoena. 
 
 See H. S. §§6634, 6636. 6638, 6659; Har. Ch. 19, 254; 
 
 Walk. Ch. 309, 339; 14 Mich. 514; 35 Mich. 115; 39 Mich. 
 
 563; Shendon v. Cameron, Mich. (April 28, 1887); 56 Mich. 
 
 185; 45 Mich. 418; 47 Mich. 604; 61 Mich. 35. 
 
 PROCEEDINGS ON RETURN OF SUBPCENA SERVED— APPEARANCE 
 AND ANSWER BY DEFENDANT. 
 
 Rule 11. Upon the return of the subpoena served, as directed 
 in the preceding rule, the defendant shall cause his appearance 
 to be entered in twenty days from the return day of said writ, 
 and if he does not require a copy of the bill as hereinafter pro- 
 vided, he shall plead, answer or demur within the same time, or 
 in default thereof his appearance may be entered by the register, 
 and the bill of complaint taken as confessed. If a copy of the 
 bill is required, he shall answer in twenty days from the service 
 of such copy, or the bill may be taken as confessed. Copies of 
 every pleading by a defendant shall be served within the time 
 limited for filing the same.
 
 MICHIGAN CHANCERY RULES. 261 
 
 See H. S. §§6629, 6636, 6638, 6689; Har. Ch. 241, 426; 
 Walk. Ch. 19, 45; 9 Mich. 234; 27 Mich. 52; 12 Mich. 314; 
 14 Mich. 514; 29 Mich. 72; 27 Mich. 52; 33 Mich. 268; 25 
 Micb. 149; 29 Mich. 289; 33 Mich. 305; 38 Mich 596; 39 Mich. 
 628; 43 Mich. 208; 43 Mich. 548; 57 Mich. 208; 45 Mich 394; 
 44 Mich. 202; 56 Midi, 295; 58 Mich. 482; 62 Mich. 480; 63 
 Mich. 382; 50 Mich. 16; 01 Mich. 4; 52 Mich. 4*9; 55 Mich. 
 280; 51 Mich. 440; 45 Mich. 453; 45 Mich. 394; 59 Mich. 296; 
 58 Mich. 494; Lafferty v. Bank, 70 Mich. (May 11, 1888); 
 Hatch v. St. Joseph, 68 Mich. (Jan. 19, 1888). 
 
 ATTACHMENT AGAINST DEPENDANT NOT ANSWERING. 
 
 Rule 12. When the subpoena has been personally served, and 
 the defendant shall fail to appear and plead, answer or demur, 
 within the time limited for the same, the complainant may, upon 
 filing an affidavit that a discovery as to the matters charged in 
 the bill is necessary, and service thereof with notice, move the 
 court for an attachment against such defendant or defendants. 
 26 Mich. 102. 
 
 PROCEEDINGS ON SUCH ATTACHMENT. 
 
 Rule 13. If the defendant appears personally, or is brought 
 into court by the sheriff, on the return of an attachment for not 
 answering, he shall enter his appearance and 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. 
 
 See H. S. § 6623. 
 
 ORDER THAT COMPLAINANT GIVE COPY OP BILL — BILL TO BE 
 DISMISSED IP COPY NOT SERVED. 
 
 Rule 14. When the defendant has appeared, he may have 
 an order, of course, that the complainant deliver a copy of the* 
 bill to the defendant or his solicitor in fifteen days, and if such 
 a copy is not delivered within fifteen days after the service of 
 notice of such order, or within such further time as may be al- 
 lowed for that purpose, the defendant, on filing an affidavit of 
 the service of such notice and that no copy of the bill has been 
 served, may have a decree dismissing the suit, with costs, for 
 want of prosecution. 
 
 Har. Ch. 256; 58 Mich. 393. 
 
 COMPLAINANT MAY PROCEED EX PARTE ON BILL TAKEN AS 
 CONFESSED, UNLESS DEFENDANT HAS APPEARED. 
 
 Rule 15. When a bill has been taken pro confesso against a
 
 262 MICHIGAN CHANCERY BULKS. 
 
 defendant, unless lie may have entered his sppcarance, it shall 
 not be necessary in any further proceeding in a cause for the 
 complainant to serve such defendant with any of the notices con- 
 templated by any of the rules of practice of this court for any 
 object or purpose whatever, but he may proceed ex parte. 
 
 See H. S. <§ 6636, 6638; Walk. Ch. 45; 16 Mich. 223; 
 Walk. Cb. 200; 6 Mich. 217; 13 Mich. 258; 38 Mich. 395; 5 
 Mich. 215; 11 Mich. 344; 12 Mich. 427; 15 Mich. 253; 38 
 Mich. 662. 
 
 PROCEEDINGS AGAINST ABSENT OR CONCEALED DEFENDANTS. 
 
 Rule 16. The order to take the bill as confessed against an 
 absent or concealed defendant, and for a reference under the pro- 
 visions of chapter one hundred and fifteen of Ihe Compiled Laws 
 (Ch. 116, Comp. L. 1871), may be entered of course, on filing 
 the proof of publication or notice, and an affidavit that the de- 
 fendant has not appeared. But the order requiring the defend- 
 ant to appear, and designating the paper in which itshallbepub- 
 lished, or a direction to the commissioner to receive the testi- 
 mony of the complainant as evidence on the reference, can only 
 be obtained by a special application. 
 
 See H. S. §§ 6670, 6686, 7500; 1 Mich. 480; Walk. Ch.305; 
 10 Mich. 117; 14 Mich. 514; 13 Mich. 533; 30 Mich. 63, 105; 
 10 Mich. 260; 14 Mich. 532; 32 Mich. 307; 29 Mich. 72; 32 
 Mich. 307; 40 Mich. 264; 53 Mich. 629; 60 Mich. 318; 45 
 Mich. 358; 64 Mich. 53; 59 Mich. 296: 50 Mich. 40; 45 
 Mich. 44; 54 Mich. 236; 45 Mich. 218; 25 Mich. 149; 36 
 Mich. 402; 2 Mich. 161. 
 
 EXCEPTIONS TO ANSWER NOT TO PREVENT DISSOLUTION OP 
 INJUNCTION, ETC. 
 
 Rule 17. Exceptions to an answer shall not prevent the dissolu- 
 tion of an injunction or the 'discharge of a ne exeat; but upon 
 every application for such dissolution or discharge, made upon 
 answer before exceptions are filed, or before the validity of ex- 
 ceptions filed has been determined, the sufficiency of theanswe r 
 in all points material to the allowance of such application shall 
 be considered in the decision thereof. 
 
 WAIVER OP OATH TO ANSWER — COMPLAINANT NOT TO EXCEPT 
 
 FOR INSUFFICIENCY IN SUCH CASE— FACTS STATED 
 
 IN ANSWER ADMITTED IF NOT REPLIED TO. 
 
 Rule 18. If the complainant waives the necessity of the answer 
 being made on oath of the defendant, it must be distinctly stated
 
 MICHIGAN CHANCER? RULE8. 263 
 
 in the bill. When the answer is put in without oath, it may be 
 excepted to for scandal and impertinence; but the complainant 
 shall not be at liberty to except thereto for insufficiency; but all 
 material alienations in the bill, which are not answered and ad- 
 mitted, may be proved by him in the same manner as if they 
 were distinctly put in issue by the answer; and if no replication 
 is filed, the matters of defence set up in the defendant's answer 
 will, on the hearing, be considered as admitted by the complain- 
 ant, although the answer is not on oath. 
 
 See H. S. §§ 6618, 6021; Walk. Ch. 439; 39 Mich. 85; 
 Walk. Ch. 267: 15 Mich, 316; 12 Mich. 297; 40 Mich. 52; 9 
 Mich. 536; 15 Mlcb. 316; 40 Mich 52; Walk. Ch. 90; 2 
 Mich. 144, 213; 42 Mich. 181; 5 Mich. 171; 13 Mich. 552; 6 
 Mich. 223, 42 Mich. 177; 11 Mich. 9; 12 Mich. 314; 36 Mich. 
 113; 27 Mich. 349; 42 Mich. 304: 49 Mich. 399; 56 Mich. 
 301: 50 Mich. 200; 48 Mich. 375; 58 Mich. 494. 
 
 ANSWERS, ETC., BEFORE WHOM MAY BE SWORN TO. 
 
 Rule 19. The plea or answer of the defendant may be sworn 
 to before any officer authorized by the laws of this state to ad- 
 minister oaths or take affidavits. It may also be sworn to before 
 any judge of any court of record in the United States; but if 
 sworn to before such judge in any other state or territory in the 
 United States, his certificate shall be accompanied by the certifi- 
 cate of the clerk or deputy clerk of such court, under the seal 
 thereof, showing the official character of such judge, and the gen- 
 uineness of his signature. Such plea or answer may be sworn 
 to in any foreign country before any minister or other diplomatic 
 agent or consul of the United States, or any notary public; but 
 the certificate of such notary shall be made under his notarial 
 seal. 
 
 See H. S. §7448. 
 
 DEFENDANT must answer original bill before entitled 
 
 TO ANSWER TO CROSSBILL. 
 
 Rule 20. When a crossbill is filed, the complainants therein 
 who are defendants in the original bill shall put in and perfect 
 their answer to the original bill before they shall be entitled to an 
 order to compel an answer to the cross bill, unless the court 
 otherwise specially direct. 
 
 Walk. Ch. 170; 2 Mich. 472; 10 Mich. 40, 291; 12 Mich. 
 94; 30 Mich. 388; 43 Mich. 208; 14 .Mich. 361.
 
 264 MICHIGAN CHANCERY RULES. 
 
 AMENDMENTS TO BILL, WHEN OP COURSE— NOT OP COURSE ON 
 INJUNCTION BILL— REGISTER NOT TO PERMIT AMENDMENTS 
 UNLESS AUTHORIZED— nOW AMENDMENTS MADE AND SERVED. 
 
 Rule 21. If the bill has not been sworn to, the complainant 
 may amend it, at any time before the plea, answer or demurrer 
 is put in, of course and without costs. He may also amend of 
 course after answer, at any time before he replies thereto, until 
 the time for replying expires, and without costs if a new or fur- 
 ther answer is not thereby rendered necessary; but if such 
 amendment requires a new or a further answer, then it shall be 
 on payment of costs to be taxed. He may also amend sworn 
 bills, except injunction bills, in the same manner, if the amend, 
 ments are merely in addition to aud not inconsistent with what is 
 contained in the original bill; such amendments being verified by 
 oath, as the bill is required to be verified. But no amendment 
 of an injunction bill shall be allowed without a special order of 
 the court, and upon due notice to the adverse party, if he has 
 appeared in the suit. Amendments of course may be made 
 without entering any rule or order for that purpose; but the reg- 
 ister shall not permit any amendments to be made unless the same 
 appear to be duly authorized. And in every case of an amend- 
 ment of course, the complainant's solicitor shall either file a new 
 engrossment of the bill with the register where the original bill 
 is filed, or furnish him with an engrossed copy of the amend- 
 ments, containing the proper references to the folios and line in 
 the original bill on file, where such amendments are to be inserted 
 or made. But no amendment shall be considered as made until 
 the same is served upon the adverse party, if he has appeared in 
 the cause. 
 
 Har. Ch. 438; Walk. Ch. 398; Walk. Ch. 486; 20 Mich. 
 
 34; 10 Mich. 486; 18 Mich. 298; 19 Mich. 516; 36 Mich. 77; 
 
 1 Doue:. 504; 9 Mich. 246; 12 Mich. 414; 13 Mich. 367; 36 
 
 Mich. 77; 43 Mich. 129; Walk. Ch. 485; 14 Mich. 160; 15 
 
 Mich. 104; 18 Mich. 298; 20 Mich. 34; 20 Mich. 437; 29 Mich. 
 
 366; 41 Mich. 608; 43 Mich. 433; 45 Mich. 29; 45 Mich. 504; 
 
 48 Mich. 536; 48 Mich. 201; 52 Mich. 429; 63 Mich. 238; 62 
 
 Mich. 598; 52 Mich. 637. 
 
 AMENDMENTS AFTER DEMURRER. 
 
 Rule 22. If the defendant demurs to the bill for want of 
 parties, or for any other defect which does not go to the equity 
 <>f the whole bill, the complainant may amend of course, on pay-
 
 MICHIGAN CHANCERY RULES. 265 
 
 ment of costs, at any time before the demurrer is noticed for 
 argument, or within ten days after receiving a copy of the 
 demurrer; and in all cases of demurrer for causes not within 
 the former part of this rule, the complainant's right to amend, 
 and the terms on which amendments may be permitted, shall be 
 in the discretion of the court. 
 
 Walk. Cli. 398; 34 Mich. 10; 35 Mich. 155; 43 Mich. 220. 
 
 AMENDMENTS AFTER INSUFFICIENT ANSWER — AMENDMENTS ON 
 PLEA OR DEMURRER OVERRULED. 
 
 Rule 23. Where the answer is excepted to as insufficient 
 and the defendant submits to answer further, or the answer on 
 reference if found insufficient, the complainant may amend the 
 bill of course, and without costs, at any time within ten days 
 after the defendant submits to answer any of the exceptions, or 
 after confirmation of the commissioner's report, if the defendant 
 does not submit to answer any of the exceptions; and the de- 
 fendant shall answer the amendment and exceptions together. 
 If a plea or demurrer to the bill be overruled, the complainant 
 may, within ten days thereafter, amend his bill of course, and 
 without costs; and in all cases where the complainant is permit- 
 ted to amend his bill, if the answer has not been put in, or a 
 further answer is necessary, the defendant shall have the same 
 time to answer, after such amendment, as he originally had. 
 But no amendments, of course, of injunction bills are to be 
 allowed under this or the preceding rule, nor any amendments 
 which are inconsistent with the original sw r orn bill. 
 34 Mich. 51; 41 Mich. 719. 
 
 COMMON AND SPECIAL ORDERS— HOW ORDERS TO BE ENTERED. 
 
 Rule 24 Orders to which a party, by the rules and prac- 
 tice of the court, is entitled of course without showing special 
 cause, shall be denominated common orders; and orders made 
 on special application to the court, or circuit court commis- 
 sioner, shall be denominated special orders. All common orders 
 and orders by consent of the parties, such consent being in 
 writing and signed by such parties or their solicitors and filed, 
 may be entered with the register in the common rule book 
 kept in his office, at the instance of the party or his solicitor, 
 at the peril of the party taking such order; and the day on 
 which the order is made shall be noted in the entry thereof, and
 
 266 MICHIGAN CHANCERY RULES. 
 
 all special orders made by the special direction of tie court, or 
 circuit court commissioner, shall be entered in the record of the 
 proceedings of the court, as heretofore has been usual . 
 Har. Ch. 438; 14 Mich. 340. 
 
 EITHER PARTY MAY NOTICE PLEA OR DEMURRER FOR ARGUMENT 
 — ISSUE ON PLEA AFTER ALLOWANCE. 
 
 Rule 25. When the defendant pleads or demurs to a bill, the 
 complainant shall have twenty days to file a replication to his 
 plea, or amend his bill; and if he does not take issue on the plea 
 or amend the bill within that time, either party may notice the 
 plea or demurrer for argument, at the next or any subsequent 
 term. If the plea is allowed, the complainant may, within ten 
 days after notice of such allowance, take issue on the plea, upon 
 payment of the costs of hearing thereon. 
 
 Walk. Ch. 485; Har. Ch. 265. 311, 219, 395; Walk. Ch. 
 117, 317, 355, 457; Ehr. Ch. 240; 2 Doug. 191; Walk. Ch. 
 416; 11 Mich. 56; 16 Mich. 162; 28 Mich. 359; Walk. Ch. 
 454; 24 Mich. 241; Har. Ch. 227, 247; 15 Mich. 104, 511; 25 
 Mich. 175; Walk. Ch. 28, 394, 54, 327; 1 Mich. 34; 21 Mich. 
 263; Har. Ch. 227; 21 Mich. 524: 32 Mich. 42; 34 Mich. 342; 
 43 Mich. 220; 43 Mich. 269; 43 Mich. 548; 60 Mich. 470. 
 
 BILE MAY BE TAKEN AS CONFESSED, IF FRIVOLOUS PLEA OR 
 
 DEMURRER IS PUT IN — ANSWER AFTER PLEA 
 
 OR DEMURRER OVERRULED. 
 
 Rule 26. If a plea or demurrer is overruled as frivolous, or a 
 plea upon issue thereou is found to be untrue, the complainant 
 may, unless the court otherwise direct, have an order to take 
 the bill as confessed, or he may compel the defendant to answer 
 the bill at his election. In all other cases, if the plea or demur- 
 rer be overruled, neither a further plea nor demurrer shall be 
 received; and the defendant shall answer the bill and pay the 
 costs of the heariug, within twenty days after notice of the order 
 overruling the plea or demurrer, or such other time as may be 
 prescribed by the court in such order. If he fails to put in his 
 answer and pay the costs within the time prescribed, the bill 
 may be taken as confessed, and the matter thereof decreed 
 accordingly; or the complainant may have an attachment to 
 compel an answer.
 
 MICHIGAN OHANCERY RULES. 261 
 
 WHEN COMPLAINANT MAY EXCEPT TO ANSWER — WHEN ANSWER 
 
 DEEMED SUFFICIENT — DEPENDANT MAY SUBMIT 
 
 TO ANSWER EXCEPTIONS. 
 
 Rule 27. When the answer is to the whole bill, the com- 
 plainant shall have twenty days, after notice thai such answer 
 is put in, to except to the same, or if the answer is to part of the 
 bill only, he shall have twenty days after the plea or demurrer to 
 the residue of the bill has been allowed or overruled, to except 
 to such answer; at the expiration of which time, if no exceptions 
 are taken, and no order for further time has been granted, the 
 answer shall be deemed sufficient. If the complainant excepts 
 to the answer for insufficiency, the defendant may, within eight 
 days after service of a copy of the exceptions, give written notice 
 of his submission to answer any or all of such exceptions ; and 
 he shall be liable for the costs of the exceptions which he sub- 
 mits to answer. 
 
 Walk. Ch. 307. 
 
 COMPLAINANT TO REFER EXCEPTIONS IN TEN DAYS. 
 
 Rule 28. When exceptions to an answer for insufficiency are 
 not submitted to within the time prescribed by the preceding 
 rule, the complainant, at any time within ten days thereafter, 
 may have an order of course to refer the exceptions not sub- 
 mitted to by the defendant to the circuit court commissioner. 
 If the exceptions not submitted to are not referred, and notice of 
 such reference given w T ithin the time specified, they shall be con- 
 sidered as abandoned, and the answer as to such exceptions 
 shall be deemed sufficient. 
 
 REFERENCE OF SECOND OR THIRD ANSWER, FOR INSUFFICIENCY. 
 
 Rule 29. If a complainant refers a second or third answer 
 for insufficiency on the old exceptions, the particular excep- 
 tions to which he requires a further answer shall be stated on 
 the order of reference. And if he does not refer such second 
 or th'rd answer for insufficiency within ten days after the same 
 is put in, such answer shall be deemed sufficient. 
 
 EXCEPTIONS FOR SCANDAL OR IMPERTINENCE. 
 
 Rule 30. Exceptions to any pleading or other matter pend- 
 ing before the court for scandal and impertinence, shall be taken 
 in the same manner as exceptions to an answer for insufficiency;
 
 268 MICHIGAN CHANCERY RULES. 
 
 and may be submitted to in like manner, and within the same 
 time. If tbey are not submitted to, the party excepting shall 
 refer them in the same manner, or they shall be considered as 
 abandoned; and if such exceptions are to an answer, the answer 
 thenceforth shall be deemed sufficient. 
 
 WHEN COMMISSIONER'S REPORT ON EXCEPTIONS TO BE OB- 
 TAINED. 
 
