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CORNELL UNIVERSITY LIBRARY 
 
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Cornell University 
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FORMS OF PLEADINGS 
 
 PRECEDENTS 
 
 COURT OF CHANCERY 
 
 STATE OF NEW JERSEY, 
 
 Revised Rules of the Court of Chancery, Rules of the Prerogative 
 
 and Orphans' Courts, ind the Revised Rules of the 
 
 Court of Errors and Appeals. 
 
 PRACTICAL NOTES AND REFERENCES TO DECISIONS ON MAT- 
 TERS OF PLEADING AND PRACTICE. 
 
 REVISED AND ENLARGED EDITION. 
 
 BY 
 
 S. MEREDITH DICKINSON, 
 
 COUNSELLOR-AT-LAW. 
 
 TKENTON, N. J. : 
 
 THE JOHN L. MUBPHY PTJELISHING COMPAKY. 
 1894. 
 
Entered according to Act of Congress, in the year 1894, 
 
 By S. MEREDITH DICKINSON, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
INTRODUCTION TO FIRST EDITION. 
 
 Tbbnton, N. J., April 18th, 1879. 
 Hon. Theodoke Eunyon : 
 
 Dear Sir — More than a year ago I undertook, at your suggestion, the 
 preparation of the following pages, and proceeded with the work as rapidly 
 as my other duties and engagements permitted. 
 
 At my request, and notwithstanding your many pressing and arduous official 
 duties, fou have found time to examine the sheets as they passed through the 
 press, and now, with your valuable aid and suggestions, I am enabled to 
 present the completed work for your final examination and approval. 
 
 The book of " Chancery Precedents,'' originally prepared, in 1841, by the 
 late Stacy G. Potts, Esq., (an enlarged edition of which was issued in 1872, by 
 Messrs. Potts & Linn,) is the only work specially adapted to the New Jersey 
 Chancery Practice ever hitherto attempted, and it has been, so far as it 
 extended, of real practical utility. The object of that work, as stated by 
 Mr. Potts, in his introductory note thereto, " to aid in producing uniformity 
 in the details of the practice and in afibrding a useful manual to the younger 
 members of the bar," has been in a great measure attained. Since 1841, how- 
 ever, the great bulk of our chancery reports has been published, and many 
 changes have been made in the practice of the court, as the great number 
 of decisions on points of practice testify, and by important alterations in our 
 statute law, many of the forms contained in that volume have become obso- 
 lete, so that in the hands of " the younger members of the bar," especially, it 
 has become a blind guide. 
 
 While carrying out in the main the objects of the work of Mr. Potts, I have 
 attempted to make these pages of greater utility by inserting a more varied 
 collection of forms of pleadings, and by introducing, under each form, such 
 short and apt notes on points of practice, and such portions of the statutes 
 relating to the subject-matter of those forms, as will be useful to the practi- 
 tioner in framing pleadings. 
 
IV INTRODUCTION TO PIE8T EDITION. 
 
 Some embarrassment has been felt in exercising a discretion as to the notes 
 to be introduced, so as to confine the work within a moderate compass ; an em- 
 barrassment which, probably, will be appreciated when it is remembered what 
 a wealth of resources is now at command in the many excellent published works 
 on the subjects of pleading and practice. I determined, however, to limit myself 
 generally to a few well-recognized sources of learning on those special subjects 
 and for illustration of the forms have endeavored to draw solely from the 
 highest and best authorities on th? science of equity pleading and practice ; 
 namely, from the decisions of the earlier English Chancellors, whose pride it 
 was to lay strong and deep the solid foundations of that system of pleading 
 and practice which is now in use in our own state; from the earlier Irish 
 reports, to which the student can refer with confidence, and from the admir- 
 able treatise of Daniell, which is the unfailing resource of every practitioner ; 
 in our own country, from the decisions of Chancellors Kent and Walworth, 
 and the treatise of Hoflinan, which contain all that is valuable in the English 
 system, and many improvements which have adapted that system more nearly 
 to our wants; from the decisions of the Supreme Court of the United States, 
 and finally and chiefly, from the published opinions of our own Court of 
 Chancery. 
 
 The style of the book, by which is meant the arrangement of the notes under 
 the forms to which they relate, has not been adopted hitherto, so far as I 
 know, in any work of a similar character, except in that of Mr. Tripp, 
 which came into my hands after the plan of this volume had been perfected. 
 I am confident such arrangement will be found very convenient, bringing, as 
 it does, the pleading and the practice under the eye at one glance. 
 
 To render the index as useful as possible, references are made not only to 
 the general titles, but to the particular subjects of the pleadings, so that each 
 form required can be found without difficulty. The index also contains 
 references to the subject-matter of the notes. 
 
 The precedents and forms are preceded by the rules of the Court of Chan- 
 cery, as revised under your direction ; by the rules of the Prerogative and 
 Orphans' Courts ; and by the rules of the Court of Errors and Appeals, as 
 lately revised by that tribunal. 
 
 I have thus stated, more fully perhaps than was necessary, the object and 
 plan of the work, that I may have your judgment upon the manner in 
 which I have discharged the responsible duty devolved upon me in its prepa- 
 ration. 
 
 My aim has been to present to the profession a practical and useful book — 
 one adapted to the exigencies of actual work ; but, doubtless, there are errors 
 
INTKODTJCTION TO FIRST EDITION. V 
 
 which have escaped correction, and in order that these may be avoided in a 
 future edition, should one ever be required, any suggestions from those who 
 may have occasion to consult this work will be thankfully received. 
 I am, with sentiments of great respect. 
 
 Your obedient servant, 
 
 S. M. DICKINSON. 
 
 Newark, N. J., May 1st, 1879. 
 S. Meredith Dickinson, Esq.: 
 
 Dear Sir — My examination (by no means cursory) of the sheets of your 
 
 book, as they passed through the press, has satisfied me that you have done 
 
 your work well and thoroughly. The legal profession of the state is under 
 
 obligation to you for the production of a book of great practical utility as well 
 
 to the senior as to the junior membei-s of the bar. The work will be found 
 
 to have been carefully and judiciously prepared, and will prove a safe and 
 
 valuable guide in our equity practice. 
 
 Yours very truly, 
 
 THEODOEE EUNYON. 
 
INTRODUCTION TO REVISED EDITION. 
 
 The original work, which was so highly commended by Chancellor Runyon, 
 whose letter is now reprinted, is, after the lapse of fifteen years, out of print, 
 and it is gratifying to learn from those who have used the book and are com- 
 petent to speak of it, that it is thought to be deserving of praise for the accu- 
 racy of its forms and for its general utility to the profession of the state. 
 
 A new edition seems to be demanded, and, while preserving the general 
 arrangement of the first edition, the book has been entirely revised in some 
 parts, and all the modifications in the forms, rendered necessary by the changes 
 in the statutory law and the standing rules of the court, have been made ; the 
 decisions in matters of pleading and practice, to the present date, have been 
 inserted, and additional forms of bills and other pleadings added, so as to 
 present a reliable compendium of the present chancery practice. 
 
 It is not possible to furnish a form for every conceivable case that may 
 arise, but it is believed that the practitioner will find in some part of the work 
 whatever he needs to lighten his labors in the matter of pleading. The forms 
 are, in most cases, actual precedents from the files, and may be used with con- 
 fidence as indicating, the ruling of the court in the particulars to which they 
 relate. 
 
 After considerable labor and research, the date of the promulgation and 
 amendment of each rule has been ascertained, and where the same has been 
 amended, the date of the amendment is given and the amendment is included 
 in [brackets] for easy reference. It not infrequently happens that the history 
 of a rule is -of some importance. 
 
 The index to the first edition has been the subject of considerable criticism, 
 by reason of the fact that too frequent reference was made to the subject- 
 matter of the forms and notes without indicating the page in the work where 
 the matter was to be found. This defect has been remedied, and it is hoped 
 that the index, which has been prepared by John Eidley, Esq., a member of 
 the bar of the county of Union, who has kindly given his assistance in this 
 laborious work, will fully answer its purposes. 
 
 To the profession in other parts of the country, the publication of a work 
 of this character may seem a superfluous labor, but, under whatever name it 
 may be known, "equity" must continue to be administered upon the prin- 
 
INTBODTTCTION TO KEVISED EDITION. Vll 
 
 ciples established by its earlier interpreters. In the Jaqguage of Blackstone, 
 " the system of our courts of equity is a labored, connected system, governed 
 by established rules, and bound down by precedents from which they do not 
 depart," and the forms will be found to vary little in whatever court the 
 decrees may be granted, and, therefore, an apology is unnecessary for a work 
 of the character of the one now offered to the Bar. Though a separate and 
 distinct Court of Chancery is nowhere maintained now, except in a very few 
 states, it is not likely to fail in popularity in New Jersey so long as it shall 
 continue to command the respect and confidence it now enjoys. 
 
 It was said in Judge Field's " Provincial Courts of New Jersey " that the 
 Court of Chancery, for some reason or other, seemed never to have been a 
 popular favorite in this country. If this be really true, I incline to think 
 that the reason has been that the court was so far removed from the people. 
 
 In the times of which Judge Field wrote, so far as New Jersey was con- 
 cerned, the Governor also exercised the office of Chancellor ex officio. He was 
 appointed by the Crown, and governed largely by the advice of a privy 
 council selected from among the niembers of the legislative branch of the 
 government. The formalities consequent upon the maintenanceof the dignity 
 of his offices, and the very nature of the office as it then existed, tended 
 to exclusiveness. Afterwards, under the constitution of 1776, the Governor 
 continued to be Chancellor ex officio, but was elected by the legislature in 
 joint meeting. 
 
 On the other hand, the separation of the judicial from the executive func- 
 tions, effected by the constitution of 1844, and the appointment of frequent 
 motion-days, enabling suitors to come promptly before the court at convenient 
 places, (the Chancellor being at all times readily accessible without undue 
 formality,) have made the court of great benefit to the people generally who 
 before knew little of its workings. Then, too, the conduct of the clerk's office 
 and the fact that it can be resorted to at all times for information, both in 
 person and by letter, by any one interested in the records, has familiarized the 
 people with the system and established in their minds a confidence in its 
 administration that a court of equity, especially, should possess. 
 
 Lastly, the innovation in New Jersey, dating from 1871, of oral trials before 
 Vice Chancellors, at convenient chambers, in the centres of population, con- 
 ducted almost daily, bringing suitors and witnesses face to face with the judge, 
 has done much to remove prejudice and bring home to the people a knowledge 
 of the advantages and virtues of a separate equity tribunal. 
 
 S. M. DICKINSON. 
 Tbenton, N. J., April, 1894. 
 
TABLE OF CONTENTS. 
 
 INTRODUCTIONS, .... 
 
 TABLE OF CONTENTS, . . . ' . 
 
 INDEX TO CASES CITED, . . . . 
 
 TABLE OF CORRIGENDA ET ADDENDA, 
 
 RULES OF THE COURT OF CHANCERY, 
 
 INDEX TO CHANCERY RULES, 
 
 RULES OF THE COURT OF ERRORS AND APPEALS, 
 
 RULES OF THE PREROGATIVE COURT, 
 
 RULES OF THE ORPHANS' COURTS, 
 
 FORMS OF PLEADINGS: 
 
 BILIi OF COMPIiAINT. 
 
 The Address, .... 
 
 The Introdtjction, . . . . 
 
 The Peemises or Stating Part, 
 
 The Charge op Coneedebacy, 
 
 The Charging Part, 
 
 The Jurisdiction Clause, . . . , 
 
 Interrogating Part, . ... 
 
 Prayer for General Relief, 
 
 Prayer for Process, 
 
 Method op Signing Bills, 
 
 Method op Swearing to Bills, 
 
 PAGE. 
 
 iii-yii 
 
 ix-xi 
 
 xiii-xliii 
 
 xliv 
 
 xlvii 
 
 cxv 
 
 cxxvii 
 
 cxxxvii 
 
 cxli 
 
 Of Process fob Appearance and Answer, 
 
 Form of Decree Pro Confesso, .... 
 
 Of Appearance, ...... 
 
 Op Proceedings to Compel an Answer, 
 Of Proceedings fob Contempt in Violating an Injunction, 
 Op the Appointment op a Guardian Ad Litem, . 
 Op Administration Ad Prosequendum, . 
 Proceedings by a Defendant Befoee Pleading: 
 
 Security for costs, ..... 
 
 Proceedings in forma pauperis, 
 Of the Defence to a Suit: 
 
 Production of papers, ..... 
 
 Orders to answer, ... . . 
 
 Commission to take an answer, .... 
 
 Demurrer, ....... 
 
 9 
 9 
 10 
 11 
 12 
 15 
 16 
 
 18 
 84 
 35 
 36 
 45 
 49 
 57 
 
 68 
 72 
 
 74 
 80 
 86 
 
TABLE OP CONTENTS. 
 
 FOEMS OF PLEADINGS: 
 
 Of the Defence to a suit: 
 
 Pleas, ....... 
 
 Eeplication to plea, ...... 
 
 Answers, ....... 
 
 Disclaimer, ....... 
 
 Affidavit to answer, ..... 
 
 Interrogatories, ..... 
 
 Proceedings by Complainant Before Eeplying : 
 
 Exceptions to answer, ..... 
 
 Amending bill, ..... 
 
 Proceedings on the Part op Dependant Before Eepli- 
 cation : 
 
 Payment of money into court, .... 
 
 Conduct of cause by defendant, 
 
 Dismissal of bill, ..... 
 Eeplication, 
 Testimony, 
 Hearing, . 
 Final Decree, 
 Eehearing, 
 Appeals, 
 
 Summons and Severance, 
 Execution of Decree, 
 
 Writ, of assistance, 
 
 Executions, 
 
 Sheriff's or master's deed, 
 
 Feigned issue, ...... 
 
 Proceedings to Compel a Purchaser to Complete His 
 Purchase, ...... 
 
 Application for Surplus Money, 
 Interlocutory Applications and Other Proceedings in 
 A Cause, . 
 
 Motions, 
 
 Orders, 
 
 Affidavits, 
 
 Election, 
 
 Substitution of solicitor, . 
 
 Substitution of master. 
 
 Admission of parties. 
 Injunction, 
 Ne Exeat, 
 
 Abatement and Eevivor, 
 Scire Facias, . 
 Foreclosure, 
 
 Eedemption of Mortgaged Premises, 
 Strict Foreclosure, 
 
 PAGE. 
 
 96 
 100 
 104 
 109 
 113 
 114 
 
 191 
 132 
 
 137 
 139 
 140 
 143 
 145 
 171 
 178 
 182 
 186 
 190 
 202 
 204 
 210 
 237 
 243 
 
 253 
 256 
 
 273 
 273 
 277 
 278 
 279 
 281 
 282 
 283 
 286 
 309 
 314 
 322 
 326 
 377 
 386 
 
TABLE OF CONTENTS. XI 
 
 FORMS OF PLEADINGS: page. 
 
 Partition, . . ... 402 
 
 DowEK AND Curtesy, . . . 447 
 
 Divorce, . . 452 
 Alimony, . . . . .465 
 
 Nullity of Marriage, ..... 474 
 
 Habeas Corpus, ... ... 446 
 
 Interpleader, . . *. . 480 
 
 Perpetuating Testimony, .... 489 
 
 Bill for Discovery Under the Statute, 496 
 
 Supplemental Bill, ..... 501 
 
 Bill of Review, .... . 507 
 
 Cross-Bill, ... . 510 
 
 Creditor's Bill to Establish the Lien of His Judgment, 512 
 
 Bill by an Attaching Creditor, &c., . . . 521 
 
 Proceedings Against Insolvent Corporations, . 529 
 
 biixs fob relief. 
 
 Bill for Relief Against a Judgment at Law, . 558 
 
 Bill Praying the Cancellation of a Mortgage, 566 
 Bill to Compel Payment of Excess of Mortgage Debt 
 
 Above Net Proceeds of Sale, . . . 576 
 Bill to Enforce Personal Liability op Director of a 
 
 Corporation, . . ... 580 
 Bill by a Surety to Compel Payment of Debt by 
 
 Principal, ... . . 588 
 
 Bill by Next of Kin for Distribution, &c., . . 594 
 
 Bill for Establishment of a Will, . 602 
 
 Bill to Set Aside a Fraudulent Conveyance, . . 606 
 
 Bill to Quiet Title, . . 615 
 
 Bill for Dower, . .... 622 
 
 Special Decrees and Decretal Orders, . . 627 
 
 Proceedings Respecting Lunatics, Idiots and Habitual 
 
 Drunkards, ....... 638 
 
 Proceedings for Sale op Lands of Lunatics, &c , 661 
 
 Sale of Infants' Lands, . . . • 669 
 
 Application for Sale of Lands Limited Over, &c., . 682 
 
 Proceedings for Removal op Property of Minor, . 700 
 
 Application for Sale of Lands of a Person Presumed 
 
 TO BE Dead, ..... 703 
 Application for Payment or Delivery to Legatee in 
 
 Remainder of Personal Property Bequeathed for 
 
 LrpE TO A Person Presumed to be Dead, . . 713 
 
 Application for the Appointment of a New Trustee, 720 
 
 INDEX TO FORMS AND NOTES, .... 729 
 
INDEX TO, CASES CITED. 
 
 A. 
 
 Ackens v. Winston 7 C. E. Gr. 444 359 
 
 Ackerson v. Lodi Branch E. B. Co... 1 Stew. Eq. 542 331 
 
 Adams V. Hudson County Bank 2 Stock. 535 305 
 
 African M. E. Church v. Conover 12 C. E. Gr. 157 11 
 
 Aldridge v. Messner 6 Ves. 418 486 
 
 Allanson v. Moorsom 2 Sim. & Stu. 478 123 
 
 Allen V. Cole 1 Stock. 286 213, 219 
 
 Allen V. Mercantile Mut. Ins. Co 46 Barb. 643 8 
 
 Allen V. Morris 5 Vr. 159 333 
 
 Allen v.EoII 10 C. E. Gr. 163 107, 332 
 
 Allen V. Smith 7 Halst. 159 18, 213, 235 
 
 Allen V.Taylor 2 Gr. Ch. 435 36, 293. 502 
 
 Alvord V. Beach 5 Ab. 451 253 
 
 Ambrose V. Ambrose 1 Cox S. C. 194 138 
 
 Am. Dock & Imp. Co. v. Trustees..... 10 Stew. Eq. 266 244, 245 
 
 American Ins. Co. v. Kyerson 2 Hal. Ch. 9 350 
 
 Amos V. Amos 3 Gr. Ch. 171 465, 467, 468 
 
 Anderson v. Stather 9 Jur. 1085 113 
 
 Andrews v. Ford 2 Hal. Ch. 488 140 
 
 Andrews v.Stelle 7 C. E. Gr. 478 342 
 
 Annin v. Annin 9 C. E. Gr. 188 3 
 
 Anonymous 6 Madd. 276 14 
 
 Anonymous 2 Ves., Sr., 63 61 
 
 Anonymous Pen. 886 69 
 
 Anonymous Pen. *513 79 
 
 Anonymous 1 Veru. 117 115 
 
 Anonymous 4 Sim. 359 138 
 
 Anonymous 1 Ves., Jr., 140 140 
 
 Anonymous 4 Madd. 228 181 
 
 Anonymous 3 Zab.211 234 
 
 Anonymous 2 P. Wms. 68 249 
 
 Anonymous 10 Paige 20 343 
 
 Anonymous 9 C. E. Gr. 19 474 
 
 Anonymous 1 Vern. 351 486 
 
 Anonymous 1877 Ixxii 
 
 Anshutz V. Anshutz 1 C. E. Gr. 162 309, 469 
 
 Anthony V. Anthony 3 Stock. 70 455 
 
 Apgar V. Hiler 4 Zab. 812 588 
 
XIV INDEX TO CASES CITED. 
 
 Apthorp V. Comstook 2 Paige 485 251 
 
 Apthorpe v. Comstock Hopk. 163; 8 Cowen 386 78 
 
 Archbishop of York v. Stapleton 2 Atk. 137 133 
 
 Arden v. Waldon 1 Edw. Ch. 631 19 
 
 Armstrong v. Boss 5 C. E. Gr. 109 336 
 
 Arnaud V. Grigg 2 Stew. Eq. 1 177 
 
 Arnhout, In re 1 Paige 498 650 
 
 Arnold V. Smith 5 Mason C. C. 414 230 
 
 Ashmore v. Evans 3 Stock. 153 8 
 
 Atkinson v. Manks 1 Cowen 691 485 
 
 Atkyns V. Drake 1 McCle. & Y. 229 251 
 
 Atkyns v. Wright 14 Ves. 211 78 
 
 Att'y-Gen. V. Carlisle 2 Sim. 427 81 
 
 Att'y-Gen. v. Del. & B. B. E. E. Co... 12 C. E, Gr. 5, 633 6, 7 
 
 Att'y-Gen. v. Heishon 3 C. E. Gr. 413 245 
 
 Att'y-Gen. v. Montgomery 2 Atk. 378 251 
 
 Att'y-Gen. v. Scott 1 Ves. 419 200 
 
 Att'y-Gen. v. Skinner's Co 1 Coop. P. C. 5 71 
 
 Att'y-Gen. v. Steward 6 C. E. Gr. 340 17 
 
 Att'y-Gen. V. Tiler 1 Dick. 378 7 
 
 Att'y-Gen. v. Wright 3 Beav. 447 289 
 
 Bailey V. Burton 8 Wend. 339 11 
 
 Bailey V. Gundry 1 Keen 53 70 
 
 Bailey v. Stiles 2 Gr. Ch. 245 13, 105, 136 
 
 Bailey v. Stiles 1 Gr. Ch. 220 603 
 
 Baker v. Baker 4 Dutch. 13 359 
 
 Baker v.Haily 2 Dick. 632 309 
 
 Baker V. Holmes Dick. 19 19 
 
 Baker, In re 2 Johns. Ch. 232 s 638 
 
 Baker V. Whiting 1 Story 218 183 
 
 Bancroft v.Wardour 2 Bro. C. C. 66 136 
 
 Bank of Chenango v. Cox 11 C. E. Gr. 452 294 
 
 Bank of Metropolis v. Sprague 6 C. E. Gr. 458 188 
 
 Bank of Orleans v. Skinner 9 Paige 305 17 
 
 Bank of United States v. Eitchie 8 Pet. 128 363 
 
 Bank, The, v. Dugan 2 Bland 254 527 
 
 Barbon v. Searle 1 Vern. 416 507 
 
 Barker, In re 2 Johns. Ch. 235 56 
 
 Barker v. Ray 2 Euss. 63 251 
 
 Barker v. Wyld 1 Vern. 140 174 
 
 Barnard v. Darling 1 Barb. Ch. 218 113 
 
 Barnes v. Gibbs 2 Vr. 318 117, 280 
 
 Barnes v. Taylor 3 Stew. Eq. 7 415 
 
 Barrett v. Doughty 10 C. E. Gr. 379 3, 93, 94, 133 
 
 Barriclo v. Trenton Ins. Co 2 Beas. 164 502 
 
INDEX TO CASES CITED. XV 
 
 Bartlett v. Hawker Mad. Ch. 157 489 
 
 Barton v. Beatty 1 Stew. Eq. 414 203 
 
 Barton V.Long 18 Stew. Eq. 160, 841 Ixv, 629 
 
 Bassett v. Johnson 2 Gr. Ch. 417 245, 246, 250 
 
 Bassett V. Johnson 1 Gr. Ch. 155 247 
 
 Bauere v. Bauere 4 Johns. Ch. 188, 198 473 
 
 Beale v. Blake 18 Stew. Eq. 668 615 
 
 Beatty V. De Forrest 10 C. E. Gr. 643 ; 12 Id. 482 203 
 
 Beck V. Morris May T., 1877 307 
 
 Beckford V. Wildman 16 Ves. 438 78 
 
 Beddall v. Page 2 Sim. 224 40 
 
 Beeckman v. Montgomery 1 McCart. 107 519 
 
 Beekman V. Frost 18 Johns. 544 378 
 
 Begbie v. Begbie 3 Hal. Ch. 98 466 
 
 Belford V. Crane 1 C. E. Gr. 265 240 
 
 Bellv Gilmore 10 C. E. Gr. 104 223 
 
 Bell V. Hall 1 Hal. Ch. 49 106 
 
 Bell V. Woodward 47 N. H. 539 247 
 
 Bellerjeau v. Ely 3 Halst. 273 421 
 
 Belton V. Belton.... 11 C. E. Gr. 449 460, 462 
 
 Bennet v. Bennet 2 Beas. 114 476 
 
 Bennett V. Calhoun Ass'n 9 Eioh. 163 343 
 
 Bennett v. Hamlin 2 Dick. Ch. Bep. 326 
 
 119, 121, 124, 126 
 
 Bennington Iron Co. v. Campbell 2 Paige 159 126 
 
 Benson v. Bennett 1 Dutch. 166 278 
 
 Benson v. Woolverton 1 C. E. Gr. 110 179, 315, 317 
 
 Bentley v. Long Dock Co 1 McCart. 480, 487 ; 2 Id. 501 
 
 402, 412, 415, 442 
 
 Berckmans v. Berckmans 1 C. E. Gr. 122 462 
 
 Beresford v. Adair 2 Cox 156 176 
 
 Berryman v. Graham 6 C. E. Gr. 370 342 
 
 Best V. Schermier 2 Hal. Ch. 154 372 
 
 Bigelow.v. Cassedy U C. E. Gr. 557 377 
 
 Bigelowv. Magee 12 C. E. Gr. 392 513 
 
 Binney'sCase 2 Bland 99 113 
 
 Binnsv. Mount 1 Stew. Eq. 24 138 
 
 Bird V. Davis 1 McCart. 479 104 
 
 Bishop V. Bishop 13 Ala. 475 7 
 
 Black V. Black 11 C. E. Gr. 431 ; 12 Id. 664 xc, 453 
 
 Black V. Black 5 Stew. Eq. 74 Ixxxiv 
 
 Black V. Del. & Ear. Canal Co 9 C. E. Gr. 456 136 
 
 Black V.Ely 1 Halst. 232 234 
 
 Black V.Lamb 1 Beas. 108 245, 247 
 
 Black V Shreve 3 Hal. Ch. 440 90, 615 
 
 Blackwell v. Kankin 3 Hal. Ch. 153 521 
 
 Blair V. Porter 2 Beas. 267 480 
 
XVI INDEX TO CASES CITED. 
 
 Blair V. Thompson llGralt.411 623 
 
 Blake v. Blake 2 Sch. & Lef. 26 137 
 
 Blauvelt v. Smith 7 C. E. Gr. 31 202, 206 
 
 Bleeeker v.HeDmon 8 C. E. Gr. 123 420 
 
 Bliss V. Boscawen 2 Ves. & Bea. 102 134 
 
 Bliss V. Slater May T,, 1872 245 
 
 Bloodgood T. Clark 4 Paige 574, 575 498 
 
 Board of Dom. Miss. v. Puechelstein.. 12 C. E. Gr. 30 93 
 
 Eodine v. Gray 9 C. E. Gr. 335 336 
 
 Body V. Kent 1 Mer. 361 278 
 
 Boehm v. Wood 1 Turn. & K. 332, 240 14, 309, 312 
 
 Bond V. Hendricks 1 A. K. Marsh. 594 12 
 
 Boon V. Pierpont 1 Stew. Eq. 7 ; 5 Id. 217 Ixix, 12 
 
 Boone v. Eidgwa/s Ex'rs 12 C. E. Gr. 143 297 
 
 Booraem v. Wells,„ 4 C. E. Gr. 87 174 
 
 Booth V. Eich 1 Vern. 295 389 
 
 Boqut V. Coburn , . 27 Barb. 230 378 
 
 Bossard V.Lester 2 McCord's Ch.*419 140 
 
 Botts V. Cozine 2 Edw. Ch. 583 559 
 
 Bowden v. Beauchamp 2 Atk. 82 141 
 
 Bowers V. Bowers July, 1829 35, 356 
 
 Bowne v. Eitter 11 C. E. Gr. 456 232, 359 
 
 Boyd V.Mills 13 Ves. 85 95 
 
 Bradford V. Felder 2 McCord's Ch. *170 133 
 
 Bradshaw v. Bradshaw 2 Mer. 492 138 
 
 Brandlyn v. Ord 1 Atk. 571 141 
 
 Brantingham v. Brantingham 1 Beas. r64 259 
 
 Brasher V. Van Cortlandt 2 Johns. Ch. 245 12 
 
 Bray V. Bray 2 Hal. Ch. 27 467 
 
 Breeding v. Finley 1 Dana 47 71 
 
 Brewer v. Turner Str. 233 190 
 
 Brewer v. Wilson 2 C. E. Gr. 180 231 
 
 Briantv. Eeed 1 McCart. 271 480 
 
 Bright v. Currie 5 Sandf. 433 6 
 
 Brinkerhoff v. Franklin 6 C. E. Gr. 334 24, 334 
 
 Brocker v. Martin 3 Yerger 55 117, 280 
 
 Brokaw v. Brokaw 14 Stew. Eq. 215 9 
 
 Brookfield v. Williams 1 Gr. Ch. 341 403, 439, 442 
 
 Brooks v.Byam 1 Story 297 120 
 
 Brooks V.Lewis 2 Beas. 214 14 
 
 Broom v. Beers 6 Conn. 198 ;. 333 
 
 Brotherton v. Chance Bunb. 34 ~ 127 
 
 Brower v. Brower 2 Edw. Ch. 621 548 
 
 Brown V. Baoklcy 1 McCart.294 169 
 
 Brown et al. v. Easton et al 3 Stew. Eq, 725 Ixxxi 
 
 Brown V. Greenly Dick. 504 146 
 
 Brown V. Keating 2 Beav. 581 120 
 
INDEX TO CASES CITED. XVll 
 
 Brown v. Winans 3 Stock. 267 304, 305 
 
 Brownlee v. Lockwood 5 C. E. Gr. 239 93 
 
 Brownsword v. Edwai'ds 2 Ves, 243 90 
 
 Binen v. Crane 1 Gr. Ch. 347 342 
 
 Brumagim v. Chew 4 C. E. Gr. 337 182, 18S 
 
 Brumagim v. Chew 6 C. E. Gr. 180 198 
 
 Brumley v. Westchester Society 1 Johns. Ch. 366 115 
 
 Bruncker, Ex parte 3 P. Wma. 312 14 
 
 Brundage v. Goodfellow 4 Hal. Ch. 513 348, 356 
 
 Brundred v. Paterson Machine Co.... 3 Gr. Ch. 294, 309 288 
 
 Brundred v. Walker et al 1 Beas. 140 341 
 
 Buckingham v. Corning 2 Stew. Eq. 238 502, 507, 508 
 
 Buckley v. Corse Sax. 504, 509 
 
 ; 182, 134, 287, 289, 306 
 
 Bunyan v. Mortimer 6 Madd. *278 37 
 
 Burgin v. Giberson 8 C. E. Gr. 403 106, ]35 
 
 Burgin v. Giberson 11 C. E. Gr. 72 334, 636 
 
 Burley v. Kitchell Spen. 305 149 
 
 Burnet v. Burnet 1 Dick. Ch. Eep. 151 270 
 
 Burnham v. Balling 2 C. E. Gr 310 179 
 
 Burras v. Looker 4 Paige 227 114 
 
 Burton, In re 1 Buss. 380 288 
 
 Burton V. Neville 2 Cox S. C. 242 74 
 
 Butterfield v. Third Ave. Bank 10 C. E. Gr. 533 5 
 
 Byington v. Wood 1 Paige 145 63, 65 
 
 Bylandt v. Bylandt 2 Hal. Ch. 28 14, 309 
 
 Byrne v. Byrne 2 Mol. 440 146 
 
 Byrne v. Frere 1 Mol. 396 169 
 
 C. 
 
 Calame v. Calame 9 C. E. Gr. 440; 10 Id. 548 473 
 
 Calanan v. Salway McCle. 598 ; 13 Price 799 144 
 
 Camac v. Francis 3 Wash. C. C. 108 356 
 
 Camden and Amboy E. E. Co. v. 
 
 Stewart 4 C. E. Gr. 343 7, 8, 61, 131 
 
 Camden and Amboy E. E. Co. v. 
 
 Stewart 6 C. E. Gr. 484 288 
 
 Cammann v. Traphagan's Ex'r Sax. 30 100 
 
 Campbell v. Dewick 5 C. E. Gr. 186 240 
 
 Cann v. Cann 1 P. Wms. 567 149, 489 
 
 Cannon v. Wright 4 Dick. Ch. Eep. 17 342 
 
 Capner v. Flemington Co 2 Gr. Ch. 467 17, 293 
 
 Cairo and Fulton Co. v. Titus 11 C. E. Gr. 94 303 
 
 Carleton v. L'Estrange 1 Turn. & E. 23 135 
 
 Carlisle v. Cooper 3 C. E. Gr. 241 117, 279 
 
 Carpenter v. E. & A. E. E. Co 9 C. E. Gr. 408 245 
 
 Carpenter v. E. & A. E. E. Co 11 C. E. Gr. 168 250 
 
 2 
 
XVlll INDEX TO CASES CITED. 
 
 Carpenter v. Muohmore 2 McCart. 123 324 
 
 Carr v. Pass. Imp. Co 4 C. E. Gr. 424; 7 Id. 85 232 
 
 CarriDgtoQ V. Holly Dick. 281 140 
 
 Carris v. Carris 9 C. E. Gr. 516 474 
 
 Carter v. Denman's Ex'r 3 Zab. 260 343 
 
 Caryv. Gary 12 Stew. Eq. 3 14, 313 
 
 Cassedy v. Bigelow 12 C. E. Gr. 505 186 
 
 Cater v. Dewan Dick. 654 178 
 
 Cathcart V. Hewson 1 Hayes 173 71 
 
 Chambers v. Dwyer 12 Vr. 95 291 
 
 Chance v. Teeple 3 Gr. Ch. 173 356 
 
 Chancellor v. Gummere 12 Stew. Eq. 582; 13 Id. 279 231 
 
 Chandler v. Herrick 3 Stock. 497 106 
 
 Chapin V. Broder 16 Cal. 403 223 
 
 Chapman v. Chapman 10 C. E. Gr. 394 452 
 
 Chapman v. Harwood 8 Blackf. 82 231 
 
 Chapman v. Hunt 1 McCart. 150 333 
 
 Chattin, In re 1 C. E. Gr. 496 639, 643 
 
 Chegary v.Schofield 1 Hal. Ch. 525 188 
 
 Chester V. King 1 Gr. Ch. 405 341 
 
 Chetwood v. Brittan 1 Gr. Ch. 438 636 
 
 Chews V. Driver Coxe 109 78 
 
 Child, In re 1 C. E. Gr. 498 640, 643 
 
 Chiswell V. Morris 1 McCart 101 , 623 
 
 Cholmondeley v. Clinton 2 Jac. & W. 189 378 
 
 Citizens' Coach Co. v. Camden 2 Stew. Eq. 299 288, 290 
 
 Citizens' Loan Ass'n, &c., v. Lyon 2 Stew. Eq. 110; 3 Id. 732 580 
 
 City Bank v. Bangs 2 Paige 570 485 
 
 Claflin V. Voorhees 6 Vr. 484 324 
 
 Clair V. Terhune 8 Stew. Eq. 336 188 
 
 Clark V. Lord Abingdon 17 Ves. 106 359 
 
 Clark V. Eeyburn 8 Wall. 318 388 
 
 Clarkson v. De Peyster 3 Paige 336 3 
 
 Clarkson V. De Peyster Hopk.505; 2 Wend. 77 138 
 
 Clason V. Clason 6 Paige 541 415 
 
 ClifTs V. Wilkinson 4 Sim. 123 71 
 
 Close V. Close 1 Stew. Eq. 472 223 
 
 Cockerill v. Barber 4 Madd. 172 73 
 
 Coddingtou v. Coddington 5 C. E. Gr. 263 452 
 
 Coddington v. Mott , 1 McCart. 430, 431 132, 133, 134 
 
 Coe V. N. J. Midland Ey. Co 4 Stew. Eq. 105 334 
 
 Coe V. N. J. Midland Ky. Co 12 C. E. Gr. 110 588 
 
 Coffin V. Heath 6 Met. 81 389 
 
 Coke V. Wilcocks Mos. 73 103 
 
 Colebrook v. Jones Dick. 154 70 
 
 Coles V. Coles 2 Beas. 365 442 
 
 Colgar V. Colgar 1 Ves., Jr., 94 309 
 
INDEX TO CASES CITED. xix 
 
 ■Colgate V. Colgate 8 C. E. Gr. 372 Ixiii 
 
 Collard V. Smith 2Beas.43 114 
 
 Collins, Sarah, In re 3 C. E. Gr. 253 638 
 
 Collins V. Taylor 3 Gr. Ch. 163 141 
 
 Collinson v. 18 Ves. 354 15 
 
 Colman V. Northcote 2 Hare 147 104 
 
 Colton V. Boss 2 Paige 397 11 
 
 Commonwealth v. Fisher 2 J. J. Marsh. 137 212 
 
 Condict's Ex'rs v. King 2 Beas. 383 487 
 
 Condit V. Gregory 1 Zab.429 325 
 
 Condit V.Wood 1 Dutch. 319 79 
 
 Conoyer's Ex'rs v. Conover Sax. 409 117, 280 
 
 Conover, In re 1 Stew. Eq. 330 650 
 
 Conover V. Euckman 6 Stew. Eq. 303 525 
 
 Conover v. Walling 2 McCart. 167, 173 187, 214, 421 
 
 Conover v. Wright 2 Hal. Ch. 613 97 
 
 Conrad v. MuUison 9 C. E. Gr. 65 284 
 
 Consolidated Electric Storage Co. v. 
 
 Atlantic Trust Co 5 Dick. Ch. Rep. 93 37 
 
 Cook V. Chapman 3 Stew. Eq. 114 307 
 
 Cook V. Cook 2 Beas. 263 461 
 
 Cook V. Gwyn 3 Atk. 689 180 
 
 Cooke V. De Montmorency.. 1 Hogan 181 82 
 
 Cool's Ex'rs V. Higgins 8 C. E. Gr. 308; 10 Id. 117...683, 695 
 
 Cooper V. Cooper 1 Stock. 655 197 
 
 Cooper V. Green 2 Addams' Eccl. Eep. 454 19 
 
 Cooper V. Guiger Str. 606 190 
 
 Copeland v. Stanton 1 PI Wms. 414 163 
 
 Corey v. Voorhees 1 Gr. Ch. 5 21 
 
 Corles V. Lashley 1 MoCart. 116 211 
 
 Corlies v. Corlies 8 C. E. Gr. 197 171 
 
 Cornelius V. Halsey 3 Stock. 27 336 
 
 Cornish v. Bryan 2 Stock. 146 566 
 
 Cornish v. Tanner 1 Y. & J. 333 480 
 
 Cortheal ads. Moorehouse 1 Zab. 335 69 
 
 Cortleyeu v. Hathaway 3 Stock. 39 : 372, 373 
 
 Coryell v. Bridge Co 1 Stock. 457 530 
 
 Coryell V. Holcombe 1 Stock. 650 188 
 
 Cotes V. Turner Bunb. 124 102 
 
 Cotton V. Earl Carlisle 5 Madd. 427 504 
 
 Goulston V. Coulston 10 Stew. Eq. 396 
 
 Coursen v. Canfield 6 C. E. Gr. 99 107 
 
 Covenhoven's Case Sax. 19 639, 641, 649, 653 
 
 Coveny v. Athill 6 Sim. 439 494 
 
 Cox V. Allingham 3 Jac. 339 79 
 
 Coxe V. Field 1 Gr. 215 279 
 
 Coie V. Halsted 1 Gr. Ch. 311 213, 219 
 
XX INDEX TO CASES CITED. 
 
 Crane V. Brigham 3 Stock. 29 324 
 
 Crane v. Conklin Sax. 346 606 
 
 Crane v. DeCamp 7 C. E. Gr. 614 188 
 
 Crawford V. Bertholf. Sax. 458 168 
 
 Creveling v. Kerr 2 N. J. L. J. 119 317 
 
 Cronkriglit v. Haulenbeck 10 C. E. Gr. 513 268, 449 
 
 Crowell V. Batsford 1 C. E. Gr. 458 18, 36 
 
 Crowell V. Hospital of St. Barnabas... 12 C. E. Gr. 650 579 
 
 Croxon v. Lever 10 Jur. (N. S.) 87 389 
 
 Cummiug v. Waggoner 7 Paige 603 48 
 
 Cummins Y. Cummins 4 Hal. Ch. 173 306, 321 
 
 Cummins v. Little 1 C. E. Gr. 48,54 213, 218 
 
 Curry v. Glass 10 C. E. Gr. 108 521 
 
 Curtis V. Curtis 2 Bro. 620 626 
 
 Cutting V. Dana 10 C. E. Gr. 265 142 
 
 D. 
 
 Dacie v. John 13 Price 117 138 
 
 Dallas V. Jeffers 1827 279 
 
 Dare's Adm'rs v. Allen's Ex'r 1 G. C. B. 288 6 
 
 Davis V. Chanter 2 Phillips 545 57 
 
 Davis V. Davis 4 C E. Gr. 180, 181 15, 469 
 
 Davis V. Dean 11 C. E. Gr. 436 513, 521 
 
 Davis V. Sullivan 6 Stew. Eq. 569 Ixxxiv 
 
 Davison's Ex'rs v. Johnson 1 C. E. Gr. 112 96, 98, 112 
 
 Davison v. Perrine 7 C. E. Gr. 87 178 
 
 Day V. Allaire 4 Stew. Eq. 303 183 
 
 Day v. Day 3 Gr. Ch. 444 462 
 
 Dean v. Bonnell 4 N. J. L. J. 348 290 
 
 Decamp v. Decamp 1 Gr. Ch. 294 453 
 
 Decker v. Kuckman 1 Stew. Eq. 614, 617 179, 180, 188 
 
 Decker V. Caskey Sax. 427 245 
 
 De Grieff v. Wilson 3 Stew. Eq. 435 332 
 
 De Groot v. McCotter 4 C. E. Gr. 531 351 
 
 De Groot v. Keceivers 2 Gr. Ch. 198 615 
 
 Del., L. & W. B. E. Co. v. Oxford 
 
 Iron Co 11 Stew. Eq. 151 588 
 
 Del., L. & W. R. E. Co. v. Scranton... 7 Stew. Eq. 429 235 
 
 Del. & E. Canal Co. v. Ear. & Del. 
 
 Bay E. E. Co 1 McCart. 445 Ixxix 
 
 Delaney v. Noble 2 Gr. Ch. 441 168 
 
 Demarest v. Berry 1 C. E. Gr. 481 336 
 
 Demarest v. Vandenburg 12 Stew. Eq. 130 164 
 
 Den V. Downam 1 Gr. 137 237 
 
 Den V. Geiger 4 Halst. 225 279 
 
 Den V. Hendrickson 3 Harr. 366 40 
 
 Den V. Humphreys 1 Harr. 25 237 
 
INDEX TO CASES CITED. XXI 
 
 Den V. Lambert 1 Gr. 182, 185 239 
 
 Denv. Mulford lZab,500 241 
 
 Den V. Steelman 5 Halst. 193 240 
 
 Denv. Taylor 1 Harr. 532 237 
 
 Den V. Vancleve 2 South. 589, 653. 163 
 
 Denton v. Denton 1 Johns. Ch. 441 14 
 
 Denton V. Denton 1 Johns. Ch.364 309 
 
 Denton v. Leddell 8 C. E. Gr. 64 245 
 
 Derby v. Derby 6 C. E. Gr. 36, 51, 58 104, 162, 463 
 
 Devonsher V. Newenham 2 Sch. & Lef. 199 94 
 
 Dewitt V. Ackerman 2 C. E. Gr. 215 402 
 
 Dexter v. Arnold 2 Sumn. 108 357 
 
 Dexter v. Arnold 5 Mason 303 507 
 
 Diament v. Lore 2 Vr. 220 402 
 
 Dias V. Bouchand 10 Paige 445 94 
 
 Dickerson V. Hodges 16 Stew. Eq. 45 110 
 
 Dickey v. Allen 1 Gr. Ch. 40 105 
 
 Dickinson v. Mavie 2 Dick. 582 73 
 
 Dillon V. Francis Dick. 68 15 
 
 Dinsmore v. Westcott 10 C. E. Gr. 302 18, 32, 324 
 
 Disborough V. Outcalt Sax. 298 512 
 
 Dixon V. Parke 1 Ves., Jr , 402 140 
 
 Dodd V. Flavell 2 C. E. Gr. 255 Ixxxi 
 
 Dodd V. Wilkinson 15 Stew. Eq. 647 122 
 
 Doe V. Green 2 Paige 347 15 
 
 Done V. Read 2 V. & B. 310 114 
 
 Donne v. Lewis 11 Ves. 601 180 
 
 Donnelly v. State 2 Dutch. 601, 620 163 
 
 Dorsheimer v. Eorback 3 C. E. Gr. 439 4 
 
 Dorsheimer v. Eorback 8 C. E. Gr. 46; 10 Id. 576 93, 594 
 
 Dougherty v. Bennett 10 Stew. Eq. 87 9 
 
 Dougherty v. Dougherty 4 Hal. Ch. 540 465, 469 
 
 Doughten v. Gray 2 Stock. 323 333 
 
 Doughty V. Doughty 12 C. E. Gr. 315 559 
 
 Douglass V. Merceles 9 C. E. Gr. 25 357 
 
 Douglass V. Sherman 2 Paige 358 322 
 
 Dowden v. Junker 3 Dick. Ch. Eep. 554 45 
 
 Downes v. East India Co 6 Ves. 586 94 
 
 Dudley v. Bergen 8 C. E. Gr. 397 107 
 
 Duncan v. Smith 2 Vr. 325 378 
 
 Dunham v. Cox 2 Stock. 437 513 
 
 Dunham v. Jackson 1 Paige 629 14 
 
 Dunn V. Seymour 3 Stock. 278 331 
 
 Durant v. Bacot 2 McCart. 413 636 
 
 Dyson V. Benson Cooper's Ca. 110 92 
 
XXU INDEX TO CASES CITED. 
 
 E. 
 
 Eager v. Price 2 Paige 333 502 
 
 Eager v. Wiswall 2 Paige 369 74, 79 
 
 Eames v. Eames 16 Pick. 143; 1 Barb. Ch. Pr. 446, 
 
 463 245 
 
 Earl of Clarendon v. Hornby 1 P. Wms. 447 439' 
 
 Easton v. Eailroad Co 9 C. E. Gr. 273 287 
 
 Easton and Amboy B. B. Co. v. 
 
 Greenwicli 10 C. E. Gr. 565 281 
 
 Easton et al. v. N. Y. & L. B. B. B. 
 
 Co 11 C. E. Gr. 359 307 
 
 Eberhart V. Gilclirist 3 Stocli. 167 8 
 
 Edgar v. Clevenger 2 Gr. Ch. 464 502 
 
 Edgar v. Clevenger 1 Gr. Cli. 258 521 
 
 Ekings V. Murray 2 Stew. Eq. 388 202, 239 
 
 Ellice V. Boupell 32 Beav. 299 490 
 
 Elliott V. Balcom 11 Gray 286 507 
 
 Elliott V. Van Voorst 3 Wall., Jr., 299 13 
 
 Elmendorf v. Delanoy Hopk. 555 12 
 
 Elmer y. Loper 10 C. E. Gr. 475 135 
 
 Ely V. Perrine 1 Gr. Ch. 396 211, 232, 361 
 
 Emans v. Emans 1 McCart. 120 101 
 
 Emans v. Wortman 2 Beas. 205 93 
 
 Embley v. Hunt March T., 1878 187 
 
 Emery v. Downing 2 Beas. 59 34, 81, 349 
 
 Endicott V. Mathis 1 Stock. 110 19 
 
 Equitable Life Assurance Society v. 
 
 Laird 9C. E. Gr319; 11 Id. 531..18, 24, 30 
 
 Erskine v. Garshore 18 Ves. 114 68 
 
 Esdaile V. Molyneux 2 Coll. 642; llJur. 201 12a 
 
 Essex Paper Co. V. Greacen 18 Stew. Eq.504 93 
 
 Evans v. Evans 18 Jur. 666 90- 
 
 Evans v. Veysey McCle. 341 144 
 
 Everly v. Bice 3 Gr. Ch. 553 105 
 
 P. 
 
 Facklerv. Worth 2 Beas. 395 203, 206, 208 
 
 Pairchild v. Pairchild 16 Stew. Eq. 473 ovi 
 
 Faitoute's Ex'rs v. Haycock 1 Gr. Ch. 105 348 
 
 Falconberg v. Pierce Amb. 210 251 
 
 Farquharson v. Balfour Turn. & E. 189, 190 79, 127, 129 
 
 Farquharson v. Pitcher 3 Buss. 383 142 
 
 Farrell, In re 6 Dick. Ch. Bep. 353 645 
 
 Fawkes v. Pratt 1 P. Wms. 593 12 
 
 Fell V. Lutwidge Barn. 320 6 
 
 Feme, Ex parte 5 Ves. 450 651 
 
INDEX TO CASES CITED. xxiii 
 
 Perrar v. Ferrar Dick. 173 61 
 
 Ferris v. Busli 1 Edw. Ch. 572 676 
 
 Feuchtwanger v. MoCool 2 Stew. Eq. 151 104, 113 
 
 Fey V. Fey 12 C. E. Gr. 213 107 
 
 Field v.Gibbs Pet. C. C. 155 36 
 
 Field V. Schieffelin 7 Johns. Ch. 252 511 
 
 Finch, In re Clarke's Ch. Rep. *538 676 
 
 Firlh V. Firth 5 Dick. Ch. Kep. 137 452 
 
 Fish V. N. Y. Waterproof Paper Co.... 2 Stew. Eq. 16, 610 334, 635 
 
 Fisher v. Quick 1 Stock. 312 140 
 
 Flagg V. Bonuell 2 Stock 82 100, 144 
 
 Flavell V. Flavell 5 C. E. Gr. 211 ; 7 Id. 599 163, 169 
 
 Fleischman v. Young 1 Stock. 622 , 5, 521 
 
 Flighty. Bolland 4 Buss. 298 4 
 
 Force v. Dutcher 3 C. E. Gr. 401 232 
 
 Forgay v. Conrad 6 How. 204 179 
 
 Fort V. Eagusin 2 Johns. Ch. 146 146 
 
 Fowler v.Koe 3 Stock. 367 496 
 
 Franklin v. Keeler 4 Paige 382 121 
 
 Freehold Mut. Loan Ass'n v. Brown.. 1 Stew. Eq. 42 
 
 Freeman v. Freeman 2 C. E. Gr. 44 333 
 
 Freeman v. Scofield 1 C. E. Gr. 28 332, 342 
 
 Freese v. Swayze 11 C. E. Gr. 437 40 
 
 French v. Griffin 3 C. E. Gr. 279 334, 636 
 
 Frescobaldi v. Kinaston Str. 783 190 
 
 Frey v. Demarest 1 C. E. Gr. 236 , 594 
 
 Frisbie v. Bateman 9 C. E. Gr. 28 372, 373 
 
 Frilts, In re 2 Paige 375 4 
 
 Frizzle v.Veach 1 Dana 211 239 
 
 Fuller V Taylor 2 Hal. Ch. 301 498 
 
 Fulton v. Golden 10 C. E. Gr. 353 98 
 
 Fulton V. Golden 1 Stew. Eq. 37 169 
 
 Fulton V. Greacen 17 Stew. Eq. 443 101 
 
 a. 
 
 Garnsey v. Mundy 9 C. E. Gr. 243 636 
 
 Gale V. Morris 2 Stew. Eq. 222; 3 Id. 285 636 
 
 Galinger V. Galinger 4 Lans. 473 ; 61 Barb. 31 467 
 
 Gariss v. Gariss 2 Beas. 320, 322 304, 305 
 
 Garth v. Ward 2 Atk. 175 343 
 
 Gary v. Wittingham 1 Sim. & Stu. 163 82 
 
 Gaskill V. Sine 2 Beas. 130 144 
 
 Gaylor V. Fitz-John 1 Sim. 386 81 
 
 German Eef.Ch.v. Von Puechelstein, 12 C. E. Gr. 30 335 
 
 Germond v. Germond 4 Paige 643 468 
 
 Gest V. Flock 1 Gr. Ch. 108 362 
 
 Gibert v. Colt Hopk. 496, 500 14, 310, 311 
 
XXIV INDEX TO CASES CITED. 
 
 Gifford V. Hort 1 Sch. & Lef. 398, 409 184, 187 
 
 Gifford V. Thome 3 Hal.Ch. 90; 1 Stock. 702, 703... 
 
 28, 36 
 
 Gihon V. Belleville 3 Hal. Ch. 531, 536 361 
 
 Giles V. Eaton 54 Maine 186 114 
 
 Giveans v. McMurtrey 1 C. E. Gr. 468, 475 24, 37 
 
 Glasser V. Glasser 1 Stew. Eq. 22 466 
 
 Gleason V. Bisby Clarke 561 311 
 
 Glegg V.Leigh 4 Madd. 207 91 
 
 Glover V. Hedges Sax. 113 183 
 
 Goble V. Andruss 1 Gr. Ch. 66 91 
 
 Goodenougli V. Goodenough 2 Dick. 795 623 
 
 Goodrich v. Pendleton 3 Johns. Ch. 520 71 
 
 Goodwin v. Goodwin 8 C. E. Gr. 210 453 
 
 Gordon V. Hobart 2 Story 243 3.'56 
 
 Gordon v. Eothley 3 Ves. 572 137 
 
 Gorham v. Gorham 3 Barb. Ch. 24 403 
 
 Gorely v. Gorely 25 Beav. 234 276 
 
 Gould V. Wheeler 1 Stew. Eq. 541 331, 341 
 
 Grahata v. Berryman 4 C. E. Gr. 29 11, 334, 636 
 
 Grane v. Cooper 4 Mylne & C. 263 75 
 
 Grant v. Grant 3 Kuss. 598, 602 313 
 
 Grattan v. Wiggins 23 Cal. 16 336 
 
 Gray v. Murray 4 Johns. Ch. 412 169 
 
 Green v. Blackwell 5 Stew. Eq. 768 187 
 
 Green v. Blackwell 4 Stew. Eq. 37 720 
 
 Green v. Charnock 3 Bro. C. C. 371 69 
 
 Green v. Philadelphia Co 11 C. E. Gr. 443 307 
 
 Gregory v. Cable 11 C. E. Gr. 178 333 
 
 Griffiths V. Griffiths 2 Hare 588, 594 281 
 
 Griggs V. Gear 3 Gilman 2 508 
 
 Grinnell v. Merchants' Ins. Co 1 C. E. Gr. 283 545 
 
 Griswold v. Inman Hopk. 86 144 
 
 Haggerty v. Nixon 11 C. E. Gr. 42 5, 521 
 
 Haight V. Morris Aqueduct 4 Wash. C. C. 601 115 
 
 Hall V. Piddock 6 C. E. Gr. 311 442 
 
 Halsted v. Fowler 2 Zab. 48 272 
 
 Halsted v. Meeker's Ex'rs 3 C. E. Gr. 136 11, 136 
 
 Hamilton v. Marks , 5 De G. & S. 638 287, 484 
 
 Hammond V. Hammond 2 Moll. 312 133 
 
 Hammond v. Hammond Clarke 151 467 
 
 Hampton V. Coddington 1-Stew. Eq. 557 15 
 
 Hampton v. Nicholson 8 C. E. Gr. 423 135 
 
 Hanson v. Trustees, &c 3 Stock. 441 168 
 
 Hardenburgh v. Farmers' Bank 2 Gr. Ch. 73 289 
 
INDEX TO CASES CITED. XXV 
 
 Bare V. Collins 1 Hogan 193 75 
 
 Haring v. Kauffman 2 Beas. 397 '. 157, 288, 291 
 
 Harris v. Millbur-n 2 Hagg. 62 57 
 
 Harrison v. Farrington 8 Stew. Eq. 4 18 
 
 Harrison v. Harrison 5 Beav. 130 4 
 
 Harrison v. Rowan 3 Wash C. C. 580; 4 Id. 32 251 
 
 Harrison v. Bowan 4 Wash. C. C. 202, 207 343 
 
 Hartshorne v. Hartshorne 1 Gr. Ch. 349 402, 622 
 
 Hatch V. White 2 Gall. 152 363 
 
 Haughwout V. Murphy 6 C. E. Gr. 118; 7 Id. 531 97, 519 
 
 Haulenbeck v. Cronki-ight 11 C. E. Gr. 159 403, 442 
 
 Haulenbeck v. Cronkright 8 C. E. Gr. 407 405, 448 
 
 Hay V. Estell 3 C. E. Gr. 251 403 
 
 Hay V. Estell 4 C. E. Gr. 138 442 
 
 Hayes v. Lequin 1 Hogan 274 114 
 
 Heathcote v. Edwards Jac. 504 181 
 
 Heaton, In re 6 C. E. Gr. 221 672 
 
 Hendee v. Howe 6 Stew. Eq. 92 315 
 
 Henderson V. Hays 12 Vr. 387 240 
 
 Henderson V. Hopper April, 1827 21, 36 
 
 Hendrickson v. De Cou Sax. 593 487 
 
 Hendrickson V. Ivins Sax 562 636 
 
 Hendrickson v. Norcross 4 C. E. Gr. 417 305 
 
 Hendrickson v. Wallace 4 Stew. Eq. 604 3, 91 
 
 Hendry v. Quinan 4 Hal. Ch. 534 344 
 
 Henwood v. Jarvis 12 C. E. Gr. 247 306 
 
 Hewitt V. Montclair Ey. Co 10 C. E. Gr. 100, 392; 12 Id. 479... 
 
 213, 284 
 
 Hicks V. Campbell 4 C. E. Gr. 183, 187 90, 101, 341 
 
 Higbie v. Edgarton 3 Paige 253 278 
 
 Higginsv. 8 Ves.381... 138 
 
 Hiles V. Coult 3 Stew. Eq. 40 369 
 
 Bill V. Beech 1 Beas.. 31, 32 7, 11, 259 
 
 Hillv.Colie 10 C. E. Gr. 469 106 
 
 Hill es V. Parish 1 McCart 380 287 
 
 Hillyer v. Schenck 2 McCart. 399 167 
 
 Hilyard v. Harrison 8 Vr. 170 79 
 
 Hinckley v. Appleby 2 Cox 409 73 
 
 Hitchcock V. Rhodes 15 Stew. Eq.495 61, 121 
 
 Hoagland v Hoagland 1 Gr. Ch. 511 118 
 
 Hoagland v. Titus 1 C. E. Gr. 44 183 
 
 Hoboken Ass'n v. Martin 2 Beas. 427 133 
 
 Hodgson V. Farrell 2 McCart. 88 219 
 
 HofF V. Burd 2 C. E. Gr. 301 510 
 
 JHoffman v. Postil L. R., 4 Ch. Ap. 673 116 
 
 Holcombe v. Holcombe 2 Stew. Eq. 375 191 
 
 Holcombe v. Holcombe 2 Beas. 417 376 
 
XXVI INDEX TO CASES CITED. 
 
 Holdrege v. Gwynne.... 3 C. E.'Gr. 27 16, 28* 
 
 Holman v. Holman 3 Deasaiis. 210 142: 
 
 Holmes v. Steele 1 Stew. Eq. 173 211 
 
 Home Ins. Co. v. Howell 9 C. E. Gr. 238 142: 
 
 Hopper V. Hopper 1 C. E. Gr. 149 253 
 
 Hornby V. Pemberton Mos. 57 79" 
 
 Horner v. Corning 1 Stew. Eq. 254, 258 
 
 26, 32, 36, 211, 362: 
 
 Hosack V. Rogers 6 Paige 415 138 
 
 Houseworth's Adm'r v. Hendrickson.. 12 C. E. Gr. 60 314 
 
 Howe V. Harvey 8 Paige 74 2: 
 
 Howe V. Eobbins 9 Stew. Eq. 19 12- 
 
 Howell V. Ashmore 1 Stock. 82 ....496, 498 
 
 Howell V. Sebring 1 McCart. 84 135, 219 
 
 Howling V. Butler 2 Mad. (Am. Ed.) 469 103 
 
 Hoxie V. Carr 1 Sumn. 173 314 
 
 Hoxie V.Scott Clarke 457 81 
 
 Hoyt V. Hoyt 12 C. E. Gr. 399 63& 
 
 Hoyt T. Newbold 16 Vr. 219 704 
 
 Hudnit V. Nash 1 C. E. Gr. 550 .341, 361 
 
 Huffman v. Hummer 2 C. E. Gr. 263, 269, 271 
 
 106, 305, 306- 
 
 Huggv.Hugg June,1877 80 
 
 Hughes V. Blake 6 Wheat 472 144 
 
 Hughes V.Nelson 2 Stew. Eq. 547 559 
 
 Hughes V. Eyan lBeatty327 14 
 
 Humphreys v. Humphreys 3 P. Wms. 351 6, 133 
 
 Humphreys v. Ingledon 1 P. Wms. 752 6 
 
 Hume V. Babington 1 Hogan 8 143- 
 
 Hunt V. Field , 1 Stock. 36 521 
 
 Hunt V. Hunt 2 Stew. Eq. 96 461 
 
 Hunt V. Wallis 6 Paige 371 278 
 
 Hurlburt v. McKay 8 Paige 651 259, 260- 
 
 Hyer v. Little 5 C. E. Gr. 443 114 
 
 I. 
 
 Iglehart v. Bierce 86111. 133 332 
 
 Innes V. Lansing 7 Paige 583, 584 528, 530 
 
 Irick V. Black 2 C. E. Gr. 189, 190 341, 588 
 
 Irving V. Viana 1 McCle. & Y. 563 122 
 
 Isham V. Miller 17 Stew. Eq. 61 110 
 
 Isnard v. Cazeaux 1 Paige 40 73- 
 
 J. 
 
 Jackson v. Bell 4 Stew. Eq. 514; 5 Id. 411 559' 
 
 Jackson V. Bush 19 Johns. 223 240 
 
 Jackson v. Darcy Sax. 194 615. 
 
INDEX TO CASES CITED. xxvii 
 
 Jackson V. Edwards 7 Paige 386 405 
 
 Jackson v. Grant 3 C. E. Gr. 147 510' 
 
 Jackson v. Hawarth 1 S. & S. 161 81 
 
 Jackson v. Jackson 2 Gr. Ch. 96 162 
 
 Jackson v. People's Bank 1 Stock. 205 195 
 
 Jackson v. Petrie 10 Ves. 164 309 
 
 Jackson V. Eeceiver 1 Stock. 205 551 
 
 Jackson v. Young 5 Cowen 269 233 
 
 James V. McKernan 6 Johns. 543 10 
 
 Jenkins V. Eldredge 3 Story 299 183 
 
 Jennings v. Jennings 2 Beas. 38 458 
 
 Jennings V. Nugent 1 Moll. 134 487 
 
 Jenour v. Jenour 10 Ves. 562, 568 179 
 
 Jersey v. Demarest 12 C. E. Gr. 299 223 
 
 Jervis v. White 6 Ves. 737 137 
 
 Jesson V. Brewer Dick. 370 180 
 
 Jewett V. Bowman 2 Stew. Eq. 174 11 
 
 Jewett V. Bowman 12 C. E. Gr. 275 -. 14, 313 
 
 Jewett V. Dringer 12 C. E. Gr. 271 47 
 
 Jewett V. Dringer 2 Stew. Eq. 199 189 
 
 Jewett V. Dringer , 4 Stew. Eq. 586 559 
 
 Jewett V. Dringer 9 Stew. Eq. 199 194 
 
 Johnson v. Arnwine 13 Vr. 460 159 
 
 Johnson v. Ashton 1 Sim. & Stu. 73 137 
 
 Johnson v. Bantock 38 111. Ill 239 
 
 Johnson v. Buck 6 Vr. 339 232 
 
 Johnson V. Garret 1 C. E. Gr. 31 211 
 
 Johnson v. Pinney 1 Paige 646 40' 
 
 Johnson v. Poulson 5 Stew. Eq. 390 191 
 
 Johnson v. Todd 3 Beav. 218 73 
 
 Johnson v. VaU 1 McCart. 423 3, 93, 104, 332 
 
 Jones V. Coxeter 2 Atk. 309 73 
 
 Jones V. Fayerweather 1 Dick. Ch. Eep. 237 528 
 
 Jones V. Gilham 1 Coop. C. C. 49 486 
 
 Jones V. Jones 3 Atk. Ill 176 
 
 Jones V. Jones 3 C. E. Gr. 33 456 
 
 Jones V. Jones 2 C. E. Gr. 351 462 
 
 Jones V. Knauss 6 Stew. Eq. 188 69 
 
 Jones V. Sherwood 2 Hal. Ch. 210 496 
 
 Jordan v. Clark 1 C. E. Gr. 243, 247 356, 361 
 
 Jordan v. Williams 3 Eand. 501 292 
 
 K. 
 
 Kamena v. Huelbig 8 C. E. Gr. 78 331 
 
 Karr v. Karr 4 C. E. Gr. 427 30 
 
 Kelly V. Eckford 5 Paige 548, 549 74, 75 
 
 Kelsham v. Crowther 2 L. J., Ch. 85 82 
 
XXVlll INDEX TO CASES CITED. 
 
 Kemble v. Harris 7 Vr. 526 214 
 
 Kendall v. Marsters 2 De G., F. & J. 200 181 
 
 Keron v. Coon 11 C. E. Gr. 26 305 
 
 Kerr v. Gillespie 7 Beav. 269 2, 69 
 
 Killgore v. Peden I Strobh. (Law) 18 213 
 
 King V. Euckman 7 C. E. Gr. 551 186, 188 
 
 Kinna v. Smith 2 Gr. Ch. 14 332 
 
 Kinney v. Emery 10 Stew. Eq. 339 19 
 
 Kinney v.Ewing....- 10 Stew. Eq. 339 Ix 
 
 Kip V. Kip eStew. Eq. 213 9 
 
 Kirby v. Taylor 6 Johns. Ch. 242 122 
 
 Kirkpatrick V. Corning 13 Stew. Eq. 254 cix 
 
 Kirrigan v. Kirrigan 2 McCart. 146 469 
 
 Kirtland's Adm'r v. Kirtland 11 C. E. Gr. 276 286 
 
 Kirwan v. Blake 1 Hogan 158 138 
 
 Kline v. McGuckin 9 C. E. Gr. 411 404 
 
 Kloepping ads. Stellmacher 7 Vr. 176, 177, 178 18, 182 
 
 Knight V. Yarborough 7 S. & M. 179 487 
 
 Knowles V. Gwinnup Jan., 1828 120 
 
 Knox V. Costello Burr. 1789 190 
 
 L. 
 
 Lacey V. Bowlby April, 1825 402 
 
 Langdon v. Potter. 11 Mass. 313 6 
 
 Lanning V. Lanning 2 C. E. Gr. 228 Ixx 
 
 Large v. Van Doren 1 McCart. 208 332, 378 
 
 Lawrence v. Bolton 3 Paige 294 136 
 
 Lawrence V. Finch 2 C. E. Gr. 235 149, 151 
 
 Lawrence V. Greenwich Ins. Co 1 Paige 587 33 
 
 Lawrence v. Kichmond 1 J. & W. 241 180 
 
 Laroche v. Hasbrough 2 Durn. & E. 737 190 
 
 Laurie v. Laurie.. 9 Paige 234 291 
 
 Leaning v. Leaning 10 C. E. Gr. 241 460 
 
 Leddell's Ex'r v. Starr 4 C. E. Gr. 159 336, 510 
 
 Leddell's Ex'r v. Starr 5 C. E. Gr. 274 480 
 
 Lee v.Cargill 2 Stock. 331 13, 20, 291 
 
 Leggett V. Sellon 3 Paige 84 122 
 
 Leonard V. New York Bay Co 1 Stew. Eq. 192 32 
 
 Leonard v. Sutphen 3 Hal. Ch. 545 146 
 
 Leslie V. Leslie 5 Dick. Ch. Rep. 155 cix 
 
 Leveridge v. Marsh 3 Stew. Eq. 59 341 
 
 Lewis V. Conover N. J. Chan., 1870 43 
 
 Liddell V. McVickar 6 Halst. 44 265 
 
 Lillie V. Lillie 2 Myl. & Keene 401 70 
 
 Lindsay v. Gibbon 3 Bro. 495 625 
 
 Lindsley's Case 17 Stew. Eq. 564 639, 650 
 
 Lindsley's Case 1 Dick. Ch. Eep. 358 647, 653 
 
INDEX TO CASES CITED. xxix 
 
 Lingan v. Henderson 1 Bland 251 11 
 
 Linn v. Neldon 8 C. E Gr. 169 588 
 
 Linn v. Wheeler 6 C. E. Qr. 231 275 
 
 Litham v. Eoyle 2 C. E. Gr. 40 ; Ixxxiv 
 
 Little V. Cooper 2 Stock. 273 496 
 
 Little V. Johnson 1 Moll. 234 276 
 
 Livingston v. Clarkson 4 Edw. Ch. 596 442 
 
 Lloyd V. Dick. 460 37 
 
 London Assurance v. East; India Co... 3 P. Wms. 326 95 
 
 Long V. Burton 2 Atk. 218. 136 
 
 Long V. Tardy 1 Johns. Ch. 202 69, 71 
 
 Long's Adm'r v. Long 1 C. E. Gr. 59, 67' 359 
 
 Long Branch and Sea Shore E. E. 
 
 Co., In re 9 C. E. Gr. 403 Ixxxiii 
 
 Long Dock Co. V. Bentley 10 Stew. Eq. 15 559 
 
 Lord Brook v. Lord Hertford 2 P. Wms. 519 403 
 
 Lord Herbert V. Pusey 1 Dick. 255 120 
 
 Lord North v. Lord Gray 1 Dick. 14 489 
 
 Lord Uxbridge v. Staveland 1 Ves., Sr., 56 8 
 
 Loss V. Obry 7 C. E. Gr. 52 636 
 
 Lothrop's Case 6 Stew. Eq. 246 57 
 
 Lovett V. Demarest 1 Hal. Ch. 113 144 
 
 Low V. Holmes ; 2 C. E. Gr. 150 404 
 
 Lozier v. Van Saun 2 Gr. Ch. 325 480 
 
 Lucas V. King 2 Stock. 277 403 
 
 Ludington V. Elizabeth 5 Stew. Eq. 159 94 
 
 Lupton V. Pearsall 2 Johns. Ch. 429 75 
 
 Lyne V. Pennell Sim. (N. S.) 113 481 
 
 Lyon v.Talmadge 1 Johns. Ch. 184 133 
 
 Lyons V. Van Eiper. 11 C. E. Gr. 337 322 
 
 M. 
 
 MacDonough v. Gaynor 3 C. E. Gr. 249 14, 309, 313, 314 
 
 Mackworth v. Marshall 3 Sim. 370 82 
 
 Magennis v. Parkhurst 3 Gr. Ch. 433 48,49 
 
 Magrath v. Veitch 1 Moll. 234 276 
 
 Mahnken's Case 9 Stew. Eq. 520 701 
 
 Mahon v. Crothers 1 Stew. Eq. 567 372 
 
 Mallack v. Gorton 2 P. Wms. 352 389 
 
 Maltby v. Phillot 1 Fowler's Ex. Pr. 443 61 
 
 Man V. Eicketts 3 De G. & S. 446 200 
 
 Manfort v. Eowland 11 Stew. Eq. 181 164 
 
 Manhattan Mfg. Co. v. Van Keuren... 8 C. E. Gr. 251 304 
 
 Manners v. Manners 1 Gr. Ch. 384 403 
 
 Marker v. Marker 3 Stock. 356 457 
 
 Marlatt v. Warwick 4 C. E. Gr. 445 314 
 
 Marselis v. Morris Canal Co Sax. 35 5 
 
XXX INDEX TO CASES CITED. 
 
