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. 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. 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 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 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 > 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 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 >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 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 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 ^ c ^^^^^ ^ — /. r UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 825 583