 Rule 31. Whenever an answer or other pleading or pro- 
 ceeding is referred for insufficiency, scandal or impertinence, 
 the exceptions shall be considered as abandoned, if the party 
 obtaining the reference shall not procure and file the commis- 
 sioner's report within fifteen days from the date of the order of 
 reference, unless the commissioner shall, within that time, 
 certify that the party obtaining such reference has not been 
 guilty of an unreasonable delay, and that further time, to be 
 specified in the certificate, is necessary to enable the commis- 
 sioner to make a satisfactory report; in which case the excep- 
 tions shall be considered as abandoned, if the report be not 
 obtained within the further time so stated. And if the excep- 
 tions were to an answer, it shall henceforth be deemed sufficient. 
 
 COMMISSIONER TO FIX TIME FOR PUTTING IN FURTHER ANSWER. 
 
 Rule 32. If on a reference of exceptions to an answer, or 
 the reference of a second answer on the old exceptions, the com- 
 missioner shall find the answer insufficient, he shall fix a time 
 for putting in a further answer and specify the same in his 
 report. 
 
 WHEN REPORT ON EXCEPTIONS TO BECOME ABSOLUTE— EXCEP- 
 TIONS TO REPORT. 
 
 Rule 33. The commissioner's report on exceptions shall be 
 delivered to the party obtaining the reference, who shall forth- 
 with file the same in the proper office; and if he does not except 
 to the report within eight days thereafter, it shall become abso- 
 lute as against him. . But the adverse party shall have eight days 
 after service of notice of filing the report to except to the same; 
 and if he does not except within that time, it shall become abso- 
 lute as against him, without any order for that purpose. If none 
 of the exceptions to an answer are submitted to by the defendant 
 or allowed by the commissioner, the answer shall be deemed
 
 MICHIGAN CHANCERY RULES. 209 
 
 sufficient from the time such report becomes absolute as against 
 the complainant. 
 
 ORDER TO KXPUNGE IMPERTINENT MATTER — REPORT DISALLOW- 
 ING EXCEPTIONS FOR SCANDAL, ETC., TO BE FINAL. 
 
 Rule 34. If the commissioner reports that any tiling contained 
 in any pleading or proceeding is scandalous or impertinent, the 
 party excepting, on filing proof that the report has become abso- 
 lute against the adverse party, may have an order of course that 
 the commissioner making the report expunge the scandalous or 
 impertinent matter; and that the adverse party pay the costs of 
 the exceptions and the proceedings thereon, within twenty days 
 after the service of a copy of such order and of the taxed bill on 
 him or his solicitor. When the adverse party submits to the 
 exceptions, the same order may be obtained on filing the notice 
 of submission. If the commissioner disallows an exception for 
 scandal aud impertinence, his report shall be final, and no excep- 
 tions to the report in that respect shall be allowed; but it shall 
 not preclude the party, upon the hearing of the cause, or upon 
 the taxation of the general costs in the suit, from insisting that 
 the matter excepted to was in fact impertinent. 
 
 ORDER FOR FURTHER ANSWER. 
 
 Rule 85. On exceptions to answer for insufficiency, if all the 
 exceptions are submitted to by the defendant, or a part are 
 submitted to and the rest abandoned, or are disallowed on 
 reference, the complainant may have an order of course, that 
 the defendant put in a further answer, and serve a copy thereof, 
 within twenty days after notice of the order, and pay the costs 
 of the exceptions. 
 
 Har. Ch. 228, 332; 12 Mich. 314. 
 
 ORDER FOR FURTHER ANSWER, AFTER REFERENCE. 
 
 Rule 36. If, on a reference of exceptions, or the reference of 
 a second answer upon the old exceptions, the answer is found 
 insufficient, and the commissioner's report has become absolute 
 against the defendant, the complainant may have a similar order 
 of course, to put in a further answer, and pay the costs, within 
 the time specified in the commissioner's report. 
 Walk. Ch. 307.
 
 270 MICHIGAN CHANCERY RULES. 
 
 HILL OF COSTS TO BE SERVED BEFORE EXPIRATION OF TIME TO 
 ANSWER— TIME TO ANSWER, AFTER AMENDMENTS TO ANSWER. 
 
 Rule 37. In the cases specified in the two preceding 
 rules, the defendant shall he entitled to a copy of the taxed bill 
 of costs at least ten days before the time for putting in the 
 further answer expires, or he may put in such answer without 
 paying the costs. But the complainant may afterwards proceed 
 by execution or attachment to compel payment thereof, if they 
 arc not paid within twenty days after service of a copy of the 
 taxed bill on the defendant or his solicitor. And if the com- 
 plainant has amended his bill, so as to require an answer to the 
 amendments as well as the exceptions, the defendant shall have 
 the same time to auswerthe-amendments and exceptions together 
 as he originally had to answer the bill; and the order to answer 
 '-hall be varied accordingly. 
 
 ORDER PRO CONFESSO, OH FOR ATTACHMENT, OR NEGLECT TO 
 
 ANSWER. 
 
 Role 38. If the defendant does not put in a further answer 
 and pay the costs within the time prescribed, or within such 
 further time as may be allowed by the court for that purpose, 
 the complainant, ou filing an affidavit showing such default, may 
 have an order of course to take the bill as confessed, or may 
 move for an attachment against the defendant. 
 
 HEARING OF EXCEPTIONS TO COMMISSIONER'S REPORT ON EXCEP- 
 TIONS— COSTS ON HEARING. 
 
 Rule 39. The argument of exceptions to a commissioner's 
 report on exceptions shall be heard as a special motion. Either 
 party may notice the same for hearing, and the party excepting 
 to the report shall furnish the necessary papers for the court; 
 and if he neglect to do so, the report may be confirmed. But if 
 both parties have excepted to the report, each shall furnish 
 copies of his own exceptions, and the party obtaining the refer- 
 ence shall furnish such other papers as may be necessary. The 
 costs of the hearing on exception-; to a report upon exceptions 
 shall be iu the discretion of the court; but neither part} 7 shall be 
 entitled to costs as against the other, unless he succeeds as to 
 the major part of the exceptions to the report. And where the 
 parly succeeding as to the major part does not succeed as to all 
 the exceptions to the report, his costs of the hearing, to be
 
 MICHIGAN CHANCERY RULES. 271 
 
 allowed against the adverse party shall not be taxed at a sum 
 exceeding ten dollars. 
 
 COSTS ON EXCEPTIONS. 
 
 Rule 40. When exceptions are taken to an answer for insuffi- 
 ciency, or to any pleading or proceeding for scandal or imperti- 
 nence, the party excepting shall be entitled to the costs of the 
 exceptions which are submitted to, and those which are finally 
 allowed after reference to a commissioner; but neither party shall 
 be entitled to costs upon the reference of exceptions, unless he 
 finally succeeds as to all the exceptions which are referred. The 
 costs on exceptions shall not be taxed until all exceptions are 
 submitted to, abandoned, allowed, or finally disposed of; and 
 Ihen the whole costs to which the exceptant is entitled shall be 
 included in one bill, and the adverse party may offset any costs 
 to which he is entitled. 
 
 FOR WHAT CAUSE DEMURRER OR PLEA NOT TO BE OVERRULED. 
 
 Rule 41. No demurrer or plea shall be held bad, and over- 
 ruled upon argument, only because such demurrer or plea shall 
 not cover so much of the bill as it might by law have extended 
 to. 
 
 FOR WHAT CAUSE DEMURRER OR PLEA NOT TO BE OVERRULED. 
 
 Rule 42. No demurrer or plea shall be held bad, and over- 
 ruled 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. 
 
 WHEN DEPENDANT MAY DECLINE ANSWERING PART OF BILL. 
 
 Rule 43. A defendant shall be at liberty, by answer, to de- 
 cline answering any part of the bill 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 de- 
 murrer. 
 
 Walk. Ch. 520. 
 
 BILLS OF REVIVOR AND SUPPLEMENTAL BILLS. 
 
 Rule 44. It shall not be necessary, on any bill of revivor or 
 supplemental bill, to set forth any of the statements in the orig- 
 inal suit, unless the special circumstances of the case require it.
 
 272 MICHIGAN CHANCER? RULES. 
 
 See H. 8. ==S 6654, 6668; Walk. Ch. 6; 29 Mich. 72; Har. 
 Ch. 882, 438; 10 Mich. 117; 13 Mich. 463; 11 Mich. 56; 31 
 Mich. 36; 14 Mich. 124; 16 Mich. 162; 32 Mich. 515; 40 
 Mich. 317; 46 Mich. 511; 49 Mich. 595; German American 
 Sem. v. Sawyer, 6(5 Mich. (June 9, 1887); 53 Mich. 629. 
 
 WHEN CAUSE DEEMED AT ISSUE — WHEN TO STAND ON BILL AND 
 ANSWER — NOTICE OF HEARINC 
 
 Rule 45. Every cause shall be deemed at issue on riling a gen- 
 eral replication to the answer, and no special replication shall be 
 filed but by leave on cause shown. If the complainant does not 
 reply to the defendant's answer within twenty days after it is 
 deemed to be sufficient, he shall be precluded from replying, and 
 the cause shall stand for hearing on bill and answer, unless 
 further time for replying be granted by the court, upon cause 
 shown, and either party may notice it for hearing as soon as it is 
 in readiness for hearing against the other defendants, if any there 
 are. 
 
 SeeH. S. £6645; Walk. Ch. 389, 454; 37 Mich. 248; 56 
 Mich. 3. 
 
 DISMISSING BILL KOIt WANT OP PROSECUTION. 
 
 Rule 46. In any suit against several defendants, if the com- 
 plainant does not use due diligence in prosecuting such suit, any 
 of said defendants may apply to dismiss the bill for want of 
 prosecution, and on such application further time shall not be 
 allowed to complainant, unless on good cause shown for the 
 delay. 
 
 Walk. Ch. 356, 359; Har. Ch. 265; 24 Mich. 241. 
 
 ORDER TO TAKE PROOFS — WHEN PROOFS TO BE TAKEN, AND 
 
 WHEN CLOSED — IF NO ORDER ENTERED, CASE TO STAND 
 
 ON PLEADINGS — FEIGNED ISSUES — EXAMINATION 
 
 OF WITNESSES IN OPEN COURT. 
 
 Rule 47. When a cause is at issue, if neither party has ob- 
 tained the right of an examination of witnesses in open court, 
 either party desirous of taking testimony, may at any time within 
 thirty days after the expiration of the time of obtaining the right 
 to such examination in open court, enter an order of course, and 
 give notice thereof to the opposite party, for the taking of testi- 
 mony within sixty days from the service of notice of such order, 
 and either party under such order may, at any time within the 
 said sixty days take the testimony of his witnesses, upon giving
 
 MICHIGAN OHANOEKY RULES. 273 
 
 ten days' notice to the opposite party of the names and places of 
 abode of the witnesses to be examined, and of the time and place 
 of such examination, and the person before whom the same will 
 be taken. At the end of the said sixty days, either party, on fil- 
 ing an affidavit of the service or receipt of such notice, may enter 
 an order of course that the proofs be closed. If neither party 
 shall obtain an order for taking testimony as aforesaid, or for an 
 examination of witnesses in open court, the cause shall stand for 
 hearing on pleadings, and may be noticed by either party. In 
 cases where feigned issues have been in use, the issue shall be 
 made hereafter by presenting the questions to be tried in a sim- 
 ple form upon the facts. The issue, unless agreed upon, shall 
 be framed by the circuit judge, and in all cases shall be approved 
 by him. 
 
 See H. S. §§ 6(547, 0648; Walk. Ch. 48; Har. Ch. 31; Walk. 
 Ch. 453, 48; 39 Mich. 123; Walk. Ch. 120, 384; 36 Mich. 77; 
 Walk. Ch. 45; 16 Mich. 223; Walk. Ch.200; 6 Mich. 217; 13 
 Mich. 258; Walk. Ch. 449; 2 Mich. 381; Mich. 133; 8 
 Mich. 395; 9 Mich. 213; 10 Mich. 453; 11 Mich. 284. 529; 13 
 Mich. 367; 16 Mich. 283; 24 Mich. 18; 28 Mich. 427; 29 Mich. 
 289; 30 Mich. 282; 33 Mich. 101, 121; 8 Mich. 74; 26 Mich. 
 443; 27 Mich. 214; 33 Mich. 347, 500; 9 Mich. 346; 11 Mich. 
 284; 22 Mich. 212; 22 Mich. 242; 27 Mich. 4; 32 Mich. 193; 
 29 Mich. 289; 54 Mich. 624; 54 Mich. 621; 49 Mich. 29; 55 
 Mich. 136; 52 Mich. 552; Goodrich v. Goodrich. Mich. (June 
 23, 1887); 46 Mich. 489; 56 Mich. 3; 53 Mieh. 40; 48 Mich. 
 388: 46 Mich. 08. 
 
 WHEN COMMISSION MAY BE ISSUED TO TAKE TESTIMONY. 
 
 Rule 48. If the party wishes to examine witnesses residing 
 out of the state, or more than thirty miles from the residence of 
 a circuit court commissioner, or when all the circuit court com- 
 missioners are interested, living within that distance, as counsel 
 or otherwise, either party may, at any time after issue is joined 
 and before proofs are closed, as prescribed in the preceding rule, 
 or when the case is at default, present a petition to the register 
 where the suit is pending, stating the names and residences of 
 the witnesses and of the person or persons proposed as commis- 
 sioners, and praying that a commission may be issued to take 
 the examination of such witnesses; and ten days' notice of the 
 application shall be given to the adverse party if he has appeared. 
 If the adverse party does not appear and join in the commission, 
 18
 
 274 MICHIGAN CHANCERY RULES. 
 
 or object to the persons named as commissioners, a commission 
 shall be issued agreeably to the prayer of the petition. 
 See H. S. £0639. 
 
 ADVERSE PARTY MAY JOIN IN COMMISSION — WHEN ONE COMMIS- 
 SIONER MAT ACT ALONE. 
 
 Rule 49. If the adverse party wishes to join the commission, 
 he must, at the time of presenting the petition, furnish the names 
 and residence of the witnesses on his part, and they shall be 
 inserted in the commission. If he is not satisfied with the com- 
 missioners named in the petition, he may name commissioners 
 on his part; and the register to whom the petition is presented, 
 after hearing the allegations of the parties, shall designate a 
 suitable person or persons to execute the commission, and issue 
 the same accordingly; but any of the commissioners named in 
 the commission may execute the same, in case the others neglect 
 or refuse to join in the execution thereof, or they are, from 
 any cause, prevented. 
 
 WITNESSES TO BE EXAMINED ON INTERROGATORIES — SETTLEMENT 
 THEREOF. 
 
 Rule 50. Witnesses to be examined out of the state shall 
 be examined on written direct and cross-interrogatories, to be 
 allowed by a circuit court commissioner and annexed to the 
 commission. Copies of interrogatories proposed shall be served, 
 with notice of an application for the allowance thereof, at least 
 five days before the time fixed for such application, and at the 
 time and place of the settlement of such interrogatories, the 
 adverse party shall propose his cross-interrogatories, unless fur- 
 ther time is allowed him for that purpose by the officer settling 
 the same. 
 
 PETITION FOR SPECIAL COMMISSION. 
 
 Rule 51. If it shall be necessary to have a commission to 
 take the examination of witnesses in any case not provided in 
 the preceding rules, the party may present a petition to the 
 circuit judge, or circuit court commissioner acting as an injunc- 
 tion master, for that purpose, setting out the facts which entitle 
 him to a special commission, and the usual notice of the appli- 
 cation shall be given to the adverse party.
 
 MICHIGAN OHANUEKY RULES. 275 
 
 COMMISSION. HOW EXECUTED AND RETURNED. 
 
 Rule 52. To every commission for the examination of wit- 
 nesses out of the state, a copy of this rule shall be annexed, 
 as instructions to the commissioner on the execution of the 
 commission: 
 
 1st. Any one of the commissioners may execute the com- 
 mission. 
 
 2d. The witness, before he is examined, must take an oath 
 or affirmation, to be administered by the commissioner, that 
 the answers to be giveu by him to the interrogatories annexed 
 to the commission shall be the truth, the whole truth, and 
 nothing but the truth. 
 
 3d. The examination of the witnesses must be reduced to 
 writing by the commissioner, or by some one in his presence 
 and under his direction, and must be signed by the witness, 
 and certified by the commissioner as follows: 
 
 "Examination taken, reduced to writing, and sworn to (or 
 
 affirmed) this, day of , A. D. , before me, 
 
 A. B. , Commissioner." 
 
 4th. Exhibits must be annexed to the deposition of the 
 witness, and be signed by him and the commissioner. 
 
 5th. The commissioner must subscribe each sheet of the 
 deposition, annex the deposition and exhibits to the commis- 
 sion, and endorse his return on the back of the commission: 
 
 " The execution of this commission appears in certain sched- 
 ules hereunto annexed. A. B. Commissioner." 
 
 6th. The commissioner must enclose the commission, inter- 
 rogatories, depositions and exhibits, in a packet, and bind it 
 with tape, and set his seal at the several meetings or crossings 
 of the tape, and direct it "To the Register of the Circuit 
 
 Court for the County of , in Chancery, at , State 
 
 of Michigan." 
 
 7th. He must then deposit the commission in the postoffice, 
 unless there are written directions on the commission to return 
 the same in another way. 
 
 OPENING AND PILING COMMISSION. 
 
 Rule 53. The register, on the commission being returned, 
 shall open it, and endorse thereon the time and manner of 
 receiving it, and then file it. 
 
 HOW DEPOSITIONS SUPPRESSED FOR IRREGULARITY — NOTICE TO 
 BE GIVEN OP FILING. 
 
 Rule 54. No deposition will be suppressed on the hearing 
 of a cause for irregularity or informality in the taking of the 
 same, but the question must be brought before the court on a 
 special motion for that purpose, before the cause is brought to
 
 276 MICHIGAN CHANCERY RULES. 
 
 a hearing. Upon receiving aDy deposition taken within or 
 without this state, on commission or otherwise, the register 
 shall notify the solicitor of the party on whose behalf it was 
 taken, and such solicitor shall notify the opposite solicitor, and 
 such motion shall be made within ten days after the solicitor 
 making the same shall have been so notified. 
 
 Har. Ch. 31; 19 Mich. 157; 42 Mich. 477. 
 
 HOW PARTY AAT BE EXAMINED AS A WITNESS — OBJECTION TO 
 TESTIMONY ON HEARING. 
 
 Rule 55. When a party wishes to examine a defendant as a 
 witness against a co-defendant, or against the complainant, he 
 may, at any time within twenty days after he has received or 
 served a notice of the rule to produce witnesses, on filing an affi- 
 davit that such defeudant is a material witness, and is not inter- 
 ested in a matter to which he is to be examined, have an order of 
 course for the examination of such defendant as a witness, as to 
 any matter in which he is not interested, subject to all just ex- 
 ceptions. And such defendant shall thereupon be examined to 
 such matters, in the same manner as other witnesses; but the 
 adverse party, at the hearing, may object to the competency of 
 his testimony. 
 
 PROVING DOCUMENTS AT HEARING — WHEN DEEDS, ETC., MAY BE 
 READ AT HEARING WITHOUT PROOF. 
 
 Rule 56. Documents which are of themselves evidence 
 without further proof shall not be read on the hearing, unless 
 they have been made exhibits before the commissioner; and no 
 deed or other writing shall be proved at the hearing; except on 
 an order previously obtained after due notice to the adverse 
 party. But where any deed or other instrument in writing which 
 is duly acknowledged or proved in such manner as to authorize 
 it to be read in evidence, is stated in the bill, or where any 
 judgment or other matter of record is set out or distinctly stated 
 in the bill, such deed or instrument, or au authenticated copy of 
 the record, may in all cases be read upon the hearing of the 
 cause, unless the defendant in his answer denies the due execu- 
 tion of said deed or instrument, or the existence of such record, 
 either positively or according to his belief. 
 