 Marsh v. Lasher 2 Beas. 253 106 
 
 Marsh V. Marsh 1 C. E. Gr. 391, 392, 398 
 
 ;.12, 91, 93, 134, 453 
 
 Marsh v. Marsh 2 Beas. 283 456 
 
 Marsh v. Marsh 1 McCart 315 452, 465 
 
 Marsh v. Mitchell 11 C. E. Gr. 497 .' 104 
 
 Martin v. Melville 3 Stock. 222 351 
 
 Matthews v. Duryee 46 Barb. 69 256 
 
 Matthews v. Hoagland 3 Dick. Ch. Kep. 491 594 
 
 Matthews V. Eoberts 1 Gr. Ch. 338 98 
 
 Maund V. Allies 4 Mylne & C. 503 75 
 
 McArthur v. Montclair R'y Co 12-C. E. Gr. 77 376 
 
 McBride v. Farmers' Bank 2 N. Y. 457 332 
 
 McBroona v. Somerville 2 Stew. (Ala.) 515 142 
 
 McCahill V. Equitable Society 11 C. E. Gr. 533 29 
 
 McCall V. Yard 3 Stock. 58 331 
 
 McClane's Adm'r v. Shepperd's Ex'r.. 6 C. E. Gr. 76, 78 97, 143 
 
 MoClurg V. Terry 6 C. E. Gr. 225 474 
 
 McCotter v. DeGroot 4 C. E. Gr. 72 351 
 
 McCulloUgh V. Merchants' Loan Co... 2 Stew. Eq. 217 536 
 
 McCurdy v. Agnew 4 Hal. Ch. 728 187 
 
 McDonald v. Logsdon 3 Bibb 229 141 
 
 McDowell V. Perrine 9 Stew. Eq. 632 183, 184 
 
 McEvoy V. Trustees 11 Stew. Eq. 420 19, 104 
 
 MoEwan V. Broadhead 3 Stock. 129 98, 144 
 
 McGee v. Smith 1 C. E. Gr. 463 362 
 
 McGregor v. Topham 4 Hare 162 252 
 
 Mclntyre v. Union College 6 Paige 240, 254 67, 120 
 
 McKelway V. Armour 2 Stock. 115 636 
 
 McKillop V.Taylor 10 C. E. Gr. 139 291 
 
 McKinna v. Smith 2 Gr. Ch. 14 331 
 
 McLaughlin v. McLaughlin 7 C. E. Gr. 505 267, 448, 625 
 
 McMahon v. Kimball 3 Blackf. 1 623 
 
 McMillan v. N. Y. Waterproof Paper 
 
 Co 2Stew. Eq. 610 635 
 
 McNamara v. Dwyer 7 Paige 239 6 
 
 McPherson v. Housel 2 Beas. 35 19, 28 
 
 McShane V. McShane 18 Stew. Eq. 341 460 
 
 McTighe v. Dean 7 C. E. Gr. 81 137 
 
 Mead V. Combs 11 C. E. Gr. 173 106 
 
 Measurall V. Pearce 4 Atl. Eep. 678 351 
 
 Mechanics' Bank v. Bank of New 
 
 Brunswick 2 Gr. Ch. 437, 438 530, 548 
 
 Mechanics' Bank v. Levy 3 Paige 606 10 
 
 Mechanics' National Bank v. Burnet 
 
 Mfg. Co 5 Stew. Eq. 236 533 
 
 Mechanics' National Bank v. Burnet 
 
 Mfg. Co 6 Stew. Eq. 486 559 
 
INDEX TO CASES CITED. XXXI 
 
 Meeker V. Butler's Ex'r Sax. 204 , 103 
 
 Meeker V. Marsh's Ex'r Sax. 198 98 
 
 Melick V. Melick 2 C. E Gr. 156 94 
 
 Merchants' Bank v. Stevenson 7 Allen 489 101 
 
 Merchants' Ins. Co. v. Marvin 1 Paige 557 107 
 
 Meredith v. Banks 1 Halst. 408 359 
 
 Merwin v. Smith 1 Gr Ch. 182, 192 219, 304, 306 
 
 Methodist Episcopal Church V. Jaques, 1 Johns. Ch. 65.... 10, 131 
 
 Metier v. Metier 4 C. E. Gr. 457 496 
 
 Ueux V. Bell 6 Sim. 175 485 
 
 Meyer v. Paterson 1 Stew. Eq. 239 21, 213, 235, 241 
 
 Michoud V. Girod 4 How. 503 179 
 
 Middlesex Freeholders v. State Bank, 1 Stew. Eq. 166 536 
 
 Midmer v. Midmer 11 C. E. Gr. 299 136 
 
 Miller's Adm'r v. Miller 11 C. E. Gr. 423 
 
 63, 64, 65, 124, 356, 357 
 
 Miller V. Craig 3 Stock. 176 287 
 
 Miller v. Gregory 1 C. E. Gr. 274 510 
 
 Miller v. Henderson 2 Stock. 320 331 
 
 Miller v. Howard 11 C. E. Gr. 166 628 
 
 Miller v. Jamison 9 C. E. Gr. 41 93 
 
 Miller v. MaoKenzie 2 Stew. Eq. 291 497 
 
 Miller v. Miller 5 C. E. Gr. 216 453, 462, 463 
 
 Miller v. Miller 1 Gr Ch. 139 163, 462 
 
 Miller v. Miller Sax. 386 313, 455, 469, 473 
 
 Miller ads. Shreve 5 Dutch. 250 333 
 
 Miller v. Traphagen 2 Hal. Ch. 200 275 
 
 Miller v. Wack Sax. 204. 210.'. 16, 105, 245 
 
 Mills V. Dennis 3 Johns. Ch. 368 389 
 
 Mills V. Hoag 7 Paige 18 179 
 
 Mims V. Mims 3 J. J. Marsh. 105 141 
 
 Mitchell V. Bunch 1 Paige606 14 
 
 Monfort's Adm'r v. Eowland 11 Stew. Eq. 181 cvii 
 
 Monmouth Ins. Co. v. Hutchinson 6 C. E. Gr. 107 566 
 
 Montgomery v. Montgomery 3 Barb. Ch. 132 475 
 
 Moores v. Moores 1 C. E. Gr. 275 105, 458 
 
 Morgan, In re 7 Paige 236 638 
 
 Morgan v. Morgan 1 Stew. Eq. 23 40 
 
 Morgan v. Eose 7 C. E. Gr. 584 188 
 
 Morris v. Taylor 8 C. E. Gr. 131, 134 65, 172, 173 
 
 Morris v. White 9 Stew. Eq. 324 107 
 
 Morris V. Woodward 10 C. E. Gr. 32 213 
 
 Morris Canal Co. v. Bartlett 2 Gr. Ch 9 303, 304 
 
 Morris Canal Co. v. Mitchell 2 Vr. 99 18 
 
 Morrison v. Arnold 19 Ves. 670 494 
 
 Mortimer v. Cropsey 1 Hoff. Ch. Pr. 194 19 
 
 Mortimer v. Hartley 3 De G. & Sm. 321 90 
 
 Mosser V. Pequest Co 11 C. E. Gr. 200 178 
 
XXXll INDEX TO CASES CITED. 
 
 Mott V. Shreve 10 C. E. Gr. 438 336 
 
 Mount V. Mount 2 MeCart. 162 463 
 
 Mount V. Potts 8 C. E. Gr. 188 369 
 
 Mount Holly Turnpike Co. v. Perree, 2 C. E. Gr 117 480, 484 
 
 Mousley V. Basnett 1 Ves. & Bea. 382 118, 280 
 
 Mower v. Kip 6 Paige 88 359 
 
 Mulford V. Geshiat 1 Harr. 272 70 
 
 Mulford V. Peterson 6 Vr. 127 331 
 
 Mulford V. Eeilly 5 Stew. Eq. 419 Ix 
 
 Mulford V. Williams 4 Hal. Ch. 536 354 
 
 Mulock V. Mulock 1 Stew. Eq. 15 169, 177 
 
 Mulock v. Mulock 11 C. E. Gr, 461 304, 305 
 
 Mundy v. Mundy 2 Ves., Jr , 129 623 
 
 Murdock's Case 2 Bland 461, 486.... 301 
 
 Murphy V. Stults Sax. 561 174 
 
 Murray v. Elston 8 C. E. Gr. 212 157 
 
 Mutual Life Ins. Co v. Gould 7 Stew. Eq. 417. 235 
 
 Mutual Life Ins. Co. v. Sputhard IOC. E. Gr. 337.. 223 
 
 Mutual Life Ins. Co. v. Sturgis 6 Stew. Eq. 328 9 
 
 Mutual Life Ins. Co. v. Sturgis , 5 Stew. Eq. 684 343 
 
 Myer v. Myer 10 C. E. Gr. 28 313 
 
 N. 
 
 Nash V. Smith 6 Conn. 421 485 
 
 Nat. Bank of Metropolis v. Sprague.. 8 C. E. Gr. 81 ; 8 Id. 458 ..Ixxxiv, 63 
 
 Needham V. Smith. 6 Beav. 130 105 
 
 Nesbit V. St. Patrick's Church 1 Stock. 76 34 
 
 New V. Bame 10 Paige 498 502 
 
 Newark and New York R. B. Co. v. 
 
 Mayor, &c., of Newark 8 C. E. Gr. 515 245 
 
 Newark Plank Eoad Co. v. Elmer 1 Stock. 754, 785 179, 251 
 
 New Brunswick Co. v. Baldwin 2 Gr. 440 17 
 
 Newbury V. Marten 15 Jur. 166, V. C. Ld. C 389 
 
 New Foundland By. Construction Co. 
 
 V. Schack 13 Stew. Eq. 222 530 
 
 New Jersey Express Co. v. Nichols... 3 Vr. 166 159 
 
 New Jersey Pranklinite Co. V. Ames.. 1 Beas. 507 136, 332 
 
 N. J. Zinc Co. V. Franklinite Co 1 McCart. 308 182, 183 
 
 Newman V. Kendall 2 A. K. Marsh. 236 169 
 
 Newman V. Landrine 1 MoCart. 291 69 
 
 Newman v. Newman 3 Hal Ch. 26 88, 152 
 
 Nichols V. Williams 7 C. E. Gr. 64 2 
 
 Noel V. Fitzgerald 1 Hogan 135 169 
 
 Noel V. Noel 9 C. E. Gr. 137 453 
 
 Norcom v. Bogers 1 C. E. Gr. 484 4, 7 
 
 Norris V. Kennedy 12 Ves. 66 ; 19 Id. 112 104 
 
 Northcote v. Northcote Dick. 22; Coll. P. C. 288 120 
 
 Noyes v. Savage 3 Vt. 160 332 
 
INDEX TO CASES CITED. XXXIU 
 
 O. 
 
 Oakley v.O'Neil 1 Gr. Ch. 287 34 
 
 Oakley v.'Pound 1 McCart 178 521 
 
 Obert V. Obert 1 Hal. Ch. 397 ; 2 Stock. 98 403 
 
 O'Brien v. Hulflsh 7 C. E. Gr. 477 131 
 
 Ocean Beach Ass'n v. Brinley 7 Stew. Eq. 439 622 
 
 Ogden V. Gibbons July Term, 1823 12, 133 
 
 Ogden V. Gibbons July Term, 1828 91 
 
 Ogden V. Gibbous 2 South. *532 157 
 
 Ogden V. Robertson 3 Gr. 124 146 
 
 O'Kill V. Campbell 3 Gr. Ch. 13 720 
 
 Oliver V Piatt 3 How. 333 363 
 
 Onderdonk v. Gray 4 C. E. Gr. 65 510 
 
 Opdyke v. Bartles 3 Stock. 133 377 
 
 Oram. v. Dennison 2 Beas. 438 28, 35 
 
 Ormsby v. Palmer 1 Hogan 191 81 
 
 O'Bourke v. Cleveland 4 Dick. Ch. Eep. 577 49 
 
 Osborn v. Cowper Mos. 198 103 
 
 Osborne V. O'Reilly 7 Stew. Eq. 60 ; 168 
 
 Osborne v. Tunis 1 Dutch. 633 237 
 
 Osborne v. Williams 13 Stew. Eq. 490 Ixxxvi 
 
 Cutwater v. Berry 2 Hal. Ch. 63 503 
 
 Owing'sCase 1 Bland 373 57 
 
 Palk V. Clinton 12 Ves. 59 378 
 
 Pahner v. Casperson 2 C. E. Gr. 204 178, 622 
 
 Pannell v. Taylor Turn. & R. 100 311 
 
 Paradise v. Sheppard Dick. 136 73 
 
 Pardee v. De Cala 7 Paige 132 513 
 
 Parker V. Baker 8 Paige 428 279 
 
 Parker V. Carter 4 Munf. 273 9 
 
 Parker V. Child 10 C. E. Gr. 41 377, 628 
 
 Parker v. Hayes 8 C. E. Gr. 186 146, 170 
 
 Parker v. Parker 1 Beas. 105 14 
 
 Parker v. Stevens 2 Gr. Ch. 56 341 
 
 Parkhurst ^r. Cory 3 Stock. 233 211 
 
 Parsons v. Heston 3 Stock. 155 8 
 
 Parsons v. Lanning 12 C. E. Gr. 70 218 
 
 Parsons v. Monroe Mfg. Co 3 Gr. Ch. 187 530 
 
 Patterson V. Paterson 1 Hayw. 167 142 
 
 Paterson v. Paterson 1 Hal. Ch. 389 465 
 
 Paterson and Hudson E. R. Co. v. ' 
 
 Jersey City 1 Stock. 434 8, 615 
 
 Patrick V. Warner 4 Paige 397 .....43, 209 
 
 Paulison v. Van Iderstine 1 Stew. Eq. 3C6 3, 332 
 
iXXlV INDEX TO CASES CITED. 
 
 Pears v.Bache Coxe 206 324 
 
 Peck V. Beechey 2 Sim. 40 73 
 
 Peer v. Cookerow 2 BeaS. 136 187, 315, 322 
 
 Peer V. Cookerow 1 McCart. 361 188, 315 
 
 Peirce v. West 1 Pet. C. C. 351 144 
 
 Pelletreau, Ex'r, V. Eathbone Sax. 331 6 
 
 Pence v. Pence 2 Beas, 257 341 
 
 Penford v. Nunn 5 Sim. 409 : 75 
 
 Penn v. Craig 1 Gr. Ch. 495 213 
 
 Penn Mut. Ins. Co. V. Semple 11 Stew. Eq. 314 194 
 
 People V. Bennett 4 Paige 282 43 
 
 People V. Rogers 2 Paige 103 43 
 
 People, The, V. Brower 4 Paige 405 277 
 
 Perine v. Dunn 4 Johns. Ch. 140 384, 385 
 
 Perine v. Swaine 1 Johns. Ch. 24 82 
 
 Perishall V. Squire Dick. 31 73 
 
 Perkins v. Collins 2 Gr. Ch. 482 16, 113, 278, 287, 288 
 
 Perkins v. Partridge 3 Stew. Eq. 559 508 
 
 Perry v. Carr 41 N. H. 371 9 
 
 Phelps V. Curtis 1 Gr. Ch. 387 116 
 
 Philadelphia and Beading R. R. Co. 
 
 T. Little 14 Stew. Eq. 519, 525 290 
 
 Philhower V. Todd; 3 Stock. 54 8 
 
 Philips V. Langhorn Dick. 148 101 
 
 Phillips V. Kinney MS., Williamson, C 174 
 
 Phillips V. Muilman 3 Atk. 391 68 
 
 Phillips V. Schooley 12 C. E. Gr. 410 8 
 
 Phcenix v. Clark 2 Hal. Ch. 447 297 
 
 Pickle V. Pickle July, 1823, Ch'y 72 
 
 Picton V. Lockett April, 1837 93 
 
 Pierce v. West's Ex'r 3 Wash. C. C. 354 136 
 
 Pillow V. Pillow 5Yerg. 420 11 
 
 Pillsbury V. Kingon 6 Stew. Eq. 287 512 
 
 Pincers v. Robertson 9 C. E. Gr. 348 15, 16, 89, 113 
 
 Plum V. Morris Canal Co 2 Stoclc. 256 3 
 
 PoUitt V. Kerr 4 Dick. Ch. Rep. 65 626 
 
 Potter V. Hora May Term, 1878 55 
 
 Powell V. Mayo 11 C. E. Gr. 120 135 
 
 Powell V. Mayo 9 C. E. Gr. 178 615 
 
 Powell V. Prentice Ridg. P. C. 258 82 
 
 Price V. Carver 3 M. & C. 157 389 
 
 Price V. Dewhurst 4 Myl. & C. 282 186 
 
 Price, In re 4 Hal. Ch. 533 656 
 
 Price V. Shaw 2 Cox 184 68 
 
 Price V. Sisson 2 Beas. 168 ; 2 C. E. Gr. 476 182 
 
 Priest V.Hamilton 2 Tyler 49 4 
 
 Prince v. Prince 10 C. E. Gr. 310 463 
 
INDEX TO CASES CITED. XXXV 
 
 Princess of Wales v. The Earl of Liv- 
 erpool 1 Swanst. Eep. 114 75 
 
 Prior V. White 2 Moll. 361 70, 82 
 
 Proctor V. Farnum 5 Paige 614 239 
 
 Prudden v. Lindsley 1 Stew. Eq. 381 245 
 
 Prudden v. Lindsley 4 Stew. Eq. 436 250 
 
 Pruden v. Williams 11 C. E. Gr. 210 576 
 
 Public Schools V. Walker 9 Wall. 603 186 
 
 Pulleu V. PuUen 2 Stew. Eq. 541 459, 460 
 
 Purcell V. Purcell 3 Edw. Ch. 194 468 
 
 Putnam v. Clark 8 Stew. Eq. 145 198 
 
 Putnam v. Clark 9 Stew. Eq. 33, 647 508 
 
 Q 
 
 Quaekenbush V. Van Eiper Sax. 476 105 
 
 Quarrell v. Beckford 14 Ves. 177 137 
 
 Quincy v. Cheesman 4 Sandf. Ch. 405 373 
 
 R. 
 
 Railroad Co. v. Newark 8 C. E. Gr. 515 , 245 
 
 Ealeigh v. Rogers 10 C. E. Gr. 507 187 
 
 Randolph v. Daly 1 C. E. Gr. 313 8, 513 
 
 Randolph V.N. J. West Line E.E. Co.. 1 Stew. Eq. 49 635 
 
 Eansom v. Savings Bank 2 Beas. 212 115 
 
 Ealzer v. Eatzer 2 Stew. Eq. 162 189 
 
 Eawnsley v. Trenton Mut. Life Ins. 
 
 Co 1 Stock. 95, 347 530 
 
 Eaymond v. Post 10 C. E. Gr. 447 286 
 
 Eead v. Huflf. 13 Stew. Eq. 229 403 
 
 Eeading v. Wilson 11 Stew. Eq. 446 62 
 
 Eeed v. Cumberland Ins. Co 9 Stew. Eq. 398 120, 122 
 
 Reese Eiver Mining Co. v. Atwell L. E. (7 Eq.) 347 521 
 
 Eeid v. Eeid 6 C. E Gr. 331 462 
 
 Eenwick v. Wilson 6 Johns. Ch. 81 134 
 
 Eeynolds v. Eeynolds 5 Paige 161 413 
 
 Eice V. Eice 2 Dick. Ch. Rep. 559 164 
 
 Richards V. Barlow 1 Paige 323 131 
 
 Richards v. Morris Canal Co 3 Gr. Ch. 431 549 
 
 Eichards v. West 2 Gr. Ch. 456 291 
 
 Eichardson V. Hastings 7 Beav. 58 91 
 
 Eichmond v. Eichmond 1 Gr. Ch. 90 473 
 
 Eioo V. Gaultier 3 Atk. 501 309 
 
 Eigby V. McNamara 6 Ves. 515 239 
 
 Eiky V. Kemmis 1 Beatty 317 136 
 
 Rinehart's Ex'rs v. Einehart 2 McCart. 44 6, 332 
 
 Riper V. Claxton 1 Stock. 302 135 
 
 Eittenhouse v. Rittenhouse 2 Stew. Eq. 274 457, 461 
 
XXXVl INDEX TO OASES CITED. 
 
 Eiverview Cemetery Co. v. Turner.... 9 C. E. Gr. 18 403 
 
 Robbins v. Abrahams 1 Hal. Ch. 16 82 
 
 Robert v. Hodges ICE. Gr. 299 122, 512, 513, 521 
 
 Robertson v. Miller 2 Gr. Ch. 452 35 
 
 Rockwell V. Morgan 2 Beas. 384 622 
 
 Rodney v. Hare Mos. 296 144 
 
 Rogers, In re 1 Hal. Ch. 46 658, 660 
 
 Rogers v. Nowell 6 Hare 338 252 
 
 Rogers v. Paterson 4 Paige 409, 415 187 
 
 Rogers v. Rogers 3 C. E. Gr. 445 31 
 
 Rogers V. Rogers 1 Paige 424 133 
 
 Rogers V. Vosburg. 4 Johns. Ch. 84 117, 280 
 
 Roll V Smalley 2 Hal. Ch. 464 361 
 
 Eomaine y. Hendrickson's Ex'rs 9 C. E. Gr. 231 10 
 
 Root, In re 8 Paige 627 643 
 
 Rorbaok v. Dorsheimer 10 C. E. Gr. 516 8 
 
 Rorback v. Van Blarcom 5 C. E. Gr. 461 187 
 
 Rose V. Gannell 3 Atk. 4.39 490 
 
 Rose V. Rose 11 Paige 166 291 
 
 Ross V. Hatfield 1 Gr. Ch. 363 315 
 
 Rothwell V. Rothwell 2 Sim. & Stu. 217 137 
 
 Rowe V. Hoagland's Adm'rs 3 Hal. Ch. 139 487 
 
 Rowe V. Matteson 3 Hal. Ch. 131 485 
 
 Ruokman v. Decker 8 C. E. Gr. 283 97 
 
 Ruokman v. Decker 12 C. E. Gr. 244 180 
 
 Ruckman V. Decker 1 Stew. Eq. 5 ; 6 Id. 545 181 
 
 Rump V. Greenhill 20 Beav. 512 93 
 
 Eusling V. Bray 11 Stew. Eq. 398 184 
 
 Rutgers v. Kingsland 3 Hal. Ch. 178, 658 334, 636 
 
 Ryerson v. Adams 2 Hal. Ch. 618 361 
 
 Ryerson v. Boorman 3 Hal. Ch. 167, 640 211 
 
 S. 
 
 Salmon v. Clagett 3 Bland 125 122 
 
 Sanders v. Sanders 2 Stew. Eq. 410 458 
 
 Sanderson V. Price 1 Zab. 637 372 
 
 Sandford v. Clarke 11 Stew. Eq. 265 67 
 
 Savings Association V. Vandevere 3 Stock. 382 342 
 
 Scales v. Nichols 3 Hay. (Tenn.) 231 136 
 
 Scanlan v. Howe 9 C. E. Gr. 273 287 
 
 Schenck v. Conover 2 Beas. 31, 220 
 
 188, 189, 194, 202, 203 
 
 Schmidt y. Schmidt 2 Stew. Eq. 496 463 
 
 Schockley y. Schockley 20 Ind. 108 332 
 
 Scott V. Clarkson 1 Bibb 277 144 
 
 Scott y. Dow 2 Gr. 350 228 
 
 Scott V. Lalor 3 C. E. Gr. 301 510 
 
INDEX TO CASES CITED. XXXvii 
 
 Scudder v. Trenton Del. Falls Co Sax. 695 287 
 
 Sea Insurance Co. v. Stebbins 8 Paige 565 373 
 
 Search v. Search 11 C. E. Gr. 110 343 
 
 Sedam v. Williams 4 McLean 51 862 
 
 Seeley v. Price 1 Hal. Ch. 231 96 
 
 Selah V. Selah 8 C. E. Gr. 185..... 453, 474 
 
 Sellon V. Lewen 3 P. Wms. 239 103 
 
 Seton V. Slade 7 Ves. 265....". 253 
 
 Seymour v. Long Dock Co 2 C. E. Gr. 169 
 
 94, 133, 134, 176, 343, 502 
 
 Shaftoe v. Shaftoe 7 Ves. 172 309 
 
 Shann v. Jones 4 C. E. Gr. 251 253 
 
 Shannon V. Marcelis Sax. 413 369 
 
 Shedd V.Garfield 5 Vt. 39 10 
 
 Sheldon v. Hoy 11 How. Pr. 11 6 
 
 Sheppard's Ex'r V. Starke.. 3 Munf. 29 11 
 
 Sheppard v. Fenton 4 Halst. 8 191 
 
 Shepjiard V. Nixon 16 Stew. Eq. 627 615 
 
 Sheppard V. Osborne 1 Hogan 126 136 
 
 Shewell v. Jones 2 Sim. & Stu. 170; 3 Euss. 522.... 548 
 
 Shields v. Barrow 17 How. 145 510 
 
 Shields V. Hunt 12 Stew. Eq. 485 623 
 
 Shields V. Lozear 7 C. E. Gr. 447 ; 5 Vr. 496, 530... 
 
 138,345, 346 
 
 Shipman v. Cook 1 C. E. Gr. 251 118 
 
 Shultz V. Sanders 11 Stew. Eq. 154 240 
 
 Shute V. Gustin October, 1822 362 
 
 Sickles V. Carson 11 C. E. Gr. 442 475 
 
 Sieveking v. Behrens 2 Myl. & C. 581 287, 485 
 
 Silver V. Campbell IOC. E. Gr. 465 232, 253 
 
 Sinnicksou v. Gale 1 Harr. 21 234 
 
 Sire V. Wightman , 10 C. E. Gr. 102 351 
 
 Sisson V. Donnelly 7 Vr. 432 635 
 
 Skillman V. Holcomb 1 Beas 131 , 213 
 
 Slockbower v. Kanouse 5 Dick. Ch. Eep. 481 403 
 
 Small V. Atwood 2 Y. & Jer. 512 135 
 
 Smallwood v. Levin 2 Beas. 123 106 
 
 Smith, Adm'r, V. Axtell Sax. 497 8 
 
 Smith V. Ballard 2 Hayw. 289 491 
 
 Smith V. Barnes Dick. 67 101 
 
 Smith V. Bayright 7 Stew. Eq. 424 262 
 
 Smith V. Burnham 2 Sumner 612 7 
 
 Smith V. Clarke...; 4 Paige 368 9 
 
 Smith V. Frenche 1 Stew. Eq. 115 110, 413 
 
 Smith V. Gaines 12 Stew. Eq. 545 402 
 
 Smith V. Howell 3 Stock. 349 232 
 
 Smith, In re 23 Beav. 284 276 
 
XXXVUl INDEX TO CASES CITED. 
 
 Smith V. Kuhl 11 C. E. Gr. 97 307 
 
 Smith V. Parke 2 Paige 298 19 
 
 Smith V.Smith 2 Blackf. 232 140 
 
 Smith V.Smith 10 Paige 475 415 
 
 Snover v. Snover 2 Beas. 261 469, 475 
 
 Sobernheimer V. Wheeler 18 Stew. Eq. 619 305 
 
 Society, &c , V. Butler 1 Beas. 499 287 
 
 Southern Nat. Bank v. Darling 4 Dick. Ch. Eep. 398 70 
 
 Southwick's Case 2 Ves., Sr., 401 640 
 
 Sparkev.Montriou 1 You. & C. (Exch.) 103 79 
 
 Spear V. Given 9 Paige 362 497 
 
 Speer v. Speer 1 McCart. 240 404 
 
 Spinning v. Spinning 16 Stew. Eq. 215 625 
 
 Spring V. Fish 6 C. E. Gr. 175 351 
 
 Stafford v. Brown 4 Paige 88 9, 120 
 
 Stafford V. Howlett 1 Paige 200... 502 
 
 Stafford v. Williams 12 Barb. 240 239 
 
 Stanhope v. Roberts 2 Atk. 214 ,. 78 
 
 Stanley V. Hume lHoganl2.., 70 
 
 Stanley V. Eobertson 1 Euas. & M. 527 106 
 
 Stark V. Hunton 2 Gr. Ch. 300 359 
 
 State Bank v. Eeceivers, &c 2 Gr. Ch. 266 530 
 
 State V. Fisler 1 Halst. 305 48 
 
 State V.Green 3 Gr. 88 279 
 
 State V. Gulick Harr. 437 43 
 
 State V. Eickey 3 Halst. 50 402 
 
 State V. Trumbull 1 South. 130 157 
 
 Steele, In re 4 C. E. Gr. 120 672 
 
 Steele V. Lewis 1 Men. 49 141 
 
 Steele V. Steele 11 C. E. Gr. 85 452 
 
 Stephenson v. Taverners 9 Gratt. 398 513 
 
 Stern V. Ledden 4 Bibb 178 18 
 
 Stevens v. Praed 2 Cox 374 178 
 
 Stevens V. Stevens 1 McOart. 374 456 
 
 Stevens V. Stevens 9 C. E. Gr. 77 510 
 
 Stevens V. Vancleve 4 Wash. C. C. 262 232 
 
 Stevenson V. Black Sax. 338 231, 331 
 
 Stillwell V. McNeely 1 Gr. Ch. 305 2 
 
 Stimson v. Bacon 1 Stock. 144 291 
 
 Stockton V. Dundee Mfg. Co 7 C. E. Gr. 56 345 
 
 Stockton V. Stockton July, 1875 29 
 
 Stokes V. Dee '. 2 Hogan 47 81 
 
 Stokes V. Garr 2 Harr. 451 149 
 
 Stone V. Stone.... 10 C. E. Gr. 445 21, 460, 461 
 
 Stone V. Stone 1 Stew. Eq. 409 26, 28, 460- 
 
 Stonington Bank v. Davis 2 McCart. 30 356 
 
 Stotesbury v. Vail 1 Beas. 394 113 
 
INDEX TO CASES CITED. xxxix 
 
 Stoutenburgh v. Peck 3 Gr. Ch. 446 305 
 
 Stover V. Reading 2 Stew. Eq. 153 5 
 
 Stover V. Wood 11 C. E. Gr. 56 
 
 Strange v. Harris 3 Bro. C. C. 365 137 
 
 Strike V. McDonald 2 Harr. & Gill 191 527 
 
 Striker v. Mott 2 Paige 387 405 
 
 Sugar Refining Co. v. Jersey City 11 C. E. Gr. 247 287 
 
 Summers v. Murray 2 Edw. Ch. 205 121 
 
 Sutherland v. Rose 47 Barb. 145 378 
 
 Swackhamer v. Kline 10 C. E. Gr. 503 187 
 
 Swaine v. Perine 5 John. Ch. 487 , 625 
 
 Swallow v. Swallow 12 C. E. Gr. 278 184 
 
 Swayze v. Swayze 1 Stock. 273 513, 521 
 
 Swedesborough Church v. Shivers 1 C. E. Gr. 453 94 
 
 Sweet V. Parker 7 C. E. Gr. 453 114 
 
 Swinfer v. Swinfer 3 Sim. 384 142 
 
 Swope V. Ardery 5 Ind. 215 231 
 
 Sydolph V. Monkston Dick. 609 120 
 
 Symmes v. Strong 1 Stew. Eq. 131 10, 114 
 
 Talmage v. Pell 9 Paige 410 511 
 
 Tantum v. Coleman 11 C. E. Gr. 128 3 
 
 Tate V. Tate 11 C. E. Gr. 55 31, 460 
 
 Tatham v. Wright 2 Russ. & M. 31 251 
 
 Taylor V. Milner 10 Ves. 444 92 
 
 Taylor v. Taylor 1 Stew. Eq. 207 460 
 
 Taylor v. Thomas 1 Gr. Ch. 106 65 
 
 Telfair v. Stead's Ex'rs 2 Cranch 408 6 
 
 Terhune v. Colton 1 Beas. 312 188 
 
 Thatcher v. Lambert 5 Hare 228 114 
 
 The Bank v. Dugan 2 Bland 254 527 
 
 The People V. Brower 4 Paige 405 277 
 
 Third Ave. Savings Bank v. Dimook, 9 C. E. Gr. 26 ]06 
 
 Thomas v. De Baum 1 McCart. 37 202 
 
 Thomas v. Dike 11 Vt. 273 4 
 
 Thomas V. Thomas Litt. 9 140 
 
 Thompson's Case 2 Gr. Ch. 637 442 
 
 Thompson V. Engle 3 Gr. Ch. 271 615 
 
 Thompson v.Pisler 6 Stew. Eq. 480 528 
 
 Thorne v. Mosher 5 C. E. Gr. 257 345 
 
 Thornton v. Wilson 1 Hogan 20 71 
 
 Tibbals v. Sargeaut 1 McCart. 449 372 
 
 Tichenor v. Dodd 3 Gr. Ch. 454 378 
 
 Tillotson V. Hargreaves 4 Madd. 172 73 
 
 Tillou V. Britton 4 Halst. 120 345 
 
 Tomkins V. Tomkins 3 Stock. 512 558 
 
rl INDEX TO CASES CITED. 
 
 Tomlinson, Ex parte 1 Vea. & Bea. 58 643 
 
 Tomlinson v. Sheppard' 3 Hal. Ch. 80 178 
 
 Tompkins v. Tompkins 6 C. E. Gr. 338 351 
 
 Took V. Hartley 2 Bro. C. C. 125 ; Dick. 785 387 
 
 Townsend V. Smith 1 Beas. 350 183, 188 
 
 Townshend v. Simon 9 Vr. 239 231, 253 
 
 Trades Savings Bank v. Freese 11 C. E. Gr. 4-53 331, 342 
 
 Trask V.Stone 7 Mass. 241 4 
 
 Travers v. Eoss 1 McCart. 254 89 
 
 Trenton Banking Co. v. Kossell 1 Gr. Ch. 492, 511 249, 251 
 
 Trenton Banking Co. V. Woodruff 1 Gr. Ch. 118 245 
 
 Trenton Banking Co. v. Woodruff. ... 2 Gr. Ch. 210 373 
 
 Trumbull V. Gibbons Oct., 1819 114 
 
 Tunnard v. Littell 8 C. E. Gr. 264 3 
 
 Tyler v. Drayton 2 Sim. & Stu. 309 79 
 
 Tyson v. Applegate 13 Stew. Eq. 305 2, 332, 341 
 
 • 
 
 U. 
 
 Underbill v. Jackson 1 Barb. Ch. 73 442, 444 
 
 United States Bank v. Voorhees 1 McLean 221 239 
 
 Updike V. Bartles 2 Beas. 231 214 
 
 V. 
 
 Vail V. Central R. E. Co 8 C. E. Gr. 466 90 
 
 Vail V. Jameson 14 Stew. Eq. 649 530 
 
 Vale V. Davenport 6 Ves. 615 239 
 
 Van Alst v. Hunter 5 Johns. 153 251 
 
 Van Arsdale v. Drake , 2 Barb. 601 415 
 
 Vanauken In re 2 Stew. Eq. 186 639, 647, 649 
 
 Van Buskirk v. Hoboken & N. Y. E. 
 
 E. Co 2 Vr. 368 191 
 
 Vanderhaise v. Hughes 2 Beas. 244, 412 163, 377 
 
 Vanderveer v. Holcomb 7 C. E. Gr. 558 131 
 
 Vanderveer v. Holcomb 2 C. E. Gr. 87, 547 331, 341 
 
 Vanderveer v. Holcomb 6 C. E. Gr. 105 510 
 
 Vanderveer v. Stryker 4 Hal. Ch. 175 513 
 
 VanDeventer v. Stiger 10 C. E. Gr. 224 362 
 
 Vandevere v. Beading 1 Stock. 446 106 
 
 Van Doren v. Eobinson 1 C. E. Gr. 256 341 
 
 Van Duyne v. Van Duyne 1 C. E. Gr. 93 211 
 
 Van Epps V. Van Deusen 4 Paige 64 141 
 
 Van Houten v. Van Winkle 1 Dick. Ch. Eep. 380 93 
 
 Van Keuren v. McLaughlin 6 C. E. Gr. 163, 379 
 
 133, 176, 341, 342 
 
 Van Meter V. Borden 10 C. E Gr. 414 202, 207 
 
 Vana v. Barnett 2 Bro. C. C. 158 137 
 
 Van Ness v. Van Ness 5 Stew. Eq. 729 Iviii 
 
INDEX TO CASES CITED. ' xU 
 
 Van Rensselaer v. Brioe 4 Paige 174 121 
 
 Van Riper v. Berdan 2 Gr. 140 402 
 
 Van Syckel v. O'Hearn 5 Dick. Ch. Rep. 173 351 
 
 Vaughau v. Fitzgerald 1 Sch. & Lef. 316 494 
 
 Vaughn v. Johnson 1 Stock. 173 114 
 
 Vere v. Glynn Dick. 441 101 
 
 Vermillyea v. Odell 4 Paige 121 135 
 
 Verplanck v. Mercantile Co 2 Paige 438 13 
 
 Vigers v. Lord Audley 9 Sim. 72 504 
 
 Voorhees v. Melick 10 C. E. Gr. 523 135, 341 
 
 Voorhees V. Reford 1 McCart. 155 521 
 
 Voorhis V. Murphy 11 C. E. Gr. 434 351 
 
 Vreeland v. Loubat 1 Gr. Ch. 104 341 
 
 Vreeland v. New Jersey Stone Co 10 C. E. Gr. 140 105 
 
 Vreeland v. Vreeland 3 C. E. Gr. 43 465 
 
 Vroom V. Ditmas 4 Paige 526 378 
 
 Vroom V. Marsh 2 Stew. Eq. 15 465 
 
 ■w. 
 
 Wager, In re 6 Paige 11 645 
 
 Wagner v. Blanchet 12 C. E. Gr. 357 19 
 
 Wakefield v. Childs 1 Fonbl 625 
 
 Wagstaff V. Bryan 1 Euss. & Mylne 28, 30 61, 121 
 
 Wainwrjght V. Rowland 25 Mo. 53 418 
 
 Waldron v. Letson 2 McCart. 126 219, 334 
 
 Wales, Princess of, v. The Earl of 
 
 Liverpool 1 Swanst. 114 75 
 
 Walker V. Easterly 6 Ves. 612 69 
 
 Walker v. Hill's Ex'rs 6 C. E. Gr. 191 ; 7 Id. 513 
 
 11, 114,240, 519 
 
 Wallace v. Wallace July, 1828 122 
 
 Walling V. Walling 1 C. E. Gr. 389 465, 467 
 
 Wallis V.Atkinson 1 Fowler's Ex. Pr. 449 61 
 
 Wain V. Meirs 12 C. E. Gr.77, 351....110, 418, 415, 418 
 
 Walton V. Coulson 1 McLean 120 355 
 
 Walton v.Law 6 Ves, 150 177 
 
 Walton v; Van Mater April, 1823 174 
 
 Ward's Ex'rs V. Hayne IOC. E. Gr. 397..... 369 
 
 Warrington v. Wheatstone Jac. 205 485 
 
 Washington Life Ins. Co. v. Paterson 
 
 Mfg. Co 10 C. E. Gr. 160 5 
 
 Waterman v. Merrill 4 Vr. 378 228 
 
 Watson V. Renwick 4 Johns. Ch. 383 74, 79 
 
 Watts v. Kelly 6 W. R. 206 2 
 
 Wauters v. Van Vorst 1 Stew. Eq. 103 314 
 
 Way V. Bragaw 1 C. E. Gr. 213 93, 98, 177, 279 
 
 Webb V. Pell 1 Paige 564 507, 508 
 
xlii INDEX TO CASES CITED. 
 
 Weber v. Weilling 3 C. E. Gr. 39 64, 65 
 
 Webster V. Threlfall 1 Sim. & Stu. 135 136 
 
 Weis, In re 1 C. E. Gr. 318 642, 657, 658, 85& 
 
 Weissenborn v. Seighortner 6 C. E. Gr. 482 188 
 
 Welford v. Stainthorpe 2 Beav. 587 75 
 
 Wells V. Bridgeport Co 30 Conn. 316 8 
 
 Welsh V. Bayard.... 6 C. E. Gr. 186 232 
 
 West V. Paige 1 Stock. 203 118, 142 
 
 West V.Smith 1 Gr. Oh. 309 20 
 
 Westerfield v. Bried 11 C. E. Gr. 357 113 
 
 Weston V. Foster 7 Mete. 297 405 
 
 Wetherell v. Collins 3 Madd. 255 378 
 
 Wetmore v. Dyer 1 Gr. Ch. 386 28 
 
 Wheeler v. Kirtland 8 C. E. Gr. 13 ; 9 Id. 552 636 
 
 Whipple V. Farrar 3 Mich. (Gibbs) 436 239 
 
 White V. Davis 3 Dick. Ch..Bep. 22 12, 344 
 
 White V. Dummer 1 Gr. Ch. 527 96 
 
 White V. Zust 1 Stew. Eq. 107 213 
 
 Whitenack, Ex parte 2 Gr. Ch. 252 647 
 
 Whiting V. Bank of U. S 13 Peters 15 179 
 
 Whitloek v. Greacen 3 Dick. Ch. Rep. 359 615, 618 
 
 Whitlock V. Marriot 2 Eep. in Ch. 386 15 
 
 Whitmarsh v. Campbell 1 Paige 645 61, 121 
 
 Whitney v. Mayor, &c 1 Paige 548 143 
 
 Whitney v. Eobbins 2 C. E. Gr. 360 497 
 
 Whyte V. Arthur 2 C. E. Gr. 521 511 
 
 Wilder v.Keeler 3 Paige 164 528 
 
 Wilkins v. Kirkbride 12 C. E. Gr. 93 107, 342 
 
 Wilkinson v. Bauerle 14 Stew. Eq. 635 530 
 
 Wilkinson v. Belsher 2 Bro. C. R. 272 72 
 
 WilHams v. Carle 2 Stock. 543 511 
 
 Williams v. Davies 1 Sim. & Stu. 426 126 
 
 Williams v. Mellish 1 Vern. 117 508 
 
 Williams V. Michenor 3 Stock. 520 521 
 
 Williams v. Thompson 2 Bro. C. C. 280 35 
 
 Williams v. Williams 2 Gr. Ch. 130 14 
 
 Williamson v. Carroll 1 Harr. 217.. 88, 113 
 
 Williamsonv.N.J.SouthernE.E.Co.. 1 Stew. Eq. 345 331 
 
 Williamson v. Probasco 4 Hal. Ch. 671 362 
 
 Williamson v. Sykea 2 Beas. 182 35 
 
 Williamson V. Wilson 1 Bland 434 527 
 
 Willink V. Morris Canal Co 3 Gr. Ch. 377, 397 2, 332, 343 
 
 Willis V. Evans 2 Ball & Beatty 229 68 
 
 Wilson V. Bellows '. 3 Stew. Eq. 282 93 
 
 Wilson V. Brown 2 Beas. 277 Ixv 
 
 Wilson V. Cornell 1 South. 117 148 
 
 Wilson V. E. E. E. Co 62 Mo. 112 439 
 
INDEX TO CASES CITED. xliii 
 
 Wilson V. Hill 1 Dick. Ch. Rep. 367 93 
 
 Wilson V. King 12 C. E. Gr. 374 636 
 
 Wilson V. Marsh 2 Beas. 289 359 
 
 Winans v. Walworth July, 1823 , 142 
 
 Winchelsea V. Garetty 1 Myl. & Keen 253 187 
 
 Windsor v. Windsor 2 Dick. 707 12 
 
 Winnipiseogee Lake Co. V. Worster... 9 Fost. 443 2 
 
 Winship V. Winship 1 C. E. Gr. 107 452 
 
 Wintermute v. Snyder 2 Gr. Ch. 489 635, 636 
 
 Winthrop V. Bay Dick. 282 69 
 
 Wood V. Downes 1 Ves. & Bea. 49 „ 138 
 
 Wood V. Griffith 1 Mer. 35 184 
 
 Wood V. Lyne 4 De G. & Sm. 16 484 
 
 Wood V. Mann.., 3 Sumn. C. C. 318 253 
 
 Wood V. Midgely 5 De G., M. & G. 41 93 
 
 Woodcock V. Bennett 1 Cowen 734 10 
 
 Woodcock V. Eailway Co 10 Hare Ap. 54; 17 Jur. 33, V. 
 
 C. K 276 
 
 WoodhuU V. Neafie 1 Gr. Ch. 409 253 
 
 Woodroffe v. Daniel 10 Sim. 243 120 
 
 Woodruff V. Depue 1 McCart. 168 345 
 
 Woodward V. Astley Bunbury 304 61 
 
 Wortman v. Skinner 1 Beas. 387 231 
 
 Wragg, Ex parte 5 Ves. 450 645 
 
 Wright V. Dame 22 Pick. 59 9 
 
 Wright V. De Klyne 1 Pet. C. C. 199 143 
 
 Wright V. McKean 2 Beas. 259 348 
 
 Wright V. Tatham 2 Sim. 459 142, 494 
 
 Wright V. Wright 4 Hal. Ch. 143 12, 15 
 
 Wroe V. Harris 2 Wash. (Va.) 126 213 
 
 Wyckoff V. Cochran 3 Gr. Ch. 420 xvi 
 
 Wyckoff V. Wyckoff. 1 C. E. Gr. 401 603 
 
 y. 
 
 Yarnall v. Bose 2 Keen 326 103 
 
 Yarnan V. Marshall Dick. 77 19 
 
 Yaiiger v. Skinner 1 McCart. 395 '. 8 
 
 YouDg V. Clarksville Co 12 C. E. Gr. 67 114 
 
 Young V. Cooper 3 Johns. Ch. 295 446 
 
 Young V. Trier 1 Stock. 465 521 
 
 Young V. Young 2 C. E. Gr. 161 139 
 
 Youngblood v. Schamp 2 McCart. 42 16, 17, 278, 287, 288 
 
 Youle V. Eichards Sax. 534, 538 297, 377 
 
 Yule V. Yule 2 Stock. 138 14, 309, 469 
 
 Z. 
 Zingsem v. Kidd 2 Stew. Eq. 516 , 334 
 
ADDENDA ET CORRIGENDA. 
 
 Page 29, note (6), for " chap. CLVIII." read " chap. CXLII." 
 
 Page 95, note, for Rev., "Chancery," "§ 3," read "? 30." 
 
 Page 96, note, for Bev., "Chancery," "§ 3," read "I 31." 
 
 Page 127, note (a), strike out "as in note (a)." 
 
 Page 134, note (a), second column, line 8, for "fifty-sixth" read "sixty-sixth." 
 
 Page 145, note, second column, line 19, after " 39 " insert " See amendment to 
 
 § 38, P. L., 1893, p. 185." 
 Page 159, after title of notice, insert (c), the first note on same page, second 
 
 column, should be headed " (c)." 
 Page 206, note (a), fur "Eule 140" read "Rule 141." 
 Page 235, end of note (o), for "Rule 208" read "Rule 205." 
 Page 241, note, second column, line 31, after "chancery," read "or sheriff." 
 Page 241, note, second column, last line, after " chancery " read " or the then 
 
 sheriff." 
 Page 247, form, passim, instead of " trespass on the case," read " tort." 
 Page 259, form, instead of " trespass on the case upon promises," read " con- 
 tract." 
 Page 327, note at bottom, add " See Mev. Sup., 'Chancery,' § 6." 
 Page 640, note, second column, line II, instead of " 1893," read " 1890." 
 
 ) 
 
 Note. — The reader is particularly requested to introduce the above correc- 
 tions into their proper places in the work. 
 
RULES 
 
 OF THE 
 
 Court of Chancery, Court of Errors and Appeals, 
 Prerogative Court and Orphans' Courts 
 
 or 
 
 NEW JERSEY. 
 
RULES 
 
 Court of Chancery 
 
 NEAV JERSEY, 
 
 Note. — The amendments to the rules are enclosed in [brackets]. The dates 
 on the margin indicate the time of promulgation or amendment of the rule. 
 
 I.— OF TERMS OP COURT.(a) 
 
 1. Each regular term of the court shall continue, for the Juiyist, 
 setting down of causes and arguments, until the twentieth day 
 thereof, and for all other purposes until the next regular term ; 
 
 but no arguments or contested motions shall be heard between 
 the sixteenth day of July and the first day of September, except 
 in injunction cases, unless by consent and the special order of 
 the Chancellor. 
 
 2. No day shall be assigned by the court for the final hearing 1374. 
 of any cause on the list until after the evidence shall have been 
 closed, unless the cause be set down for hearing on bill and 
 answer. 
 
 3. All causes, including pleas and demurrers, shall be set sept.8th, 
 down for hearing for the first day of the term, provided there is 
 time sufficient to give the notice required ; if not time, then at a 
 
 (a) Three stated terms are held Trenton, and such special terms, at 
 
 annually, viz., on the first Tuesday of the same or any other place, as the 
 
 February, the third Tuesday of May, Chancellor may appoint. Eev., "Chan- 
 
 and the third Tuesday of October, at eery," § 1. 
 
 1817. 
 
xlviii EULES OF THE 
 
 subsequent day in the term, not later than the twentieth day^ 
 and shall have priority according to the date of issue ; and the 
 party setting down a cause for hearing, or his solicitor, shall, at 
 least six days before the first day of the term for which the 
 cause is noticed, furnish the clerk with a note of the time issue 
 was joined, which shall be entered on the calendar; and in 
 default thereof, the cause set down without such note shall lose 
 its priority. 
 
 II.— OF MOTION-DAYS. 
 
 Amended 4. Every Monday shall be a motion-day at the chancery 
 1893. ' chambers in Camden and Jersey City, and every Tuesday shall 
 be a motion-day at the state- house, in Trenton, and the chan- 
 cery chambers in Newark, except the third and fifth Mondays 
 and Tuesdays in July, and the Mondays and Tuesdays in 
 August, save the second Tuesday in that month, at Trenton, the 
 second Monday at Jersey City, the third Tuesday at Newark 
 and the third Monday at Camden. When a regular motion- day 
 shall fall upon a legal holiday,(a) the day following shall be 
 the motion-day. Motions may be heard on any of the days desig- 
 nated, by a Vice Chancellor, without previous special reference 
 of the matter involved therein to him. [Notices of motions 
 shall designate the place of hearing, as " The Chancery Cham- 
 bers at " Jersey City, Newark or Camden, as the case may be ; 
 or, if the hearing is to be at Trenton, the designation shall be 
 Dec. 3ist, « The State House at Trenton ; " and they shall also state that 
 the motion will be made before "the Chancellor," unless the 
 case in which the motion is to be made shall theretofore have 
 been speciaJly referred to a Vice Chancellor, in which case the 
 notice shall state that the motion will be made before the Vice 
 Chancellor to whom such reference shall have been made.] 
 
 (a) The first day of January, general election shall be held for 
 
 twenty-second day of February, thir- members of assembly, shall be a legal 
 
 tieth day of May, fourth day of July, holiday, and no court shall be held, 
 
 first Monday in September, Thanks- nor any business done upon said days, 
 
 giving Day, twenty-fifth day of De- Mev., p. 481, § 1; Pamph. L., 1887, 
 
 oember, and all days upon which any chap. CXIV. 
 
COURT OF CHANCERY. xlix 
 
 5. All motions in causes not referred to a Vice Chancellor June i9th, 
 shall be made on such motion-days, and notice of a motion at 
 any other time shall be of no avail, unless specially directed by 
 the Chancellor, and unless the fact of such special direction 
 having been made, be expressed in the notice. 
 
 III.— OF THE ORDER OF BUSINESS. 
 
 6. On the morning of the first day of every stated term, and sept. sth, 
 on regular motion-days, motions and petitions shall have prefer- 
 ence of all causes set down for hearing or argument, [the unliti- mT^iI;!^ 
 gated motions and petitions having preference over those which ^*'^- 
 are litigated, and moving counsel being recognized in order of 
 seniority.] 
 
 7. On all hearings and arguments before the court, after read- ^^J^ist, 
 ing the pleadings, one of the counsel for the complainant, or 
 party holding the affirmative, and having the right of opening, 
 
 shall open the cause or matter in question ; then two counsel for 
 the adverse party may be heard in answer, after which one coun- 
 sel only for the party having the opening may be heard in reply ; 
 but in case there be several defendants, who have separate and 
 distinct interests, and different counsel concerned for them, then 
 the counsel for the respective defendants shall be heard in such 
 order as the court may direct, but in no case shall more than two 
 counsel be heard for one defendant; and if more than two 
 counsel are heard in answer for the defendants, in that case two 
 counsel may be heard in reply. 
 
 8. The party who sets down any cause, plea or demurrer for Sept. 8t&, 
 hearing or argument, shall deliver to the Chancellor, before the 
 commencement of the hearing or argument, an abbreviation of 
 
 the pleadings, or a state of the case as contained in the plead- 
 ings ; and each party shall also furnish him with a concise state- 
 ment of the material points of the case on which he intends to 
 rely, [under each of which the authorities relied upon to sustain j^y^^t^ 
 the point, shall be cited.] ^*^^- 
 
 4 
 
1 BULE8 OF THE 
 
 Aprn, 1841. 2. No causes will be heard, except such as are set down at a 
 regular term, unless ordered by the Chancellor, upon consent of 
 parties. 
 
 1853. iQ Every cause shall be noticed for hearing at the next term 
 
 after the evidence therein is closed, provided there shall be suffi- 
 cient time to notice it at or in such term ; and no cause shall be 
 set down for hearing on any day in term after the twentieth day. 
 
 IV.— OF SETTING DOWN CAUSES, &c. 
 
 May 21st, jj_ Notices of bringing causes to a hearing, including the 
 
 bringing on the argument of a plea, demurrer and of exceptions 
 to a master's report, shall be served at least fifteen days before 
 
 May 2otif ^^^^ intended hearing or argument ; [and the order setting down 
 exceptions to a master's report for argument, must be both entered 
 and served before the expiration of the time limited by the rule 
 nisi, or the report may be confirmed.(a)] 
 
 1879, 
 
 May 20th, j^g^ Exceptions to a master's report may be set down to be 
 
 heard at any day in the term, on the application of either party; 
 but five days' notice shall be given of such application. 
 
 1853. 13_ Where the complainant has taken issue upon a plea, by 
 
 filing a replication thereto, either party may enter the plea for 
 argument at the next or any subsequent term.(6) 
 
 (a) Taylor v. Thomas, 1 Qr. Oh. a report is a sufficient, and the usual 
 
 106 ; and see Morris v. Taylor, 8 C. showing cause against its confirma- 
 
 E. Or. 135. Notice of argument left tion. Weber v. Weitling, 3 0. E. 
 
 at the solicitor's dwelling-house in 6r. 39. 
 
 his absence is good service. Taylor (b) If complainant deems the plea 
 V. Thomas, supra. Notice good, had, he goes to hearing upon it; if 
 although dated on Sunday. Ibid. he deems it good, but not true, he 
 Where a defendant is entitled to takes issue upon it and proceeds as in 
 notice of proceedings before a master case of an answer. Davison's Ex'rs v. 
 'under an order of reference, a rule Johnson, 1 C. E. Or. 112. As to bur- 
 mist to confirm the report should be den of proof in case of a plea, see 
 taken. Miller's Adm'x v. Miller, 11 Swayze v. Swayze, 10 Stew. Eq. 186. 
 O. E. Or. 423. Filing exceptions to 
 
COUET OF CHANCBEY, U 
 
 14. (A.brogated.) For practice in setting down suits for 
 ■divorce, for hearing, see " In Suits for Divorce," infra. 
 
 1 6. When a replication has been filed, and the taking of proofs isss. 
 begun by either party, the complainant shall not be at liberty to 
 dismiss the bill, except upon special motion and notice to the 
 defendant ; and in any such cause, if the complainant shall fail, 
 within ten days after the expiration of the time to take testimony, 
 to notice the cause for argument, the defendant shall be entitled 
 of course to an order directing the complainant to show cause 
 why the defendant should not be permitted to notice the cause 
 for argument, and bring on the hearing thereof at the next 
 fitated term ; and if cause be not shown to the contrary, the 
 defendant may be permitted to give notice, and bring on the 
 hearing of the cause. 
 
 16. In all suits where the equities between the parties shall May 20th, 
 have been settled by an interlocutory decree, the cause may be 
 
 at once set down for final hearing, and a final decree may be 
 entered at the same term after such hearing. 
 
 v.— OF CASES SUBMITTED. 
 
 17. Where cases are submitted to the Chancellor without 
 argument, such submission shall be made by agreement in writ- ^pni. isii. 
 ing, signed by the solicitors of the respective parties, and shall 
 
 be accompanied by briefs or notes of the points and cases upon 
 which the said parties respectively rely. 
 
 VI.— OF RULES AND ORDERS. 
 
 18. Rules and orders to expedite a cause may be taken as 
 ^ell in vacation as in term-time.(a) i853_ 
 
 19. Every rule for a reference to a master of exceptions to a f|P';^"'' 
 'bill, answer or to interrogatories to a complainant to be answered ; 
 
 (a) The mere filing of a replication Stock. 203; see Stover v. Wood, 11 C. 
 is not a compliance witli an order to E. Or. 56. 
 :speed the cause. West v. Pa!ge, 1 
 
Hi 
 
 BULES OF THE 
 
 every rule for setting down for argument a plea, demurrer or 
 exceptions to a master's report or a cause for hearing; every 
 rule to confirm a master's report nisi or for an injunction, where 
 a master shall report that it is proper for an injunction to issue, 
 and every rule to which a party would, according to the practice 
 of this court, be entitled of course without showing special 
 cause, shall be denominated a common rule, and every other rule 
 shall be denominated a special rule ; all common rules, and all 
 rules, whether common or special, by consent of parties (such 
 consent being in writing, and signed by the parties or their 
 solicitor or counsel, and filed), may be entered, either in term- 
 time or vacation, with the clerk of the court, in a book to be by 
 him procured and kept for that purpose ; but every such rule 
 shall be considered as entered at the peril of the party at whose 
 instance it is entered, and the day of entering thereof shall be 
 noted in the said book. 
 
 Sept. 8tb, 
 1817. 
 
 Amended 
 1868. 
 
 20. [All notices of motions, all notices of taking testimony, J all 
 summonses to attend a master, orders to confirm reports unless 
 good cause shown, and all orders nisi, shall be served on the 
 solicitor of the adverse party, if a solicitor be concerned for him j 
 but if no solicitor be concerned for him, the service may be on 
 the party, or left at his usual place of residence, or, if not resi- 
 dent in this state, by setting up the same in the office of the 
 clerk of this court. 
 
 Sept. 8tb, 
 1817. 
 
 Amended 
 Deo. 23d, 
 1871. 
 
 21. In all suits for the foreclosure or satisfaction of a mort- 
 gage,* when the complainant's bill shall be ordered to be taken 
 as confessed, or the defendant shall make default at the hearing, 
 and the whole amount of the debt intended to be secured by the 
 mortgage shall have become due, no order of reference to a mas- 
 ter to ascertain and report the sum due to the complainant shall 
 be entered without the special order of the court ; but a report 
 by a master being made of the amount due upon the mortgage, 
 the same, if no cause to the contrary be shown, shall be filed of 
 course, and without any motion or rule for that purpose or for 
 confirmation, and a decree made accordingly. 
 
 * The words " where there are no defendants claiming to be encumbrancers"' 
 were omitted by the amendment. 
 
COURT OF CHANCEEY. lui 
 
 22. In casss where the complainant's bill shall be ordered to May2i8t, 
 he taken p'-o oonfeaso against a defendant, [where there are no ^™*Si!f 
 infant defendants,] and there shall be a reference to a master i879. 
 ordered in the cause, the complainant may proceed before the 
 master without notice thereof to such defendant, and it shall not 
 
 be necessary, upon the coming in of the master's report, to enter 
 a rule to confirm the same nisi, or to set the cause down prepara- 
 tory to further directions, or to a final decree against such defend- 
 ant ; [but the complainant shall, without further notice, be enti- 
 tled to a final decree.] 
 
 23. In all cases where the complainant's bill shall be taken April, isu. 
 pro eonfesao against the mortgagor, and other defendants claim- 
 ing to be encumbrancers file their answer or answers setting up 
 
 said encumbrances, if the order of priority shall not appear, upon 
 the face of the pleadings, to be disputed by the parties, either 
 complainant or defendant, and the amounts respectively claimed 
 as due do not app^r to be denied, and a report be made upon 
 an order of reference to a master, it shall not be necessary to 
 enter a rule nid to confirm said report, or to set the cause down 
 for hearing on the same ; [but if no exceptions to said report be Amended 
 filed within(o) four days after the filing of said report, the com- 
 plainant shall, without further notice, be entitled to a final 
 decree.] 
 
 24. Where the bill in a foreclosure suit shall be ordered to be June i9, 
 taken as confessed against a defendant, no report or decree shall 
 
 be made by which his rights or claims are postponed to those of 
 any other defendant, unless the priority of the rights or claims 
 of such other defendant, and the facts upon which it depends, 
 are distinctly set forth in the bill; and any controversies 
 between such defendants may be settled upon application for the 
 surplus moneys.(6) 
 
 (a) When any matter of proceed- ported the order of priority of several 
 
 ing or practice is required by statute mortgages, if the Chancellor, on ex- 
 
 or rule to be within a certain number ceplions, changes the order of prior- 
 
 ■of days, the first day is excluded. ity, a final decree may be taken at 
 
 'Thome, v. Mosher, 5 O. E. Or. 257. once without a second reference. 
 
 (6) See Mulford v. Williams, 4 Hal. Chance v. Teeple, 3 Gr. Oh. 173. 
 ■CA. 536. Where the master has re- 
 
liv EULBS OF THE 
 
 May 21st, 25. Orders nisi, when necessary to coEfirm reports of masters, 
 need not be served upon a defendant who has been notified to 
 attend the master respecting the matter referred, and has refused 
 or neglected to attend, but shall become absolute of course as ta 
 such defendant, unless cause be shown to the contrary. 
 
 May 21st, 26. In cases where the court shall order the complainant ta 
 produce documents and depositions, exhibits or other evidence,^ 
 to substantiate and prove the allegations in his bill, the proceed- 
 ings subsequent to the said order may be considered as ex parte^ 
 and it shall not be necessary for the complainant to give notice 
 thereof to the defendant. 
 
 April, 1841, 27. Where a complainant omits to take a decree pro confessOy 
 Amended j-^jjjijjjj fgyp months] after the time when he is entitled to it 
 against a defendant or defendants, he shall not thereafter move 
 such decree until he has first taken and served an order on the 
 defendant or defendants, if in this state, to 'file their answer or 
 answers at such short day as the court may appoint. 
 
 April, 1841. 28. When the complainant, in any bill filed to foreclose a 
 mortgage, makes prior or subsequent encumbrancers parties to 
 said bill, and they come in and answer, and the complainant 
 
 Amended ^.jjgjj [-£qj. f^^^ months] neglects or refuses to proceed, the said 
 defendants, or any of them, may take an order upon the com- 
 plainant to show cause at any time, [on ten days' notice,] why 
 the said defendant or defendants shall not be allowed to proceed 
 with the said cause to decree and execution in his name ; and 
 unless good cause be shown to the contrary, an order may be 
 made that the said defendant or defendants shall be allowed so to 
 proceed with the suit, and the complainant shall not be allowed 
 his costs, (a) 
 
 (a) A defendant who has answered prosecuted. Young v. Young, 2 C. E, 
 
 will be allowed to proceed with the Gr. 161. Until an order is obtained, 
 
 suit, although the complainant's debt under the rule the defendant cannot 
 
 has been satisfied and he has agreed control the suit. Covlston v. CovkloUy 
 
 that the suit shall not be further 10 Stexo. Eq. 396. 
 
COUJRT OF CHANCERY. Iv 
 
 29. Whenever, in a suit for foreclosure of mortgage or for '^^l '^^^' 
 partition, the answer or answers shall not appear to set up any 
 defence or to present any question, except such as is the appro- 
 priate subject of a reference to a master, it shall not be necessary 
 
 to set down the cause for hearing in order to obtain a reference, 
 but the same may be granted on motion on notice to the solicitor 
 or solicitors of the answering defendant or defendants (or to such 
 defendant or defendants if appearing in person), and if the refer- 
 ence be ordered, the cause may proceed under it, as provided by 
 the 23d rule. ' 
 
 30. If a suit be suffered to lie without substantial prosecution ^ay 20th, 
 for one year, it shall be considered as abandoned, and the bill i^^^nl*^ 
 may be dismissed; five days' notice shall be given of a motion ^If/^"'' 
 for that purpose, to complainant or his solicitor.(a) 
 
 VII.— OF INSPECTION OF BOOKS AND 
 PAPERS. 
 
 31. An order may be made on such terms as may be imposed ^^1^°*'^' 
 by the Chancellor, on the application of either party to a suit in 
 
 this court, for an inspection and copy, or permission to take a 
 copy of any books, papers or documents relating to the merits 
 of such suit or of the defence thereto ; such application, of which 
 five days' notice shall be given, shall be by petition stating the 
 grounds thereof, and verified by the oath of the party or his or 
 her solicitor. 
 
 32. On the hearing of the petition, the affidavit of the oppo- f^l"^^^' 
 site party, or his or her solicitor, may be read without notice of 
 
 the taking of the same, or either party or any witness may be 
 examined on such hearing in relation thereto ; compliance with 
 the order provided for by the preceding rule may be compelled 
 by proceedings as for a contempt of this court. 
 
 (a) This rule can only be taken, taken steps which amount to a waiver 
 
 advantage of by application to the of the benefit of the rule. Some Ins. 
 
 court while as yet the cause sleeps, Oo. v. Howell, 9 C E. Or. 238. 
 or at least before the defendant has 
 
Ivi EULES OF THE 
 
 VIIL— OF THE CLERK. 
 
 1853. gg_ rpjjg (jigj-k of the court shall, on or before the first day of 
 
 January, annually, make out a statement of the funds in his 
 hands, where the same are deposited, or how invested, and the 
 times when the same were received, and the suit or matter in 
 which the same were paid in, in order that the Chancellor 
 may give such directions concerning the same as he may deem 
 advisable. 
 
 f^e' ^^*' 34. All moneys paid into the court shall be deposited forth- 
 with in the " Trenton Banking Company," to the credit of the 
 "Court of Chancery of the State of New Jersey," unless other- 
 wise specially ordered by the court ; and no moneys on deposit 
 under this rule or under any special order of the court shall be 
 drawn, except by a draft or check of the clerk, countersigned by 
 ^menaed the Chancellor [or a Vice Chancellor] ; and whenever any money 
 1893. jg paid into court, it shall be the duty of the clerk, immediately 
 
 upon the receipt thereof, to give notice of the same to the 
 Chancellor. 
 
 Sept 8th, 35_ The clerk of this court shall not practice, either as a 
 solicitor or as a counselor, in the court. 
 
 Sept. 8th, 3g_ j^Q £ig Qf ^jjg (jQ„j,j. gjjg^jj ^^^ guffered by the clerk to be 
 
 taken out of his office, without the order of the court for that 
 purpose previously obtained. 
 
 May 21st, gy^ "jj^g clerk shall, in the copies of all pleadings, deposi- 
 
 tions and other proceedings filed or remaining as of record in 
 his office, made out by him to be used in this court, leave a 
 margin of not less than one inch, and shall distinctly mark and 
 set down in the margin the numbers of the pages in the original 
 pleadings, depositions and other proceedings, so that the copy 
 may correspond with the original in the paging thereof. 
 
 Sept. 8th, gg_ "jijjg solicitor, in every case in this court, shall be answer- 
 
 able to the officers thereof for all lawful fees which shall become 
 
COURT OF CHANCERY. Ivii 
 
 •due to them in the conducting of the suit, (execution fees 
 excepted,) and the clerk of the court is authorized to receive 
 from the solicitor all such fees as shall become due to the 
 state ; and, in order to enforce the punctual payment thereof by 
 the solicitors, the clerk shall not enter, or suffer to be entered or 
 filed in his office, any rule or rules, paper or papers, until the 
 solicitor moving the same shall have paid up all fees due from 
 him to the state, and also to the clerk himself, on the last 
 day of the term next preceding the term in which the motion for 
 such entry or filing is made. 
 
 39. In all causes where there are proceedings subsequent to a April, isii. 
 decree final, which shall alter or vary such decree, the same shall 
 
 be enrolled by the clerk, but not otherwise. 
 
 40. The clerk of this court shall keep in his office a docket, April, isti. 
 in which he shall enter the titles of all suits brought in the 
 
 court, and a memorandum of every paper filed under the title 
 of the suit, with the time of filing and the name of the solicitor 
 of each party, and also an alphabetical* index to the same ; and 
 the said docket shall be, at all proper hours, accessible to the bar, 
 
 41. No order in the proceedings for foreclosure and sale isss 
 under mortgages shall be filed by the clerk until it is actually 
 signed, and none shall be filed nunc pro tune unless specially 
 directed by the court ; and all proceedings under an order not 
 actually signed, shall be null and void. 
 
 IX.— OF MASTERS AND EXAMINERS. 
 
 42. Every person who shall be appointed a master or exami- sept sth, 
 ner of this court shall, before he enters upon the execution of 
 
 his office, subscribe and take, before the Chancellor or clerk [or ^^^^f^^ 
 in the absence of the Chancellor or clerk, before such Vice i'»^- 
 ■Chancellor or advisory master as shall attend at the clerk's office 
 for that purpose], an oath or affirmation, faithfully, impartially 
 -and justly to perform all the duties of the office, according to the 
 Jbest of his abilities and understanding. 
 
Iviii RULES OF THE 
 
 Sept, 8th, 43, When a matter is referred to a master of the court to- 
 
 examine and report upon, he shall, if notice be necessary, assign 
 a day and place to hear the parties ; and the party obtaining a 
 reference, or who shall be ordered to procure the master's report^ 
 shall serve the adverse party, at least four days exclusive before 
 the day assigned for the hearing, with a summons issued by the 
 master, requiring his attendance at such time and place, and 
 make proof thereof to the master ; and thereupon, if the party 
 summoned shall not appear, or good cause shall not be shown 
 why he does not, the master may proceed ex parte; and if the 
 party serving the summons shall not appear at the time and 
 place, or show cause why he does not, the master may either 
 proceed ex parte, or the party obtaining the summons, and not 
 appearing, shall lose the benefit of the reference, at the election 
 of the other party, (a) 
 
 Sept. 8th, 44_ When, by a decretal order of the court, any inquiry 
 before a master is directed to be made in a cause, and the exam- 
 ination of witnesses shall be necessary to obtain the proper 
 information, such examination shall, at the expense of the party 
 requiring it, be reduced to writing by the master, in the form of 
 depositions, and returned and filed with the report. 
 
 Mar. utb, 45, ^\\ references in divorce and partition, and in applica- 
 tions for sales of lands of infants, idiots, lunatics and habitual 
 janf 2oth^ druukards, [and to ascertain the value of dower, or curtesy, in 
 i)&c.' 23d, moneys in court, and as to surplus money on foreclosure sales, 
 and on application for the proceeds of sales in partition suits for 
 payment of debts,] shall be to special masters. 
 
 1871. 
 
 May 20th, 46, No Sale shall be ordered to be made by any master con- 
 nected in business with, or who is clerk for, or employed in the 
 business of, the solicitor of any of the parties to the suit. 
 
 [a] After taking testimony and Slew. Eq. 729. It is usual to deliver 
 hearing counsel, the master should the report to the solicitor who pro- 
 make up and file his report without cured the reference, who files it with 
 further notice to the parties or their the clerk, 
 counsel. Van Ness v. Van Ness, 5 
 
COUET OF CHANCBEY. lix 
 
 47. On all reports made by masters upon special reference in May i2tii, 
 pursuance of any order or decree, the master shall be entitled to 
 
 four dollars for making the report and thirty cents per folio for 
 drawing the same and ten cents per folio for all schedules 
 annexed thereto, provided, however, that the fees for drawing 
 the report in a divorce case shall not exceed four dollars and 
 fifty cents. 
 
 X.— OF PLEADINGS. 
 
 48. AH bills and answers, and other proceedings intended to ^^f^^ 8*' 
 be filed, shall be fairly and legibly written ; and every bill shall 
 
 be signed by counsel before it is filed, (a) 
 
 49. No bill or other pleading shall recite records, deeds or '*^^- 
 other documents in full, but only so much and such parts thereof 
 
 as may be necessary for the clear exhibition of the case, or the 
 construction of the document, omitting all parts not relevant to 
 the relief sought, or the defence set up ; and no pleading shall 
 repeat documents or parts of documents set forth in any previous 
 pleading, but if the same are not fully or accurately set forth, 
 may add such parts as may be necessary to complete or correct 
 the same. 
 
 60. No foreclosure bill shall set forth the bond or mortgage '*^^- 
 at length, but only those parts thereof upon which the relief 
 sought is founded, including the date, names of parties, consid- 
 eration, words of conveyance, description of premises, the words 
 limiting the estate and the condition in full ; and no costs shall 
 
 be taxed or allowed for any bill drawn in palpable violation of 
 this rule. 
 
 XI.— OF PE0CE8S. 
 
 61. The names of all the defendants in the same cause shall ^82!^'' 
 be inserted in one subpoena, unless the defendants reside in dif- 
 
 (a) Signature of counsel is not re- Signature of firm of counselors to a 
 quired to an answer. Freehold Mut. bill is u, compliance with the rule. 
 Loan Ass'n v. Brown, 1 Stew, Eq. 42. Hampton v. Coddinglon, Id. 557. 
 
Ix 
 
 KULES OF THE 
 
 ferent counties, in which case the names of all those who reside 
 in the same county shall be inserted in the same subpoena. 
 
 April, 1811. 52. Copies of tickets served with the subpoena upon defend- 
 ants shall be annexed to and returned with the subpoena.(a) 
 
 53. (Abrogated.) Eelated to decrees for deficiency in fore- 
 closure suits. 
 
 April, 1841. 
 
 May 20tli, 
 1879. 
 
 Amended 
 May 12th, 
 1893. 
 
 Mar. 12th, 
 1867. 
 
 Amended 
 May 20th, 
 1879, also 
 May 12th, 
 1893. 
 
 XII.— OF ABSENT DEFENDANTS. 
 
 54. In all suits against an absent defendant, an order may 
 be had that said defendant appear, plead, answer or demur 
 to the complainant's bill in two months from the date of the 
 order,, unless the Chancellor, for special reasons, shall otherwise 
 direct. (6) 
 
 55. In cases where husband and wife are made defendants, 
 and he only is served with process of subpoena, the wife being 
 out of the state, an order of publication shall be taken against 
 her, unless an appearance be entered for her. 
 
 56. No order of publication shall be made in any suit until 
 after the return-day of the [citation or] subpoena therein, without 
 the special order of the court. 
 
 57. Where publication is required for absent defendants to 
 appear, plead, answer or demur to the bill, there shall be 
 published or served a notice substantially of the form pre- 
 scribed by rule 58 ; [and if published, and the suit is concern- 
 ing land, such publication shall be in a newspaper published in 
 the county where the lands are situated.] 
 
 (a) The sheriff's return "served" 
 upon the subpoena is presumptive 
 proof of the service of the notice re- 
 quired by the rule. Bell v. Oitlmore, 
 10 a E. Gr. lOi; Mulford v. Reilly, 
 5 Stew. Eq. 419. A subpoena will not 
 be set aside because returnable on a 
 
 legal holiday. Kinney v. Ewing, 10 
 Stew. Eg. 339. 
 
 (h) Where on the hearing the 
 court considers the publication 
 ordered to be insufficient, the decree 
 will not be signed. The complainant 
 takes such order at his peril. Stone 
 V. Stone, 1 Stew. Eq. 409. 
 
COUBT OF CHANCERY. Ixi 
 
 58. Such notice shall be entitled in the court only, not in the Mar. i2tii, 
 cause, shall be addressed to the absent defendants by name, shall 
 state the date of the order, the name of the complainant and 
 the time within which the absent defendants are required to ap- 
 pear, plead, answer or demur ; the notice shall also state briefly, 
 in general terms, the object of the suit, and why the persons to 
 whom it is addressed are made defendants ; and in foreclosure 
 suits state the parties to the mortgage to be foreclosed, the date 
 thereof and the township and county or incorporated city in 
 which the lands are situate ; such notice may be in the form in 
 the schedule hereto annexed, or similar form adapted to the 
 case ; and it shall be signed with the name and post-office ad- 
 dress of the solicitor of the complainant, or of the complainant, 
 if he has no solicitor, and the mailing of such notice, in the 
 manner herein directed, shall be sufficient service thereof. 
 
 69. The complainant or his solicitor, or his agent actually Mar. 12th, 
 entrusted with the management and conduct of the suit, shall, 
 in all cases where the residence and post-office address of an 
 absent defendant not actually served with the notice to appear 
 shall not be known, make diligent and careful inquiry therefor ; 
 such inquiry shall, as to persons made defendants by reason of a 
 judgment, attachment or decree, include inquiry of the plaintiff's 
 attorney or solicitor in such judgment, attachment or decree, if 
 residing within this state, and as to persons made defendants by 
 reason of any mortgage or contract stated in the bill shall in- 
 clude inquiry of the person who made the mortgage or contract, 
 if known and residing in this state ; and in any suit for divo«;e, l;™^^^^"* 
 such inquiry shall be made of the nearest relatives of the de- jj^^'fji^ 
 feudant, if known ; such inquiries may be made in person or by i^'^- 
 letter, and shall state that suit has been commenced against the 
 person inquired for, and that the object of the inquiry is to give 
 him notice of such suit, that he may appear and defend it ; and 
 when made by letter shall enclose a proper postage stamp for 
 return of an answer. 
 