 Walk. Ch. 449; Har. Ch. 225; 3 Mich. 482; 14 Mich. 514; 
 42 Mich. 304.
 
 MICHIGAN CHANCERY RULES. 277 
 
 COMPELLING ATTENDANCE OF WITNESSES BEFORE COMMISSION- 
 ERS. 
 
 Rule 57. Process of subpoena to compel the attendance of 
 witnesses before a commissioner shall issue of course, and the 
 time and place of attendance shall be specified in the writ; and 
 such witnesses may be punished if they fail to attend and submit 
 to an examination. But no witness shall be compelled to appear 
 before a commissioner more than forty miles from his place of 
 residence, unless by special order of the court. 
 See H. S. §§6632, 7257, 7483, 7484. 
 
 COMMISSIONER TO RETURN AND FILE DEPOSITIONS. 
 
 Rule 58. Within ten days after notice of the order to close 
 the proofs, the commissioner, on being applied to for that pur- 
 pose by either party, shall cause the depositions and exhibits 
 taken or produced before him to be returned and filed with the 
 register. No copy of any deposition or exhibit shall be read on 
 the hearing, unless the original has been returned and filed in 
 the proper office. — As amended April 27, 1871. 
 
 ORDERS TO ENLARGE TIME TO PRODUCE WITNESSES. 
 
 Rule 59. An order to enlarge the time for the examination 
 of witnesses may be granted, on sufficient cause shown, without 
 notice to the adverse party; but an ex parte order shall not be 
 granted after the time for the examination of witnesses has actu- 
 ally expired, nor shall a second order be granted to the same 
 party, except on the usual notice of the application to the ad- 
 verse part}', and upon such terms as the court may prescribe. 
 Walk. Ch. 384. 
 
 NOTICE OF HEARING. 
 
 Rule GO. After the proofs are closed, either party may notice 
 the cause for hearing at the next or some subsequent term. It 
 shall not be necessary in any case to obtain an order to set a 
 cause down for hearing; but when a cause is in readiness for 
 hearing, on plea or demurrer, bill and answer, pleadings and 
 proofs, exceptions to a commissioner's report, or on the equity 
 reserved, either party may notice the same for hearing, and have 
 the cause entered on the calendar of causes for the term. 
 
 37 Mich. 166; Har. Ch. 265; 47 Mich. 513, 515; Zable v. 
 Hatshman, 68 Mich. (July 12, 1888); Turner v. Hart, 71 
 Mich. (July 11, 1888); 50 Mich. 252; Davenport v. Att. Gen.
 
 278 MICHIGAN CHANCERY RULES. 
 
 70 Mich. (May 11, 1888); Goodrich v. Goodrich, Mich. 
 (June 23, 1887). 
 
 TIME ON NOTICES, ETC. — COPIES OF PAPERS ON MOTIONS TO BE 
 SERVED. 
 
 Rule 61. All notices of hearing, or of special motions, or of 
 the presenting of petitions, when required, shall be notices of at 
 least eight days, if the solicitor of the adverse party resides over 
 one hundred miles from the place where the court is to be held ; 
 if over fifty and not exceeding one hundred, six days' notice 
 shall be given; and in all other cases at least four days. And a 
 copy of the petition, affidavit or certificate on which any special 
 application is founded, shall be served on the adverse party the 
 same length of time previous to making the application to the 
 court. 
 
 Har. Ch. 255. 
 
 CASE, AND ABBREVIATION OF PLEADINGS. 
 
 Rule 62. When a cause is submitted or heard on bill, answer 
 and replication, or on the pleadings and proofs, if the parties do 
 not agree upon a case to be signed by them, containing, with all 
 requisite brevity, a statement of the pleadfngs and proofs, the 
 complainant shall furnish the court with a case, stating the 
 time of filing the bill, and of the answer and other pleadings 
 respectively, the names of the original parties in full, the change 
 of parties, if any has taken place pending the suit, and a very 
 brief history of the proceedings in the cause; and containing an 
 abbreviation of the pleadings, not exceeding one-sixth of the 
 number of folios contained in the original pleadings respect- 
 ively. 
 
 HOAV CALENDAR TO BE MADE UP. 
 
 Rule 63. In making up the calendar, causes to be heard on 
 bills taken as confessed shall have a preference, and shall be 
 entered according to priority, from the date of the order to 
 take the bill as confessed. Pleas and demurrers shall consti- 
 tute the second class of causes, and have priority from the 
 time when the plea or demurrer was filed. Causes to be heard 
 on bill and answer shall occupy the third place on the calen- 
 dar, and have priority from the time when the answer was put 
 in. Those which are to be heard on the pleadings, or on 
 pleadings and proofs, shall form the fourth class, and have pri"
 
 .MICHIGAN CHANCERY RULES. 279 
 
 ority from the time when the replication was filed. Causes to be 
 heard on exceptions, or upon the equity reserved in a decretal 
 order, shall be placed in the class to which they belonged be- 
 fore the decretal order or reference, and according to their 
 priority as it then existed; and causes for rehearing shall be 
 arranged in the same manner. But the court, in the hearing 
 of the calendar causes, may, in its discretion, give a preference 
 to any particular cause, or description of causes, over others in 
 the calendar. And mortgage cases of the fourth class shall be 
 entitled to a preference over any other causes of the same 
 class, unless the defendant, before the cause is heard, shall file 
 with the register an affidavit that he has a good and meritori- 
 ous defence, and that his answer was not put in for the purpose 
 of delay; the tiling of which affidavit he shall have noted on 
 the calendar. 
 
 See H. S. §0628; 38 Mich. 662. 
 
 CAUSE TO BE NOTICED FOR FIRST DAY OF TERM — NOTICE TO 
 REGISTER. 
 
 Rule 64. Causes shall be noticed for hearing for the first 
 day of the term. The notice to the register, specifying the class 
 to which the cause belongs, and the time from which it is en- 
 titled to priority, shall be delivered to the register, who is to 
 make the calendar, four days previous to the commencement 
 of the term. But if the cause is not in readiness for hearing 
 in time to notice it for the first day in term, it may be noticed 
 for a subsequent day in term and placed at the foot of the 
 calendar; and, if the bill has been taken as confessed, may be 
 heard out of its regular order. 
 
 29 Mich. 2'28; 37 Mich. 166; 38 Mich. 062. 
 
 PAPERS TO BE FURNISHED ON HEARING — ON A REHEARING. 
 
 Rule 65. When a cause is heard or submitted on plea or 
 demurrer, or on bill and answer (except iu mortgage or partition 
 causes where the complainant's rights are not contested), the 
 court shall be furnished with copies of the pleadings, and an 
 abbreviation thereof not exceeding one-sixth of the number of 
 folios contained in the originals. If it is heard on bill, answer 
 and replication, or on pleadings and proofs, in additiou to the 
 case required by the sixty-second rule, the court shall be fur- 
 nished with copies of the pleadings, and of the depositions, if
 
 380 MICHIGAN CHANCERY KULE8. 
 
 any, and with short abstracts of the exhibits. On a rehearing, a 
 copy of the decree or order reheard shall be furnished, and 
 copies of the pleadings, abstracts, case, depositions, etc., on 
 which the same was founded. Upon exceptions to a commis- 
 sioner's report, copies of the order of reference, report and excep- 
 tions, and of such part of the evidence before the commissioner, 
 and of the pleadings, as are material for the decision of the 
 exceptions, shall be furnished. And in all cases the necessary 
 papers shall be delivered to the court when the hearing of the 
 cause shall commence. 
 
 BY WHOM PAPERS TO BE FURNISHED — POINTS TO BE DELIVERED. 
 
 Rule 66. If the cause is heard or submitted on plea or de- 
 murrer, or on exceptions to a commissioner's report, or on a 
 rehearing, the necessary papers shall be furnished by the party 
 pleading, demurring or excepting, or who obtaiued the rehear- 
 ing. In all other cases the papers shall be furnished by 
 the complainant, except that on an original hearing upon 
 pleadings and proofs, each party shall furnish copies of the 
 testimony and abstracts of the exhibits on his part only. And 
 each party shall deliver to the court and to the adverse party 
 a copy of the points on which he relies; and may also deliver 
 to the court and to the adverse party a draft of the minutes 
 of the decree to which he conceives himself entitled. 
 
 PAPERS TO BE LEGIBLY WRITTEN — HOW ENTITLED. 
 
 Rule 67. All bills, answers and other proceedings, and copies 
 thereof, shall be fairly and legibly written, and if not so written, 
 the register shall not file such as may be offered to him for that 
 purpose; and in the entitling and endorsement of papers by either 
 party the complainant's name shall be placed first. 
 Const. Art. 18, sec. 6; See H. S. § 7251. 
 
 DEFAULT AT THE HEARING. 
 
 Rule 68. If the cause is noticed for hearing on the part of 
 defendant, and the complainant does not appear to argue on 
 his part, or does not furnish the necessary papers, agreeably to 
 the preceding rule, the bill maybe dismissed with costs. If 
 noticed on the part of the complainant, and the defendant dues 
 not appear at the hearing and furnish the necessary papers on his 
 part, the complainant may have such decree as be is entitled to
 
 MICHIGAN CHANCERY RULES. 281 
 
 by the defendant's default, according to the usual course and 
 practice of the court. 
 
 Walk. Ch. 31. 72; 28 Mich. 359; 30 Mich. 160; 25 Mich. 
 149; 43 Mich. 367. 
 
 MANNER OK SUBMITTING CAUSES. 
 
 Rule 69. All .submissions shall tie in writing, signed by the 
 necessary parties or their solicitors, and shall be delivered to the 
 register with the necessary copies and papers. On special mo- 
 tions and petitions, as well as in calendar causes, he shall mark 
 the papers and note them in his minutes, as on a hearing; and he 
 shall not enter the submission until all the necessary copies and 
 papers are furnished, as required by the rules of the court. 
 
 PROCEEDINGS ON OKOER OP REFERENCE — SUMMONS AND ITS 
 SERVICE. 
 
 Role 70, When a matter is referred to a commissioner, to ex- 
 amine and report thereon, on bringing the decree or order into 
 his office he shall assign a day and place for hearing the parties, 
 and give to the party bringing in such decree or order a sum- 
 mons for the adverse part}' to attend at the day and place so 
 appointed. The summons shall be served on the adverse party 
 or his solicitor such time, previous to the day appointed forbear- 
 ing, as the commissioner may deem reasonable and direct, taking 
 into consideration the nature of the matter to be examined, and 
 the residence of the parties. But the time of service, unless other 
 wise ordered by the court, shall not be less than two days, when 
 the solicitor of the adverse party resides in the city or town 
 where the hearing is to take place; and not less than four days 
 when he resides elsewhere, not exceeding fifty miles from the 
 place of hearing; not less than six days, if over fifty and not ex- 
 ceeding one hundred miles; and not less than eight days when he 
 resides more than one hundred miles from the place of hearing. 
 Walk. Ch. 357, 391, 42;;, 453; Har. Ch. 436. 
 
 PARTY ENTITLED TO PROSECUTE ORDER OF REFERENCE TO 
 PROCEED IN THIRTY DAYS. 
 
 Rule 71. If the party who is entitled to prosecute such de- 
 cree or order of reference does not procure and serve such sum- 
 mons within thirty days after the decree or order is entered, any 
 other party or person interested in the matter of reference shall 
 be at liberty to apply to the court, by motion or petition, to ex-
 
 282 MICHIGAN CHANCERY RULES. 
 
 pedite the prosecution of the decree or order; and after the 
 proceedings have been commenced, by the service of a summons 
 to attend before the commissioner, if the party entitled to prose- 
 cute such decree or order does not proceed with due diligence, 
 the commissioner shall be at liberty, upon the application of any 
 other person interested, either as a party to the suit, or as com- 
 ing in to prove his debt, or establish a claim under the decree or 
 order, to commit to him the prosecution of the reference. 
 
 PROCEEDINGS IN COMMISSIONER'S OFFICE. 
 
 Rule 72. At the time and place appointed in the summons 
 for hearing the parties, the commissioner shall proceed to regu- 
 late, as far as may be, the manner of its execution; as, for exam- 
 ple, to state what parties are entitled to attend future proceed- 
 ings, to direct the necessary notices, and to point out which of 
 the several proceedings may properly be going on pari passu; 
 and as to what particular matters interrogatories for the exami- 
 nation of the parties appear to be necessary; and whether the 
 matters requiring evidence shall be proved by affidavit, or by the 
 examination of witnesses; and if the commissioner shall think it 
 expedient so to do. he may then, or upon any subsequent attend- 
 ance, and from time to time, as circumstances may require, fix 
 the time within or at which any proceedings before him shall be 
 had; and he may proceed de die in diem, or by adjournment 
 from time to time, as he may think proper. 
 
 EXAMINATION OF BOOKS, ETC., BEFORE COMMISSIONER. 
 
 Rule 73. Where, by any decree, or order of the court, books, 
 papers or writings are directed to be produced before the com- 
 missioner for the purpose of such decree or order, it shall be in 
 the discretion of the commissioner to determine what books, 
 papers or writings are to be produced, and when and for how 
 long they are to be left in his office; or, in case he should deem 
 it necessary that they should be left or deposited in his office, 
 then he may give directions for the inspection thereof by the 
 parties requiring the same, at such time and in such manner as 
 he may deem expedient. 
 
 WHEN COMMISSIONER MAY PROCEED EX PARTE. 
 
 Rule 74. Where some, or one, but not all of the parties, do 
 attend the commissioner at the time and place appointed, the 
 commissioner shall be at liberty to proceed ex parte, if he thinks
 
 MICHIGAN CHANCERY RULES. 28. 
 
 it expedient so to do, considering the nature of the case; and if 
 he has proceeded ex parte, such proceeding shall not in any man- 
 ner be reviewed by him, unless, upon special application to him 
 for that purpose by the party who was absent, the commis" 
 sioner shall be satisfied such party was not guilty of willful delay 
 or negligence, and then only upon payment of all costs occasioned 
 by his non-attendance; and such costs to be certified by the com- 
 missioner at the time, and paid by the party or his solicitor 
 before he shall be permitted to proceed on the warrant to review; 
 and every summons to attend before a commissioner shall be 
 considered peremptory. 
 
 HOW COMMISSIONER TO TAKE TESTIMONY. 
 
 Rule 75. The commissioner shall be at liberty to examine 
 any witness or party, or any creditor or other person coming in 
 to claim before him, either upon written interrogatories or viva 
 wee, or in both modes, as the nature of the case may appear to 
 him to require; the examination or evidence being taken down 
 at the time by the commissioner, or by his clerk in his presence, 
 and preserved, in order that the same may be used by the court, 
 if necessary. 
 
 See H. S. §§ 6643, 6644; Walk. Ch. 48; Har. Ch. 31; 37 
 Mich. 116; 40 Mich. 493; 43 Mich, 171. 
 
 PROCEEDINGS OF COMMISSIONER ON EXCEPTIONS — EXCEPTIONS 
 TO REPORT THEREON. 
 
 Rule 76. If a party wishes to complain of any matter intro" 
 duced into any state of facts, affidavit, or other proceeding 
 before the commissioner, on the ground that it is scandalous or 
 impertinent, or that any examination of a party before him is 
 insufficient, such party shall be at liberty to file exceptions there- 
 to with the commissioner; and the commissioner shall have 
 authority to expunge any such matter which he shall find to be 
 scandalous or impertinent. And where the matter is excepted 
 to as scandalous or impertinent, if the commissioner disallows 
 the exceptions, his decision thereon shall be final as to the excep- 
 tions which are disallowed; but this shall not preclude the party 
 from insisting upon the impertinence at the hearing of the cause, 
 or upon any subsequent proceeding founded on the commis- 
 sioner's report upon the reference, or upon the taxation of the 
 general costs of the cause, or of the reference. And in deciding
 
 284 MICHIGAN CHANCERY RULES. 
 
 on the sufficiency or insufficiency of the examination of a party, 
 or of an answer to a bill, the commissioner shall always take 
 into consideration the relevancy or materiality of the statement 
 or question referred to in the exception. On exceptions to the 
 commissioner's report, or to his certificate of the sufficiency or 
 insufficiency of the examination, the parties shall be confined to 
 the objections taken before the commissioner. 
 
 HOW ACCOUNTS TAKEN BEFORE COMMISSIONER. 
 
 Rule 77. All parties accounting before a commissioner shall 
 bring in their accounts in the form of debtor and creditor; and 
 any of the other parties who shall not be satisfied with the 
 accounts so brought in. shall be at liberty to examine the 
 accounting party upon interrogatories, as the commissioner may 
 direct. On any reference to take or state an account, the com- 
 missioner shall be at liberty to allow interest as shall be just and 
 equitable, without any special direction for that purpose, unless 
 a contrary direction is contained in the order of reference. And 
 every charge, discharge, or state of facts, brought in before a 
 commissioner, shall be verified by oath as true, either positively 
 or upon information and belief. 
 
 18 Mich, 12; 43 Mich. 613; 56 Mich. 632; 46 Mich. 587; 
 Low v. Hill, 66 Mich. (Oct. 20, 1887); Killefer v. Lone. 70 
 Mich. (June 8, 1888). 
 
 COMMISSIONER MAY MAKE SEPARATE REPORTS. 
 
 Rule 78. In all matters referred to a commissioner, he shall 
 be at liberty, upon the application of any party interested, to 
 make a separate report or reports, from time to time, as he shall 
 deem expedient ; I he costs of such separate reports to be in the dis- 
 cretion of the court. And where the commissioner shall make a 
 separate report of debts or legacies, he shall be at liberty to make 
 such certificate as he thinks fit, with respect to the state of 
 assets; and any p rson interested shall thereupon be at liberty to 
 apply to the court as he shall be advised. 
 
 ORDER TO CONFIRM REPORT. 
 
 Rule 79. After the report is filed, either party may have an 
 order of course to confirm the same, unless cause to the contrary 
 thereof be shown in eight days after notice of its being filed; and 
 if no exceptions are filed and served within that time, the order 
 shall become absolute of course, without further order; or either
 
 MICHIGAN CHANCER! RULES. 285 
 
 party may file exceptions, and have an order of course to con- 
 firm the report, so far as the same is not excepted to, and with 
 the like effect 
 
 Walk Ch. 19, 23, 45; 12 Mich. 314; Walk. Ch. 23; 14 Mich. 
 
 532; 17 Mich. 386; 18 Mich. 255; 20 Mich. 212; 23 Mich. 412; 
 
 40 Mich. 1; 33 Mich. 307; 33 Mich. 298. 
 
 ENROLLMENT OP DECREE — FROM WHAT OFFICE I'ROCESS TO ISSDF 
 THEREON— SALE. 
 
 Rule 80. No process shall be issued, or other proceedings 
 had on any final decree, until the same is duly enrolled. And 
 such process, unless otherwise specially directed by the court, 
 shall be sealed and issued by the register, who shall not suffer 
 any process to pass his seal, if it does not appear to be duly 
 warranted. If a commissioner is directed to sell real estate 
 under such decree, he may give the requisite notice of sale 
 previous to enrollment; but, to protect the title of the purchaser, 
 the party for whose benefit the sale is made shall cause the 
 decree to be enrolled, and produce a certificate thereof, before 
 any conveyance shall be executed by the commissioner. And 
 where any previous decree or deeretal order disposes of any 
 part of the merits of the cause, or is necessary to explain the 
 final decree, it shall either be recited therein or enrolled there- 
 with, as a part of the final decree in the cause. 
 