 60. No decree 'pro eonfeaso shall be taken against an absent mm. mb, 
 defendant who has not appeared or been served with process of 
 
Ixii 
 
 RULES OF THE 
 
 Amended 
 Feb. 3d, 
 1891, also 
 May 12tli, 
 1893. 
 
 subpoena, unless it shall appear by proof that the notice pre- 
 scribed by the 58th rule has been served personally upon him, 
 or that it has been published, and also mailed in the manner 
 required by law, or unless it shall appear by the affidavit of the 
 complainant or his solicitor, or the person actually entrusted with 
 the management and conduct of the suit, that inquiry has been 
 made in good faith and without success, for the post-office address 
 of such defendant, in the manner required by these rules, and in 
 such other manner as the affiant supposed would probably give 
 information thereof if the same could be had. [And in a suit 
 for divorce the affidavit shall be made by the complainant or his 
 solicitor, and shall fully specify the inquiry made, of what per- 
 sons and in what manner it was made, so that by the facts 
 stated in such affidavit it may appear that the inquiry has been 
 of the character intended not only by the letter but also by the 
 spirit of rule 59.] 
 
 Dec. 23d, 
 1871. 
 
 61. The 57th, 58th, 59th and 60th rules shall apply to suits 
 for divorce commenced by petition, and to all other proceedings 
 commenced by petition ; and the term complainant, in the rules 
 of this court, shall be held to include the petitioner in suits or 
 proceedings commenced by petition. 
 
 XIII.— OF AFFIDAVITS TO ANSWERS BY 
 DEFENDANTS OUT OF THE STATE. 
 
 Oct., 1S70. 
 
 Amended 
 Mav 12th, 
 1893. 
 
 62. Where an answer shall be sworn to by a defendant out of 
 this state, the oath may be taken before a master in chancery of 
 this state or a notary public, certified under his seal, [and other- 
 wise in compliance with the requirements of statute,] or before 
 any person who shall be authorized by the law of this state to 
 take the acknowledgment of the execution of a deed for lands in 
 this state, at the place where such answer shall be sworn to, and 
 the authority to such person shall be certified in the same man- 
 ner as required for the recording of a deed acknowledged before 
 him. 
 
COUBT OF CHANCERY. Ixiil 
 
 XIV.— OF INFANT DEFENDANTS AND SUITS 
 ON MORTGAGES. 
 
 63. For the purpose of having a guardian appointed for an Sept. sa, 
 
 1817. 
 
 infant to answer and defend a suit, a petition may be presented 
 by the infant, if above the age of fourteen years, or if under that 
 age, by his father, or some other friend in his behalf, praying 
 such appointment ; an agreement expressing the assent of the 
 person petitioned for to accept of the appointment, and also an 
 affidavit or affidavits that the petition and agreement were duly 
 signed, and verifying the age of the infant, shall accompany the 
 petition. 
 
 64. When a bill is filed against an infant, or when, upon an ^egt. 8tb, 
 abatement, any infant shall, by order of the court, be made a 
 defendant, and no application shall be made on his behalf, within 
 four days next after the day of appearance specified in the sub- 
 poena or order of publication, for the appointment of a guardian, 
 the Chancellor may, on an application on behalf of the complain- 
 ant, by order, assign a guardian for the infant, the same as if he 
 had been brought into court for that purpose, or make such other 
 order as may appear most proper and advisable in the premises ; 
 but fifteen days' notice of such application must be given to the 
 infant, if of the age of fourteen years and resident within this 
 state, or, if under that age or not a resident in this state, to his 
 guardian appointed by the Orphans' Court, if any there be, and 
 if no such guardian, to the father of such infant, or if no father, 
 then to the mother, [and if no mother, to the person, if any, who ^^^^^^ 
 stands in looo parentis to the infant] — provided such guardian, ^*^*- 
 father or mother be resident in this state ; which notice may be 
 served at the time of the service of the subpoena or at any time 
 after.(a) 
 
 (a) The guardian ad litem will be gate, 8 C. E. Or. 372. The suilor 
 
 directed to employ counsel to repre- who seeks relief against an infant 
 
 sent the infant, where the interest of must prove his whole case. Shullz v. 
 
 the infant requires it. Colgate v. Col- Sanders, 11 Stew. Eq. 154. 
 
]xiv EULES OF THE 
 
 May 2i6t, gS, In suits for the satisfaction of a mortgage, when an appli- 
 
 cation shall be made for the appointment of a guardian for an 
 infant defendant, as provided for in the last preceding rule, or 
 when it shall appear by affidavit, to the satisfaction of the Chan- 
 cellor, that notice cannot be served, as mentioned in that rule, the 
 Chancellor may, on the application of the complainant, appoint 
 the clerk of the court guardian ad litem for such infant, whose 
 duty it shall be, if no application shall be made on behalf of the 
 infant for the appointment of a guardian within the time allowed 
 by law for such infant to answer, plead or demur to the bill, to 
 enter an appearance for the infant to the suit ; after which the 
 complainant may, if the suit is against the infant alone, or the 
 bill shall have been ordered to be taken pro eonfeaso against the 
 other defendant or defendants, take an order to refer the cause to 
 a master to ascertain the truth of the allegations of the complain- 
 ant's bill, and to take an account of what is due upon the com- 
 plainant's mortgage (if anything), and also upon any other en- 
 cumbrance, the amount of which it may be necessary to ascertain, 
 and if more encumbrances than one, to report their several pri- 
 orities ; and the complainant and every other person setting up 
 an encumbrance before the master, affecting the estate or interest 
 of such infant, shall prove his demand before the master, and 
 the master may, if he thinks proper so to do, examine the com- 
 plainant or other person setting up such demand, on oath or 
 affirmation, to ascertain the truth thereof, and shall report such 
 examination (if any) and all the proofs taken before him to the 
 court ; and shall also inquire and report whether, under the cir- 
 cumstances of the case, a sale of the whole, or a part only, of the 
 mortgaged premises is necessary to be made, and any other 
 special matter which the master may deem proper for the benefit 
 
 Amended of the infant ; [and if no exception to said master's report shall 
 be filed within four days after the filing of said report, the com- 
 plainant shall, without further notice or setting down such cause 
 for hearing, be entitled to a final decree.] 
 
COURT OP CHANCERY. Ixy 
 
 XV.— OF AMENDMENTS. 
 
 66. The complainant may amend his bill of course, and with- ^If^*- *'*'' 
 out motion or rule, at any time before answer, plea or demurrer 
 
 filed, and without costs.(a) 
 
 67. If the defendant put in an answer, which is excepted to Sept. 8th, 
 as insufficient, and the defendant submit to answer further, or 
 
 the answer shall, on reference, be reported insufficient, in either 
 case the complainant may amend his bill of course, and without 
 costs, and the defendant shall answer the amended bill and the 
 exceptions together ; and if the defendant shall plead or demur, 
 and the plea or demurrer shall be overruled, the complainant 
 may, before the filing of an answer, amend his bill of course, 
 and without costs. 
 
 68. In all cases not before mentioned, in which the defendant Sept. sth, 
 shall have answered the complainant's bill, and the complainant 
 
 shall obtain leave to amend, if such amendment require a new 
 or further answer, then the complainant shall pay costs to be 
 taxed,(6) 
 
 69. In all cases where the defendant's appearance has been Sept. sth, 
 enteried, and he has procured a copy of the bill, and the com- 
 plainant is allowed to amend without costs, he shall furnish the 
 defendant with a certified copy of the amended bill, or amend 
 
 the defendant's copy, gratis. 
 
 70. If the defendant demur to the bill for want of parties, or sept. stb, 
 other defect which does not go to the equity of the whole bill, 
 
 1817. 
 
 (a) An amended bill is considered Motf, 1 MeCart. 431 ; see Midmer v. 
 
 as an original bill, and a new sub- Midmer, 11 O. E, Or. 299 ; Wilson v. 
 
 pcena to answer is not necessary when Brown, 2 Beas. 277 ; Armstrong v. 
 
 the defendant has not appeared. Ross, 5 C. E. Gr. 109 ; Elmer v. Loper, 
 
 Equitable Sodety v. Laird, 9 C. E. Gr. 10 C. E. Or. 475 ;, Paulison v. Van 
 
 319. A bill may be amended as to Iderstine, 1 Stew. Eq. 306. 
 matter of form as of course, at any (6) For practice as to amendments, 
 
 time before replication filed. Buck- see Barton v. Long, 18 Stew. Eq. 841. 
 ley V. Corse, Sax. 504; Coddington v. 
 
Ixvi RULES OF THE 
 
 the complainant may amend of course at any time before the 
 next term after filing the demurrer, upon payment of costs to be 
 taxed. 
 
 Mg2iBt. yj^_ When a complainant shall amend his bill, which has been 
 
 sworn to, no interlineation, erasure or other alteration shall be 
 made in the original bill on file ; but the amended bill shall be 
 engrossed anew, sworn to and filed, and annexed to the original 
 bill, unless the court shall otherwise order. 
 
 XVI.— OF EXCEPTIONS. 
 
 182 J ^^^'' "^2. When a complainant shall take exceptions to an answer, 
 
 for impertinence or scandal, he may, at the same time, except to 
 the answer for insuflSciency ; and all exceptions to an answer for 
 impertinence, scandal or insufficiency shall be referred, by one 
 rule, to the same master ; and after a reference of the answer for 
 impertinence or scandal, the complainant shall not be allowed to 
 refer the answer for insufficiency; nor after a reference for 
 insufficiency shall there be a reference of the same answer for 
 impertinence or scandal.(a) 
 
 1822. 
 
 May 21st, 73. A rule of course to refer exceptions to an answer for 
 
 3X22. ■■• 
 
 insufficiency shall not be entered until six days after service of 
 a copy of the exceptions on the defendant or his solicitor ; and 
 if the defendant shall, within that time, submit to answer the 
 exceptions, he shall give notice thereof to the complainant's 
 solicitor, and pay the costs of the exceptions ; and in that case, 
 if the complainant shall, within six days after such notice, or 
 within such further time as the court shall allow, amend his bill 
 and the defendant's copy, the defendant shall answer the excep- 
 tions and amendments at the same time. 
 
 (a) On bill for injunction exoep- injunction. The motion and the ex- 
 tions to the answer will not delay the ceptions will be heard together, 
 hearing of a motion to dissolve the Wyckoff v. Cochran, 3 Or. Ch. 420. 
 
COURT OF CHANCEBY. Ixvii 
 
 74. When a defendant shall have given notice that he sub- May2i8t, 
 mits to answer the exceptions, he shall file a second or further 
 answer within [twenty] days after the complainant has amended Amended 
 his bill and the defendant's copy, if the complainant shall amend 
 his bill ; or if the complainant shall not amend his bill, then 
 within [twenty] days after receiving a copy of the exceptions, or 
 on failure thereof, the complainant's bill shall be taken as con- 
 fessed, and such proceedings had thereon as if the first or origi- 
 nal answer had not been filed. 
 
 76. When an answer shall be excepted to for insufficiency and *^|| ^is*. 
 for impertinence and scandal, or for insufficiency and imperti- 
 nence or scandal, if the defendant submits to answer the excep- 
 tions for insufficiency, but does not at the same time give notice 
 that he consents to have the parts of the answer excepted to for 
 impertinence or scandal expunged, the complainant may imme- 
 diately and of course enter a rule to refer the exceptions for im- 
 pertinence or scandal to a master. 
 
 76. Exceptions to any pleading or other matter pending be- i*'^- 
 fore the court, for scandal or impertinence, shall be taken in the 
 same manner as exceptions to an answer for insufficiency^ and 
 may be submitted to in like manner, and within the same time ; 
 if they are not submitted to, the party excepting shall refer them 
 in the same manner, or they shall be considered as abandoned.(a) 
 
 XVII.— OF INTERROGATORIES. 
 
 77. If the defendant intend to exhibit interrogatories to the ffPt- 8ti». 
 complainant, he shall file the same, and serve a copy thereof 
 
 (a) In New Jersey exception may Cumberland Ins. Co., 9 Slew. Eq. 393. 
 
 ■be filed to a bill for impertinence or The rule to file exceptions and refer 
 
 scandal. C. & A. E. M. Co. v. Slew- them to a master is for the relief of 
 
 arl, 4 C. E. Or. 343. No exceptions the court. They may be heard 
 
 will lie to answers of corporations, for directly by the Chancellor at his 
 
 ihey are not evidence. Wallace v. option. C. & A. R. B. Co. v. Stewart, 
 
 Wallace, July, 1828 ; but see Beed v. supra. 
 
Ixviii EULES OF THE 
 
 within fifteen days after filing his an8wer,(a) and not after, with- 
 out leave of the Chaiicellor; and the complainant shall answer 
 the said interrogatories within thirty days after service thereof,^ 
 unless the Chancellor shall allow further time for answering the 
 same ; and if the complainant except to the interrogatories, he 
 shall file his exceptions within ten days after service of the inter- 
 rogatories, and enter a rule of course with the clerk to refer them 
 to a master, who shall decide and report thereon within fifteen 
 days after they are filed ; but an appeal from such report shall 
 be allowed to the Chancellor, if taken within ten days after filing 
 the master's report ; and the Chancellor, whether in term-time 
 or vacation, upon ten days' notice given by either party, shall 
 hear and determine the same; and if the said exceptions be 
 overruled, the complainant shall pay costs to the defendant; but 
 if any of the said interrogatories shall be adjudged to be im- 
 proper, the defendant shall pay costs to the complainant. 
 
 XVIII.— OF EXAMINATIONS. 
 
 May 21st, 78. When any cause shall be at issue, and the interrogatories 
 exhibited to the complainant, if any, answered, each party, the 
 complainant first, and then the defendant, shall proceed to take 
 and complete the testimony on his part before an examiner, by 
 sessions continued from day to day, on proper notice of the time 
 
 Amended and place of commencing the same, [which notice shall be served 
 
 May 20th, at least [ten] days before the day appointed for taking the exami- 
 
 Mayi2tS, nation.](6) 
 
 (a) A complainant will not be the bill, may be regarded as iucor- 
 
 ordered to answer interrogatories porated in it. Romaine v. Sendrick- 
 
 which are not filed within fifteen son, 9 C. E. Or. 231. 
 days after filing the answer, unless a (6) No notice having been given 
 
 sufficient reason has been disclosed to of the time and place of taking 
 
 excuse the neglect on the part of the depositions, they must be suppressed, 
 
 defendant to file his interrogatories The adjournment does not supply the- 
 
 pursuant to the rule of the court. place of the notice required. Parker 
 
 Phelps V. Curtis, 1 Or. Ch. 387. The v. Hayes, 8 C. E. Or. 186. 
 interrogatories, where referred to in 
 
COUET OF CHANCERY. Ixix 
 
 79. Testimony shall not be taken, except by consent, before May 20th, 
 «n examiner who is a partner of, or connected in business with, 
 
 -or clerk for, the solicitor of either of the parties. 
 
 80. The complainant shall commence taking testimony on ises. 
 his part within [fifteen] days after issue joined, and shall con- Amended 
 elude the same iu thirty days, and declare to the examiner when 1893. 
 the testimony on his part is concluded. 
 
 81. Within fifteen days after the testimony on the part of the ises. 
 complainant is declared to be concluded, or after the time for 
 taking the same has expired, if no such declaration has been 
 made, the defendant shall commence taking testimony on his 
 part if any he has, and shall conclude the same in thirty days, 
 and declare when the same is concluded.(a) 
 
 82. The examiner may, at the request of the party taking 1868. 
 iestimony, adjourn to any day within said thirty days, and to 
 :any place within the county ; and any examiner may take such 
 testimony, or any part thereof, in place of the examiner named 
 
 in the notice, or before whom the testimony was commenced ; 
 but only one examination shall proceed in the same cause at the 
 same time, except on commission by interrogatories. 
 
 83. When the defendant shall declare the testimony on his ises. 
 part closed, or when the thirty days for taking testimony on his 
 part shall have expired, the complainant may proceed immedi- 
 ately, or by adjournment not exceeding ten days, with testimony 
 
 to rebut the testimony of the defendant, or to sustain testimony 
 on his part, impeached or contradicted by the defendant, and the 
 defendant may afterwards produce counter rebutting evidence on 
 his part ; but such evidence shall not be continued for more than 
 five days on each side. 
 
 (a) A witness cannot, without ex- definitely stated, when the witness is 
 
 press leave of the court, be re- recalled. Osborne v. O'BeiUy, 7 Stew. 
 
 -examined as to a matter upon which Eq. 60. See as to laches. Boon v. 
 
 he has a,lready been examined, but Pier-pout, 5 Stew. Eq. 217. 
 ibis ground of objection should be 
 
Ixx EULE8 OP THE 
 
 1868. 84. The examiner may, at the request of either party, adjourn 
 
 the examination to a day within the time limited to said party,, 
 giving precedence to the request of the party then proceeding 
 with taking testimony ; and when such adjournment is regularly 
 made at the time and place at or to which an examination was- 
 noticed or adjourned, no notice of the same need be given. 
 
 1868. 85. If either party cannot complete his testimony within sucb 
 
 thirty days, his time may be enlarged, upon motion, on notice 
 served before the expiration of said time, for reasons, verified by 
 proof, satisfactory to the Chancellor. 
 
 1868. 86. The time for taking testimony above limited shall not be 
 
 extended, except by written consent or by order of the court,. 
 made upon notice. 
 
 1868. 87. No legal holiday, except Sunday, nor any day between 
 
 the fifteenth day of July and first day of September, unless- 
 occupied in taking testimony, shall be computed as part of said 
 limited time. 
 
 1^5. 88. Where any complainant or petitioner in any action or 
 
 proceeding in this court shall desire to avail himself of the bene- 
 fit of the sixth section of the "Act concerning evidence," {Rev.^ 
 p. 379,) he shall be sworn and examined as a witness, for the 
 purposes mentioned in the act, before any other witness shall be 
 examined in the cause, either on the part of the complainant or 
 defendant; and the testimony of such complainant shall h& 
 taken within twenty days after issue joined, (a) 
 
 185S. 89. The exhibits offered in any cause, except books of account 
 
 in actual use, shall, upon request, be left with the examiner for 
 such reasonable time as he may prescribe, that the same may be 
 examined by other parties, and copies made by the examiner,, 
 unless the party producing them will furnish such copies, and 
 
 (a) This section does not extend to this section even after the death of 
 
 the trial of an issue out of chancery. tlie defendant. Lanning v. Lanning^ 
 
 Black V. Lamb, 1 Seas. 110. The 2 C. E. Or. 228. 
 complainant may be a witness under 
 
COTJBT OF CHANCBEY. Ixxi 
 
 then they may be inspected as directed by the examiner, in the 
 presence and custody of the party producing them ; and there 
 shall be paid for such copies, when made by the master, ten 
 cents per folio, and when made by the party, four cents per folio, 
 which shall be allowed and taxed as costs in the cause. 
 
 90. AH depositions of witnesses before examiners shall be i*^^- 
 taken down in the first person, as spoken by the witness, and, 
 
 as nearly as practicable, in the words of the witness ; and such 
 depositions shall be taken down in the narrative form, and not 
 by entering both question and answer, except in cases where the 
 examiner shall, from the subject-matter or the manner of the 
 witness, determine that, in his opinion, it is necessary for the 
 correct understanding of the evidence, or of the disposition of 
 the witness, to take down both question and answer, and in such 
 case, the examiner shall enter on his minutes and sign his deter- 
 mination to that effect ;. [provided, that in litigated cases, the 4™™2t!f 
 testimony may, by consent of the parties, be taken by a steno- is^*- 
 grapher, question and answer, and afterwards written out in 
 full]. 
 
 91. When issue shall be joined on a plea, the defendant shall ises. 
 begin taking testimony, and the same shall then proceed in the 
 manner above directed; but the times for commencing and 
 taking the same by each party shall be one-third of the times 
 prescribed in the above rules. 
 
 92. The examiner shall number each page of the examination ises. 
 taken by him, and also every tenth line of the same, leaving 
 sufficient margin for the purpose ; and where more than one wit- 
 ness is examined, he shall annex a separate leaf to the exami- 
 nation, containing a list of the names of the witnesses, and a 
 reference to the pages on which their examination respectively 
 commences; and no costs shall be taxed for any examination 
 when this rule has not been strictly complied with. 
 
 93. It shall be the duty of the examiners of this court to sept- sth, 
 transmit, without any unnecessary delay, all depositions and 
 examinations of witnesses by them taken in any cause pending 
 
Ixxii ETJLBS OF THE 
 
 in this court, to the clerk of the court, to be filed ;(a) and all 
 depositions and examinations of witnesses taken in a cause by 
 an examiner shall be filed in the clerk's office, within ten days 
 after the examination of witnesses in the cause shall be closed ; 
 Amended ^^^^^ ^^ examination shall be filed after the expiration of the 
 said ten days, without an order of the Chancellor directing the 
 filing thereof.] 
 
 May 21st, 94. In order to compel the attendance of witnesses who 
 
 reside in the state, before the examiners of the court, for the pur- 
 pose of giving evidence in a cause depending in the court, a 
 subpoena may be issued by the clerk, upon request of any com- 
 plainant or defendant, or his solicitor, with a blank for the 
 names of the witnesses, to be filled up by the party procuring 
 the same, as occasion may require, commanding the attendance 
 of the witnesses before the examiner therein named, at the time 
 and place therein expressed ; and the names of any number of 
 witnesses may be inserted in the same subpoena. 
 
 1863. 95. No documentary evidence which is not made an exhibit 
 
 before the master, shall be read at the hearing of the cause. 
 
 Amended [except records or files of this court, which may be read upon 
 notice given before the testimony of the party giving the notice 
 is closed.] 
 
 XIX.— OF COMMISSIONS TO TAKE TESTIMONY. 
 Sept. 8tii, 96. When a cause is at issue, a commission for the examina- 
 
 1S17 
 
 tion of a witness out of this state may be applied for, either in 
 vacation or in term-time, upon affidavit stating that the witness 
 is material, and that the party applying cannot safely proceed to 
 a hearing of the cause without his testimony ; and upon giving 
 nS^wih, [fi^^] ^^7^' notice of the intended application, with the name or 
 names of the witnesses, their residence, and the name or names. 
 
 1879. 
 
 (a) Examiners are not authorized their fees. Application should be 
 to retain depositions in their posses- made to the court for relief in such 
 sion because of the non-payment of cases. Anon., 1877. 
 
COURT OP CHANCERY. Ixxiu 
 
 additions and residences of such person or persons as the party 
 applying intends to nominate as commissioner or commissioners. 
 
 97. If the party to whom notice is so given intends to join in May 2i8t, 
 the commission, and to name any other commissioner or com- 
 missioners, he shall give notice to the adverse party two days 
 before the intended application, of the name or names, additions 
 
 and residences of the person or persons whom he proposes for a 
 commissioner or commissioners; and the Chancellor shall ap- 
 point the commissioner or commissioners to execute the commis- 
 sion ; and the party who shall first give notice of his intention 
 to move for the commission shall sue out and forward the same ; 
 but if he shall unreasonably delay so to do, the other party may 
 forward, and cause it to be executed and returned ; [and every ^™^°^*^ 
 order for a commission shall fix a time for its return, and it shall 
 not be used if not returned within said time, unless the time be 
 extended by an order for that purpose,] 
 
 98. The name of every witness to be examined by virtue of ^^^'''' 
 such commission shall be inserted therein, and the interrogatories 
 
 to be administered to the witnesses annexed to the commission ; 
 and copies of the interrogatories shall be furnished to the oppo- 
 site party — that is to say, copies of all direct interrogatories shall 
 be furnished six days, and copies of the cross-interrogatories two 
 -days, before [the time of submitting the same to the Chancellor i^^g?"'^*^ 
 for his approval ; and notice of the time and place of such sub- 
 mission shall be served with the interrogatories, at which time 
 rand place the cross-interrogatories shall also be submitted.] 
 
 XX,— OF FEINTING PLEADINGS AND 
 EVIDENCE. 
 
 99. In all cases the pleadings and evidence in any cause to g^^'p/^*' 
 he used on the hearing shall be printed, unless the same shall be 
 less than [one hundred and twenty] folios; and the printing shall i^^^^^^ 
 foe paid for as directed in the 100th rule of this court ; and in ^*'^- 
 -cases where part of the evidence consists of exhibits, only those 
 
1866. 
 
 Ixxiv KTJLES OF THE 
 
 parts of the exhibits shall be printed upon which some question 
 exists, or shall be made by the parties in the cause. 
 
 July 1st, 100. Parties may agree to print the pleadings and evidence 
 
 in any cause for the final hearing, or if they do not agree, either 
 party may apply for an order that the same be printed at the 
 joint expense of both parties ; in both cases each party shall, in 
 the first instance, pay a share of the costs of printing, in propor- 
 tion to the length of his examinations, cross-examinations and 
 exhibits, and- such payment shall be allowed in the taxation or 
 costs; and either party may, at his own risk, cause the evidence, 
 to be printed, in which case the Chancellor shall make such 
 order for payment of printing as he shall deem right on the 
 determination of the suit ; and all evidence shall be printed on 
 good paper, with a large margin, on which every tenth line 
 shall be numbered. 
 
 XXI.— OF DECREES. 
 Sept. 8tii, 101, No final decree shall be enrolled by the clerk until the 
 
 1817 
 
 Amended expiration of ten days after pronouncing the same ; nor shall 
 1879. ' the enrollment be signed by the Chancellor within such time 
 without the special order of the court. 
 
 April 4tii, 102. Every party who may be affected by any order or 
 decree, shall be held to have waived all objection to the form 
 thereof, unless he shall file his objection thereto in ten days from 
 the time of filing such order or decree. The objection shall 
 specify the part or parts of the order or decree to which he 
 objects, and state what the form ought to be; provided, that 
 nothing herein contained shall be held to prevent or preclude 
 an application to the Chancellor to settle the form of the order 
 or decree at any time. 
 
 April ith, 103. Every party who may be affected by an award of costs 
 in any order or decree where the opinion is silent on the subject 
 of costs, shall be deemed to have waived all objections thereto, 
 unless he objects in writing in ten days from the filing of the 
 
COURT OF CHANCEKY. IxxV 
 
 order or decree ; provided, that nothing herein contained shall 
 be held to prevent or preclude an application to the Chancellor 
 at any time to change the order or decree as to the award of 
 costs. 
 
 XXII.— OF COSTS. 
 
 104. The clerk shall not tax costs for setting down any cause, May2istr 
 plea, demurrer or other matter for hearing or argument more 
 
 than twice, unless when set down by a special order of the court. 
 
 105. If a party gives notice of a motion, and does not move HjJ^i^''^ 
 accordingly, he shall, upon the filing of the notice, pay to the 
 
 other side costs to be taxed, unless the court, upon a considera- 
 tion of the circumstances of the case, shall direct otherwise. 
 
 106. When a party shall set down a cause for hearing or JH^J^^^'' 
 argument, and give notice thereof, and shall not bring on the 
 
 same agreeably to his notice, the opposite party, upon the pro- 
 duction of the notice, shall be entitled to costs to be taxed, for 
 attendance on the court upon such notice, unless the court shall 
 order off the hearing or argument without costs. 
 
 107. When the hearing or argument of a cause shall be ^^J^is'^ 
 ordered off upon the application of a party to whom notice shall 
 
 have been given, the party setting down the cause shall be 
 entitled to costs for attendance on the court upon such notice, to 
 be taxed, unless the court shall order off the hearing or argu- 
 ment without costs. 
 
 108. A party shall not be allowed costs against his adversary Jgfs i^*'''^ 
 for any amendment, or for any motion occasioned by his own 
 
 fault, mistake or laches, though he may, by his decree, recover 
 costs of suit ; and when the court makes no special order respect- 
 ing costs, a party making a successful motion, or successfully 
 opposing a motion, shall have costs against the other party. 
 
 109. A counsel fee of three dollars shall be allowed for April, i84i, 
 attending before a master or examiner making report or taking 
 
Ixxvi EUIiES OF THE 
 
 depositions, but no more, though the solicitor or counsel may 
 have attended more than once, unless where new notice was 
 necessary, and shall have been given ; and each party shall pay 
 to the examiner the costs of his own examinations and cross- 
 examinations. 
 
 Nov. 7th, 110. Where testimony is taken before an examiner by means 
 
 ^mended of a Stenographer, the fee taxed to the examiner therefor shall 
 mI"' mh ^^ divided between him and the stenographer as follows : One- 
 1893. third to the examiner and two-thirds to the stenographer ; and 
 
 where testimony shall have been taken before a Vice Chancellor, 
 or an advisory master, by means of a stenographer, no exam- 
 iner's fees shall be taxed in the bill of costs, 
 
 1853. 111. In taxing costs in mortgage eases, no costs shall be 
 
 allowed for any proceedings at law upon the bond or mortgage ; 
 but the clerk shall tax only such costs as have been incurred in 
 the proceedings in this court. 
 
 1853. 112. In taxation of costs for service of subpoena to answer, 
 
 the clerk shall allow for mileage only from and to the court- 
 house in the county where the service is made. 
 
 1853. 113. For the drawing and acknowledging of every deed 
 
 given by the guardian of an infant, idiot or lunatic, by virtue of 
 an order of the Chancellor, three dollars and fifty cents shall be 
 taxed in the bill of costs. 
 
 XXIII.— OF EXECUTION. 
 
 jiprii, 1841. 114, No execution shall issue for costs allowed by a decree 
 or order of the court, unless specially directed. 
 
 April, 1841. 115, Every execution issued shall be directed to a sheriff, 
 unless the Chancellor shall, for reasons presented to him, other- 
 wise order. 
 
 July 1st, 116. On any execution issued for deficiency against several 
 
 defendants, some liable after the others, the order in which they 
 
COUET OP CHANCEEY. Ixxvii 
 
 are liable as between themselves shall be endorsed ; and if the 
 deficiency be paid by a defendant not primarily liable, he shall 
 have the right to use the decree and execution to compel the 
 payment by parties liable before him. 
 
 117. Every sheriff shall make return of his execution, and pay MayMth, 
 to the clerk of this court any surplus in his hands within thirty 
 
 days after sale ; and no execution shall hereafter be directed to 
 any sheriff while he shall be in default in either of the above 
 respects ; and any sheriff who shall pay over to any defendant 
 named in an execution any money raised by him on the same, 
 unless so directed by the writ, or by an order of the court after- 
 wards made, shall have no allowance for the same. 
 
 118. No execution or other process shall issue on a final decree May 21st, 
 until the expiration of ten days from the filing of such decree, 
 unless the Chancellor shall otherwise direct. 
 
 XXIV.— OF INJUNCTIONS. 
 
 119. Where an injunction is prayed, and the facts which are ^^^• 
 relied upon for the injunction are not within the knowledge of 
 the complainant, such facts shall be verified by the oath or 
 afiirmation of some person who has knowledge of the facts, unless 
 under the peculiar circumstances of the case, the Chancellor 
 shall dispense with such additional verification.(a) 
 
 120. No injunction shall be allowed against an incorporated ^^f_ 
 company or against any individual, the effect of which is to stay 
 
 (a) The facts need not be proved the additional verification may "be 
 
 by the affidavit of the complainant. dispensed with, and the injunction 
 
 When the material facts are not may issue on the affidavit of the com- 
 
 within his knowledge, they should be plainant founded on belief alone, 
 
 verified by the oath or affirmation of Youngblood v. Sehamp, 2 McGart. 43. 
 
 some person who has a knowledge of If complainant is absent, or his affi- 
 
 the facts. In bills charging fraud davit for any reason cannot be pro- 
 
 and praying a discovery, or in any cured, it may be sworn to by his 
 
 case where, in the nature of things, attorney, or by any person acquainted 
 
 positive proof cannot be expected, with the facts. Ibid. 
 
'Ixxviii KTJLES OP THE 
 
 the progress of any public work authorized by a law of this state, 
 without an order first made to show cause, as provided in rule 
 122; and this rule shall not be dispensed with in any case, 
 except by the order of the Chancellor first obtained and filed, 
 unless such injunction be granted by the Chancellor himself. 
 
 Sept. stb, 121. In the absence of the Chancellor from the city of Tren- 
 
 1817 —•».»• v 
 
 ton, a petition addressed to him for an injunction may be prei- 
 sented to such master of this court, residing at the city of Tren- 
 ton, as the Chancellor shall for that purpose, by order, designate ; 
 and the master shall exercise the power of reporting upon the 
 propriety of issuing the injunction prayed for ; and in case the 
 master shall report that an injunction ought to issue, it shall be 
 issued by the clerk on filing with him the said petition and 
 report. Applications for the dissolution of such injunction is to 
 M^y 2oa^ be made, as in other cases, to the Chancellor, [or to a Vice Chan- 
 cellor, who shall, upon a regular motion-day, sit instead of the 
 Chancellor.] 
 
 1879. 
 
 1853. 122. Where an application is made for an injunction, and the 
 
 Chancellor directs an order to be entered requiring the defendant 
 to show cause, on a particular day, why the injunction should 
 not be granted, it shall be the duty of the complainant to serve 
 such order on the defendant, together with a copy of the bill and 
 affidavits annexed, at least six days previous to the day fixed for 
 the hearing, unless the order shall otherwise direct ; such order 
 shall specify the manner of service, and on which of the defend- 
 ants, if there shall be more than one ; and on the hearing of such 
 motion, the defendant may read his answer to the bill, and also 
 affidavits in reply to affidavits annexed to the bill ;(a) but no 
 other affidavits shall be read on either side, unless for special 
 reasons, the Chancellor, on application at the time appointed for 
 the hearing, shall, by order, otherwise direct ; and when further 
 
 (a) Affidavits of tlie complainant for an injunction and receiver. Brwn- 
 made after filing the bill are not dred v. Machine Co., 3 Or. Oh. 309. 
 competent to be read upon a motion 
 
COUKT OF CHANCEBY. Ixxix 
 
 aflB davits are taken, under an order for the purpose, they shall 
 be taken on two days' notice to the opposite party.(a)(6) 
 
 123. No motion to dissolve an injunction before answer shall Apru,i84i. 
 be entertained, [except on the ground of want of equity in the tmj^^^^ 
 bill,] unless the defendant shall show good cause why an answer 
 
 hath not been put in, and where no answer has been put in, and 
 the Chancellor shall allow the motion to be heard on affidavits 
 on the part of the defendant, the adverse party shall be permitted 
 to rebut them by counter-affidavits ; but such affidavits on both 
 «ides, shall be taken on two days' notice. 
 
 124. Where a motion is made to dissolve an injunction upon is^s. 
 the answer, the defendant shall rely on his answer and on the 
 affidavits annexed thereto, in reply to affidavits annexed to the 
 bill ; and no affidavits, except those annexed to the bill, shall be 
 read on such motion on behalf of the complainant,(c) except in 
 
 (a) In D. & JR. Canal Co. v. Mar. 
 ^ Del. Bay S. B. Co., 1 McOirt. 445, 
 leave was asked by complainants to 
 take affidavits to rebut certain allega- 
 tions in the answer. It was held to 
 be a fair and reasonable construction 
 of the 123d rule, that affidavits to 
 rebut an answer should be confined 
 -to rebutting the affidavits annexed to 
 the answer. Where the answer is by 
 a corporation, which is put in under 
 the corporate seal, the affidavits pro- 
 posed to be taken are fairly within 
 the scope of the rule. Such affidavits 
 must be taken upon notice, and appli- 
 -cation for an order to take the affida- 
 vits should be made before the hear- 
 ing of the order to show cause. 
 
 (6) See Sobemheimer v. Wheeler, 18 
 Stew. Eq. 619. 
 
 (c) The general rule is that where 
 an injunction has been obtained upon 
 -the complainant's affidavit alone, and 
 .a,, motion is made by the defendant, 
 upon filing his answer, to dissolve the 
 injunction, affidavits cannot be read 
 «ipon the argument of the motion 
 
 either in support of the bill or answer. 
 Merwin v. Smith, 1 Or. Ch. 192. 
 Cases of waste are an exception to 
 this rule Affidavits are admissible 
 in support of the bill to prove acts of 
 waste. Ibid. The allegations will 
 be taken as true where they are not 
 met and denied by the answer, and if 
 the answer does not fully meet the 
 cage disclosed by the bill, the injunc- 
 tion will be sustained. Ibid. The 
 affidavit of a third party annexed to 
 an answer cannot be read upon a 
 motion to dissolve the injunction 
 upon the answer, where the com- 
 plainant's affidavit alone is annexed 
 to the bill. Muloch v. Mulock, 11 C. 
 E. Or. 463. It is not necessary that 
 affidavits annexed to and filed with 
 the answer should be taken upon 
 notice, or that copies should be served 
 on the adverse party. Gariss v. 
 Gariss, 2 Beas. 322. The Chancellor 
 may on his own motion dissolve a 
 preliminary injunction at any time 
 without notice. Conover v. Buckman, 
 6 Stew. Eq. 303. 
 
Ixxx 
 
 RULES OF THE 
 
 reply to new matter set up in the answer, when the defendant 
 shall in any manner rely on such new matter for a dissolution 
 of the injunction. (a) 
 
 Sept. 8th, 
 1817. 
 
 Amended 
 May 20tli, 
 187a. 
 
 125. Whenever a cause shall beat issue in any court of com- 
 mon law, no injunction shall issue before answer filed, to stay 
 the trial of the cause, unless applied for and actually taken out 
 twenty days previous to the sitting of the court, in the county in 
 which the trial is to be had, except some special cause shall be 
 shown by affidavit to the Chancellor, [or to a Vice Chancellor,], 
 or to the master authorized to report upon the propriety of 
 issuing the injunction prayed for, and it shall be made toappear,^ 
 as aforesaid, that the injunction is applied for within a reason- 
 able time after the complainant became apprised of the circum- 
 stances on which his application is founded ; and whenever an 
 injunction shall be granted to stay proceedings at law within 
 twenty days previous to the sitting of the court as aforesaid, it 
 shall be upon condition that the party pay the costs at law of the 
 term at which the cause was noticed, which have accrued up to 
 the time of the service of the injunction. 
 
 :863. 
 
 Amended 
 May 12tli, 
 1893. 
 
 126. No injunction shall be allowed to stay the proceedings 
 in an ejectment suit, after issue joined thereon, unless the com- 
 plainant shall give a bond, with sufficient sureties, in the penalty 
 of at least double the rent of the premises for two years, if the 
 premises are leased at a fixed rent, or if not leased, then in such 
 sum as the Chancellor [Vice Chancellor] or master shall direct,, 
 conditioned for the payment to the party against whom such in- 
 junction is granted, of all such damages and costs as may be 
 awarded to him, either at law or in this court, in case of a deci- 
 sion against the party obtaining such injunction. 
 
 1853. 
 
 Amended 
 May 20tli, 
 1879. 
 
 127. Where an injunction is granted ex parte, the Chancellor 
 [Vice Chancellor] or master may, at his discretion, take from 
 
 (a) Where new matter is contained 
 in the answer, not responsive to the 
 bill, which is relied upon as a ground 
 for setting aside the injunction, the 
 
 complainant may read affidavits io 
 contradiction of such new matter. 
 Menrin v. Smith, mpra. 
 
COURT OF CHANCERY. Ixxxi 
 
 the complainant a bond(a) to the party enjoined, in such sum as 
 may be deemed sufficient, either with or without sureties, condi- 
 tioned to pay to the party enjoined such damages as he may 
 sustain by reason of the injunction, if the court [shall eventually Amended 
 decide that the complainant was not equitably entitled to such i87«. 
 injunction,] the damages to be ascertained in such manner as 
 the Chancellor shall direct. 
 
 128. No injunction shall issue after answer filed, without Sept. sa, 
 giving five days' notice of the application therefor, unless it 
 
 shall be made to appear to the Chancellor, Vice Chancellor or 
 master that the circumstances of the case are such as to make it 
 proper to dispense with notice. (6) 
 
 129. In all cases where an application is made for an injunc- Aprii.isii. 
 tion to the Chancellor [or to a Vice Chancellor] or master, and Amended 
 the same is denied, an endorsement of the denial shall be made 
 
 on the bill or petition, and the said bill or petition shall be put 
 on the files of the court. 
 
 130. The writ of injunction shall be issued within five days f^^-^^'^- 
 from the date of the order or fiat therefor and served within 
 twenty days after the issuing thereof; and within ten days after Amended 
 service a return of such service shall be made to the court, and ism. 
 
 on failure thereof the defendant shall be entitled to a dissolu- 
 tion of the injunction, unless the Chancellor shall by order give 
 further time for the service and return of the writ.(c) 
 
 (a) The bond provided for by the the court or the defendant in the ap- 
 
 above rule is intended as security for plication. Ibid. ; and see Dodd v. 
 
 damages in case the complainant was Flavdl, 2 O. E. Gr. 255 ; but see 
 
 not equitably entitled to the injunc- Brown el al. v. Boston ei al , S Stew. 
 
 tion when applied for. Smith v. Eg. 725. 
 
 Kuhl, 11 C. E. Or. 98. To render (6) See Buckley v. Corse, Sax. 504. 
 the complainant liable for damages (c) A subpoena must be taken out 
 on his bond under this rule, the ap- with an injunction, and made return- 
 plication upon which an ex parte in- able within the time prescribed by 
 junction has been granted must have the rule for the return of service of 
 been disingenuous, mala fide, or made the injunction. Lee v. Cargill, 2 
 without due regard to the rights of Stock. 331. 
 
Ixxxii ETTLE8 OF THE 
 
 June 19th, 131. Inj unctious shall issue upon the determination of a Vice 
 ^™ended Chancellor advising the same. 
 
 1893. 
 
 XXV.— JOINDER OF COMPLAINANTS. 
 
 May 8th, 132. Any number of persons severally owning or possessing 
 
 distinct tenements, injuriously affected by a common nuisance or 
 other common grievance, may join in a bill for injunction or 
 relief; provided, that it shall be in the discretion of the Chan- 
 cellor to strike out of the bill any of such complainants, when, 
 in his opinion, the justice of the case or convenience of proceed- 
 ing shall require it. 
 
 XXVI.— OF ATTACHMENT FOE CONTEMPT. 
 
 Sept. 8th, 133. AH attachments for contempt shall have at least fifteen 
 
 days exclusive between the teste and return, unless the Chancel- 
 lor, upon motion or petition, shall order otherwise. And all 
 persons in contempt in the same cause and in the same county 
 shall be included in one writ of attachment. 
 
 Sept. 8th, 134. When an attachment for a contempt shall be served, the 
 
 defendant shall be retained in custody thereon, to answer the 
 exigency of the writ, until the return-day thereof, unless he shall, 
 with one sufficient surety at least, give bond in the penal sum of 
 five hundred dollars, unless the Chancellor shall require a bond 
 in some other sum to be named in the order, to the complain- 
 ant, conditioned for his appearance on the return-day of the 
 attachment, according to the command of such writ, and that he 
 will not depart thence without leave of the court. 
 
 May 21st, 135. When a defendant in attachment shall have given boud 
 
 for his appearance, he shall enter his appearance with the clerk 
 on the return-day of the writ, and give notice thereof to the 
 adverse party. 
 
 May 21st, 136. The complainant shall, within eight days after such 
 
 notice, enter a rule of course for the defendant's examination upon 
 
 1822. 
 
COUKT OF CHANCERY. Ixxxiii 
 
 interrogatories touching his contempt, before one of the masters 
 of this court, and serve a copy thereof, with a copy of the inter- 
 rogatories, on the defendant in attachment, or on his solicitor ; 
 and in case of his neglect so to do, the court may order the party 
 to be discharged from the attachment, with costs. 
 
 137. When the party attached shall attend before the master May2iBt, 
 upon the interrogatories, if any questions arise in respect to the 
 interrogatories, they shall be settled by the master, and the party 
 attached shall, within four days after they are submitted to or 
 settled as aforesaid, put in his examination in writing ; and the 
 master shall, if required by the adverse party so to do, report, 
 with the interrogatories and examination, whether, in his opinion, 
 the examination is full and satisfactory or not. 
 
 XXVII.— OF AFFIDAVITS. 
 
 138. A copy of every affidavit intended to be used on the Sept. sth, 
 argument of any special motion, or of any other special matter 
 before the court, of which notice shall be necessary, shall be 
 served(a) on the adverse party at least [four] days before the day 
 
 of argument, or shall be taken on [two] days' notice at least of the Amended 
 time and place of taking the same ; and all affidavits made use 
 of in court shall be first filed with the clerk ; and no writ, order 
 or other proceeding, grounded upon an affidavit or affidavits, 
 shall be issued, filed or entered by the clerk, unless the affidavit 
 or affidavits upon which it shall be grounded shall have been 
 previously filed. 
 
 139. Affidavits and petitions duly sworn to, on which orders im. 
 to show cause may be granted, if served as affidavits, may be 
 used on the hearing of the order to show cause.(6) 
 
 (a) On the return of an order to service of the order and the return- 
 show cause on an original substantive day not admitting of compliance with 
 application by petition, the respond- the rule. Mailer of L. B. & S. S. B. 
 ent was, notwithstanding the 137th jB. Co., 9 C. E. Or. 403. 
 rule of this -court, permitted to read (6) See P. & B. B. B. Co. v. LitUe, 
 affidavits which had not been served; 14 Slew. Eq. 525. 
 the brevity of the time between the 
 
Ixxxiv EULE8 OF THE 
 
 May 20th, 140, Affidavits, upon which are founded applications to 
 extend the time for taking testimony, or for filing pleadings or 
 other papers, shall be served for three days ; but counter-affi- 
 davits may be read without notice. 
 
 XXVIII.— OF NOTICES OF MOTIONS. 
 
 1^6. 141. Notices of motions to dissolve injunctions shall be served 
 
 eight days ; of motions to extend the time for filing pleadings 
 and other pJipers, three days ; and of all other special motions, 
 five days ; and such notices of said motions, respectively, shall 
 be sufficient, (a) 
 
 XXIX.— NOTICES ON APPLICATION TO BE 
 MADE A PARTY. 
 
 fg7o'^^^'' 142. If the party shall be dead on whom the petition or notice 
 
 of application is required to be served, by the forty-first section 
 of "An act relating to the Court of Chancery," {Bev., p. 110,)(6) 
 juch notice or petition may be served either on the executor or 
 administrator of such deceased party, or on the solicitor who 
 appeared for him in his lifetime ; or in case there be no such 
 executor, administrator or solicitor, it may be served by putting 
 up the same in the office of the clerk of this court, and such ser- 
 vice shall be lawful service. 
 
 (a) A notice is good, though dated money in court {Black v. Black, 5 
 
 on Sunday. Taylor v. Thomas, 1 Or. Stew. Eg. 74). 
 
 Ch. 106. A motion to appoint a (b) This section refers to persons 
 
 receiver is a special motion, and who, after the commencement of » 
 
 notice must be given. Tibbals v. Sar- suit in chancery, acquire such an in- 
 
 geant, 1 McOart. 449. Notice must terest in the subject-matter thereof 
 
 be given of a motion to open and cor- that they should have been made 
 
 rect a decree (Litham v. Boyle, 2 C. parties, if such interest had been 
 
 E. Gr. 40) ; of a motion to amend a acquired before the said suit was 
 
 sworn answer {Huffman v. Hummer, brought. The court will consider 
 
 2 G. E Qr. 269) ; of a motion to dis- only the grounds shown in the peti- 
 
 miss an appeal because an appeal tion on the application. Davis v. 
 
 does not lie {Nat. Bank v. Sprague, Sullivav, 6 Stew. Eg. 569. See Lever- 
 
 6 C. E. Gr. 458) ; of a motion for idge v. Marsh, 3 Stew. Eg. 60. 
 
COURT OP CHANCERY. IxXXV 
 
 XXX.— OF REHEARING. 
 
 143. Every petition for a rehearing shall set out concisely Sept. sth, 
 the special matter or cause on which such rehearing is applied 
 
 for, and shall be signed by two counsel, except in cases submitted 
 without argument, when it shall be sufiScient if signed by one 
 counsel ; and if a rehearing is ordered, the party who com- 
 plains of the decree or order, and applies to have it corrected, 
 shall be entitled to open and close the argument. 
 
 144. A copy of every petition for a rehearing shall be served ^22 ^'*'' 
 on the opposite party, with a notice of presenting the same. 
 
 145. If a petition for rehearing shall be presented to the May 21st 
 Chancellor within ten days after pronouncing any final decree, 
 and a caveat against enrolling and signing the same shall be filed 
 with the clerk of the court, such final decree shall not be enrolled 
 and signed, or any process issued thereon, until the said applica- 
 tion shall be finally disposed of. 
 
 1822. 
 
 146. In all cases submitted by the consent of parties without isss. 
 argument, a rehearing shall be granted of course, if either party 
 
 is dissatisfied with the decree or order made in such case, and 
 shall apply therefor within ten days after such decree or order 
 shall be made. 
 
 147. No order for a rehearing shall stay proceedings on any Sept. sth, 
 interlocutory decree or order, unless by the special direction of 
 
 the court. 
 
 148. A rehearing of decrees signed upon the advice of a juneigtii, 
 Vice Chancellor, may be had in the same manner and upon the 
 
 same terms as in cases heard by the Chancellor ; but no rehear- 
 ing shall be ordered as to conclusions of fact, unless the Vice 
 Chancellor who advised the decrees (unless otherwise ordered) 
 «hall certify that, in his opinion, the questions involved, or 
 «ome of them, should be again heard upon the evidence.(a) 
 
 (a) Busling v. Bray, 11 Stew. Eq. 398. 
 
Ixxxvi RULES OF THE 
 
 XXXI.— OF APPEALS. 
 
 May 21st, 149. An appeal from an interlocutory decree or order shall 
 
 not stay proceedings in the cause without an order of this courts 
 or of the Court of Appeals, for that purpose first had ; which 
 order shall be granted upon such terms as the court making it 
 may impose. 
 
 Sept. 8th, J 50. If the party appealing from a final decree shall, within 
 ten days after the filing of such final decree, file his appeal with 
 the clerk of this court, process shall not issue on said decree 
 without the order of this court or of the Court of Appeals.(a) (6) 
 
 May 2ist, J 5^^ The appeal to be filed shall state shortly the parts of thfr 
 
 order or decree complained of as erroneous, and shall be signed 
 by counsel, who shall state that he conceives there is good cause 
 for the appeal ; and a copy thereof shall be served on the 
 solicitor of the adverse party, if he has prosecuted or defended 
 by a solicitor. 
 
 Sept. 8tii, 1 52. The party appealing from a final decree shall present 
 
 his petition of appeal to the Court of Appeals, at the next term 
 after pronouncing the said final decree, and on the first or second 
 day thereof; and, in default of so doing, such appeal shall be 
 deemed to have been waived, and the cause may proceed as if 
 no appeal had been filed. 
 
 1817, 
 
 (a) If the party appealing from the to the discretion of the court, and 
 
 final decree of this court file his will be granted only upon good cause 
 
 appeal within ten days after such shown. Schenck v. Oonover, 2 Beas. 31. 
 
 decree with the clerk of this court, it (6) See Osborne v. Williams, 13 Stew. 
 
 will prevent issuing process on such Eq. 490. 
 
 decree without the order of this court It is the notice of appeal filed in 
 
 or of the Court of Appeals for that the Court of Chancery that is the ap- 
 
 purpose If the appeal be not filed pellate act giving the Court of Appeals- 
 
 within the time above limited, the cognizance of the case. Barton v.. 
 
 motion to stay execution is addressed Long, 1 8 Stew. Eg. 160. 
 
COURT OF CHANCERY. Ixxxvii 
 
 XXXII.— OF SURPLUS MONEYS IN FORE- 
 CLOSURE SUITS. 
 
 163. Petitions for surplus moneys in foreclosure suits may June 19th, 
 be presented at any time after the sale, and before the moneys 
 are paid into court ; and if any order be made for the payment 
 of such surplus before the delivery of the deed, the sheriff or 
 other officer making the sale shall accept the receipt or order of 
 the person to whom such surplus, or any part of it, may be 
 ordered to be paid, as payment to that extent of the purchase- 
 money, or may pay the same to such person. 
 
 1 54, Any master, to whom an application for surplus moneys June i9th, 
 may be referred, shall issue summonses to all defendants whose 
 claims are not directed, in the execution, to be paid out of the 
 proceeds of salej and he shall not proceed, unless such sum- 
 monses shall have been served five days, as directed in the 20th 
 rule, or the parties shall appear before him. 
 
 XXXIII.— APPLICATIONS FOR MONEYS IN COURT 
 FOR PAYMENT OF DEBTS OF DECEDENTS. 
 
 155. Applications by executors or administrators for the sur- ApriUst, 
 
 1871. 
 
 plus moneys on foreclosure sales, or for the proceeds of lands 
 sold in suits for partition, to be applied by them to the payment 
 of the debts of a decedent represented by them, shall be made 
 by petition ; the petition shall state the time of the death of 
 the decedent, the date of the sheriff's or master's deed upon 
 which such moneys were received, whether any of the heirs 
 or devisees have aliened or encumbered their estate in the lands 
 sold, in whole or in part, or their interest in the proceeds of the 
 sale thereof, or any part of the same, and when, and what part 
 and to whom; and also whether any married woman has an 
 inchoate right of dower in said suplus moneys, or any part 
 thereof. There shall be annexed to the petition a true account 
 of the personal estate of the decedent that has come to the 
 hands or knowledge of the petitioner, stating the amount of the 
 
 1870. 
 
Ixxxviii RULES OF THE 
 
 same which has been collected or realized, and what part, if any, 
 has not been collected or realized, and specifying what parts are 
 deemed good, doubtful or desperate ; such account shall also 
 state how the amount realized has been disposed of and how 
 much remains on hand ; also the debts due or claimed to be due 
 from the decedent, and to whom owing, and what part of such 
 debts are disputed by the petitioner; and such petition and 
 account shall be verified by oath. 
 
 April 1st, 156. Such petition shall be filed, and notice of the application 
 
 shall be given for ten days before the same is made, to all per- 
 sons entitled to such moneys, or any part thereof, if not required 
 for the payment of debts ; such notice, besides the time and place 
 of application, shall state the amount of the personal estate that 
 has come to the hands of the petitioner, the amount paid out for 
 debts and expenses, and the amount of debts paid and claimed 
 to be due and unpaid ; such notice may be served upon persons 
 who reside out of the state, and have not appeared in the suit, 
 by setting up a copy in the office of the clerk of this court, and 
 also by mailing a copy to the post-office address of such person, 
 if the same be known. 
 
 April 1st, 157. Unless the consent of all so interested in such moneys 
 
 1870 ' 
 
 shall be given to the payment of the same, or a sufficient part 
 thereof, to the petitioner, it shall be referred to a special master 
 to ascertain and report upon the truth of the matters in such 
 petition and account ; and also how much will be required for 
 the payment of the debts of decedent above the amount realized 
 and likely to be realized from the personal estate; and also 
 whether any part of the lands sold, or of the proceeds of the sale 
 thereof, has been aliened by the heirs or devisees, so as by law to 
 be free from the lien for the debts of the decedent, and what 
 part, and when and to whom aliened; and the summons to 
 attend such hearing before the master shall not be required to 
 be served on any person, except such as may have entered an 
 appearance on the notice of the application. 
 
 April let, 158, No order shall be made for the payment of such moneys 
 
 unless it appear that such executor or administrator shall have 
 
 1870, 
 
COURT OF CHANCERY. Ixxxix 
 
 administered, as nearly as practicable, all the moneys received 
 by him, and used due diligence to collect such as have not come 
 to his hands. 
 
 159. No moneys shall be paid on such application until the April ist, 
 petitioner shall have filed in this court his bond to the Ordinary, "™' 
 
 in double the sum directed to be paid, with two sufficient sure- 
 ties residents of this state, with condition similar to that pre- 
 scribed by law for bonds upon orders of the Orphans' Court for 
 the sale of lands for the payment of debts.(o) 
 
 XXXIV.— OF SUITS IN WHICH THE CHANCEL- 
 LOR MAY BE INTERESTED. 
 
 160. In any suit commenced in which the Chancellor may be April ist, 
 
 1870 
 
 a party, or may be interested, an order shall be made requesting 
 a Vice Chancellor to hear the same and all proceedings therein, 
 and to advise the Chancellor what orders and decree to make 
 therein ; and in the process, pleadings, orders and other proceed- 
 ing in suits to which he may be a party, the Chancellor, when 
 referred to as such, shall be designated by his name of office only. 
 
 XXXV.— OF INTEREST ON MONEYS IN COURT. 
 
 161 . All sums exceeding two hundred dollars, which shall be oct. isth, 
 deposited and remain in the court for ten days, and all sums not 
 exceeding two hundred dollars, which shall be deposited and 
 remain in court for thirty days, shall be allowed interest at the 
 
 rate paid by the depository of the funds of the court at the time, 
 for the full period for which such funds shall remain in court. 
 
 XXXVl.— OF APPOINTMENT OF TRUSTEES. 
 
 162. Applications to appoint or substitute trustees may be isee. 
 made by bill or petition, and when made by petition shall set 
 forth the trust sufficiently to show who are interested in the same 
 
 (a) Bev., "Orphans' Court," ? 75. 
 
XC BULE8 OF THE 
 
 as cestuis que trust, vested or contingent, and as trustees ; and 
 notice shall be given to each person so interested of the time,, 
 place and object of such application, by serving the same in per- 
 son or at his residence ten days before such application ; and if 
 the party reside out of the state, by mailing the same, prepaid, 
 directed to such party at his post-office address, so that the same 
 would reach him, by the usual course of the mail, twenty days 
 before such time; and in case such party shall be an infant, 
 such notice shall be served on his or her parent or guardian, 
 or in such other manner as the Chancellor, on application, 
 may direct. 
 
 XXXVII.— OF SUITS FOR DIVORCE. 
 
 April 1st, 163. In suits for divorce on account of adultery, the bill or 
 
 petition shall state the name of the person with whom the adul- 
 tery was committed, if known ; and if not known, shall set; 
 forth the description of the person, or such designation of the 
 time, place and circumstances under which the act or series of 
 acts were committed, as will enable the defendant and the court 
 to distinguish and individuate the particular offence or offences 
 intended to be charged ; and no reference shall be ordered in 
 a suit in which the offence is not so designated ; and if the 
 name of the person is stated to be unknown, it must be shown 
 on the reference that it was not known at the commencement of 
 the suit, (a) 
 
 Apriiist, 164. On a reference in a suit for divorce, the master shall 
 
 1870 
 
 take down and report the testimony in such manner that it 
 may appear whether the facts sworn to are within the personal 
 knowledge of the witness, or are from hearsay or reputation ; 
 
 (a) A time certain as to when an such case an allegation that the 
 
 alleged act of adultery was com- oiFense was committed on different 
 
 mitted need not be stated in a bill days in specified months of specified 
 
 for divorce when the name of the years will be sufficient. Black v. 
 
 person with whom, and the place at Black, 11 C. E. 6r. 431 ; S. C, ore- 
 
 which the offense is alleged to have appeal, 12 C. E. Gr. 664. 
 been committed are set forth. In 
 
COUKT OF CHANCERY. XCl 
 
 and the master shall not report any evidence from hearsay or 
 reputation which shall appear to him to be illegal, unless the 
 complainant or his counsel insists that the same is legal ; and 
 such master shall report distinctly what facts alleged as the 
 ground for divorce are proved to his satisfaction, and also what 
 facts necessary to give jurisdiction are so proved ; and in suits 
 based on desertion, shall examine into and report the facts and 
 circumstances under which the desertion took place, and the 
 reasons which caused or provoked it, if the same can be ascer- 
 tained. 
 
 165. No decree in an ex parte divorce case shall be signed ^g^g-^^*'' 
 until after the master's report shall have been on file thirty days. 
 
 XXXVIII.— OF PARTITION. 
 
 166. Where a bill is filed for partition, and a decree pro oon- isss. 
 fesso is taken, there shall be a reference to a special master to 
 report as to the rights of the respective parties in the premises, 
 and to ascertain and report whether, in his opinion, a partition 
 of the land or real estate can be made without great prejudice to 
 the owners of the same; which report shall be made to the 
 Chancellor, at the time and place named in the order of refer- 
 ence, at which time and place any party interested may appear 
 and make objections to the report ; but no exceptions in writing 
 shall be filed to the same. If the master report that a partition 
 cannot be made without great prejudice to the owners of the 
 property, and the report is confirmed, then an order shall be 
 made directing a sale by a master ; if the master report that, in 
 his opinion, a partition can be made without prejudice, &c., then 
 the Chancellor shall appoint three persons as commissioners to 
 make partition according to law ; and all further proceedings, 
 as to such sale or partition, shall be according to the practice of 
 the court in like cases heretofore. In cases of sale, the master ^mended 
 shall be allowed the same fees [that by law are allowed to a i857. 
 fiherifi" on sale by execution.] 
 
XCU EULES OF THE 
 
 1866. 167. When a married woman, one of the parties in partition, 
 
 owns an undivided share in her own right, and the title has be- 
 come vested in her, or the coverture commenced after July 
 fourth, eighteen hundred and fifty-two, the title of such share shall 
 be stated in the report of the master ascertaining the rights of the 
 parties and in the decree thereon, to be in such married woman 
 and not in her and her husband ; and if in such case a sale be 
 made, her share of the proceeds of sale shall be ordered to be 
 paid to her ; and in all other cases the title shall be stated to be 
 in her and her husband in her right, and their share of the pro- 
 ceeds be ordered to be paid' to both. 
 
 May 20th, igg. In partition suits, where any person is entitled to an 
 
 estate in dower or by the curtesy, in the whole or any part or 
 share of the premises, and the master shall report that said prem- 
 ises should be sold free and discharged of such estate, no decree 
 for the sale of said premises free and discharged from such dower 
 or curtesy shall be made until notice shall have been given to the 
 party entitled to the said estate, of the intended application for 
 the sale of said lands free and discharged as aforesaid. Such 
 notice shall be served personally on said party at least twenty 
 days prior to such application, or be published in one of the 
 newspapers printed and published in the county where such lands 
 are situate, for at least four weeks next preceding the time of 
 making such application ; if published, a copy thereof shall be 
 mailed prepaid to such party, if his or her residence can be 
 ascertained. 
 
 May 20th, 169. The party entitled to such estate may waive the notice 
 
 herein required, by filing his or her consent, or the consent of his 
 or her solicitor, to such sale, provided such signature of the party 
 be verified by affidavit. 
 
 1*88. 1 70. When an estate in dower or by curtesy in any lands sold 
 
 by order of the court in proceedings for partition shall, by order 
 of the court, be sold with such lands, the sum to be paid or in- 
 vested in lieu of such dower or curtesy shall be ascertained in the 
 same manner as in like cases on sale of infants' lands. 
 
COURT OF CHANCERY. xciii 
 
 171. In cases of partition, the master who may make the re- ises. 
 port whether partition can be made without great prejudice, 
 shall in no case be appointed to make sale of the premises. 
 
 XXXIX.— OF IDIOTS, LUNATICS AND 
 HABITUAL DRUNKARDS. 
 
 172. On all applications to obtain a commission of idiocy, Sept. sth 
 lunacy or habitual drunkenness, the petition shall be accompa- 
 nied by the affidavits of two or more persons, evincing the lunacy, 
 idiocy or habitual drunkenness of the party against whom the 
 commission is prayed, and the person's incapacity to manage his 
 
 or her own affairs ; and the commissioners and jury shall have 
 a right to examine the idiot, lunatic or habitual drunkard in 
 person before them, without a special order for that purpose. 
 
 173. Ten days' notice of the taking of the inquisition shall be 'May 20th, 
 given to the person who is the subject thereof; the Chancellor, 
 however, may, for good reasons, allow shorter notice, or dispense 
 with notice altogether. Proof of the giving of the notice shall 
 be filed with the inquisition, and in case less than ten days' 
 notice has been given, or no notice at all, the reasons therefor 
 shall appear by affidavit, to be filed with the inquisition. 
 
 1879. 
 
 174. In all cases where a commission of idiocy, lunacy or sept 
 habitual drunkenness shall issue, it shall be executed, and the 
 inquisition returned to the Chancellor, within two months after 
 making the order for issuing of the commission, or the commis- 
 sion shall be considered as superseded, and no proceedings shall 
 take place thereon without the farther order of the court ; and 
 no decree shall be entered upon any inquisition, and signed, 
 until the expiration of ten days after the inquisition shall be 
 returned into the office. 
 
 8th, 
 1817. 
 
3C1V EULES OF THE 
 
 XL.— SALE OF LAND OF IDIOTS, LUNATICS, 
 AND HABITUAL DRUNKARDS. 
 
 May 20th, 175. The general guardian of an idiot, lunatic or habitual 
 
 drunkard may present a petition to the Chancellor, stating the 
 residence of the idiot, lunatic or drunkard, the situation and 
 value of the real estate proposed to be sold or disposed of, with 
 a description thereof, and that the interest of such idiot, lunatic 
 or drunkard requires that said lands should be sold or disposed 
 of, and stating also the particular reasons which render such sale 
 necessary or proper. 
 
 May 20th, 176. The security required on a sale of the real estate of an 
 
 idiot, lunatic or habitual drunkard, shall be a bond of the gen- 
 eral guardian to the Ordinary of the State of New Jersey, and 
 his successors, with two sufficient sureties, in a penalty of double 
 the value of the premises, each of which sureties shall be worth 
 . the penalty of the bond over and above all debts ; or a similar 
 bond of the guardian only, secured by a mortgage on unencum- 
 bered real estate of the value of the penalty of such bond, not 
 estimating the improvements thereon. 
 
 May 20th, 177. Upon the petition being presented to the court, if it 
 satisfactorily appear that there is reasonable ground for the appli- 
 cation, there shall be a reference to a special master to ascertain 
 and report what is the actual value of the real estate proposed to 
 be sold or disposed of, and of each separate lot or parcel thereof; 
 the sufficiency of the sureties offered by the guardian, and 
 whether each is worth double the value of the real estate pro- 
 posed to be sold ; or whether the land proposed to be mortgaged, 
 by way of security, is unencumbered and of the requisite value, 
 according to the preceding rule ; and what should be the penalty 
 of the guardian's bond in conformity to that rule ; and also to 
 ascertain the truth of the facts stated in the petition ; and whether 
 the interest of the idiot, lunatic or drunkard (as the case may 
 be) requires that said real estate, or any part thereof, should be 
 sold or disposed of, and the particular reasons upon which his 
 
COTJBT OF CHANCERY. XCV 
 
 opinion is founded, and the terms and conditions upon which it 
 flhould be sold or disposed of, and fixing a price below which it 
 should not be sold. 
 
 178. The guardian shall, at or before the time of making his May 20th, 
 report of sale of said real estate, file with the clerk of this court ^*™' 
 the bond required by the 176th rule, approved as to its form and 
 manner of execution by the master, signified by his certificate 
 endorsed thereon. 
 
 XLI.— OF GUARDIANS' SALES OF INFANTS' 
 ESTATES. 
 
 179. The general guardian of the infant, if he have any, and isss. 
 if there be none, some relative or friend, may present a petition 
 
 to the Chancellor, stating the age and residence of the infant, 
 the situation and value of the real estate proposed to be sold, 
 with a description of the same, and the particular reasons which 
 render a sale of the premises necessary or proper, and praying 
 that a guardian may be appointed to sell the same ; the petition 
 shall also state the name and residence of the person proposed 
 as such guardian, the relationship, if any, which he bears to the 
 infant, and the security proposed to be given. 
 
 1 80. The security required on the sale of the real estate of an 1853, 
 infant shall be a bond of the guardian, with two sufficient sure- 
 ties, in a penalty of double the value of the interest of such 
 infant in the premises, each of which sureties shall be worth the 
 penalty of the bond over and above all debts ; or a similar bond 
 
 of the guardian only, secured by a mortgage on unencumbered 
 real estate of the value of the penalty of such bond, not esti- 
 mating the improvements thereon. 
 
 181. Upon the petition being presented to the court, if it isss. 
 satisfactorily appear that there is a reasonable ground for the 
 a,pplication, there shall be a reference to a special master to ascer- 
 tain rthe truth of the facts stated in the petition ; and whether Amended 
 
 »..„ . .i.'i iji May 20th, 
 
 the interest of the infant requires that said real estate, or any 1879. 
 
XCVl KULE8 OF THE 
 
 part thereof, should be sold, and what part, and the particular 
 reasons upon which his opinion is founded ; and to ascertain also 
 the value of the property proposed to be sold, and of each 
 separate lot or parcel thereof, and the terms and conditions upon 
 which it should be sold, and fixing a price below which it should 
 not be sold ; and whether, in his opinion, said premises will 
 increase in value during the minority of said infant, and to what 
 extent. And if he shall ascertain that the interest of the infant 
 requires that the said real estate, or any part thereof, be sold, 
 then to ascertain and report] whether the person proposed as a 
 guardian is a suitable and proper person for that purpose; 
 what is the age of the infant, the actual value of the infant's 
 interest in the real estate proposed to be sold, the sufficiency of 
 the sureties offered by the guardian, and whether each is worth 
 double the value of the infant's interest in the real estate pro- 
 posed to be sold, over and above all debts ; or whether the land 
 proposed to be mortgaged, by way of security, is unencumbered, 
 and of the requisite value, according to the preceding rule ; and 
 what should be the penalty of the guardian's bond, in conform- 
 ity to that rule, to be given to each infant. And if the master 
 is not satisfied with the person nominated as guardian, or with 
 the security proposed, he may name a suitable person as guardian, 
 and state what further or other security should be given. 
 
 1853. 182. On the coming in of the report of the master, applica- 
 
 tion may be made for an order appointing a guardian for the 
 purposes of the application, on his executing and filing with the 
 clerk the requisite security, approved as to its form and manner 
 of execution by the master, signified by his certificate endorsed 
 
 Amended thercon ; [and also directing a sale of the property.] 
 
 1879. 
 
 1853. 183. If any person entitled to dower in the premises, or to 
 
 any estate for life or years therein, devised to a widow in lieu 
 of dower, is willing to join in the sale and release of such estate, 
 upon receiving, in lieu thereof, such sum in gross as shall be 
 approved by the Chancellor, or upon the investment of such 
 sum as the Chancellor may deem reasonable, in such manner 
 that the interest shall be paid to the person entitled to such estate 
 
COUBT OF CHANCERY. XCvii 
 
 for the duration thereof; or if any person entitled to curtesy in 
 the premises shall be willing to join in the sale, upon receiving 
 such sum in gross as shall be approved by the Chancellor ; and 
 such person shall, before the sale, sign and deliver to the guar- 
 dian a consent in writing, to join in the sale and release of such 
 estate on ,the terms above specified, or either of them, then the 
 guardian shall sell the lands free from such estate. 
 
 1 84. And if any person entitled to such dower or estate shall isss. 
 have agreed to join in the sale and accept such sum in gross, or 
 investment in lieu thereof, then, upon such sale, it shall be 
 referred to a special master to ascertain and report the clear yearly 
 income, above insurance, repairs and taxes, that such tenant for 
 life could realize from the whole premises during his or her life, 
 
 if owner of the whole for life ; and in such calculation, allow- 
 ance shall be made for all repairs necessary to keep the premises 
 in as good condition as at the sale, including the renewal of any 
 part of the buildings thereon that may, by ordinary wear and 
 tear, or from decay, require renewal ; and from said income to 
 ascertain and report the gross value of such dower or other 
 estate, on the principle of life annuities, to be calculated on the 
 basis of the table annexed to the rules of this court •,{a) and also 
 further to ascertain the gross value of such dower or estate from 
 the net proceeds of the sale above costs and expenses, to be cal- 
 culated on the basis of said table ; and also, in case such consent 
 is to accept a gross sum, to inquire into and report the condition 
 as to health of such dowress or life tenant, and whether he or 
 she has an average expectancy of life ; and if not, what deduc- 
 tion should be made from such gross sum on that account. 
 
 185. The gross sum allowed in lieu of dower or other estate isss. 
 so sold, shall not be greater than that calculated on the net pro- 
 ceeds of the sale ; and when the clear yearly income shall be 
 
 less than the interest on the net proceeds of sale at [five] per cent.. Amended 
 the gross sum to be allowed shall be calculated, by adding to isQs. 
 the amount calculated from the clear yearly income — in cases of 
 
 (a) Seeipage cxii. 
 
XCVIU EULES OP THE 
 
 dower one-half, and in other cases one-fourth, of the excess of 
 the amount calculated from the net proceeds of sale over the 
 amount calculated from the clear yearly income. Having made 
 such calculation and ascertained the result, the master is to 
 report, irrespective of that result, what is, in his opinion and 
 under all the circumstances of the case, a reasonable satisfaction 
 for said dower or other estate, (a) 
 
 ^'^^' 186. In the order approving the sale and directing a convey- 
 
 ance to be executed, may be embraced the directions and order 
 of the Chancellor for the application and disposition of the pro- 
 ceeds of the sale, and for the investment of the surplus thereof. 
 
 Jan. 20th, 187. The guardian shall be entitled to receive on all sales of 
 
 1854, 
 
 such infants' estates the following percentage : 
 
 1. On all sums not over one thousand dollars, three per cent, 
 on the amount of sales. 
 
 2. If over one thousand dollars, and not exceeding three 
 thousand dollars, two per cent, on such excess ; and 
 
 3. If over three thousand dollars, one per cent, on such 
 excess. 
 
 J^iyist, 188. The proceedings under the supplement (approved in 
 
 1886) to the act entitled "An act relative to guardians and the 
 estates of minors," shall be begun by petition of the guardian, 
 and shall be in conformity with the proceedings established by 
 statute and by the rules and practice of this court for the sale of 
 infants' land, so far as such last-mentioned proceedings may be 
 applicable thereto. There shall be a reference to a special 
 master as to the merits of the application, and in case the appli- 
 cation be to mortgage the infants' land, as to the fitness of the 
 guardian and the amount of bonds to be given and the suffi- 
 
 (a) In ascertaining the proper of the result of the application of the 
 
 sum to be paid in gross to a tenant in rules to the case in hand, the court 
 
 dower or by the curtesy, in commu- should determine what, in that case, 
 
 tation of such interest, the 184th and under the circumstances thereof, is a 
 
 185th rules of the Court of Qhancery reasonable sum to be paid in commu- 
 
 on the subject should not be taken as tation. Oronkright v. Saulenbeck, IC 
 
 an absolute guide; but, irrespective O. E. Or. 513. 
 