 H. S. §§ 6597, 6648, 6649, 6653, 6707, 6708, 6737, 6739, 7255, 
 7256, 76:J9, 7643; Walk. Ch. 6, 72, 494; 18 Mich. 255; 13 
 Mich. 463; 15 Mich. 253; 19 Mich. 142; 36 Mich. 77; 
 43 Mich. 233; 36 Mich. 297; 36 Mich. 64; 43 Mich. 192: 
 42 Mich. 131; 15 Mich. 253; 33 Mich. 268; 32 Mich. 13; 
 33 Mich. 63; 33 Mich. 298; 33 Mich. 337-500; 35 Mich 189; 
 39 Mich. 313; 40 Mich. 232; 42 Mich 304; 39 Mich. 55; 47 
 Mich. 512; 61 Mich. 35; 59 Mich. 296; 52 Mich. 174; 63 
 Mich. 704; Atkiuson v. Flannigan, 70 Mich. (June 15, 1888); 
 German Seminary v. Sawyer, 66 Mich. (June 9, 1887); 123 
 U. S. 233; 62 Mich. 614; 44 Mich. 240; 43 Mich. 272; 54 
 Mich. 323; 48 Mich. 375; Brick v. Brick, 65 Mich. (Keb. 
 15, 1887); 45 Mich. 1; 48 Mich. 618; 53 Mich. 77; 46 Mich. 
 489; 56 Mich. 3; 58 Mich. 429; Edgar v. Burck, 65 Mich. 
 (April 14, 1887); 43 Mich. 367; 55 Mich. 276; 53 Mich. 543; 
 56 Mich. 291; 55 Mich. 40; 61 Mich. 35; 59 Mich. 295; 46 
 Mich. 511; 57 Mich. 421. 
 
 MANNER OF APPLYING FOR REnEARING. 
 
 Rule 81. A petition for a reheariug shall state the special 
 matter or cause on which such rehearing is applied for, and
 
 286 MICHIGAN CHANCERY RULES. 
 
 the particular points in which the decree or order is alleged 
 to be erroneous, but it shall not be necessary to state the pro- 
 ceedings anterior to such decree or order sought to be reversed; 
 and the facts, if they do not appear from the records of the 
 court, shall be verified by affidavit of the party, or of some 
 other person. It shall also be accompanied by the certificate 
 of two counsel, that they have examined the case, and that in 
 their opmion the decree or order is erroneous in the particulars 
 mentioned in the petition. And a copy of the petition, with 
 the usual notice of presenting the same, shall be served on the 
 adverse party, but the rehearing shall not be considered as a 
 matter of course in any case. 
 
 Har. Ch. 221; Walk. Ch. 359-446; 38 Mich. 662; 15 Mich. 
 519; 25 Mich. 16; 26 Mich. 484; 38 Mich. 443; 24 Mich. 387. 
 
 ORDER TO STAY PROCEEDINGS, AND SERVICE THEREOF. 
 
 Rule 82. Where a party is entitled to an order to stay pro- 
 ceedings, or for temporary relief until he has time to give reg- 
 ular notice of a motion, or of presenting a petition for a re- 
 hearing, or for any other purpose, he may make an ex parte 
 application to the court, or judge, or commissioner, acting as 
 injunction master, for an order that the adverse party show 
 cause why the motion or the prayer of the petition should not 
 be granted, or to stay proceedings, or for other temporary relief 
 in the meantime. And the adverse party shall be served with a 
 copy of the order, and of the petition, affidavit or certificate on 
 which it is founded, the same length of time before the day 
 for showing cause as is required in the ordinary case of special 
 motions, unless the court, or judge, or commissioner, shall 
 specially direct a shorter notice to be given. 
 
 DEPOSIT ON REHEARING. 
 
 Rule 83. If a rehearing is granted, the petitioner shall lose 
 the benefit thereof, unless he shall, within ten days thereafter, 
 deposit with the register fifty dollars, to answer the costs and 
 damages of the adverse party, if the decree or order shall not 
 be materially varied. 
 
 AGREEMENTS BETWEEN PARTIES TO BE IN WRITING. 
 
 Rule 84. No private agreement or consent between the 
 parties, in respect to the proceedings in the cause, shall be
 
 MICHIGAN CHANCERY RULES. 287 
 
 alleged or suggested by either of them against the other, unless 
 the same shall have been reduced to the form of an order by 
 consent, and entered in the book of common orders; or unless 
 the evidence thereof shall be in writing, subscribed by the 
 party against whom it is alleged or suggested, or by his solic- 
 itor or counsel. 
 
 Walk. Ch. 23-389; Har. Ch. 438; 20 Mich. 195. 
 
 TIME ON RULES AND ORDERS. 
 
 Rule 85. All rules to take effect nisi, etc., unless otherwise 
 specially directed, shall be rules of eight days; and the time on 
 all rules, orders, notices and proceedings, where a time is given 
 or stated, shall, unless otherwise expressly provided, be deemed 
 and taken to be one day inclusive and one day exclusive, but 
 if the time expires on Sunday, the whole of the succeeding day 
 shall be included. 
 
 extending time and setting aside defaults. 
 Rule 86. The court, or commissioner acting as injunction 
 master, upon special cause shown, may extend the time for put- 
 ting in or serving any pleading or exceptions, or for any other 
 proceeding which is required by the rules of the court to be done 
 within a limited time; and the court may set aside any order or 
 decree, obtained by default or otherwise, upon such terms as may 
 be deemed just and proper. 
 
 Walk. Ch. 31, 72, 384; Har. Ch. 241, 426, 265; 14 Mich. 
 514. 
 
 ACCOUNT OF MONET DEPOSITED, HOW KEPT. 
 
 Rule 87. The accounts of the register with the banks in 
 which the moneys are directed to be deposited, shall be kept in 
 such a manner that in the cash books of the banks, and in the 
 bank books of the register, it shall appear in what particular suit, 
 or on what account, the several items of money credited or 
 charged were deposited or paid out. 
 
 See H. S. §§6598, 6606; 34 Mich. 99. 
 
 FORM OF ORDERS FOR PAYMENT OF MONEYS OUT OF COURT. 
 
 Rule 88. Orders upon the banks for the payment of moneys 
 nut of court shall be made payable to the order of the person en- 
 titled thereto, or of his solicitor or his attorney, duly authorized, 
 and shall specify in what particular suit, or on what account
 
 288 MICHIGAN CHANCERY RULES. 
 
 the money is to be paid out, and the time when the decn 
 order authorizing such payment was made. 
 42 Mich. 249. 
 
 TAXING COSTS — KETAXATION. 
 
 Rule 80. The circuit court commissioners and registers of 
 each circuit court shall have power to tax costs, and where costg 
 have been taxed, upon hearing of the parties, an application for 
 a retaxalion may be made directly to the court, 
 
 See H. S. §§8962, 8963, 8996, 9003, 0032, 0045: Walk. Ch. 
 340, 72; 16 Mich. 506; Walk. Ch. 153. 
 
 J5ILL OF COSTS TO SPECIFY ITEMS — AFFIDAVIT TO BE ANNEXED 
 — NOTICE OF TAXATION — WHAT ALLOWED. 
 
 Rule 00. In a bill of costs offered for taxation, by or on be- 
 half of any solicitor, or of any party who prosecutes and defends 
 by a solicitor, or by or on behalf of any officer of this court who 
 prosecutes and defends in person, the several items of disburse- 
 ments and of the fees of officers of the court, shall be particularly 
 specified therein, and not charged in gross, or they shall be dis- 
 allowed on taxation; and when witnesses' fees are charged, the 
 names of the witnesses shall be specified, and the number of 
 days' travel and attendance of each. The affidavit of the solici- 
 tor, or the officer who prosecutes or defends in person, shall 
 alsd be annexed to the bill before it is taxed, stating, according 
 to the best of his knowledge and belief, that the several dis- 
 bursements charged in the bill have been actually and necessarily 
 incurred or paid; and before any officer or party shall be entitled 
 to demaud payment thereof, such costs or fees shall be taxed by 
 a taxing officer of this court; but no officer whatever shall tax 
 his own costs or fees; and the same notice of taxation shall be 
 given to the party to be charged therewith, if such party has 
 appeared in the cause or proceedings, as is required by the 
 rules of this court. The following costs shall be allowed to 
 the prevailing parties, viz. : In all cases determined by final 
 decree on pleadings and proofs, thirty dollars. In all cases 
 determined by final decree on bill and answer, plea or demurrer, 
 twenty dollars. In all cases where decree is taken on the bill 
 taken as confessed, fifteen dollars. Upon all special motions, 
 such sum, not exceeding ten dollars, as the court shall deem just. 
 When a bill is dismissed for default at the hearing, or for want
 
 MICHIGAN CHANCERY RULES. -89 
 
 of prosecution, or voluntarily by the complainant, the defendant 
 shall be entitled to the same costs as if the cause had been 
 heard, and where the bill is dismissed upon payment of the 
 claim, or performance of the relief sought, before decree, the 
 complainant shall be entitled to the same costs as if the case had 
 been heard. If such payment or performance is made before 
 plea, demurrer or answer, the costs shall be as on bill taken pro 
 confesso; if after any pleading is put in and before proofs, they 
 shail be as on a hearing upon pleadings; and if proofs are taken, 
 the costs shall be as on a hearing upon pleadings and proofs. In 
 divorce cases the costs shall be under the direction of the court. 
 Where there are several defendants entitled to costs, the costs 
 granted by this rule shall be apportioned among them as the 
 court may deem proper. — As amended October 23, 1858. 
 
 See H. S. ^§ 9001, 9002; Walk: Ch. 45, 72, 153; 41 Mich. 
 730; 35 Mich.' 237; 1 Dousf. 41; 10 Mich. 454; 12 Mich. 61, 
 117, 540; 13 Mich. 258; 14 Mich. 160; 16 Mich. 506; 24 Mich. 
 39; 31 Mich. 207; 25 Mich. 127; 29 Mich. 305; 35 Mich. 96. 
 
 HOW RIGHTS OF SUBSEQUENT PURCHASERS, ETC., SET OUT IN 
 
 BILL. 
 
 Rule 91. In a bill for foreclosure or satisfaction of a mort- 
 gage, it shall not be necessary to set out at large the rights and 
 interests of the several defendants who are purchasers of, or 
 who have liens on, the equity of redemption in the mortgaged 
 premises, subsequent to the registry or recording of complain- 
 ant's mortgage, and who claim no right in opposition thereto; 
 but it shall be sufficient for the complainant, after setting out 
 his own right and interest in the premises, to state generally 
 that such defendants have or claim some interest in the premises, 
 as subsequent purchasers or encumbrancers, or otherwise. 
 
 Walk. Ch. 43; 36 Mich. 364; 40 Mich. 807; Har. Ch. 423, 
 443, 449; Walk. Ch. 465; 6 Mich. 70; Walk. Ch. 64; 39 Mich. 
 42; 34 Mich. 10; 35 Mich. 115; 1 Mich. 179; 3 Mich. 448; 
 8 Mich. 115; 13 Mich. 409; 14 Mich. 361; 10 Mich. 453; 15 
 Mich 489; 34 Mich. 221; 35 Mich. 97; 24 Mich. 39; 28 
 Mich. 125; 26 Mich. 128; 27 Mich. 308; 32 Mich. 438; 33 
 Mich. 354; 34 Mich. 10; 35 Mich. 99; 38 Mich. 387, 513. 
 667; 43 Mich. 299; 33 Mich. 505; 40 Mich. 506; 41 Mich. 
 719; 35 Mich. 134; 40 Mich. 371; 42 Mich. 304; 43 Mich. 
 468; 34 Mich. 362; 34 Mich. 221; 34 Mich. 300; 35 Mich. 
 115; 42 Mich. 107, 304; 35 Mich. 464; 36 Mich. 77, 173; 39 
 Mich. 689; 40 Mich. 530; See H. S— ; 40 Mich. 264; 40 Mich 
 
 19
 
 290 MICHIGAN CHANCERY RULES. 
 
 380; 41 Mich. 274; 3 Mich. 211; 9 Mich. 9; 12 Mich. 270; 13 
 Mich. 308; 24 Mich. 305, 479; 26 Mich 500; 30 Mich. 149; 
 ■A5 Mich. 134, 229, 284; 40 Mich. 339, 610, 668; 41 Mich. 371, 
 719: 42 Mich. 115, 482; 37 Mich. 473. 
 
 REFERENCE TO COMPUTE AMOUNT DUE ON MORTGAGE. ETC. — 
 AFFIDAVIT OF REGULARITY. 
 
 Rule 92. If a bill to foreclose a mortgage is taken as con- 
 fessed, or the right of the complainant, as stated in his bill, is 
 admitted by the answer, he may have an order of course, refer- 
 ring it to a commissioner to compute the amount due to the 
 complainant, and to such of the defendants as are prior incum- 
 brancers of the mortgaged premises; and if the defendant is an 
 infant, and has put in a general answer by his guardian, or any 
 of the defendants are absentees, the complainant may have a 
 similar order of course, referring it to a commissioner to take 
 proofs of the facts and circumstances stated in the complainaut's 
 bill, and to compute the amount due on the mortgage, prepara- 
 tory to the hearing of the cause. But every such cause shall be • 
 regularly brought to hearing at term after the coming in of the 
 commissioner's report, before a final decree is entered therein; 
 and if the bill has been taken as confessed, the complainant 
 shall show to the court, at the hearing, by affidavit or other- 
 wise, that the proceedings to take the bill as confessed have been 
 regular, according to the rules and practice of the court. He 
 shall also show whether the bill has been taken as confessed 
 against all of the defendants upon service of subpoena, or after 
 an appearance, or whether some of them have been proceeded 
 against as absentees. From and after January 1, 1879, sales 
 shall not be ordered on less than six full weeks or forty-two 
 days notice, and publication shall not commence until the time 
 fixed by decree for payment has expired, nor within a year after 
 commencement of suit. — As amended October IS, 187S. 
 
 See H. S. §§ 1137, 6674, 6677, 6711, 6713; Walk. Ch. 6; 
 29 Mich. 72; 16 Mich. 162; 36 Mich. 297; 43 Mich. 208; 33 
 Mich. 410; 36 Mich. 160; Walk. Ch. 15, 45; 12 Mich. 314; 
 Walk. Ch. 23, 478; 9 Mich. 28; 13 Mich. 552; 34 Mich. 300; 
 42 Mich. 304; 11 Mich. 304; 15 Mich. 253; 21 Mich. 524; 36 
 Mich. 297; 12 Mich. 215; 36 Mich. 77; 40 Mich. 1; 37 Mich. 
 473; 34 Mich. 302; 34 Mich. 503; 37 Mich. 148; 39 Mich. 304; 
 40 Mich. 517; 41 Mich. 264; 15 Mich. 253; 12 Mich. 314; 33 
 Mich. 505; 40 Mich. 506; 40 Mich. 447; 19 Mich. 142; 36 
 Mich. 285; 43 Mich. 200; 37 Mich. 81, 164; 35 Mich. 115;
 
 MICHIGAN CHANCERY RULES. 291 
 
 42 Mich. 107, 304; 42 Mich. 154; 33 Mich. 298; 34 Mich. 13; 
 
 34 Mich. 302; 29 Mich. 57, 153; 37 Mich. 596; 29 Mich. 72; 
 30 Mich. 331; 31 Mich. 263; 32 Mich. 63; 32 Mich. 225; 32 
 Mich. 515; 33 Mich. 354; 34 Mich. 10; 35 Mich. 97; 35 
 Mich. 233; 33 Mich. 298; 43 Mich. 322; 38 Mich. 30, 92; 39 
 Mich. 777; 40 Mich. 093; 41 Mich. 202, 025; 42 Mich. 34; 
 
 39 Mich. 150; 13 Mich. 23; 27 Mich. 203; 27 Mich. 289; 31 
 Mich. 440; 37 Mich. 47; 37 Mich. 539; 40 Mich. 581; 42 
 Mich. 389; 38 Mich. 430; 41 Mich. 198; Walk. Ch. 185, 459; 
 15 Mich. 253; 19 Mich. 142; 21 Mich. 524; 23 Mich. 312; 
 
 35 Mich. 134; 36 Mich. 77; 38 Mich. 387 430; 41 Mich. 198; 
 34 Mich. 477; 43 Mich. 129; 43 Mich. 515; 43 Mich. 208; 
 
 40 Mich. 447; 38 Mich. 662; 41 Mich. 40; 43 Mich. 349; 43 
 Mich. 549, 473. 
 
 HOW SURPLUS ON FORECLOSURE SALE DISPOSED OF. 
 
 Rule 93. On the coming in and confirmation of the com- 
 missioner's report of the sale of mortgaged premises, if it shall 
 appear there is any surplus money remaining in court after satis- 
 fying the amount due the complainant, any defendaut, upon fil- 
 ing an affidavit that such surplus has been paid into court, and 
 that he is entitled to the same, or some part thereof, may have 
 an order of course, referring it to a commissioner to ascertain 
 and report the amount due to such defendants, or to any other 
 person, and which is a lieu upon surplus moneys; and to ascer- 
 tain the priorities of the several liens thereon; to the end that 
 on coming in and confirmation of the report, such further order 
 and decree may be made for the distribution of surplus moneys 
 as may be just; and every defendant who has appeared in the 
 cause, and every person who has left a written notice of his 
 claim to such surplus moneys with the register or assistant reg. 
 ister, where the same are deposited, shall be entitled to notice to 
 attend the commissioner on such reference. And any person 
 making a claim to such surplus moneys, and who shall fail to 
 establish his claim on the hearing before the commissioner, may 
 be charged with such costs as the other parties have been sub- 
 jected to by reason of such claim; and the parties succeeding 
 on such reference may be allowed such costs as by the court 
 may be deemed reasonable; but no costs unnecessarily incurred 
 on such reference, or previous thereto, by any of the parties, 
 shall be allowed on taxation or paid out of such surplus. 
 
 See H. S. §§6709-6710, 10 Mich. 268; 21 Mich. 211; 19 
 Mich. 244; 12 Mich. 398; 21 Mich. 211; 33 Mich. 63; 33.
 
 292 MICHIGAN CHANCERY RULES. 
 
 Mich. 268-337; 35 Mich. 57; 36 Mich. 281; 41 Mich. 689; 36 
 Mich. 287; 36 Mich. 285; 40 Mich. 264; 42 Mich. 131; 43 
 Mich. 192; 17 Mich. 386; 18 Mich. 255; 13 Mich. 258. 
 
 SECURITY BY GUARDIAN AD LITEM, ETC. 
 
 Rule 94. No guardian ad litem for an infant defendant, or 
 next friend of an infant complainant, unless he has given securi- 
 ty to the infant according to law, shall as such guardian, receive 
 any money or property belonging to such infant, or which may 
 be awarded to him in the suit, except such costs and expenses 
 as may be allowed by the court to the guardian, out of the fund, 
 or received by the infant in the suit. Neither shall the general 
 guardian of an infant receive any part of the proceeds of the sale 
 of real property belonging to such infant sold under a decree or 
 order of the court, until the guardian has given such further 
 security for the faithful discharge of his trust as the court may 
 direct. 
 
 Walk. Ch. 314; 42 Mich. 69. 
 
 BILLS FOR DIVORCE. 
 
 Rule 95. All bills for the purpose of obtaining divorce, 
 whether the husband or wife is complainant, shall be duly veri- 
 fied by oath, in the usual manner of verifying bills, where, by 
 the course and practice of the court, an oath is required. In a 
 bill for a divorce on the ground of adultery, the complainant 
 must also positively aver that the adultery charged in the bill 
 was committed without the consent, connivance, privity or pro- 
 curement of the complainant; and that the complainant has not 
 voluntarily cohabited with the defendant since the discovery of 
 such adultery. And in all such bills, and in all bills for divorce 
 upon any ground, the complainant shall also positively aver that 
 the act done or cause charged in the bill for which divorce is 
 sought, was committed without the consent, connivance, privity 
 or procurement of the complainant, and that such bill is not 
 founded on or exhibited in consequence of any collusion, agree- 
 ment or understanding whatever between the parties thereto, or 
 between the complainant and any other person. 
 
 Const. Art. 4, sec. 26; Comp. L. 1871, ch. 170; Walk. Ch. 
 53; Har. Ch. 19; Walk. Ch. 421 ; 6 Mich. 285; 14 Mich. 462; 
 18 Mich. 458; 21 Mich. 414; 26 Mich. 417; 30 Mich. 163; 15 
 Mich. 184; 12 Mich. 456; 16 Mich. 162; 17 Mich. 205, 211; 22 
 Mich. 242; 24 Mich. 180; 22 Mich. 299; 26 Mich. 417; 30
 
 MICHIGAN CHANCERY RULES. 293 
 
 Mich. 163; 35 Mich. 138; 37 Mich. 003; 40 Mich. 232, 
 495; 39 Mich. 07, 719; 40 Mich. 63; 35 Mich. 138; 39 Mich. 
 221; 39 Mich. 661; 40 Mich. 232; 35 Mich. 138; 40 Mich. 
 527, 528, 232; 42 Mich. 53; 43 Mich. 287; 40 Mich. 493; 40 
 Mich. 633; 3 Mich. 67; 20 Mich. 34; 26 Mich. 437: 13 Mich. 
 452; 17 Mich. 205; 33 Mich. 201; 18 Mich. 420; 35 Mich. 461; 
 17 Mich. 205, 211; 20 Mich. 34; 24 Mich. 482; 26 Mich. 417; 
 40 Mich. 493; 34 Mich 519; 16 Mich, 140; 35 Mich. 210; 11 
 Mich. 284; 20 Mich. 222; 24 Mich. 482; 31 Mich. 194, 298; 
 26 Mich. 437; 17 Mich. 211; 36 Mich. 386; 25 Mich. 247; 24 
 Mich. 180; 22 Mich. 242. 
 
 REFERENCE TO TAKE PROOFS IN DIVORCE CASES. 
 
 Rule 96. If any such bill is taken as confessed, or the facts 
 charged therein are admitted by the answer, the complainant 
 may, upon due proof by affidavit of the regularity of the pro- 
 ceedings to take the bill as confessed, or upon the bill and 
 answer, have an order of course entered for a reference to a com- 
 missioner, to take proof of all the material facts charged in the 
 bill, and to report such proof to the court, with his opinion 
 thereon. And on such reference it shall be the duty of the com- 
 missioner, in addition to any questions put by the parties, to 
 make such full inquiries of the persons sworn as shall be neces- 
 sary to arrive at all the material facts of the case. 
 
 Walk. Ch. 532; 28 Mich. 344; 31 Mich. 298; 17 Mich. 
 211; 31 Mich. 298; 29 Mich. 305; 24 Mich. 482; 20 Mich. 34; 
 24 Mich. 482; 26 Mich. 417; 33 Mich. 101. 
 
 DEFENCE OF ADULTRY, ETC , IN DIVORCE CASES. 
 
 Rule 97. The defendant in the answer may set up the adul- 
 tery of the complainant, or any other matter which would be a 
 bar to a divorce, separation, or the annulling of the marriage 
 contract; and if an issue is taken thereon, it shall be tried at the 
 same time and in the same manner as other issues of fact in the 
 cause. 
 
 5 Mich. 395; 6 Mich. 285. 
 
 DECREE FOR DIVORCE, ETC., NOT TO GE ENTERED BY CONSENT 
 OR DEFAULT. 
 
 Rule 98. No sentence or decree of nullity, declaring void a 
 marriage contract, or decree for a divorce, or for a separate or 
 limited divorce, shall be made of course, by the default of the 
 defendant; or in eon -sequence of any neglect to appear at the 
 hearing of the cause, or by consent. And every such case shall
 
 294 MICHIGAN CHANCERY RULES. 
 
 be heard after the trial of the issue, or upon the coming in of the 
 commissioner's report, at a stated term of the court. 
 
 Walk. Ch. 48, 309; 16 Mich. 79; 13 Mich. 452: 18 Mich. 
 335; 12 Mich. 456; 24 Mich. 176; 36 Mich. 37; 37 Mich. 59; 
 10 Mich. 425; 39 Mich. 64. 
 
 PARTIES TO CAUSES, AND WITNESSES, MAY BE EXAMINED BY 
 COURT ORALLY. 
 
 Rule 99. In all chancery cases whatever, whether for divorce 
 or otherwise, which are at issue on pleadings and proofs, the 
 court may call upon the parties thereto, or any of them, or any 
 witnesses thereto, to testify orally in open court; and in all cases 
 of divorce, whether at issue or standing on the bill taken as con- 
 fessed, the court may in like manner call upon the complainant, 
 or any witness thereto, so to testify; and may make all necessary 
 orders to secure the attendance of such party or -witness, and 
 may suspend the hearing of the cause from time to time, as often 
 as may be necessary to secure such attendance; or in case of the 
 neglect or refusal of the complainant to attend and testify, may 
 dismiss the bill in the same manner as though said complain- 
 ant had made default at the hearing. 
 37 Mich. 603. 
 
 PAYMENT OF INTERLOCUTORY COSTS — HOW COMPELLED. 
 
 Rule 100. When a party is ordered to pay the costs of any 
 interlocutory proceedings, and no time of payment is specified 
 in the order, he shall pay them within twenty days after the filing 
 of the taxed bill and affidavit, and service of a copy of the 
 order and of such taxed bill; or if a gross sum is specified in the 
 order, within twenty days of service of a certified copy of the 
 order. And if he neglects or refuses to pay such costs within 
 the time prescribed as aforesaid, or specified in the order, the 
 adverse party, on an affidavit of the personal service of such 
 copies, and a demand of payment, and that such costs have not 
 been paid, may have an execution therefor, or move for an at- 
 tachment against the delinquent. 
 
 Har. Ch. 19; 35 Mich. 138; 22 Mich. 299; See H. S. 
 §§6235, 6653, 7257. 
 
 BILL OF REVIEW. 
 
 Rule 101. On filing a bill of review, or other bill in the 
 nature of a bill of review, the complainant shall make the like
 
 MICHIGAN CHANCERY EULE8. 295 
 
 deposit, or give security to the adverse party in the same amount 
 which is or would be required on an appeal from an order or de- 
 cree complained of ; and no such bill shall be liled, either upon 
 the discovery of new matters, or otherwise, without special leave 
 of the court first obtained, nor unless the same is brought within 
 the time allowed for bringing au appeal, excapt upon newly 
 discovered facts or evidence, unless upon reasons satisfactory to 
 the court. 
 
 18 Mich. 490; 23 Mich. 537; 25 Mich. 527; 30 Mich. 160; 
 35 Mich. 115; 40 Mich. 166; 39 Mich. 64; 35 Mich. 115; 39 
 Mich. 98: 40 Mich. 307: 42 Mich. 107; 42 Mich 304; 52 Mich. 
 489; 45 Mich. 394; 63 Mich. 215; 48 Mich. 375. 
 
 CREDITOR'S BILL — WHAT TO STATE. 
 
 Rulio 102. AVhere a creditor, b} f judgment or decree, files a 
 bill iu this court against his debtor to obtain satisfaction out of 
 the equitable interests, things in action, or other property of the 
 latter, after the retura of an execution unsatisfied, he shall state 
 in such bill, either positively or according to his belief, the true 
 sum actually and equitably due on such judgment or decree, 
 over and above all just claims of the defendant, by way of off- 
 set or otherwise. He shall also state that he knows, or has reason 
 to believe, thedefendaut has equitable interests, things in action, 
 or other property, exceeding one hundred dollars in value, exclu- 
 sive of all prior claims thereon, which the complainant has been 
 unable to discover and reach by execution on such judgment or 
 decree. The bill shall likewise contain an allegation that the 
 same is not exhibited by collusion with the defendant, or for the 
 purpose of protecting the property or effects of the debtor 
 against the claims of other creditors; but for the sole purpose of 
 compelling payment and satisfaction of the complainant's own 
 debt. 
 
 • Walk. Ch. 1, 28, 62, 143. 317, 353, 495; Har. Ch. 162, 169, 
 
 327, 430, 435; 38 Mich. 578; 43 Mich. 269; liar. Ch. 227; 
 
 Walk. Ch. 28, 495; Har. Ch. 430; 1 Mich. 213, 321; 26 Mich. 
 
 383, 500; 33 Mich. 268; 7 Mich. 334; 9 Mich. 358, 485; 30 
 
 Mich. 63; 40 Mich. 636, 24; 43 Mich. 309; Har. Ch. 169; 
 
 Walk. Ch. 62; 1 Mich. 213, 321; 9 Mich. 358. 485; 17 Mich. 
 
 128; 30 Mich. 63; 3 Mich. 201; Walk. Ch. 1, 495. 28, 143, 
 
 317: Har. Ch. 169, 430, 435; 1 Mich. 446; Har. Ch. 162; 
 
 Walk. Ch. 353, 5. 115, 391. 465. 495; Har. Ch. 227, 443, 449; 
 
 1 Dous?. 351; 1 Mich. 118, 512, 44ti; 6 Mich. 441: 31 Mich. 76; 
 
 33 Mich. 257; 27 Mich. 76; 41 Mich. 503; 29 Mich. 526; 32
 
 296 MICHIGAN CHANCERY RULES. 
 
 Mich. 88; 51 Mich. 148; 55 Mich. 39; 52 Mich. 8; 45 Mich. 
 554; 63 Mich. 250; German American Seminary v. Sawyer, 
 66 Mich. (June, 1887); 55 Mich. 387; 40 Mich. 689, 399; 9 
 Mich. 358, 485. 
 
 creditor's bill to be verified— amendment of. 
 Rule 103. Every such creditor's bill shall be verified by the 
 oath of the complainant, or in case of his absence from the state, 
 or other sufficient cause shown, by the oath of his agent or attor- 
 ney. Such bills may be amended of course, in the same manner 
 as bills not sworn to, if the amendments are merely in addition 
 to and not inconsistent with what is contained in the original bill. 
 But all such amendments shall be verified by oath, in the same 
 manner as the bill is required to be verified. 
 Walk. Ch. 5. 
 
 CREDITORS MAY PROCEED EX PARTE WHEN DEFENDANT IN DE- 
 FAULT. 
 
 Rule 104. In suit by judgment creditor's bill, incase the de 
 fendant has been duly served with process, and he is in default 
 for want of answer, the complainant shall be entitled to the like 
 orders and proceedings in regard to receivers as he would be in 
 case he should take the bill as confessed by the defendant. 
 SeeH. S. §§6624, 6625. 
 
 DEBTOR MAY OONSENT THAT BILL BR TAKEN AS CONFESSED — 
 ORDER THEREON — COPY OF RULE TO BE SERVED WHEN 
 ANSWER REQUIRED. 
 
 Rule 105. The debtor against whom a creditor's bill is filed 
 shall not be subject to the expense of putting in an answer there- 
 to in the usual manner, if he shall cause his appearance to be 
 entered within twenty days after the return day of the subpoena, 
 and shall, within the time allowed for an answer, deliver to the 
 complainant or his solicitor a written consent that an order may 
 be eutered taking the bill as confessed, and for the appointment 
 of a receiver, and for a reference to take the examination of the 
 defendant, in conformity to this rule. Upon presenting such 
 written consent to the court, the complainant may have a special 
 order, founded thereon, directing the bill to be taken as con- 
 fessed a^aiasl th ■ debtor, and referring it to such commissioner 
 as the court m ly designate in 'such order, to appoint a receiver 
 with the usual powers, and to take from him the requisite secu-
 
 MICHIGAN CHANCERY RULES. 297 
 
 rity. The order shall also direct the defendant to assign, transfer 
 and deliver over to the receiver on oath, under the direction of 
 the commissioner, all his property, equitable interests, and in 
 action, and effects; and thai he appear before the commissioner, 
 from time to time, and produce such books and papers, and sub- 
 mit to such examination as the commissioner shall direct, in 
 relation to any matter which he might have been legally required 
 to disclose if he had answered the bill in the usual manner. The 
 expeuse of taking down such examination by the commissioner 
 shall be paid by the complainant in the first instance, and maybe 
 taxed and allowed to the latter as a part of his necessary costs in 
 the suit. The complainant shall also be at liberty to examine 
 witnesses before the commissioner, as to the property of the de- 
 fendant, or as to any other matter charged in the bill and not 
 admitted b} r the defendant on such examination. And the com- 
 plainant shall cause a written or printed copy of this rule to be 
 served on the defendant at the time of the service of the subpoena, 
 with a notice to the defendant that an entry of his appearance 
 and answer on oath is required; or such defendant shaii not be 
 answerable to the complainant for the costs of the proceedings 
 to compel an appearance and answer. 
 Walk. Ch. 353, 391, 465. 
 
 RECEIVERS IN CREDITOR'S SUITS, AND THEIR POWERS, 
 
 Rule 106. Every receiver of the property and effects of the 
 debtor, appointed in a suit upon a creditor's bill, shall, unless 
 restricted by the special order of the court or circuit court com- 
 missioner, have general power and authority to sue for and col- 
 lect all the debts, demands aud rents belonging to such debtor, 
 and to compromise and settle such as are unsafe and of a doubt- 
 ful character. He may also sue in the name of the debtor, where 
 it is necessary or proper for him to do so, and he may apply for 
 and obtain an order of course that the tenants of any real estate 
 belonging to the debtor, or of which he is entitled to the rents 
 aud profits, attorn to such receiver and pay their rents to him. 
 He shall also be permitted to make leases from time to time as 
 may be necessary, for terms not exceeding one year. Aud it 
 shall be his duty, without unreasonable delay, to convert all the 
 personal estate and effects into money; but he shall not sell any 
 real estate of the debtor without the special order of the court.
 
 298 MICHIGAN CHANCERY KULES. 
 
 He is not to be allowed for the costs of any suit brought by him 
 against an insolvent from whom he is unable to collect his costs, 
 unless such suit is brought by order of the court, or by the 
 consent of all persons interested in the funds in his hands. But 
 he may sell such desperate debts, and all other doubtful claims 
 to personal property, at public auction, giving at least ten days' 
 notice of the time and place of such sale. 
 
 RECEIVER FOR SEVERAL SUITS — SECURITY TO BE GIVEN — HOW 
 TO PAY OVER MONEYS. 
 
 Rule 107. Where several bills are filed by different creditors 
 against the same debtor, no more than one receiver of his 
 property and effects shall be appointed, unless the first appoint- 
 ment has been obtaiued by fraud or collusion, or unless the 
 receiver is an improper person to execute the trust. The 
 receiver shall give security .sufficient to cover the whole property 
 and effects of the debtor, which may come in his hands by 
 virtue of his office; and he shall hold such property and effects 
 for the benefit of all creditors who have commenced, or shall 
 commence, similar suits, during the continuance of his trust, to 
 be disposed of according to their legal or equitable priorities. 
 He shall not pay over the funds in his hands to the parties, 
 or to any other person, without being especially authorized to 
 do so by an order or decree of the court; nor shall he be dis- 
 charged from his trust without a special order, to be obtaiued 
 upon a written consent of all the parties interested in the prop- 
 erty in his hands, or upon notice of the application. 
 
 RECEIVER FOR SUBSEQUENT SUITS. RECEIVER'S ACCOUNTS. 
 
 Rule 108. When another suit is commenced after the ap- 
 pointment of a receiver, the same person may be appointed 
 receiver of such subsequent suit, and shall give such further 
 security as the court shall direct. He shall keep a separate 
 account of any property or effects of the debtor, which may 
 have been acquired since the commencement of the first suit, or 
 which may be assigned to such receiver under the appoiutment 
 in the last cause. 
 
 EFFECT OF INJUNCTION UPON CREDITOR'S BILLS. 
 
 Rule 109. No injunction issued upon any such creditor's 
 bill shall be construed to prevent the debtor from receiving 
 and applying the proceeds of his subsequent earnings to the sup-
 
 MICHIGAN CHANCERY RULES. 299 
 
 port of himself, or of his family, or to defray the expenses of 
 the suit, or to prevent him from complying with any order of 
 this court, made in auy other cause, to assign and deliver his 
 property and effects to a receiver; or to restrain him from mak- 
 ing the necessary assignment to obtain his discharge under the 
 insolvent laws, unless an express provision to that effect is con- 
 tained in the injunction. 
 
 ORDERS ON TWO OK MORE SPECIAL MOTIONS AT SAME TIME: 
 HOW ENTERED. 
 
 Rule 110. When two or more special motions or applica- 
 tions in the same suit are decided at the same time, or on the 
 same day, or several directions are given by the court in rela- 
 tion to the suit, the whole shall be entered together as one order, 
 unless the court shall otherwise direct And when a party is 
 entitled to enter two or more orders of course in a suit at the 
 same time, or on the same day, they shall be entered together 
 as one order. 
 
 POWERS OF CIRCUIT COURT COMMISSIONERS. 
 
 Rule 111. Under the "Act to provide for the discharge of 
 the duties heretofore performed by Injunction Masters," ap- 
 proved June 27th, 1851 (8. L. 1851, p. 277), the circuit court 
 commissioners designated in pursuance thereof shall have the 
 same power in chancery cases within their respective counties 
 as may be properly exercised by a circuit judge at chambers, 
 subject to such restrictions and regulations as the supreme 
 court may prescribe. 
 
 Const. Art. 6, sec. 16; Walk, Ch. 453, 459; 17 Mich. 411. 
 
 Rule 112. The general powers conferred by said act are 
 hereby restricted in the following particulars: 
 
 1. No such circuit court commissioner shall be empowered 
 to vacate any order or decree of the circuit court, or any order 
 made by a circuit judge. 
 
 2. Nor shall he grant any injunction to stay proceedings at 
 law, unless reasonable notice of the time and place of hearing 
 the application therefor shall have been previously given to the 
 adverse party. 
 
 3. Nor shall he grant any injunction without such notice in any 
 case unless the judge of the circuit court iu which the application 
 is made shall be absent from the county at the time of such ap-
 
 300 MICHIGAN CHANCERY RULES. 
 
 plication or is disqualified from granting an injunction in the 
 cause, nor unless in the opinion of such commissioner the pecu- 
 liar exigencies of the case require it for manifest reasons to be 
 shown by the affidavit of the facts and circumstances. 
 
 4. Nor shall he grant any injunction restraining the execu- 
 tion or performance of any public improvement, nor to compel 
 a defendant to refrain from doing any act where the injunction 
 will necessarily produce great and irreparable injury to the de- 
 fendant, if the claim of the complainant is not sustained. Nor 
 shall he grant any injunction in any case where no special pro- 
 vision is made by law as to security; except where the injunc- 
 tion prayed for is against a judgment debtor who is made 
 defendant in a creditor's bill, unless the officer granting the 
 same shall take from tbe complainant or his agent a bond to 
 the party enjoined, in such sum as shall be deemed sufficient and 
 in not less than Ave huudred dollars, with sufficient surety or 
 sureties to be approved of by the officer allowing the injunction, 
 conditioned to pay the party enjoined such damages as he may 
 sustain by reason of the injunction if the court shall eventually 
 decide that the complainant was not equitably entitled to such 
 injunction, such damages to be ascertained by a reference to a 
 circuit court commissioner, or by the court having jurisdiction 
 of the cause in wliich the injunction issued, as such court shall 
 direct. 
 
 Such officer allowing the injunction shall, before the register 
 shall issue the writ, file such bond with such register in chan- 
 cery, who shall carefully preserve the same for the benefit of the 
 obligee therein named. - (Ordered to take effect June 1st, 1886). 
 As amended April 7, 18S6. 
 17 Mich. 411. 
 
 PRACTICE BEFORE COMMISSIONERS. 
 