COTJET OP CHANCERY. Xcix 
 
 <!iency of the sureties offered. When the application is to mort- 
 gage, the guardian is to be required to give bond in double the 
 amount of the money to be borrowed, with sureties and condi- 
 tion, as provided by the act entitled "An act relative to the sale 
 and disposition of the real estate of infants." The infant whose 
 land is to be mortgaged or exchanged, shall, as to the property 
 and the money borrowed on mortgage thereof, or the property 
 received in exchange, be regarded as a ward of this court. 
 
 XLII.— OF DUTIES OF GUARDIANS AND 
 RECEIVERS. 
 
 189. Every guardian and receiver appointed by this court Aug.2iBt, 
 shall, within six months after his appointment, and every special ^^"' 
 guardian for the sale of an infant's estate shall, within six 
 months after the order confirming a sale of the estate, or any 
 part thereof, file in the office of the clerk of this court, a just 
 and true inventory, under oath, of the whole estate committed 
 to his care or guardianship, and of the manner in which the 
 funds under his care or control, belonging to the estate, are 
 invested, stating the income and profits of such estate, and the 
 debts contracted and expenditures by him on account thereof. 
 And he shall annually thereafter, so long as any part of the 
 estate, or of the income or proceeds thereof, remains in his hands 
 or under his care or control, file in the said clerk's office an 
 inventory and account, under oath, of his guardianship or trust, 
 and of the amount remaining in his hands or invested by him, 
 and of the manner in which the same is secured or invested. 
 
 190. It shall be the duty of the clerk, on the first day of Aug. 21st, 
 €very stated term of the court, to present to the Chancellor a ^*^*" 
 list of all guardians and receivers, (and of all persons who have 
 received money for investment under any order of this court,) 
 who have neglected to comply with the duties prescribed by the 
 next preceding rule for more than three months after the times 
 limited for the performance thereof, to the end that the Chan- 
 cellor may make such order respecting such delinquents as may 
 
C EULE8 OF THE 
 
 be just. And the inventories and accounts of such guardians 
 and receivers shall, from time to time, in the discretion of the 
 Chancellor, be referred to one of the special masters of the court, 
 who shall report, at the next term of the court after such refer- 
 ence, whether such accounts appear to have been correctly kept, 
 and whether the funds are safely invested or secured. And the 
 said master may summon such guardian or receiver to appear 
 before him, and examine him under oath touching his account 
 or inventory; and he may summon and examine other wit- 
 nesses touching the matters submitted to him, if he shall see 
 proper to do so. 
 
 1855. 191. It shall be the duty of the master specially designated for 
 
 the purpose, in the month of January in every year, to examine 
 the inventories and accounts of the guardians and receivers which 
 have been filed with the clerk for the preceding year, and report 
 to the court, at its next term, whether such accounts appear to 
 have been correctly kept ; whether there has been any waste or 
 misapplication of the funds, and whether the same are properly 
 and safely invested or secured, so far as he can ascertain the same 
 from the examination of such accounts and inventories on file. 
 If such master finds the account or inventory of any guardian or 
 receiver erroneous or imperfect, or discovers or suspects that the 
 property has been misapplied or wasted, or that the funds are 
 unsafe or improperly invested, he shall summon the guardian or 
 receiver to appear before him to correct the account or inventory, 
 or to give such explanations, on oath, as may be deemed neces- 
 sary. The master may also summon and examine witnesses on 
 oath, if he shall deem it proper, in relation to such inventory or 
 account, or the situation of the funds. 
 
 XLIII.— OF NE EXEAT. 
 
 Dec. 23d, 192. When a defendant shall be arrested on a writ of ne 
 
 exeat, the sheriff may, in lieu of the bond heretofore used and 
 required, take a bond in the sum endorsed on the writ, with 
 sureties as required by law, with condition that the defendant 
 shall cause his appearance to be entered in the suit, and continue 
 
COTJKT OF CHANCERY. ci 
 
 such appearance by a solicitor of this court, residing in the state ; 
 and shall at all times render himself amenable to the orders and 
 process of this court pending the suit, and to such process as shall 
 be issued to compel the performance of the final decree therein, 
 and will appear before this court, or any officer thereof, when so 
 required by the order of this court. 
 
 XLIV.— OF THE VICE CHANCELLORS AND 
 ADVISORY MASTERS. 
 
 193. Any cause or other matter may be referred to a Vice J^,^®^^"^' 
 Ohancellor [or advisory master], at the discretion of the Chan- Ap^futh^ 
 •cellor. Application for such reference, if not made by both ^^^*' 
 parties, may be in presence of, or upon five days' notice to the 
 adverse party or his solicitor. 
 
 194. When a cause shall be referred to a Vice Chancellor, Junemh 
 all proceedings in it to the final decree shall be had before him. 
 
 1871. 
 
 195. When a cause referred to a Vice Chancellor shall be at J^^^i^'^' 
 issue, either party may, upon five days' notice to the other party Amended 
 or parties, apply to the Vice Chancellor to whom the cause is 
 referred to fix a time and place for the hearing thereof; and 
 
 upon such application, such Vice Chancellor may designate such 
 time and place ; and upon [fifteen] days' notice, in writing, of the ki^^''^^ 
 time and place so designated, given by either party to the other i^^s. 
 or others, the cause may be heard. 
 
 196. At the time for which notice is given or designated for Ju°oi9th, 
 hearing, both parties shall attend with their witnesses and other 
 evidence, and the cause shall proceed, as at a trial at law before 
 
 a jury, by the oral examinations of the witnesses on both sides 
 continuously, until all the evidence has been produced and 
 closed ; the party holding the affirmative first producing all his 
 evidence, and, after resting, he shall be permitted to produce evi- 
 dence in rebuttal only ; but the Vice Chancellor may, in his dis- 
 oretion, reserve to either party the right to produce one or more 
 
CU EULE8 OF THE 
 
 witnesses, who shall be named, to be examined orally or by de- 
 position at a future day. But such right shall not be granted,^ 
 unless the Vice Chancellor be satisfied that due diligence has 
 been used to procure the attendance or deposition of such wit- 
 ness before the trial, nor unless it be fairly disclosed what is ex- 
 pected to be proved by such witness, and such evidence shall 
 appear to be material, and shall not be admitted by the other 
 party or parties. 
 
 June 19th, 197. When a Stenographer, appointed by the Vice Chancellor , 
 
 1871. 
 
 shall attend to take down the testimony, the examination shall 
 proceed as rapidly as counsel can ask, and the witness answer, 
 the questions. The examining counsel shall not take notes, nor 
 shall the examination be delayed in order that any counsel or 
 other person, except the reporter, may take minutes of the testi- 
 mony. But every effort shall be made by the court and counsel 
 to expedite the cause, so far as may be consistent with a full and 
 fair hearing thereof. 
 
 June 19th, 198. The competency of evidence shall be determined by the 
 Vice Chancellor, who, upon the objection of either party or upon 
 his own motion, shall exclude evidence that may be illegal or 
 irrelevant. 
 
 June 19th, 199, At the time designated for the hearing of a cause, the 
 hearing shall not be put off (except by consent) for the absence 
 of a material witness, unless the Vice Chancellor shall be satis- 
 fied that a fair and earnest effort has been made in proper time 
 to procure the attendance of such witness, and if such attendance 
 could not be procured, to procure his deposition ; and the Vice 
 Chancellor may, in his discretion, order the hearing to proceed,, 
 and direct that any material witness named may be examined 
 orally, or his deposition procured at a future day fixed and 
 named in such order ; but the matter to be proved by such wit- 
 ness shall be disclosed at the making of such order, and no hear- 
 ing shall be postponed for any cause, unless a future time and 
 place for hearing be fixed and designated, and such terms as to 
 costs as may be directed by the Vice Chancellor be complied 
 
COUBT OP CHANCERY. Cui 
 
 ■with. The argument of a cause or matter may be had, at the 
 discretion of the Vice Chancellor, either immediately upon the 
 closing of the testimony, or at a future day to be fixed. 
 
 200. Either party, after a cause is at issue, may, upon filing June isib, 
 an affidavit that a material witness is very old, infirm or about 
 
 to leave the state, and that he is in danger by reason thereof of 
 losing the benefit of his testimony, take the deposition of such 
 witness before any examiner, upon like notice and in like man- 
 ner as such evidence has heretofore been taken ; and such depo- 
 sition shall be filed with the clerk in chancery, by the examiner 
 before whom it was taken, within six days after it is concluded, 
 and may be read as evidence, subject to all exceptions, at the 
 bearing of the cause, unless some party to the cause shall produce 
 such witness at the hearing, in which case he shall be examined 
 orally. 
 
 201. When a cause or matter is referred to an advisory isvs. 
 master, he shall proceed to hear it with all reasonable dispatch, 
 and shall advise the Chancellor what order or decree to make 
 therein, and all the proceedings in the cause or matter shall, from 
 
 the time of the reference up to the final decree or order, be 
 before such master. 
 
 202. The master shall hear the cause or matter in the same isvs. 
 manner as provided by the rules of this court in the case of 
 references to a Vice Chancellor, and all the provisions of such 
 rules with respect to fixing the time for the hearing of a cause, 
 
 (as far as applicable,) the taking of testimony, as well de bene esse 
 as otherwise, the excluding of incompetent evidence, and the 
 hearing and conduct of the cause before a Vice Chancellor, 
 shall govern the like matters in cases before the advisory, 
 masters; and the rule in regard to the rehearing of causes 
 heard by a Vice Chancellor, shall apply to causes heard by 
 the advisory masters. 
 
 203. The advisory masters are not to write opinions, but igyg. 
 will merely advise the order or decree by advisory certificate at 
 the foot thereof, and whenever it shall appear to be necessary or 
 
CIV KULE8 OP THE 
 
 proper to do so, they will report to the Chancellor the grounds 
 of the order or decree by a mere concise statement of the facts 
 found, and the conclusion thereon. 
 
 April 4th, 204. Advisory masters and all other masters to whom causes 
 or matters shall be referred by the Chancellor to hear the same 
 for him, &c., shall report thereon within thirty days from the time 
 of the hearing, unless further time be granted by the Chancellor. 
 
 XL v.— CONFIRMATION OF SALES IN FORE- 
 CLOSURE. 
 
 S|pt- 20t]i, 205, The sheriff or other officer by whom mortgaged premises 
 shall be sold on proceedings for foreclosure, begun after March 
 12th, 1880, shall, within five days after the sale, report it to this 
 court in writing, stating the name of the purchaser and the price 
 obtained ; and he shall accompany the report with his affidavit 
 that the price was the best that the property would, at the time 
 of the sale, bring in cash, and unless written objection to the con- 
 firmation of the sale be filed within five days from the expiration 
 of the time limited for filing the report, if the report be duly filed 
 within the time limited by law and this rule, (and if the report 
 be not so filed, then within five days from the filing thereof,) an 
 order, which shall be an order of course, confirming the sale as 
 valid and effectual in law, and directing the officer by whom the 
 sale was made to execute a good and sufficient conveyance in law 
 to the purchaser for the mortgaged premises, may be entered after 
 the expiration of the time limited for making objections. If ob- 
 jections shall be filed, the question whether the property was sold 
 for the best price that could be obtained for it in cash shall be 
 disposed of summarily by the court, on affidavits or depositions. 
 
 XLVI.— ANSWER BY WAY OF CROSS-BILL AND 
 FORMS OF PLEADING. 
 
 April 3d, 206. When a defendant desires such relief as by the existing 
 
 practice can only be obtained by means of a cross-bill, it shall 
 
 1881. 
 
COURT OF CHANCERY. CV 
 
 not be necessary to file such bill to obtain it ; but he may set Amended 
 
 ■ 1 • 1.1 II ,1 Oct. 17th, 
 
 up in his answer matter which would now be the proper subject i8»2. 
 of a cross-bill and obtain relief thereon. He shall preface such 
 matter with a statement that it is exhibited by way of cross-bill 
 in the form following : 
 
 And this defendant by way of cross-bill exhibited against the complainant, 
 £oc, defendant, as the case may be,] says : 
 
 And he may answer on oath. Where it is exhibited against a 
 co-defendant, he shall serve a copy of the answer on such 
 defendant in five days from the date of filing, unless the court 
 shall give further time. And in case any such co-defendant 
 shall be non-resident, and it shall appear that said defendant 
 cannot, after reasonable effort, be actually served, the Chancellor 
 will by order direct how constructive service of the answer 
 may be made. If the answer in the nature of a cross-bill 
 be exhibited against the complainant he shall answer it, (on 
 oath, if required,) by special replication following the general 
 replication to the rest of defendant's answer, in the form pro- 
 vided in the 207th rule, to be filed within the same time now 
 fixed for replying. If against a co-defendant, such co-defendant 
 shall answer by a pleading in the form of an answer, (and on 
 oath, if required,) to be filed within thirty days from the time 
 of serving the copy of the answer to which he is called upon to 
 respond. Issue shall be joined on the responsive pleading 
 (whether it be by special replication or answer) by the filing of 
 a note in the following form : 
 
 The defendant lor, the defendant if there be several defendants 
 
 in the cause] joins issue on the special replication [or, answer, as the case may 
 he,] of to his answer in the nature of a cross-bill. 
 
 Such note shall be filed in fifteen days from the expiration of 
 the time for filing such replication or answer. 
 
 207. The general replication to an answer [or plea] shall be oct mt, 
 n form as follows : Mav i2tii! 
 
 1893. 
 The complainant joins issue on the answer [or, plea] of the defendant. 
 
CVl BULE8 OP THE 
 
 The replication to an answer, part of which is in the nature 
 of a cross-bill, shall be in the form following : 
 
 The complainant joins issue on so much of the defendant's answer as is not 
 in the nature of a cross-bill, and as to that part of said answer which is in the 
 nature of a cross-bill, he says, l^proceeding to answer the crois-matter.'] 
 
 Oct. 17th, 208. The general charge of confederacy in bills, and the 
 
 clause reserving exceptions, and the general clause denying 
 combination, and the general traverse, and the general profert 
 of proof in answers, shall be omitted, (a) 
 
 April ntb, 209. Every demurrer, whether general or special, shall dis- 
 tinctly specify the ground or several grounds of demurrer.(6) 
 
 XLVII.— REVIVOR OF SUIT. 
 
 J^^J"^' 210. Upon any suit in the Court of Chancery becoming 
 
 abated by death, marriage or otherwise, or defective by reason 
 of some change or transmission of interest or liability, it shall 
 not be necessary to exhibit a bill of revivor or supplemental 
 bill to obtain the usual order to revive, or the usual or neces- 
 sary decree or order to carry on such proceedings; but an 
 order to the effect of the usual order to revive, or of the usual 
 supplemental decree, may be obtained as of course upon an alle- 
 gation supported by affidavit, or petition duly verified, of the 
 abatement of such suit or of the same having become defective, 
 or of the change or transmiesion of interest or liability : which 
 affidavit or petition shall also state the grounds upon which the 
 right to revive is claimed. An order so obtained, when served 
 upon the party or parties who, according to the existing prac- 
 tice, would be defendant or defendants to the bill of revivor or 
 supplemental bill, shall, from the time of such service, be bind- 
 ing on such party or parties in the same manner, in every 
 respect, as if such order had been regularly obtained according 
 
 (a) See Fairchild v. Fairchild, 16 18 iStew. JEq. 504 ; Van Souten v. Van 
 Stew. Eq. 473. Souten, 1 Dick. Uh. JRep. 380. 
 
 (6) See Essex Paper Co. v. Oreacen, 
 
COUBT OF CHANCEKY. CVli 
 
 to the existing practice. And such party or parties will thence- 
 forth become a party or parties to the suit in like manner as if 
 he or they had been duly served with process to appear to a bill 
 of revivor or supplemental bill ; provided, however, that he or 
 they may, within fifteen days after such service, apply to the 
 Chancellor to discharge such order ; provided, also, that if any 
 party so served is under any disability, other than coverture, 
 such order shall be of no force or effect as against such party 
 until four days shall have elapsed after a guardian ad litem 
 shall have been duly appointed for such party. 
 
 XL VIII.— OBJECTIONS TO EVIDENCE, (a) 
 
 211. It shall be the duty of the examiner before whom testi- gov. 7th, 
 mony is taken to decide upon all objections to evidence, and his 
 decisions shall be final unless reversed on appeal to the Chan- 
 cellor, which is to be taken as hereinafter provided. Though 
 appeal be taken the examination shall nevertheless proceed, but 
 in conformity with the ruling. Notice of appeal must be given 
 and entered on the record immediately upon the making of the 
 decision of the examiner, otherwise the right of appeal will be 
 considered as waived. The notice will be merely oral. If there 
 be notice of appeal, the objection and the ground of it and the 
 examiner's decision thereon must, with a memorandum of the 
 fact of the appeal, be entered on the record of the evidence at 
 the place in the record where they occur. The entry will be in 
 brief form, as follows, for example : 
 
 Defendant objects to the evidence, on the ground that it is irrelevant to the 
 issue. Objection overruled. Appeal. 
 
 A. B., Examiner. Nov'. 10th, 1883. 
 
 The appeal shall be heard, without further notice, on the next 
 regular motion-day, at the chancery chambers (the state-house 
 
 (a) Under this rule the examiner out the evidence of an incompetent 
 
 may reject an incompetent witness. witness. Monforfs Adm'r v. Bowland, 
 
 Bemarest v. Vandenburg, 12 Stew. Eq. 11 Slew. Eg. 181. Qiuere: As to the 
 
 130. A party failing to object waives legality of the rule of court authoriz- 
 
 his right to exclude evidence, but the ing the examiner to reject witness, 
 
 court on its own motion may throw Bice v. Eice, 2 Eick. Ch. Eep. 559. 
 
OVlll RULES OF THE 
 
 being deemed for this purpose a chancery chamber), nearest the 
 place where the testimony was being taken at the time of the 
 appeal, if three days intervene between the time of making the 
 decision and that day, but if not, then on the next motion-day 
 thereafter. If the appellant shall not bring on the appeal at 
 the time fixed, he shall pay costs of the notice, unless he give 
 at least one day's notice to the solicitor or solicitors of the 
 other party or parties to the issue that he has abandoned the 
 appeal. Depositions, except when taken ex parte, shall be taken 
 before an examiner to be agreed upon by the solicitors of the 
 parties to the issue. If they are unable to agree thereon, the 
 examiner shall be named by the Chancellor on motion to be 
 made on a regular motion-day. 
 
 XLIX.— DUTY OF CLERK AS TO INVESTMENTS. 
 
 ^86.'^''' 212. It shall be the duty of the clerk to keep regular books 
 
 of account, showing the condition and manner of investment of 
 all estates and funds held by this court, and, upon payment of 
 the usual fees, to furnish statements and transcripts from said 
 books, showing the condition of any estate or fund to any 
 person interested in any way therein. 
 
 The Chancellor may, from time to time, order that, an exami- 
 nation, of such extent as he may direct, be made by a master of 
 the court into the condition and investment of all or any of such 
 estates or funds, with a view to secure their safety and advan- 
 tageous investment ; and upon the report of such examination, 
 the Chancellor shall direct the fees and allowances therefor to 
 be paid from the estates and funds benefited, in such manner as 
 shall be just. 
 
 L.— OBJECTIONS TO PLEA.DINGS. 
 
 ^p?i' ^"1' 213. Any objections to [any pleading,] or any part thereof, 
 
 ^mended may be made and adjudicated upon, on motion, without the 
 
 1882. filing of a demurrer or exceptions; but the notice of such 
 
 motion (which shall be an eight-days' notice) must state the 
 
 particular ground or grounds of objection. The making of a 
 
COUKT OF CHANCERY. CIX 
 
 motion under this rule shall be deemed a waiver of the right to Amended 
 
 J , , ° April 17th, 
 
 demur or except, and the motion, if made in reference to a bill, isse. 
 must be made within the time limited by law for demurring, 
 unless the court, on application, shall grant further time, (a) 
 
 LI.— APPOINTMENT OF CORPORATION AS 
 TRUSTEE, &c. 
 
 214. No corporation, entitled by law to execute trusts or to {f^-^**' 
 act as administrator, guardian, receiver or trustee, shall be 
 appointed to such office until it shall have created a fund to be 
 specifically set apart for, and devoted to specially securing its 
 liability in such capacities of trust and confidence in accordance 
 with the provisions of the third section of the act entitled "A 
 supplement to the act approved May sixth, one thousand eight 
 hundred and eighty-seven, entitled 'An act to amend an act 
 entitled "A supplement to an act entitled 'An act for the incor- 
 poration of safe deposit and trust companies,' " approved April 
 twentieth, one thousand eight hundred and eighty- five," which 
 was approved March thirteenth, one thousand eight hundred 
 and eighty-eight, (Laws of 1888, page 164,) and shall have 
 deposited with the register of the Prerogative Court, according 
 to the scheme prescribed by rules numbered nine, ten, eleven and 
 twelve of the Prerogative Court, securities which shall represent 
 the said fund, and shall, before its appointment to any office, 
 present to the Chancellor a statement, under the oath of its presi- 
 dent or cashier, that the fund aforesaid has been set apart accord- 
 ing to law, and that the liabilities of such company, for which 
 the fund aforesaid is specifically responsible, (including all funds 
 and securities of such trust, and with them those about to come 
 to it under the appointment then in contemplation,) do not ex- 
 ceed five times the value of such specifically created and deposited 
 fund, unless such fund shall amount to or exceed one hundred 
 thousand dollars, in which case the affidavit shall be that the 
 
 (a) If the bill presents no ground Wilson, 11 Slew. Eg. 446; see Kirk- 
 of equity it may be dismissed, on palriek v. Corning, 13 Stew. Eg. 254; 
 motion, under this rule. Beading v. Leslie v. Leslie, 5 JDick. Oh. Hep. 155. 
 
ex RITLES OP THE 
 
 liabilities aforesaid do not exceed ten times the value of such 
 specifically created and deposited fund. The said statement 
 shall be filed with the clerk of the Court of Chancery, and, 
 within thirty days after such appointment, be transmitted by 
 him to the register of the Prerogative Court. 
 
 1889' ^'^' 216. Upon being appointed to any such office, the corpora- 
 
 tion shall give bond, but without surety, similar to the bond 
 that a natural person would be obliged to give if he or she were 
 appointed to such office. 
 
 LII.— OF MONEYS IN HANDS OF MASTERS. 
 
 1889' ^^^' 216. Whenever money [has been] or shall be paid to a master 
 
 May i2ti? ^^ ^his court, [or has come] or shall come to his hands, for any 
 purpose, and shall remain in his hands undisposed of, pursuant 
 to an order or decree of this court, for the space of three months, 
 the said master shall forthwith, upon the expiration of such 
 time, unless the Chancellor shall otherwise specially order, pay 
 the said money to the clerk of this court, who shall receipt to 
 the master for such payment, and shall forthwith deposit the 
 money so paid to him in the depository of the funds of this 
 court, to the credit of the cause to which it belongs, and the 
 said money shall thereafter remain in said depository subject to 
 the order of the Chancellor. 
 
 1893. 
 
 LIII.— NOTICE OF SUIT BY STOCKHOLDER. 
 
 Nov. 5th, 217. In every suit brought by a stockholder of a corporation, 
 
 in behalf of himself and other stockholders, for relief to which 
 the corporation is entitled, the complainant shall immediately, 
 on filing the bill of complaint and issuing a subpoena to answer, 
 give such notice of the pendency and object of the suit to the 
 other stockholders of said corporation as the Chancellor shall in 
 each case by order direct. 
 
COUKT OF CHANCEKY. CXI 
 
 LIV.— OF TYPEWRITTEN PAPERS. 
 218. The clerk shall not suffer to be filed in his office any Feb. 27th, 
 
 1888 
 
 pleading or other paper, in a cause pending in the court, which 
 shall have been printed by means of a typewriter by the use of 
 carbon paper, or by the use of any other than what is known as 
 a " black record ribbon," nor unless the paper upon which the 
 pleading is printed shall weigh at least seven pounds to the ream 
 of five hundred sheets. 
 
CXll 
 
 RULES OP THE 
 
 TABLE OF MORTALITY. 
 
 Present value at five per cent, interest of an annuity of $1 
 daring life, first payment to be made at the end of the year ; 
 also showing the widow's percentage of the net proceeds arising 
 from the sale of land in which she is entitled to dower, her age 
 at the time of the sale being given. 
 
 
 O 
 
 11 
 
 i 
 
 
 o 
 
 J. 
 
 a 
 
 S 
 
 S3 . 
 
 
 O 
 
 Mi 
 
 a 
 
 Age 
 
 03 a 
 
 -us ^ 
 
 
 Age 
 
 a b 
 
 
 Age 
 
 ce a 
 
 
 
 <v a> 
 
 O o 
 
 
 <p 0) 
 
 O o 
 
 
 <0 tu 
 
 O o 
 
 
 eg P. 
 
 
 
 g Ph 
 
 32 
 
 
 S p< 
 
 T3 ° 
 
 
 ££ 
 
 ^^ 
 
 
 Ph w- 
 
 ^1" 
 
 
 
 ^1" 
 
 15 
 
 16.228 
 
 27:047 
 
 44 
 
 12.805 
 
 21.342 
 
 73 
 
 5.4344 
 
 9.0573 
 
 16 
 
 16.145 
 
 26.908 
 
 45 
 
 12.648 
 
 21.080 
 
 74 
 
 5.1898 
 
 8.6497 
 
 17 
 
 16.067 
 
 26.778 
 
 46 
 
 12.480 
 
 20.800 
 
 75 
 
 4.9892 
 
 8.3153 
 
 18 
 
 15.988 
 
 26.647 
 
 47 
 
 12.300 
 
 20.500 
 
 76 
 
 4.7920 
 
 7.9867 
 
 19 
 
 15.904 
 
 26.507 
 
 48 
 
 12.107 
 
 20.178 
 
 77 
 
 4.6091 
 
 7.6818 
 
 20 
 
 15.818 
 
 26.363 
 
 49 
 
 11.892 
 
 19.820 
 
 78 
 
 4.4221 
 
 7.3702 
 
 21 
 
 15.727 
 
 26.210 
 
 50 
 
 11.660 
 
 19.433 
 
 79 
 
 4.2101 
 
 7.0168 
 
 22 
 
 15.629 
 
 26.048 
 
 51 
 
 11.410 
 
 19.017 
 
 80 
 
 4.0144 
 
 6.6907 
 
 23 
 
 15.525 
 
 25.875 
 
 52 
 
 11.153 
 
 18.588 
 
 81 
 
 3.7993 
 
 6.3322 
 
 24 
 
 15.418 
 
 25.697 
 
 53 
 
 10.892 
 
 18.153 
 
 82 
 
 3.6057 
 
 6.0095 
 
 25 
 
 15.304 
 
 25.507 
 
 54 
 
 10.624 
 
 17.707 
 
 83 
 
 3.4058 
 
 5.6763 
 
 26 
 
 15.188 
 
 25.313 
 
 55 
 
 10.348 
 
 17.247 
 
 84 
 
 3.2114 
 
 5.3523 
 
 27 
 
 15.065 
 
 25.108 
 
 56 
 
 10.062 
 
 16.770 
 
 85 
 
 3.0085 
 
 5.0141 
 
 28 
 
 14.942 
 
 24.903 
 
 57 
 
 9.7707 
 
 16.2845 
 
 86 
 
 2.8303 
 
 4.7172 
 
 29 
 
 14.828 
 
 24.713 
 
 58 
 
 9.4781 
 
 15.7975 
 
 87 
 
 2.6848 
 
 4.4747 
 
 30 
 
 14.723 
 
 24.538 
 
 59 
 
 9.1989 
 
 15.8315 
 
 88 
 
 2.5967 
 
 4.3278 
 
 31 
 
 14.618 
 
 24.363 
 
 60 
 
 8.9399 
 
 14.8998 
 
 89 
 
 2.4947 
 
 4.1578 
 
 32 
 
 14.507 
 
 24.178 
 
 61 
 
 8.7121 
 
 14.5201 
 
 90 
 
 2.3388 
 
 3.8980 
 
 33 
 
 14.388 
 
 23.980 
 
 62 
 
 8.4872 
 
 14.1453 
 
 91 
 
 2.3210 
 
 3.8683 
 
 34 
 
 14.260 
 
 23.767 
 
 63 
 
 8.2580 
 
 13.7633 
 
 92 
 
 2.4120 
 
 4.0200 
 
 35 
 
 14.127 
 
 23.545 
 
 64 
 
 8.0157 
 
 13.3595 
 
 93 
 
 2.5174 
 
 4.1957 
 
 36 
 
 13.987 
 
 23.312 
 
 65 
 
 7.7650 
 
 12.9417 
 
 94 
 
 2.5685 
 
 4.2808 
 
 37 
 
 13.842 
 
 23.070 
 
 66 
 
 7.5027 
 
 12.5045 
 
 95 
 
 2.5960 
 
 4.3267 
 
 38 
 
 13.694 
 
 22.824 
 
 67 
 
 7.2274 
 
 12.0457 
 
 96 
 
 2.5553 
 
 4.2588 
 
 39 
 
 13.541 
 
 22.568 
 
 68 
 
 6.9413 
 
 11.5688 
 
 97 
 
 2.4283 
 
 4.0472 
 
 40 
 
 13.390 
 
 22.317 
 
 69 
 
 6.6434 
 
 11.0723 
 
 98 
 
 2.2783 
 
 3.7972 
 
 41 
 
 13.244 
 
 22.074 
 
 70 
 
 6.3359 
 
 10.5598 
 
 99 
 
 2.0447 
 
 3.4078 
 
 42 
 
 13.100 
 
 21.833 
 
 71 
 
 6.0150 
 
 10.0250 
 
 100 
 
 1.6240 
 
 2.7067 
 
 43 
 
 12.957 
 
 21.595 
 
 72 
 
 5.7105 
 
 9.5175 
 
 101 
 
 1.1924 1 
 
 1.9873 
 
COUKT OF CHANCERY. 
 
 CXIU 
 
 TABLE 
 
 Showing the number of the chancery rules as revised in 1893, and the numbers 
 of the corresponding rules before such revision. 
 
 Note. — Where blanks are left, the numbers have not been changed. The 
 following rules (old numbers) are abrogated or superseded: 114, 117, 159, 202, 
 203, 204, 209, 210, 211, 217. An asterisk (*) before a number indicates that 
 such rule has been amended by the present revision. 
 
 
 CD 
 
 11 
 
 s a 
 PL, a 
 
 b5 
 
 11 
 
 S 3 
 
 
 P 
 
 a a 
 
 
 1 a 
 ^1 
 
 gg 
 
 ai 
 
 § a 
 
 1 
 
 
 45 
 46 
 *47 
 48 
 ■ 49 
 50 
 51 
 52 
 53 
 54 
 .55, 
 *56 
 *57 
 58 
 *59 
 *60 
 61 
 *62 
 63 
 *64 
 65 
 66 
 67 
 68 
 69 
 70 
 71 
 72 
 73 
 74 
 75 
 76 
 77 
 *78 
 79 
 *80 
 81 
 82 
 83 
 84 
 85 
 86 
 87 
 88 
 
 
 89 
 
 *9U 
 
 91 
 
 92 
 
 93 
 
 94 
 
 95 
 
 96 
 
 97 
 
 98 
 
 *99 
 
 *100 
 
 101 
 
 102 
 
 103 
 
 104 
 
 105 
 
 106 
 
 107 
 
 108 
 
 109 
 
 *110 
 
 111 
 
 112 
 
 113 
 
 114 
 
 115 
 
 116 
 
 117 
 
 118 
 
 119 
 
 120 
 
 *12l 
 
 122 
 
 123 
 
 124 
 
 *125 
 
 126 
 
 *127 
 
 *128 
 
 *129 
 
 *130 
 
 *131 
 
 132 
 
 
 133 
 
 134 
 
 135 
 
 136 
 
 137 
 
 138 
 
 139 
 
 140 
 
 141 
 
 142 
 
 143 
 
 144 
 
 145 
 
 146 
 
 147 
 
 148 
 
 149 
 
 150 
 
 151 
 
 152 
 
 153 
 
 154 
 
 155 
 
 156 
 
 157 
 
 158 
 
 159 
 
 160 
 
 161 
 
 162 
 
 163 
 
 164 
 
 165 
 
 166 
 
 167 
 
 168 
 
 169 
 
 170 
 
 171 
 
 172 
 
 173 
 
 174 
 
 175 
 
 176 
 
 132 
 
 133 
 
 134 
 
 135 
 
 136 
 
 137 
 
 138 
 
 139 
 
 140 
 
 141 
 
 142 
 
 143 
 
 144 
 
 145 
 
 146 
 
 147 
 
 148 
 
 149 
 
 150 
 
 151 
 
 152 
 
 153 
 
 154 
 
 155 
 
 156 
 
 157 
 
 158 
 
 177 
 178 
 179 
 180 
 181 
 182 
 183 
 184 
 185 
 186 
 187 
 188 
 189 
 190 
 191 
 192 
 *193 
 194 
 195 
 196 
 197 
 198 
 199 
 200 
 201 
 202 
 203 
 204 
 205 
 *206 
 *207 
 208 
 *209 
 210 
 211 
 212 
 213 
 *214 
 215 
 *216 
 217 
 218 
 
 176 
 
 2 
 
 
 
 177 
 
 3 
 
 
 
 
 178 
 
 *4 
 
 229 
 
 
 
 179 
 
 5 
 
 
 
 180 
 
 *6 
 
 
 
 
 181 
 
 7 
 
 
 
 182 
 
 *8 
 
 
 
 
 183 
 
 *9 
 
 
 
 
 184 
 
 10 
 
 
 
 
 185 
 
 11 
 
 
 
 186 
 
 12 
 
 
 
 228 
 
 13 
 
 
 
 
 187 
 
 14 
 
 
 
 220 
 
 221 
 
 102 
 
 103 
 
 104 
 
 105 
 
 106 
 
 107 
 
 108 
 
 109 
 
 110 
 
 111 
 
 112 
 
 113 
 
 114 
 
 115 
 
 116 
 
 118 
 
 119 
 
 120 
 
 121 
 
 122 
 
 123 
 
 124 
 
 125 
 
 126 
 
 127 
 
 128 
 
 129 
 
 130 
 
 131 
 
 188 
 
 15 
 
 
 189 
 
 16 
 
 
 
 190 
 
 17 
 
 
 
 191 
 
 18 
 
 
 
 192 
 
 19 
 
 
 
 193 
 
 20 
 
 
 
 197 
 
 21 
 
 
 
 198 
 
 22 
 
 
 
 199 
 
 23 
 
 
 
 200 
 
 24 
 
 
 
 201 
 
 25 
 
 
 
 205 
 
 26 
 
 
 
 206 
 
 27 
 
 
 
 207 
 
 28 
 29 
 
 
 219 
 
 
 
 208 
 
 *30 
 
 
 
 
 212 
 
 31 
 
 
 
 
 213 
 
 32 
 
 
 
 "235" 
 165 
 166 
 167 
 168 
 169 
 170 
 171 
 172 
 173 
 174 
 175 
 
 214 
 
 33 
 
 
 
 225 
 
 34 
 
 
 
 216 
 
 35 
 
 
 218 
 
 36 
 
 
 
 223 
 
 37 
 
 
 
 215 
 
 38 
 
 
 
 231 
 
 39 
 
 
 
 232 
 
 40 
 
 
 
 233 
 
 41 
 *42 
 
 
 
 
 238 
 230 
 
 43 
 
 
 
 
 44 
 
 
 
 
INDEX TO RULES. 
 
 No. Rule. 
 
 Abatement of suits 211 
 
 Absent defendants 54, 60 
 
 notice to be published or served 57 
 
 Accounts of guardians and receivers to be rendered periodically 189 
 
 bow examined 190 
 
 Administrator (see Surplus Money) 156 
 
 Admission of parties, notice of application for 142 
 
 Advisory masters, to hear causes to final decree 201 
 
 cause, how heard by 202 
 
 not to write opinions 203 
 
 when to report...: 204 
 
 Affidavits, form of, to petition, in proceedings against lunatics, &c 172 
 
 to answer, how taken in another state 62 
 
 be used on special motions, how served 138 
 
 orders to show cause, how served 139 
 
 extend time for filing pleadings, how served 141 
 
 be used on motions to extend time for taking testimony, 
 
 how served 140 
 
 filed with the clerk before being used in court 138 
 
 Agreement to submit cause without argument, to be in writing 17 
 
 Amended bill, when copy of, to be furnished to defendant 69 
 
 Amendment of bill by complainant of course, before answer 66 
 
 after answer 67 
 
 after plea or demurrer overruled, 67 
 
 in matters of form after demurrer, 70 
 
 when complainant to pay costs on 68 
 
 sworn bill, how made 71 
 
 Answer, order to, when necessary 27 
 
 practice, when no defence set up in 29 
 
 with cross-bill 206 
 
 Appeals from interlocutory decrees and orders 149 
 
 final decrees ^^^ 
 
 how served '■"'■ 
 
 from decision of examiner as to evidence 21J 
 
 Appeal, petition of, when to be filed 152 
 
 what to contain 
 
 when waived 
 
 Application to be made a party, notice of 1^2 
 
CXVl INDEX TO BULE8. 
 
 No. Rule. 
 
 Appointment of guardian ad litem, on petition 63 
 
 notice 64, 65 
 
 trustee 162,214 
 
 Arguments, none in summer vacation, except in certain cases 1 
 
 order in which counsel heard on 7 
 
 Attachment for contempt, appearance of defendant in 135 
 
 defendant in to give bond 134 
 
 interrogatories to defendant in 136, 137 
 
 writ of, who to be included in 133 
 
 when returnable 133 
 
 Bill, amendment of (see Amendment) 66-71 
 
 dismissal of, after replication filed and proofs begun 15 
 
 for want of prosecution 30 
 
 for injunction, verification of. 119 
 
 joinder of complainants in 132 
 
 to be signed by counsel 48 
 
 of foreclosure, not to recite bond and mortgage at length 50 
 
 not to recite records, &c., in full 49 
 
 formal clauses omitted .-. 208 
 
 Bond, form of, on injunction 127 
 
 to stay ejectment 126 
 
 of defendant, on ne exeat 192 
 
 guardian of infant 180 
 
 lunatics, &c 176 
 
 how approved'. 182 
 
 Books, inspection of, &c 31, 32 
 
 Cause, when submitted without argument, practice 17 
 
 set down by consent, when heard 9 
 
 time for setting down for hearing 1, 3, 9 
 
 when defendant entitled to conduct of. 28 
 
 when to be noticed forbearing 10 
 
 Caveat, when to prevent enrollment of decree 145 
 
 Chancellor, when a party to suit, practice 160 
 
 Clerk, appointment of, as guardian for infant in foreclosure 65 
 
 duty of, as to accounts of guardian, &c 190 
 
 estates in court 212 
 
 typewritten papers 218 
 
 to report delinquent guardian and receiver 190 
 
 how to make copies of records 37 
 
 not to practice as solicitor, &c 35 
 
 suffer files of court to be removed 36 
 
 . file papers when solicitor in arrears , 38 
 
 taxation of costs by, for setting down cause 104 
 
 to keep a docket 40 
 
 when to make statement of lunds in his hands 33 
 
 Commission to take testimony, when and how applied for 96 
 
INDEX TO RULES. Cxvii 
 
 No. Rule. 
 
 Commission to take testimony, names of witnesses to be inserted in... 98 
 
 interrogatories to be annexed to 98 
 
 Commissions of special guardians 187 
 
 masters on sales in partition 166 
 
 Commissioners to take testimony, how appointed 97 
 
 Complainant, when to be examined to disprove answer, &c 88 
 
 Contempt, attachment for (see Attachment) 133-137 
 
 Corporation as trustee, appointment of. 214 
 
 Costs, objection to award of, how made 103 
 
 allowed successful party without special order 108 
 
 allowance in, for deed of guardian 113 
 
 execution for, how issued 114 
 
 for amendment, when not allowed 108 
 
 of motion not allowed when party in ladies 108 
 
 in mortgage cases, none allowed for proceedings at law on the 
 
 bond Ill 
 
 of examinations and cross-examinations, how paid by parties... 109 
 one attendance only before master or examiner allowed 
 
 unless new notice necessary 109 
 
 motion, when not allowed 108 
 
 notice of motion, when and how taxed 105 
 
 setting down cause, how taxed 104 
 
 against defaulting party 106,107 
 
 for service of subpoena to answer 112 
 
 Counsel fee, attending master or examiner 109 
 
 Cross-bill, answer by way of. 206 
 
 service of • 206 
 
 Curtesy, order of reference as to value of. .' 184 
 
 sale of infants' land, free from 183 
 
 value of, how fixed 184, 185 
 
 in partition sales, how ascertained 168 
 
 Decrees, objection to form, how made 101 
 
 Decree pro confesso against absent defendants 60 
 
 where no infant defendants 22 
 
 against mortgagor, other encumbrancers answering, 
 
 practice 23 
 
 defendant, not to prejudice his rights as 
 
 encumbrancer 24 
 
 final, in mortgage cases 22, 23 
 
 practice as to, when decree joro confesso entered 22 
 
 on further directions, when may be entered 16 
 
 in foreclosure suits, where infants are parties 65 
 
 when to be enrolled 101, 145 
 
 execution may issue on 118 
 
 not to be signed when caveat filed 145 
 
 in lunacy proceedings, when to be filed 3 74 
 
CXVlll INDEX TO EULE8. 
 
 No. BULE. 
 
 Decree for deficiency 53 
 
 sale in partition, tenant in dower, &c., to have notice of... 168 
 
 pro confesso, efiect of, in foreclosure suits in certain cases 24 
 
 Defendant, absent 54-60 
 
 may proceed in name of complainant, when 28 
 
 when may bring on cause for hearing 15 
 
 Deficiency, decree for 53 
 
 Demurrer, notice of argument of, how served 11 
 
 for want of parties 70 
 
 particular grounds of to be stated 209 
 
 Depositions, how to be taken down by examiner 90 
 
 in a cause, when to be filed 93 
 
 of infirm persons, how taken 200 
 
 Deposits in court, interest on 161 
 
 Dismissal of bill for want of prosecution 30 
 
 Divorce, decree in ex parte, when signed 165 
 
 form of bill, &o., for adultery 163 
 
 report of master in 164 
 
 references in, to be to special masters 45 
 
 testimony in, before master, how taken....... 164 
 
 suits for, to be set down for hearing at regular term 14 
 
 Documents not made exhibits, practice as to 95 
 
 Dower, order of reference as to value of 184 
 
 value of, how fixed 183,185 
 
 when infants' lands to be sold free from 183 
 
 Drunkard, habitual, to have notice of inquisition 173 
 
 form of petition for sale of lands of. 175 
 
 Drunkenness, habitual, affidavit to petition in matter of. 172 
 
 Enrollment of final decree 101 
 
 caveat against 145 
 
 Evidence (see Testimony), objections to before examiner 211 
 
 appeal 211 
 
 before a master to be reduced to writing 44 
 
 competency of, before Vice Chancellor 198 
 
 documentary, when to be excluded 95 
 
 when to be printed and how paid for 99,100 
 
 Examinations 78 
 
 list of witnesses to be annexed to , 92 
 
 of witnesses, when to be in writing 44 
 
 under a decretal order to be at expense of 
 
 party requiring it 44 
 
 how to be taken down by examiner 90 
 
 each page and every tenth line of to be 
 
 numbered 92 
 
 in a cause, when to be filed 93 
 
 Examiner, oath of oflice of. 42 
 
INDEX TO EULES. CXIX 
 
 No. Rule. 
 
 Examiner, duty of, upon objection to evidence 211 
 
 how selected when parties cannot agree 211 
 
 Exceptions 72 
 
 to master's report, notice of, how served 11 
 
 how set down for hearing 12 
 
 answer for scandal, &c., how referred 72 
 
 insufficiency, when rule to refer, to be 
 
 entered 73 
 
 practice,whendefendantsubmitstoanswer...73, 74, 75 
 
 pleadings generally, for scandal, &c 76 
 
 Execution, to issue to sheriff unless otherwise ordered 115 
 
 for costs, how issued 114 
 
 deficiency, order of liability of defendants to be 
 
 endorsed on 116 
 
 wlien sheriff to make return of. 117 
 
 to issue on final decree 118 
 
 Executor (see Surplus Money) 155 
 
 Exhibits, copies of, how procured 89 
 
 to be left with examiner 89 
 
 Fees of state and clerk to be paid by solicitor 88 
 
 master on special references 47 
 
 stenographers and examiners, how paid 110 
 
 master on sales in partition 166 
 
 Foreclosure, sale in, how confirmed 205 
 
 bill, how bond and mortgage to be set out in 50 
 
 when order of reference in, not necessary 21 
 
 answer in, sets up no defence, practice 29 
 
 admits the complainant's claim 23 
 
 Guardian, accounts of, how examined 189, 190, 191 
 
 application to mortgage minor's lands 188 
 
 bond of, on sale of infant's land 180 
 
 of lunatic, idiot, &c., to give bond 176 
 
 infant defendant, appointment of, on petition 63 
 
 notice 64 
 
 clerk appointed 65 
 
 special, how appointed 181, 182 
 
 Hearing before Vice Chancellor 193-196 
 
 of divorce suits to be at the regular term 14 
 
 no day to be assigned for, until evidence closed 2 
 
 order and manner of setting down causes for 3 
 
 in which counsel to be heard on 7 
 
 how brought on by defendant 15 
 
 party bringing on, to furnish state of case, &c '. 8 
 
 abbreviation of pleading? 8 
 
 each party to furnish Chancellor with brief at 8 
 
 causes to be noticed for, at next term after evidence closed,.. 10 
 
CXX INDEX TO BULE8, 
 
 No. Rule. 
 
 Hearing, causes not to be set down for, after twentieth day of term... 10 
 
 Holidays, legal, no motions heard on 4 
 
 Idiocy proceedings, affidavit to petition in 172 
 
 Idiots, lunatics and drunkards, application for commission 172 
 
 Idiot, to have notice of inquisition 173 
 
 when returned 174 
 
 bond of general guardian 176, 178 
 
 sale of lands of, form of petition for 175 
 
 reference to master 177 
 
 Infant defendants and suits on mortgages 63 
 
 Infant defendant, appointment of guardian for 63, 64 
 
 when clerk appointed guardian for 65 
 
 duties of master on reference as to 65 
 
 application to mortgage land of. 188 
 
 sale of land of, form of petition for 179 
 
 reference to master 181 
 
 appointment of guardian 182 
 
 guardian to give bond 180-182 
 
 free from dower, &c 183 
 
 value of dower ascertained 184,185 
 
 guardians' commissions 187 
 
 Injunction, bill for, how verified in certain cases 119 
 
 after answer, notice for required 128 
 
 common, form of bond on 127 
 
 joinder of complainants on bill for 132 
 
 master 121 
 
 order to show cause, on application for 122 
 
 on denial of, bill to be filed 129 
 
 practice as to, against corporations, &c 120 
 
 on motion to dissolve, before answer 123 
 
 after answer 124 
 
 to stay proceedings at law , 125 
 
 ejectment 126 
 
 form of bond on 126 
 
 writ of, how to be served and returned 130 
 
 may be granted by Vice Chancellor 131 
 
 Inquisition in lunacy, decree on when to be filed 174 
 
 when to be returned 174 
 
 Inspection of books, &o., how obtained 31, 32 
 
 Interest on deposits in court 161 
 
 Interrogatories, practice to 77 
 
 to be annexed to commission to take testimony 98 
 
 Investments in court, examination of by master 212 
 
 Joinder of complainants in bill for injunction 132 
 
 Land of infants, sale of. 179 
 
 Lunacy, inquisition of, when to be returned 174 
 
INDEX TO KULES. CXxi 
 
 No. Rule. 
 
 Lunacy, proceedings, affidavits to petition in 172 
 
 Lunatic, sale of laud of, form of petition for 175 
 
 may be examined on inquisition 172 
 
 to have notice of inquisition 173 
 
 Mailing notices to absent defendants 59 
 
 Married woman,^sllare of, in partition, how payable 167 
 
 Masters and examiners 42 
 
 Master, duties of, in foreclosure suits against infants 65 
 
 examination taken before, to be in writing 44 
 
 fees of. 47 
 
 on sales in partition 166 
 
 interested in business of solicitor in the suit not to make sale.. 46 
 
 oath of office of... 42 
 
 may proceed without notice to defendants against whom decree 
 
 taken j3ro confesso, when there are no infant parties 22 
 
 practice before, in case there are infant defendants 65 
 
 references to, practice on ' 43 
 
 report of, on application for sale of infants' land 181 
 
 special, what matters referred to 45 
 
 what not to make sale in partition suits 171 
 
 Mileage, allowance for, in costs, on service of subpoena 112 
 
 Money in court, depository of. 34 
 
 hands of master, disposition of. ■. 216 
 
 Motions, contested, how to be heard in summer vacation , 1 
 
 preferred over causes on the list 6 
 
 notices of, how served 20,141 
 
 Motion-days, notice of motion for days other than, how available 5 
 
 no motions requiring notice to be heard, except on 5 
 
 before the Chancellor or Vice Chancellors 4 
 
 Ne exeat bond, form of. 192 
 
 Notice of motion 20, 141 
 
 application to be made a party 142 
 
 date of issue of cause to be furfiished clerk... 3 
 
 confirmation of report, when defendant not entitled to 22 
 
 to absent defendants, what to contain 58 
 
 of heai'ing, when to be served 11 
 
 of exceptions to master's report 11 
 
 plea or demurrer 11 
 
 motions, how served 20 
 
 taking testimony, how served 20 
 
 petition for rehearing 144 
 
 sale free from dower or curtesy 168 
 
 how waived 169 
 
 taking testimony, how served 20 
 
 to absent defendants 57 
 
 form of. 58 
 
CXXU INDEX TO BULE8. 
 
 No. Rule. 
 
 Notice to absent defendants, how served 69 
 
 proof of, how made 60 
 
 lunatic, idiot and drunkard, of inquisition 173 
 
 proof of service of. 173 
 
 Objections to evidence 211 
 
 pleadings 213 
 
 Order appointing special guardian 182 
 
 confirming sale of infants' land, what may be embraced in 186 
 
 for rehearing, not to stay interlocutory proceedings 147 
 
 objections to form of, how made 101 
 
 for sale of infants' lands 182 
 
 nisi, how served 20, 25 
 
 service of, when not necessary 22, 23, 25 
 
 not to be filed nunc pro tunc without leave 41 
 
 until signed 41 
 
 of business on first day of term and on motion-day 6 
 
 publication, form of! 54 
 
 against married woman 55 
 
 none until after return-day of subpoena 56 
 
 reference in foreclosure, when not necessary 21 
 
 form of and practice on in mortgage cases, where 
 
 there are infant defendants 65 
 
 for sale of lauds of lunatics, &c 177 
 
 infants 181 
 
 as to dower and curtesy 183, 184 
 
 to Vice Chancellor 193, 194 
 
 to answer, when necessary 27 
 
 confirm reports, how served 20 
 
 show cause in injunction cases 122 
 
 speed cause may be taken in vacation 18 
 
 take proofs exparte, proceedings under 26 
 
 Party, application to be admitted as, notice of. 142 
 
 Partition, fees of masters on sales inf. 166 
 
 master reporting on merits in, not to sell 171 
 
 order of reference form of, in 166 
 
 practice when answer sets up no defence 29 
 
 master's report in, proceedings on 166 
 
 references in, to be to special masters 45 
 
 sale in, free from dower or curtesy; notice 168, 169 
 
 share of married woman in, how payable 167 
 
 value of dower or curtesy in, how ascertained 70 
 
 Petition for rehearing, what to contain 143 
 
 to be signed by two counsel 143 
 
 copy of, to be served 144 
 
 effect of caveat 145 
 
IHDEX TO RULES. CXXui 
 
 No. Rule. 
 Petition, verified, may be used as affidavit on hearing of order to 
 
 show cause 139 
 
 on appeal, when to be filed 152 
 
 in default of filing, appeal waived 152 
 
 for sale of infants' lands, form of 179 
 
 who to present 179 
 
 for surplus money, when may be presented 153 
 
 Plea, ijotice of argument of, how served 11 
 
 argument of, how brought on 13 
 
 testimony, how taken, when issue joined on 91 
 
 Pleadings, objections to, how heard 213 
 
 abbreviation of, &c., to be furnished on hearing 8 
 
 copies of, how made by clerk 37 
 
 not to recite records, &o., in full .•, 49 
 
 Printing evidence 99 
 
 Process 51 
 
 Publication of notice to absent defendants, proof of. 60 
 
 Receiver, accounts of, how examined 189, 190, 191 
 
 duties of, as to accounts 189 
 
 Records not to be recited in full in pleadings 49 
 
 Reference in foreclosure, when not necessary 21 
 
 to master, proceedings on, when notice necessary 43 
 
 Vice Chancellor. 193,194 
 
 Rehearing 143 
 
 of decrees advised by Vice Chancellor 148 
 
 order for, not to stay interlocutory proceedings 147 
 
 petition for, copy of to be served 144 
 
 notice of presenting to be served 144 
 
 order of argument on 143 
 
 to be signed by two counsel 143 
 
 what to contain 143 
 
 when granted of course 146 
 
 RepUcatioDj general to an answer and plea, form of 207 
 
 special, form of... 207 
 
 to an answer by way of cross-bill, form of. 206 
 
 Report of master, how confirmed as against answering encumbrancer... 23 
 
 on application for sale of infants' land 181 
 
 when may be confirmed without notice 22 
 
 not to prejudice rights of defendants not appearing before 
 
 him 24 
 
 Return of inquisition of lunacy, when to be made 174 
 
 Revivor of suits by petition 210 
 
 Rules and orders 18 
 
 common, defined 19 
 
 how entered 19 
 
 special, defined 19 
 
CXXIV INDEX TO EULE8. 
 
 No. Rule. 
 
 Eules nisi, how served 20 
 
 Sale of infant's land, references on application for, to be to special 
 
 masler ..; 45 
 
 form of petitionfor 179 
 
 master's report of. 181 
 
 not to be made by a master interested in business of solicitor in 
 
 the cause 46 
 
 of land free from dower, &c 168,183 
 
 of lunatic, idiot, &c., form of petition for 175 
 
 guardian's bond 176 
 
 form of order of referebce 177 
 
 when guardian to file bond 178 
 
 Setting down cause, &c , 11 
 
 SherifiJ when to retufn execution..... 117 
 
 pay surplus into court 117 
 
 every execution to issue to, unless otherwise ordered 114 
 
 Solicitor answerable for fees of Chancellor and clerk 38 
 
 Special guardian, how appointed 182 
 
 commissions of. 187 
 
 duties of, as to accounts 189 
 
 masters, what matters to be referred to 45 
 
 Stay of proceedings on rehearing 147 
 
 Stenographer, fees of, how paid 110 
 
 of Vice Chancellor 197 
 
 Stockholder, suit by, notice 217 
 
 Submission of cause without argument to be in writing 17 
 
 Subpoena, all .defendants in same county to be inserted in one 51 
 
 for witnesses, how procured 94 
 
 Suit, when considered as abandoned 30 
 
 Suits where Chancellor is a party 160 
 
 by stockholders, notice 217 
 
 Summons to attend master, how served 20 
 
 Surplus money, references as to, to be to special masters 45 
 
 rights in, of defendants who do not appear in suit 21 
 
 petition for, in foreclosure suits, when may be presented, 153 
 
 proceedings before master, on application for 154 
 
 application for, by executors, &c 155 
 
 petition for, by executors, &c., what to contain 155 
 
 account annexed to 155 
 
 to be sworn to.. 155 
 
 notice of application for, by executors, &c 156 
 
 form of order of reference , 157 
 
 to whom master to give notice 157 
 
 order for, to executor, when to be made 158 
 
 executor, &c., to give bond '. 159 
 
 form of bond 159 
 
INDEX TO BULBS. CXXV 
 
 No. Rdle. 
 
 Terms of court, how long continued for setting down causes, &c 1 
 
 stated, when held X 
 
 Testimony not to be taken before partner, &c., of solicitor except by 
 
 consent 79 
 
 in a cause at issue, how taken 78 
 
 when complainant to commence taking and when to con- 
 clude 80 
 
 defendant to commence taking and when to con- 
 clude 81 
 
 taking of, when and how adjourned.., 82 
 
 of complainant, in rebuttal, when to be commenced 83 
 
 counter, of defendant, when to be produced 83 
 
 of either party, how adjourned 84 
 
 time for taking, by either party, how enlarged 85, 86 
 
 what days not to be computed, in taking, under the rules. ... 87 
 
 of complainant, in his own behalf, how taken 88 
 
 how taken, when issue joined on a plea 91 
 
 written, form of. 92 
 
 when to be filed by examiners 93 
 
 commission to take, when and how applied for 96 
 
 commissioners to take, how appointed 97 
 
 when to be printed and how paid for 99, 100 
 
 of infirm persons, how taken 200 
 
 Tickets, copies of, to be served with subpoena 52 
 
 Trustees, appointment, &c., of. 162 
 
 Vacation, summer, duration of 1 
 
 Vice Chancellor, reference to 192, 193 
 
 may grant injunctions 131 
 
 decrees advised by, how reheard 148 
 
 to hear suits when Chancellor a party 160 
 
 causes before, how heard 195, 196 
 
 to determine competency of evidence 198 
 
 causes before, not postponed for absence of witnesses, 199, 200 
 
 Witness, deposition of, how to be taken down 90 
 
 complainant as, to disprove answer, &c., how examined 88 
 
 Witnesses, list of, to be annexed to examination 92 
 
 subpoena for, how procured 94 
 
 names of, to be inserted in commission to take testimony... 98 
 
 Writ of injunction, how served and returned 130 
 
 may be granted by Vice Chancellor 131 
 
 attachment, for contempt, when returnable 133 
 
 execution for costs, how issued 114 
 
 deficiency 116 
 
RULES 
 
 Court of Errors and Appeals 
 
 NEW JERSEY 
 
 I.— OF THE MEMBERS OF THE COURT. 
 
 1. No member of this court shall, as attorney, solicitor or 
 counsel, be concerned in or argue any cause in this court, either 
 upon error or appeal. 
 
 II.— OF ATTORNEYS AND SOLICITORS. 
 
 2. In cases of writs of error or appeals, the attorney of 
 record or solicitor for the adverse party, if any, in the court 
 below shall be considered as attorney or solicitor, as the case 
 may be, for the defendant in error or respondent in appeal ; and 
 notices and papers served on him shall be deemed good service, 
 until the defendant in error or respondent in appeal shall give 
 notice in writing to the plaintiff in error or the appellant in 
 appeal that he has employed another attorney or solicitor, 
 naming in such notice the attorney or solicitor employed, or 
 until appearance entered by a new attorney or solicitor. 
 
 III.— OF THE ORDER OF BUSINESS. 
 
 3. The court shall meet at eleven o'clock in the forenoon of 
 the first day of every term, and at ten o'clock in the forenoon 
 
CXXVIU RULES OF THE 
 
 of every other day in the term, except Saturday, when no court 
 will be held, unless ordered. 
 
 4. The presiding officer shall call the court to order, and 
 proceed to business at the hour to which the court shall stand 
 adjourned, or as soon thereafter as a quorum shall be present. 
 
 5. The clerk shall enter in the minutes the names of the mem- 
 bers who shall be present at each session of the court during the 
 term. 
 
 6. The court shall sit five hours on each day. 
 
 7. On the opening of the court on the morning of the first 
 day of each term, the presiding officer shall inquire if any per- 
 son has any motions for rules or orders, or other special applica- 
 tion, to make to the court ; and so much of said day shall be 
 appropriated to the hearing of such matters as may be necessary, 
 but no such motions or applications shall be heard on any other 
 day in term, without the special permission of the court. 
 
 8. Special motions shall require a notice thereof, with copies 
 of the papers, not records of this court, to Tie served at least two 
 entire days before the motion is made. Half an hour on each 
 side is allowed for argument of motions and special applications. 
 
 9. Affidavits, to be used on any special motions or arguments 
 in this court, shall be taken on four days' previous notice of the 
 time and place of taking the same, at which time and place both 
 parties may take affidavits. If not taken on such notice no 
 affidavits shall be read, unless a copy thereof has been served on 
 the adverse party at least eight days before the first day of the 
 term ; and in such case the adverse party may take and use on 
 the argument counter affidavits taken without notice. 
 
 10. No motion to dismiss an appeal or writ of error should 
 be entertained except upon notice or in presence of the solicitor 
 or attorney of the appellant or plaintiif in error. 
 
COITRT OF ERRORS AND APPEALS. CXXIX 
 
 11. As soon as the motions have been disposed of, the pre- 
 siding officer shall take up the list of causes, and they shall be 
 brought on in the order in which they stand upon the list, unless 
 otherwise ordered by the court. 
 
 IV.— OF SETTING DOWN CAUSES, &c. 
 
 12. All causes, whether on appeal or writ of error, may be 
 brought on and heard upon twenty days' notice thereof in writ- 
 ing, and on filing a copy or abstract of such notice in the office 
 of the clerk, at least five days previous to the first day of the 
 term at which such cause is to be set down for hearing. 
 
 13. All causes shall be noticed for hearing on the first day of 
 the term, if at issue long enough to admit of such notice ; if not, 
 then they may be noticed for a day in term, not later than the 
 twentieth day. 
 
 14. All causes noticed for hearing or argument shall be set 
 down by the clerk upon the calendar or list of causes in the fol- 
 lowing order, that is to say : writs of error shall have precedence 
 according to the time at which they were returnable, and appeals 
 shall have precedence according to the time of filing the petition 
 of appeal in this court. 
 
 15. Among writs of error returnable and petitions of appeal 
 filed on the same day, priority on the list shall be given according 
 to the time of filing the notices of hearing. 
 
 16. It shall be the duty of the clerk to furnish the court, on 
 the first day of each term, with a list of the causes noticed for 
 hearing, in the order in which they shall be entitled to be heard 
 according to the rule. 
 
 17. The appellant or plaintiff in error shall notice the cause 
 for argument, serve the state of the case, and bring on the hear- 
 ing according to law ; and if he fail so to do, the order, decree 
 or judgment below shall be affirmed, or the appeal or writ of 
 error shall be dismissed, as the court shall direct. 
 
CXXX EULE8 OP THE 
 
 v.— OF PRINTING AND SERVING COPY OF 
 
 CASE, &c. 
 
 18. The appellant or plaintiff in error shall provide a state 
 of the case, containing the pleadings, proofs and order or decree 
 in chancery, and the petition of appeal and answer on appeal, 
 and the record and assignment of errors on writ of error, and 
 also the reasons given in the court below for the decree, order or 
 judgment complained of (or an abridgment thereof, in case one 
 can be agreed on by the parties or their counsel), which shall be 
 printed on good paper, with a large margin, with pages num- 
 bered consecutively, and every tenth line of each page numbered. 
 Three copies of the state of the case shall be furnished to each 
 adverse party, at least twenty days before the day noticed for 
 argument, and a copy shall, previous to the hearing, be delivered 
 to each member of the court, and to the clerk to be filed. 
 
 19. In all cases each party shall furnish to each member of 
 the court and to each of the opposite counsel, in print, at the 
 commencement of the argument, the points upon which he 
 means to rely, together with a citation of all the authorities to 
 be used in the argument, and cases may be submitted on such 
 argument. 
 
 VI.— OF THE PETITION OF APPEAL AND 
 DEPOSIT. 
 
 20. In all cases of appeal from any order or decree of the 
 Court of Chancery, the party appealing shall, within the time 
 limited by law for making an appeal, and either in term or vaca- 
 tion, file with the clerk of this court a petition of appeal,(a) in 
 which shall be briefly stated the order or decree complained of 
 and the grounds of appeal, and shall serve a copy thereof on 
 the solicitor of the adverse party, if he has a solicitor, or if he 
 has not, then on the adverse party, if to be found in this state, 
 
 (a) See Chancery Eule 152. 
 
COURT OF EEH0B8 AND APPEALS. CXXxi 
 
 within thirty days after filing the said petition ; and shall also, 
 within the same time, deposit with the clerk in chancery one 
 hundred dollars to answer the costs of the appeal, if the appel- 
 lant shall not prosecute the same to effect ; and in default of 
 serving a copy of the petition, and making such deposits as 
 aforesaid, proceedings may be had on the order or decree ap- 
 pealed from, as if such appeal had not been made ; and the said 
 appeal may be dismissed by this court, with costs. 
 
 VII.— OF THE APPEAL. 
 
 21. No respondent shall be entitled to the dismissal of an 
 appeal from any interlocutory order or decree, upon the ground 
 that such appeal was not made within the time limited by law, 
 unless he shall, within thirty days after service of the petition 
 of appeal, give notice of such objection to the appellant or his 
 solicitor, and shall present the objection to the court at the next 
 term thereafter ; and upon receipt of such notice the appellant 
 shall be absolved from the duty of prosecuting the appeal, until 
 after the then next term of the court. But this rule is not to 
 be regarded as interfering with the right of the court to dismiss 
 an appeal for the cause aforesaid, at any time, upon such terms 
 as may be just. 
 
 22. Whenever a deposit shall be made as aforesaid, with the 
 clerk in chancery, he shall, if required, with all convenient 
 speed, cause copies of the several orders and the decree in the 
 cause, to be made at the expense of the appellant (who shall be 
 liable for the same in the first instance) and deliver the same, 
 with all the pleadings, depositions, exhibits and papers which 
 may have been filed in his office relating to the cause, to the 
 clerk of this court ; and the said deposit shall be subject, prior 
 to any other lien, to the fees of the clerk in chancery for the 
 said copies. 
 
 23. The respondent shall file an answer to the petition of 
 appeal within thirty days after service of a copy of the said 
 petition and making the deposit aforesaid; and in default 
 
CXXXll KULE8 OF THE 
 
 thereof, the appellant may enter a rule aa of course, in vacation 
 or term-time, with the clerk of this court, for the hearing of the 
 said appeal, and may bring on the same, by giving and filing 
 notice thereof, in accordance with these rules. 
 
 24. Appeals from the Prerogative Court shall be governed 
 by the rules of this court relating to appeals from the Court of 
 Chancery. 
 
 VIII.— OF WRITS OF ERROR. 
 
 25. All writs of error shall be made returnable within twenty 
 days from the time of issuing the same. 
 
 26. The plaintiff in error shall assign and file errors, and 
 serve a copy thereof on the attorney of the defendant in error, 
 if he has an attorney, or if he has not, then on the defendant in 
 error, if to be found in this state, within thirty days after the 
 writ of error shall be returned, with the transcript of the record 
 or proceedings, unless diminution alleged, and then in thirty days 
 after the return-day of the certiorari; or, in default thereof, the 
 plaintiff in error shall be non-prossed, unless this court shall see 
 cause to allow further time. 
 
 27. If the defendant shall not join in error within thirty 
 days after the expiration of the time limited or granted for as- 
 signing, filing and serving errors, the plaintiff may enter a rule 
 of course, either in vacation or term, with the clerk of this court, 
 setting down the cause to be argued, and may bring on the argu- 
 ment by giving and filing notice thereof, in accordance with these 
 rules. 
 
 28. If the plaintiff in error shall allege diminution of the 
 record, it shall be done on the day the writ of error shall be 
 returned, or within eight days thereafter, and he shall thereupon 
 apply to the clerk of this court for a certiorari of course and 
 without special order, and the plaintiff in error shall cause it to 
 be duly returned within twelve days, or shall lose the benefit 
 
COURT OF ERROES AND APPEALS. CXXXIU 
 
 thereof, unless this court shall see cause to allow a further day 
 for that purpose, and the time for assigning and serving errors 
 shall be extended to thirty days after the return of the certiorari. 
 
 IX.— OF THE HEAEING. 
 
 29. When a cause is regularly noticed for hearing, if the 
 appellant or the plaintiff in error (as the case may be) shall not 
 appear to argue the appeal or errors assigned, the decree or judg- 
 ment of the court below shall be affirmed, with costs ; and if the 
 respondent or defendant fails to appear, the appellant or plaintiff 
 may proceed ex parte, 
 
 30. The necessary papers in the cause shall be read without 
 explanation or comment. After which one of the counsel for 
 the appellant or plaintiff in error shall open the cause, then two 
 counsel for the opposite party may be heard in answer, and one 
 counsel only for the opening party shall be allowed to reply ; 
 but in case of an appeal from an order or decree of the Court of 
 Chancery, in a cause where there are several defendants who 
 have separate and distinct interests, and who have different 
 counsel concerned for them, the counsel for the respective de- 
 fendants shall be heard in such order as the court may direct ; 
 but not more than two counsel shall be allowed to argue for any 
 one defendant ; and if more than two counsel answer for the 
 defendants, in that case two counsel may be heard in reply. 
 
 31. In the argument of all causes there shall be allowed to 
 €ach side, when but one counsel is to be heard on either side, the 
 period of one hour ; when two or more counsel are to be heard 
 on each side, this period of two hours, unless express permission 
 shall be given for a longer specified time before the argument of 
 the cause is commenced, and the arguments shall then be limited 
 to the time thus allowed. The presiding officer shall in all cases 
 enforce a strict observance of this rule. On all arguments aris- 
 ing incidentally before the court, or not before provided for, one 
 counsel shall be heard in opening the matters in question or 
 
CXXXIV EULES OF THE 
 
 points, then two counsel for the opposite party may answer, 
 and one counsel only for the opening party shall be allowed to 
 reply. 
 
 32. Immediately upon the dose of the argument of each 
 cause, the court shall designate a time for holding a conference 
 in relation to such cause. 
 
 X.— OF DECISIONS BY THE COURT. 
 
 33. When a motion or preliminary or interlocutory matter 
 has been argued or submitted to the court, the presiding oflScer 
 shall distinctly state the point or points to be decided, and shall 
 then inquire of the court whether it is ready to decide the ques- 
 tion ; and if no objection is made by any member, the president 
 shall ask each member his opinion, calling their names, and also 
 expressing his own opinion, in such order as he may think 
 proper, and shall then announce the decision, as the result may 
 be ; but if any member, on the question being put as aforesaid 
 by the president, shall request or propose that the court shall 
 have a consultation on the matter, the counsel and audience shall 
 withdraw ; and after the court shall have conferred and advised 
 together of the matter, the doors shall be opened, and then the 
 president shall, in manner aforesaid, call upon the members of 
 the court for their respective opinions, and announce the judg- 
 ment of the court in the matter, giving at the same time his own 
 opinion thereon. The same course shall be pursued after tbe 
 argument of a cause on the merits. 
 
 34. When the decision of a cause depends upon distinct 
 questions, the decision of either of which will dispose of the 
 cause, the questions shall be taken separately, if required by 
 any three members. 
 
 XL— OF THE REMITTITUR. 
 
 35. The remittitur in case of a writ of error shall contain a 
 copy of the judgment of this court, annexed to the writ of error 
 
COTJBT OF EEBOE8 AND APPEALS. CXXXV 
 
 and the transcript of the record of proceedings, as brought into 
 this court, under its seal and signed by the clerk ; and the remit- 
 titur in case of an appeal shall contain a copy of the decree or 
 order of this court annexed to the petition of appeal, and the 
 matters thereto annexed, as brought into this court under its seal 
 and signed by the clerk. 
 
 36. When a remittitur shall have been entered in the ofGce of 
 the clerk of this court, the record shall not be actually remitted 
 to the court below until after the expiration of ten days from 
 the date of the entry of the remittitur, without the special order 
 of this court. 
 
 XII.— OF COSTS. 
 
 37. The prevailing party shall be considered as recovering 
 costs in this court, in which shall be included costs of printing, 
 unless the court shall, in express terms, adjudge to the contrary. 
 
 XIII.— OF THE KULES. 
 
 38. The rules of this court shall be considered as general 
 rules for the government of the court and the conducting of 
 causes ; and as the design of them is to facilitate business and 
 advance justice, they may be relaxed or dispensed with by the 
 court in any case, where it shall be manifest to the court that a 
 strict adherence to them will work surprise or injustice. 
 
RULES 
 
 OF THE 
 
 Prerogative Court 
 
 NEW JERSEY. 
 
 I.— OF PROCTORS. 
 
 1. All solicitors of the Court of Chancery shall be proctors 
 of this court. 
 
 II.— OF APPEALS. 
 
 2. On appeal to the Prerogative Court, from the order, sen- 
 tence or decree of the Orphans' Court, or from the proceedings 
 of a surrogate, the proceedings shall be conducted by proctor 
 and counsel, and by guardians ad litem of minors, according to 
 the practice of the Court of Chancery, except as hereinafter 
 specified. The party appealing shall cause the transcript of all 
 the proceedings before the surrogate or Orphans' Court to be 
 made, authenticated and returned to this court within twenty 
 days from the time of entering the appeal in the court below, or 
 the Ordinary may dismiss the appeal, unless further time is 
 allowed for the return of the transcript ; the appellant shall also 
 file a petition of appeal, addressed to this court, with the regis- 
 ter, within fifteen days after the appeal is entered in the court 
 below, or the appeal shall be considered as waived; and any 
 party interested in the proceedings in the court below may there- 
 
CXXXVIU EULES OP THE 
 
 upon apply to the Ordinary to dismiss the appeal, with costs. 
 The petition of appeal shall briefly state the general nature 
 of the proceedings in the court below, and of the sentence, 
 order or decree appealed from, and shall specify the part or 
 parts thereof complained of as erroneous, except where the 
 whole sentence, order or decree is alleged to be erroneous, in 
 which case it shall be sufficient to state that the same, and every 
 part thereof, is erroneous. And where the appeal is from the 
 sentence or decree of an Orphans' Court, on the settlement of the 
 accounts of an executor, administrator or guardian, if the appel- 
 lant wishes to review the decision of the Orphans' Court as to 
 the allowance or rejection of any particular items of the account, 
 such items shall be specified in the petition of appeal, or the allow- 
 ance or disallowance of any such item shall not be considered a 
 sufficient ground for reversing or modifying the sentence or 
 decree appealed from. The respondent, in his answer to the 
 petition of appeal in such cases, may also specify any items in 
 the account as to which he supposes the sentence or decree is 
 erroneous, as against him and in favor of the appellant. And 
 upon the hearing of the parties upon such appeal, the sentence 
 or decree of the Orphans' Court may be modified as to any such 
 items, in the same manner as if a cross appeal had been brought 
 by such respondent. On an appeal from the sentence, order or 
 decree of an Orphans' Court, or proceedings of a surrogate, the 
 appellant, after the petition of appeal and the transcript of the 
 proceedings in the court below have been filed with the register, 
 may have an order of course that the respondent in the petition 
 of appeal answer the same within twenty days after the service 
 of a copy of the petition of appeal and notice of the order, or 
 that the appellant be heard ex parte. And where the respondent 
 is an adult, upon filing an affidavit of such service upon the 
 proctor of the respondent, if he has appeared either in this court 
 or in the court below by a proctor of this court, or upon the 
 surrogate, if he has not appeared by such proctor, and that no 
 answer to the petition of appeal has been received, the appellant 
 may have an order of course that the appeal be heard ex parte, 
 as against such respondent. Where the respondent is a minor, 
 if he does not procure a guardian ad litem upon the appeal, to 
 
PREEOGATIVB COURT. CXXXIX 
 
 be appointed within twenty days after the filing of the petition 
 of appeal, the appellant may apply to the Ordinary ex parte for 
 the appointment of such guardian. And if the minor has ap- 
 peared by his guardian ad litem in this court, the appellant may 
 have an order of course that the guardian ad litem of the respond- 
 ent answer the petition of appeal within twenty days after ser- 
 vice of a copy thereof, and notice of the order. When a petition 
 of appeal is filed, if it has not been served on the adverse party, 
 the respondent may have an order of course that the appellant 
 deliver a copy of the petition of appeal to the proctor or to the 
 guardian ad litem of the respondent within ten days after service 
 of notice of such order, or that the appeal be dismissed ; and if 
 the same is not delivered within the time limited by such order, 
 the respondent, upon due notice to the adverse party, may apply 
 to the Ordinary to dismiss the appeal, with costs. 
 
 III.— OF APPLICATIONS FOR DIVISION OF 
 REAL ESTATE. 
 
 3. All applications to the Ordinary for the division of real 
 estates shall be by petition, and the allegations of the said peti- 
 tion shall be verified by affidavit ; and four weeks' notice in 
 writing of the intended application shall be served on all the 
 parties concerned in such real estate, who shall not join in the 
 said petition, and shall reside in this state, or on the guardians 
 or fathers of such of the said parties as are minors, and who 
 shall reside in this state ; and in case any of the said parties to 
 be notified as aforesaid shall reside out of this state, or cannot be 
 found therein, the application shall be advertised for thirty days, 
 in such public newspaper or newspapers as the Ordinary shall 
 direct, before persons shall be appointed to make division of 
 the estate ; but in case notice shall be served as aforesaid on the 
 parties not resident in this state, the publication as aforesaid shall 
 be unnecessary. 
 
 4,' The persons appointed to make division of any real estate 
 as aforesaid shall, before they proceed to make such division, be 
 
Cxl EULE8 OF THE 
 
 severally sworn or affirmed, as the case may require, that they 
 will honestly, faithfully and impartially execute the trust reposed 
 in them, and make division of the estate to the best of their 
 skill, knowledge and judgment. 
 
 5. A. report of a division of real estate, made to the Ordinary 
 at the next Prerogative Court after such division, shall not be 
 approved of and made conclusive until four days after such 
 report shall be made to the court, if the said court shall sit so 
 many days after the making of the said report. 
 
 IV.— OF THE REGISTER AND SURROGATE. 
 
 6. The register of this court and the surrogate of each county 
 and masters of the Court of Chancery shall have full power 
 and authority to take affidavits and depositions to be used in 
 this court; and every affidavit and deposition which shall be 
 made or taken before the register or before the surrogate of any 
 county in this state or a master of the Court of Chancery, shall 
 and is hereby declared to be as good and effiectual, to all intents 
 and purposes, as if the same were made or taken before the 
 Ordinary himself. 
 
 v.— OF PRINTING EVIDENCE ON APPEAL. 
 
 7. In case of appeal to the Prerogative Court from a sentence 
 or decree of the Orphans' Court, the party appealing shall cause 
 the evidence which has been reduced to writing in the court 
 below, and all exhibits, decrees, orders, petitions, accounts and 
 other papers necessary to the presentation of the question at 
 issue, if they together exceed one hundred folios in length, to 
 be printed, and shall deliver a copy thereof to the Ordinary, and 
 also to the opposite party, at least five days before the time of 
 hearing the appeal, and on failure thereof the appeal shall be 
 dismissed. 
 
PKEEOGATIVE COURT. cxli 
 
 VI.— DISMISSAL OF APPEAL. 
 
 8. No motion to dismiss an appeal in the Prerogative Court 
 shall be heard unless five days' notice of such motion has been 
 given, or the proctor of the other party is in court. 
 
 VII.— CORPORATIONS AS TRUSTEES. 
 
 9. No corporation, entitled by law to execute trusts or to act 
 as administrator, guardian, receiver or trustee, shall be appointed 
 to such office until it shall have created a fund to be specifically 
 set apart for, and devoted to specially securing its liability in 
 such capacities of trust and confidence in accordance with the 
 provisions of the third section of the act entitled "A supplement 
 to the act approved May sixth, one thousand eight hundred and 
 eighty-seven, entitled 'An act to amend an act entitled *A sup- 
 plement to an act entitled 'An act for the incorporation of safe 
 deposit and trust companies,' approved April twentieth, one 
 thousand eight hundred and eighty-five,' " which was approved 
 March thirteenth, one thousand eight hundred and eighty-eight 
 {Pamph. L., 1888, p. 164), and shall have deposited with the 
 register of this court securities which shall represent the fund, 
 and shall, before its appointment to any office, present to the 
 court making such appointment a statement, under the oath of 
 its president or cashier, that the fund aforesaid has been set apart 
 according to law, and that the above-mentioned deposit has been 
 duly made, and that the liabilities of such company, for which 
 the fund aforesaid is specifically responsible (including all funds 
 and securities of such trust, and with them those about to come 
 to it under the appointment then in contemplation), do not exceed 
 five times the value of such specifically-created and deposited 
 fund. Unless said fund shall amount to or exceed one hundred 
 thousand dollars, in which case the affidavit shall be that the 
 liabilities aforesaid do not exceed ten times the value of such 
 specifically-created and deposited fund. 
 
Cxlii EULES OF THE PREROGATIVE COURT. 
 
 10. The said securities shall be of the character of securities 
 in which trust funds may, by law, be invested, and at the time 
 of the deposit of them the president or cashier of the company 
 that makes the deposit shall make oath in writing, which shall 
 be filed with the register of this court, as to the intrinsic value 
 of any property upon which such securities shall then be a lien. 
 
 11. The register of this court shall receive the deposits of 
 securities made under the requirements of the preceding rules, 
 and shall keep the same in such manner as the Ordinary may, 
 from time to time, by order, direct. 
 
 12. The register shall file together all statements under oath, 
 contemplated by rule 9 of this court, and rule 21 of the Orphans' 
 Courts, and rule 214 of the Court of Chancery, 
 
RULES 
 
 Orphans' Courts 
 
 NEVV^ JERSEY, 
 
 I.— PEOBATE OF WILL, OR ADMINISTRATION. 
 
 1 . The application for probate of a will or letters of admin- 
 istration, or of administration de bonis non, shall be in writing, 
 verified by affidavit ; and such application shall state the names 
 of the heirs and next of kin of the deceased, so far as the same 
 are known, with their residence or post-office address, and the 
 manner or degree in which they severally stand related to him 
 or her ; and where such application for administration is made 
 by any person other than the next of kin or party first entitled, 
 or by one of several equally entitled to receive letters of admin- 
 istration, the person making such application shall produce to 
 the surrogate the renunciation and request of the persons so 
 entitled, that letters be issued according to the application, or 
 proof that at least ten days' notice has been given to the next 
 of kin or parties by law entitled to such administration, if any, 
 of such application; which application, and the renunciation 
 and request, if any, shall be recorded in a book to be kept for 
 that purpose. 
 
 2. If the executor named in any last will shall not apply for 
 letters testamentary of such will for forty days from the death 
 
Cxliv EULES OF THE 
 
 of the testator ; or the next of kin of any person dying intestate 
 shall not apply for administration for forty days from the death 
 of the intestate, the surrogate may grant letters testamentary or 
 letters of administration, as the case may be, to any fit person 
 who will accept the same, first giving at least ten days' notice 
 to the heirs, widow or next of kin of such deceased, or to those 
 of them whose residence or address he can ascertain, of his 
 intention so to do ; which notice may be sent by mail, and a 
 copy thereof shall be by him recorded upon the granting of 
 such letters. 
 
 3. Where administration has been granted of an estate, and 
 afterwards a will shall be produced to the surrogate ; or where 
 probate of a will shall have been granted, and afterwards a later 
 will shall be produced, the surrogate shall issue a citation to all 
 persons interested, returnable to the Orphans' Court, to show 
 cause why probate of such will should not be granted; and 
 upon admitting to probate such will, the court shall require the 
 administrator or prior executor to make final settlement of his 
 account, and shall make such order in relation to the commis- 
 sions as shall be just and equitable. 
 
 4. Upon application to the surrogate for letters of adminis- 
 tration, he shall require an affidavit of the value of the estate 
 for administration of which the application is made. 
 
 II.— SETTLEMENT OF ACCOUNTS. 
 
 5. When exceptions are made to the account of an executor, 
 administrator, guardian or trustee, such exceptions shall be in 
 writing ; and where the objections are to disbursements, they 
 shall state specifically the item or items and particulars objected 
 to, and the reasons therefor. 
 
 6. In settlement of the accounts of trustees or guardians or 
 of executors who shall hold funds of the estate of a testator, by 
 virtue of any power or direction in the will of said testator, the 
 accountant shall be required to annex to the account a full state- 
 
OBPHA.N8' COURTS. Cxlv 
 
 ment or list of the securities, investments and assets of which 
 the balance of the estate in his, her or their hands consists, or a 
 statement of all changes made in the securities since the filing of 
 the inventory or since the last settlement. 
 
 7. In proceedings for the re-settlement of the account of an 
 executor, administrator, guardian or trustee, at least ten days' 
 notice of the intended application shall be given to the executor, 
 administrator, guardian or trustee. 
 
 III.— COMMISSIONS. 
 
 8. Upon the adjustment of commissions between executors, 
 administrators, guardians or trustees, the Orphans' Court shall 
 not determine the matter upon the application of some, or one 
 of them, without proof that sufficient notice of such application 
 has been given to the other or others. 
 
 IV.— INVESTMENT OF MONEYS. 
 
 9. Executors, administrators, guardians or trustees being re- 
 quired to retain money in their hands, shall put it at interest, or 
 apply to the Orphans' Court for an order so to do ; and in case 
 they shall not be able to find proper investment for it, they shall 
 report the fact to the court within sixty days after they shall 
 have received it, or after they shall be required to retain it or to 
 invest it ; and in case of their neglect so to do, they shall be 
 accountable for the interest thereon. 
 
 v.— DISTRIBUTION. 
 
 10. The Orphans' Court, before decreeing the distribution of 
 the estate of any person dying intestate, shall require proof, on 
 oath, in writing, of the names of the wife and children, if any, 
 or other next of kin of the intestate, and how and in what degree 
 such other next of kin are related ; which proof may be made 
 
 10 
 
cxlvi BULES OF THE 
 
 by the administrator or any one having knowledge of the family 
 and next of kin of deceased, and by affidavit, unless the court 
 shall require farther or other proof. 
 
 VI.— BISCHARGE OF EXECUTOR, GUARDIAN OR 
 
 TRUSTEE. 
 
 1 1 . An executor or administrator seeking to be discharged 
 from the further duties of his office, shall give to all the parties 
 interested in the estate of which he is such executor or adminis- 
 trator, or to such of them as the court shall direct, at least thirty 
 days' notice, in writing, of his intended application to the 
 Orphans' Court for such discharge, unless the Orphans' Court, 
 for good cause appearing, shall otherwise order ; and where any 
 of the said parties shall reside outside of this state, such notice 
 may be given by mailing the same to their post-office address. 
 •Guardians seeking to be discharged from their trust shall give 
 like notice in like manner to their wards and the next of kin of 
 their wards, or to such of them as the court shall direct ; and 
 trustees seeking to be discharged from their trust shall give like 
 notice in like manner to their cestui or cestuis que trust. If a 
 cestui que trust be a minor, or non compos mentis, notice shall be 
 given to the guardian, if any, and if none, to the next of kin, 
 or such of them as the court shall direct. 
 
 VII.— SALE OF LANDS. 
 
 12. Where application for the sale of lands to pay debts shall 
 be made to the Orphans' Court of any county other than the 
 county in which letters of administration or probate of the will 
 shall have been granted, the executor or administrator making 
 such application shall present to said Orphans' Court a certified 
 copy of the will and of the letters testamentary issued thereon, 
 or of the letters of administration, and also a certified copy of 
 the inventory of the personal estate of the testator or intestate ; 
 which copy of letters testamentary and will and inventory, or of 
 letters of administration and inventory, shall be filed by the 
 surrogate of the county in which such application is made. 
 
OBPHANS' COtTBTS. Cxlvii 
 
 13. Where the heirs of an intestate, or the heirs or devisees 
 of a testator, shall have given bond to the executor or adminis- 
 trator, with the approval of the court, upon the return of the 
 rule to show cause for the sale of lands for the payment of debts, 
 the court shall, before making any order for the prosecution of 
 the bond or for the sale of the lands, require proof of the service 
 of a notice upon such heirs or devisees and their sureties, if they 
 be still living and resident in this state, or, if dead, on their 
 executors or administrators, if any they have in this state, or on 
 some one or more of them, of the intended application for such 
 order. 
 
 14. The notice to an executor or administrator of an applica- 
 tion by a creditor, requiring him to take proceedings to sell lands 
 to pay debts, shall be served on sUch executor or administrator 
 at least ten days before the day therein named for making the said 
 application ; and the Orphans' Court may, by citation or other 
 process, require the executor or administrator to appear before 
 them and testify as to the amount of the personal estate and 
 debts of the deceased. 
 
 1 5. All applications to the Orphans' Court for the sale of 
 lands, and all reports of such sales to said court, shall be veri- 
 fied by the oath or aiErmation of the party making the same. 
 
 VIII.— SALE OF LANDS BY GUARDIANS- 
 SECURITY. 
 
 16. The Orphans' Court, on granting an order to a guardian 
 to sell land or timber on the land of his ward, shall examine as 
 to the suflSciency of the bond of the guardian previously given, 
 and if, in their judgment, said bond is insufficient, they shall 
 require the guardian to give such additional bond for the faithful 
 execution of his office as, in their judgment, shall be adequate. 
 
Cxlviii KULES OF THE 
 
 IX.— PARTITION. 
 
 1 7. The notice of application upon proceedings in partition, 
 where there is a minor or minors not having a guardian, shall 
 be served upon the father or mother, and, if there be no father 
 or mother, then on one or more of the next of kin of full age, 
 if any residing in this state, of such minor or minors ; and it 
 shall be the duty of the court, in all such cases, to appoint a 
 guardian ad litem for every such minor. 
 
 X.— DOWER. 
 
 18. The notice of the intended application to the Orphans' 
 Court for the appointment of commissioners to assign dower to 
 a widow, in any lands or real estate in which any minors or 
 minor, residing in this state, and not having a guardian, may be 
 interested, shall be served on the father or mother, and, if there 
 be no father or mother, then on one or more of the next of kin 
 of full age, of the minor or minors, if there be any residing in 
 this state; and if such application is made by the mother of 
 such minor or minors, then the notice shall be served on one or 
 more of the next of kin of the minor or minors, of the blood 
 of the father, if any such there be residing in this state, and, if 
 none, then on one or more of the next of kin on the side of the 
 mother; and it shall be the duty of the court, in all such cases, 
 to appoint a guardian ad litem for such minor or minors. 
 
 XI.— NOTICES. 
 
 19. There shall be at least ten days' service of all notices and 
 rules to show cause and process, except where otherwise provided. 
 
 20. The notice required to be given by sections 59 and 82 
 of the Orphans' Court act shall be given by setting up and 
 publishing a notice stating that the order has been made, at 
 what time (its date), on whose application, in what court and 
 what directions are thereby given, and not by setting up and 
 publishing a copy of the order. 
 
OEPHA.N8' COUETS. Cxlix 
 
 XII.— CORPORATIONS AS TRUSTEES. 
 
 21. No corporation, entitled by law to execute trusts or to 
 act as administrator, guardian, receiver or trustee, shall be ap- 
 pointed to such office until it shall have created a fund to be 
 specifically set apart for and devoted to specially securing its 
 liability in such capacities of trust and confidence in accordance 
 with the provision of the third section of the act entitled "A 
 supplement to the act approved May sixth, one thousand eight 
 hundred and eighty-seven, entitled 'An act to amend an act en- 
 titled "A supplement to an act entitled 'An act for the incorpo- 
 ration of safe deposit and trust companies,' approved April 
 twentieth, one thousand eight hundred and eighty-five,' " which 
 was approved March thirteenth, one thousand eight hundred 
 and eighty-eight (Pamph. L., 1888, p. 164), and shall have de- 
 posited with the register of the Prerogative Court, according to 
 the scheme prescribed by rules nine, ten, eleven and twelve of 
 that court, securities which shall represent the said fund, and 
 shall, before its appointment to any such office, present to the 
 court making the appointment a statement, under the oath of its 
 president or cashier, that the fund aforesaid has been set apart 
 according to law, and that the above-mentioned deposit has been 
 duly made, and that the liabilities of such company, for which 
 the fund aforesaid is specifically responsible (including all funds 
 and securities of such trustSj and with them those about to come 
 to it under the appointment then in contemplation), do not 
 exceed five times the value of such specifically-created and de- 
 posited fund. Unless such fund shall amount to or exceed one 
 hundred thousand dollars, in which case the affidavit shall be 
 that the liabilities aforesaid do not exceed ten times the value of 
 such specifically- created and deposited fund. The said statement 
 shall, within thirty days after such appointment, be transmitted 
 by the clerk of the court by which the appointment shall be 
 made, to the register of the Prerogative Court. 
 
 22. Upon being appointed to any such office the corporation 
 shall give bond, but without surety, similar to the bond that a 
 
cl RULES OP THE 
 
 natural person would be obliged to give if he or she were ap- 
 pointed to such office. 
 
 XIII.— NOTICE OF APPLICATION FOR 
 APPOINTMENT OF TRUSTEE. 
 
 23. When any trustee, heretofore or hereafter appointed by 
 last will, shall neglect or refuse to act, or shall die before the 
 execution and completion of the trust committed to him, and 
 any interested person shall intend to apply to the Orphans' 
 Court of the county where the testator resided at the time of his 
 death for the appointment of a suitable person or of suitable 
 persons to execute such trust, the person intending to make such 
 application shall give, to all persons interested in the execution 
 of such trust, or to such of them as the court shall by its order 
 direct, when they reside in this state, at least ten days' notice, 
 in writing, of such intended application ; and when any of said 
 parties shall reside out of this state the notice shall be given, by 
 personal service, either within or without this state, or by mail- 
 ing the same to said parties at their respective post-office ad-! 
 dresses, at least thirty days before the day designated in the 
 notice for making such application. If any cestui que trust be 
 a minor or non compos mentis, notice shall be given to his or her 
 guardian, if any, and if none, to his or her next of kin, or such 
 of them as the court shall by its order direct. 
 
 XIV.— OF THE APPOINTMENT OF A GUARDIAN 
 AD LITEM. 
 
 24. Whenever it shall be necessary, in any cause or proceeding 
 in the Orphans' Court, that a guardian ad litem for an infant party 
 thereto should be appointed, a petition may be presented by the in- 
 fant, if above the age of fourteen years, or, if under that age, by 
 his guardian, appointed by the Orphans' Court, father or some 
 other friend in his behalf, praying such appointment. Annexed 
 to the petition there shall be an agreement, by the person peti- 
 tioned for, to accept the appointment, and also an affidavit that 
 the petition and agreement were duly signed by the persons 
 purporting to siga them, and verifying the age of the infant. 
 
cli 
 
 Or, if no such application shall be made by or on behalf of 
 the infant, within five days after the service upon him of the 
 citation or other authoritative command of the court, to appear, 
 <fcc., the said court may, on application on behalf of the party 
 instituting or prosecuting the proceedings, by its order, assign a 
 guardian ad litem for said infant, but ten days' notice of such 
 application must be given to the infant, if of the age of fourteen 
 years and resident within this State, or, if under that age, or 
 not a resident in this State, to his guardian, appointed by the 
 Orphans' Court, if any there be, and, if no such guardian, to the 
 father of such infant, or, if no father, then to the mother, 
 and, if no mother, to the person standing in loco parentis to the 
 infant, provided such guardian, father or mother, &c., be resi- 
 dent in this State, which notice may be served at the time of 
 service of the process of citation or at any time thereafter. 
 
Forms OF Pleadings. 
 
 GENERAL FORMS OF ADDRESSES, COMMENCEMENTS AND CON- 
 CLUSIONS OF SUITS BY BILL OR INFORMATION, 
 AND MANNER OF VERIFICATION. 
 
 A suit in the Court of Chancery is commenced by filing a 
 bill, (a) 
 
 The parts of an original bill are distinguished as follows : 
 
 I.— THE ADDRE8S.(6) 
 
 In Chancery of New Jersey. 
 To his Honor, , Chancellor of the State of New Jersey. 
 
 In United States Circuit Court, (e) To the Judges of 
 the Circuit Court of the United States for the District of New 
 Jersey. 
 
 (a) The rule requiring bills and actually received. The rule permils 
 
 other proceedings intended to be filed typewritten copies of pleadings, &c., 
 
 to be fairly and legibly written, to be filed, but not manifold copies on 
 
 should be strictly observed. As all thin paper. 
 
 the proceedings in the cause are en- (6) The form of the address is the 
 
 rolled, that accuracy essential to the same for bills and petitions, 
 record of a court of justice cannot be When the Chancellor is a party, he 
 
 secured unless the papers are drawn should be designated by the name of 
 
 with care. The bill being fairly his office only, in the process and in 
 
 written, is to be filed with the clerk all the proceedings. See Chancery rule 
 
 of the court. All papers are filed by 160. 
 the clerk as of the time they are (c) U. S. Court Equity ride. 
 
2 FOEMS OF PLBADINQS. 
 
 In County Circuit Courts, in foreclosure cases. 
 Mercer County Circuit Court. In equity. To his Honor, 
 , Judge of the Circuit Court of the County of 
 Mercer. 
 
 II.— THE INTRODUCTION.(a) 
 
 General form. Complaining, shows unto your Honor, 
 your orator, A B, of the city of Newark, in the county of Essex, 
 and State of New Jersey,* that, &c. 
 
 Circuit Courts of the United States. A B, of , 
 and a citizen of the State of , brings this his bill against 
 
 C D, of , and a citizen of the State of , and there- 
 
 upon your orator complains and says, that, &c. 
 
 Husband and wife. Complaining, show (as in general 
 form to *), and C B, his wife. 
 
 Wife suing alone. Complaining, &c., A B, of, &c., wife 
 of TB. 
 
 (a) It is not only necessary that the 
 names of the several complainants in 
 a, bill should be correctly stated, but 
 the place of residence of each com- 
 plainant must be set out, in order that 
 the court and the defendants may 
 know where to resort to compel obedi- 
 ence to any order or process of the 
 court, and particularly for the pay- 
 ment of any costs which may be 
 awarded against the complainants or 
 to punish any improper conduct in 
 the course of the suit. 1 Ban.- Oh. 
 Pr. (4iA ed.) 357. Formerly, it seems, 
 by the English practice, a demurrer 
 would lie to a bill which did not state 
 the place of residence of complainant, 
 or, if untruly stated, the defendant 
 might take advantage thereof by plea. 
 Howe V. Harvey, 8 Paige 74 ; and see 
 Winnipiseogee Lake Co. v. Worater, 9 
 Post. 443. The modern practice, how- 
 ever, in such cases, is not to demur or 
 
 plead to the bill, but to apply to the 
 court that the complainant give se- 
 curity for costs, and that, in the mean- 
 time, proceedings in the suit may be 
 stayed. Howe v. Harvey, supra, and 
 cases there cited. Where complainant 
 appears to have no permanent resi- 
 dence, he can be made to give security 
 for costs. Kerr v. Oillespie, 7 Beav. 
 269; Waits v. Kelly, 6 W. R. 206; 
 and see title "Security for Costs," infra. 
 As to a change in address of com- 
 plainant after bill filed, see Kerr v. 
 Oillespie, 7 Beav. 269. In equity, all 
 suits must be in the name of the party 
 really interested, and when the name 
 of an agent or trustee is used, the 
 cestui que trust must be made com- 
 plainant with him. Nichols v. Wil- 
 liams, 7 O. E. Or. 64 ; SlUlwell v. Me- 
 Neely, 1 O. C. JB. 305; WiUink v. 
 Morris Canal Co., 3 O. C. B. 397; 
 Tyson v. Applegate, 13 Stew. Eq. 305. 
 
BILLS : THBIB SEVERAL PAETS. 
 
 Wife by next friend: (a) husband a defendant. 
 Complaining, shows, &c., C B, of, &c., the wife of the defend- 
 ant, A B, by C L, of, &c., her next friend. 
 
 Infants.(6) Complaining, show, &o., A B and C B, infants 
 under the age of twenty-one, by H K, of, &c., their next friend. 
 
 (a) Where the husband files a bill 
 in relation to his own rights, if his 
 wife is a necessary party, by reason of 
 a judgment or decree in favor of the 
 husband and wife, which is a lien upon 
 the property of the defendant, and in 
 a case where all the encumbrancers 
 must be before the court, the wife may 
 be joined with her husband as a com- 
 plainant. Clarkson v. De Peyster, 3 
 Paige 336. On a bill filed by a wife 
 for the protection of her separate 
 property against creditors of the hus- 
 band, when the bill is exhibited and 
 sworn to by the husband as the next 
 friend of the wife, but he is not joined 
 as a party in the bill, either as com- 
 plainant or defendant — held, that the 
 husband cannot legally be joined as 
 complainant, his interest, which is 
 claimed by defendant, being adverse 
 to that of his wife. Johnson v. Vail, 
 1 McCart. 423 The practice, where 
 the husband improperly joins with 
 the wife as complainant, is not to dis- 
 miss the bill, but to give permission 
 to the wife to amend by adding a next 
 Jriend, and making the husband a de- 
 fendant. Ibid.; Barrett v. Doughty, 
 10 0. E. Or. 380. To a suit brought 
 by a married woman for relief, in 
 respect of her separate estate, her hus- 
 band is not a necessary or proper 
 party complainant. Tantum v. Cole- 
 man, nC.E. Or. 128. The husband 
 is a necessary party defendant in such 
 ■case. .Johnson v. Vail, supra; Tun- 
 nardv. Littell, 8 O. E. Or. 264. Two 
 complainants, with distinct causes of 
 
 action, alleging distinct injuries, can- 
 not unite in the same bill. Hendrick- 
 son V. Wallace, 4 Stew. Eq. 604. To 
 authorize them to join as complain- 
 ants, their causes of action must be the 
 same, the injury the same, and they 
 must be entitled to the same remedy. 
 Plum V. Morris Canal Co., 2 Stock. 
 256 ; see rule 131 ; Story's Eq. PL, I 
 286 ; Annin v. Annin, 9 G. E. Or. 188. 
 Persons having adverse or conflicting 
 interests, in reference to the subject- 
 matter of the litigation, ought not to 
 join as complainants in the suit. 
 Johnson v. Vail, 1 MeCart. 423. It 
 has been the practice, heretofore, for 
 married women to sue by their next 
 friend. Since the statute " Married 
 Women" {Bev., p. 638, ? 11), it has 
 been repeatedly held that she may sue 
 in her own name, without the inter- 
 vention of a next friend. 
 
 In the case of a married woman 
 suing by her next friend, it is usual, 
 but not essential, to set out the address 
 of the married woman, but the address 
 of the next friend must be stated. 
 1 Dan. Oh. Pr 359. 
 
 Where a bill was filed by husband 
 and wife in respect to the wife's sepa- 
 rate estate, objections to the joinder of 
 the husband as co-complainant with 
 his wife made on final hearing will 
 not prevail. An amendment may be 
 ordered. Paulison v. Van Iderstine, 1 
 Stew. Eq. 306. 
 
 (6) Where a bill is filed on behalf 
 of an infant or person of unsound 
 mind not so found, it is not necessary 
 
F0BM8 OF PLEADINGS. 
 
 Luiiatics,(«) &C. Complaining, &c., A B, of, &c., a lunatic, 
 by E. G, of, &c., his guardian {or next friend, where complain- 
 ant is of unsound mind, but not sofov/nd by inquisition,) that, &c. 
 
 or usual to describe the complainant 
 by his place of residence, because an 
 infant or person of unsound mind is 
 not responsible either for costs or for 
 the conduct of the suit ; the descrip- 
 tion and place of residence of the next 
 friend must, however, be set out. 
 Braithwaite' s Pr. 25 ; 1 Dan. Ch. Pr. 
 359. If a bill is filed by an infant, 
 without a next friend, the defendant 
 may mpve to have it dismissed, with 
 costs, to be paid by the solicitor. 
 Where, however, a, bill was filed by 
 the complainant, as an adult, a.nd it 
 was afterwards discovered that he was 
 an infant at the time of filing the bill, 
 and still continued so, whereupon the 
 defendant moved that the bill might 
 be dismissed, with costs, to be paid by 
 complainant's solicitor, the V. C. 
 made an order that the complainant 
 should be at liberty to amend his bill, 
 by inserting a next friend. Flight v. 
 Bolland, 4 Russ. 298. An infant may 
 sue by his next friend, notwithstand- 
 ing he have a guardian, if the guardian 
 do not dissent. Thomas v. Dike, 11 
 Vt. 273 ; see Trask v. Stone, 7 Mass. 
 241. Although an infant has a 
 guardian assigned him by the court 
 or appointed by will, yet, where the 
 infant is complainant, the course is, 
 not to call the guardian by that name, 
 but to call him the next friend. The 
 rule is otherwise, where the infant is 
 defendant. 1 Dan. Ch. Pr. 69. In 
 Harrison v. Harrison, 5 Beav. 130, 
 Lord Langdale, M. B., observed that, 
 " any person may commence a suit as 
 next friend of an infant." It seems 
 that, by statute, in England, before the 
 name of any person is used as the next 
 
 friend of an infant, he must sign a 
 written authority to the solicitor for 
 that purpose ; which authority is filed 
 with the bill. 15 and 16 Vic, ch. 86, 
 § 11. It was provided by statute in 
 New York, that before any process 
 should issue, in the name of an infant 
 who is sole plaintiff in any suit, a next 
 friend should be appointed by the 
 court, who shall be responsible for th& 
 costs, and it has been held that the 
 power of the court extended to those 
 infants who were joined with adult 
 complainants. In re Fritts, 2 Paige 
 375. In Priest v. Hamilton, 2 Tyler 
 49, the court says : " The court will 
 appoint a guardian for an infant de- 
 fendant from the urgency or necessity 
 of the case ; but this urgency or 
 necessity does not reach the case 
 where an infant is plaintiff; the court,, 
 therefore, never appoints a guardian 
 to prosecute, but only to defend an 
 infant party." 
 
 (a) Idiots and lunatics must sue in 
 equity by their committees or guard- 
 ians—in this state by their guardians. 
 Dorsheimer v. Rorback, 3 C. E. Gr. 
 439 ; and see Norcom v. Rogers, 1 O. E. 
 Or. 484. A bill filed in the name of 
 an idiot by a volunteer, styling him- 
 self her next friend, not appointed 
 her guardian upon inquisition found,, 
 nor authorized by the court to file the 
 bill as her next friend, will be dis- 
 missed on motion of the defendant. 
 Ibid. 
 
 A lunatic may sue by the attorney- 
 general or next friend where the in- 
 terests of the guardian clash with 
 those of the lunatic. Norcom v. Rogers 
 1 a E. Or. 484. 
 
BILLS : THEIE 8EVEEAL PASTS. 
 
 Corporation. Complaining, &c., the Trenton Banking 
 Company,* a corporation created by, and existing under, the 
 laws of the State of New Jersey, (or "a corporation of this 
 State.") 
 
 Railroad corporation. &c., the Delaware and Bound 
 Brook Bailroad Company, (as above after *) &c. 
 
 Foreign corporation.(a) Complaining, &c., the Mutual 
 Life Insurance Company, a corporation created by, and existing 
 under, the laws of the State of New York, that, &c. 
 
 Creditor suing on behalf of himself and others.(&) 
 Complaining, &e., A B, of, &c., on behalf of himself and all 
 other unsatisfied creditors of E F, of, &c., who shall come in 
 and contribute to the expenses of this suit, that, &c. 
 
 Executors or administrators.(o) Complaining, &c., A 
 
 (a) It is not incumbent on a foreign 
 corporation complainant to prove its 
 corporate existence, when the answer 
 raises no question as to its existence 
 or right to sue, but sets up a defence 
 to the merits alone Washingeoh Life 
 Ins. Co. y. Paterson Manuf. Co., 10 O. 
 E. Or. 160. An answer which admits 
 that a mortgage was issued to the 
 complainant, a corporation, of " the 
 purport and effect set forth in the 
 bill " does not raise any issue as to 
 the corporate existence of such com- 
 plainant, or its capacity to take such 
 mortgage. Butterfield v. Third Ave. 
 Bank, 10 C. E. Or. 5,33. 
 
 (i) Where a plaintiff sues on be- 
 half of himself, and of others of a 
 similar class, it should be so stated 
 in this part of the bill, and the omis- 
 sion of such a statement will, in many 
 cases, render a bill liable to objection 
 for want of parties, and in other cases 
 will deprive the plaintiff of his right 
 to the whole of the relief he seeks. 
 Dan. Ch Pr. 360. A judgment and 
 
 execution creditor cannot unite with 
 a general creditor. Haggerty v. Nixon, 
 11 C.E. Or. 42; Fleischman v. Young, 
 
 1 Stock. 622. Where the demands 
 of several complainants, united in the 
 same bill, are entirely distinct and 
 independent, where there is no privity 
 between them ; no general right to be 
 established as against the defendant ; 
 no common interest in all the com- 
 plainants ; no general right claimed 
 by the bill, and covering the whole 
 case ; no rights established in favor of 
 complainants ; and no demand made 
 that the funds of the defendant shall 
 be applied to the payment of the com- 
 plainants' claims, after their adjust- 
 ment ; and where their claims are not 
 in rem, but in •personam, the bill can- 
 not be sustained. Marselis v. Morris 
 Canal Co., Sax. 35. 
 
 (c) A bill filed by administrators 
 must allege that their intestate is dead, 
 and that letters of administration have 
 been issued to them. Stover v. Heading, 
 
 2 Stew. Eq. 153. It must show that 
 
FORMS OF PLEADINGS, 
 
 B and C D, of, (reaidenoe,) as executors of the last will and tes- 
 tament of G H, deceased, (or administrators of the goods and 
 chattels, rights and credits which were of G H, late of, &c., 
 deceased.) 
 
 Attorney-general on behalf of the state.(a) Inform- 
 ing, shows unto your Honor, your informant, J P 8, attorney- 
 
 the action is brought by the complain- 
 ant in his representative capacity, 
 and not as an individual. Bright v. 
 Oarrie, 5 Sandf. 433 ; Sheldon v. Hoy, 
 11 How. Pr. 11. In suits brought by- 
 executors, the rule in equity is, that 
 only the executors who have proved 
 the will must be parties. Minehart' s 
 Et^ts v. Binehart, 2 McOart. 44. To 
 enable an executor to maintain a suit 
 in this court, it is necessary that the 
 fact of the probate of the will should 
 be stated in the bill. Pelletreau, Ei^r, 
 V. Rathhone, Sax. 331. It is not neces- 
 sary for him to set forth his letters 
 testamentary. Telfair v. Stead's Ex'rs, 
 2 Oranch 408, Alleging in the bill 
 that the complainant hath taken upon 
 himself the burihen of executing the 
 trusts and duties required of him by 
 the bill, and become duly qualified as 
 executor, is not suflScient. Pelletreau, 
 Ex'r, V. Rathbone, supra. Stating in 
 the bill that the will has been duly 
 proved in the State of New Jersey, 
 might be sufficient, without specify- 
 ing whether such proof was in either 
 of the Orphans' Courts, or before the 
 Ordinary. Ibid. It is a general rule 
 that executors and administrators can 
 sue and be sued as such, only in the 
 state in which they were appointed. 
 McNamara v. Dwyer, 7 Paige 239. 
 A foreign executor or administrator 
 before bringing suit must file with the 
 clerk an exemplified copy of his 
 letters. P. L. 1887, p. 154. Before 
 he can be substituted in the place of 
 
 the testator or intestate who brought 
 the suit, he must file an exemplified 
 copy of the record of his appointment. 
 P. L 1888, p. 473. An administra- 
 trix cannot be made a party com- 
 plainant in a bill with her co-admin- 
 istrators, without her consent, and if 
 she claim adversely to the prayer of 
 the bill, the court, upon motion, will 
 direct her name to be stricken from 
 the bill as complainant, and to be in- 
 serted as a defendant. Dar^s Adm'rs 
 V. Alien's E^r, 1 G. C. R. 288. If an 
 executor, before probate, file a bill 
 alleging that he has proved the will, 
 such allegation will obviate a de- 
 murrer ; he must, however, prove the 
 will before the hearing of the cause, 
 and then the probate will be sufficient 
 to support the bill, although it bear 
 date subsequently to the filing of it. 
 Humphreys v. Ingledon, 1 P. Wms. 
 752, note. The same rule applies to 
 administrators. Fell v Luiwidge, 
 Barn. 320 ; Humphreys v. Humphreys, 
 3 P. Wms. 351 ; Langdon v. Potter, 11 
 Mass. 313. 
 
 (a) Where the suit immediately 
 concerns the rights of the State, the 
 information is generally exhibited 
 without a relator. Alt'y-Gen. v. Del. 
 & B. B. R. Co., 12 C. E. Gr. 5, and 
 cases cited. While in practice it is 
 usual to name a relator, and the con- 
 trary course may tend to oppression, 
 since, if there is no relator, the de- 
 fendant can recover no costs, still in 
 matters of purely public concern — as 
 
BILLS: THBIE SEVERAL PARTS. 7 
 
 general of the State of New Jersey, on behalf of the said state, 
 that, &c. 
 
 Same, where there is a relator. Informing, &c., J P 8, 
 attorney-general, &c., at and by the relation of A B, of, &o., 
 thatj &c. 
 
 Same, on behalf of a lunatic.(a) Informing, shows 
 unto your Honor, your informant, J P 8, attorney- general, &c., 
 on behalf of J W, of, {residence,) a lunatic, at and by the rela- 
 tion of R W, of, &c., that, &c. 
 
 III.— THE PREMISES OR STATING PART.(6) 
 
 {After narrating the facts and circumstances of the complain- 
 ant's case,) concludes as follows : 
 
 And your orator well hoped that the said C D {the defendant) 
 
 where the property of the state, owned 
 by it in its political capacity, or where 
 public rights, in which no merely 
 private interest is involved, are in 
 question — the courts are open to the 
 state, without requiring security for 
 costs Ibid.; S. C on appeal, 12 O. E. 
 Or. 633. 
 
 (a) Information by the attorney- 
 general may be filed on behalf of a 
 lunatic in certain cases. Norcom v. 
 Rogers, 1 C E. Or. 484. But he must 
 be named as a party to the suit; 
 merely naming him as a relator not 
 sufficient. Alt'y-Oen. v. Tiler, 1 Dick. 
 378. 
 
 (6) A bill in chancery, like a de- 
 claration at law, should confine its 
 statements to such facts as are proper 
 to show that the complainant is en- 
 titled to relief, and which, if proved, 
 will entitle him tofelief; and should 
 not set out the evidence, whether oral 
 or written, by which the facts are to 
 be proved. G. & A. B. B. Co v. Slew- 
 art, 4 C. E. Or. 343; see Smith v. 
 
 Sumham, 2 Sumner 612 ; Bishop v. 
 Bishop 13 Ala. 475. The modern 
 English rule is difiereut, and requires 
 all admissions or confessions of the 
 defendant, relied on as evidence, to be 
 set forth in the bill ; and if they are 
 not, excludes the complainant from 
 offering them in evidence. 'Whether 
 this rule applies to the courts of this 
 state, not decided. Ibid. ; see Story's 
 Eg. PL, I 265. Where the statement 
 of facts in the bill is broad enough to 
 give the complainant a right to relief^ 
 it matters not how narrow the prayer 
 may be, if the bill contains a prayer 
 for general relief. And although a 
 complainant may claim a relief not at 
 all warranted by the facts, or may be 
 entitled to relief upon very different 
 principles of equity from what he 
 supposed, such a misapprehension of 
 his case cannot defeat his right to 
 relief. Hill v. Beeeh, 1 Beas. 31. The 
 fact that the frame of the bill is 
 unusual and without a precedent, does 
 not alone constitute an objection to the 
 
F0EM8 OF PLEADINGS. 
 
 would have complied with such reasonable requests of your 
 orator, as in equity and good conscience he ought to have done. 
 
 relief sought, if it can be supported 
 upon principle Yauger v. Skinner, 1 
 McCart 395. The bill should be 
 framed to meet the case, so that the 
 allegata and probata may agree with 
 reasonable certainty. Smith, Adm'r, 
 T. Axtell, Sax. 497. Where the bill 
 goes on an original agreement in 
 writing, and does not mention the loss 
 of it, so as to admit of any evidence in 
 lieu of it, parol evidence of its con- 
 tents, or a paper purporting to be a 
 copy of it, is not sufBcient; but the 
 pleadings may be amended to get at 
 the merits of the case. Ibid. Tech- 
 nicality of pleading, however, is not 
 required ; and if the complainant files 
 his bill as the assignee of the mort- 
 gage, and alleges that the debt is due 
 and owing to him, and that he is 
 ready to produce the note or obliga- 
 tion, which is the evidence of the 
 debt the mortgage is given to secure, 
 it is sufficient, without stating that the 
 note or obligation has been assigned 
 to him. Ibid. Where the bill shows 
 upon its face that the complainant has 
 the legal title, and a complete legal 
 defence to an action of ejectment, this 
 court will not interfere with the suit 
 at law. Philhower v. Todd, 3 Stock. 
 54. The bill must show clearly the 
 grounds of equity, and they must not 
 be left to inference. Ibid. The com- 
 plainant can recover only upon the 
 case made in his bill. The allegata 
 and probata must correspond. Parsons 
 V. HesUm, 3 Stock. 155. An immaterial 
 variance between the agreement 
 alleged in the bill and that admitted 
 by the answer, will not prevent a 
 decree for specific performance. Ash- 
 more V. Evans, 3 Stock. 153. Where 
 a complainant claims the benefit of a 
 
 statute, his bill must contain all the 
 averments necessary to bring his case 
 within its beneficial provisions. Eber- 
 hart V. Oilchrist, 3 Stock. 167. The 
 rule is not entirely inflexible that the 
 substance of the complainant's case 
 must be contained in the stating part 
 of the bill. Rorback v. Dorsheimer, 10 
 O. E. Or. 516. The complainant 
 will not be permitted to ofier or 
 require evidence of any material fact 
 not distinctly stated in this part of the 
 bill. Story's Eq. PL, U 28, 257. A 
 general statement or charge of the 
 matter of fact is sufficient; it is not 
 necessary to charge minutely all the 
 circumstances which may conduce to 
 prove the general charge, for these 
 circumstances are properly matters of 
 evidence, which need not be charged 
 in order to let them in as proofs. 
 Story's Eq. PI, I 28 ; C. & A. B. B. 
 Co. V. Stewart, 4 0. E. Or. 343. If a 
 fact is stated anywhere in the stating 
 part of the bill, with legal certainty, 
 and is material, it is well pleaded. 
 Pat. & Hud. B. B. Co. v. Jersey City, 
 1 Stock. 434 ; Bandolph v. Daly, 1 C. 
 E. Or. 313. Facts proved, but not 
 pleaded, are not available to the party 
 proving them. Allen v. Mercantile 
 Mut. Ins. Co., 46 Sarb. 643. Gener- 
 ally, whatever is essential to the rights 
 of the complainant, and is necessarily 
 within his knowledge, ought to be 
 alleged positively Ld. Bed. 41. It 
 is not a sufficient averment of fact in a 
 bill to state that a plaintiflF " is so in- 
 formed." Lord Uxbridge v. Staveland, 
 1 Ves., Sr , 56; Phillips v. Schooley, 
 12 C. E. Or. 410. An allegation that 
 the complainant " has been informed 
 and believes, and therefore avers," is 
 a sufiicient averment. Wells v. Bridge- 
 
BILLS: THEIE SEVERAL PARTS. 
 
 IV.— THE CHARGE OF CONFEDERA.CY.(a) 
 
 v.— THE CHARGING PART.(6) 
 
 And the said defendants sometimes pretend that, &c,, whereas, 
 your orator charges the contrary thereof to be the truth, and 
 that, &c. 
 
 VI.— THE JURISDICTION CLA.USE.(c) 
 
 All which actings, doings and pretences of the said defendant 
 (or "defendants") are contrary to equity and good conscience, 
 
 port Co., 30 Gonn. 316. A complain- 
 ant must state in his bill a case upon 
 which, if admitted by the answer or 
 proved at the hearing, the court could 
 make a decree. Perry v. Carr, 41 N. 
 H. 371. This part of the bill should 
 be full and accurate, for if a plea is 
 put in, the validity of the plea will be 
 decided with reference to the stating 
 part of the bill, and not with reference 
 to the interrogating part, if it should 
 vary from it. Story's Eq. PL, I 27. 
 Where the stating part does not show 
 the equity of the complainant's case, 
 the defect cannot be supplied by infer- 
 ence or by reference to averments in 
 other parts of the bill. Wright v. 
 Dame, 22 Pick. 59. A bill which fails 
 to make a case which if admitted or 
 proved will entitle the complainant to 
 a decree, must be held bad on general 
 demurrer. Kip ■v. Kip, 6 Stew. Eq. 213. 
 
 In equity pleadings such degree of 
 certainty should be adopted as will 
 give the opposite party full informa- 
 tion of the case he is called upon to 
 meet. Mutual lAfe Ins. Co. v. Sturgis, 
 6 Stew. Eq. 328 ; Dogherty v. Bennett, 
 10 Stew Eq. 87 ; Brokaw v. Brokaw, 
 14 Siew. Eq. 215. 
 
 (a) The charge of confederacy is 
 now abolished. See rule 214. 
 
 (6) Where the complainant wishes 
 to obtain a discovery of facts to antici- 
 pate and rebut the defence which may 
 be set up by the defendant, he should, 
 in the charging part of the bill, state 
 the anticipated defence as a pretence 
 of the defendant, and then charge the 
 real facts, to lay a foundation for the 
 discovery which is sought. Stafford v. 
 Brown, 4 Paige 88. It has been held 
 that in a sworn bill, it is equally per- 
 jury for the complainant knowingly to 
 make a false charge or averment in 
 the charging part, as to make a false 
 statement in the stating part of the 
 bill. Smith v. Clarke, 4 Paige 368. 
 A defect in the charging part of a bill 
 cannot be supplied by a subsequent 
 interrogatory. Parker v. Carter, 4 
 Muvf. 273. Whether a fact is to be 
 stated in the stating part or the charg- 
 ing part of the bill may be decided by 
 the following criterion : If it is a fact 
 fundamentally material to the com- 
 plainant's case, actually" essential to it 
 beyond all doubt, as a portion of its 
 very consistence, it should be in the 
 stating part, but not otherwise. 
 
 (c) A precise averment of jurisdic- 
 tion in the' court is now obsolete in 
 England, and was never absolutely 
 requisite. Dan. Ch. Pr. 1883, note 2. 
 
10 
 
 F0EM8 OF PLEADINGS. 
 
 and tend to the manifest wrong, injury and oppression of your 
 orator in the premises. 
 
 In consideration whereof, and forasmuch as your orator is 
 without adequate remedy in the premises, at and by the strict 
 rules of the common law, and can only obtain relief in this 
 honorable court, where matters of this nature are properly 
 cognizable and relievable. 
 
 VII.— INTERROGATING PART.(a) 
 
 To the end, therefore, that the said (defendants, naming them,) 
 may, upon their several and respective corporal oaths, to the best 
 and utmost of their respective knowledge, remembrance, infor- 
 mation and belief, full, true and perfect answer make to all and 
 singular the matters aforesaid, {or if an answer, on oath, is meant 
 to be waived, omit the words in italics, and insert ai this place: 
 
 (a) Interrogatories appended to the 
 bill, and based on the statements and 
 charges therein made, may be regarded 
 as incorporated in the bill, and a 
 prayer for a responsive answer thereto, 
 on oath, is not demurrable. Bomaine 
 V. mndricUan'sEx'rs, 9 O. E Gr. 231. 
 A bill which wholly omits the inter- 
 rogatory part is defective. Shedd v. 
 Oarfield, 5 Vt. 39 ; but see Story's Eq. 
 PL, § 38, and note 3. The general in- 
 terrogatory or requistion in the bill, 
 "that the defendant may full answer 
 make to all and singular the premises, 
 fully and particularly, as though the 
 same were repeated, and he specially 
 interrogated paragraph by paragraph, 
 with sums, dates and all attending cir- 
 cumstances and incidental transac- 
 tions," is sufficient to entitle the com- 
 plainant to a full disclosure of the 
 subject-matter of the bill, equally as if 
 he had specially interrogated the de- 
 fendant to every fact in the bill. Meth. 
 Ep. Ch. V. Jaques, 1 Johns. Oh. 65. If 
 the defendant be specially interrogated, 
 there can be no interrogatory allowed 
 which does not arise from or relate to 
 
 some fact charged in the bill. James 
 V. McKernan, 6 Johns. 543'; Woodcock 
 V. Bennett, 1 Cowen 734. The defend- 
 ant is not bound to answer an inter- 
 rogatory, unless the same is founded 
 upon some allegation or charge in the 
 bill. Mechanics' Bank v Levy, 3 Paige 
 606. It is provided by statute in New 
 Jersey, (i2et)., "Chancery," ^ 23,) that 
 when an answer without oath is 
 prayed in the bill, the complainant 
 may annex to the bill interrogatories 
 founded on statements in the bill, and 
 the same or any part thereof may be 
 addressed to all or any of the de- 
 fendants, * * and any defendant 
 omitting to answer any such inter- 
 rogatory directly and fully, may be 
 compelled to do so, or the allegations 
 in the bill upon which the interroga- 
 tory is founded, shall be taken as ad- 
 mitted to be true. 
 
 Where a bill prays an answer with- 
 out oath, such answer, although not 
 evidence for the defendants, is evi- 
 dence against them. Symmes v. Strong^ 
 1 Stew. Eq. 131 The interrogatory part 
 is composed of nothing more than each 
 
BILLS: THEIE SEVEKAL PARTS. 
 
 II 
 
 your orator hereby waiving, pursuant to the statute, the necessity 
 of the answer of such defendants being put in under the oaths 
 of the said defendants, or the oaths of either of them,) {or say 
 simply, without oath,) and that as fully and particularly as if the 
 same were here repeated, and they and every of them distinctly 
 interrogated thereto ; {here insert the interrogatories, if any, to be 
 answered by the defendants, directing what interrogatories are to 
 be answered by each, thus :) and more especially that they may,^ 
 in manner aforesaid, answer and set forth whether, &c. 
 
 VIII.— PRAYER FOR GENERAL RELIEF.(a) 
 
 And that your orator may have such further or(6) other relief 
 in the premises as the nature of the case may require, and as 
 shall be agreeable to equity and good conscience. 
 
 statement and pretence and charge in 
 the stating and charging parts of the 
 bUl, repeated with such additions only 
 as render each a question instead of an 
 assertion, such questions being num- 
 bered and beginning with the word 
 "Whether," e.g., "Whether it is not a 
 fact that," or " Whether it is not true 
 that." 
 
 (a) The prayer for general relief 
 cannot be properly or safely omitted, 
 because if the complainant should 
 mistake the relief to which he is en- 
 titled in his special prayer, the Chan- 
 cellor may yet afford him the relief 
 to which he has a right under the 
 prayer for general relief, provided 
 such relief is agreeable to the case 
 made by the bill. Ld. Bed. 38, 45. 
 Under the prayer for general relief, 
 only such relief can be given as is 
 warranted by facts clearly and posi- 
 tively set forth in the bill. Walker v. 
 Sill's Ex^rs, 6 a E. Or. 191. Where 
 a bill contains only a special prayer 
 for relief, no other relief can be 
 granted. And if the facts set forth in 
 the bill would not authorize other 
 relief, the prayer will not be amended. 
 Hoisted V. Meeker's Ex'rs, 3 C. E. Or. 
 
 136. Under the general prayer for 
 relief, any relief will be granted that 
 the complainant proves himself en- 
 titled to upon the facts stated in his 
 bill. Oraham v. Berryman, 4 C. E.. 
 Or. 29 ; Pillow v. Pillow, 5 Yerg. 420; 
 and see Bailey v. Burton, 8 Wend 339 ; 
 Lingan v. Senderson, 1 Bland 251- 
 Where the statement of facts is broad 
 enough to give complainant a right to 
 relief, it matters not how narrow the 
 prayer may be, if the bill contains 
 a prayer for general relief. Sill v. 
 Beach, 1 Beas. 31. Under the prayer 
 for general relief, the complainant 
 cannot recover a claim distinct from 
 that demanded or put in issue by the 
 bill. Sheppard's Ex'r v. Starke, 3 
 Mwnf. 29. Ordinarily, an injunction 
 cannot be granted under a prayer for 
 general relief: it must be the subject 
 of a special prayer, but the bill may be 
 so amended. African M. E. Church, 
 v. Conover, 12 C. E. Or. 157. Where 
 an account or any other relief is in- 
 cidentally asked, if relief on the main 
 ground is denied, the bill should be 
 dismissed. Je/wett .v. Bowman, 2 Stew. 
 Eq. 174. 
 
 (6) See Oolton v. Boss, 2 Paige 397. 
 
12 
 
 FORMS OP PLEADINGS. 
 
 IX.— PRAYER FOR PROCESS.(a) 
 
 May it please your Honor, the premises considered, to grant 
 unto your orator the state's writ or writs of subpoena, issuing 
 out of and under the seal of this honorable court, to be directed 
 to the said {defendants, naming them,) commanding them, and 
 €ach of them, by a certain day and under a certain penalty 
 therein to be expressed, to be and appear before your Honor in 
 this honorable court, then and there to answer all and singular 
 the said premises, and to stand to, abide by, and perform such 
 order and decree therein' as to your Honor shall seem meet, and 
 shall be agreeable to equity and good conscience. And your 
 orator, as in duty bound, will ever pray, &c. 
 
 Where the United States or the state is a party.(6) 
 May it please your Honor, that the district attorney of the 
 
 (a) The bill must call all necessary 
 parties, however remote in interest, 
 before the court, and none are parties 
 but those against whom process is 
 prayed. Blake Ch. Pr. 20 ; Howe v 
 Bobbins, 9 Stem. Eq. 19; White v. 
 Davis, 3 Dick. Oh. Sep. 22. Where a 
 bill contained no prayer for process, a 
 demurrer was allowed for this defect. 
 Wright v. Wright, 4 Hal. Ch. 143. 
 The omission cannot be taken advan- 
 tage of by general demurrer. Boon v. 
 Pierpont, 1 Stew. Eq. 7. In this case, 
 the demurrer was overruled with 
 leave to amend it, unless complain- 
 ants, within ten days, should amend 
 their bill by inserting defendants' 
 names in the prayer for answer. See 
 Marsh v. Marsh, 1 C. E. Or. 391. 
 They only are defendants to a bill 
 against whom process of subpcena is 
 prayed. Fawkes v. Pratt, 1 P. Wms. 
 593; Windsor v. Windsor, 2 Dick. 707. 
 A party whom the bill prays to be 
 made a party, does not thereby become 
 a party; to make him such, process 
 
 must be issued and served upon him. 
 Bond V. Hendricks, 1 A. K. Marsh. 
 594. Formerly, in New York, parties 
 might be treated as defendants, by a 
 clear statement in the bill to that 
 effect; without praying the subpoena. 
 Brasher v. Van Oortlandt, 2 Johns. Oh. 
 245 ; Elmendorf v. Delancy, Hopk. 555. 
 The prayer for process is required by 
 the 23d equity rule, U. S. courts. 
 And see Story's Eq. PL, § 44. An 
 amendment will cure the omission of 
 a prayer for subpoena in the original 
 bill. Ogden v. Gibbons July Term, 
 1823; see Ghancery rule 66, as to 
 amendments. 
 
 (6) It is provided [Rev., " Treasury," 
 §§ 69, 70,) that in all suits wherein 
 the lien or encumbrance or priority of 
 encumbrance of the state shall . be 
 brought in question, a notice out of the 
 court, stating the names of the parties 
 and the encumbrance or lien of the 
 state sought to be affected, and a day 
 for return, as in writs out of the same 
 court, may issue directed to the State 
 
BILLS: THEIR SEVERAL PARTS. 
 
 13 
 
 United States(a) for the district of , (or the attorney-general 
 of the state of ,) being attended with a copy of this bill, may 
 appear and put in an answer thereto, and may stand to and 
 abide such order or decree in the premises as to your Honor 
 shall seem meet, &c. 
 
 In the case of a corporation defendant.(^) And that 
 the said the " president, directors and company of the State 
 Bank at New Brunswick " may appear according to law and the 
 course of this court. 
 
 Prayer for injunction and for subp(Bna.(e) May it 
 please your Honor, the premises considered, to grant unto your 
 orator not only the state's writ of injunction, issuing out of and 
 under the seal of this honorable court, to be directed to the said 
 C D and E F, restraining them and each of them, from (com- 
 mitting any further waste or destruction upon the mortgaged 
 premises aforesaid, or as the case may be,) but also the state's 
 writ of subpoena, &c. 
 
 of New Jersey, and the same may be 
 served upon the attorney-general as 
 other process is served out' of said 
 court; and on the return of such 
 notice duly served, or on appearance 
 by the attorney-general for the state, 
 the suit may proceed as in other caseSj 
 and a decree or judgment therein shall 
 bind the state the same as if it had 
 been made against an individual. 
 
 (a) EUiott V. Van Voorst, 3 Wall., 
 Jr., 299. 
 
 (6) Where a corporation is made a 
 defendant, it appears deficient in pre- 
 cision to say that it should personally 
 appear. 1 Hoff. Ch. Pr. 56. Where 
 there was no prayer for process against 
 a corporation by its corporate name, 
 but only against the officers thereof, 
 and the corporation was not described 
 in the bill as being a party thereto 
 — held, that the corporation was not 
 before the court or a party to the suit. 
 
 Verplanck v. Mercantile Ins. Co., 2 
 Paige 438. 
 
 (c) A subpoena must be taken out 
 with the injunction, and made return- 
 able within the time prescribed by the 
 rule for the return of service of the 
 injunction. Lee v. Cargill, 2 Slock. 
 331. But after answer has been filed, 
 it is too late to object to the want of 
 subpcena. MS., Williamson, C, April, 
 1829. If an injunction is taken out 
 without taking out a subpoena, the 
 injunction may, for that cause, be 
 dissolved. Ibid. If an injunction is 
 prayed in the bill, but is omitted in 
 the prayer for process, an injunction 
 ought not to issue without an amend- 
 ment of the bill. Bailey v. Stiles, 2 
 Or. Ch. 245. On bills to restrain the 
 execution of process or the perform- 
 ance of official acts the sheriff is made 
 a party, as the design of the injunction 
 is to restrain him from acting; but 
 
14 
 
 FORMS OF PLEADINGS. 
 
 Prayer for ne exeat and subp(Bna.(a) May it please 
 your Honor, the premises considered, to grant unto your orator, 
 not only a writ of ne exeat republica issuing out of and under 
 the seal of this honorable court, to restrain the said defendant, 
 C D, from departing out of the jurisdiction of this court, but 
 also the state's writ of subpoena, &c. 
 
 •where no relief is prayed, and no de- 
 cree asked against the officer, it is not 
 necessary nor usually expedient for 
 the sheriff to answer. Brooks v. 
 Lewis, 2 Beas. 214. 
 
 (a) The writ of ne exeat cannot issue 
 without a bill being filed. Ex parte 
 Brundcer,Z P.Wms.Zn. The affidavit 
 on which the application for a ne exeat 
 was made in a divorce case, was made 
 before the petition for divorce was 
 filed. Ne exeat denied. The proper 
 course is to file the bill or petition for 
 divorce, and after that to file a peti- 
 tion for the ne exeat, supported by 
 the necessary affidavits, sworn subse- 
 quently. Byl'andt v. Bylandt, 2 Hal. 
 Ck. 28; Anonymous, 6 Mad. 276; 
 Hughes v. Ryan, 1 Beaity 327. It is 
 not necessary that the defendant 
 shbuld be actually in the state when 
 application is made for the writ of 
 lie exeat. Parker v. Parker, 1 Beas. 
 105. Upon a bill for alimony only, 
 the court may make an order for a 
 ■»e exeat before alimony is fixed. Yule 
 V. Yule, 2 Stock. 138. The affidavit 
 of the wife alone is sufficient to sup- 
 port the order. Ibid. ; see Denton v. 
 Denton, 1 Johns. Oh. 441. The affi- 
 davit should show that the defendant 
 intends going abroad. Ibid.; see 
 Dwnham v. Jackson, 1 Paige 629. In 
 some cases, it will be sufficient if the 
 intention of the defendant's going 
 abroad is sworn to upon information 
 or belief. Ibid. Nor is it necessary 
 that he should be a resident of this 
 state. Ibid.; see Mitchell v. Bunch, 1 
 
 Paige 606 ; Gilbert v. Colt, Hopk. 496. 
 A writ of ne exeat will not issue unless 
 there is a debt due from the defend- 
 ant to the complainant, or unless the 
 complainant is entitled to an account. 
 Williams v. WiUiams, 2 Gr. Ch. 130. 
 But see as to applications for alimony, 
 Denton v. Denton, 1 Johns. Ch. 441. 
 The writ of ne exeat will issue only for 
 an equitable demand ; and an action 
 for an account is an equitable demand 
 for which it will issue. MacDonough 
 V. Gaynor, 3 C. E. Gr. 249 ; Mitchell 
 V. Bunch, supra. It must appear by 
 positive proof that there is a certain 
 sum actually due, except in account, 
 when the proof must show some sum 
 due, the amount of which may be 
 sworn to according to belief. Ibid.; 
 Boehm v. Wood, 1 Tur. & Buss. 343. 
 The writ will be issued against a non- 
 resident, temporarily here, even if riot 
 in the state at the time ; and it is not 
 necessary that it should appear that 
 he is about to depart to avoid the 
 jurisdiction, if his departure will de- 
 feat the suit. McDonough v. Gaynor, 
 ubi supra. If the writ is served, no 
 subpoena is necessary. Ibid. A de- 
 fendant arrested and in custody under 
 a ne exeat may, before answer, apply 
 for the discharge of the writ on affi- 
 davits. Cary v. Cary, 12 Stew. Eq. 3. 
 A defendant is entitled to the benefit 
 of his sworn answer to the charge of 
 the bill upon which a ne exeat issued. 
 Jewett V. Bowman, 12 C. E. Ch. 275. 
 A ne exeat may be applied for at any 
 stage of the suit. Dunham v. Jackson, 
 
BILLS: THEIR SEVERAL PARTS. 
 
 15 
 
 METHOD OF SIGNING BILLS. 
 
 Where a complainant sues in person. John Smith, 
 complainant, in person. 
 
 Bill by a private person or corporation, through 
 a solicitor.(a) J W T, solicitor for and of counsel with com- 
 plainant. 
 
 Bill by a private person, sworn to.(6) A B, (com- 
 plainant.) P K, solicitor for and of counsel with complainant. 
 
 1 Paige 629. If the party in the pro- 
 gress of the suit threatens to leave the 
 country, the writ may be applied for 
 by petition, without its being prayed 
 for in the bill, and without an amend- 
 ment to insert such prayer. Collinson 
 
 V. , 18 Ves. 354; Beames' Ne 
 
 Exeat 62. 
 
 (a) Bills must be signed by counsel. 
 Signing the name of counsel is not a 
 compliance with the rule, either in 
 spirit or letter. Baxu v. Davis, 4 C 
 E. Gr. 180 ; see Chancery rule 48. 
 Where the complainant sues in per- 
 son, it seems the bill need not be 
 signed by counsel. 1 Hoff. Ch. Pr. 97. 
 Signature of firm of counsellors to a 
 l>ill a compliance with the rule. 
 Hampton v. Coddington, 1 Stew. Eg. 
 557. Where the bill was not signed by 
 counsel, the demurrer was allowed as 
 to this defect. Wright v. Wright, 4 
 JSai. Ch. 143; see Dillon v. Francis, 
 Dick. 68. In New Jersey, bills are 
 generally signed by the solicitor and 
 counsel alone, and not by the party. 
 He who is both solicitor and counsel, 
 jnay sign it in both capacities. In 
 Whitloek y. Marriot, 2 Bep. in Ch. 
 386, it was held that a solicitor was 
 guilty of a misdemeanor in putting 
 the name of a counsellor to a pleading 
 -without his knowledge or consent. 
 See Doe v. Green, 2 Paige 347. If the 
 
 bill has been inadvertently filed with- 
 out the signature of counsel, an order 
 as of course may be obtained on mo- 
 tion or petition, giving leave to amend 
 by adding such signature. Braith- 
 waite's Pr. 23. Counsel, before annex- 
 ing his name to a bill, should peruse 
 it or be informed of its contents in 
 such manner as to satisfy him that he 
 may certify that the bill states a case 
 on which the complainant may be 
 entitled to relief, set forth with so 
 much regard to the essential rules of 
 pleading, and praying relief in such 
 manner as to entitle it to the con- 
 sideration of the court. Davis v. 
 Davis, 4 a E. Gr. 181. 
 
 (6) In cases where the bill is to be 
 sworn to, the practice varies as to the 
 signature of the party to the bill. In 
 New York, a rule of the court re- 
 quired the bill to be so signed, and 
 this practice seems to have prevailed 
 generally in injunction cases before 
 the adoption of the rule. In the ab- 
 sence of any express rule in New Jer- 
 sey, it is probable that a signature to a 
 verification of the bill would be con- 
 sidered a sufficient subscription to the 
 bill. For the practice of the court as 
 to the manner of signing and verify- 
 ing pleadings, see Pincers v. Bobertson, 
 9 C. E. Gr. 348. 
 
16 rOEMS OF PLEADINGS. 
 
 Bill by a corporation, sworn to.(a) T F E, (president, 
 &c.) J V, solicitor for and of counsel with complainant. 
 
 METHOD OF SWEARING TO BILLS.(6) 
 
 By the complainant in person. 
 
 State of New Jersey, 1 
 
 county of / 
 
 A B, the above-named complainant, being duly sworn accord- 
 ing to law, on his oath saith — That he has read the above bill 
 of complaint {or has heard the above bill read) and knows the, 
 contents thereof, and that the same is true of his own knowledge, 
 except as to the matters that are therein stated to be on his infor- 
 mation or belief, and as to those matters he believes it to be true. 
 And further, &c. {Here follows the speoifio verification.) 
 
 {Signature.) 
 
 Sworn and subscribed before me, this day of , 
 
 A. D. 18 . {Signature of master.) 
 
 By an agent or attorney. {Same as in form above.) 
 A B, the agent (or attorney) of G H, the above-named com- 
 plainant, being duly sworn, &c., saith — That he has read the 
 above bill {or heard it read) and knows the contents thereof, and 
 that the same is true of his own knowledge, except as to the 
 matters therein stated to be on the information or belief of the 
 complainant, and that as to those matters he believes it to be 
 true. And further, &c. {Signature.) 
 
 {Jurat.) 
 
 (a) In case a bill of a corporation cient ; but the statements of the bill 
 
 is signed, it should be so signed by which are relied upon as grounds for 
 
 the ofBcer making the oath. 1 Hoff. granting the writ, must be specifically 
 
 Ch. Pr. 96. verified. Bute 118 ; Youngblood v. 
 
 (6) The bill, except in special cases Schamp, 2 McCart. 42; Holdrege v. 
 to be mentioned hereafter, need not- be Ovtynne, 3 C. E. Or. 27. Where a 
 sworn to. Where the complainant in bond has been casually lost and a 
 an injunction bill relies on his own party comes into the Court of Chan- 
 oath, the charges in the bill, and the eery for discovery and also for relief, 
 affidavits verifying them, should be it is usual to attach to the bill an affi- 
 direct and positive. Perkins v. Collins, davit of the loss. MUler v. Wacky 
 2 Gr. Ch. 482. To obtain an injunc- Sax. 210. 
 tion, this form of affidavit is not suffi- 
 
BILLS: AFFIDAVITS TO. 17 
 
 By a corporation.(a) J G S, of full age, being duly 
 sworn according to law, on his oath saith — That he is now, and 
 for several years last past has been, the president of the C & 
 ARE, Co., the corporation named as complainant in the above 
 bill of complaint ; and that by means of his said office he has 
 acquired and possesses, as he verily believes, greater and more 
 particular knowledge of the matters stated in said bill, than any 
 other officer or member of said corporation, inasmuch as said 
 matters relate particularly to the sphere of duties of deponent 
 as such president ; that he has read the above bill {or has heard 
 the above bill read) and knows the contents thereof, and that the 
 same is true of his own knowledge, except as to the matters that 
 are therein stated to be on the information and belief of the com- 
 plainant, and that as to those matters he has been so informed 
 and believes it to be true. And further, &c. {Signaiv/re.) 
 
 {Jurat.){b) 
 
 By an attorney in fact.(c) {Commencing as in general 
 form.) That he has information as to all the matters stated 
 therein, and from such information believes such matters to be 
 truly stated therein, and that such bill is true ; that deponent 
 is the attorney in fact of A B, the complainant in the above 
 bill, for the purpose of filing the same, to obtain the relief 
 therein prayed, constituted and appointed by the said complain- 
 ant by a power of attorney duly executed and delivered by 
 
 (o) Where the bill is filed by a v. Flemington Co., 2 Gr. Oh. 467. The 
 
 corporation, the officer or other person affidavits to the bill are not evidence 
 
 who has the principal personal knowl- at the final hearing. AU'y-Oen. v. 
 
 edge of the facts should swear to them. Steward, 6 C. E. Gr. 340. 
 Yoimgblood v. Schamp, 2 McCart. 42. (c) This form was prescribed by 
 
 The president or secretary or agent of the Chancellor in Bank of Orleans v. 
 
 a corporation, where such a corpora- Skinner, 9 Paige 305. The facts need 
 
 tion is a party to a suit, is the proper not be proved by the affidavit of the 
 
 person to make an affidavit therein. complainant. Where the material 
 
 New Brunswick Co. v. Baldwin, 2 Gr. facts are not within his knowledge, 
 
 440 ; see rule 118. they should be verified by the oath or 
 
 (6) If an injunction bill has been affirmation of some person who has 
 
 actually sworn to, the injunction will a knowledge of the facts. Yomgblood 
 
 not be dissolved because the master v. Sehamp, 2 McCari. 42. 
 •has omitted to sign the jurat. Capner 
 
18 
 
 FORMS OF PLEADINGS. 
 
 him ; and that the said A B is now, as deponent verily believes, 
 absent from this state, to wit, in the Kingdom of Great Britain, 
 he having left this state for that kingdom on or about the 
 day of last past, and that he is not expected to return there- 
 from for some considerable time. 
 
 OF PROCESS FOR APPEARANCE AND ANSWER.(a) 
 
 Form of subpoena. New Jersey, to wit — The State of 
 New Jersey. To — Greeting : 
 
 We command you, that you personally appear before our 
 
 [l. s.] Chancellor, in our Court of Chancery, on the day of 
 
 next, {or " instant," as the case may be,) to answer to a 
 
 (a) Upon filing the bill, a subpoena 
 issues. Where process issued several 
 years after filing of the bill, it was 
 held regular. Stern v. Ledden, 4 Bibb 
 178. By the fifth section of the stat- 
 ute, (Rev., "Chancery," p. 104,) it is 
 provided that no subpoena or other 
 process for appearance shall issue out 
 of the court, except in cases to stay 
 waste, until after the bill shall have 
 been filed with the clerk. If the fact 
 that this provision has been violated 
 be promptly brought to the notice of 
 the court, the subpoena will be set 
 aside as irregularly issued ; but it is a 
 purely technical irregularity, and is 
 waived by entering an appearance. 
 Orowell V. Boisford, 1 C. E. Gr. 458. 
 A mistake in ante-dating a subpoena, 
 when in fact it was not issued before 
 filing of the bill, may be corrected. 
 Dinsmore v. Westcott, 10 0. E. Or. 302. 
 An amended bill is considered as an 
 original bill, and a new subpoena to 
 answer is not necessary when the de- 
 fendant has not appeared. Equitable 
 Life Ass. Soe. v. Laird, 9 O. E. Or. 
 319. It is usual to get subpoenas 
 sealed and signed in blank at the 
 
 clerk's oiBee, to be issued as occasion 
 requires. The subpoena issues to the 
 infant defendants as well as to those 
 who are adults. It should be tested 
 as of the day it- issues. The act 
 requiring that all writs and process 
 shall bear date on the day on which 
 the same shall issue seems to be 
 directory. They may not be ante- 
 dated, but if post-dated it is not fatal. 
 Morris Canal Co. v. Mitchell, 2 Vr. 99 ; 
 see Allen v. Smith, 7 Halst. 159. It 
 rnust be served on the person to whom 
 it is directed, personally, or a copy left 
 at his dwelling-house or usual place 
 of abode, at least ten days prior to its 
 return The mode of serving is by 
 delivering a copy of the writ and 
 showing the original at the time of 
 such delivery to the defendant, or in 
 case of his absence, to his wife or ser- 
 vant or some member of his family, 
 at his dwelling-house or' usual place 
 of abode. See Harrison v. Farrington, 
 8 Stew. Eq. 4. The sheriff may alter 
 the return-day to suit his convenience 
 in . making service. Kloepping ads. 
 Stellmacher, 7 Vr. 176-178. A written 
 appearance or written acknowledg- 
 
OF SUBPCE^fA, &c. 
 