 Rule 113. The rules and practice of the circuit courts in 
 chancery shall govern the proceedings before such circuit court 
 commissioners, as far as they may be applicable. 
 
 commissioner's register op proceedings. 
 
 Rule 114. It shall be the duty of every such circuit court 
 
 commissioner to procure and keep in his office a register, which 
 
 shall be delivered over to his successor in office, in which he shall 
 
 enter the title of each cause or proceeding in which he shall
 
 MICHIGAN CHANCERY KULES. 301 
 
 make any order, and a complete memorandum of his doings 
 therein. And every commissioner shall file with the register of 
 the court all orders made by him, together with all papers on 
 which the same are based, immediately upon the making of such 
 order. 
 
 APPEAL FROM ORDER OF COMMISSIONER. 
 
 Rule 115. Any person conceiving himself aggrieved by any 
 order made by any such circuit court commissioner, in any 
 suit in chancery, may appeal therefrom to the circuit court of 
 the county in which such suit is pending: Provided (1) That 
 such appeal shall be claimed and entered within fifteen days 
 from the time of making such order; and (3) That the appellant 
 shall, within that time, execute a bond to the appellee in such 
 penal sum, not less than one hundred dollars, as the commis- 
 sioner shall prescribe, with sufficient security, to be approved by 
 the commissioner, conditioned to pay, satisfy and perform the 
 order which by the circuit court may be made in the premises, 
 and to pay all costs in case the order appealed from shall be 
 affirmed. But no such appeal shall operate as a stay of proceed- 
 ings, unless a special order to that effect shall be made by the 
 circuit judge or by such circuit court commissioner, on proper 
 cause shown. 
 
 BOND ON APPEAL. 
 
 Rule 116. The appeal bond mentioned in the preceding rule 
 shall be filed with the circuit court commissioner approving the 
 same, and shall be returned with the appeal papers. 
 
 -PROCEEDINGS TO PERFECT APPEAL. 
 
 Rule 117. It shall be the duty of the appellant under these 
 rules to file with the circuit court commissioner, within the time 
 above limited for claiming and entering his appeal, his reasons 
 for such appeal. Whereupon it shall be the duty of such com- 
 missioner, within twenty days thereafter, to transmit to the clerk 
 of the circuit court said bond and all papers upon which the 
 motion or proceeding may have been founded, or which may 
 have been used on such motion or proceeding, unless already so 
 filed, certified by him, or in case the original pleadings or files 
 shall have been used, he shall certify such fact to the court, with 
 a description of the original papers so used.
 
 302 MICHIGAN CHANCERY RULES. 
 
 FEES OF COMMISSIONERS. 
 
 Rule 118. Such circuit court commissioners shall be entitled 
 to the following fees for their services, to be paid by the party 
 requiring such services, on the performance of the same, viz: 
 
 For entering any cause on the register required to be kept by 
 such commissioner, fifty cents. 
 
 For hearing a motion for injunction, when opposed, three 
 dollars; when heard ex parte, one dollar. 
 
 For attending at the time and place assigned for the hearing 
 of any special motion, and adjourning the same upon request or 
 on reasonable cause, one dollar. 
 
 For attending and hearing every argument, upon any special 
 motion, when contested, three dollars; if not contested, one 
 dollar. 
 
 For certifying papers, when an appeal is claimed from the cir- 
 cuit court commissioner, to the circuit court, two dollars. 
 
 For approving and filing appeal bond, fifty cents. 
 
 For granting stay of proceedings when an appeal is taken, fifty 
 cents. 
 
 For allowing a commission to take testimony in a cause, fifty 
 cents. For settling and allowing interrogatories under a com- 
 mission, one dollar. 
 
 For appointing a receiver, when the question is contested, 
 three dollars and fifty cents; when ex parte, one. dollar and fifty 
 cents. 
 
 If any commissioner shall perform any other duties than those 
 enumerated in the above fee bill, he shall be entitled to such fees 
 therefor as shall be allowed him by the circuit judge. 
 
 GENERAL PRACTICE OF COURT. 
 
 Rule 119. In cases where no provision is made by the statute, 
 or by these rules, the proceedings of this court shall be according 
 to the customary practice, as it has heretofore existed in cases 
 not provided for by statute or the written rules of the court. 
 
 WHEN RULES TO TAKE EFFECT. 
 
 Rule 120. These rules shall take effect from and after the 
 fifteenth day of June, 1858.
 
 MICHIGAN CHANCERY RULES. 303 
 
 PROOFS IN PARTITION SUITS. 
 
 Kule 121. In all cases where a suit is brought for a partition 
 of lands, if any defendant is an infant and has answered gener- 
 ally, the complainant may at any time thereafter, before hearing, 
 enter an order of course for a reference to take proofs of all 
 material facts of the case, and of the title of the complainant ; 
 and, on such reference, he shall exhibit before the commissioner 
 proof of his title and of all other material facts, and a complete 
 abstract of all the conveyances and incumbrances; all of which 
 proofs and abstracts shall be reported to the court. And no de- 
 cree shall, in such or any other case, be rendered against an 
 infant, in partition, until the court if fully satisfied concerning 
 the facts and circumstances of the case; and the court may at 
 any time order such reference, or further references, as justice 
 may require for the complete information of the court. And 
 the proofs shall in all cases be returned to the court for its action 
 thereon. — Adopted July 17, 1863. 
 
 Har. Ch. 247; 19 Mich. 116; 12 Mich. 540; 25 Mich. 53; 30 
 Mich. 38; 28 Mich. 12; 28 Mich. 521; 25 Mich. 381; 29 Mich. 
 122; Walk. Ch. 200; 21 Mich. 524; 8 Mich. 263; 21 Mich. 
 438; 22 Mich. 77; 25 Mich. 175;' 28 Mich. 163; 43 Mich. 171. 
 
 FORM OF SUBPCKNA — UNDERWRITING— PRINTED FORM. 
 
 Rule 122. To remove the danger of mistake among defend- 
 ants ignorant of the meaning of the command of a subpoena, it 
 shall be necessary, after the first day of January, 1880, and per- 
 mitted and recommended until then, that the body of the sub- 
 poena, instead of requiring personal appearance under a pecun- 
 iary penalty, shall contain a notice of the filing of the bill, and 
 of the time when appearance may be entered on penalty of de- 
 fault; and there shall be underwritten a notice designating against 
 what defendants a personal decree is asked. 
 
 Such subpoena shall be in substantial compliance with the form 
 hereto appended. 
 
 Printed forms must be clearly and legibly printed on durable 
 paper, and such subpoena and underwriting must be on a page 
 of full letter size, and the heading and place of endorsement 
 deep enough not to be obscured by enrollment. — Adopted April 
 22; 1S79.
 
 304 MICHIGAN CHANCERY RULES. 
 
 Form op Subposna. 
 STATE OF MICHIGAN— The Circuit Court ~\ 
 
 for the County op , > To-wil: 
 
 In Chancery. ) 
 In the name of The People of the State of Michigan: 
 
 To 
 
 [seal.] Greeting: 
 
 You are hereby notified that a bill of complaint has been filed 
 
 against you in the Circuit Court for the County of , 
 
 in Chancery, by , as complainants. ., 
 
 and that if you desire to defend the same you are required to 
 have your appearance entered with the Register of said court, 
 
 at his office in the , of in person or by 
 
 solicitor, within twenty days after the day of 
 
 in the year 18. . . ., which is the return day of this writ. Hereof 
 fail not, under the penalty of having said bill taken as confessed 
 against you. 
 
 Witness the Honorable Circuit Judge, at. . 
 
 this day of in the year of our Lord one thous- 
 and eight hundred and 
 
 Register. 
 
 Solicitor for Complainant. 
 Underwriting: A personal decree is sought against the de- 
 fendants , and the bill is filed to reach 
 
 interests in property, and not to obtain any further relief 
 against the remainder of the defendants. 
 
 Solicitor for Complainant. 
 
 63 Mich. 215. 
 Rule 123. In any case in equity where a defendant shall 
 claim from the complainant any relief which, according to the 
 established course and practice of courts of chancery, might be 
 had by cross bill, such defendant shall be at liberty by his answer 
 to present the facts upon which his equity rests, and to claim by 
 such answer the benefit of a cross-bill, and the court shall have 
 power to give relief upon such answer to the same extent that it 
 might have given it had a cross bill been filed. But if the cause 
 be such that, if a cross-bill had been filed, the practice of the 
 court would have required it to be sworn to, the answer claiming 
 such relief shall be under oath, notwithstanding an oath thereto 
 may be waived by the bill. — Adopted March 6, I8S4. 
 
 60 Mich. 591; McGuire v. Burk, 69 Mich. (April 24, 1888); 
 54 Mich. 634; 48 Mich. 539.
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Abandonment, Rule 
 
 of exceptions for insufficiency.. 28, 29 
 of exceptions for scandals, etc.. 30, 31 
 
 Absent Defendants, 
 
 proceedings against -16 
 
 Absolute, 
 when report on exceptions be- 
 comes 33 
 
 when order of confirmation be- 
 comes 79 
 
 Abstract, 
 
 of pleadings, etc 65 
 
 of title, in partition suits 121 
 
 Accounting, 
 before commissioner 77 
 
 Accounts, 
 
 kept by register, deposits 87 
 
 kept by receiver, separate 108 
 
 Address, 
 of petitions and bills 4 
 
 Adjournment, 
 of hearing motions, etc 5 
 
 Admission, 
 if answer not replied to 18 
 
 Adultery, 
 
 bill for divorce for 95 
 
 defence to divorce bill 97 
 
 Affidavits, 
 to obtain an attachment when 
 
 a discovery is prayed for 12 
 
 of non-service of bill 14 
 
 of publication and non-appear- 
 ance, absent defendants 16 
 
 to obtain testimony of defend- 
 ant 55 
 
 of merits, in mortgage cases.. 63 
 
 of facts for a rehearing 81 
 
 to be annexed to costs to be 
 
 taxed 90 
 
 of regularity 92 
 
 to obtain surplus on sale H3 
 
 of regularity in divorce cases.. 96 
 for injunction 112 
 
 Agents, 
 to be appointed by solicitors.. 1 
 to be solicitors, register or 
 
 deputy 1 
 
 when service may be on 2 
 
 double time of service on 3 
 
 of complainant, may swear to 
 
 bill when 7 
 
 when to verify creditor's bill . . 103 
 
 Agreements, 
 between parties, to be in writ- 
 ing 84 
 
 to be denied in divorce bill 95 
 
 20 
 
 Alias, Rule 
 
 process may be issued 9 
 
 Allowance, 
 of interrogatories to annex to 
 
 commission 50 
 
 Amendments, 
 
 to bill, when allowed 21 
 
 to be of course, without order.. 21 
 not to be of course to injunc- 
 tion bills 21, 23 
 
 service of, necessary " 21 
 
 to sworn bill, how verified 21 
 
 statement of, to be filed 21 
 
 after demurrer 22 
 
 after exceptions allowed or 
 
 submitted to 23 
 
 after plea or demurrer over- 
 ruled 23 
 
 to creditor's bill 103 
 
 Answer, 
 
 how to be verified 8 
 
 to be put in within twenty days, 11 
 to be put in instanter atter at- 
 tachment 13 
 
 exceptions to 17 
 
 effect of, when not replied to. . 18 
 
 on oath, how waived 18 
 
 before whom they may be 
 
 sworn 19 
 
 taken out of state, how verified, 19 
 to cross-bill, when demand- 
 able 20 
 
 amendments requiring new. .. 21 
 to exceptions and amend- 
 ments 23 
 
 time allowed after amend- 
 ments S3 
 
 on overruling plea, etc 26 
 
 exceptions to, when to be 
 
 taken 27 
 
 to be deemed sufficient if not 
 
 excepted to 27 
 
 reference of exceptions for in- 
 sufficiency 28 
 
 reference of second or third for 
 
 insufficiency 29 
 
 exceptions to, for acmdal or 
 
 impertinence 30 
 
 when deemed sufficient 30 
 
 to amendments, time for to be 
 
 fixed by the commissioner. . . 32 
 further time for, on exceptions 
 
 submitted to 35 
 
 to amendments on exceptions 
 allowed 36
 
 306 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Answer— Continued. Rule 
 to amendments and excep- 
 tions.. 37 
 
 when defendant may decline 
 
 to, as to part of the bill 43 
 
 to be legally written, how en- 
 titled 67 
 
 when not required to creditor's 
 
 bill 105 
 
 Appeals, 
 
 from commissioner 115 
 
 when to stay proceedings 115 
 
 Appearance, 
 
 when and bow entered 11 
 
 on return of attachment served 13 
 penalty for refusing to enter. . 13 
 defendant who has not entered. 
 
 not entiled to notice, etc — 15 
 how compelled, to creditor's 
 
 bill 105 
 
 Application, 
 for order as to absent defend- 
 ants. IK 
 
 « for dismissal for want of prose- 
 cution 46 
 
 for special commission 51 
 
 to enlarge time to take proofs.. 59 
 copy of special, to be served 
 
 with notice 61 
 
 for review of commissioner's 
 
 proceedings 74 
 
 for stay of proceedings 82 
 
 for relaxation, of cost s 89 
 
 for discharge of receiver 107 
 
 several made at a time, orders.. 110 
 
 for injunction 112 
 
 Appointment, 
 of agent to be in writing, signed 
 
 and filed 1 
 
 of receiver on creditor's bill.. 105 108 
 Argument, 
 notice for, of plea or demurrer, 25 
 of exceptions to answer, to be 
 
 heard as a motion 39 
 
 Assignment, 
 to receiver on creditor's bill... 105 
 not precluded by injunction. . . 109 
 Attachment, 
 for not appearing, when to 
 
 issu»* 12 
 
 neglect to appear on, penalty 
 
 for 13 
 
 procedings on, to compel ap- 
 pearance 18 
 
 to compel answer after plea or 
 
 demurrer overruled 26 
 
 to compel payment of costs of 
 
 exceptions 37 
 
 to compel further answer 38 
 
 may issue, for interlocutory 
 
 costs 100 
 
 Attendance, 
 
 of witnesses, how obtained 57 
 
 default in, before commis- 
 sioner 74 
 
 Attendance— Continued. Rule 
 in open court, compelled in di- 
 vorce suits 99 
 
 Attorney, 
 of complainant, may swear to 
 
 bill when 7 
 
 when to verify creditor's bill. 103 
 Bank, 
 accounts with, how kept by 
 
 the register 87 
 
 orders on, how drawn 88 
 
 Bills, 
 
 how addressed 4 
 
 of nonresidents, not to be filed 
 
 without security for costs 6 
 
 to be sworn to, when 7 
 
 how to be sworn to 8 
 
 manner of stating matters in. . 8 
 
 taken as confessed 11 
 
 copy of, served when 11 
 
 dismissed for non-service of 
 
 copy 14 
 
 not sworn to, amendable of 
 
 course 21 
 
 amendment after answer 21 
 
 amendment of sworn bills 21 
 
 injunction bills, how amended, 21 
 new engrossment of amended, 21 
 may be amended after de- 
 murrer 22 
 
 may be amended on exception 
 
 allowed 23 
 
 of revivor and supplemental.. 44 
 may b^ dismissed for want of 
 
 prosecution 46 
 
 to be legibly written, how en- 
 dorsed 67 
 
 dismissal of, if papers not fur- 
 nished 68 
 
 for foreclosure of mortgages, 
 
 how to state encumbrances.. 91 
 for divorce, etc., to be sworn to, 95 
 for divorce, to contain special 
 
 averments 95 
 
 of review.not to be filed without 
 
 leave 101 
 
 by judgment creditors, what to 
 
 state.. 103 
 
 how verified 103 
 
 may be amended 103 
 
 taken as confessed 105 
 
 Bond, 
 to be given as security for 
 
 costs 6 
 
 on appeal from commissioner.. 115 
 to be filed and returned with 
 
 appeal papers 116 
 
 Books, 
 production before commis- 
 sioner 73 
 
 Calendar, 
 
 how made up 63 
 
 cause may be entered on in 
 term. . 64
 
 INDKX TO MICHIGAN OHANOKRY RULES. 
 
 307 
 
 Caption, Rule 
 
 of orders and decrees, form of.. 4 
 
 to state where made 4 
 
 Cask, 
 to be furnished the court by 
 
 complainant at hearing 62 
 
 to be not more than one-sixth 
 
 as long as pleadings, etc 62 
 
 Certificate, 
 when plea or answer sworn to 
 
 out of state 19 
 
 of counsel, to petition for re- 
 hearing 81 
 
 Charges, 
 and discharges, before com- 
 missioner', to be sworn to on 
 
 accounts 77 
 
 Circuit Court Commissioner, 
 caption of orders made by. .. 4 
 time of hearing motions, etc., 
 
 before 5 
 
 may require new bond for 
 
 costs 6 
 
 reference of exceptions to ... . 28 
 
 report on exceptions 31 , 34 
 
 may fix time for further an- 
 swer 32 
 
 exceptions to his report, how 
 
 heard 39 
 
 to allow interrogatories 50 
 
 to hear application for special 
 
 commission 51 
 
 to issue subpoena for witnesses 57 
 when to return and file deposi- 
 tions 58 
 
 proceedings on order of refer- 
 ence 70 
 
 to issue summons and fix time 
 
 of service 70 
 
 how proceedings expedited. . . 71 
 may settle order of proceed- 
 ing 72 
 
 may direct as to production 
 and custody of books and 
 
 papers 73 
 
 when may proceed ex parte ... 74 
 how examinations to be made . 75 
 exceptions for impertinence or 
 
 insufficiency of papers 76 
 
 how accounts taken before. . .. 77 
 may examine accounting party 
 
 on oath 77 
 
 may allow interest 77 
 
 may make separate report 78 
 
 •ale and conveyance of land by 80 
 
 may tax costs 89 
 
 to compute amount due in 
 
 mortgage cases 92 
 
 reference to, as to surplus on 
 
 sale 93 
 
 duties of, on reference of di- 
 vorce cases 96 
 
 to appoint receiver on credi- 
 tor's bill 105 
 
 powers as injunction master. . . Ill 
 
 Circuit Court Commissioner— 
 
 Continued. Rule 
 
 restrictions upon powers of... 112 
 practice before, how regulated, 113 
 to keep register of proceedings, 114 
 
 to file all orders, etc 114 
 
 appeals from order of 115 
 
 to return bond with appeal pa- 
 pers 116 
 
 to return appeal papers with 
 
 certificate 117 
 
 fees of lis 
 
 to take proofs in partition suits 121 
 
 Classes, 
 
 of causes on calendar 63 
 
 notice of hearing, to specify. . . 64 
 
 Clerk, 
 of solicitor, service on 3 
 
 Collusion, 
 to be denied in bill for divorce 
 to be denied in creditor's bill. , 
 receiver appointed by 107 
 
 Commissions, 
 to examine witnesses, how ob- 
 tained 48 
 
 adverse party may join in 49 
 
 special may be granted 51 
 
 95 
 
 102 
 
 2S 
 
 h»w executed and returned. 
 
 how opened and filed 
 
 Common Orders. 
 what are, and how obtained. . . 
 to refer exceptions for insuffi- 
 ciency 
 
 Common Rule Book, 
 common orders to be entered 
 
 in 24 
 
 Complainant, 
 when to give security for costs, 6 
 
 to swear to bill, when 7 
 
 subpoena subscribed by 10 
 
 to deliver a copy of bill in fif- 
 teen days if required 14 
 
 may proceed ex parte, if no ap- 
 pearance 15 
 
 examination of 16 
 
 ! may waive answer on oath, how 18 
 I may amend bill, when and how. 21-23 
 I to refer exceptions in ten days, 28 
 to serve a copy of rule in cred- 
 itor's suit 105 
 