 19 
 
 bill of complaint exhibited against you in our said court by 
 , and to do further, and receive what our said court shall 
 
 ment of service, signed by a defend- 
 ant or liis solicitor, and filed with the 
 clerk, has the same force and effect 
 as service by the sheriff or other 
 proper officer, provided such signa- 
 ture, if of the party, be verified by 
 affidavit. Mev., "Chancery," J? 13, 
 14, 15. The court will not allow its 
 process to be disregarded or evaded on 
 mere technical grounds. Endicoit v. 
 MaiUa, 1 Stoclc. 110. If defendant 
 appears, it cures all irregularities in 
 the service of the subpoena. 2 Mad. 
 Ch. Pr. 157. The subpoena may be 
 made returnable any day except Sun- 
 day. But if inadvertently made re- 
 turnable on Sunday, the return-day 
 may be amended. McEvoy v. Truitees, 
 11 Slew. Eq. 420. As to writs re- 
 turnable on a legal holiday, see Kin- 
 ■ney v. Emery, 10 Stew. Eq. 339. Ser- 
 vice of subpoenas upon defendants by 
 leaving copies of them with the de- 
 fendants' father, at work in a field near 
 the house, on his farm where they 
 lived with him, the defendants being 
 both absent from home, and there 
 being no one at the house on whom 
 they could be served, held to be a 
 substantial compliance with the re- 
 quirements of the statute. Wagner v. 
 Blanchet, 12 C. E. Or. 357 ; and see 
 Smith V. Parke, 2 Paige 298. Where a 
 <;opy of subpoena to appear and answer 
 was, as to the return-day and month, 
 served in blank, it was held not a 
 good service, and proceedings under it 
 were set aside. Arden v. Waldon, 1 
 Edw. 631. It is essential that a sub- 
 poena be served by the sheriff or 
 coroner. Bev. Sup,, " Chancery," J 1. 
 Every subpoena or process for appear- 
 ance must be served by the same 
 officers now authorized to serve writs 
 
 of summons and other common law 
 processes on the person to whom it is 
 directed, or a, copy thereof left at his 
 dwelling-house or usual place of 
 abode, by one of said officers, at least 
 ten days before its return. Bev. Sup., 
 " Chancery," ? 1. The subpoena may 
 be served either by the sheriff, the 
 under-sheriff or by a special deputy 
 authorized by writing for that pur- 
 pose. In case of the disability of the 
 sheriff, the coroners of the county, or 
 either of them, shall execute the office 
 of sheriff, until another sheriff shall 
 be appointed and qualified to act.\ 
 Bev., "Sheriffs," I 39. But in such 
 case the writ should be addressed to 
 the coroner. 
 
 The actual domicile of the wife is 
 not the legal domicile of the hus- 
 band; nor can it be regarded, con- 
 trary to the fact, as his actual resi- 
 dence within the meaning of the 
 statute regulating the service of pro- 
 cess. McPherson v. Howell. 2 Beas. 
 35. A subpoena against husband and 
 wife may be served on the husband, 
 but if the proceedings are against her 
 separate estate, she should be served 
 personally. Service against an infant 
 is to be made on the infant personally. 
 This appears to be the English prac- 
 tice. See Yaman v. Marshall, Dick. 
 77; Baker v. Holmes, Id. 19. In 
 Cooper V. Oreen, 2 Addams' Eccl. Bep., 
 it was held that process served on a 
 minor must be in presence of his 
 natural or legal guardian. The ser- 
 vice of a subpoena upon the mother or 
 father-in-law of an infant was, on 
 motion for that purpose, allowed 
 where the mother secreted the infant 
 parties to the suit. 2 Mad. Ch. Pr. 
 158. But in Mortimer v. Oropsey, 
 
20 
 
 FOEMS OF PLEADINGS. 
 
 have considered in that behalf; and this you are not to omit, 
 under the penalty of five hundred dollars. 
 
 Witness his Honor, , Chancellor of our said state, 
 
 at Trenton, the day of , in the year of our Lord 
 
 one thousand eight hundred and 
 Solicitor. 
 
 Clerk. 
 
 Notice, — The defendant is not required to appear at Trenton in person, at 
 the return-day, but if he intends to make a defence it is only necessary for him 
 to answer, plead or demur to the bill within the time required by law. 
 
 Endorsement on Subpoena. 
 
 In Chancery of New Jersey. 
 
 ( Title of cause.) >• Subpoena to answer. 
 
 Returnable day of , 18 . 
 
 Solicitor. 
 
 {Sheriff's return, endorsed . by him.) " Served " (or " duly 
 served.") , Sherif. 
 
 {Fees.) Serving writ, $ 
 
 Mileage and return, $ 
 
 where the mother concealed the in- 
 fant, a motion was made that service 
 upon her be deemed good service. 
 The Chancellor refused it, and ordered 
 that publication be made under the 
 statute as for a concealed defendant, 
 stating that upon the expiration of the 
 allotted time, if no appearance was 
 entered, the court would appoint a 
 guardian ad litem, A similar course 
 was pursued where the non-resident 
 defendant was a lunatic. 1 Hoff. Oh. 
 Pr., vol. 1, p. 194. Service upon a 
 corporation is made upon some prin- 
 cipal oflScer or a director. Mev., 
 " Chancery," ? 22 ; see Hinde's Pr. 87. 
 A lunatic, like an infant, is served 
 personally; and it should be in pres- 
 ence of some competent person. It is 
 provided by statute that every sub- 
 
 poena (or other writ or process) shall 
 be subscribed or endorsed with the 
 name of the solicitor (or party where 
 there is no solicitor), and signed and 
 sealed by the clerk, before service or 
 execution thereof; and that the names 
 of all defendants in any suit, who are 
 residents of the same county, shall be 
 inserted in one subpoena. iJeu., p. 
 105, ?? 6, 7 ; and see rule 51. In in- 
 junction cases, if the complainant 
 omit to have the subpoena served and 
 returned at the time it was made 
 returnable, the injunction may be dis- 
 solved. West V. Smith, 1 Or. Ch. 309 j 
 Lee V. Cargill, 2 Stock. 331. The 
 sheriff's return to the subpcena is con- 
 clusive, and cannot be contradicted by 
 affidavits, unless collusion be shown 
 between the sheriff and the complain- 
 
OF SUBPCENA, &C. 
 
 21 
 
 ( When the sheriff employs a special deputy to serve the writ, he 
 should endorse thereon an authorization in the following form, and 
 sign it; this act cannot be performed by his deputy :)(a) "I 
 hereby depute and appoint to execute the within writ." 
 
 Witness my hand and seal this day of ' , A. d. 18 . 
 
 Sheriff, [l. s.] 
 
 Form of citation in divorce.(6) New Jersey, to wit — 
 The State of New Jersey to — Greeting : 
 
 You are hereby cited to be and appear before our Chancellor, 
 [l. s.] in our Court of Chancery, at Trenton, on the day of 
 next, (or " instant," as the case may be,) to answer to the 
 petition of exhibited against you, and hereof fail not. 
 
 Witness , our Chancellor, at Trenton, the 
 
 day of , in the year of our Lord one thousand eight hun- 
 
 dred and 
 
 Solicitor. 
 
 ant or his solicitor. Corey v. Voorhees, 
 1 Or. Ch. 5. Where a subpoena was 
 not served by an officer, a request 
 written on the back of the subpoena to 
 the clerk to enter an appearance for 
 the defendant would have been suffi- 
 cient. Henderson v. Hopper, April, 
 1827. Under the present practice, 
 verification of the signature would be 
 required. 
 
 Where the United States or the 
 state is interested, the district attorney 
 or attorney-general must be served. 
 (J'or notice under New Jersey statute 
 in case of the state, see post p 22.) 
 Service on a, keeper of a prison 
 ordered to be good service on a pris- 
 oner in his custody. Hinde's Pr. 85 ; 
 and see Hoff. Oh. Pr., vol. 1, p. 106, 
 et seq. 
 
 (a) A sheriff cannot appoint a 
 special deputy by parol. Meyer v. 
 Patterson, 1 Stew. Eq. 240. 
 
 (6) By an act amendatory of the 
 act concerning divorces, {Bev. Sup., 
 
 Clerk. 
 
 "Divorces," § 1,) it is provided that 
 the citation may issue at any time, and 
 may require the defendant to answer 
 the petition at any time not less than 
 thirty days subsequent to the date of 
 issuing the writ. It -is the practice 
 for the clerk to prepare the citation 
 and forward it to the solicitor, who 
 will hand it, together with a certified 
 copy of the petition, to the sheriff to 
 be served. Service of the citation and 
 copy of petition may be on the defend- 
 ant personally, or by leaving copies 
 at his or her dwelling-house, at least 
 twenty entire days before its return. 
 The sheriff will endorse the word 
 "served" or "cited" on the back of 
 the writ, and add, "together with a 
 certified copy of the petition in the 
 above cause," and sign his name and 
 designation thereto. Eev., "Divorces" 
 I 6, et seq. An acknowledgment of 
 service of a copy of the citation only 
 is not evidence of a legal service, to 
 give the court jurisdiction, where the 
 
22 FORMS OF PLEADINGS. 
 
 Form of notice to State of Xew Jersey. (a) {Title of 
 cause — naming all the parties to the suit.) 
 
 To the State of New Jersey : 
 
 Notice is hereby given that in the cause above stated, the State 
 of New Jersey is made a party defendant to the bill of com- 
 plainant, because it is therein alleged that said state holds a cer- 
 tain recognizance* entered into by the said upon an indict- 
 ment found against him by the grand jury of the county of 
 Hudson {or after *, " given by and , on the 
 day of last past, for two thousand dollars, to appear and 
 answer to a certain indictment presented to the Court of Oyer 
 and Terminer and General Jail Delivery of the county of Hud- 
 son," or as the ease may be;) and that the day of , 
 eighteen hundred and , is hereby stated for the return of 
 this writ. 
 
 Witness his Honor, , Chancellor of the said state, 
 
 at Trenton, the day of , in the year, &c. 
 
 {Signature of clerk.) 
 Solicitor. 
 
 Form of the ticket.(6) {Title of cause.) 
 Sir — You are made a defendant in this cause, and are sub- 
 poenaed to answer,* becansef you hold a mortgage upon the 
 
 defendant does not appear. There (6) In foreclosure suits, a ticket 
 should be evidence of the service of a should be directed to each of the de- 
 copy of the petition also. Stone v. fendants other than the mortgagor, 
 Stone, 10 C E. Or. 445. his heirs, executors, administrators or 
 (a) Endorse the notice with the title assigns, and served at the time of 
 of the suit, name of the solicitor and serving the subpoena ; and a copy of 
 the return-day of the notice. The every ticket so served should be an- 
 act prescribes that the notice shall nexed to the original subpoena, and 
 contain the names of all the parties returned with it to the clerk's office, 
 to the suit. Thereturn-day should be The clerk will not tax fees for draw- 
 at least ten days from the date of the ing tickets unless copies are returned 
 teste, as in subpoenas, and the notice with subpoena. The sheriff should 
 must be under the seal of the court. endorse the word " served " upon the 
 The notice may be served as subpoenas back of each copy. The practice of 
 are served, or the attorney-general making affidavit of the service of 
 may acknowledge due and legal ser- tickets is unnecessary, and no costs 
 vice thereof. will be allowed for such affidavits. 
 
ABSENT DEFENDANTS, &C. 23 
 
 premises, a foreclosure and sale of which is prayed in the com- 
 plainant's bill. Dated, {same as teste of mbpcena.) 
 
 (Signature of solicitor of complainant.) 
 To 
 
 (Or, after the *, "because you have a judgment against John 
 Den, the mortgagor in the complainant's bill mentioned, which 
 is alleged to be a lien upon the premises, a foreclosure and sale 
 of which is prayed for in this 8uit.")(a) 
 
 (Or, after the *, "because you claim as the widow of (the 
 mortgagor) an interest as tenant in dower in the mortgaged 
 premises.") 
 
 (Or, after the *, " because it is alleged in the bill of complaint 
 in this cause, that you are entitled to an inchoate right of dower 
 in the premises,") (concluding as first above.) 
 
 (Or, after the *, "because you have an interest as tenant by 
 the curtesy in a portion of the premises," &c. 
 
 (Or, after the f, "you hold a judgment on a claim of lien ; " 
 or, if no judgment, say, " a lien claim " — against the mortgaged 
 premises in the complainant's bill described, which is alleged to 
 be a lien upon the premises, &c.) 
 
 (Or, after the *, "because you hold a mortgage upon the 
 premises in the complainant's bill described, which is alleged to 
 be a lien upon the said premises.") 
 
 Form of affidavit of defendant's non-residence.(6) 
 
 county, ss. — , sheriff of the county of , 
 
 being duly sworn according to law, on his oath says — That he 
 
 has duly inquired for , one of the defendants named 
 
 No fees are allowed the sheriff for themselves within the state, or cannot 
 
 serving tickets. Mev., " Chancery,'' upon due inquiry be found therein, 
 
 I 9. the sheriff or other person to whom 
 
 ' (o) It is usual for the solicitor to the process is delivered for service 
 
 supply the sheriff with copies of the will so return, and will make an affi- 
 
 tickets to be served. The above are davit of the fact on ,the back of the 
 
 examples of the substance of the subpcena or on a paper annexed 
 
 notices required to be given by ticket thereto. In case of non-residence, the 
 
 in foreclosure cases. affidavit should mention the state in 
 
 (6) In case any of the defendants which the absent defendant lives, 
 
 reside out of the state, or conceal Where the subpcena is returned with 
 
24 FORMS OP PLEADINGS. 
 
 in the withia process, for the purpose of serving him therewith, 
 and has not been able to find him in his county ; and this depo- 
 nent is credibly informed, and verily believes, that the saidf 
 * is out of this state, and that he resides in the State 
 of New York ; [or, " in some other of the United States ; " or, 
 " in the Eepublie of France ; " or as the case may be ; or, ajter 
 the *, " cannot, upon due inquiry, be found within this state ; " 
 or, after the *, " conceals himself within this state ; " or in case 
 of a corporation defendant, after the f, " {naming corpo- 
 
 ration) is a foreign corporation of the State of , and that 
 
 none of the officers and directors can be found within this state, 
 upon whom the subpoena could be served. "](a) 
 
 (Signatwre of sheriff.) 
 
 Sworn and subscribed, at , the day of , 
 
 A. ». , before me. {Signature of officer.) 
 
 Form of order of publication. (6) 
 
 {Title of cause.) 
 The complainant {or " petitioner ") having filed his bill {or 
 ""petition ") in the above-stated cause, and process of subpoena 
 {or "citation") having been issued and returned according to law. 
 
 an aflBdavit by the sheriff that he has party could be compelled to appear 
 made due and diligent inquiry for the and answer, but until he did ap- 
 defendant, and was informed and be- pear, no decree could be made, 
 lieved that he was not a resident of Brinkerhoff v. Franklin, 6 C. E. Or. 
 his county at that time, but of another 334. The complainant may now, 
 state, the statutory order for publica- however, at his discretion, require a 
 tion is warranted, although the de- defendant to answer. Giveans v. 
 fendant was a resident of this state. McMurtrey, 1 C. E. Or. 468. In 
 Equitable Society v. Laird, 9 C. E. case it shall be made to appear. 
 Or. 319. In a case of concealment, by affidavit or otherwise, to the satis- 
 the affidavit is necessarily on the faction of the Chancellor, that a de- 
 belief of the deponent, stating, as fully fendant is out of the state, or cannot, 
 as possible, the grounds of his belief. upon due inquiry, be found therein, 
 SeeHoff. Ch. Pr.,vol.\,p.lQ[. or that he conceals himself within 
 
 [a) Rev., " Chancery," I 22; and see this state, he shall be deemed and 
 
 1 Barb. Ch. Pr. *96. taken to be an absent defendant, and 
 
 (6) The only right to make a decree the Chancellor may, by order, direct 
 
 against a defendant who does not ap- such absent defendant to appear, 
 
 pear, is derived from Rev., " Ghan- plead, answer or demur to the bill at 
 
 eery," p. 109, § 28. Before this, the a certain day therein to be named, 
 
ABSENT DEFENDANTS, <S»C. 
 
 25 
 
 And it appearing by affidavit that the defendant, , resides 
 
 out of the State of New Jersey, {or "conceals himself within 
 this state ; " or, " cannot, upon due inquiry, be found in this 
 state,") and that process could not be served upon him : 
 
 not less than one nor more than three 
 months from the date of such order ; 
 of which order such notice as the 
 Chancellor shall by rule direct shall, 
 ■within ten days thereafter, be served 
 personally on the defendant, by a de- 
 livery of a copy thereof to him, or be 
 published in one or more of the public 
 newspapers printed in this state, and 
 designated in the order, for four weeks 
 successively, at least once in each 
 week. (The practice in proceedings by 
 petition or bill for divorce, as to absent 
 •defendants, is the same as above.) 
 And in case of such publication, a 
 ■copy of such notice shall be mailed to 
 such defendant, prepaid, directed to 
 him at the post-office nearest his resi- 
 dence or the post-office at which he 
 usually receives his letters, unless 
 such residence or post-office be un- 
 known and cannot be ascertained upon 
 making such inquiries as the Chan- 
 cellor may by rule prescribe in such 
 ease, which said notice shall also be 
 published or served in any other 
 manner that the Chancellor may see 
 proper in the same to direct. And if 
 the defendant shall not appear, &c., 
 by the time so limited, or within some 
 further time, to be allowed by the 
 Chancellor, if he shall think proper, 
 and on proof of personal service or 
 the publication and the mailing of 
 said notice as aforesaid, and of the 
 performance of the direction contained 
 in said order to the satisfaction of the 
 Chancellor, and, on filing with the 
 clerk proof of the publication of the 
 notice, and of the mailing thereof, or 
 of the inquiry for the residence of the 
 
 defendant, if the same cannot be ascer- 
 tained, the bill may be taken pro con- 
 fesso against such absent defendant. 
 Mev., "Chancery,'' § 18; amended 
 by Pamph. L., 1893, chap. CXIV. 
 It is further provided, that any 
 defendant upon whom such notice is 
 served as therein directed shall be 
 bound by the decree in such case 
 as if he were served with process 
 within the state, and that in cases 
 where the notice was published and 
 mailed, if such defendant shall make 
 oath that he did not receive the 
 same, and that it did not, in any way, 
 come to his knowledge within ten days 
 as aforesaid, or in cases where actual 
 service is sworn to, it shall satis- 
 factorily appear to the Chancellor, by 
 proof, that such service was not made, 
 the Chancellor, before executing a 
 decree against such defendant, may. 
 require the complainant to give bond 
 to abide such decree or order touching 
 the restitution of the estate and effects 
 of such absent defendant, or the re- 
 payment of any sum of money the 
 complainant may receive by virtue of 
 such decree, but which shall after- 
 wards be made to appear not to be 
 due and owing to him, as may be 
 equitable ; and in case no such 
 security is given, no execution is to 
 issue, but the estate and effects of such 
 absent defendant may remain se- 
 questered under the direction of the 
 Chancellor; and if such absent de- 
 fendant, his heirs, &c., shall, within 
 six months after having notice, in 
 writing, of such decree, or within 
 three years after such decree, if no 
 
26 FOBMS OF PLEADINGS. 
 
 It is, on this day of , one thousand eight hun- 
 
 dred and , on motion of , of counsel with the 
 
 complainant {or "petitioner,") ordered that the said absent 
 defendant do appear, plead, answer or demur to the complain- 
 ant's bill {or, in case of petition, say, " do appear and answer the 
 petitioner's petition ") on or before the day of next, 
 
 or that, in default thereof, such decree be made against him as 
 the Chancellor shall think equitable and just. And it is further 
 ordered, that the notice of this order, prescribed by the rules 
 of this court, shall, within ten days hereafter, be served per- 
 sonally on the said absent defendant, by a delivery of a copy 
 thereof to him [or, in case of a corporation, " upon one of the 
 officers or directors of the said defendant company,"] or, in default 
 of such service, that said notice be published within the said 
 ten days in , a public newspaper printed at {in the county 
 
 where land lies; or, in divorce suits, in the county where the 
 parties resided at the time of the desertion or injury complained 
 of,){a) in this state, and continued therein for four weeks succes- 
 sively, at least once in each week, and that a copy thereof be 
 also mailed, within the same time, to the said absent defendant, 
 directed to his post-office address, if the same can be ascertained^ 
 in the manner prescribed by law and the rules of this court. 
 
 notice shall be given, petition the That a notice sent to an absent de- 
 Chancellor touching the matter of fendant was not delivered to her, on 
 such decree, and pay, or secure to be account of her illness, cannot affect 
 paid, such costs as the Chancellor the complainant. Horner v. Corning^ 
 shalldirect, such petitioner may be per- 1 Slew. Eq. 25i. 
 milted to appear and answer the com- (a) When the defendant is non- 
 plainanfs bill, and thereupon such resident and jurisdiction must be 
 proceedings shall be had as if such acquired by pub ication, it should 
 absent defendant had appeared in be made, in cases relating to land, 
 season, and no decree had been made; in the county where the lands lie 
 otherwise, the decree shall be deemed (see rule 57), and in other cases, 
 to be confirmed, and the decree shall in the county where the parties 
 be executed, as in cases where the ab- resided when the injury complained 
 sent defendant had appeared. Pamph. of occurred. Siorte v. Stone, 1 Stew. 
 L., 1893, chup. CXI v.; Rev , " Chan- Eq. 409. 
 eery," U 19, 21. 
 
ABSENT DEPENDANTS, &C. 27 
 
 Order of publication (in foreclosure suits) for ab- 
 sconding, concealed or unknown mortgagor or his 
 unknown heirs, (a) 
 
 {Title of cause.) 
 
 It satisfactorily appearing to this court that the defendant, 
 , the mortgagor in the bill of complaint in this cause men- 
 tioned, has absconded; {or, "has concealed himself;" or, "is 
 unknown;'^ or, "is dead, and his heirs or devisees are wholly 
 unknown ;" or, "some of them are unknown :") It is, on this 
 
 day of , &c., on motion of , of counsel with 
 
 the complainant, ordered, that the unknown owners of all that 
 certain {describe mortgaged premises by abuttals and boundaries, 
 or otherwise, as briefly as practicable,) do appear, plead, answer 
 or demur to the complainant's bill, on or before the day 
 
 of next, {six months from date of order,) or that, in default 
 
 thereof, such decree be made against them as the Chancellor 
 shall think equitable and just. And it is further ordered, that 
 this order shall, witbin twenty days hereafter, be published in 
 
 , a newspaper printed at , in this state, and con- 
 
 tinued therein, at least once a week, to within ten days of the 
 expiration of the time herein limited to appear, plead, answer 
 or demur. 
 
 (a) It is provided, (Sev., , "Mart- same, (by abuttals or boundaries, or 
 gages," § 6, p. 704,) that where any otherwise,) and name the mortgagor 
 person holds a mortgage against any or person last owning the land, and 
 lands in this -state, and the mort- shall direct such absent or unknown 
 gagor, or those holding under him, owner to appear, plead, answer or de- 
 has absconded, concealed himself, is mur to the bill at a time not less than 
 unknown to the holder of said mort- six months from the date of the order, 
 gage, or is dead, and his heirs or de- This order shall be published in a 
 visees are wholly unknown, or some newspaper of this state, or elsewhere, 
 part of them are unknown, and any of within twenty days from the date 
 such facts are stated in the bill, and thereof, and continued therein at least 
 also the name of the mortgagor or once a week, to within ten days of the 
 person holding under him, an order expiration of the time therein limited 
 of publication may issue against such to appear, plead, answer or demur, 
 absent or unknown owner; which Proof of publication is to be made as 
 order shall describe such land in such in other cases, whereupon the com- 
 manner and terms as will identify the plainant will be entitled to his decree. 
 
28 
 
 FORMS OF PLEADINGS. 
 
 Order of publication (in partition suits) where 
 some or one of the owners are unknown, (a) 
 
 {Title of cause.) > 
 
 The complainant having filed his bill in this court for the 
 
 partition of the real estate of (naming the ancestor or person last 
 
 owning said real estate, in severalty,) hereinafter described, and 
 
 it satisfactorily appearing to this court that some of the owners 
 
 of the said real estate are unknown : It is, on this day of 
 
 , eighteen hundred and , on motion of, &c., ordered 
 
 that such unknown owners of all that certain (identify the land 
 
 by abuttals and boundaries, or otherwise,) do appear, plead, 
 
 answer or demur to the said bill, on or before the day of 
 
 next, (six months,) or that, in default thereof, such decree 
 
 be made against them as the Chancellor shall think equitable and 
 
 just. And it is further ordered, that this order shall, within 
 
 (a) The provisions of the statute, 
 {Rev., "Partition," p. 803, § 31,) are 
 substantially the same as that last 
 cited; it provides for proceedings by 
 publication where some or any of the 
 owners of real estate held by co- 
 parceners, joint tenants, or tenants in 
 common, are unknown. It has been 
 decided that the act of 1891, p. 96, 
 does not apply to cases of partition. 
 
 The issuing of a subpoena against 
 a non-resident, and taking an order 
 for his appearance, and publishing 
 the notice thereof required by law, 
 will not give the court jurisdiction 
 over either his person or the subject- 
 matter of the bill, if, from the nature 
 of the case, the court has no jurisdic- 
 tion over either. Qifford v. Thome, 3 
 Scd. Ch. 90; S. C.,on appeal, 1 Stock. 
 702. Where a man and his wife were 
 made defendants, and he was served 
 with process, but she was out of the 
 state, it was held necessary to have an 
 order of publication against her, unless 
 her husband appeared for her. MS., 
 Williamson, C, 1829. So where a 
 
 htisband has separated from his wife, 
 and he resided otit of the state, service 
 on her, at her domicile, would be an 
 insufficient service upon him. Mc- 
 Pherson v. Mousel, 2 Beas. 35 ; and see 
 Rev., "Married Women," p. 638, I 10. 
 A complainant who procures an order 
 of publication, directing an improper 
 or insufficient publication to be made, 
 takes it at his peril. Stone v. Stone, 1 
 Slew. Eq. 409 In Wetmore v. Dyer, 1 
 Cfr. Ch. 386, it was held that, by the 
 practice of the court, foreign publica- 
 tion was required where all the de- 
 fendants reside out of the state, and 
 the reason for this rule of practice is 
 stated in the opinion of the Chancellor 
 in Oram v. Dennison, 2 Beas. 438. 
 Since the statute, {Rev., " Chancery," 
 ? 18,) however, this rule has not been 
 enforced in practice, and is now 
 superseded. See supra. The order 
 of the Chancellor, declaring that pub- 
 lication in the case of a non-resident, 
 &c., failing tp appear, has been made 
 to his satisfaction, directing a decree, 
 is conclusive upon the question as be- 
 
ABSENT DEFENDANTS, &C. 29 
 
 twenty days hereafter, be published in (a newspaper of the 
 county, )[a) printed at , in this state, and continued therein, 
 
 at least once each week, to within ten days of the expiration of 
 the time hereby limited to appear, plead, answer or demur. 
 
 Order of publication for defendants supposed to be 
 dead, their heirs, devisees and personal representa- 
 
 tives.(6) 
 
 {Title of cause.) 
 The complainant having filed his bill of complaint in the 
 above-stated cause [affecting or concerning the title to the lands 
 mentioned and described in said bill,] and it appearing by the 
 alkgations of said bill of complaint [duly verified by affidavit, 
 as required by law,] that A B, or his heirs, devisees or personal 
 representatives, are proper parties defendant to said bill of 
 complaint,* and that the complainant, after diligent and careful 
 inquiry therefor, made as in the case of absent defendants, has 
 been unable to ascertain whether the said A B is alive, {or, 
 after *,) and that said A B is dead (or) believed to be dead, and 
 the complainant is unable to ascertain the names and residences 
 of his heirs, devisees or personal representatives, or of such of 
 them as are proper parties defendant to said bill of complaint : It 
 is on this, &c., ordered that the said A B, or his heirs, devisees 
 or personal representatives, do appear, plead, answer or demur to 
 the complainant's bill on or before the {two months after date of 
 order unless fm some special reason further time be required,) or 
 that in default thereof such decree be made against them as the 
 Chancellor shall deem equitable and just. And it is further 
 
 tween such non-resident defendant Pamph. L., 1891, p. 96. And see 
 
 and the purchaser under the decree. Pamph. L., 1891, p. 107, applicable to 
 
 McCahill v. Equitable Soaiety, 11 C. E. foreclosure suite, where the words 
 
 Gr. 533. above in [ ] are not required. Also, 
 
 (a) Where the residence of a de- Pamph. L., 1892, p. 192. See, also, 
 
 fendant (in a partition suit) was un- Pamph. L., 1893, chap. CLVIII., 
 
 known, the order was directed to be which applies generally to all suits, 
 
 published at or near his last known By reference to the statutes the prac- 
 
 place of residence, and a. copy mailed titioner will be enabled to frame his 
 
 to such last known place of residence. order with the necessary modifications 
 
 Stockton V. Stockton, July, 1875. to comply with the language of the 
 
 . (6) Bev. Sup., " Chancery," I 7 ; statutes. 
 
30 F0BM8 OF PLEADINGS. 
 
 ordered, that notice of this order, entitled in the court only, not 
 in the cause, addressed to said A B, his heirs, devisees and per- 
 sonal representatives, and containing a brief statement of the 
 object of the suit, be published within ten days from the 
 date hereof, in , one of the public newspapers printed and 
 
 published at , in the county of , in this state, and 
 
 continued therein for six weeks successively, at least once in 
 every week, and that a copy thereof be also mailed to the said 
 A B, his heirs, devisees and personal representatives, or any of 
 them, directed to their post-office address, if the same can be 
 ascertained. 
 
 Notice to absent defendants, (a) 
 
 In Chancery of New Jersey. 
 To (absent defendants, naming them :) 
 
 By virtue of an order of the Court of Chancery of New Jersey, 
 made on the day of the date hereof, in a cause wherein , 
 
 executors of , deceased, are complainants, and you {and 
 
 others) are defendants, you are required to appear, plead, answer 
 or demur to the bill of said complainants, on or before the 
 day of next, or the said bill will be taken as confessed 
 
 against you. 
 
 The said bill is filed to compel the specific performance of a 
 contract made , eighteen hundred and , by the de- 
 
 fendant, , with the said , to convey to him a house 
 
 and lot in the township of , in the county of ; and 
 
 you, , are made defendant because you have since taken a 
 
 lease of said house ; {or, " for partition of certain lands in the 
 township of , in the county of , of which 
 
 died seized, and you, , are made defendant because you 
 
 hold a mortgage, given by one of the tenants in common, upon 
 his estate therein, and you, , are made defendant because 
 
 (a) See ndes 57, 58, 59 and 60. 531. Where the notice was entitled 
 
 An error in the name of the paper in in the cause and not directed to the 
 
 which the notice to an absent defend- defendant nor mailed within twenty 
 
 ant was directed to be published is days after the date of the order, the 
 
 amendable after sale under execution. defendant was held not to be within 
 
 Equitable Co. v. Laird, 9 C E. Or. the jurisdiction of the court. Karr y, 
 
 319; S. a, on appeal, 11 C. E. Or. Karr, 4 C. E. Or. 427. 
 
ABSENT DEPENDANTS, &C, 31 
 
 you are one of the tenants in common therein ; " or, " against 
 you for a divorce from the bond of matrimony ; " or, " against 
 you for a divorce from bed and board ; " or, " against you by 
 the complainant, as your wife, for proper alimony and mainte- 
 nance ; " or, " to foreclose a mortgage given by and wife 
 to , dated , eighteen hundred and , on lands 
 in the city of Newark ; and you, and , are made 
 defendants because you hold encumbrances on said lands ; you, 
 , are made defendant because you own said lands or some 
 part thereof," or as the case may be.) 
 
 (Signature of solicitor. ) 
 Dated, day of {Post-office address.) 
 
 Notice to absent defendant in divorce case. 
 
 To (absent defendant.) 
 
 By virtue of an order of the Court of Chancery of New Jer- 
 sey, made on the day of the date hereof, (or as the case may be,) 
 wherein is petitioner and you are defendant, you are 
 
 required to appear and answer the petitioner's petition on or 
 before the day of next, or in default such decree 
 
 will be taken against you as the Chancellor shall think equitable 
 and just. 
 
 (Name of solicitor and his post-office address.) 
 
 Dated, &c. 
 
 Proof of mailing or inquiry.(a) 
 (Title of cause.) 
 
 New Jersey, ss, — being duly sworn, on his oath 
 
 fiaith^-That he is the (person actually entrusted with the manage- 
 ment and conduct of this suit on the part of the) [The words 
 in parentheses cannot be used in divorce cases. See rule 59.] 
 
 (a) It must clearly appear that the the order of publication and mailing 
 
 notice was sent to the defendant's post- a copy is not a compliance with the 
 
 office address, and the source of the rule. Tate v. Tate, 11 C. E. Or. 5S; 
 
 ■complainant's or his solicitor's in- and see Sogers v. Sogers, supra. A 
 
 formation must be stated; that "he defect in the affidavit of mailing a 
 
 was credibly informed and verily be- copy of the notice to an absent de- 
 
 lieves," is not sufficient. Sogers v. fendant, in not showing that the place 
 
 Jtogers, 3 C. S. Or. 445. Publishing to which it was directed was the de- 
 
32 FORMS OP PLEADINGS. 
 
 complainant ; that he has, in good faith, made diligent and careful 
 inquiry for the residence and post-office address of , one 
 
 of the defendants, in the manner required by the rules of this 
 court,* and that he is credibly informed, in such manner that he 
 believes it to be true, that the said resides in the city 
 
 of , in the State of , and that his post-office 
 
 address is ; and this deponent further says that he did, 
 
 on the day of last, place in the post-office of the 
 
 city of , a letter directed to the said , at , 
 
 with the postage prepaid, containing a copy of the notice hereto 
 annexed ; (or, after the *, " as well in the manner directed by 
 the rules of this court relating thereto as in every other way by 
 which he thought it probable that he could ascertain such resi- 
 dence or address, and that he has not been able to discover, 
 and has no information as to the residence or post-office address 
 of said defendant.") [Signature ) 
 
 {Jurat.) 
 
 (See note below as to form of affidavit in divorce case.) 
 
 Affidavit of publication of notice to appear, &c. 
 
 New Jersey, county, ss. — , of full age, being duly 
 
 sworn according to law, on his oath saith — That a notice, of 
 which the annexed is a true copy, {annex a copy of the notice^ 
 was published, within ten days from the date thereof, in the 
 , a public newspaper, printed and published at , in 
 
 this state, and continued therein for four weeks, successively, at 
 least once in each week, commencing on the day of , 
 
 18 . {Signature.) 
 
 Sworn and subscribed, &c. 
 
 fendant's post-oflBce address, may be Bay Co., 1 Stew. Eq. 192. That a 
 
 remedied by supplying the proof by notice sent to an absent defendant was 
 
 way of amendment DiTismore v. not delivered to ker on account of her 
 
 Wesieott, 10 C. E. Or. 302. It is no illness, cannot affect the complainant, 
 
 proof that the efforts of a solicitor fell Homer v. Coming, Id. 258. In 
 
 short of " diligent and careful in- the case of a foreign corporation, an 
 
 quiry,'' that he omitted to send a affidavit should be made of its place 
 
 notice of a foreclosure suit, addressed of institution, and that none of its 
 
 to a defendant at a place designated officers or directors are resident in 
 
 as his residence in a deed made fifteen this state, or that none of them could 
 
 years before. Leonard v. New York be found within this state to be served 
 
ABSENT DEFENDANTS, &C. 33 
 
 Order for supersedeas under Rev., "Chancery," 
 Sections 19-21, as amended by Pamph. L., 1893, 
 chap. CXIV. 
 
 {Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 with , who is an absent defendant in the above-stated 
 
 cause, and it appearing that the said absent defendant hath caused 
 his appearance to be entered in the above-stated cause after a 
 decree for the sale of the mortgaged premises therein described, 
 and before the sale thereof; and the Chancellor being of the 
 opinion that the reasonable costs to be paid by said defendant to 
 the complainant in the cause, upon such appearance, is the sum 
 of dollars : 
 
 It is thereupon, on this {date), ordered by the Chancellor, that 
 the said defendant, , pay to the clerk of this court, to be 
 
 by him paid to the solicitor of the complainant, the sum of 
 dollars of costs ; and that when such payment is made, a 
 writ of supersedeas do issue out of this court, directed to the 
 sheriff of the county of , commanding him to stay his 
 
 proceedings on the execution in this cause, for the sale of the 
 said mortgaged premises, until the further order of this court. 
 
 And it is further ordered, that the said do pay to the 
 
 sheriff of the county of , his legal charges for all proceed- 
 
 ings actually taken hitherto under the said writ of execution. 
 
 And it is further ordered, that the said defendant, , file 
 
 his answer in the above-stated cause within days from the 
 
 date of this order. 
 
 with process of subpoena. Upon this, ance Co., 1 Paige 587, a corporation of 
 
 an order for publication may be taken New York, which was broken up, and 
 
 as for an absent defendant, pursuant no proper officer of which could be 
 
 to the statute. JRev., " Chancery,'' I found, a similar course was pursued. 
 22. In Lawrence v. Greenwich Insur- 
 
34 
 
 FORMS OP PliBADINGS. 
 
 FORM OF DECREE PRO CONFESSO. 
 
 Where some defendants have been served with 
 process, and an order of publication taken as to 
 
 others.(a) 
 
 {Title of cause.) > Decree pro confeaao. 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that process of subpoena 
 for the defendants to appear and answer the complainant's bill 
 hath been duly issued and returned served upon the defendants, 
 , and that due notice of the order of this court, made on 
 the day of last past, directing the defendants, , 
 
 to appear, plead, answer or demur to the complainant's bill, on 
 or before the day of then next, has been duly pub- 
 
 lished, and also mailed to the said defendants, {or, "unsuccessful 
 
 (o) When the time limited for the 
 appearance of the defendants has ex- 
 pired, the complainant's solicitor will 
 file the proofs of publication and 
 mailing, or of inquiry, or of service of 
 the notice, (as the case may be,) in 
 the clerk's office, and then immedi- 
 ately enter a decree pro confesso 
 against such of them [who are adults] 
 as have not filed plea, demurrer or 
 answer. But see rule 27. In a suit for 
 divorce the affidavit shall be made 
 by the complainant or his solicitor, 
 and shall fully specify the inquiry 
 made, of what persons and in what 
 manner it was made, so that by the 
 facts stated in such affidavit it may 
 appear tiiat the inquiry has been of 
 the character intended not only by 
 the letter, but also by the spirit of 
 rule 59. Rule 60. The Chancellor 
 will sign the decree upon being 
 satisfied that the process of subpoena 
 has been served upon the resident 
 adult defendants, and the notice pub- 
 lished and mailed, &c., or served as 
 required by rules 57, 58 and 59. 
 
 A decree pro confexso may be taken 
 at any time after the time limited 
 for the defendant to plead, answer 
 or demur, has expired. It may be 
 taken without notice and as of course, 
 unless it appear that some prejudice 
 will thereby accrue to the adverse 
 party. OaUey v. O'Neil, 1 Gr. Ok. 
 287 ; see Nesbit v. St. PcdricKa Church, 
 1 Stock. 76. A decree pro confesso, 
 signed after the time for answering 
 has expired, is regular, though an 
 order for further time to answer be 
 signed and filed on the same day with 
 the signing of the decree. Emery v. 
 Downing, 2 Beas. 59. A defendant 
 coming in without unnecessary delay, 
 by motion or petition, after a decree 
 pro confesso regularly taken, will, upon 
 any reasonable ground of indulgence, 
 be permitted to answer upon payment 
 of costs. Ibid. But if it appear, upon 
 an examination of the answer, that it 
 contains no valid ground of defence, 
 the decree will not be opened. Ibid. 
 In an ordinary foreclosure case, after 
 a decree pro confesso, the mortgage 
 
OF APPBAEANCE. 
 
 35 
 
 inquiry made for the residence of said defendants,") in the man- 
 ner and as in the said order directed and prescribed ; and that 
 the said defendants have not, nor have any or either of them, 
 appeared and pleaded, answered or demurred to the said bill 
 within the time limited by law and the said order, or at any other 
 time, but that they have wholly failed and neglected so to do : 
 It is thereupon, on this day of , in the year, &c., 
 
 on motion, &c., ordered and decreed that the complainant's bill 
 be, and the same is hereby taken as confessed against the said 
 defendants, {naming them,) to the end that such decree may be 
 made against them as the Chancellor shall think equitable 
 and just. 
 
 FOEM OF APPEARANCE.(a) 
 
 {Title of cause.) 
 
 Appearance entered for , defendant in -j 
 
 the above-stated cause, by V Appearance. 
 
 Signature of Sol. ) 
 
 itself is sufficient evidence ; but in 
 other cases there must be an order to 
 take proofs. Bowers v. Bowers, July, 
 1829. There have been instances, how- 
 ever, in which, in cases of creditor's 
 bills to set aside conveyances for fraud, 
 a final decree has been made by default 
 after failure to answer within the time 
 limited by law and service of an order 
 made after such failure, on the de- 
 fendants charged with the fraud and 
 to be affected by the decree, directing 
 them to answer the bill within a cer- 
 tain number of days, and declaring 
 that in default of such answer, relief 
 (specifying it) prayed by the bill 
 would be granted, and a final de- 
 <:ree taken against them accordingly. 
 The complainant is entitled to a de- 
 cree pro confesso after the expiration 
 of the' time for answering, though an 
 answer be on file at the time of his 
 
 application for the decree. The de- 
 fendant, however, may have relief on 
 reasonable ground shown, upon pay- 
 ment of costs. See Boberison v. Miller, 
 2 Gr. Oh. 452 ; Williams v. Thompson, 
 2 Bro. a G. 280. Where complain- 
 ant's proceedings are strictly regular, 
 the order upon opening the decree, is 
 granted upon the payment of costs ; 
 under certain circumstances, the costs 
 of the decree will be ordered to abide 
 the event of the suit. Oram v. Denni- 
 son, 2 Beas. 438. After a decree pro 
 confesso, order of reference and report 
 of master, the decree will be opened 
 and the defendant let in to answer, if 
 the equity of the case requires such 
 relaxation of the rules of the court. 
 Williamson v. Sykes, 2 Beas. 182. 
 
 (a) When a party seeks to avoid a 
 decree rendered in a, cause in which 
 an appearance was entered for him by 
 
36 
 
 FORMS OF PLEADINGS. 
 
 OF PROCEEDINGS TO COMPEL AN ANSWER. 
 
 Common order to answer, (a) 
 
 (Title of cause.) 
 
 This matter being opened to the court by , of counsel 
 
 with the complainant, and it appearing* that process of sub- 
 poena to appear and answer, has been duly issued and returned 
 served upon the defendant, , and that he has not filed any 
 
 plea, demurrer or answer to the complainant's bill within the 
 time limited by law, or at any other time: ("and it further 
 appearing that the complainant has, for more than four months, 
 neglected to take a decree pro confesso against the defendant,"^ 
 if under rule 27.) It is, on this day of , in the 
 
 year, &c., on motion, &o., ordered, that the said defendant file 
 his answer to said bill within days after service upon him 
 
 {or " his solicitor ") of a copy of this order, or that said bill be 
 taken as confessed against him ; {or, " that an attachment may- 
 issue," as the case may be.) 
 
 a solicitor, on the ground that the 
 court had no jurisdiction over his 
 person, he must show, affirmatively, 
 that the solicitor had no authority 
 to enter his appearance. Clifford v. 
 Thome, 1 Stock. 703. An attorney 
 who enters an appearance without 
 authority is answerable in damages 
 for the injury thereby occasioned. 
 Field V. Gibbs, Pet. O. C. 155. If it 
 appear by record that the defendant 
 appeared by attorney, he may dis- 
 prove the authority of the attorney. 
 Gifford V. Thome, 1 Stock. 703. 
 Where subpoena was not served by an 
 officer, a request "written on the back 
 of the subpoena to the clerk to enter an 
 appearance for the defendant would 
 have been sufficient. Henderson v. 
 Hopper, April, 1827. The issuing of 
 a subpoena before bill filed is waived 
 by an appearance. Crowell v. Botsford, 
 1 C. E. Or. 458. In a case where 
 
 supplemental bill was filed, without 
 leave first had, and no objection was 
 taken to the regularity of such pro- 
 ceedings, objection was considered as 
 waived by a voluntary appearance 
 and demurrer by the defendants. 
 Allen V. Taylor, 2 Gr. Oh. 435. For 
 effect of appearance, &c., in foreclosure, 
 see Bev., "Chancery,'' § 73; § 75 is- 
 repealed ; and Horner v. Coming, 1 
 Stew. Eq. 254. 
 
 (a) Get a certified copy of this order 
 from the clerk's office, and serve on 
 the defendant, (or upon his solicitor, 
 . if he has appeared by solicitor,) and 
 file proof of such service. Upon the 
 expiration of the time from the day of 
 service fixed in the order, the com- 
 plainant will be entitled to a decree 
 pro confesso, or to proceed to compel an 
 answer. This order is necessary where 
 the complainant has omitted to take 
 a decree pro confesso against a defend- 
 
OP PK0CEEDING8 TO COMPEL ANSWER. 
 
 37 
 
 Order to answer, or that an attachment issue.(a) 
 {Title of cause.) 
 
 {In form as above to *, then, " that a copy of the order to 
 answer heretofore made in this cause has been duly served upon 
 the defendant; and that he has not filed his answer to the bill of 
 complaint, as required by said order ; and it being alleged that 
 a discovery, on oathj from the said defendant is necessary: It 
 is, on this day of , &c., on motion, &c., ordered, 
 
 that the said put in his answer to the bill of complaint 
 
 filed in this cause, within days after service upon him of a 
 
 copy of this order, or that in default thereof an attachment issue 
 against him.") 
 
 ant for four months after the time 
 when he was entitled to such decree. 
 Rule 27. Those defendants only are 
 entitled to notice of the order who are 
 in the state and have been served 
 with subpoena. In the case of de- 
 fendants who have removed from the 
 state since service of subpoena upon 
 them, proof of their non-residence 
 should be filed in order to render ser- 
 vice upon them unnecessary. 
 
 (a) Although, since the passage of 
 the statute permitting the bill to be 
 taken pro confeaso against non-resident, 
 or absconding, concealed and contu- 
 macious defendants, the process for 
 compelling an answer has fallen into 
 disuse, yet there may be cases where 
 the complainant cannot dispense with 
 an answer, and the right to take a 
 decree pro corfesso will be inadequate, 
 as in the case of certain bills for dis- 
 covery. The practice of compelling 
 an answer is recognized by the Court 
 of Chancery. Giveans v. McMurtry, 
 \ C. E Or. 475. Consolidated Electric 
 Storage Co. v. Atlantic Trust Co., 5 
 Dick. Ch. Rep. 93. The complainant. 
 
 by amending his bill, waives his pro- 
 cess for contempt, but he will be 
 allowed, upon motion or petition, and 
 on giving personal notice to the de- 
 fendant, to amend his bill without its 
 operating as a discharge of such con- 
 tempt. If the complainant accepts 
 the defendant's answer or replies, or 
 moves upon it, which implies accept- 
 ance, he cannot use the process for 
 contempt for the purpose of getting 
 costs. The same proceedings are also 
 had to compel the several answers of 
 a married woman, {Bunyan v. Morti- 
 mer, 6 Mad. *278,) an infant, a person 
 
 of unsound mind, {Lloyd v. , 
 
 Dick. 460,) and a corporation. Pro- 
 cess, for want of an answer, may go 
 against both husband and wife, if an 
 order to answer separately has not 
 been obtained. In the case of an 
 infant or lunatic defendant, the pro- 
 cess to compel an answer goes against 
 the guardian ad litem. The answer of 
 a corporation is enforced by process of 
 distringas and sequestration. 1 Barb. 
 Ch. Pr., p. 88. 
 
38 
 
 FORMS OP PLEADINGS. 
 
 Order for attachment for not answering.(a) 
 
 {Title of cause.) 
 {After * above, " that by an order heretofore made in this 
 cause, the defendant, , was required to put in his answer 
 
 to the bill of complaint therein within days after service 
 
 upon him of a copy of said order, or that an attachment issue ; 
 and it further appearing by affidavit that a copy of said order 
 was served on the said defendant more than days since, 
 
 and that the said has not put in his answer to the bill in 
 
 this cause as required by the said order : It is, &c., ordered that 
 an attachment issue against the said for not answering.") 
 
 Writ of attachment. (6) New Jersey, to wit — The State 
 of New Jersey to the sheriff of the county of — Greeting : 
 
 We command you to attach , so as to have him before 
 
 [l. s.] our Chancellor in our Court of Chancery on the 
 
 day of next, at Trenton, then and there to answer. 
 
 (a) The court may, in its discretion, 
 order an attachment to issue in the 
 first instance; or will grant first a 
 rule to show cause, as may seem ad- 
 visable. 
 
 (6) There must be fifteen days ex- 
 clusive between the teste and return of 
 the writ, unless the court otherwise 
 order, and it should be made return- 
 able on a regular motion-day. It 
 should be directed and delivered to 
 the sheriff of the county where de- 
 fendant resides. All the defendants 
 in attachment in the same county 
 must be inserted in one writ. Mule 
 133. The sheriff has until the time 
 when the writ is returnable to make 
 his return. Two or more attachments 
 may be issued at the same time into 
 different counties, but only one should 
 be executed, otherwise the party 
 would be liable to an action. An 
 attachment can be issued only by and 
 against parties to a suit. A person 
 not a. party on record can neither 
 
 issue an attachment nor can one be 
 issued against him. 1 Smith's Ch. 
 Pr. 123. If the writ is served and 
 the defendant gives bail, the return 
 is, "I have attached and let the de- 
 fendant at large on bail, according to 
 the bond herewith returned, 
 sheriff." The bond is to be returned 
 with the attachment, and both are 
 filed. If the defendant, on being 
 arrested, neglects or refuses to give 
 bail, the return is, " By virtue of the 
 within writ, I have attached the de- 
 fendant, , and taken his body, 
 and for want of bail have him now 
 here in custody before the court " 
 When the attachment il received by 
 the sheriff after the return-day, the 
 i-eturn is, ''I did not receive the 
 within writ in time to arrest the de- 
 fendant thereon and bring him before 
 the court on the return-day thereof." 
 If the defendant cannot be found, the 
 return is, " Not found " The return 
 is endorsed on the writ and signed by 
 
OF PROCEEDINGS TO COMPEL ANSWER. 
 
 39 
 
 as well touching the contempt which he, as is alleged, hath 
 committed against us, as also such other matters as shall then 
 and there be laid to his charge; and further, to perform and 
 abide such order as our said court shall make in this behalf, and 
 hereof fail not. And have you then there this writ. 
 
 Witness his Honor, , Chancellor, at Trenton afore- 
 
 said, the day of , in the year one thousand eight 
 
 hundred and . Cleric. 
 
 Solicitor. 
 
 Alias attachment. {Same as above, except that after the 
 words " we command you," you insert " as you were before com- 
 manded.") 
 
 Pluries attachinent.(a) {After the words "we command 
 you," add "as you were oftentimes before commanded.") 
 
 Bond on attachment.(6) Know all men by these presents, 
 that we, , of, &c., and , of, &c., are held and firmly 
 
 bound unto , (the complainant,) , and his assigns. 
 
 the sheriff. If the sheriff returns 
 "not found," the complainant may 
 have as many attachments as be is 
 advised until he succeeds in taking 
 the defendant. If the sheriff or other 
 officer does not make return of the 
 writ, as commanded, he will be ad- 
 judged to be in contempt Mev., 
 " Chancery," ? 69. 
 
 (a) Attachments with proclamation 
 and commission of rebellion are abol- 
 ished by statute as unnecessary. Bev., 
 "Chancery,'' § 106. To enforce obedi- 
 ence to the process, rules and orders 
 of the court, where any person shall 
 be in contempt, he shall, before he be 
 released or discharged therefrom, pay 
 to the clerk, for the use of the state, a 
 sum not exceeding fifty dollars, as a 
 fine for the contempt; and also stand 
 committed until the process, rule or 
 order is obeyed, and until the fine 
 and costs are fully paid. Bev., 
 "Chancery," § 103. 
 
 (6) The bond to be given by the de^ 
 fendant in attachment shall be in the 
 penal sum of five hundred dollars, 
 with one sufficient surety, conditioned 
 for his appearance on the return-day, 
 &c. Bule 134. On the return-day, he 
 must enter his appearance with the 
 clerk, (see "Form of Appearance,'' 
 ante,) and give notice thereof to the 
 adverse party. Bule 135. The com- 
 plainant must, within eight days there- 
 after, enter a rule in the clerk's office 
 for the defendant's examination upon 
 interrogatories touching his alleged 
 contempt, before a master. A copy of 
 the rule and interrogatories must be 
 served on the defendant. Bule 136. 
 The defendant has four days after the 
 appearance-day before ■ the master to 
 put in his examination in writing ; 
 and the master shall, if required by 
 complainant, report, with the inter- 
 rogatories and examinations, whether, 
 in his opinion, the examination is full 
 
40 FORMS OF PLEADINGS. 
 
 in the penal sum of five hundred dollars, {or other special mm 
 stated in the writ,) to be paid to the said , (complainant,) 
 
 as aforesaid, or his assigns. For which payment well and 
 truly to be made, we bind ourselves jointly and severally, 
 our and each of our heirs, executors and administrators firmly 
 by these presents. Sealed with our seals and dated the 
 day of , eighteen hundred and 
 
 Whereas the above-named has been arrested upon an 
 
 attachment issued out of and under the seal of the Court of 
 Chancery of the State of New Jersey, (for not answering a bill 
 of complaint filed in said court, or as the case may be,) in a 
 cause wherein is complainant, and said {with others) 
 
 is defendant, and is now in the custody of the said , 
 
 sheriff as aforesaid. Now, the condition of this obligation is, 
 that if the above-bounden shall appear before the Chan- 
 
 cellor of said state, in the Court of Chancery, on the day 
 
 of next, {or "instant,") at Trenton, to answer to the 
 
 matter alleged against him, and to perform and abide the order 
 of the said court thereupon, and not depart thence without leave 
 of the court, then this obligation to be void, otherwise to remain 
 in full force and virtue. [l. s.] 
 
 Sealed and delivered in presence of — [l. s.] 
 
 and satisfactory or not. Mule 137. the non performance of a final decree 
 In a case where a defendant had for payment of money, and the con- 
 given bail, but still neglected to temner appeared on an order to show 
 answer, it was held t^at the plaintiff cause why an attachment should not 
 might proceed both with the contempt issue against him, and declared his 
 and also against the defendant and the readiness to obey the decree, and 
 sureties on the bond. Seddall v. Page, answer for his contempt as the court 
 2 Sim. 224. If the defendant when should direct, he was heard on appli- 
 taken refuses or neglects to enter his cation to open the decree and to be let 
 appearance, the court may order the in on ground of surprise Freese v. 
 clerk to enter an appearance for him. Swayze, supra. Query. Whether, when 
 The general rule is that a contemner, the defendant is brought in upon the 
 who is in contempt, is never to be attachment and swears to his inability 
 heard by motion or otherwise, until to pay costs, he will be discharged, 
 he has cleared his contempt and paid Den v. Hendrickson, 3 Han: 366 ; see 
 the costs. Freese V. Swayze, 11 C. E. Rev., "Insolvent Debtors," H 1) 2; 
 Or. 437 ; Johnson v. Finney, 1 Paige Morgan v. Morgan, 1 Slew. Eq. 23. 
 646. But where the contempt was 
 
OF PROCEEDINGS TO COMPEL AN8WEE. 41 
 
 Order for alias attachment. {In common form to*, then, 
 *' that the sheriff of the county of has returned the writ 
 
 of attachment issued in this cause against the defendant, , 
 
 ' taken ' together with the bond taken by him upon the arrest of 
 said defendant ; and the said defendant having failed to appear : 
 It is, on this, &c., ordered, thatf an alias attachment issue 
 against the said , directed to the sheriff of the county of 
 
 , returnable to the day of next, or, " imme- 
 
 diately.") 
 
 Order for leave to prosecute bond at law. (After 
 t, " the said bond being tbrfeited, may be prosecuted by the 
 complainant ; and that the same may be delivered by the clerk 
 of this court to the complainant, or his solicitor for that pur- 
 pose.") 
 
 Order for defendant to answer within a specified 
 time, he having appeared and admitted his con- 
 tempt. [In common form to *, and add, " that the defendant 
 , being in contempt for not answering to the bill in this 
 cause, and (stating the facts,) and the said now being, by 
 
 virtue of such attachment, personally before the court, and con- 
 senting to put in his answer in this suit, and pay the costs of 
 his contempt : It is, &c., ordered, that the said do, forth- 
 
 with, cause his appearance to be entered with the clerk of this 
 court, and pay the costs of these proceedings, (" and a fine of 
 dollars to the use of this state,") and that in default 
 thereof, the complainant may apply to this court for such further 
 order as may be proper in the premises. And it is further 
 ordered, that the bond executed by the said and his 
 
 surety be continued over, and that the said do attend this 
 
 court from day to day, until the further order thereof.") 
 
 Order for commitment. (As in common form to *, "that 
 an order was heretofore entered in this cause, requiring the 
 defendant, , to file his answer, and to pay the costs and a 
 
 fine occasioned by his contempt ; and it further appearing that 
 said costs and fine have not been paid ; and that he has not 
 filed his said answer as required : It is, on this, &c., ordered, 
 
42 FORMS OF PLEADINGS. 
 
 that the said is guilty of the misconduct alleged against 
 
 him ; and that such misconduct was calculated to, and did 
 actually defeat, impair, impede or prejudice the rights or reme- 
 dies of the complainant in this cause ; and it is further ordered, 
 that the said stand committed to the common jail of the 
 
 county of , there to remain, charged upon this contempt, 
 
 until he shall have paid the costs of such contempt, to be taxed, 
 and a fine of dollars, for the use of the state, unless the 
 
 court shall see fit sooner to discharge him ; and it is further 
 ordered, that a warrant issue for that purpose." 
 
 ' Warrant of commitment for contempt in not 
 answering. New Jersey, to wit — The State of New Jersey 
 to the sheriff of the county of — Greeting : 
 
 Whereas, by a certain order made in our Court of Chancery, 
 [l. S.J before our Chancellor, at Trenton, bearing date on the 
 day of , &c., in a certain cause therein depending 
 
 between , complainant, and (with others,) defendant, 
 
 it was ordered, that said be committed to the common 
 
 jail of the county of , there to remain, charged with the 
 
 contempt mentioned in said order, until he should (insert the 
 direction contained in the order,) and that a warrant issue for 
 that purpose. Therefore, we command you that you take the 
 body of the said , and him safely and closely keep in your 
 
 custody in the common jail of the county of until he shall 
 
 have {recite the condition of the order,) together with the costs of 
 this writ, or until our said court shall make order to the con- 
 trary. And you are to make return to our said Chancellor, in 
 our said Court of Chancery, at the state-house, at Trenton, on 
 the day of nezt, under your hand, of your doings 
 
 in the premises, together with this writ. 
 Witness, &c. 
 
 Sheriff's^ return. I, , sheriff of the county of 
 
 , hereby certify and return, that under and by virtue 
 of the within writ to me directed, I have taken the within- 
 named into my custody, and do still keep him in my cus- 
 tody in the common jail of said county, as by the within writ I 
 am commanded. 
 
OP PEOCBEDINGS TO COMPEL AN8WEK. 43 
 
 Or, if the writ is served and the defendant gives bail, " I 
 have attached and let the defendant at large on bail according to 
 the bond herewith returned." 
 
 Or, if the defendant cannot be found the return is, " Not 
 found." 
 
 Or, if the defendant was already in custody the return is, " I 
 have arrested the defendant on the within writ, ^previous to 
 serving which he was in my custody by virtue of a writ" 
 {stating the nature of the lerit.) 
 
 {Signature.) 
 
 Dated, 
 
 Order for a sequestration.(a) {In common form to *, 
 " that the defendant is in contempt for not answering to the bill 
 of complaint in this cause, and that he has failed to appear 
 and answer to his said contempt as required : It is, on this, 
 &c., ordered, that a writ of sequestration do issue against the 
 said , directed to the sheriff of the county of , {or 
 
 as the case may be,) directing him to immediately sequester the 
 said defendant's personal estate, and the rents, issues and profits 
 of his real estate, until the said defendant shall answer to the 
 bill of complaint in this cause, clear his contempt, and until the 
 further order of this court.") {Order for injunction aluo, if 
 required.) 
 
 Writ of sequestration. New Jersey, to wit — The State of 
 New Jersey to the sheriff of the county of — Greeting : 
 
 Whereas, on the day of , in the year of our Lord 
 
 [l. s.] one thousand eight hundred and , by a certain 
 
 order, made in our Court of Chancery before our Chan- 
 
 (a) Where the party, after being It has been held that a party in 
 
 committed, perseveres in his refusal contempt for non-payment of costs 
 
 to do the act required, a sequestration may be relieved froi» his contempt 
 
 may be issued, and his servantp, by obtaining his discharge under the 
 
 agents, &c., may be prohibited from insolvent laws. Lewis v. Conmer, N. 
 
 delivering his property to him or /. Chan., 1870; and see People v. 
 
 applying it to his use, on pain of Bennett, 4 Paige 282; Patrick v. 
 
 contempt. People v. Rogers, 2 Paige Warner, Id. 397 ; State v. Ouliek, 
 
 103. Harr. 437. 
 
44 F0KM8 OF PLEADINGS. 
 
 cellor, at Trenton, in a certain cause therein depending, wherein 
 is complainant, and is defendant, it was ordered 
 
 and adjudged that process do issue from and out of this court, 
 directed to the sheriff of the county of , for the immediate 
 
 sequestration of the personal estate of the said , and of the 
 
 rents and profits of his real estate, and that the said sheriff keep 
 the same under sequestration in his hands until the said defend- 
 ant, , shall have fully answered the bill of complaint of the 
 said complainant in said cause, and until the further order of 
 said court. Therefore you are hereby commanded, that you do 
 forthwith enter upon all the messuages, lands, tenements and 
 real estate whatsoever of the said , in your county, and 
 that you do take, collect, recover and sequester into your hands, 
 not only all the rents and profits of the said messuages, lands, 
 tenements and real estate, but also all his goods, chattels and 
 personal estate whatsoever, and that you detain and keep the 
 same under sequestration in your hands, and pay the same in 
 such manner as the said court shall appoint, until the said 
 shall fully answer the said complainant's bill, clear his contempt, 
 and until the further order of this court ; and you are to make 
 return of your proceedings by virtue of this writ to our Court 
 of Chancery, on the Tuesday of next, together with 
 this writ. 
 
 Witness his Honor, , our Chancellor, at Trenton, 
 
 this day of , in the year of our Xiord one thousand 
 
 eight hundred and 
 
 CUrlc. 
 Solicitor. 
 
CONTEMPT FOE VIOLATING INJUNCTION. 45 
 
 FORMS OF PROCEEDINGS FOR CONTEMPT IN 
 VIOLATING AN INJUNCTION. 
 
 Order to show cause why an attachment should 
 not issue for violation of an injunction.(a) 
 
 (Title of cause.) 
 Upon opening the matter to the Chancellor, by , of 
 
 counsel with the complainant, and upon reading the affidavit of 
 , setting forth that the defendant, , has been guilty 
 
 of a violation of the injunction heretofore issued against him in 
 this cause, and on motion as aforesaid: It is, on this {date), 
 ordered, that the said do show cause before the Chan- 
 
 cellor, on {date), at (as the case may be), at the hour of ten 
 o'clock in the forenoon, why an attachment for contempt should 
 not issue against him, and he be punished for his alleged mis- 
 conduct in violating the said injunction. And it is further 
 ordered, that copies of the affidavits and other papers on which 
 this motion is founded be served on the said defendant per- 
 sonally within days from the date of this order. 
 
 Order for attachment. (6) 
 
 (Title of cause.) 
 
 It appearing to the Chancellor that by an order heretofore 
 made in this cause, it was ordered that the defendant, , 
 
 show cause, &c., (reciting the substance of the order,) * and that 
 
 (a) An order to show cause, ad- If the party is already in prison, 
 
 vised by a Vice Chancellor, must be the writ must nevertheless be directed 
 
 actually signed by the Chancellor be- to the sheriff, who will lodge it with 
 
 fore further proceedings are had the keeper or jailer as a detainer 
 
 thereupon, and the affidavits upon against such party. And it seems 
 
 which it is founded are to be filed that in such case the party suing out 
 
 with the clerk. Dowden v. Junker, 3 the writ may apply for a habeas corpus 
 
 Dick. Oh. Rep. 554. for the production of the person 
 
 See, as to contempts committed in against whom the writ was issued 
 
 the presence 6f a court held by a Vice before the court awarding the writ. 
 
 Chancellor, Pamph. L., 1892, p. 291. All attachments for contempt shall 
 
 (6) An attachment should be di- have at least fifteen days exclusive 
 
 rected to the sheriff or other proper between the teste and return, unless 
 
 officer of the county wherein the the Chancellor, upon motion or peti- 
 
 party against whom the writ is issued tion, shall otherwise order. And all 
 
 is likely to be found. persons in contempt in the same 
 
46 
 
 FOBMS OF PLEADINGS. 
 
 he has not appeared or shown cause as by the said order he was 
 directed to do, although a copy of said order was duly served 
 upon him as therein directed, and on application, &c. 
 
 Or, if defendant appeared and showed cause, &c., after *, and 
 on motion of , of counsel with complainant, and on hear- 
 
 ing , of counsel for said defendant : It is, on (date,) ad- 
 
 judged that the said is guilty of contempt of this court in 
 
 {as the case may 5e,) contrary to the order and injunction of this 
 court, and it is ordered that an attachment as for a contempt be 
 issued against the said , returnable the (a regular motion- 
 
 day,) at {as the case may be.) 
 
 (For form of writ, see page 38.) 
 
 Appearance of defendant to the attachment.(a) 
 
 {Title of cause.) 
 Appearance entered for , defendant, on the attachment 
 
 issued against him in the above-stated cause by 
 
 {Signatva-e of solicitor.) 
 
 •cause and in the same county shall be 
 included in one writ of attachment 
 Rule 133. 
 
 When an attachment for a contempt 
 shall be served, the defendant shall be 
 retained in custody thereon, to answer 
 the exigency of the writ, until the 
 return-day thereof, unless he shall, 
 with one sufficient surety at least, 
 give bond in the penal sum of five 
 hundred dollars to the complainant, 
 <;onditioned for his appearance on the 
 return-day of the attachment, accord- 
 ing to the command of such writ, and 
 that he will not depart thence with- 
 out leave of the court. Rule 134. 
 
 The form of the writ is the same in 
 all cases, but by the English practice, 
 from which the form of our writ is 
 borrowed, it was necessary that the 
 writ should bear an endorsement 
 stating the particular nature of the 
 contempt in respect of which it is 
 Issued. It seems that either this 
 
 ought to be done or that the order 
 upon which the writ was issued should 
 be served with the writ. 
 
 The writ must be tested on the day 
 on which it is issued and sealed by 
 the clerk, and the amount in which 
 the party is to give bail is to be 
 endorsed on the writ, unless the 
 sheriff' is to take bail in the sum 
 required by the rules. If any amount 
 of bail\in excess of this is required, it 
 must be ordered by the Chancellor 
 and endorsed on the writ. 
 
 An arrest on a Sunday is absolutely 
 void. No arrest can take place under 
 an attachment after the return-day of 
 the writ. 
 
 (a) When a defendant in attach- 
 ment shall have given ' bond for his 
 appearance, he shall enter his appear- 
 ance with the clerk on the return-day 
 of the writ, and give notice thereof to 
 the adverse party. Rule 135. 
 
CONTEMPT FOB VIOLATING INJUNCTION, 47 
 
 Rule for defendant's examination upon interroga- 
 
 tories.(a) 
 
 {Title of cause.) 
 
 THe sheriff of the county of having made return to the 
 
 attachment issued against the defendant, , that he has 
 
 taken the body of said defendant and has taken a bond for the 
 due appearance of said according to the exigency of said 
 
 attachment; and said attachment and return, and the bond 
 accompanying the same, having been filed, and said hav- 
 
 ing entered his appearance with the clerk on the return-day of 
 the writ, and given notice thereof to the complainant's solicitor, 
 and not admitting himself to be guilty of the contempt alleged 
 against him : It is ordered that it be referred to , one of 
 
 the masters and examiners of this court residing in the city of 
 , to examine said defendant upon interrogatories touch- 
 ing his contempt, and to take such further proofs as either party 
 may produce before him in relation to the alleged contempt, and 
 that he report such answers and proofs to this court. 
 
 By the court. 
 
 Dated, . Clerk. 
 
 Interrogatories for the examination of a party, &c. 
 
 {Title of cause.) 
 
 Interrogatories to be exhibited on the part of the complainant 
 for the examination of , a defendant in this cause, pur- 
 
 suant to a rule entered in said cause on the {date.) 
 
 {Here follow the interrogatories, divided into paragraphs and 
 numbered consecutively.) 
 
 Answer to foregoing interrogatories. (6) 
 
 ( Title of cause.) 
 The answer and examination of , a defendant in this 
 
 cause, to the interrogatories exhibited by the complainant for 
 
 (a) The complainant shall, within ment, or on his solicitor; and in cage 
 
 eight days after such notice,' enter a of his neglect so to do, the court 
 
 rule of course for the defendant's ex- may order the party to be discharged 
 
 amination upon interrogatories touch- from the attachment, with costs. Bule 
 
 ing his contempt, before one of the 136. Jeweit v. Dringer, 12 C. E. Or. 
 
 masters of this court, and serve a copy 271. 
 
 thereof, with a copy of the interroga- (b) The answer to the interroga- 
 tories, on the defendant in attach- tions, in case of an attachment for a 
 
48 FORMS OF PLEADINGS. 
 
 his examination pursuant to a rule of this court, dated (date.) 
 To the first interrogatory this examinant answers and says 
 that, &c. 
 
 {Here follow the answers, to be divided into paragraphs and 
 numbered consecutively.) 
 
 Sworn and subscribed before me, this (date.) 
 
 (Signature of master and examiner.) 
 
 Order convicting defendant of contempt after 
 examination upon interrogatories. 
 
 (Title of cause.) 
 A writ of attachment having been heretofore issued out of and 
 under the seal of this court against the defendant, , for 
 
 his contempt in (as the case may be,) directed to the sheriff of 
 the county of , and returnable (date,) and the said sheriff 
 
 having returned the said writ; and the said having given 
 
 bond for his appearance, and entered his appearance with the 
 clerk on the return-day of the writ, and giving due notice 
 thereof, and not admitting the contempt alleged against him, 
 was examined upon interrogatories before , a master and 
 
 examiner, pursuant to a rule of this court for that purpose ; and 
 
 contempt, must be delivered ore terms. self from the charge. Magennis v. 
 State V. Fisler, 1 Haht. 305. In the Parkhurst, 3 Or. Ch. 433. 
 above case the defendant answered If the accused deny the contempt, 
 the interrogatories from a printed or do not clearly show it by his 
 paper which he held in his hand, answers, the prosecutor may examine 
 containing answers to each of the in- witnesses to prove it. Ibid. 
 terrogatories ; afterwards he signed When the party attached shall 
 the printed answers and they were attend before the master upon the in- 
 annexed to the interrogatories. Ex- terrogatories, if any questions arise in 
 parte affidavits of witnesses cannot be respect to the interrogatories, they 
 received ; the parties must produce shall be settled by the master, and the 
 aad examine witnesses before the party attached shall, within four days 
 master, so that they may be cross- after they are submitted to or settled, 
 examined by the adverse party. as aforesaid, put in his examination in 
 Ckmming v. Waggoner, 7 Paige 603. writing ; and the master shall, if 
 A party under an attachment for an required by the adverse party so to 
 alleged breach of an injunction is not do, report, with the interrogatories 
 confined to his answers to the inter- and examination, whether, in his 
 rogatories exhibited to him, but may opinion, the examination is full and 
 examinfe witnesses to exculpate him- satisfactory or not. iJaie 137. 
 
OF INFANT DEFENDANTS, AC. 49 
 
 it now appearing to the Chancellor, from the report of the said 
 master and the answers and proofs thereto annexed, that the said 
 has committed the contempt with which he is charged, 
 and the Chancellor now adjudging him to have been guilty of 
 the misconduct alleged, and that such misconduct was calculated 
 to or did actually defeat, impair, impede or prejudice the rights 
 of the complainant in this cause, {or as the case may be:) It is, 
 on this {date), on motion of, &c., ordered, that said do 
 
 pay to the complainant the costs(a) of these proceedings, to be 
 taxed, and do also pay to the clerk of this court a fine of 
 dollars to the use of this state. And it is further ordered, that 
 the said be committed to the common jail of the county 
 
 of , there to remain charged upon his said contempt until 
 
 he shall have paid such fine and costs, unless the Chancellor 
 shall see fit sooner to discharge him, and that a warrant issue 
 accordingly. {For other forms applicable to this proceeding, see 
 preceding pages under the head of "Proceedings to Compel 
 Answer." 
 
 OF THE APPOINTMENT OF A GUAEDIAN AD 
 LITEM FOR INFANT DEFENDANTS. 
 
 Notice to infant defendant over fourteen years. (6) 
 
 {Title of cause.) \ On bill, &c. 
 
 To {infant over fourteen years:) 
 
 Take notice, that I shall apply to the Chancellor of this state, 
 on Tuesday, the day of next, at ten o'clock in the 
 
 forenoon, or as soon thereafter as counsel can be heard thereon, 
 
 (a) An attachment for contempt, (6) It is provided in the sixty-fourth 
 
 being in the nature of a criminal pro- rule, that where an infant is made a 
 
 ceeding, costs are not usually allowed. defendant in a suit, and no application 
 
 Magennis v. Parkhurst, 3 Gr. Ch. 433. shall be made on his behalf, within 
 
 The payment of a counsel fee cannot four days next after the day of appear- 
 
 be imposed, as a punishment for con- ance specified in the subpffina or order 
 
 tempt, and the imposition of a fine is of publication, for the appointment of 
 
 obligatory. ffSourke v. Cleveland, 4 a guardian, the Chancellor may,, on 
 
 pick. Ch. Rep. 577. application on behalf of the com- 
 
50 
 
 FORMS OF PLEADINGS. 
 
 at the State-house, in the city of Trenton, to assign and appoint 
 a guardian ad litem for you in the above-stated cause. 
 