 Complainant's Name, 
 to be placed first in title of 
 
 cause 67 
 
 Computation, 
 
 of time on rules, orders, etc 85 
 
 Concealed Defendants, 
 
 proceedings against 16 
 
 Confirmation, 
 
 of commissioner's report 79 
 
 Connivance, 
 
 to be denied in bill for divorce, 95 
 Consent, 
 for entry of order, to be in 
 
 writing and signed 24 
 
 order by, how entered 84
 
 308 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Consent— Continued. Rule 
 
 to be negatived in bill for di- 
 vorce 95 
 
 decree of divorce by, not per- 
 missible 98 
 
 to pro confesso on creditor's 
 bill 105 
 
 to discharge of receiver 107 
 
 Construction, 
 
 of injunction on creditor's bill, 109 
 Continuance, 
 
 of hearing of motions, etc 5 
 
 Conveyances, 
 
 not to be executed before en- 
 rollment 80 
 
 Copies of Pleadings, 
 
 to be served when 11 
 
 to be furnished to the court on 
 hearing 65 
 
 by whom furnished 66 
 
 Copy, 
 
 of subpoena, to be served 10 
 
 of pleadings, to be served 11 
 
 of bill, order of course to de- 
 liver in fifteen days, or decree 
 dismissing suit 14 
 
 of amendments to bill, to be 
 filed 21 
 
 of order expunging- imperti- 
 nent matter 34 
 
 of further answer after excep- 
 tions 35 
 
 of bill of costs of exceptions, 
 served when 37 
 
 of exceptions, furnished on 
 hearing 39 
 
 of interrogatories, to be served 50 
 
 of rule, to be annexed to com- 
 mission 52 
 
 of petition, etc , on special 
 motion 61 
 
 of papers to be furnished on 
 hearing 65 
 
 of points to be furnished on 
 hearing 66 
 
 of petition for rehearing 81 
 
 of application for stay, etc 82 
 
 of rule to be served in creditor's 
 
 suit 105 
 
 Costs, 
 
 security for 6 
 
 on dismissal for non-service of 
 bill 14 
 
 on amendment of bill 21 
 
 on amendment after demurrer, 22 
 
 of hearing issue on plea, to be 
 paid 25 
 
 of hearing on plea or demurrer 
 overruled 26 
 
 of exceptions submitted to, to 
 be paid by defendant 27 
 
 of exceptions for scandal or 
 impertinence 30-34 
 
 of exceptions, when disallowed 34 
 
 Costs— Continued. Rule 
 
 order for further answer and 
 
 for costs 36 
 
 taxed bill to be served before 
 
 time of answering expires. . . 37 
 of exceptions, penalty for not 
 
 paying 38 
 
 of hearing on exceptions, dis- 
 cretionary 39 
 
 of exceptions, to be all included 
 
 inline bill; offset 40 
 
 on review of proceedings by 
 
 commissioner 74 
 
 deposit for on rehearing 83 
 
 may be taxed by commissioner 
 
 or register 89 
 
 not to be paid until taxed 90 
 
 ta xation of 90 
 
 affidavit filed 90 
 
 to be verified by oath on taxa- 
 tion 90 
 
 notice of taxation of 90 
 
 where bill is dismissed 90 
 
 in divorce cases 90 
 
 where there are several defend- 
 ants 90 
 
 apportioned in certain cases. . . 90 
 of false claims to overplus on 
 
 sales 93 
 
 interlocutory, to be paid in 
 
 twenty days 100 
 
 of proceedings to compel an- 
 swer 105 
 
 Counsel, 
 certificate to petition for re- 
 hearing 81 
 
 Court, 
 
 bills to be addressed to 4 
 
 caption of decrees and orders 4 
 
 time of hearing motions 5 
 
 may require new bond for costs 6 
 may order bond for costs of 
 
 residents 6 
 
 Creditor's Bills, 
 
 form of 102 
 
 to be sworn to 103 
 
 may be amended of course 103 
 
 receiver on, when appointed ex 
 
 parte 104 
 
 submission of defendant on. .. 105 
 rule to be served with subpoena, 105 
 
 powers of receiver on 106 
 
 several suits, one receiver 107 
 
 receiver not to pay over funds 
 
 without order 107 
 
 discharge of receiver 107 
 
 injunction on, effect of 109 
 
 Cross-Bill, 
 
 when to be answered 20 
 
 Cross-Interrogatories, 
 
 time for proposing and settling, 50 
 Damages, 
 
 deposit for, on rehearing 83 
 
 Date op Issue, 
 to give priority on calendar. ... 68
 
 [NDEX TO MICHIGAN CHANCERY HULKS. 
 
 309 
 
 it 
 
 26 
 
 68 
 80 
 86 
 
 98 
 112 
 
 56 
 
 Debtor, Rule 
 
 when excused from answering 
 
 creditor's bill 105 
 
 Decrees, 
 
 caption of, to state when made, 
 
 of course, of dismissal for not 
 serving copy of bill 
 
 pro confesso, after overruling 
 plea or demurrer 
 
 by default at hearing 
 
 to be enrolled before execution, 
 
 by default, may be set aside. . . 
 
 for divorce, etc., not granted 
 by default without proof 
 
 commissioner cannot vacate. . . 
 Deeds, Etc., 
 
 not to be read at hearing, with- 
 out order 
 
 if stated in bill, and not denied 
 by answer, may be read on 
 
 hearing of cause 56 
 
 Default, 
 
 appearance may be entered on. 
 
 in putting in further answer.. . 
 
 at the he irinsr; decree 
 
 may be set aside on terms 
 
 divorce not granted by 
 
 on creditor's bill; receiver 
 
 Defendant. 
 
 who Lias not appeared not en- 
 titled to notice 2 
 
 names to be inserted in sub- 
 poena 10 
 
 to appear in twenty days after 
 service of subpoena 11 
 
 attachment for not answering, 12 
 
 arrested on attachment, to en- 
 ter his appearance and an- 
 swer 13 
 
 may have bill dismissed for 
 non-service of copy 14 
 
 who has not appeared not en- 
 titled to notice 15 
 
 proceedings against absent 16 
 
 may submit to a part of excep- 
 tions 27 
 
 may decline answering any 
 part of bill, when 43 
 
 proceedings on examination of, 
 as a witness 55 
 
 when excused from answering 
 
 creditor's bill 105 
 
 Delay, 
 
 dismissal of bill for 
 
 in attendance before c mimis- 
 
 sioner 
 
 Demurrer, 
 
 when to be put in within twenty 
 days 
 
 for want of parties, amendment 
 of course on 
 
 amendments to bill after 
 
 when may be noticed for hear- 
 ing. .' 25 
 
 time to amend bill after 25 
 
 16 
 
 2 J 
 
 Demurrer — Continued. Rule 
 overruled as frivolous or other- 
 wise, order on 26 
 
 when not to be held bad 41, 42 
 
 how placed on calendar, and in 
 
 wha 1 class 63 
 
 Deposit, 
 of books and papers for exam- 
 ination in commissioner's 
 
 office 73 
 
 to be made on rehearing, with 
 
 register 83 
 
 accounts of register as to 87 
 
 orders for payment of 88 
 
 to be made on filing bill of re- 
 view 101 
 
 Depositions, 
 commissions to take, how ob- 
 tained 48 
 
 adverse party may join in com- 
 mission 49 
 
 settlement of interrogatories.. 50 
 special commission to take.... 51 
 
 how taken and returned 52 
 
 opening, endorsing and filing.. 53 
 suppression of, not to be made 
 
 except on special motion — 54 
 register to notify solicitor when 
 
 received 54 
 
 solicitor to notify opposite soli- 
 citor when received 54 
 
 to be returned and filed in ten 
 
 days after proofs closed 58 
 
 copies to be furnished the court 65 
 how taken, on reference to 
 
 commissioner 75 
 
 Deputy Register, 
 
 may be agent 1 
 
 Disallowance. 
 
 of exceptions, when final 34 
 
 Disbursements, 
 
 items of, in bill of costs 90 
 
 Discharge, 
 of receiver in creditor's suits. . 107 
 of debtor under insolvent laws. 109 
 Discovery, 
 
 from defendant, how obtained. 12 
 Discretion, 
 as to amendment after demur- 
 rer 22 
 
 as to costs of hearing on ex- 
 ceptions 39 
 
 as to preference of causes on 
 
 calendar 63 
 
 as to production of books and 
 
 papers 73 
 
 as to costs of separate reports. 78 
 extending time and setting 
 
 aside defaults 86 
 
 as to costs on motions 90 
 
 as to costs on reference as to 
 
 surplus 93 
 
 Dismissing Bill, 
 
 for non-service of copy 14 
 
 for want of prosecution 46
 
 310 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Dismissing Bill— Continued. Rule 
 
 for default at hearing 68 
 
 for failure to attend when re- 
 quired in divorce causes 99 
 
 Distance, 
 of agent's office from regist- 
 er's 1 
 
 how affects time of service 3 
 
 from home, witness compelled 
 
 to go 57 
 
 how affects notices of hearing, 
 
 etc 61 
 
 how affects service of sum- 
 mons 70 
 
 Distribution, 
 
 of surplus on sale 93 
 
 Divorce, 
 
 bills for, to be sworn to 95 
 
 reference to take proof 96 
 
 matters set up in bar of, how 
 
 tried 97 
 
 decree of, not of course on de- 
 fault 98 
 
 party or witnesses may be re- 
 quired to testify in open 
 
 court 99 
 
 Documentary, 
 evidence not to be read with- 
 out order 56 
 
 Double Time:, 
 ■when service on an agent or by 
 
 mail 3 
 
 Encumbrances, 
 
 how set mi! iii !'■ Teclosure bill. 91 
 Endorsement. 
 
 on commission returned 53 
 
 complainant's name placed 
 
 first 67 
 
 Enrollment, 
 of decree: fore 
 
 execution 80 
 
 of decrees, no i i sue 
 
 without '. 80 
 
 Entitling, 
 of pipers, complainant's name 
 
 to be placed tirst 67 
 
 Entry. 
 of common orders, how made, 24 
 of special orders, how made. . . 24 
 of special orders made at a 
 
 time 110 
 
 on resister, fees of commission- 
 er for 118 
 
 Equitable Interests, 
 
 how reached, creditor's bills. . . 102 
 
 assigned to receiver 105 
 
 Examination, 
 
 of witnesses in open court 47 
 
 of same, before commissioner. 47 
 
 of witnesses on commission 48 
 
 of defendant as a witness 55 
 
 of witnesses, how time en- 
 larged 59 
 
 of h m.I;-., etc , before commis- 
 sioner 73 
 
 Examination— Continued. Rule 
 
 of parties, etc., before commis- 
 sioner 75 
 
 accounting before a commis- 
 sioner 77 
 
 of defendant to creditor's bill.. 105 
 Exceptions, 
 
 not to prevent motion to dis- 
 solve injunction 17 
 
 not to prevent dissolution of 
 injunction or discharge of ne 
 exeat - 17 
 
 for insufficiency, not allowed 
 where oath is waived 18 
 
 for scandal and impertinence. . 18 
 
 submitted to or allowed; 
 amendments 23 
 
 to answer, to be filed in twenty 
 days 27 
 
 notice of submission to answer 
 same 27 
 
 not submitted to, to be referred 
 in ten days 28 
 
 to be stated on reference of 
 second and third answer 29 
 
 for scandal or impertinence, 
 how taken 30 
 
 commissioner's report on, 
 when to be procured 31 
 
 to report on exceptions 33 
 
 when to become absolute 33 
 
 commissioner's report on, 
 when conclusive 34 
 
 bill of costs for, to be served 
 when 37 
 
 to report on, to be heard as a 
 special motion 39 
 
 costs on regula ted 39 
 
 costs on, to be in one bill 40 
 
 costs on, not allowed in certain 
 
 s 40 
 
 to commissioners report, 
 papers to he furnished 65 
 
 to proceedings before commis- 
 sioner 76 
 
 limited to objections taken be- 
 fore comuiissio er 76 
 
 to report of commissioner 79 
 
 Execution, 
 to compel payment of costs of 
 
 exceptions 37 
 
 of commission 49, 52 
 
 for interlocutory costs, when . . 100 
 
 Exhibits, 
 how to be annexed to deposi- 
 tion 52 
 
 to be produced before commis- 
 sioner 56 
 
 to be returned and filed before 
 
 hearing 58 
 
 abstracts of, to be furnished . . 65 
 Ex Parte, 
 when complainant to proceed. 15 
 when commissioner to proceed, 74
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 311 
 
 Ex Parte— Continued. Rule 
 
 application for stay of proceed- 
 ings .' 82 
 
 proceedings on creditor's bill.. 104 
 Extension, 
 
 of lime for complying with 
 
 rules, etc 86 
 
 Fees, 
 
 to be detailed on bill of costs. . 90 
 
 allowed in certain cases 90 
 
 of witnesses, how stated 90 
 
 of commissioners 118 
 
 Feigned Issues, 
 
 how made and tried 47 
 
 Foreclosure Suits, 
 
 proceedings in 91 
 
 bill, what rights to state 91 
 
 reference in suits of course to 
 compute 92 
 
 proofs as Co infants and absent 
 defendant-* 92 
 
 affidavit of regularity 92 
 
 sales ; notice and time of 92 
 
 reference as to surplus 93 
 
 on report of commissioner 
 
 thereon 93 
 
 Form, 
 
 of address of bills and peti- 
 tions 4 
 
 of caption of orders and de- 
 crees 4 
 
 of execution and return to 
 commission 52 
 
 of chancery subpoena, and how 
 
 printed 122 
 
 Fraud, 
 
 in appointment of receiver — 107 
 Guardian ad Litem. 
 
 not to receive infant's property 
 
 without security 94 
 
 Hearing, 
 
 of motions and petitions 5 
 
 of exceptions to report on ex- 
 ceptions 39 
 
 on bill and answer, if no repli- 
 cation is filed 45 
 
 on pleadings, if no order to 
 take proofs 47 
 
 deeds not to be read on, with- 
 out order 56 
 
 deeds may be read in certain 
 cases 56 
 
 judgments, or other matter of 
 record may be read 56 
 
 may be noticed by either 
 party 60 
 
 time to notice of, how regu- 
 lated 61 
 
 case to be furnished court on, 
 in certain cases 62 
 
 calendar of causes for how 
 made up 63 
 
 when bill is taken as con- 
 fessed 64 
 
 Hearing— Continued. Rule 
 
 to be noticed for first day of 
 
 term 64 
 
 papers fco be furnished on 05 
 
 who to furnish papers for 66 
 
 decrees by default at 88 
 
 on order of reference 70 
 
 in mortgage cases 92 
 
 in divorce causes 98 
 
 Impertinence, 
 exceptions for, when oath to 
 
 answer waived 18 
 
 exceptions for, how taken 30 
 
 report on, when to be final 34 
 
 in proceedings before commis- 
 sioner 76 
 
 Impertinent Matter, 
 excepted to, though oath to 
 
 answer vvaived 18 
 
 order to expunge 34 
 
 in proceedings before commis- 
 sioner 76 
 
 Incumbrances. 
 no*t to be stated at length in 
 
 foreclosure suits 91 
 
 Infants, 
 reference of mortgaged cases 
 
 against 92 
 
 guardians not to receive pro- 
 perty of, without giving secu- 
 rity 94 
 
 proofs in partition against 121 
 
 Informality, 
 how depositions suppressed 
 
 for 54 
 
 Information and Belief, 
 matters stated on, how to be 
 
 sworn to 8 
 
 Injunctions, 
 exceptions to answer not to 
 
 prevent dissolution of 17 
 
 injunction bills, bow amended. 21 
 amendments of course to, not 
 
 allowed 23 
 
 effect of, on creditor's bill 109 
 
 restrictions upon right of com- 
 missioner to grant 112 
 
 Inspection, 
 
 of hooks and papers 73 
 
 Instructions, 
 
 to be annexed to commission.. 52 
 Insufficiency, 
 
 exceptions to answer for 27 
 
 reference of exceptions for 28 
 
 reference of second or third 
 
 answer for 29 
 
 on exceptions for, further an- 
 swer 35 
 
 Interest, 
 on accounting before commis- 
 sioner 77 
 
 Interrogatories, 
 
 to examine foreign witnesses.. 50 
 copies of to be served on ad- 
 verse party 50
 
 312 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Irregularity, Rule 
 
 how deposition suppressed for, 54 
 Issue, 
 on plea allowed, when to be 
 
 t tken 25 
 
 on filing general replication... 45 
 note of, to be delivered to the 
 
 register 64 
 
 what causes to have priority 
 
 from date of on calendar 63 
 
 on defence to divorce bill, how 
 
 tried 97 
 
 Issues, 
 unless agreed upon shall be 
 
 framed by circuit judge 47 
 
 feigned, how made 47 
 
 Jurat, 
 to sworn bill, answer or peti- 
 tion 8 
 
 List, 
 
 of agents, to be kept 1 
 
 Mail, 
 
 service by, whom and how 2 
 
 srvice by, double time 3 
 
 Monky, 
 
 order for payment of 88 
 
 Mortgage Cases, 
 
 preference of, on calendar (J3 
 
 how r ghts of subsequent pur- 
 chasers, etc , set out 91 
 
 reference of course, to compute 
 
 amount 92 
 
 reference as to surplus mon- 
 eys 93 
 
 Motions, 
 
 when to stand over 5 
 
 to be made on the day of notice, 5 
 for attachment for not an- 
 swering 12 
 
 for order as to absent defend- 
 ants 16 
 
 to dismiss bill for want of prose- 
 cution 46 
 
 to suppress depositions 54 
 
 special notice of, how to be 
 
 given 61 
 
 submission of, how entered . . . 69 
 
 for stay of proceedings 82 
 
 for reference in divorce causes, 96 
 several made at a tim«, orders.. 110 
 what may be made before com- 
 missioner Ill 
 
 Name. 
 of agent and solicitor specified, 1 
 of defendants, inserted in sub- 
 poena 10 
 
 of witnesses, to be examined 
 
 on commission 48, 49 
 
 of complainant first in en- 
 titling 67 
 
 of witnesses, to be given in bill 
 
 of costs 90 
 
 Ne Exeat, 
 exceptions to answer not to 
 prevent discharge of 17 
 
 Next Friend, Rule 
 to give security, before receiv- 
 ing money of infants 94 
 
 Non-Resident, 
 complainants to give security.. 6 
 defendants, order for appear- 
 ance of 16 
 
 Note of Issue, 
 
 when to be delivered 64 
 
 Notice, 
 
 when it may be served on agent, 2 
 
 when to put in post-office 2 
 
 of all pleadings, to be served. . 2 
 not required, when defendant 
 
 has not ai >peared 2 
 
 when double time required ... 3 
 how served in absence of solici- 
 tor 3 
 
 serven in open office 3 
 
 served at residence 3 
 
 of motion for attachment 12 
 
 of order for copy of bill 14 
 
 not required, if no appearance, 15 
 of amendments to injunction 
 
 bill 21 
 
 of argument of plea or de- 
 murrer 25 
 
 of submission to answer excep- 
 tions 27 
 
 of reference of exceptions 28 
 
 of order for further answer. ... 35 
 of hearing exceptions to re- 
 port 39 
 
 of hearing on bill and answer.. 45 
 
 of hearing on pleadings 47 
 
 of examination of witnesses. . . 47 
 of application for a commis- 
 sion 48 
 
 of application for a special 
 
 commission 51 
 
 of receipt of depositions 54 
 
 of order to read documents on 
 
 hearing 56 
 
 of application to enlarge time 
 
 to take proofs 59 
 
 of hearing and special motions, 60, 61 
 of hearing to be for first day of 
 
 term ' 64 
 
 to register to place cause on 
 
 calendar 64 
 
 to attend on reference, time of 
 
 regulated 70 
 
 of order nisi to confirm report . 79 
 
 of sale of real estate 80 
 
 of petition for rehearing 81 
 
 of application for stay 82 
 
 computation of time on 85 
 
 of taxation of costs 90 
 
 of foreclosure sales 92 
 
 of claim to surplus on sale 93 
 
 to require sworn answer 105 
 
 of auction sal<-s by receivers. . . 106 
 of motion tor discharge of re- 
 ceiver 107 
 
 of application for injunction. . . 112
 
 INDNX TO MICHIGAN CHANCERY RULES. 
 