 Solicitor of complainant. 
 Dated, 
 
 Notice to infant under fourteen years.(a) 
 To {guardian, father or mother, or as the case may be,) of 
 
 Take notice, that 1 shall apply to the Chancellor of this state, 
 on the day of next, (or " instant,") at ten o'clock in 
 
 the forenoon, or as soon thereafter as counsel can be heard, 
 at the state-house, in the city of Trenton, to assign and 
 
 plainant, hj order, assign a guardian 
 ad litem (usually the clerk of the 
 court) for such infant. It is usual in 
 practice for the complainant's solic- 
 itor, if he has reason to believe that no 
 application will be made in behalf of 
 the infant, to proceed in the first in- 
 stance for the appointment of such 
 guardian ; should a guardian be after- 
 ■wards appointed for the infant on pe- 
 tition, the appointment of the clerk as 
 aforesaid is, ipso facto, superseded. In 
 proceedings under the sixty-fourth 
 and sixty-fifth rules, the practice is to 
 appoint the clerk guardian ad litem. 
 In foreclosure suits, the clerk merely 
 enters an appearance for the infant ; 
 in other cases, he will enter and file a 
 formal answer for such infant. The 
 notice must be served on the infant 
 personally, if of the age of fourteen 
 years, and resident in the state, at 
 least fifteen days before the day for 
 making the application ; and it may 
 be served at the time of service of 
 subpoena, or at any time after. Rule 
 64. But if the infant be under four- 
 teen years of age, or not resident in 
 the state, the notice must be directed 
 to, and served on, his guardian ap- 
 pointed by the Orphans' Court, if any 
 there be; and if no such guardian. 
 
 then on the father of the infant ; if no 
 father, then on the mother; provided, 
 such guardian, father or mother be 
 resident in the state. At the return- 
 day of the notice, if no proper appli- 
 cation has been made by the infant 
 defendants, or by any person or per- 
 sons on their behalf, for such appoint- 
 ment, the complainant will be entitled 
 to an order as of course, appointing 
 the clerk guardian ad litem for them. 
 If, however, the infants reside out of 
 the state, and have no guardian ap- 
 pointed by the Orphans' Court, nor a 
 father or mother resident in the state, 
 the same proof of publication, &c., 
 must be filed as in the case of adults ; 
 and in addition to such proofs, an 
 affidavit of the continued non-resi- 
 dence of the infants, made at least 
 four days after the day of appearance 
 specified in the order of publication, 
 must be filed, whereupon an order 
 appointing the clerk guardian ad litem* 
 for such infant defendants will be 
 granted. 
 
 (a) If such infant reside in this 
 slate and has no father, mother or 
 guardian in the state upon whom no- 
 tice can be served, then the notice 
 is to be served upon the person stand- 
 ing 171 loco parentis to the infant. 
 
OF INFANT DEFENDANTS, &C. 61. 
 
 appoint a gaardian ad litem for , an infant defendant in 
 
 the above-stated cause, who is under fourteen years of age. 
 
 Solicitor of complainant. 
 Dated, 
 
 Affidavit of notice to infant defendant, &c. 
 <jounty, ss. — , of full age, being duly sworn according to 
 
 law, on his oath saith — That on the day of last 
 
 past, he served a notice, of which the above is a true copy, on 
 , who is, to the deponent's knowledge, an infant of 
 the age of fourteen years and upwards, by reading the same to 
 
 , and delivering to the original notice ; (or, " on 
 
 guardian, father or mother," as the case may be, " of , 
 
 an infant, by reading the same to him (or her,) and delivering 
 to him (or her) the original notice ; and that at the time of the 
 said service, the said informed this deponent that the said 
 
 infant was under the age of fourteen years.") 
 
 Sworn and subscribed, &c. 
 
 Affidavit of non-residence of infants, 
 county, ss. — , of full age, being duly sworn according to 
 
 law, on his oath saith — That and are infant defend- 
 
 ants in a certain cause now pending in the Court of Chancery of 
 New Jersey, in which are complainants, and and 
 
 others are defendants ; and that they still reside out of the State 
 of New Jersey, to witj in the State of ; and that they 
 
 have no father or mother, nor a guardian appointed by the 
 Orphans' Court, resident in this state. 
 
 Sworn and subscribed, &c. 
 
 Order for the appointment of a guardian on ap- 
 plication of complainant. 
 
 \ On bill, &c. 
 {Title of cause.) V Order appointing 
 
 J guardian. 
 
 This matter being opened to the court by , of counsel 
 
 with the complainant, andf it appearing that the defendants 
 
 , infants under the age of twenty-one years, have been 
 
52 FOEMS OP PLEADINGS. 
 
 served with process, to appear and answer the complainant's 
 bill, and that they have neglected to apply for the appointment 
 of a guardian to defend this suit. And* it further appearing by 
 affidavit that the defendants, , are infants above the age of 
 
 fourteen years, and that due notice has been given to them of 
 this application : It is, on this day of , &c., ordered, 
 
 that , clerk of this court, be assigned and appointed their 
 
 guardian, by whom they may appear and answer, and defend 
 this suit. 
 
 {Or, after the *, "it appearing by affidavit that the defend- 
 ant, , is an infant over the age of fourteen years, and 
 that due notice has been given to her of this application, and 
 that due notice of the same has been given, , {father or 
 mother or guardian, as the case may be,) of , who is an 
 infant defendant under the age of fourteen years : It is, &c.," 
 as above.) 
 
 {Or, after f, say: " it appearing to the court that and 
 
 , two of the defendants in the above-stated cause, were, 
 by an order of this court, made on the day of last 
 
 past, directed to appear, plead, answer or demur to the com- 
 plainant's bill on or before the day of then next ; 
 that they are infants under the age of twenty-one years, and 
 have neglected to apply for the appointment of a guardian to 
 defend this suit. And it further appearing by affidavit that 
 they still reside out of this state, and have no father, mother or 
 guardian in this state to whom notice df this application could 
 be given : It is thereupon, on this day of , &c., on 
 motion of , of counsel with the complainants, ordered, 
 that , clerk of this court, be assigned and appointed their 
 guardian, by whom they may appear and answer, and defend 
 this suit.") 
 
 Appearance for infant. 
 
 {Title of cause.) 
 
 Appearance entered for and , infant defendants 
 
 in the above cause, by 
 
 Guardian ad litem. 
 
OF INFANT DEFENDANTS, &C. 63 
 
 Petition of a minor over fourteen years of age 
 for appointment of guardian(a) 
 
 In Chancery of New Jersey. 
 To his Honor, , Chancellor of the State of New Jersey : 
 
 The petition of , the son of , late of the township 
 
 of , in the county of , respectfully showeth that your 
 
 petitioner is one of the defendants named in a bill of complaint 
 filed in this honorable court by , late of the township of 
 
 , in the said county of , complainant, against , 
 
 and your petitioner and others, defendants, to be relieved touch- 
 ing the matters in the said bill of complaint set forth; that 
 your petitioner is a minor under the age of twenty-one years, 
 and over the age of fourteen years; that, by reason of his 
 minority, he is unable to answer or make defence unto the said 
 bill of complaint in a legal, competent and proper manner. 
 Your petitioner therefore prays that your petitioner's stepfather, 
 , who is also one of the defendants to said bill of com- 
 plaint, may be appointed by your Honor, in this honorable court, 
 guardian ad litem of your petitioner, for him and in his behalf 
 to make answer and defence to the said bill of complaint. And 
 your petitioner will ever pray, &c. 
 
 Dated, &c. {Signature.) 
 
 Signed in the presence of — 
 
 Annex a consent of the proposed guardian, in the following form: 
 
 I, above named, do hereby consent and agree to accept 
 
 the appointment of guardian ad litem, above prayeil for, of , 
 
 (a) The infant must defend himself ment ; an agreement, expressing the 
 
 by his guardian ad litem, duly ap- assent of the person petitioned for, to 
 
 pointed for that purpose; he cannot accept of the appointment, and also 
 
 sue by his guardian, but only by his an affidavit or affidavits that the peti- 
 
 next friend. Surry's Eq. PL, i 70. tion and agreement were duly signed. 
 
 For the purpose of having a guardian and verifying the age of the infant, 
 
 appointed for an infant, to answer and must accompany the petition. Bute 
 
 defend a suit, a petition may be pre- 63. The guardian so appointed is, 
 
 sented by the infant, if above the age usually, the nearest relation not con- 
 
 of fourteen years, or, if under that cerned in point of interest adversely 
 
 age, by his father or some other friend to the right of the infant in the matter 
 
 in his behalf, praying such appoint- in question. Mitf. PL 82. 
 
54 FORMS OF PLEADINGS, 
 
 son of , a minor under the age of twenty-one years, to 
 
 make answer and defence, in behalf of the said infant, to the 
 bill of complaint lately exhibited in the Court of Chancery of 
 the State of New Jersey by , the complainant, against me, 
 
 the said and , said and others, defendants. 
 
 In witness whereof, I have hereunto subscribed my name, the 
 day of , in the year, &c. 
 
 (Signature.) 
 Signed in the presence of — 
 
 And let the subscribing witness make an affidavit at the foot of 
 the consent, of the following purport : 
 New Jersey, ss. — , late of , in the county of' 
 
 , of lawful age, being duly sworn according to law, on 
 his oath saith — That he, this deponent, was present and saw 
 
 subscribe his name to the above-written agreement, the 
 same having been by this deponent first read over to the said 
 
 , and this deponent was also present and saw the above- 
 named subscribe the foregoing petition, the said petition 
 having been by this deponent first read over to the said ; 
 and this deponent saith, that from information given to him, 
 and from the appearance of the said , this deponent verily 
 believes and bath no doubt that the said is under the age 
 of twenty- one years; and this deponent further believes, from 
 the above- stated grounds of belief, that the said is over 
 the age of fourteen years. (Signature.) 
 Sworn and subscribed at , in the county of , this 
 
 day of , A. D. , before me. 
 
 Order for appointment of guardian for infant 
 over fourteen years on foregoing petition. 
 
 ,™„ , . ) Order 
 
 { Iitle of cause.) > ... t o / \ 
 
 ^ ' ) appomtmg guardian, &c.(a) 
 
 Upon reading the petition filed in this cause by , one 
 
 of the defendants in this cause, setting forth that he, the said 
 
 (a) An order appointing the clerk the affidavit of the superintendent of 
 
 of the court guardian ad litem of a the asylum where the lunatic was, and 
 
 lunatic was granted without notice on showing that the defendant was a 
 
 petition of complainant, verified by lunatic and unfit to govern himself or 
 
OF INFANT DEFENDANTS, &C. 55 
 
 , is a minor over the age of fourteen years, and praying 
 that , one of the defendants in this cause, the stepfather 
 
 of the petitioner, may be appointed his guardian ad litem, for 
 him and in his behalf to make answer and defence to the com- 
 plainant's bill of complaint; and upon reading the written 
 assent of the said annexed to said petition, that said ap- 
 
 pointment be made, and also the affidavit of , verifying 
 
 the age of the said petitioner, and setting forth that the said 
 petition and assent were signed in his presence : It is, on this 
 
 day of , &c., ordered, that the said be ap- 
 
 pointed guardian ad litem of the said , by whom he may 
 
 appear and answer, and defend this suit. 
 
 Petition on behalf of minors under fourteen years 
 of age for appointment of guardian. 
 
 In Chancery of New Jersey. 
 To His Honor, , Chancellor of the State of New Jersey : 
 
 The petition(a) of {father, mother or next friend, as the 
 
 case may be,) respectfully showeth that your petitioner, , 
 
 is the of , minors under the age of fourteen years, 
 
 the children of , late of the township of , in the county 
 
 of , deceased ; that the said minors are three of the de- 
 
 fendants named in the bill of complaint exhibited in this 
 honorable court by , of the said county of , against 
 
 and the said minors and one , another minor and 
 
 son of the said , deceased; that the said is aged 
 
 thirteen years the day of, &c., the said was ten years 
 
 old on the day of, &c., and your petitioner respectfully 
 
 prays that your petitioner may be appointed guardian ad litem 
 to defend the said minors, , against the said bill of com- 
 
 plaint of the said 
 
 Dated, &c, {Signature.) 
 
 Present — 
 
 his estate. Potter v. Sora, May Term, (a) Where the infant is under four- 
 1878. This practice, however, is not teen years of age, and consequently- 
 approved in ordinary cases. Generally not capable of selecting a guardian, 
 notice must be given as before de- the petition is by the parent or next 
 scribed. friend of the infant. 
 
56 FOEMS OF PLEADINGS. 
 
 Consent to be annexed. 
 
 I, , of the township of , in the county of , 
 
 do hereby declare and express my assent and willingness to 
 accept of the appointment of guardian ad litem above prayed 
 for. 
 
 Dated, &c. (Signatmre.) 
 
 Present — 
 
 Affidavits to be annexed. 
 
 New Jersey, ss. — , the petitioner named in the fore- 
 
 going petition, having been duly sworn according to law, on her 
 oath saith^-That the above petition truly expresses the several 
 and respective ages of , &c., in the said petition named, 
 
 according to the best of the recollection and belief of this de- 
 ponent. 
 
 {Signature.) 
 
 Sworn and subscribed, &c. 
 
 New Jersey, ss. — , late of , in the county of , 
 
 ■of lawful age, being duly sworn according to law, on his oath 
 saith-^That he was present and saw , the petitioner 
 
 named in the foregoing petition, duly sign the same by sub- 
 scribing name thereto. And this deponent further saith 
 that he was present and saw the said subscribe his name 
 to the consent and agreement written at the foot of the above- 
 written petition. 
 
 (Signature.) 
 
 Sworn and subscribed, &c. 
 
 Order appointing guardian of infant defendants 
 under fourteen years of age.(a) 
 
 (Title of cause.) J- Order, &c. 
 
 Upon reading the petition filed in this cause by the defend- 
 ant, , setting forth that the said is the mother of 
 
 (a) If a person is, by age or infirm- mit him to appear and answer by 
 
 ity, reduced to a second infancy, upon guardian. In re Barker, 2 Johns. Oh. 
 
 due proof, by affidavit or otherwise, M. 235. If it shall come to the knowl- 
 
 of such imbecility, the court will ad- edge of the Chancellor, in the progress 
 
ADMINISTRA.TOE AD PBOSEQUENDUM, 
 
 57 
 
 and , two of the defendants in this cause, and that 
 
 her said children are minors under the age of fourteen years, 
 and praying that the said may be appointed guardian ad 
 
 litem of the said minors ; and upon reading the written assent of 
 the said to said appointment, and the affidavit of that 
 
 said petition and assent were duly signed, and the affidavit of 
 the said , wife of the said , verifying the age of her 
 
 said children : It is, on this day of , ordered that 
 
 the said be appointed guardian ad litem of the said 
 
 and , by whom they may appear and answer, and defend 
 
 this suit. 
 
 OF ADMINISTKATION AD PKOSEQUENDUM.(o) 
 
 of the suit, that a party complainant 
 or defendant is of unsound mind, he 
 will take notice of the fact, and no de- 
 cree will be made until after a next 
 friend or guardian ad litem, (as the 
 case may be,) shall have been ap- 
 pointed for such person. And see C. 
 D. Owing' s Case, 1 Bland 373, and note. 
 (a) Administration ad litem or ad 
 prosequendum is granted to substantiate 
 proceedings in chancery when the 
 proper representatives of the deceased 
 will not take upon themselves to act, 
 and when it is necessary that the in- 
 terests of the deceased should be rep- 
 resented in the proceedings. See 
 Harris v. Milburn, 2 Sagg. 62; 1 
 Wma. on Ex'ra 522 ; Lothrop's Case, 6 
 Stew. Eq. 246. 
 
 The grant of letters of administra- 
 tion ad litem makes the grantee com- 
 plete representative of the estate to 
 the extent of the authority which the 
 letters purport to confer, and a decree 
 
 against such grantee is therefore bind- 
 ing upon any one who may afterwards 
 take out general administration to the 
 estate. Davis v. Chanter, 2 Phillips 545. 
 The grant runs, "to attend, supply, 
 substantiate and confirm the proceed- 
 ings already had, or that shall or may 
 be had, in the said suit in the Court 
 of Chancery, or in any other cause or 
 suit which may be commenced in the 
 said court, or in any other court, 
 between the said parties, or any other 
 parties, touching or concerning the 
 matters at issue in the said suit, and 
 until a final decree shall be made or 
 had therein, and the said decree car- 
 ried into execution, and the execution 
 thereof fully completed, but no further 
 or otherwise in any manner what- 
 ever.'' The grantee can only carry on 
 the suit to its termination ; he cannot 
 receive its fruits, and therefore no 
 bond is required of such an adminis- 
 trator. 
 
S8 F0KM8 OF PLEADINGS. 
 
 Petition to the Ordinary for letters of adminis- 
 tration ad prosequendum.(a) 
 
 In the Prerogative Court of New Jersey. 
 
 To the Ordinary or Surrogate-Qeneral of the State of New 
 Jersey : 
 
 The petition of shows that he is the complainant in a 
 
 certain cause in the Court of Chancery of this state against 
 and others, to foreclose a mortgage upon certain lands in 
 the county of ; that , deceased, late of the city of 
 
 New York, in the State of New York, was at his death the 
 holder of a certain other mortgage on said lands, dated, &o., to 
 secure dollars, and recorded, dse., {or as the case may be.) 
 
 That the said died on {date,) in the city and State of 
 
 New York, {or as the ease may be,) having first made his last 
 will in writing, wherein he appointed the executor thereof. 
 
 That on or about the (rfafe,) said will was duly proved before 
 the surrogate of the county and State of New York by the said 
 , and letters testamentary were issued thereon to him, 
 and he took upon himself the execution thereof, and that said 
 will has not been proved in this state, or any letters of adminis- 
 tration granted in this state of the goods, &c,, of said decedent. 
 
 That according to the rules and practice of the Court of 
 Chancery your petitioner is unable to foreclose the equity of 
 redemption under the last- mentioned mortgage without a repre- 
 sentation of said , deceased, in this state. He therefore 
 prays that an administrator ad prosequendum may be appointed 
 by the Ordinary to represent the estate of said in said suit 
 in chancery. 
 
 {Signature of proctor.) 
 
 There must be proof by affidavit of the death of the person 
 on whose estate the letters are sought, and of the fact that no 
 administration thereon exists in this state. 
 
 (a) This application may be made dum is made a party defendant and 
 
 in advance of tlie filing of a bill in included in the prayer for subpcena, 
 
 chancery, and in such case the person as in ordinary cases, 
 appointed administrator ad proseguen- 
 
ADMINISTKATOR AD PBOSEQUENDUM. 59 
 
 Order for limited administration on the above 
 petition. 
 
 New Jersey Prerogative Court. 
 In the matter of the estate "1 
 of , deceased. / 
 
 It appearing by the petition of that he is the com- 
 
 plainant in a certain cause in the Court of Chancery of New- 
 Jersey against and others, for the foreclosure of a certain 
 mortgage made by and now held by the said petitioner, 
 and that another mortgage made by said and wife to 
 is an encumbrance on the lands mortgaged to said peti- 
 tioner subsequent and subject to the lien of the mortgage of said 
 petitioner, and that said (the second encumbrancer) died intestate, 
 and that no administrator of his estate has been appointed in 
 this state, and that it is necessary for the proper prosecution of 
 said suit in the Court of Chancery that an administrator should 
 be appointed of the estate of said , deceased, in this state, 
 for the purposes of said suit : 
 
 It is, on this [date,) ordered by the Ordinary that letters of 
 administration upon the estate of the said , deceased, be 
 
 issued by the register of this court to , limited only to the 
 
 purpose of attending, supplying, substantiating and confirming 
 the proceedings already had, or which shall or may be hereafter 
 had, in the said above-mentioned suit in the Court of Chancery, 
 or in any other suit or suits which may hereafter be commenced 
 in that or any other court for the relief sought by the bill in the 
 Court of Chancery, and until a final decree shall be made 
 therein, and such decree carried into execution, and the execution 
 thereof fully completed, but no further or otherwise in any 
 manner whatsoever. 
 
 Form of letters of administration ad prosequendum. 
 
 To all to whom these presents shall come : 
 
 Whereas , late of (residence,) is dead, and no letters 
 
 testamentary or of administration of his (or, her) estate have 
 been granted in this state, and it is necessary, for the proper 
 prosecution of a certain suit in the Court of Chancery of this 
 
60 FOBMS OF PLEADING^. 
 
 state wherein is complainant and and and 
 
 others are defendants, that an administrator should be appointed 
 of his [or, her) estate in this state for the purposes of said suit. 
 
 Therefore I, , Ordinary or Surrogate-General of the 
 
 State of New Jersey, do hereby appoint administrator of 
 
 all and singular the goods, chattels and credits of said deceased, 
 limited, however, to and only to attending, supplying, substan- 
 tiating and confirming the proceedings already had, or that shall 
 or may be had in said suit, or in any other cause or suit in that 
 or any other court for the relief sought by the bill in said suit 
 in chancery, and until a final decree shall be made therein, and 
 such decree be carried into execution, and the execution thereof 
 fully completed, and with no further powers or otherwise in any 
 manner whatsoever. 
 
 Witness, &c. 
 
 Order admitting administrator ad prosequendum 
 a party defendant, (a) 
 
 {Title of cause.) 
 
 It appearing to the court that , administrator ad prose- 
 
 quendum of , deceased, duly appointed as such by the 
 
 Ordinary of the State of New Jersey, is a proper and necessary 
 party defendant in this suit : It is, on this (date,) on motion of 
 , of counsel with the complainant, ordered that the said 
 , administrator as aforesaid, be made a party defendant 
 hereto, and that the bill of complaint herein stand amended 
 accordingly, and that the complainant proceed further herein 
 according to law and the course of this court. 
 
 (a) In case the appointment is party to the suit will be made and he 
 
 made pending the suit in chancery, will enter his appearance. The costs 
 
 the complainant's solicitor will tile in of the proceeding will be included in 
 
 the clerk's office the letters issued, the complainant's taxed costs of the 
 
 and then an order admitting him a suit. 
 
EXCEPTIONS TO BILL. 
 
 61 
 
 PROCEEDINGS BY A DEFENDANT BEFORE 
 PLEADING. 
 
 Exceptions to bill for impertinence, &c.(a) 
 
 im-.T t \ I On bill for divorce. 
 
 ^ ■> > r Exceptions to bill. 
 
 Exceptions taken by , defendant, to the bill of com- 
 
 plaint filed against him in the above-stated cause by , 
 
 complainant. 
 
 (a) The defendant, at aby time be- 
 fore he has filed his answer or plea or 
 demurrer to the bill, may have any 
 irrelevant matter stricken out, upon a 
 reference for that purpose. Woodward 
 V. Astley, Bunbury 304; Wallis v. 
 AiHnson, \ Fowler's Ex. Pr. 449; 
 Camden and Amboy R. R. Co. v. 
 Stewart, 4 C. E. Or. 344. He may 
 refer it for scandal at any time. 
 Woodward v. Astley, supra; Anon., 2 
 Vesey, Sr., 631. Though after obtain- 
 ing an order for time to answer, he 
 cannot refer the bill for impertinence 
 merely. Maltby' v. Phillot, 1 Fowler's 
 Ex. Pr. 443 ; Ferrar v. Ferrar, Dich. 
 173. Exceptions to a bill for scandal 
 or impertinence are taken in the same 
 manner as exceptions to an answer for 
 insufficiency. Ride 76. A copy of 
 the exceptions must be served as in 
 the case of exceptions to answers for 
 insufficiency. See Rule 73. The ex- 
 ceptions should not contain the whole 
 impertinent matter at large. A 
 specification by page and folio, and 
 the beginning and concluding words 
 of a sentence, are sufficient. See Wag- 
 staff v. Bryan, 1 Russ. & Mylne 28 ; 
 Whilmarsh v. Campbell, 1 Paige 645. 
 The English order (the 11th) provides 
 that no order shall be made for refer- 
 ring any pleading or other matter de- 
 pending before the court for scandal 
 or impertinence unless exceptions are 
 
 taken in writing, and signed by coun- 
 sel, describing the particular passages 
 which are considered to be scandalous 
 or impertinent. See Hitchcock v. 
 Rhodes, 15 Stew. Eq. 495. 
 
 After the expiration of six days 
 from the service of a copy of the 
 exceptions on the complainant or his 
 solicitor, if no notice of submission has 
 been received by the defendant, or a 
 submission to some of them only, and 
 upon the filing in the clerk's office of 
 the proof of such service, the clerk 
 will enter a rule in the common rule- 
 book, referring the exceptions to a 
 master. Ride 73. All exceptions for 
 impertinence or scandal must be 
 referred, by one rule, to the same 
 master. RvZe 72. The complainant 
 may submit to the exceptions, and if 
 he does so, must, within six days after 
 receiving them, give a written notice 
 to the defendant's solicitor of his sub- 
 mission to all or any of them. Rule 
 73. He must pay the costs of those 
 he submits to, {Rule 73,) and an order 
 may be entered of course, on filing 
 the notice of submission, that the 
 plaintifi' pay the costs within twenty 
 days after the service of the order on 
 him, or his solicitor. 
 
 Any objection to a bill may be 
 made and adjudicated upon, on mo- 
 tion, without the filing of exceptions, 
 but the notice of such motion (which 
 
62 POEMS OF PLEADINGS. 
 
 The defendant excepts to all the parts of said bill herein de- 
 scribed, as being matter not material to said suit, and which 
 cannot aid the complainant in obtaining the relief sought by said 
 bill, and prays that they may be expunged, with costs, viz. : 
 
 First. — All that part of the bill, &c. 
 
 Second. — All that part of the bill, &c. 
 
 {Signature of solicitor and cov/nsel.) 
 
 Rule referring exceptions, (a) 
 
 {Title of cause.) > {Date of entry of rule.) 
 
 The defendant having filed exceptions to the complainant's 
 bill in this cause, it is ordered that it be referred to , ., 
 
 one of the masters of this court, to look into the complainant's 
 bill and the said exceptions, and examine and report to this 
 court, with all convenient speed, whether the said exceptions be 
 well taken or not. 
 
 Entered by , solicitor for complainant. 
 
 By the court. Clerk. 
 
 Master's summons. 
 
 {Title of cause.) 
 
 Sir — You are hereby summoned to be and appear before me, 
 
 at my office. No. street, in the city of , on 
 
 , the day of next, at o'clock in the 
 
 noon, when I shall proceed to hear and consider of the 
 
 matters in reference before me in the said cause, on exceptions 
 
 to the complainant's bill therein. 
 
 Given under my hand this day of , 18 . 
 
 To {defendant.) Master. 
 
 shall be an eight-days' notice,) must , (a) Exceptions to a bill are referred 
 
 state the particular ground or grounds in the same manner as exceptions to 
 
 of objection. The making of a motion an answer. Rule 76. On filing the 
 
 under this rule shall be deemed a exceptions, the defendant must serve 
 
 waiver of the right to except. Bule a copy on the complainant's solicitor, 
 
 213. If the bill presents no ground and wait six days before he enters 
 
 of equity it may be dismissed on with the clerk his rule to refer the 
 
 motion under this rule. Beading v. bill and exceptions to the master. 
 
 Wilson, 11 Stew. Eq. 446. See, rule 73. 
 
EXCEPTIONS TO BILL. 
 
 63 
 
 State of New Jersey, ss. — being duly sworn saith — 
 
 That on the day of last past, he served a true copy 
 
 of the within summons upon , solicitor of the above-named 
 
 complainant, by delivering the same to him personally, at the 
 same time showing the original. 
 
 {Jurat.) ' {Signature.) 
 
 Master's report on exceptions.(«) 
 
 fnv^j J. s I On exceptions to bill. 
 
 (litle of cause.) > nr ^ , 
 
 ^ -^ ' ( Masters report. 
 
 In pursuance of a rule of the Court of Chancery, entered -in 
 the above cause, bearing date on the day of 
 
 (a) The master to whom the excep- 
 tions are referred, as provided by the 
 19ih rule, shall decide and report 
 upon them within thirty days after 
 they are filed, {Sev., p. 110, § 34,) or 
 they will be considered as abandoned. 
 Sule 76. The master, upon being 
 served with a copy of the rule of 
 reference, will assign a day and place 
 to hear the parties on the exceptions, 
 and will issue his summons to the 
 adverse party, requiring his attend- 
 ance at such time and place, which 
 summons shall be served at 'least four 
 entire days before the day assigned 
 for the hearing, by the party obtain- 
 ing the reference, and he shall make 
 proof thereof to the master; and if 
 the party summoned shall not appear, 
 or good cause shall not be shown 
 why he does not, the master may pro- 
 ceed ex parte ; and if the party obtain- 
 ing the summons shall not appear at 
 the time and place, or show cause 
 why he does not, the master may 
 either proceed ex parte or the party 
 obtaining the summons, and not ap- 
 pearing, shall lose the benefit of the 
 reference at the election of the other 
 party. Rule 43, and see Byington v. 
 Wood, 1 Paige 145. When the solici- 
 
 tors on each side attend at the time 
 and place appointed, the rule of refer- 
 ence is produced, and the master looks 
 into the bill and the exceptions, the 
 solicitors suggesting to him their rea- 
 sons why the bill is or is not scanda- 
 lous or impertinent. The master then 
 gives his opinion upon the exceptions 
 and certifies the same in a report to 
 the court. The report, when signed 
 by the master, is taken away by the 
 party in whose favor it is made and 
 filed 1 Harr. Pr 230. Thereupon 
 the clerk will enter a rule nisi to con- 
 firm the master's report. Miller v. 
 Miller, nCE. Or. 423. Where the 
 complainant took no rule nisi to con- 
 firm the master's report, but gave 
 notice to the defendant's solicitor of 
 filing it, and exceptions were filed, but 
 not within eight days from the time 
 of service of the notice, a motion to 
 strike out exceptions was refused, on 
 the ground that no rule nisi had been 
 taken and served. Ibid. The rule 
 of the court is that the report of a 
 master on matters referred to him 
 will be taken as correct until some 
 error is shown. The burden of this is 
 on the exceptant. National Sank of 
 Metropolis v. Sprague, 8 0. E. Or. 81. 
 
64 FORMS OF PLEADISGS. 
 
 last, whereby the exceptions filed by the defendant to the com- 
 plainant's bill of complaint were referred to the subscriber, 
 one of the masters of the said court, to report thereon whether 
 the exceptions are well taken or not, I, , master as 
 
 aforesaid, do report to his Honor the Chancellor that I have 
 been attended by , of counsel with the complainant, and 
 
 by , of counsel for the defendant, and having heard the 
 
 arguments of the respective counsel, and examined and con- 
 sidered the said bill of complaint, and the several exceptions 
 thereto, I do respectfully report as follows : 
 
 The first exception is well taken, inasmuch as the alleged 
 scandalous and defamatory letter set out in the bill is imma- 
 terial to the charge of adultery set out, and for which relief is 
 prayed; and if the letter was written by defendant as stated, 
 it would not prove or tend to prove the charges of adultery, and 
 is, therefore, impertinent matter, and should be expunged. 
 
 The second and fourth exceptions are also well taken; the 
 matters excepted to are immaterial, and the counsel of the com- 
 plainant, on argument, did not insist on these matters as material. 
 
 The third exception is also well taken, inasmuch as it alleges 
 cruel treatment by defendant towards complainant. 
 
 These charges are immaterial and impertinent in the bill, 
 which prays a decree for divorce on the ground of adultery, and 
 should be expunged. 
 
 Respectfully submitted. 
 
 {Signature of master in chancery.) 
 
 Dated 
 
 Rule nisi to confirm report, (a) 
 
 {Title of cause.) \- {Date.) 
 
 Upon reading and filing a report made in this cause by , 
 
 one of the masters of this court, bearing date on the 
 day of , in the year one thousand eight hundred and 
 
 (a) It is the practice, upon filing a C. E- Or. 39 ; Miller v. Miller, 11 C. 
 report on exceptions to a bill or E. Or. 423. Serve a copy of the fore- 
 answer, to enter a rule that the same going rule on the solicitor of corn- 
 shall be confirmed, unless cause be plainant, and file affidavit of such 
 shown in eight days after the service service in the clerk's office, 
 of the same. Weber v. Weilling, 3 
 
EXCEPTIONS TO BILL. 65 
 
 , it is ordered that the said report, and all the matters 
 and things therein contained, do stand, in all things, confirmed, 
 according to the true tenor and meaning thereof, unless the 
 complainant (or defendant) shall, within eight days after ser- 
 vice upon him of a copy of this rule, show good cause to the 
 contrary, 
 
 Entered by , solicitor of the defendant {or complainant.) 
 
 By the court. 
 
 Clerk. 
 
 Exceptions to master's report by complainant.(a) 
 
 ,-,.j, /. \ ) On exceptions to 
 
 (Ittle of cause.) > i. > . 
 
 ^ •/ ^ t masters report. 
 
 Exceptions taken by the complainant in this cause to the 
 report made therein, on the day of , a. d. eighteen 
 
 hundred and , by , one of the masters of this 
 
 court, to whom were referred the exceptions filed by the de- 
 fendant to the complainant's bill of complaint, by the rule 
 made in the said cause, bearing date the day of , 
 
 eighteen hundred and , touching the matters therein 
 
 referred to him. 
 
 First exception. For that the said master has reported as fol- 
 lows : "The first exception is well taken inasmuch as the alleged 
 
 (o) Exceptions to the master's report will be confirmed. Morris v. Taylor, 
 
 must be filed within eight days from 8 G. E. Or. 134. Notice of hearing 
 
 the service of the rule. Weber v. Weii- is good though dated on Sunday. 
 
 ling, supra. But though they be filed Taylor v. Thomas, supra. Or now by 
 
 too late, nevertheless, the Chancellor, rule the exceptions may be set down 
 
 on being satisfied of merits on the part to be heard at any day in term, on the 
 
 of exceptant, and that the exceptions application of either party, on five 
 
 are not intended for delay, may let days' notice. Mule 12. If either 
 
 them stand. Taylor v. Thomas, 1 Or. party neglects to appear and argue 
 
 Ch. 106. Exceptions to a master's exceptions before the master, such 
 
 report must be set down for hearing party cannot be permitted afterwards 
 
 and placed upon the calendar. Either to bring them before the court by 
 
 party may do it. Miller's Adm'r v. exceptions to the report of the master. 
 
 Miller, 11 C. JE. Or. 424. And the And no exceptions can be taken to a 
 
 rule setting down the exceptions for master's report, which are not founded 
 
 argument must be both entered and upon objections distinctly taken before 
 
 served before the expiration of the the master. Byinglon v. Wood, 1 
 
 time in the rule nisi, or the report Paige 145. 
 
66 FOBMS OP PLEADINGS. 
 
 scandalous and defamatory letter set oat in the bill is immaterial 
 to the charge of adultery set out, and for which relief is prayed ; 
 and if the letters were written by defendant as stated, it would 
 not prove, or tend to prove, the charge of adultery, and is, 
 therefore, impertinent matter, and should be expunged." 
 
 And the complainant insists that the alleged scands^lous and 
 defamatory letters being the defendant's own letters, ought to 
 stand, as part of complainant's case, as showing the character of 
 the defendant and his efforts to destroy the domestic peace and 
 happiness of the complainant, his wife, as well as defendant's 
 general bad character. 
 
 Third exception to •master's report. For that whereas the 
 master reports as follows : " The third exception is also well 
 taken, inasmuch as it alleges cruel treatment by defendant 
 towards complainant. These charges are immaterial and imper- 
 tinent in the bill, which prays a decree of divorce on the ground 
 of adultery, and should be expunged." 
 
 And the complainant insists that the master's report is con- 
 trary both to law and equity, forasmuch as the acts of cruelty 
 charged in complainant's bill of complaint are not immaterial 
 and impertinent, but that said charges are material to the issue 
 raised in complainant's bill. 
 
 Whereas, the said , master as aforesaid, has not reported 
 
 properly, or in accordance with the terms of the said rule, or 
 with the principles of equity. 
 
 In which said several matters and respects this exceptant 
 prays the judgment of this court. 
 
 (Signature of solicitor and counsel.) 
 
 Bule for hearing upon exceptions to master's re- 
 port.(a) 
 
 [Title of cause.) I (Date.) 
 
 It is ordered, on motion of , solicitor and of counsel 
 
 with the complainant, that this cause be set down for hearing 
 
 (a) The exceptions being filed, they next ensuing term of the court jRule 
 must be set down for hearing at the 3. Either party, upon notice to the 
 
EXCEPTIONS TO BILL. 67 
 
 upon the exceptions filed by the complainant to the report of 
 , one of the masters of this court, bearing date on the 
 day of , on the first day of the next stated term of 
 
 this court, to be held, at the state- house, in the city of Trenton, 
 
 at the hour of ten o'clock in the forenoon of that day, or as 
 
 soon as counsel can be heard thereon. 
 
 By the court. Clerk. 
 
 Notice of hearing upon exceptions.(a) 
 {Title of cause.) 
 
 Sir — Take notice that the above cause will be brought to 
 hearing upon the exceptions taken by the complainant to the 
 report of , one of the masters of this court, and bearing 
 
 date the day of , eighteen hund'red and , on 
 
 the first day of the next stated term of said court, to be held at 
 the state-house, in Trenton, at the hour of ten o'clock in the 
 forenoon, or as soon thereafter as counsel can be heard. 
 
 Dated, Solicitor of complainant. 
 
 To , Solicitor of defendant. 
 
 other, may apply to the court for a ous or impertinent, the court, upon 
 
 hearing at an earlier time. See rule defendant's application, will make 
 
 12. A notice to put the cause on the order that the same be expunged, and 
 
 calendar should be furnished the that the defendant be allowed his 
 
 clerk, and notice of hearing served costs, and that the clerk of the court 
 
 on the solicitor of the adverse party, strike his pen through the objection- 
 
 at least fifteen days, exclusive of Sun- able words, setting his initials against 
 
 days, before such intended hearing. the parts so expunged. Blake's Ch. 
 
 Rules 3, 11. Pr. 302. Sixty-six exceptions having 
 
 (a) Upon arguing the exceptions, been taken to the report of the master, 
 
 the counsel of the party excepting and the defendants having succeeded 
 
 opens and replies, and no evidence is as to sixty-four of those exceptions, 
 
 admitted in support of the exceptions and the complainant only as to two, 
 
 but what was laid before the master the defendants were allowed sixty-two 
 
 upon the objections. 2 Mad. Ch. Pr. sixty-sixths of their costs upon the 
 
 390. If the Chancellor is satisfied exceptions to the report, and neither 
 
 that there is error in the master's party was awarded costs on the refer- 
 
 report, he will direct the master, by ence to the master. Mclntyre v. Union 
 
 order, to review his report. If the College, 6 Paige 254; see Sand/ord v. 
 
 master reports that the bill is scandal- Clarke, 11 Stew. Eg. 265. 
 
68 
 
 FOBMS OP PLEADINGS. 
 
 Order confirming master's report on exceptions 
 
 thereto.(a) 
 
 {Title of cause.) 
 It appearing to the court that, by an order bearing date on 
 the day of last past, it was ordered that the excep- 
 
 tions filed by the complainant to the master's report, on excep- 
 tions to the bill in above-stated cause be withdrawn, with costs 
 to be paid by the complainant : It is, on this day of , 
 
 eighteen hundred and , on motion of , esquire, of 
 
 counsel for the defendant, ordered that the said master's report 
 be ratified and confirmed. And it is further ordered that the 
 alleged scandalous, defamatory, immaterial and impertinent 
 matter referred to in the said master's report be expunged 
 according to said report. And it is further ordered that the 
 said pay to the defendant or his solicitor the costs of the 
 
 said exceptions and the proceedings thereon, within twenty days 
 after service of a copy of this order and of the taxed bill of costs- 
 on her or her solicitor. 
 
 (Signature.), 
 
 OF OBTAINING SECURITY FOR COSTS.(6) 
 
 Order for security for costs. 
 
 , _. , . . 1 Order for 
 
 (IMle of cause.) > -i. ^ . 
 
 ^ "^ ^ j security for costs. 
 
 It appearing to the court that , the complainant in the 
 
 above-stated cause, resides out of the State of New Jersey, and 
 in the State of New York : It is thereupon, on this (date,) on 
 
 (a) The recital of deeds, &c., in Ball & Beatiy 229. Any proceeding 
 
 hcec verba, in a bill, is impertinent, in the court may be referred for 
 
 according to Lord Coventry's orders. scandal and impertinence. Ershine 
 
 The same general rule as to the ma- v. Oarshore, 18 Vesey 114 ; Price v. 
 
 teriality of the matters prevails here Shaw, 2 Coxe's Cases 184. AflBdavit. 
 
 as in case of an answer. See Hoff. referred for impertinence. Phillips v. 
 
 "Master in Chancery" 317. An Muilman, 3 Atk. 391. 
 amended bill, repeating all the allega- (6) If the complainant resides out 
 
 tions and charges of the original bill, of the state, he is required, before the 
 
 is impertinent. Willis v. Evans, 2 issuing of process to appear, to cause 
 
SECURITY FOE COSTS. 
 
 69 
 
 motion of , of counsel with the defendant, ordered that 
 
 the complainant in this cause do, within days after service 
 
 upon him or his solicitor of notice of this order, give security 
 for costs in this cause, according to law, and that until this order 
 be complied with all further proceedings in the cause be stayed. 
 And it is further ordered that if such security be not filed, or 
 the deposit in lieu thereof made within the time above limited, 
 the defendant may apply to dismiss the bill in this cause. 
 
 a, bond to be executed by at least one 
 sufficient person, being a freeholder 
 and resident within the state, to the 
 defendant, in the penal sum of $150, 
 ■conditioned to prosecute the suit with 
 effect, and to pay costs to the defend- 
 ant, if he shall be entitled thereto and 
 have the same filed with the clerk, or 
 in default thereof, the complainant's 
 solicitor, who shall file the said bill 
 and issue process thereon, shall be re- 
 ■sponsible to pay the defendant such 
 costs as he may be entitled to by the 
 order of the court, to an amount not 
 exceeding the penalty of the bond, 
 and whether the bill and process be 
 signed by the complainant or his 
 solicitor, then the said suit may be 
 stayed till the bond be filed, and if it 
 be not filed by the time appointed by 
 the court, the bill shall be dismissed, 
 with costs; provided, that in lieu of 
 such bond the complainant may de- 
 posit with the clerk the sum of |150 
 in money. Pamph. L., 1892, chap. 
 CCXXXIX. 
 
 The defendant is not bound to 
 accept the solicitor's security, under 
 the rule. Long v. Tardy, 1 John$. 
 ■Ch. 202. Independent of the statute, 
 it is an ancient and well-established 
 rule, that if the complainant is a non- 
 resident, the court, on the application 
 of the defendant, will order him to 
 ^ive security for costs, and in the 
 meantime will direct all proceedings 
 to be stayed. Newman v. Landrine, 1 
 
 McCart. 291. To obtain an order for 
 this purpose, it is not necessary to give 
 notice to the complainant. A plaintiff 
 cannot be compelled to give security 
 for costs, unless he himself states upon 
 his bill that he is a non-resident, or 
 unless the fact is established by affi- 
 davit. Dan. Oh. Pr. 29. If the fact 
 of non-residence appear in the bill, no 
 affidavit will be necessary. Nor is it 
 necessary that the complainant should 
 reside out of the state at the time of 
 filing his bill, to entitle the defendant 
 to the order. It will be granted if the 
 complainant goes abroad to reside 
 after the commencement of the suit. 
 Newman v. Landrine, supra; Green v. 
 Charnock, 3 Bro. O. O. 371. If, after 
 knowledge of the non-residence, de- 
 fendant takes any. step in the cause 
 before applying for the order, he 
 thereby waives security for costs. 
 Ibid. When there is more than one 
 complainant, unless all are non-resi- 
 dents, security for costs will not be 
 required. Jones v. Knauss, 6 Stew. 
 Eq. 188 ; Anonymous, Pern,. 886 ; 
 Walker v. Easterly, 6 Fes. 612; Win- 
 throp V. Bay, Dick. 282. Infant com- 
 plainants residing in the state are not 
 required to give security for costs. 
 Cortheal ads. Moorehouse, 1 Zah. 335. 
 But where an infant complainant, 
 residing out of the state, sues by a 
 next friend residing in the state, the 
 defendant, by the statute, is entitled to 
 security for costs. Ibid.; see Kerr v. 
 
70 
 
 FORMS OP PLEADINGS. 
 
 Bond for costs.(a) Know all men by these presents, that 
 we, , of the city of , and state of , and , 
 
 of , in the county of , and State of New Jersey, 
 
 are held and firmly boand unto , of aforesaid, in 
 
 the penal sum of one hundred and fifty dollars, lawful money of 
 the United States of America, to be paid to the said , or 
 
 to his certain attorney, executors, administrators or assigns ; to 
 which payment well and truly to be made, we bind ourselves 
 
 Oillespie, 7 Beav. 269. Where the de- 
 fendant was unable to find who or 
 where the plaintiflf was, or his place 
 of residence, the court granted a rule 
 that the plaintiff file security for costs. 
 Mulford V. Oeshiat, 1 Sarr. 272; 
 Bailey v. Oundry, 1 Keen 53. It has 
 been held in England that security 
 cannot be required of an officer in the 
 army or navy, or a consul. Colehrook 
 V. Jones, Dick. 154 ; Stanly v. Hume, 
 1 Hogan 12. But where it appeared 
 upon the bill that the complainant 
 was an officer of the army out of the 
 jurisdiction, the defendant was entitled 
 to the usual security for costs, unless 
 it was distinctly stated that, the com- 
 plainant was on actual service. That 
 it is, not sufficient to state that the 
 complainant was an officer of a. par- 
 ticular regiment, and residing at a 
 particular place out of the jurisdiction, 
 although the regiment might in fact 
 be stationed at that place. Lillie v. 
 Lillie, 2 Myl. & Keene 401. The day 
 on which the order to give security 
 for costs is served and the period from 
 thence to and , including the day on 
 which such security is given is not 
 reckoned in the computation of time 
 allowed a defendant to plead, answer 
 or demur. 1 Smith's Ch. .559. When 
 an order of course has been obtained 
 it must be served on the complainant 
 or his solicitor. The security is given 
 in one of the following modes : The 
 complainant's solicitor prepares a 
 
 bond in the required form and lodges- 
 it in the clerk's office, or in lieu of 
 giving a bond may deposit with the 
 clerk the sum required by the statute, 
 and on the same day serves notice 
 thereof upon the solicitor of the de- 
 fendant who obtained the order, and 
 the security is deemed to have been 
 given on the day the security is filed' 
 or deposited The complainant must 
 give notice of the filing of security. 
 Southern National Bank v. Darling, 4- 
 Dick. Ch. Sep. 398. 
 
 (a) The statute directs that the- 
 security for costs shall be in the form 
 of a bond, with at least one sufficient 
 surety, being a freeholder and resident 
 within the state, in the penalty and 
 conditioned as before mentioned. The 
 bond must be filed with the clerk. 
 The affidavit should be endorsed upon 
 or written under the bond. The 
 bond, when properly filed, will operate 
 to discharge the order to stay pro- 
 ceedings. The defendant may except 
 to the sufficiency of the surety by 
 giving notice of such exception to the 
 complainant's solicitor. Upon the 
 exception being brought to the atten- 
 tion of the court on motion, if the 
 surety has not already justified, he 
 will be required so to do, before the 
 order to stay proceedings is discharged. 
 1 Soff. Ch. Pr. 205. It is too late to 
 move for security for costs after the- 
 defendant has obtained time to answer 
 or plead or demur. Prior v. White^ 
 
8ECUKITY FOR COSTS. 71 
 
 and our and each of our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated the day of , eighteen hundred 
 
 and 
 
 Whereas, by an order of the Court of Chancery of the State 
 of New Jersey, bearing date the day of last past, 
 
 made in a suit depending in said court, wherein the above- 
 n^med is complainant, and the above-named is de- 
 
 fendant, it was ordered that the said should give security 
 
 for costs in the said cause according to law, as by such order will 
 more fully appear. Now, the condition of this obligation is 
 such, that if the said shall prosecute the said suit with 
 
 effect, and pay costs to the said , if he shall be entitled 
 
 thereto in the above-mentioned suit, then this obligation to be 
 void, otherwise to be and remain in full force and virtue. 
 
 [L. 8.] 
 [I.. 8.] 
 
 Sealed and delivered in the presence of — 
 
 Affidavit of justification by surety in bonds for 
 
 COSts.(a) 
 
 State of New Jersey, 1 
 county of , J 
 
 , of , in the county and state aforesaid, being 
 
 duly sworn according to law, deposes and says — That he is a 
 
 2 Moll. 361 ; Ooodrich v. Pendleton, 3 manner. Cliffe v. Wilkimson, 4 Sim. 
 
 Johns Qh. 520; Long v. Tardy, 1 123. No cause should be instantly 
 
 JbAns. CA. 202. A complainant, suing dismissed, on motion, for Want of 
 
 as executor or administrator, and security for costs. A rule is to be 
 
 residing out of the jurisdiction, cannot made for the complainant to give 
 
 be compelled to give security for costs. security within a reasonable time, 
 
 .Calhcart v. Hewson, 1 Hayes 173 ; according to the circumstances of the 
 
 Ooodrich v. Pendleton; supra. A com- case, and if he fails to comply, the 
 
 plainant in a cross-bill will not be cause is then to be dismissed abso- 
 
 compelled to give security for costs. lutely. Breeding r.FinUy,! Dana il. 
 
 Thornton v. Wilson, 1 Hogan 20. A (a) The surety should justify by an 
 
 poor relator must give security for affidavit that he is worth double the 
 
 costs. AU'y-Oen. v. Skinner^ Co., I penalty of such bond over and above 
 
 Coop. P. C. 5. A complainant resid- all debts. 1 Turn. & Ven. 764. The 
 
 ing out of the jurisdiction was allowed bond applies only to the costs of the 
 
 to pay £120 into court, in lieu of giv- defendant applying for security. 1 
 
 ing security for costs in the usual Dan. Ch. Pr. 34. 
 
72 FORMS OP PLEADINGS. 
 
 resident and freeholder within this state, and that he is worth 
 the sum of three hundred dollars over and above all his just 
 debts and liabilities. 
 
 Sworn and subscribed, &c. 
 
 OF PROCEEDINGS IN FORMA PAUPERIS.(a) 
 
 Petition of complainant for the assignment of 
 counsel. 
 To his Honor, , Chancellor of the State of New Jersey : 
 
 The petition of , of the township of , in the 
 
 county of , and State of New Jersey, respectfully shows, 
 
 that your petitioner is a poor person, and that she hath cause of 
 suit, in order to obtain a divorce from her husband, , 
 
 under the act entitled "An act concerning divorces." 
 
 Your petitioner therefore prays that your Honor will be 
 pleased to assign, at your Honor's discretion, to your petitioner, 
 a solicitor and counsel, learned in the law, to prosecute the said 
 cause. And your petitioner will ever pray, &c. 
 
 {8ignatv/re.) 
 
 Dated, 
 
 Verification of petition, (6) State of New Jersey, sa. — 
 , the above-named petitioner, being duly sworn according 
 to law, upon her oath saith — That she is not worth one hundred 
 dollars clear estate. 
 
 Sworn and subscribed, &c. 
 
 (Signature.) 
 
 (a) The provisions of the statute on Newland 400; see Beames on Coats, pp. 
 
 this subject are only applicable to a 113, IIB ; Beamed Orders, p. 44. In 
 
 pauper complainant. Bev., "Practice," New Jersey it has been held that a 
 
 ? 307, et seq. In England this privi- defendant may appear and defend as 
 
 lege was given in chancery by the a poor person. BicHe v. Pickle, July, 
 
 humanity of the court, not as at law, 1823, Chancery. 
 
 under a legislative enactment. It (A) The affidavit to the petition 
 
 there extends to defendants as well as must be made by the party herself, 
 
 to complainants, though the statutes Wilkinson v. Belsher, 2 Bro. C. R. 
 
 confine the right to complainants. 1 272. 
 
IN FORMA. PAUPERIS. 73 
 
 Petition of defendant for leave to defend in forma 
 pauperis. The humble petition of - , one of the defend- 
 ants in the above suit, shows that your petitioner has been 
 served with subpoena in this cause ; that she is a poor person, 
 and that she is not worth one hundred dollars clear estate ; and 
 by reason of her poverty is unable to make defence hereto, if 
 not permitted to defend in forma pauperis. 
 
 Your petitioner therefore prays that she may be permitted to 
 
 defend this suit in forma pauperis, and that counsel and solicitor 
 
 may be assigned her for that purpose. 
 
 {Signature.) 
 Dated, 
 
 {Add verification.) 
 
 Order assigning counsel for complainant,(a) 
 
 {Title of cause.) > On petition, &c. 
 
 Upon reading and filing the petition of , the above- 
 
 named petitioner, and the affidavits thereto annexed : It is, on 
 this day of , A. D. , ordered, that , one 
 
 of the solicitors of this court, be and he is hereby assigned as 
 the solicitor and counsel of the said , to prosecute the 
 
 above cause. 
 
 (a) After answer, an order assigning Orders 216. The following cases are 
 ■counsel cannot be made on an ex parte cited to show under what circum- 
 application ; the defendant is entitled stances allowances have been made 
 to notice. Isnard v. Caseava, 1 Paige to paupers out of the fund in court 
 R. 40. The privilege of thus suing in litigation, to enable them to carry 
 or defending, exempts the party from on the proceedings, but the principle 
 paying fees for writs or orders, or .any of the cases is said to be very ques- 
 fee, profit or reward to any counselor tionable : Perishall v. Squire, Dick. 
 or solicitor for the transaction of the 31 ; SincMey v. Appleby, cited 2 Cox 
 business. Beamed Orders 155, 234. 409; Jones v. Coxeter, 2 Atk. 309; 
 The clerk is authorized, however, to Dickinson v. Mavie, 2 Dick. 582 ; 
 charge the solicitor for the labor of Tillotson v. Hargreaves, 4 Mad. 172 ; 
 writing in drawing orders, &c. 1 Hoff. Peck v. Beechey, 2 Sim. 40, disapprov- 
 es. Pr. 70. A pauper party may ing Oockerill v. Barber, cited 4 Mad. 
 be dispaupered for giving the fees or 172 ; but see contra, Johnston v. Todd, 
 rewards which he is exempted from 3 Beav. 218. An executor or adminis- 
 paying, or for contracting to do so. trator cannot sue in forma pauperis. 
 Lord Clarendon's Orders; Beamed Paradice v. Sheppard, Dick. 136. 
 
74 
 
 FOEMS OF PLEADINGS. 
 
 Order assigning counsel for defendant. 
 
 ( Title of cause.) > On petition, &c. 
 
 Upon reading and filing the petition of , the above- 
 
 named petitioner, and the affidavit thereto annexed : It i8, on 
 this day of , eighteen hundred and , ordered, 
 
 that , one of the solicitors of this court, be and he is 
 
 hereby assigned to defend the said cause for the said petitioner 
 in forma pauperis. 
 
 OF THE DEFENCE TO A SUIT. 
 
 Petition for the production of papers.(o) 
 
 In Chancery of New Jersey. 
 To his Honor, , Chancellor of the State of New Jersey : 
 
 The petition of shows that , of , has filed his 
 
 bill of complaint in this court against your petitioner and others. 
 
 ' (a) If either party, complainant or 
 defendant, has a direct and immediate 
 interest in deeds or documents in the 
 possession or under the control of the 
 other, containing evidence relating to 
 the merits of the action or proceeding, 
 or of the defence thereto, the court 
 may, in its discretion, grant an order 
 requiring either party to give to the 
 other, within a, specified time and 
 under such terms as may be imposed, 
 an inspection and copy, or permission 
 to take a copy, of any such books, 
 papers or documents. Bule 31 ; see 
 Sev., "Practice," § 157. It is a matter 
 of course to allow the complainant to 
 inspect the books and papers. of the 
 defendant referred to in his answer, 
 and thus made a part thereof. Eager 
 V. Wiswall, 2 Paige 369 ; 2 Fowler's 
 Ex. Pr. 54. They must be described 
 with reasonable certainty in the an- 
 
 swer, or in the schedule annexed to it, 
 so as to be considered, by the refer- 
 ence, as incorporated in the answer, 
 and they must be admitted by the 
 answer to be in the defendant's posses- 
 sion or power; and it must also 
 appear that the plaintiff has an inter- 
 est in the production of the papers 
 sought after. Watson v. Menwick, i 
 Johns. Ch. 383. It is laid down as a 
 rule that if the applicant has what is 
 termed a " common interest" in the 
 instrument with the other party, he is 
 entitled to the production. Burton v. 
 Neville, 2 Cox S. 0. 242. In ordinary 
 cases the defendant is not entitled, by 
 motion, to call upon the complainant 
 for the production of his books or 
 documentary evidence in his posses- 
 sion, before answer to enable such de- 
 fendant to make his defence. Kelly 
 V. Eckford, 5 Paige 548. Where the- 
 
PRODUCTION OF PAPEK8, &C. 
 
 75- 
 
 for the foreclosure of a certain mortgage given by your petitioner 
 and his wife on certain premises in said bill described, which 
 said mortgage bears date on the day of , eighteen, &c. 
 
 That it is alleged in said bill that the bond given by your 
 petitioner, secured by the said mortgage, and the said mortgage, 
 are in his possession, and that the same are ready to be pro- 
 duced, as the court shall direct. 
 
 And your petitioner further shows, that the said bond and 
 mortgage contain evidence relating to the merits of his defence 
 to said suit. And your petitioner alleges for cause why the 
 prayer of this his petition should be granted, that as your peti- 
 tioner verily believes the said bond and mortgage have been 
 altered in several material parts, and erasures and interlineations 
 made therein since the same were executed, and particularly that 
 the name of the said has been substituted as mortgagee 
 
 for the name of 
 
 defendant asked for the production of 
 documents in the hands of the com- 
 plainants, to enable him to answer the 
 bill, it was denied. Pen/old v. Nunn; 
 5 Sim. Rep. 409, disapproving the 
 decision in Princess of Wales v. The 
 Earl of Liverpool, 1 Swans. Sep. 114. 
 The defendant should file a cross-bill 
 against the complainant for the dis- 
 covery of the documents, if he requires 
 them for the purpose of his defence in 
 the suit. Penfold v. Nunn, supra; 
 Lupton V. Pearsall, 2 Johns. Ch. 429 ; 
 Hare v. Collins, 1 Sogan 193. The 
 principle of requiring defendant to 
 file a cross-bill is not applicable to the 
 case of partnership books and papers 
 in the hands of one of the partners or 
 his assignees or representatives, where 
 both parties have an equal right to 
 the examination and inspection thereof 
 for the purposes of the suit. In such 
 cases, upon the application of either 
 party, and at any stage of the suit, an 
 order may be made upon the other to 
 deposit any of the partnership books 
 
 and papers in the hands of an officer 
 of the court for examination and in- 
 spection by the adverse party. Kelly 
 V. Eckford, 5 Paige 549; Maund v. 
 Allies, 4 Mylne & O. 503. A defend- 
 ant who, in his answer, refers to a 
 deed in the words, " as by the said in- 
 denture, when produced, will appear," 
 must produce it for the inspection, &c., 
 of the complainant, although he does 
 not " crave leave to refer to it." Wel- 
 ford V. Stainlhorpe, 2 Beav. 587. Where 
 a defendant, by his answer, admits the 
 possession of books and papers relat- 
 ing to the matters in question, but 
 states that they are in constant use in 
 his business and necessary for that 
 purpose, the court only orders, in the 
 first instance, that they shall be pro- 
 duced to the plaintiflF at the place of 
 business at which they are stated to be 
 in use, leaving it open to the plaintiff, 
 if he does not obtain a satisfactory in- 
 spection of them there, to apply to the 
 court for a further order. Orane v. 
 Cooper, 4 Mylne & C. 263. 
 
76 FOKMS OF PLEADINGS. 
 
 And your petitioner further shows, that he has frequently, 
 since the commencement of this suit, requested the said to 
 
 permit your petitioner to inspect and examine the said bond and 
 mortgage, and that the said has always refused to comply 
 
 with such requests. And he further shows, that under the cir- 
 cumstances of the case, such examination and inspection ought 
 to be permitted him before he is compelled to answer said bill. 
 
 Your petitioner therefore prays that an order may be made 
 by this court, directing the said to produce the said bond 
 
 and mortgage to one of the masters of this court, and leave the 
 same with him for the inspection and examination of your peti- 
 tioner for such reasonable time as your Honor may deem proper, 
 or that your Honor may make such other order in the premises 
 as may be agreeable to equity. And your petitioner will ever 
 pray, &c. 
 
 Affidavit to petitioii.(a) New Jersey, to wit — , the 
 
 petitioner named in the foregoiing petition, being duly sworn, on 
 his oath doth declare that the matters and things set forth in the 
 foregoing petition are true of his own knowledge, except as to 
 the matters therein stated to be on his information and belief, 
 ;and as to those matters, he believes them to be true. 
 
 {Signature.) 
 
 (Jurat) 
 
 Notice of motion on foregoing petition. 
 
 {Title of cause.) 
 To , complainant {or defendant :) 
 
 Please take notice that I shall apply to the Chancellor of this 
 state, at the state- house, in Trenton, on , the day of 
 
 next, {or " instant," as the case may be,) at ten o'clock in 
 the forenoon, or as soon thereafter as counsel can be heard 
 thereon, upon a petition for an order directing and commanding 
 you to produce, for the inspection and examination of the 
 
 (a) The petition must be verified opposition to the application may be 
 by the oath of the party, or of his read without notice. Rides 31, 32; 
 solicitor in the matter. Affidavits in and see Rev., "Practice," § 158. 
 
PRODUCTION OP PAPEBS, &C. 77 
 
 in said cause, the bond and mortgage mentioned and set forth in 
 said bill and also directing you to pay the costs of this applica- 
 tion. Solioitor of petitioner. 
 Dated, 
 
 Affidavit of service of notice. 
 
 New Jersey, as. — , of fall age, being duly sworn, ott 
 
 his oath saith — That he served a notice, of which the within 
 (or " foregoing ") is a true copy, on , by delivering the 
 
 same to him, personally, on the day of , instant, and 
 
 informing him of the object of said notice. {Signature) 
 
 (Jurat.) 
 
 Order on complainant to produce paper. 
 
 {Title of cause.) 
 This matter being opened to the court by , of counsel 
 
 with the petitioner, and on reading and filing the petition of the 
 defendant, , praying for the production and inspection 
 
 off "the bond and mortgage mentioned in the complainant's- 
 bill as having been executed by the said to the said com- 
 
 plainant, and dated the day of , and which is ad- 
 
 mitted by the complainant in his bill to be in his possession,, 
 before he shall be compelled to answer said bill ; and on hear- 
 ing, , esquire, in support of said petition, and , 
 esquire, in opposition thereto :" It is, on this day of ,. 
 ordered, that the complainant do, within days from the 
 date of service upon him of a copy of this order, produce the 
 said bond and mortgage to , esquire, one of the masters of 
 this court, and leave the same with him for the inspection of the 
 said defendant, for the space of days, and that the said 
 defendant be permitted to examine and inspect the same, and 
 that he have days to answer said bill after the said bond 
 and mortgage shall have been so produced. 
 
 Order on defendant to produce paper. {As in above 
 form to t, and after mentioning the papers to be produced, then, 
 It is, on this, &c., ordered, that the defendant do, within 
 days after service upon him of a copy of this order, leave with 
 
-78 
 
 FOEMS OP PLEADINGS. 
 
 , one of the masters of this court, at his office, in , the 
 
 several books of account, accounts, letters and papers relating to 
 the matters in controversy in this cause admitted by his answer 
 'to be in his possession, and the complainant, his solicitor, agent 
 or counssl, is to be at liberty to inspect and peruse the same, 
 and to take copies thereof or extracts therefrom as he may be 
 advised, at his own expense ; but the said defendant is to be at 
 liberty to seal, upon oath, such parts of the said several books, 
 &c., as do not in any manner relate to the matters in controversy 
 in this cause. 
 
 Petition by complainant for production and in- 
 spection of papers.(a) 
 
 {litle and address.) 
 The petition of , the above-named complainant, respect- 
 
 fully shows, that the answer of the defendant, , has been 
 
 put in in this cause, and that a replication thereto has been filed. 
 
 (o) The ft^rms given on pages 74, 
 &c., are applicable to the case of a 
 defendant seeking discovery of evi- 
 dence relating to his defence to the 
 suit; and where the documents in 
 question are contested as false and 
 fraudulent, in accordance with the 
 practice in a court of equity, they 
 should be ordered to be brought into 
 court for inspection. Aplhorpe v. Corn- 
 stock, Hopk. 163, affirmed, 8 Cowen 
 386 ; Chews y. Driver, Coxe 109. But 
 only where there is reason to suppose 
 the deed will not be forthcoming. 
 Beekford v. Wildman, 16 Ves. 438. 
 The above forms are applicable to the 
 case of a complainant who is entitled 
 to the benefit of all documentary or 
 written evidence in the defendant's 
 possession which will aid him in 
 proving the allegations and charges 
 in the bill. An admission iu the 
 answer that the defendant is in pos- 
 session of papers and documents, only 
 binds the party to produce the paper, 
 
 if the court shall think it necessary, 
 and as documents and other writings 
 are themselves the proper evidence of 
 their own contents, the complainant 
 is entitled to have them produced, in 
 order that he may avail himself of 
 their evidence. Upon the presenta- 
 tion of a petition for the purpose, the 
 court will enter fully into the merits 
 of the question as to the right of the 
 complainant to the inspection, and 
 thus secure the rights of the com- 
 plainant without violating the rights 
 of the defendant. 1 Barb. Ch. Pr. 
 229; Atkyns v. Wryght, 14 Ves. 211; 
 Stanhope v. Roberts, 2 Atk. 214. The 
 petition should state that the book, 
 paper or document of which a dis- 
 covery is sought, contains evidence 
 relating to the merits of the action or 
 proceeding or of the " defence, and 
 should also state some facts or circum- 
 stances from which the court can 
 judge of the materiality of the evi- 
 dence and the propriety of ordering a 
 
PRODtrCTION OF PAPEBS, &C. 79 
 
 but that no testimony has been taken in the cause, nor has the 
 same been noticed for hearing. That by the answer of the said 
 defendant, he admits that he is in possession of divers books, 
 deeds, letters, accounts and other papers relating to the matters 
 at issue in this cause. 
 
 And your petitioner further shows, that he has a direct and 
 immediate interest in the said books, deeds and other papers, and 
 that an inspection thereof is necessary to enable him to examine 
 witnesses in this cause, and to prepare such cause for hearing. 
 
 Your petitioner therefore prays, that the said defendant may 
 be ordered to produce to, and leave with, one of the masters of 
 this court, the books, deeds and other papers above mentioned ; 
 and that your petitioner, his agent, solicitor or other counsel, 
 may be at liberty to inspect and peruse the same, and take copies 
 thereof, or extracts therefrom, as he may be advised, or that 
 your Honor may make such order in the premises as shall be 
 agreeable to equity. And your petitioner will ever pray, &c. 
 
 {Signature of solicitor and counsel.) 
 
 (Add ver-ification.) 
 
 •discovery. Gondii v. Wood, 1 Dutch. Farquharson v. Balfour, Turn. & R. 
 319; Anm., Pen. *513; 2 Fern. Ex. 190; Hornby v. Pemberton, Mas. 57; 
 Pr. 46, 50 ; Watson v. Benwick, 4 Eager v. Wiswall, 2 Paige 369. It was 
 Johns. Oh. 384. The court in exer- held that in a suit to set aside a con- 
 cising this control over papers will veyance on the ground of fraud, the 
 merely grant inspection and examina- court will not, on motion, order a pro- 
 tion by the party and his witness, duction of the defendant's purchase- 
 either in open court or before an deed, in which complainant had no 
 officer of the court, or in the presence interest, except as it was the defend- 
 of the party producing them or his ant's evidence of title. Tyler v. 
 attorney, and will not tate them from Drayton, 2 Sim. & Stu. 309. The 
 the latter and deliver them into the mere circumstance of a defendant in- 
 possession of the other side. Silyard corporating a deed in his answer is 
 V. Harrison, 8*Vr. 170. It is laid not aground for compelling its pro- 
 down as a rule, that if the applicant duction, if in other respects such pro- 
 has what is termed a common in- duction would be inequitable Sparke 
 terest in the instrument with the v. Montriou, 1 You. & 0. (Ex.) 103. A 
 
 -other party, he is entitled to the pro- document which is stated in the bill, 
 
 duction. Sparke v. Montriou, infra. and which the answer admits and 
 
 Papers belonging to a defendant are refers to, cannot be read from the bill 
 
 in his possession, custody or power, at the hearin?, but must be produced. 
 
 . although they be in a foreign country. Cox v. Allingham, 3 Jac. 339. 
 
80 
 
 F0KM8 OP PLEADINGS. 
 
 Order for production of papers on foregoing peti- 
 
 tion.(a) 
 
 (Title of cause.) 
 
 (Proceed as in first form on page 17 to the word "defendant,'^ 
 and add, "complainant in this cause duly verified." And on 
 reading and filing due proof of the service of notice of the motion :) 
 It is, on this, &c., on motion of , of counsel with said com- 
 
 plainant, and on hearing , of counsel with the defendant^ 
 
 , in opposition thereto, (or, "and no one appearing to 
 oppose,") ordered, (conclude as in second form on page 77.) 
 
 OF OEDERS TO ANSWER. 
 
 Order to take answer without oath.(6) 
 
 (Title of cause.) 
 This matter being opened to the court, &c., and on reading and 
 filing the consent, in writing, of , solicitor of the complain- 
 
 (a) Under an order for inspection 
 tlie examination may be conducted 
 without the presence of the defendant 
 or his solicitor. The papers must be 
 delivered into the possession of the 
 officer 01 the court, to be open to the 
 view of the complainant, on notice of 
 inspection given to the opposite party. 
 1 Barb. Oh. Pr. 235; Hoff. Off. Mast. 
 12. If books are produced before the 
 master with portions sealed up, the 
 party's oath of their not relating to 
 the matters in question must be taken 
 in the first instance as sufficient. But 
 if the adverse party can show any fair 
 ground for supposing any part has 
 been sealed which is material, whether 
 designedly or not, he may require it to 
 be opened. Hoff. Off. Mast. 13. In 
 some cases, the party will be required 
 to furnish copies of books, &c., under 
 oath. Sugg v. Huffy, June, 1877. 
 Upon the production of the papers. 
 
 &c., being ordered, the practice is to 
 serve a copy of the order upon the 
 party defendant or his solicitor, and 
 if the party neglect or refuse to com- 
 ply with its directions, to move upon 
 affidavit for an order to show cause 
 why an attachment should not issue 
 against him, which order should be 
 served personally, if practicable. If 
 the party persists in his contempt, 
 this may be followed by a commitment 
 and sequestration. Hoff. Off. Mast. 10. 
 (b) The order for this purpose should 
 be applied for by the defendant on 
 filing the written consent of the com- 
 plainant's solicitor. If applied for on 
 the part of the defendant, it cannot be 
 obtained without such consent. But 
 when it is applied for by the com- 
 plainant, the defendant's consent is 
 not required. 1 Barb. Ch. Pr. 142,. 
 and cases died. 
 
OF 0EDBE8 TO ANSWEB. 
 
 81 
 
 ant to this order : -It is, on this, &c., on motion of , of 
 
 counsel with the defendant, , ordered, that the answer of 
 
 the defendant, , to the bill in this cause, be put in without 
 
 oath. 
 
 Order for time to answer .(a) This matter being opened 
 to the court by , of counsel for the defendant, (*), 
 
 and on good cause shown : It is, on this, &o,, ordered, on motion 
 as aforesaid, that the said defendant, , have days to 
 
 file his answer to the complainant's bill of complaint, from and 
 after the date of this order. 
 
 (a) A motion for an order for time 
 to answer is strictly a special motion, 
 and regularly should be heard only 
 upon notice, and be sustained by affi- 
 davits or other proof. In practice, 
 however, as a matter of convenience, 
 it is constantly granted without notice, 
 and upon the mere allegation of coun- 
 sel, and must then be regarded as a 
 motion of course, and considered as 
 granted at the peril of the applicant. 
 If, without notice of such order, the 
 complainant proceeds with his cause, 
 he is regular in so doing, and though 
 the proceedings be afterwards set 
 aside, he is entitled to his costs. 
 Emery v. Dovming, 2 Beas. 61. A 
 decree pro confesso, signed after the 
 time for answering has expired, is 
 regular, though an order for further 
 time to answer be signed and filed on 
 the same day with the signing of the 
 decree. Ibid. Such decree regularly 
 taken will only be opened on appli- 
 cation by motion or petition, upon 
 notice to the complainant, and upon 
 showing that defendant's answer con- 
 tains some valid ground of defence. 
 Ibid. A notice of an application for 
 time to answer, and an affidavit filed 
 in support of it, prevent all further 
 proceedings by the complainant, until 
 the notice is regularly disposed of by 
 
 the court. Ormsby v. Palmer, 1 Hogan 
 191. An order for time to answer, 
 unless drawn up and served, will not 
 stop an attachment for want of an 
 answer. Oaylor v. Fits-John, 1 Sim. 
 386. The defendant has the whole of 
 the last day specified in the order to 
 answer, in which to file his answer. 
 Boxie V. Scott, Clarke 457. It was 
 held that a married woman answering 
 separately under an order had the 
 full time from the date of the order to 
 do so. Jackson v. Hawarth, 1 S. & S. 
 161. Under an order for time to 
 answer, (not to answer, plead or 
 demur,) a defendant may file a sworn' 
 plea to complainant's bill. Stokes v. 
 Dee, 2 Sogan 47. And under an 
 order for time to plead, answer or 
 demur, leave was given to defendant 
 to file a general demurrer. Att'y- 
 Gen'l V. Carlisle, 2 <Sm. 427. If a 
 demurrer shall have been overruled 
 as frivolous, no order extending the 
 time to answer will be made unless, 
 upon full examination of the circum- 
 stances of the case, it shall be made to 
 appear to the Chancellor that evident 
 injustice would be done without such 
 extension, and then only such exten- 
 sion will be granted as may be abso- 
 lutely necessary with proper diligence 
 to prepare the answer. Sev., " Chan- 
 
82 FOEMS OP PLEADINGS. 
 
 Petition of wife for leave to answer separately 
 from her husband.(a) The petition of the defendant, , 
 
 respectfully showeth, that the complainant in this suit has filed 
 his bill against your petitioner and her said husband, praying 
 {insert prayer of bill ;) that your petitioner claims as a defendant 
 in said suit in opposition to her husband ; {or, " that the said 
 bill is filed in respect to your petitioner's separate estate," or as 
 the case may be.) Your petitioner therefore prays that she may 
 be authorized, by an order of this court, to put in her answer to 
 the said bill without her said husband. 
 
 {8ignatwe.) 
 {Signature of counsel.) 
 