 313 
 
 Notice— Continued. Rule 
 
 to be embodied in subpcena 122 
 
 Nullity, 
 of marriage, bill for, to be veri- 
 fied by oath 95 
 
 of marriage, reference to take 
 
 proofs 96 
 
 Oath, 
 
 to bills and answers 7, 8 
 
 to answer, how waived 18 
 
 to plea or answer, before 
 
 whom 19 
 
 to amendments to sworn bills.. 52 
 to be administered to witnesses 52 
 
 to accounts, etc 77 
 
 to bill for divorce.' 95 
 
 to creditor's bill 103 
 
 Office, 
 
 agent must have 1 
 
 service in, of solicitor 3 
 
 Officers, 
 fees of, to be detailed in bill of 
 
 oosts 90 
 
 not to tax their own costs ... 90 
 Offset, 
 
 of costs on exceptions 40 
 
 Order, 
 
 form of caption of 4 
 
 caption of, to state truly where 
 
 court was held 4 
 
 by circuit court commissioner, 4 
 to take bills as confessed for 
 
 neglect to appear 11 
 
 that defendant's appearance 
 
 be entered on attachment. . . 13 
 to deliver a copy of bill in fif- 
 teen days 14 
 
 for absent defendants to ap- 
 pear 16 
 
 to answer cross-bill 20 
 
 of course, to amend not 
 
 necessary 21 
 
 required to amend injunction 
 
 bill 21 
 
 what common and what special 24 
 of course, and by consent how 
 
 entered 24 
 
 to answer on overruling a plea 
 
 or demurrer 26 
 
 to refer exceptions to answer, 
 
 if not submitted to 28 
 
 to refer second or third answer 
 
 on old exceptions ... 29 
 
 to refer exceptions for scandal 
 
 or impertinence 80 
 
 to expunge impertinent matter 34 
 for a further answer on sub- 
 mission to exceptions 35 
 
 for same on exceptions al- 
 lowed 36 
 
 to answer amendments and ex- 
 ceptions 37 
 
 on default in answering excep- 
 tions for insufficiency 38 
 
 Order— Contiuued. Rule 
 
 to dismiss bill for want of 
 
 prosecution 46 
 
 to examine witnesses before 
 
 commissioner. 47 
 
 closing proofs 47 
 
 for special commission to ex- 
 amine witnesses 51 
 
 to examine defendant as wit- 
 ness 55 
 
 for leave to prove exhibits at 
 
 hearing 56 
 
 to enlarge time for examina- 
 tion of witnesses 59 
 
 of hearing calendar causes at 
 
 term 63 
 
 to dismiss bill for default at 
 
 hearing 68 
 
 of reference, proceedings on.. 70 
 of reference, how expedited. . . 71 
 to confirm commissioner's re- 
 port 79 
 
 affecting merits to be included 
 
 in enrollment 80 
 
 to stay proceedings, and to 
 show cause, how obtained. . . 82 
 
 by consent 84 
 
 nisi, to be orders of eight days.. 85 
 to extend time, by whom al- 
 lowed 86 
 
 for payment of moneys de- 
 posited 88 
 
 of reference to compute 
 
 amount due on mortgage 92 
 
 as to surplus on mortgage 
 
 sales 93 
 
 of reference to divorce cases.. 96 
 to pay costs, how enforced — 100 
 for leave to file a bill of review, 
 
 deposit required on _ 101 
 
 for receiver on default, credi- 
 tor's bill 104 
 
 pro confesso and for receiver. . 105 
 for receiver to pay over money, 107 
 
 for discharge of receiver 107 
 
 several, when to be entered as 
 
 one..! 110 
 
 made by judge, not to be va- 
 cated by commissioner 112 
 
 to stay proceedings, on appeal 
 
 from commissioner 115 
 
 of reference in partition suits.. 121 
 Papers, 
 
 may be served on agent 2 
 
 served on clerk or partner 3 
 
 served in open office 3 
 
 served at residence 3 
 
 to be furnished for hearing. ... 65 
 
 furnished for rehearing 55 
 
 to be furnished by whom 66 
 
 to be legally written 67 
 
 how entitled and endorsed 67 
 
 production before commis- 
 sioner 73 
 
 on appeal, to be filed 117
 
 314 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Parol, Rule 
 
 agreements between solicitors 
 
 not allowed 84 
 
 Partition Suits, 
 
 proof's in 121 
 
 decree in 121 
 
 Partner, 
 
 of solicitor, service on 3 
 
 Party, 
 
 how examined as witness 55 
 
 examined orally in open court, 90 
 Petitions, 
 
 how addressed 4 
 
 to be presented on day of no- 
 tice 5 
 
 how to be verified 8 
 
 for a commission 48 
 
 for special commission 51 
 
 for a rehearing 81 
 
 Plea. 
 when to be put in within 
 
 days 11 
 
 before whom to be sworn to.. 10 
 time to apply to or amend bill, 25 
 when may be noticed for argu- 
 ment 25 
 
 if allowed, complainant may 
 
 take issue on within ten days, 25 
 overruled as frivolous, pro- 
 ceedings on 26 
 
 not to be held bad for certain 
 
 causes 41, 42 
 
 Pleadings, 
 
 notice of, to be served 2 
 
 copies of, to be served when . . 11 
 to be abbreviated for the court 
 
 on the hearing 62 
 
 copies to be furnished the 
 
 court 65 
 
 by whom to be furnished on 
 
 hearing 66 
 
 to be fairly written 67 
 
 Pluries. 
 
 process may be issued 9 
 
 Points, 
 
 copies to be furnished 66 
 
 Postage, 
 to be prepaid on service by 
 
 mail 2 
 
 Practice, 
 customary practice to govern 
 in absence of statute or rule.. 119 
 Preferench, 
 on calendar, what causes Ito 
 
 have 63 
 
 Priority, 
 
 of causes on calendar 63 
 
 on liens on surplus on sale 93 
 
 Privity, 
 
 to be denied in divorce bill 95 
 
 Proceedings, 
 
 stay of, how obtained 82 
 
 Process, 
 when returnable 9 
 
 Process— Continued. Rule 
 
 may be renewed, of course, if 
 
 not served 8 
 
 to compel attendance of wit- 
 nesses 57 
 
 upon decrees, by whom to be 
 
 sealed 80 
 
 final, not to issue until enroll- 
 ment 80 
 
 Pro Confesso, 
 
 after service of subpoena 11 
 
 against absent defendants 16 
 
 after plea or demurrer over- 
 ruled, etc 26 
 
 on failure to answer further. . . 08 
 cases to have preference on 
 
 calendar 63 
 
 Procurement, 
 
 to lie denied in divorce bill 95 
 
 Reasons, 
 
 for appeal, to be filed 117 
 
 Receivers, 
 
 appointed ex parte, when 104 
 
 how appointed on creditor's 
 
 bill 106 
 
 powers of, on creditor's bill; 
 
 sales by 106 
 
 on several bills, only one ap- 
 pointed 107 
 
 to give security, amount of... 107 
 
 discharge of 107 
 
 not to pay money to parties 
 
 without order 107 
 
 to keep separate accounts 108 
 
 only one to be appointed 108 
 
 for subsequent suits 108 
 
 assignment to, not precluded 
 
 by injunction. . 109 
 
 Reference, 
 of non-appearance of absent 
 
 defendants 16 
 
 of exceptions to answer for in- 
 sufficiency 28 
 
 of second and third answers on 
 
 old exceptions - 29 
 
 of exceptions for scandal or 
 
 impertinence 30 
 
 of exceptions, costs on 40 
 
 proceedings and notice required 70 
 to compute amount due on 
 
 mortgage 92 
 
 as to surplus on m ortgage sales 93 
 in divorce cases, how obtained. . 96 
 by consent on creditor's bills . . 105 
 to take proofs in partition suits 121 
 Register, 
 
 may be agent 1 
 
 to keep list of agents in his 
 
 office 1 
 
 when appearance may be en- 
 tered by 11 
 
 not to permit unauthorized 
 
 amendments 21 
 
 to keep common rule book 24
 
 INDKX TO MICHIGAN CHANCERY RULES. 
 
 315 
 
 REQiSTKR--Contimied. 
 
 Rule! 
 
 to issue commissions to take 
 
 testimony 48 
 
 to open and file commission 
 
 returned 58 
 
 to give notice of receipt of de- 
 positions ">4 
 
 to make up calendar 64 
 
 not to file illegible papers • 6? 
 
 how to enter submission, etc. . 09 
 to issue and seal final process . . 80 
 deposit on rehearing to be paid 
 
 to him 83 
 
 accounts of money deposited. . 87 
 
 may tax costs Si) 
 
 ol proceedings, to be kept by 
 
 commissioner 114 
 
 orders of commissioner to be 
 
 file i with 114 
 
 Recti, arity, 
 affidavit of, in mortgage cases, 92 
 affidavit of, in divorce cases. . . 96 
 Rehearing, 
 
 papers to be furnished on 65 
 
 certificate of counsel, etc., on 
 
 application for 81 
 
 deposit on, to be made in ten 
 
 days 83 
 
 Replication, 
 if not file I, answer admitted. . . IS 
 
 to plea, when to be filed 25 
 
 when to be filed 45 
 
 special, not without leave 45 
 
 Report, 
 on exceptions, when to be ob- 
 tained 
 
 on exceptions, to specify time 
 
 for further answer 
 
 on exceptions for impertinence, 
 
 when ril' j <i 
 
 on exceptions, when to become 
 
 absolute 
 
 disallowing ex 'eptions, final. .. 
 exceptions to,heard as a motion 
 objections to. must be made 
 
 before commissioner , 
 
 separate, when may be made. . 
 
 order to confirm nisi T!) 
 
 of proofs in partition suits 121 
 
 Residence. 
 of agent and solicitor specified, 1 
 of solicitors not in same city, 
 
 service ma} - be on agent 2 
 
 service at, of solicitor 3 
 
 of witnesses to be examined on 
 
 commission 48, 49 
 
 distance from, witnesses com- 
 pelled to go 57 
 
 how affects return day of sum- 
 mons 70 
 
 Restrictions, 
 on power of e uumissioners, 
 
 supreme court may make. ... Ill 
 made by rule 112 
 
 31 
 
 Retaxation, Rule 
 to be granted by court in cer- 
 tain cases 89 
 
 Return, 
 of commission 52 
 
 Return 1>ay, 
 
 of process 9 
 
 service may be on or before ... 10 
 
 Review, 
 by commissioner, of his pro- 
 ceedings 1*4 
 
 bill of, leave must be obtained, 101 
 
 Revivor, 
 bills of, what need not set forth, 44 
 
 Rule, 
 to be annexed to commission . . 52 
 
 nisi, when to take effect 85 
 
 computation of time on 85 
 
 to be served in creditor's suits, 105 
 when take effect 120 
 
 Sales, 
 
 on foreclosure 92 
 
 distribution of surplus on 93 
 
 proceeds of belonging to infant, 94 
 
 of real estate, by receiver 106 
 
 of desperate debts, by receiver, 106 
 
 at auction, notice of 106 
 
 Scandal, 
 exceptions for, though sworn 
 
 answer waived 18 
 
 exceptions for, how taken 30 
 
 when report on to be received 31 
 
 order to expunge 34 
 
 report disallowing exceptions, 
 
 final 35 
 
 in proceedings before comniis- 
 
 ' sioner 76 
 
 Seal, 
 
 process to be under 10 
 
 to be shown on service of sub- 
 poena 10 
 
 jurat of foreign notary to be 
 
 under 19 
 
 to final process 
 
 Security, 
 to be given by non-residents 
 
 before bill filed 6 
 
 required of special guardians. . 94 
 
 required on bill of review 101 
 
 to be given bj receiver 107 
 
 Separation, 
 reference to take proof on bill 
 
 for 96 
 
 not granted of course, in any 
 
 case 98 
 
 Service, 
 may be on agent in certain 
 
 cases. 2 
 
 by putting in post-office 2 
 
 not required when defendant 
 
 has not appeared ~ 
 
 when on agent or by mail, 
 
 double t ime required 3 
 
 of subpoena, how made 10
 
 316 
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 Service— Continued. Rule 
 of affidavit, etc., for attach- 
 ment 12 
 
 of copy of bill, order for 14 
 
 of amendments to bill 21 
 
 of taxed bill of costs of excep- 
 tions 37 
 
 of interrogatories 50 
 
 of copy petition, etc., on special 
 
 motion 61 
 
 of commissioner's summons ... 70 
 
 of petition for reheariner 81 
 
 of copy rule in creditor's suits, 105 
 Settlement, 
 
 of interrogatories 50 
 
 Several Orders, 
 
 when to be entered as one 110 
 
 Signature, 
 
 to appointment of agent 1 
 
 of foreign judge to jurat, cer- 
 tificate 19 
 
 to consent of entry of order. . . 24 
 
 to submission of the cause 69 
 
 to consent or agreement 84 
 
 Solicitors, 
 
 to have agents in each circuit. 1 
 
 service may be on agent of 2 
 
 service at office of 3 
 
 service at residence of 3 
 
 may swear to bill when 7 
 
 subpoena subscribed by 10 
 
 to give notice of return of de- 
 
 position* 54 
 
 to verify bills of costs before 
 
 taxation 90 
 
 Special Orders, 
 
 what are 24 
 
 Statement, 
 in bill of revivor and supple- 
 mental 41 
 
 Stat, 
 
 of proceedings, how obtained. . 82 
 
 on appeal from commissioner, 115 
 Submission, 
 
 to answer exceptions 27 
 
 to exceptions for scandal or 
 
 impertinence 30, 31 
 
 to exceptions, costs on 40 
 
 of causes, how made 69 
 
 SUBPC3NA. 
 
 return day of 9 
 
 to contain names of all the de- 
 fendants 10 
 
 how to be served 10 
 
 for witnesses, what to specify. 57 
 form of 122 
 
 Subscription, 
 of subpoena 10 
 
 Subsequent Purchasers, 
 how rights of set out in fore- 
 closure bill 31 
 
 Substanc k, 
 of oath to be stated in jurat. . . 8 
 
 Summons, 
 time of service required on . . . 70 
 
 Summons— Continued. Rule 
 
 to be considered peremptory . . 74 
 to be served on encumbrancers 
 
 who have filed claims 9* 
 
 Sunday, 
 process not returnable on ..... . 9 
 
 when not included in computa- 
 tion of time 85 
 
 Supplemental Bill, 
 when need not set forth orig- 
 inal 44 
 
 Suppression, 
 
 of depositions, for irregularity, 54 
 Surplus, 
 on sales, distribution, how 
 
 made 93 
 
 Taxation, 
 
 as to impertinent matter 34 
 
 of costs on exceptions, when . . 40 
 
 of costs, by whom 89 
 
 of costs, regulated 90 
 
 Term, 
 notice for argu nent of plea or 
 demurrer at next or any 
 
 subsequent 25 
 
 notice of hearing to be for first 
 
 day 64 
 
 Thrms, 
 may be imposed for amending 
 
 bill after demurrer 22 
 
 may be imposed for second ex- 
 tension of time to take 
 
 proofs 59 
 
 may be imposed for setting 
 
 aside default 86 
 
 Testimony, 
 of complainant, on reference. . 16 
 
 when and how taken, etc 47 
 
 of witnesses, taken on commis- 
 sion 48 
 
 of defendant as a witness 55 
 
 to be returned and filed before 
 
 hearing 58 
 
 before commissioner, to be 
 
 taken and preserved . . 75 
 
 in partition suits 121 
 
 Time, 
 for service on agent, or by 
 
 mail 3 
 
 for service on solicitor 3 
 
 for service in open office 3 
 
 of hearing motions and peti- 
 tions 3 
 
 when process made returnable, 9 
 
 for entering appearance 11 
 
 when to plead, answer or de- 
 mur 11 
 
 of answering after attach- 
 ment 13 
 
 when complainant must de- 
 liver copy of bill 14 
 
 of amending bill, of course 21 
 
 of amending bill after demur- 
 rer 2*
 
 INDEX TO MICHIGAN CHANCERY RULES. 
 
 317 
 
 Time— Continued. Rule 
 
 of entry of common order to 
 
 be noted 24 
 
 to reply to plea, or amend bill, 25 
 to answer and pay costs after 
 
 plea or demurrer overruled.. 26 
 to take exceptions to answer. . 27 
 of notice of submission to ex- 
 ceptions 27 
 
 of reference of exceptions to 
 
 answer 28 
 
 for procuring and filing report 
 
 on exceptions 31 
 
 for excepting to report on ex- 
 ceptions 33 
 
 for paying costs of exceptions. 34 
 for further answer after ex- 
 ceptions 35 
 
 to answer amendments and ex- 
 ceptions 37 
 
 of noticing for hearing on bill 
 
 and answer 45 
 
 for taking testimony 47 
 
 when proofs to be closed 47 
 
 for applying for a commission, 48 
 for serving copies of interroga- 
 tories 50 
 
 of receiving commission, to be 
 
 endorsed on it 53 
 
 for suppressing depositions. ... 54 
 
 for filing depositions 58 
 
 for service of notice of hear- 
 ing 60, 61 
 
 for filing notes of issue 64 
 
 for service of commissioner's 
 
 summons 70 
 
 for proceedings on reference.. 71 
 for notice of application for 
 
 stay 82 
 
 on rules and orders, how com- 
 puted 85 
 
 may be extended in all cases. . 86 
 of notice and sales in foreclos- 
 ure suits 92 
 
 for payment of interlocutory 
 
 costs 100 
 
 of auction sales by receiver. . . . 106 
 of appeals from commissioner, 115 
 Understanding, 
 in divorce bill, to be denied 95 
 
 UNDERWRITING, 
 
 form of, to subpoena 122 
 
 Vacation, 
 process may be returnable in . . 9 
 
 Vacation— Continued. Rule 
 
 of order made by judge, by 
 
 commissioner 112 
 
 Verification, 
 
 of bills, when and how 7. 8 
 
 of amendments to sworn bills.. 21 
 
 of petition for rehearing 81 
 
 of divorce bill 95 
 
 or creditor's bill 103 
 
 Waiver, 
 
 of anuwer under oath 18 
 
 of exceptions for insufficiency. 28 
 
 exceptions for scandal, etc 30 
 
 of exceptions generally 31 
 
 Witnbsses, 
 examination of before commls- 
 
 S'oner 47 
 
 commission for examination of 48 
 adverse party may join in com- 
 mission 49 
 
 out of state to be examined on 
 
 interrogatories 50 
 
 order to examine defendants . . 55 
 the court may call either party 
 
 to testify in certain cases .... 55 
 not compelled to travel over 
 
 forty milts 87 
 
 subpoenas to compel attend- 
 ance of 57 
 
 how examined on reference. . . 75 
 fees of, how set out in bill of 
 
 costs 90 
 
 may be examined in open 
 
 court 99 
 
 may be examined on creditor'! 
 
 bill 105 
 
 Writing, 
 appointment of agents to be in, 1 
 consent to entry of order to be 
 
 in 24 
 
 notice of submission to answer 
 
 exceptions 37 
 
 interrogatories to witnesses out 
 
 of state 50 
 
 examination of witnesses on 
 
 commission 52 
 
 not to be read on hearing, 
 
 without order 56 
 
 submissions to be in 69 
 
 agreements to be in 84 
 
 consent to pro coufesso on 
 
 creditor's bill 105 
 
 consent to discharge of re- 
 ceiver 107
 
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