 Another form of petition. That on or about the 
 day of , in the year of our Lord one thousand eight hun- 
 
 dred and , one filed his bill of complaint in this 
 
 honorable court against your petitioner and her said husband, 
 , and , trustee of your petitioner, praying to be 
 
 relieved touching the matters therein contained. 
 
 eery," § 26. A defendant who had (a) A wife cannot answer separately 
 taken three orders for time to answer, from her husband, withont leave of 
 and then pleaded, refused further time the court. Bobbins v. Abrahams, 1 
 on the plea being overruled. Mack- Sal. Oh. 16. Leave to answer sepa- 
 worth V. Marshall, 3 Sim. 370. Tak- ratelf granted on petition of the wife, 
 ing an order for time to answer pre- and upon notice to the complainant, 
 eludes motion for security for costs Id. 51 ; see Oary v. Wittingham, 1 
 against plaintiff abroad, ^rior v. Sim. & Stu. 1 63 ; Story's Eq. PI., J 71. 
 While, 2 Moll. 361. When a plaintiff If her separate answer is put in with- 
 amends his bill, the defendant is enti- out such an order, it may be sup- 
 tied to an order for time to answer, pressed. Id. 16 ; Perrine v. Swaine, 1 
 even though the plaintiff' should John. Ch. Rep. 24. A married woman 
 require no answer, and the amend- who has obtained an order to answer 
 ments should be such as to make no separately may be proceeded against 
 new answer necessary. Kelsham v. for contempt for not answering pursu- 
 Crowther, 2 L. J. Oh. 85. When a ant to the order. Powell v. Prentice, 
 party is in contempt he may, notwith- Bidg. P. 0. 258. An order for the 
 standing, obtain time to answer, and wife to answer separately may be 
 an order on the plaintiff to stay the applied for either by the wife her- 
 entry of further process in the mean- self, or by the complainant, or by 
 time; but he must pay the costs of the husband. See 1 Barb. Oh. Pr. 
 the motion. Coohe v. Pe Montmorency, 152. 
 1 Hogan 181. 
 
OF OBDEBS TO ANSWBB. 83 
 
 And your petitioner further shows, that there are certain 
 matters of defence which it is necessary should be stated and 
 shown to this honorable court, and which, from the nature and 
 circumstances of the case, cannot properly be alleged by your 
 petitioner, jointly with her said husband, and which oblige your 
 petitioner to apply to this honorable court for leave to answer 
 the said bill of complaint separately, and without being joined 
 in the same with her said husband. 
 
 And your petitioner, in explanation of the nature and circum- 
 stances of the case, which oblige her to make such application 
 as aforesaid, further shows, that on the day of , 
 
 eighteen hundred and , and on other days and times pre- 
 
 vious thereto, the said , then being in solvent circumstances 
 
 and out of debt, and being desirous of securing to his wife a 
 comfortable maintenance during her life, purchased the several 
 tracts of land and real estate in the said bill of complaint men- 
 tioned and set forth, and ordered the deeds to be made to the 
 said , as trustee, to the several uses, intents and purposes 
 
 therein named and expressed — that is to say, to the use and 
 benefit of your petitioner, , wife of , and her right 
 
 heirs forever, so that the same shall not be in any manner sub- 
 ject to the control, debts or liabilities of her present or any 
 future husband, and upon the further trust to convey the said 
 lands to the use of such person or persons, for such use or uses, 
 estates, and subject to such provisos, limitations and agreements 
 as the said , notwithstanding her present or any future 
 
 coverture, shall, by any deed or deeds, writing or writings, to be 
 by her sealed and delivered, or by her last will and testament, 
 duly executed, give, devise, limit and appoint, which said deeds 
 were so made, acknowledged, delivered and recorded, as by 
 reference thereto will appear. 
 
 And your petitioner further shows, that on the day 
 
 of , eighteen hundred and , the said did 
 
 make, execute and deliver to one his certain bond, under 
 
 his seal, (being the same mentioned and set forth in the said bill 
 of complaint,) in the penal sum of , conditioned for the 
 
 payment of the sum of ; and that previous to the execu- 
 
 tion of said bond, the said had been extensively engaged 
 
84 FOEMS OF, PLEADINGS. 
 
 in buying, growing and selling mulberry trees, and being so 
 employed, he represented to your petitioner that he had become 
 indebted to the said in the sum of , for which he 
 
 was unable to provide payment, or to satisfactorily secure to the 
 said ; and that the said wished her to consent ta 
 
 mortgage the said premises in the said bill of complaint men- 
 tioned, to the said , to secure said debt, which your peti- 
 tioner expressed her unwillingness to do, and that her said hus- 
 band became offended at her for so doing, and exhibited hi& 
 displeasure by unkind words and treatment, greatly to the pain 
 of your petitioner, his said wife ; and in order to induce her to 
 consent to unite with her said trustees in making the said mort- 
 gage, the said told her that he had contracts to deliver 
 mulberry trees to , or contracts to deliver such trees, in 
 which contracts the said was interested, which would 
 amount to at least , and that that sum, or a large portion 
 of it, would be coming from the said to the said in 
 the fall of the then present year ; and that it was understood be- 
 tween himself and the said that the said sum of , so 
 to fall due upon contracts made, should be applied to the pay- 
 ment of this bond or debt, which the said mortgage was intended 
 to secure, so that the said mortgage, in fact, would be only a 
 security that the said would deliver the trees contracted 
 for according to contract, and that upon such delivery the said 
 mortgage would be discharged and canceled ; which representa- 
 tion of her said husband your petitioner communicated to the 
 said , who assented thereto ; under the influence of which 
 representations thus assented to by the said , and feeling^ 
 constrained by the unkind words and treatment of her said hus- 
 band, and fearing further to displease him, you petitioner did 
 very reluctantly sign the said mortgage in the bill of complaint 
 mentioned, and did acknowledge the same as therein set forth, 
 but she expressly insists that the same was done through fear of 
 displeasing her said husband, and in .the belief that the risk in- 
 curred by her in giving the said mortgage was greatly dimin- 
 ished by the arrangements which she was led to believe had been 
 made by the said and her said husband for its discharge. 
 
OF ORDERS TO ANSWER. 85 
 
 And your petitioner further shows, that at the time of the 
 «xecution of the said bond and mortgage the said was 
 
 not indebted to the said in the sum of , or in any 
 
 -other sum, as your petitioner has since discovered, but that the 
 said bond was given and the said mortgage procured, not for a 
 debt then actually due, but to make good and secure certain 
 loans thereafter to be made ; and that such loans, if ever made, 
 were not made until some time afterwards. 
 
 And your petitioner further shows, and charges, that the 
 original contract or agreement between the said and the 
 
 said , upon which the said bond was given, and to secure 
 
 which the said mortgage was procured as aforesaid, was a cor- 
 rupt understanding on the part of said to furnish said 
 with sums of money at diflferent times and in parcels of 
 different amounts as his wants or wishes might require, the 
 whole of which sum or sums of money then loaned by the said 
 to the said did not amount to the said sum in the 
 said bond mentioned, but fell greatly short of the same, as your 
 petitioner expects to be able to prove. 
 
 And your petitioner further charges and insists, that the said 
 mortgage was procured by fraud, concealment, misrepresenta- 
 tion, misusage and undue influence practiced upon your peti- 
 tioner, the said , by the said and , whereby 
 she was fraudulently, deceptively and through fear brought to 
 execute the said mortgage contrary to the rules of equity and 
 good conscience. 
 
 Your petitioner therefore prays that she may be permitted to 
 answer the said bill of complaint separately, and without being 
 joined in the same with her said husband. 
 
 And your petitioner will ever pray, &c. 
 
 Order for wife to answer separately. This matter 
 being opened to the court, &c., and on reading and filing the 
 petition of , wife of the defendant, , praying for 
 
 leave to put in her answer in this cause without her husband : 
 It is, &c., ordered, that the said be at liberty to put in 
 
 her answer in this cause separately from her said husband. 
 
86 FOBMS OF PLEADINGS. 
 
 Order suppressing separate answer of married 
 woman filed without leave. 
 
 {Title of cause.) 
 Upon opening the matter this day to the court by , 
 
 esquire, of counsel with the complainant, in the presence of 
 
 , esquire, of counsel with the defendants, it appearing 
 that and , two of the defendants in the above- 
 
 stated cause, have filed their joint and several answers to the 
 complainant's bill of complaint, and that the said has 
 
 answered separately from her said husband without leave or order 
 of this court; and that the said {the husband) has altogether 
 failed to answer the said bill, and the Chancellor having heard 
 the arguments of counsel, and being of the opinion that the said 
 answer was irregularly filed : It is, on this, &c., on motion of 
 
 , counsel as aforesaid, ordered, that the said answer be 
 suppressed, with costs. And it is further ordered, that the de- 
 fendants (husband and wife) answer the complainant's bill on or 
 before the day of next ; and on failure thereof, that 
 
 the said bill be taken as confessed against them. 
 
 Order for time to answer.(ci) On opening the matter 
 to the court this day, by , of counsel with the defendant, 
 
 , and on good cause shown : It is, on this, &c,, on motion 
 as aforesaid, ordered, that the said defendant, , have 
 
 days to file his answer to the complainant's bill of complaint, 
 from and after the date of this order. 
 
 Order for commission to take an answer.(6) 
 
 frn.J ^ N 1 On bill, &c. 
 
 {Title of cause.) | ^^^^^ 
 
 Upon opening this matter to the court, by , of counsel 
 
 with the defendant, , it appearing to the satisfaction of 
 
 (o) Orders of this nature are usually the party ; but the application is ad- 
 granted ex parte, and without notice, dressed wholly to the discretion of the 
 upon satisfying the court that there court. 
 
 are no laches, and that further time is (6) Rule 62 provides that where an 
 
 rendered necessary by the circum- answer shall be sworn to by a defend- 
 
 stances of the case or the situation of ant out of this state, the oath may be 
 
COMMISSION TO TAKE ANSWER. 
 
 87 
 
 the court that the 8aid re8ides out of this state, to wit, 
 
 at , in the State of , and that by reason of his non- 
 
 residence, {or, "his absence from this state,") he cannot duly 
 make and certify his answer to the said bill into this honorable 
 court without a commission for that purpose ; and it being 
 prayed that a commission out of and under the seal of this court 
 may issue to and , of , in the State of , 
 
 (or, " in the Republic of France," or as the case may be,) to 
 take the answer of the said defendant: It is, on this 
 day of , in the year, &c., ordered, that a commission for 
 
 that purpose issue to the said and , who are hereby 
 
 appointed commissioners to take said answer of the said defend- 
 ant accordingly. 
 
 taken before certain officers referred 
 to in the rule, at tlie place where the 
 answer shall be sworn to. See Rev,, 
 " Chancery," R 6, 7, p. 164 ; and Bev., 
 "Oath," § 5, p. 740, for a statement of 
 the oflScers before whom the oath may 
 be taken. The practice of issuing a 
 commission to take an answer is 
 virtually superseded by those provi- 
 sions. In some cases, however, it may 
 be necessary or convenient to issue a 
 commission instead of taking the other 
 course. To obtain a commission to 
 take the answer of a defendant resid- 
 ing abroad, the defendant must apply 
 to the court, upon notice to the com- 
 plainant, and upon an affidavit that 
 the defendant is abroad^ and stating 
 the particular place. The affidavit of 
 the defendant's solicitor, or of his 
 general attorney, is sufficient. 1 Hoff. 
 Oh. Pr. 237. If it be necessary, the 
 order granting the commission may 
 contain a clause extending the time 
 for answering. The notice of motion 
 should name the commissioners pro- 
 posed by the defendant. If the com- 
 plainant wishes to join in the com- 
 mission, he may, upon the hearing of 
 
 the motion, name commissioners on 
 his part. One commissioner on each 
 side is sufficient, but for greater cau- 
 tion it is usual to name two or more. 
 Id. The commission, when granted, 
 is issued under the seal of the court, 
 directed to the persons named in the 
 order as commissioners, and is trans- 
 mitted to them by the solicitor of the 
 defendant. If the complainant has 
 joined in the commission, five days' 
 notice of the time and place of exe- 
 cuting it must be given to the com- 
 missioner named by him. If the 
 complainant has not named commis- 
 sioners, no notice need be given and 
 the commission may be executed by 
 the commissioners named in the com- 
 mission, ex 'parte. Hinde 234. If the 
 complainant has joined in the com- 
 mission, it wilj^ be sufficient if one 
 only attends on each side. If none 
 of the complainant's commissioners 
 attend, the defendant must have two 
 present, because no fewer than two 
 can take the answer and return the 
 commission. Prac. Reg, 116 ; see 1 
 Barb. Ch. Pr. 160, 161. 
 
88 FOEMS OF PLEADINGS. v 
 
 Commission to take an answer.(a) New Jersey, to 
 wit — The State of New Jersey to and and , 
 
 esquires — Greeting : 
 
 Whereas, , complainant, has lately exhibited his bill of 
 
 [l. 8.] complaint before us, in our Court of Chancery, against 
 , defendant ; and whereas we have, by our writ, lately 
 commanded the said defendant to appear before us in our said 
 Court of Chancery, at a certain day now past, to answer the 
 said bill : Know ye, that we have given unto you, and any two 
 of you, full power and authority, at such certain day and place 
 as you shall think fit, to go to the said defendant, if he cannot 
 conveniently come to you, and take his answer to the said bill 
 on his solemn oa'th, or if he be conscientiously scrupulous of 
 taking an oath, then on his solemn affirmation, to be adminis- 
 tered by you, or any two of you, the said answer being distinctly 
 and plainly written upon paper. And when you shall have so 
 taken, you are to send the same, closed up, under your seals, or 
 the seals of any two of you, unto us, in our said Court of Chan- 
 cery, at Trenton, together with this writ. 
 
 Witness his Honor, , Chancellor of our said state, at 
 
 Trenton aforesaid, the day of , in the year of our 
 
 Lord, &c. Clerk. 
 
 Form of oath to be administered to defendant. (6) 
 You do swear {or "affirm") that you have read {or "heard 
 read") this your answer, and that you know the contents thereof, 
 and that the same is true of your own knowledge, except as to 
 the matters which are therein stated upon your information and 
 belief, and as to these matters, you believe it to be true. 
 
 (a) The commissioners who are to (6) Every person must be sworn, 
 
 act and the defendant being met at unless he shall allege that he is con- 
 
 the time and place agreed upon, and scientiously scrupulous of taking an 
 
 the answer being produced, one of oath. Williamson v. Carroll, 1 Sarr. 
 
 the commissioners then asks, " Have 217. The oath of a Jew must be made 
 
 you read or heard this, your answer, according to the form and solemnities 
 
 read ; and do you exhibit it as your of the Jewish religion. Newman v. 
 
 answer to the bill of complaint of Neimnan, 3 Hal. Ch. 26. Before the 
 
 A B?" If he answers in the aflSrm- defendant is sworn, he must sign his 
 
 ative, the oath is then administered answer and each schedule thereto in 
 
 to him by one of the commissioners. the presence of the commissioners ■ 
 
DEMUBBEB. 
 
 89 
 
 Certificate of comiuissioners.(a) This is to certify that 
 the defendant, , on the day of , &c., appeared 
 
 and answered that he had signed the foregoing answer in our 
 presence, and thereupon was sworn {or " affirmed ") before us, 
 that he knew the contents of the said answer subscribed by him, 
 and that the same was true of his own knowledge, except as to 
 the matters which are therein stated to be on his own informa- 
 tion and belief, and as to those matters, he believed it to be true. 
 {Signatures of commissionera.) [l. s.j 
 
 OF DEMURRER. 
 
 Title and commencement of a demurrer. (6) The 
 demurrer of , defendant, {or, " the joint and several 
 
 demurrers of 
 
 and 
 
 and the answers, thus taken, together 
 with the schedule (if any) are to be 
 annexed to the commission, and the 
 commissioners must then write and 
 sign the caption at the foot of the 
 answer. Any alterations made in the 
 answer or schedules, previous to the 
 taking thereof, must be authenticated 
 by the commissioners. Dan. Oh. Pr. 
 751. For mode of verification of 
 answer, see Pineera v. Robertson, 9 C 
 E. Gr. 348. 
 
 (a) Care must be taken to have the 
 commission, with the answer, returned 
 by the time limited for filing the 
 answer. 1 Ban. Oh. Pr. 749. The 
 answer and schedules, with the cap- 
 tion, being annexed to the writ, the 
 return, in the following or some other 
 convenient form, to wit, " The execu- 
 tion of the within appears by the 
 annexed schedule," must be endorsed 
 upon the writ, and be signed by at 
 least two of the commissioners. All 
 these documents are then enclosed in 
 
 , the {or, " two of the defend- 
 
 an envelope, and sealed ; the commis- 
 sioners sign across their respective 
 seals, and direct the envelope to the 
 Chancellor or clerk at Trenton. 
 
 (6) Under the existing rules of 
 practice, any objection to a bill (oi: 
 other pleading) may be made and ad- 
 judicated upon, on motion, without 
 the filing of a demurrer. .The party 
 objecting must give eight days' notice 
 of such motion, and in the notice 
 must state the particular grounds 
 of objection. Rule 213. The only 
 pleading in equity that can be de- 
 murred to is the bill. Travers v. 
 Ross, 1 McCarl 254. The defendant 
 protects himself from giving discovery 
 by a demurrer, where, upon the face 
 of the bill, it is apparent that there is 
 no equity to sustain the suit, for, as a 
 demurrer is decided entirely upon 
 what appears upon the face of the 
 bill, the complainant has no use for 
 any evidence, and hence a successful 
 demurrer protects the defendant from 
 
90 
 
 F0KM8 OF PLEADINGS. 
 
 ants,") to the bill of complaint of , complainant. This 
 
 {or " these ") defendant (or " defendants,") by protestation, not 
 confessing all or any of the matters and things in the complain- 
 
 giving any discovery whatever. Lang- 
 dell's Eq. PI. 58 ; Vail v. Central B. 
 R. Co., 8 C. E. Or. 466; Black v. 
 Shreve, 4 Hal. Ch. 440. The princi- 
 pal grounds of objection to the relief 
 sought by an original bill which may 
 be taken advantage of by deinurrer 
 are — 1. That the subject of the suit 
 is not within the jurisdiction of a 
 court of equity. 2. That it appears 
 on the face of the bill that some other 
 court of equity has the proper juris- . 
 diction. 3. That the plaintiff is not 
 entitled to sue by reason of some per- 
 sonal disability which is apparent on 
 the bill, and no next friend or guardian 
 is named in the bill. 4. That the 
 complainant has no interest in the 
 subject or title to institute a suit con- 
 cerning it. 5. That the complainant 
 has no right to call upon the de- 
 fendant concerning the subject of the 
 suit. 6. That complainant has no 
 right to the relief he prays. 7. That 
 the bill is deficient to answer the 
 purposes of complete justice. 8. Or 
 where the bill is defective in form. 
 
 9. Or is defective for want of parties, 
 but a demurrer for want of parties 
 must show who are the proper parties. 
 
 10. Or where the bill improperly 
 confounds distinct subjects or unnec- 
 essarily multiplies suits. 
 
 The principal grounds of objection 
 by way of demurrer to the discovery 
 sought by the bill are — 1. That the 
 case made by the bill is not such in 
 which a court of equity assumes a 
 jurisdiction to compel discovery. 2. 
 For want of interest in complainant. 
 3. Or in defendant. 4. For want of 
 privity of title between the complain- 
 
 ant and defendant. 5. That the dis- 
 covery is immaterial. 6. That the 
 situation of the defendant renders it 
 improper for a court of equity to com- 
 pel discovery. 7. Or where a dis- 
 covery would subject the defendant to 
 a forfeiture, &c. A demurrer to a 
 bill of discovery will not hold for 
 want of parties, or, in general, for 
 want of equity. 
 
 In a doubtful case the court will 
 not decide the question raised upon 
 the bill upon demurrer, but will over- 
 rule the demurrer, without prejudice 
 to the defendants raising the objection 
 at the hearing. Brownsword v Ed- 
 wards, 2 Ves. 243 ; Mortimer v. Hartley, 
 Z BeO. & Sm. 321 ; Evans v. Evans, 
 18 .Tur. 666, Lds. Js. A decision 
 upon a demurrer is not followed by a 
 decree, but simply by an order allow- 
 ing or overruling the demurrer, as the 
 case may be ; and the costs given are 
 not costs of the cause, but merely of 
 the demurrer. Bev., " Chancery'' I 
 32. Where a demurrer is allowed, 
 the only thing actually decided is, 
 that the defendant is not bound to 
 answer the bill as it stands, and the 
 complainant cannot proceed without 
 amending the bill. If the complain- 
 ant does not proceed to amend his 
 bill, and the defendant wishes to put 
 an end to the suit and recover his full 
 costs, he must move to dismiss the 
 bill. Harr. Ch. Ft. 216 ; see Bev., 
 " Chancery," ? 33 ; also rule 30. The 
 court has no discretionary power in 
 the matter of costs on a demurrer. 
 Hicks V. Campbell, 4 C. E. Gr. 187. 
 The usual course of proceeding when 
 the demurrer comes on for hearing. 
 
DBMURBER. 91 
 
 ant's bill of complaint contained to be true, in auch manner and 
 form as the same are therein set forth and alleged ; {or, where 
 the demurrer is to part of the bill, or to the relief, add here, " as 
 to so much and such part of the said bill as seeks that this de- 
 fendant (or "these defendants") may answer and set forth 
 whether, &o., and prays, &c., (if relief be prayed, doth or 
 "do") demur thereto, {or "to said bill")* and for cause of 
 demurrer show {or "shows,") &o." {Here set forth cause of 
 demurrer.) 
 
 Conclusion. Wherefore, and for divers other good causes of 
 demurrer appearing in the said bill, this defendant doth demur 
 thereto, and humbly prays the judgment of this honorable court 
 whether he should be compelled to make any further or other 
 answer to the said bill, {or, where demurrer is to part only, say, 
 " to such part of the said bill as is so demurred unto as afore- 
 said,") and prays to be hence dismissed with his costs and charges 
 in this behalf most wrongfully sustained. 
 
 and all parties appear, is for the grounds of demurrer. In such case, 
 counsel in support of the demurrer to it seems discretionary with the court 
 be first heard, next the complainant's to grant costs or not. Marsh v. Marsh, 
 counsel, and then the counsel of the 1 O. E. Or. 398. If the demurrer be 
 demurring party replies. In hearing overruled, the defendant must answer 
 a demurrer, the argument is strictly the bill in twenty days after the time of 
 confined to the case appearing upon • filing the order overruling demurrer, 
 the record ; and for the purposes of or the biU will be taken as confessed, 
 the argument, the matters of fact Pamph. L-, 1893, p. 201. Lord Lang- 
 stated in the bill that are well pleaded dale gave leave for the defendant to 
 are admitted to be true. Oobte v. amend a clerical error in a demurrer, 
 Andruss, 1 Or. Oh. 66. Where, upon the time for demurring not having 
 the hearing of a demurrer to the expired, in Richardson v. Hastings, 7 
 whole bill, it appears that the defend- Beav. 58 ; and see Olegg v. Leigh, 4 
 ant is entitled to demur to some part Mad Rep. 207. Filing a general de- 
 only, the demurrer may be amended murrer is a waiver of all defects in 
 so as to confine it to the facts to which the service of the subpoena. Ogden v. 
 the defendant has a right to demur ; Gibbons, July, 1828. A misjoinder of 
 in such case, the usual course is to complainants must be taken advantage 
 overrule the demurrer, with leave to of by demurrer. Hendriekson v Wal- 
 the defendant to put in a new de- hxce, 4 Stew. Eq. 604. 
 murrer, or to amend it by stating the 
 
92 POEMS OF PLEADINGS. 
 
 AiRdavit to be annexed to demurrer.(a) 
 
 State of New Jersey, \ 
 county of , J 
 
 , of full age, being duly sworn according to law, saith — 
 That the foregoing demurrer is not interposed for delay, but in 
 good faith for the causes therein set forth. 
 
 (SignatiM-e.) 
 Sworn and subscribed before me, this day of , 
 
 A. D. 
 
 Certificate of counsel. I certify that I have perused the 
 complainant's bill in the above-stated cause, and that the above 
 demurrer is well founded in point of law. 
 
 {Signature of counsel.) 
 
 General demurrer for want of equity.(6) As in com- 
 mon form to *, then, "that the complainant hath not, in and by 
 his said bill, made or stated such a case as entitles him, in a 
 court of equity, {or, " in this honorable court,") to any discovery 
 from this defendant, {or, " these defendants, or either of them,") 
 or to any relief against him, {or, '' them," or, " either of them,") 
 as to the matters contained in the said bill, or any of such 
 matters. Wherefore,", &c. 
 
 (a) A like affidavit and certificate 201, J 24. After time to answer has 
 
 of counsel are required by statute to been obtained, the defendant cannot 
 
 be annexed to a plea. Every plea or demur. Dyson v. Benson, Cooper's Ca. 
 
 demurrer filed without such aSidavit 110. If the defendant means to demur 
 
 and certificate may be treated as a alone, he must do that without asking 
 
 nullity. Mev., " Chancery," § 27. It time, unless a very special ground is 
 
 is not, however, within the power of laid. If he asks time, he may ask for 
 
 the party to so treat them in such time to plead, answer or demur, (that 
 
 case. The word "may" has been is, to plead and answer or demur and 
 
 held to refer to the discretion of the . answer ;) but if he applies for that 
 
 court. In Chancery, 1874. The de- order, he cannot demur alone. Taylor 
 
 murrer must be filed within thirty v. Milner, 10 Ves. 444. 
 days from the return of the subpoena (6) A demurrer should specify some 
 
 to answer, unless further time be cause of demurrer, but it must not 
 
 granted, and the cause, within ten introduce a. material fact; in other 
 
 days thereafter, noticed and set down words, a defence by demurrer must 
 
 for argument for the next term by the rest entirely upon the objection which 
 
 party demurring. Pamph. L , 1893, p. the case made by the bill presents. 
 
BEMUBBEB. 
 
 93 
 
 Demurrer for multifariousness.(a) Title and commence- 
 ment as before, then, " that it appears by the said bill that the 
 same is exhibited against this defendant and the several other 
 persons therein named as defendants thereto for distinct matters 
 and causes, in several whereof, as appears by the said bill, this 
 defendant is not in any manner interested or concerned, and that 
 the said bill is altogether multifarious. Wherefore," &c. 
 
 Wood V. Midgely, 5 De G., M. & O. 
 41, Lds. Js. Under a general de- 
 murrer for want of equity, no objec- 
 tion for want of form can properly be 
 raised. Miller v. Jamison, 9 C E. Or. 
 41 ; Wilson v. Hill, 1 Dick. Oh. Rep. 
 367. But leave will be given to 
 amend by stating grounds of demurrer. 
 Marsh v. Marsh, 1 C. E. Or. 391; 
 Board of Dom. Missions v. Puechel- 
 stein, 12 C. E. Or. 30. A misjoinder 
 may be assigned as cause for demurrer, 
 ore tenus, at the argument, though a 
 general demurrer for want of equity, 
 be overruled. Barret v. Doughty, 10 
 G. E. Or. 380. As to whether a 
 general demurrer will lie where a 
 demurrant is a proper though not a 
 necessary party, see Dorsheimer v. 
 Borbach, 8 G E. Or. 4.6; S. G, on 
 a/fypeal, 10 G. E. Or. 516; Wilson v. 
 Bellows, 3 Stew. Eq. 282. Under rule 
 209, a simple statement of want of 
 equity, in the usual language of a 
 general demurrer, will be sufficient in 
 cases where the court finds, on looking 
 at the bill, that his right to relief is 
 doubtful or uncertain, but where the 
 defect is obscure or latent to such an 
 extent that the court, on inspecting 
 the bill, cannot readily discern it, 
 there must be a more explicit state- 
 ment of the grounds of demurrer. 
 Essex Paper Go. v. Oreacen, 18 Stew. 
 Eq. 504 ; and see Van Souten v. Van 
 Winkle, 1 Dick. Gh Bep. 380. 
 
 (a) A general demurrer to a bill on 
 the ground of multifariousness, which 
 
 is not sustained as to the only part 
 which makes it multifarious, will be 
 overruled. Brownlee v. Lockwood, 5 
 C. E. Or. 239. If a bill unite a de- 
 mand of several matters of distinct 
 natures against different defendants, 
 it is demurrable for multifariousness. 
 Emans v. Wortman, 2 Beas. 205. So 
 if a joint claim against two defendants 
 is joined in the same bill with a sepa- 
 rate claim against one of them only, 
 either or both of the defendants may 
 demur for multifariousness. Ibid.; 
 Van Souten v. Van Winkle, 1 Dick. 
 Gh. Bep. 380. The objection to a 
 misjoinder of husband and wife as 
 complainants may be taken by de- 
 murrer, but it constitutes no ground 
 for dissolving the injunction, if one 
 has been granted. Johnson v. Vail, 1 
 McCart. 423 Where the case made 
 by the bill is so entire that it cannot 
 be prosecuted in several suits, and yet 
 each of the defendants is a necessary 
 party to some part of the case as 
 stated, neither of the defendants can 
 demur for multifariousness, or for a 
 misjoinder of causes of action, in some 
 of which he has no interest. Way v. 
 Bragaw, 1 G. E. Or. 213. It has been 
 held, that upon the argument of a 
 demurrer for multifariousness, want 
 of equity may be assigned as cause of 
 demurrer, ore tenus. Bump v. Oreen- 
 hill, 20 Beav. 512. But the contrary 
 was decided in Picton v. Lockelt, by 
 the V. G., April, 1837', MS.; n-ipp's 
 Forms, p. 43, n. 
 
94 FORMS OF PLEADINGS. 
 
 Demurrer for want of parties.(a) litle and commence- 
 ment as before, then, " that the said , in the said bill named, 
 is made a defendant when he ought to be made a complainant. 
 And this defendant further, for cause of demurrer, shows, that 
 the helrs-at-law of the said , in the said bill named, ought 
 to be made parties " (or as the case may be.) 
 
 Demurrer to a bill of interpleader for want of the 
 necessary affidavit and for want of equity. Com- 
 mencement as in usual form, then, " that although the said com- 
 plainant's said bill is, upon the face thereof, a bill of inter- 
 pleader, yet the said complainant has not annexed to his said 
 bill an affidavit that he doth not collude concerning such matters 
 with any of the defendants thereto, which affidavit ought, 
 according to the practice of this court as this defendant is 
 advised, to have been made by the said complainant and annexed 
 to the said bill. And for further cause of demurrer, this de- 
 fendant further shows, that the said bill does not contain suffi- 
 
 (a) A demurrer for want of parties cause which covers the whole extent 
 
 must point out the necessary parties of the demurrer. Barrett v. Doughty, 
 
 either by name or in some other man- 10 C E. Or. 380. If the demurrer is 
 
 ner so as to enable the complainant good in substance, but defective in 
 
 to amend by joining the proper parties. form, the court will grant permission 
 
 Dias V. JSouchaud, 10 Paige 445. A to withdraw it, and file a new one, 
 
 bill is not demurrable for want of upon payment of costs. 1 Hoff. Ch. 
 
 proper parties, where all the persons Pr. 217 ; Devonsher v. Newenham, 2 
 
 whose rights are to be affected by the Seh. & Lef. 199. And it may be with- 
 
 decree are joined. > Swedesborough drawn after it is set down for argu- 
 
 Church V. Shivers, 1 O. E. Or. 453. ment, upon payment of costs. Dowries 
 
 After a demurrer for want of parties v. Ea^t India Co., 6 Ves. 586. It is not 
 
 was sustained, leave was given to ground of demurrer that no ticket was 
 
 amend by adding parties. Melick v. issued with the subpoena. Ludington 
 
 Melick, 2 O. E. Or. 156 ; Seymour v. v. Elizaheth, 5 Slew. Eg. 159. If the 
 
 Long Dock Co., Id. 169. It is the defendant demur to the bill for want 
 
 settled practice, that where a demurrer of parties or other defect, that does 
 
 is put in to the whole bill for causes not go to the equity of the whole bill, 
 
 assigned on the record, if those causes the complainant may amend of course 
 
 are overruled, the defendant will be at any time before the next term after 
 
 allowed to assign other causes, ore filing the demurrer, upon payment of 
 
 tenus, at the argument, but the de- costs, Bule 70. 
 murrer ore tenus must be for some 
 
DEMUREEB. 95 
 
 cient matter of equity, whereupon this court can ground any 
 decree in favor of the said complainant, or give the said com- 
 plainant any relief against this defendant. Wherefore," &c. 
 
 Demurrer to a bill of interpleader, because it does 
 not show any claim of right in the defendant. As 
 
 in common form, to *, then, " that the complainant has not, in his 
 said bill of interpleader, shown any claim of right, title or 
 interest whatsoever in the said bill particularly mentioned and 
 described, in respect whereof this defendant ought to be com- 
 pelled to interplead with , in the said bill named, and the 
 other defendant thereto. Wherefore," &c. {Or, in cases where 
 the complainant shows no right to compel defendant to interplead, 
 "that the said complainant has not, in and by his said bill, 
 shown any right and title whatsoever to compel this defendant 
 and , the other said defendant to the said bill, to inter- 
 plead.") 
 
 Demurrer and answer. (a) The joint and several de- 
 murrer of and , to (part,) and the joint and several 
 answer of the same defendants to the ("residue of the") bill of 
 complaint of , the complainant. 
 
 These defendants, to so much of the complainant's bill as 
 prays that they may be decreed to transfer to the complainant, 
 as the executors of , in the said bill mentioned, the, &o., 
 
 in said bill mentioned, and that the said defendant, , may 
 
 be decreed to, &c., in the said bill mentioned ; as prays, that, 
 &c., and that these defendants may be decreed to, &c., and to so 
 much of said bill as prays further or other relief with respect, 
 &c., do demur, and for cause of demurrer show, that the said 
 complainant has not made or stated such a case as entitles him 
 in this honorable court to the relief, &c., prayed for, or any part 
 
 (a) The complainant cannot pro- to the answer for insufficiency, before 
 
 ceed on the answer till the demurrer the demurrer has been disposed of, 
 
 has been argued or disposed of. Mev., the demurrer will be held sufficient. 
 
 " Chancery," § 3. The demurrer must London Assurance v. East India Co., 
 
 be set down for hearing in the usual 3 P. Wms. 326 ; Mit. PI. 256 ; Boyd 
 
 way. Bev., " Chmicery," I 24. If v. MUla, 13 Ves. 85. 
 complainant amend his bill, or except 
 
96 FOEM8 OF PLEADINGS. 
 
 thereof. And these defendants humbly pray the judgment of 
 this court as to such parts of the said bill as they have so 
 demurred to as aforesaid. And as to the residue of the said bill 
 — that is to say, all the discovery, and the rest of the relief, by 
 the said bill prayed — these defendants, for answer thereto, say 
 they admit it to be true, that, &c. 
 
 For orders on demurrer, see pages 101, 102. 
 
 OF PLEAS. 
 
 Title and commencement of plea.(a) The plea of 
 , defendant, {or, " of the defendants,") to the bill of com- 
 plaint of , complainant, (or, " the joint and several plea 
 of and , defendants," &c.) This defendant, (or, 
 " these defendants,") by protestation, not confessing or acknowl- 
 edging the matters and things in a,nd by said bill set forth and 
 alleged to be true, in such manner and form as the same are 
 thereby and therein set forth and alleged, for plea to the whole 
 of the said bill,t or to so much and such part of the said bill as 
 prays, &c., or seeks a discovery from this defendant, (or, "these 
 defendants,") whether, &c., saith, {or " say,") that, &c. 
 
 (a) For form of affidavit and certi- it does not depend upon the technical 
 ficate to be annexed to plea, see page form of the plea, but upon the suffi- 
 92. A defendant who has a single ciency of its averments. Davison's 
 affirmative defence, which will be Ex'rs v. Johnson, 1 G. E. Or. 112. 
 decisive of the controversy, can avoid Leave to file a plea after demurrer 
 giving discovery in aid of the case overruled will be granted on notice, 
 stated in the bill by setting up his and such leave will not be granted if 
 defence by a plea; and this is the ob- it is manifest that the plea offered, if 
 ject of pleading instead of answering. true in fact, would be no bar to the 
 This mode of setting up a defence is relief sought by the bill. Seeley v. 
 the same, whether by plea or answer ; Price, 1 Hal. Ch. 231. Under the 
 but no more than one defence can be statute (iJeti., " Chancery,'' § 3,) the 
 set up by plea, without the special defendant, under the usual order to 
 leave of the court. If such leave is answer after demurrer overruled, can- 
 granted, each defence is set up by a not file a plea. White v. Dummer, 1 
 separate plea. Langdell'i Eq. PI. 61. Or. Ch. 527. 
 Where the cause is heard upon a plea, 
 
PLEA. 97 
 
 Conclusion. All which matters and things this defendant 
 doth aver, (or, " these defendants do aver,") to be true, and he 
 pleads, {or, " they plead,") the said {statute or release, &o., as 
 the oase may be,) in bar to the said complainant's bill, {or, if the 
 plea extends to part only, " to so much of the bill as is hereinbe- 
 fore particularly mentioned," and prays {or " pray ") the judg- 
 ment of this honorable court whether he {or " they ") should be 
 compelled to make any other or further answer to the said bill, 
 {or, " to so much of the said bill as is hereinbefore pleaded to,") 
 and prays {or " pray ") to be hence dismissed with his {or " their ") 
 costs and charges in that behalf most wrongfully sustained. 
 
 {Signature of solicitor.) 
 
 {Annex affidavits and certificates as on page 92, et seq., 
 mutatis mutandis.) 
 
 A plea that the defendant is not the personal rep- 
 resentative of the deceased, as alleged in the bill.(a) 
 {Title and commencement as before.) That he, this defendant, is 
 not the executor or administrator or the legal personal represen- 
 tative of the said , as in the said bill alleged, which said 
 representative or representatives ought to be made party or 
 parties to the complainant's said bill, as this defendant is ad- 
 vised. All which matters and things this defendant avers to be 
 true, and pleads the same to the said bill, and humbly demands 
 the judgment of this honorable court, whether he ought to be 
 compelled to make any answer to the said bill of complaint, 
 and humbly prays to be hence dismissed, with his reasonable 
 costs in this behalf most wrongfully sustained. 
 
 {Signatv/re of solicitor.) 
 
 (a) The defence of a bona fide pur- 613. For forms of these latter kinds 
 
 chase may he made by plea. Maugh- of pleas, see 3 Dan. Oh. Pr. 2103, et 
 
 wont V. Murphy, 7 C. E. Or. 531. leq. According to the practice in 
 
 The statute of limitations may like- England, a plea must be signed by 
 
 wise be set up by plea, &c. Ruckman counsel. Rule 48 of this court applies 
 
 V. Becker, 8 C. E. Or. 283 ; McOlane's to bill only, and Bev., " Chancery," I 
 
 Adm'x V. Shepherd's E£x, 6 C. E. Or. 27, provides for a certificate of coun- 
 
 76. The statute of limitations may sel to be annexed to the plea; sig- 
 
 be pleaded in equity to actions for nature of counsel to the plea is not 
 
 dower. Conover v. Wright, 2 Sal. Oh. essential. 
 
98 POBMS OP PLEADINGS. 
 
 Plea and answer by an heir-at-law that he had 
 no lands by descent, accompanied by an answer 
 admitting that he is heir-at-law. Same as foregoing to f, 
 then say, " as to so much of the said bill as seeks any relief 
 from a discovery from him, (save and except whether he is the 
 heir-at-law of , deceased, in the bill named,) this defend- 
 
 ant doth plead in bar thereto; and for and by way of plea 
 saith that he hath not, nor hath any person or persons in trust 
 for him, nor on the day of filing the bill, nor at any time before 
 or since, had he, or any person or persons in trust for him, 
 any lands, tenements or hereditaments by descent coming from 
 the said , deceased, this defendant's father; and this 
 
 defendant, not waiving his said plea, but wholly relying and 
 insisting thereon, for answer to the residue of the said complain- 
 ant's bill, not hereinbefore pleaded unto, or to so much thereof 
 as this defendant is advised is material or necessary for him to 
 make answer unto, saith, he admits he is the heir-at-law of the 
 said , deceased," &c. 
 
 Plea of a former suit pending.(a) These defendants, 
 &c. ; and for cause of plea say, that heretofore, and before said 
 complainant exhibited his present bill in this honorable court, 
 to wit, on the day of , , the said complainant, 
 
 (o) A plea of another suit depend- is pleaded, but it must always appear 
 ing for the same cause in bar of a suit to have been for the same subject- 
 in equity, can only be of a suit de- matter. Matthews v. Roberts, 1 6r. 
 pending in the same, or in some other Ch. 338. The pendency of a former 
 court of equity. Way v. Bragaw, 1 suit being pleaded in bar, the defend- 
 C. E. Or. 213; Fulton v. Oolden, 10 ant may state the pendency and 
 C. E. Or. 353. It is requisite to the object of the former suit, and aver 
 validity of a plea of another suit that the present suit was brought for 
 pending, that- it should appear that the same matters ; or he may omit the 
 the second suit is for the same subject- averment that the suits are for the 
 matter as the first ; but if the facts same subject-matter, provided he state 
 stated in the plea plainly show this to facts sufficient to show that they are 
 be so, an express averment to that so. Davison's En^rs v. Johnson, 1 G. 
 effect is not necessary. McEwan v. E. Or. 112. 
 
 Broadhead, 3 Stock. 129, A former For proper form of plea to a bUl 
 
 decree pleaded in bar need not appear against an executor for account and 
 
 to have been between precisely the payment of a legacy, see Meeker v. 
 
 same parties with the one to which it Marsh's Ex'r, Sax. 198. 
 
PLEA. 99 
 
 (" together with ,") did exhibit bill of complaint in 
 
 this honorable court against these defendants, for the same 
 matters, and to the same effect, and for the like relief as the said 
 complainant doth, by his present bill, demand and set forth, 
 (" to which said first bill these defendants did put in their joint 
 and several answers, and the said complainant thereunto did 
 reply, and other proceedings were thereupon had ; ") and the 
 said former bill is still depending in this court, and the matters 
 thereof undetermined : and therefore the said defendants do 
 plead the former bill, ("answer and proceedings") in bar to the 
 present bill, and humbly pray, &c. 
 
 Form of plea to the jurisdiction by a foreign 
 
 corporation. 
 
 {Title of cause.) 
 
 The plea of , the defendant, appearing by its president 
 
 for the sole purpose of objecting to the jurisdiction of this 
 honorable court over this defendant in this action, and for no 
 other purpose, respectfully shows that this defendant, by protes- 
 tation, not confessing or acknowledging the matters and things 
 in and by the bill of complaint of said set forth in such 
 
 manner and form as the same are thereby and therein set forth 
 and alleged, says that said is not a resident or citizen of 
 
 the State of New Jersey, or existing as a body corporate under 
 or by virtue of its laws ; that said has no office, agent or 
 
 agency or place of business within the State of New Jersey ; 
 that it has never had any office, agent, agency or place of busi- 
 ness therein ; that it is a body corporate existing under and by 
 virtue of the laws of the State of ; that it has never made 
 
 application for the right or privilege of transacting business 
 under the laws of the State of New Jersey ; that the process in 
 this suit was served on , who is a director of the , 
 
 residing at , in the State of New Jersey ; that said 
 
 was not authorized by said , this defendant, to act for it 
 
 or in its behalf in the matter or purpose of this suit in any 
 manner whatever, or in any other matter whatever in the State 
 of New Jersey ; that no process or other legal notice of this suit 
 has been served upon this defendant, the , or upon any 
 
100 POEMS OF PLEADINGS. 
 
 person duly authorized in its behalf in the matter of this suit, 
 or upon any property to it belonging : By reason whereof 
 humbly submits that this honorable court has not now, 
 and never had or obtained jurisdiction over the person or prop- 
 erty of this defendant. 
 
 All which matters and things this defendant doth aver to be 
 true, and prays the judgment of this honorable court whether it 
 should be. compelled to make any other or further answer to said 
 bill, and prays to be hence dismissed, with its costs and charges 
 in this behalf sustained. 
 
 Replication to plea.(a) [The form of replication is the 
 same as a replication to an answer. See rule 207. 
 
 Order saving benefit of the plea till the hearing. (6) 
 
 {Title of cause.) 
 
 This cause coming on to be heard this day, in the presence of 
 
 , of counsel with the complainant, and , of counsel 
 
 for the defendant, , and the Chancellor having heard the 
 
 (a) When the complainant con- either party may enter the plea for 
 
 ceives the plea to be good, though argument at the next or any subse- 
 
 not true, he may reply to and take quent term. Bule 13. The plea not 
 
 issue upon it, and proceed as in case being denied by a replication must, 
 
 of an answer. Bev., " Chancery," § 29 ; on the argument, be considered as 
 
 Mit. Eq. PI. 201. If the plea should true. Oammann v. Traphagan's Mx'r, 
 
 be decided not to be good, the defend- Sax. 30. 
 
 ant must answer the bill. Pamph. (6) It sometimes happens that, upon 
 £., 1893, p. 201. If it is sustained, the argument of a plea, the court con- 
 the complainant must reply to it. siders that although so far as it ap- 
 When he does reply and takes issue, pears it may be a good defence, yet 
 the determination of that issue is there may be matter disclosed in evi- 
 final. Flagg v. Bonnel, 2 Stock. 82. dence, which, supposing the matter 
 When issue is taken upon the plea, to be strictly true, would avoid it. In 
 the defendant must prove the facts it such a case, the court, in order that it 
 sets up. If he succeeds in proving may not preclude the question by 
 the truth of the matter pleaded, the allowing the plea, directs that the 
 suit, so far as the plea extends, is benefit of it shall be saved to the de- 
 barred. Ibid.; see rule 13 Where fendant, at the hearing. The effect 
 the complainant has taken issue upon of an order for this purpose is to give 
 a plea by filing a replication thereto, the complainant an opportunity of 
 
ORDERS ON PLEA. AND DEMURRER. 
 
 101 
 
 arguments of the counsel * of the respective partiesj and it ap- 
 pearing to the court proper that the benefit of the plea filed in 
 this cause should be saved to the defendant until the final hear- 
 ing : It is accordingly, on this, &c,, ordered, that the said plea 
 stand. over until the hearing of the cause for that purpose. 
 This order is without costs to either party as against the other. 
 
 Order sustaining demurrer or plea, (a) 
 {Title of cause.) 
 
 {As in form last above to *, then, " and the Chancellor, being 
 of opinion that the said demurrer {or " plea ") is good and suffi- 
 cient : It is, &c., ordered that the same do stand and be allowed, 
 and that the complainant pay to the said defendant his costs of 
 the said demurrer {or "plea") to be taxed.") 
 
 replying and going into evidence 
 without overruling the plea. When 
 the benefit of the plea is reserved to 
 the hearing, such part of the bill as 
 is covered by the plea is not to be 
 answered. Neither party in such case 
 recovers costs on the argument of the 
 plea. 1 Barb. Oh. Pr. *122. 
 
 (a) Strictly speaking, upon a de- 
 murrer to the whole bill being allowed, 
 the bill is out of court, and no subse- 
 •quent proceeding can be taken in the 
 cause. The court often, however, on 
 hearing the demurrer, gives leave to 
 amend, and there are cases in which 
 it has afterwards permitted an amend- 
 ment to be made, but in such a case a 
 motion to amend is not allowed as a 
 matter of right. Ban. Ch. Pr. 597 ; 
 Smith ,v. Barnes, Dick. 67 ; Merchant^ 
 Bank v. Stevenson, 7 Allen 489. The 
 35th Eq. rule, U. S. Courts, provides 
 that if, upon the hearing, any de- 
 murrer or plea shall be allowed, 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. After the 
 allowance of a partial demurrer, the 
 complainant may have an order to 
 amend his bill, or, as to the rest of 
 the case not covered by the demurrer, 
 proceed in the same manner that he 
 might have done had there been no 
 demurrer. Emans v. Emans, 1 Ma- 
 Cart. 120. When the demurrer is 
 allowed and leave is given to amend, 
 the defendant is to have his costs. 
 Rieks V. Campbell, 4 C E. Gr. 187. 
 When plea is allowed, injunction is 
 dissolved absolutely. Philips v. Lang- 
 horn, Dick. 148. Amending bill after 
 plea, is not an allowance of the plea. 
 Vere v. Olynn, Id. 441. Where a 
 defendant files a plea which goes to 
 the whole equity of the bill, and a, 
 motion is afterwards made in the 
 cause which confesses the truth of the 
 plea, the court may deal with the 
 cause as though an order had been 
 made allowing the plea. FvXton v. 
 Oreacen, 17 Stew. Eq. 443. 
 
102 FOEMS OF PLEADINGS. 
 
 Order for leave to amend after demurrer sustained. 
 
 {Title of cause.) 
 This matter being opened to the court by , of counsel 
 
 with the complainant, and * it appearing that due notice of 
 this application has been given to the solicitor of the defendant, 
 , (or after *) and after hearing , of counsel with 
 
 the defendant, in opposition to the motion, it is, on &c., ordered 
 that the complainant have leave to amend his bill as he may be 
 advised, and that the said defendant have days to file a 
 
 plea, demurrer or answer to said amended bill after service upon 
 his solicitor of a copy of said amended bill. 
 
 Order overruling demurrer or plea.(a) It appearing to 
 the court that the defendant has not * set down the demurrer 
 {or " plea ") filed by him for argument, according to the rules 
 of this court, {or, if party sets it dovm and fails to argue it, say, 
 after *, "brought on the argument of the demurrer" {or "plea.") 
 It is, on this (lay of , &c., on motion of , of 
 
 counsel with the complainant, ordered that the said demurrer 
 {or " plea ") be overruled, with costs, and that the defendant 
 answer the complainant's bill within twenty days, and that if he 
 fail so to do, the complainant's bill be taken as confessed against 
 him. J 
 
 Order overruling demurrer or plea on argument. 
 
 This cause coming on to be heard at the regular term of this 
 court, in the presence of , of counsel with the complain- 
 
 ant, and , of counsel with the defendant, and the Chan- 
 
 cellor having heard the arguments of the counsel of the respective 
 parties on the demurrer {or " plea ") filed in the above-stated 
 cause * : It is, &o., {conclude as above.) 
 
 (o) If a plea is overruled because as in other cases ; but if an answer 
 the defendant ought to have demurred, was filed with the plea or demurrer, 
 he will get leave to demur on motion the defendant, upon his plea or de- 
 fer the purpose. See Mit. PI. 190 murrer being overruled, need not put 
 If a plea or demurrer be overruled, in another answer till the plaintiflF 
 the defendant must answer the whole has taken exceptions. Cotes v. Turner, 
 bill, and the ordinary process of con- Bwnh. 124. 
 tempt issues to compel an answer, 
 
OEDBE8 ON PLEA AND DEMITKEEK, 
 
 103 
 
 Order directing plea to stand for answer, (a) 
 
 {Title of cause.) 
 
 The plea of the defendant, , to the bill of complaint in 
 
 this cause, having heretofore come on to be argued, and counsel 
 on both sides having been heard thereupon : It is, on this, &c,, 
 ordered that the said plea do stand for an answer, with liberty 
 to the complainant to except thereto. And it is further ordered, 
 that the said defendant pay to the complainant his costs on the 
 said plea to be taxed. 
 
 (a) If, upon argument, the court 
 considers that the matter offered by 
 way of plea may be a defence or part 
 of a defence, but that it has been in- 
 formally pleaded, or is not properly 
 supported by the answer, so that the 
 truth is doubtful, it will, in such case, 
 instead of oyerruling the plea, direct 
 it to stand for an answer. Dan. Oh. 
 Ft. 700 ; Mit. PI. 245. The defend- 
 ant was allowed to amend his plea in 
 twenty days, or in default thereof the 
 plea to stand for answer, with liberty 
 to except. Meeker v. Butler's Ex'r, 
 Sax. 204. Where a plea has been 
 ordered to stand for an answer, with 
 liberty to except, the complainant 
 must file his exceptions within thirty 
 days from the date of the order ; other- 
 wise the answer will be deemed suffi- 
 cient. Bev., " Chancery," § 33. The 
 proceedings upon the exceptions are 
 the same as those upon exceptions to 
 answers in general. Bide 76; see 
 " Exceptions to Answer," infra. The 
 
 order directing the plea to stand for 
 answer should provide for the pay- 
 ment of costs: an application for 
 costs made subsequent to the granting 
 of the order was refused. Ya/mall v. 
 Bose, 2 Keen 326 ; Howling v. Butler, 
 2 Madd. {Am. Ed.) 469. The defend- 
 ant pleaded to the whole bill ; and on 
 arguing the plea, it was ordered to 
 stand for an answer, without saying, 
 one way or the other, whether the 
 plaintiff might except ; the plaintiff 
 cannot except ; for by an answer is 
 meant a sufficient answer, an insuffi- 
 cient answer being as none. Sellon v. 
 Lewen, 3 P. Wms. 239. If a plea is 
 to stand for an answer, without liberty 
 to except, the plaintiff may except to 
 the rest of the answer. Coke v. Wil- 
 cocks, Mos. 73. If a plea is ordered 
 to stand for an answer, the defendant 
 cannot move to dissolve the injunction 
 absolutely, but may nisi. Osbom v. 
 Cowper, Id. 198. 
 
104 
 
 FOEMS OF PLEADINGS. 
 
 OF ANSWERS. 
 
 Titles of ans-wers.(a) 
 
 {By an infant){b) The answer of , an infant under 
 
 the age of twenty-one years, by , his guardian, to the bill 
 
 of complaint of , complainant. 
 
 {By a single defendant.) The answer of , defendant, 
 
 to the {or " amended ") bill of complaint of , complainant. 
 
 Answer by adults and infants. The joint and several answer 
 of and and of and , infants, by their 
 
 guardian, defendants to the bill, &c. 
 
 {By husband and wife.){o) The joint answer of and 
 
 , his wife, defendants, &c. 
 
 {By a married woman answering separately by leave of the 
 oourt.){d) The answer of , the wife of (" the defendant ") 
 
 to the bill, &c., here put in by leave of the court. 
 
 (o) An answer must be filed within 
 twenty days from the time of filing the 
 order for overruling the plea or de- 
 murrer, or within thirty days from the 
 return-day of the subpcena, in case no 
 plea or demurrer be filed, unless fur- 
 ther time be granted. Pamph. L., 
 1893, p. 201. Time for answering may 
 be extended on reasonable grounds 
 by a special application ex parte, in 
 the discretion of the court. Where 
 the application was made after the 
 time for answering had expired, or 
 after a former order for time, notice of 
 the motion was required. Norris v. 
 Kennedy, 12 Ves ^ 66; 19 Ves. 112. 
 Where the last day for filing an 
 answer falls on a legal holiday, filing 
 it on the next day on which the 
 clerk's office is open will be sufficient. 
 Feuchtwanger v. MeCool, 2 Stew. Eq. 
 151 ; see McEvoy v. Trmtees, 11 Stmi). 
 Eq. 420. 
 
 (6) The answer of an infant amounts 
 to nothing; the complainant must 
 prove his case as though it had not 
 
 been filed. 1 Hoff. Oh. Pr. 233. 
 Where the infant is a married woman, 
 she must defend by guardian ; the hus- 
 band may be appointed such guardian. 
 Colman v. Northeote, 2 Hare 147. 
 
 (c) If the husband and wife join in 
 an answer as co-defendants, it will be 
 considered as the defence of the hus- 
 band alone, and it will not affect a 
 future claim by the wife in respect of 
 her separate answer. Bird v. Davis, 
 1 McCart. 479; Johnson v. Vail, Id. 
 423. The joint answer of husband 
 and wife cannot be used in evidence 
 against the wife. Derby v. Derby, 6 
 O. E. Or. 51. 
 
 (d) See ante page 85. And tee also, 
 as to liability of a married woman to 
 be sued in her own name apart from 
 her husband, Bev., "Married Women," 
 2§ 5, 10. To avoid a deed of a married 
 woman, for want of acknowledgment 
 of the statutory facts, the defence must 
 be set up in the answer. Marsh v. 
 MitcheU, 11 C. E. Gr. 497. , 
 
ANSWER. 
 
 105 
 
 {By a lunatic or idiot, &o.){a) The joint answer of , 
 
 a lunatic, {or, " idiot," or, " person of unsound mind," or, " an 
 
 habitual drunkard,") by , his guardian, and the said 
 
 , {the guardian,) to the bill, &c. 
 
 {In case of an insufficient answer.) The further answer of 
 
 , one of the defendants to the bill, &c. 
 
 Commencement of answers.(6) This defendant, {or, 
 " these defendants respectively,") answering says {or, '' severally 
 answering, say ") — 
 
 (a) All idiot or lunatic (so found 
 by inquisition) must defend by the 
 guardian of his estate, who, as well as 
 the idiot or lunatic, is a necessary 
 party to the suit. Mit. PI. 23, 82; 
 Stores Eq. PI., ? 70: Lunatics (not 
 so found) and other imbecile persons 
 must defend by guardian appointed 
 for the purposes of the suit. Ld. Red. 
 103, 104. If the guardian dies, an 
 affidavit of the continued mental inca- 
 pacity of the defendant must be made 
 when the appointment of a new 
 guardian is applied for. Needham v. 
 Smith, 6 Seav. 130. 
 
 (6) Two or more persons may join 
 in the same answer, and they should 
 do so when their interests are identi- 
 cal. Where the same solicitor files 
 separate answers for each*of several 
 defendants unnecessarily, the costs 
 thereof will be disallowed. 1 Dan. 
 Ch. Pr. 730. A defendant must 
 anijwer all the material allegations 
 and charges in the bill, and all. inter- 
 rogatories founded upon and inci- 
 dental to them. Vreeland v. New 
 Jersey Stone Co., 10 G. E. Or. 140. 
 It is not sufficient for the defendant to 
 say in his answer, he does not know it 
 or does not believe it ; such state- 
 ments, though true, do not contradict 
 the charges in the bill. Quackeniush 
 v. Van Riper, Sax. 476. Where there 
 
 are particular charges, they must be 
 answered particularly, although the 
 general answermay amount to a full 
 denial of such charges. Everly v. 
 Rice, 3 Gr. Gh. 553. The defendant 
 is bound to state in his answer all the 
 circumstances of which he intends to 
 avail himself by way of defence, and 
 to apprise the complainant, in a clear 
 and unambiguous manner, of the 
 nature of the case he intends to set 
 up. Moores v. Moores, 1 G. E. Or. 
 275. An express denial of a fact of 
 which the defendant admits himself 
 to be ignorant, is not a satisfactory 
 denial of the complainant's equity. 
 Bailey v. Stiles, 2 Or. Gh. 245. The 
 allegations of an answer not responsive 
 to the charges in the bill must be 
 sustained by proof. Dickey v. Allen, 
 1 Ch. Gh. 40. If a defendant in his 
 answer charge certain facts to exist 
 on which he intends to rely for his 
 defence, and swears to the answer in 
 the ordinary form, he swears to the 
 truth of the facts, and if the facts 
 as charged are not true, perjury 
 may be assigned upon it. Quacken- 
 bush V. Van Riper, Sax. 476. When 
 matter is set up in the answer in 
 avoidance of complainant's claim, it 
 must be proved otherwise than by 
 the answer. Miller v. Wack, Sax. 
 204. 
 
106 
 
 FORMS OP PLEADINGS. 
 
 By infants in partition suit. These defendants, answer- 
 ing by their said guardian, say, that they are strangers to all 
 and singular the matters and things in the said bill of complaint 
 contained, otherwise than that these defendants are informed 
 (that , their , died seized and possessed of the farm 
 
 and tract of land mentioned in the complainant's bill, and that 
 these defendants) have some interest therein ; and these defend- 
 ant8, being infants of tender years, submit themselves to the 
 judgment of this honorable court, and pray that their interest 
 may be protected and saved to them. 
 
 Cleric, Guardian. 
 
 The defendant may refuse to answer 
 allegations or charged which are im- 
 material or irrelevant to the com- 
 plainant's case as stated in the bill ; 
 the complainant will not be entitled 
 to prove such at the hearing. Wigram, 
 Disc, *65, et seq. And he may refuse 
 to answer allegations and charges 
 which might, if answered affirma- 
 tively, subject the defendant to a 
 criminal prosecution, or to a penalty 
 or forfeiture — having the same privi- 
 leges in those respects as a witness. 
 Wigram *61, 150, 195. The defend- 
 ant having completed his answer as to 
 giving discovery, it remains for him 
 to set up his affirmative defences ; he 
 is not confined to a single defence, 
 but may set up as many as he can 
 swear to. Wigram *33, 91. He can- 
 not avail himself of any matter of de- 
 fence which is not stated in his 
 answer, even though it should appear 
 in evidence. Stanley v. Robertson, 1 
 R. & M. 527; Mead v. Coomhs, 11 0. 
 E. Or. 173; Cliandler v. Herrick, 3 
 Stock. 497. An answer may be 
 amended as to matters of form or sub- 
 stance, in the discretion of the court. 
 
 Vandevere v. Reading, 1 Stock. 446; 
 Euffman v. Hummer, 2 C. JE. Or. 269. 
 The motion to amend must be made 
 upon petition and notice, and, in a 
 material matter, be supported by affi- 
 davits; Ibid. An amendment to set 
 up usury will not be allowed. Marsh 
 V. Lasher, 2 Beas. 253. Unless the 
 party applying for such amendment 
 introduce in the answer an offer to 
 pay the principal actually received, 
 with lawful interest. Sill v. Colie, 10 
 C. E. Or. 469. Nor to amend a sup- 
 plementary answer, unless the matter 
 be new and the delay be satisfactorily 
 accounted for. Smallwood v. Levin, 2 
 Beas. 123; Bur gin v. Oiberson, 8 G. 
 E. Or. 403. Nor to set up as a de- 
 fence that the defendants, a corpo- 
 ration, were acting ultra vires. Third 
 Av. Sav. Bank v. Dimock, 9 C. E. Or. 
 26. And see, also, as to further par- 
 ticular amendments. Bell v. Hall, 1 
 Hal. Oh. 49. Where the amendment 
 touches the merits of the case, a sup- 
 plemental answer should be filed. 
 Huffman v. Hummer, 2 C. E. Or. 271, 
 and cases cited. 
 
ANSWER. 
 
 107 
 
 Conclusions of answers. And this defendant humbly 
 prays to be hence dismissed, with his reasonable costs and 
 charges in this behalf most wrongfully sustained, (a) 
 
 Answer of second mortgagee.(6) CEtle as before.) 
 This defendant admits that the said and , his wife, 
 
 in the complainant's bill named, did make and execute an 
 
 (o) Where the bill calls for an 
 answer under oath and it is given 
 directly responsive to the bill, it is 
 the ordinary rule that the burden is 
 cast on the complainant to prove the 
 charge in his bill by more than one 
 witness, or by the evidence of one 
 witness corroborated by facts or cir- 
 cuiiistances equivalent to another wit- 
 ness. But where the defendant does 
 not rely on his answer alone, but 
 offers himself as a witness, he may 
 refute himself by his own evidence 
 and circumstances added may over- 
 come the answer. Morris v. White, 9 
 Stew. Eq. 324. 
 
 (6) Where the defendant holding a 
 subsequent or prior mortgage neglects 
 to answer, he may still, upon the 
 reference, lay his bond and mortgage 
 before the master, have the priority 
 settled, and tie amount due reported ; 
 but no costs are in that case allowed 
 him. In cases coming under the pro- 
 visions of the twenty-third rule, q. v., 
 no rule to confirm the report is re- 
 quired, nor is it necessary to set the 
 cause down for hearing thereon ; but 
 a decree is made after the report has 
 been on file four days, if no excep- 
 tions be filed. S,ule 23. And see also, 
 in this conneetion, as to answers that 
 do not raise a defence, but are the 
 appropriate subject of a reference to a 
 master, rvle 29. Where the rights of 
 the several defendants are truly stated 
 in a bill of foreclosure, it is not neces- 
 sary for them to appear and answer to 
 
 protect their rights. Merchant^ Ins. 
 Co. V. Marvin, 1 Paige bhl. In all 
 cases where there are outstanding 
 mortgage encumbrances in the hands 
 of defendants to the bill who have 
 answered, there should be an order of 
 reference to a master, and the master 
 should issue summonses to such en- 
 cumbrancers to appear before him on 
 taking the account ; and whether they 
 have answered, or permitted the bill 
 to be taken pro confesso against them, 
 it is the proper practice to direct the 
 master, in the order of reference, to 
 ascertain the amount of all the en- 
 cumbrances and their priority. In a 
 foreclosure suit, no claims or debts 
 against the complainant can be set off 
 against the mortgage debt, except such 
 as the parties have expressly agreed 
 to be considered payment. Dudley v. 
 Bergen, 8 O. E. Gr. 397: A fore- 
 closure suit is not a proper proceeding 
 in which to litigate the rights of a 
 party claiming title to the mortgaged 
 premises as against the mortgagor. 
 Wilhim V. Kirkbride, 12 C. E. Or. 93. 
 Matter in avoidance of complainant's 
 claim, under proceedings to foreclose 
 his mortgage, must be proved other- 
 wise than by the answer. Fey v. Fey, 
 12 O. E. Or. 213; Coursen v. Can- 
 field, 6 C. E. Or. 99. The defence of 
 an alleged error in his deed cannot 
 avail the defendant under his answer 
 to a suit for foreclosure of a purchase- 
 money mortgage. Allen v. Soil, 10 
 C. E. Or. 164. 
 
108 FOEMS OF PLEADINGS, 
 
 indenture of mortgage, of such date and of such purport and 
 effect as in the complainant's said bill is mentioned and set 
 forth. 
 
 And he further admits that the said departed this life 
 
 about the time mentioned in the said bill of complaint ; and that 
 letters of administration were in due form of law granted to the 
 said complainants ; and that the said , wife of the said 
 
 , also departed this life at or about the time mentioned 
 in the said bill of complaint. 
 
 And this defendant, further answering, admits that there is 
 due to the said complainant, as administrator as aforesaid, the 
 principal money ip the bond and indenture of mortgage men- 
 tioned and expressed, and set forth in his said bill of complaint, 
 together with arrears of interest, to this defendant unknown ; 
 but for greater certainty, he prays that reference may be had to 
 the same, and the amount distinctly ascertained. 
 
 And this defendant, further answering, saith, that the said 
 having become indebted to this defendant, on the 
 day of , in the year of our Lord one thousand eight hun- 
 
 dred and , made and executed to this defendant his cer- 
 
 tain bond, bearing date the day and year last aforesaid, whereby 
 he became bound to this defendant in the sum of dollars, 
 
 to be paid to him, his executors, administrators or assigns, with 
 a condition thereunder written (here insert condition of bond.) 
 
 And this defendant, further answering, says, that the said 
 , in order further to secure to this defendant the pay- 
 ment of the said sum of money, with interest, on the same day 
 and year last aforesaid, by a certain indenture of mortgage, bear- 
 ing even date with the said bond, granted, bargained and sold 
 to this defendant all the lands and premises mentioned and 
 described in the said bill of complaint of said complainant, 
 together with the rights, privileges, hereditaments and appurte- 
 nances thereunto belonging ; and that said indenture of mort- 
 gage contained a condition that the same should be void upon 
 the payment of the said sum of dollars, with interest at 
 
 the rate, at the times and in the manner in the condition of said 
 bond set forth. 
 
ANSWER. 109 
 
 And the said defendant further says, that the said indenture 
 of mortgage was acknowledged in due form of law, and recorded 
 (or " registered ") in the clerk's (or " register's ") office of the 
 county of , on the (set out date of registry or recording,) 
 
 all which will appear by reference to the said mortgage (and the 
 record or registry thereof) now in the possession of this defend- 
 ant, and ready to be produced and proved, as your Honor shall 
 direct. 
 
 And this defendant further says, that the said debt of 
 dollars, so as aforesaid due this defendant, together with the 
 interest thereon, still remains due and owing to this defendant. 
 
 And this defendant consents that a decree be made by this 
 honorable court for the sale of the said land and premises in the 
 foregoing indenture of mortgage mentioned, and set forth in the 
 complainant's bill ; and that out of the moneys thence arising, 
 this defendant may be (in case defendant claims priority over 
 complainant's mortgage, say "first") paid the full amount of 
 the principal and interest moneys so due as aforesaid, with all 
 reasonable costs and charges in this behalf sustained. 
 
 (Signature of defendant's solicitor.) 
 
 (Annex affidavit in proper form.) 
 
 Where party claims the same benefit of defence as 
 if the bill had been demurred to for want of equity. 
 And this defendant submits to this honorable court, thait all and 
 every of the matters in 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 in this court ; and this defendant hopes he 
 shall have the same benefit of this defence as if he had demurred 
 to the said complainant's bill. And this defendant, &c. 
 
 General form of disclaimer. (a) The answer and dis- 
 claimer of , one of the defendants to the bill of complaint 
 of, &c. 
 
 (a) Where the defendant disclaims of it, he puts in a disclaimer. A dis- 
 all right, title or interest to the matter claimer is in practice accompanied by 
 in demand in the bill, or by any part an answer. Being accompanied by 
 
110 P0BM8 OP PLEADINGS. 
 
 This defendant, &o., in answer to the said bill, says, that he 
 has not and does not claim, and never had or claimed to have 
 any right or interest in any of the matters in question in this 
 suit, and disclaims all right, title and interest, legal and equit- 
 able, in any of the said matters ; and he further says that if he 
 had been applied to by the complainant before the filing of his 
 bill, he would have disclaimed all such right, title and interest, 
 and he therefore submits that the said bill ought to be dis- 
 missed as against him, with costs. 
 
 (Signature of defendant.){a) 
 
 Answer in partition. (6) 
 
 ) On bill for partition, &c. 
 (TUle of cause.) | Answer. 
 
 The joint and several answer of , and 
 
 his wife, and , defendants to the bill of complaint of 
 
 , complainant, &c., {in usual form.) 
 
 These defendants severally answer and say,* that they have 
 
 been informed and believe it to be true, that on or about the 
 
 day of , in the year, &c., one and his wife 
 
 an answer dt is put in upon oath, (a) A disclaimer being intended to 
 when the defendant is required to operate as a release must be signed by 
 answer under oath. It must also be the defendant himself, and his signa- 
 signed by the defendant, and in no ture attested by some person com- 
 case can such signature be waived petent to be a witness. It need not 
 with propriety, since no record will be signed by counsel nor be put in 
 be received without signature, which under oath. Dickerson v. Sodges, 16 
 tends to prejudice the rights of the Stew. Eq. 45. A defendant cannot 
 defendant. deprive the complainant of his right 
 If a party has disclaimed in ignor- to an answer by filing a disclaimer, 
 ance of his rights and afterward dis- laham v. Miller, 17 St-ew. Eq. 61. 
 covers the same, he may apply to the (b) If there are questions in con- 
 court to get rid of the disclaimer upon troversy in the cause, the parties wUl 
 a distinct application, supported by proceed to take testimony ; but where 
 affidavit, establishing a special case. the facts charged in the bill are ad- 
 See Dickerson v. Sodges, 16 Stew. Eq. mitted, the Chancellor will proceed to 
 45. A defendant cannot deprive the order a reference in the usual manner, 
 complainant of his right to an answer Wain v. Meirs, 12 C. E. Or. 77 ; Smith 
 by filing a disclaimer. Isham v. v. Frenehe, 1 Stew. Eq. 115. 
 MiUer, 17 Stew. Eq. 61. 
 
ANSWEE. Ill 
 
 did, by deed of bargain and sale, duly made and executed by 
 them under their respective hands and seals, sell and convey 
 unto the said complainant, and unto his brother, , the 
 
 husband of , one of these defendants and the father of the 
 
 other defendants, and to their heirs and assigns forever, the said 
 tract of land and premises set forth and particularly described 
 in the complainant's said bill of complaint. 
 
 And these defendants, further answering as aforesaid, admit 
 it to be true, that the said tract of land and premises were con- 
 veyed to the said complainant and the said without any 
 restrictive, exclusive or explanatory words contained in said 
 deed, whereby the said complainant and the said , under 
 the then existing laws of this state, took and held the said lands 
 as joint tenants, and that the said complainant and th,e said 
 , in his lifetime and until the time of his death, were 
 seized in fee simple in possession of the said tract of land, as 
 joint tenants in undivided moieties or half parts, and that at the 
 time of the said conveyance, it was the intention of the parties 
 thereto that the said tract of land should be conveyed to the 
 said complainant and the said , as tenants in common, 
 and not aa joint tenants, and that the consideration money was 
 paid jointly and equally by them. 
 
 And these defendants, further answering, say, that the said 
 
 , on or about the day of , in the year, &c., died 
 
 intestate, leaving these defendants, his widow and children, him 
 
 surviving, as in the complainant's said bill of complaint set 
 
 forth. 
 
 And these defendants, further answering, say, that the said 
 , after the decease of her father, intermarried with , 
 
 now one of the defendants, as is stated in the complainant's bill, 
 and that , one of the children of the said , deceased, 
 
 is an infant under {or " over ) the age of (" fourteen ") years, and 
 that and , the other children, are of the age of 
 
 twenty-one years and upwards. 
 
 And these defendants, further answering, say, that they, as 
 ■well as the said complainant, have been and are desirous that 
 a fair partition and division of the said tract of land and prem- 
 ises should be made, as is set forth in the complainant's said bill 
 
112 F0EM8 OF PLEADINGS. 
 
 of complaint, and for that purpose these defendants join in the 
 prayer of the said complainant, that a commission of partition 
 may issue out of and under the seal of this honorable court, 
 directed to proper persons as commissioners to make partition 
 of the said lands and premises, under the control and direction 
 of this honorable courtj and according to the rules of law and 
 equity regulating cases of this nature. Or that in case it shall 
 appear that such partition cannot be made without great preju- 
 dice to the owners of the said premises, that the same may be 
 decreed, by this honorable court, to be sold, and the proceeds 
 thereof divided among these defendants and the several parties 
 to this suit, according to their respective interests. 
 
 {Solicitor fm" defendants.) 
 
 Form of verification. 
 
 New Jersey, sa. — , and his wife, and 
 
 , the defendants named in the foregoing answer, being 
 duly sworn according to law, on their oaths severally depose and 
 say — That the matters and things set forth and contained in the 
 foregoing answer, so far as relates to their own acts and deeds, 
 are true, and so far as relates to the acts and deeds of other per- 
 sons, they believe them to be true. {Signatures.) 
 
 {Jurat.) 
 
 Short form of answer in partition. {After the * on 
 page 110, say, "they admit that the rights and interests of the 
 several parties complainant and defendant, named in the said 
 bill of complaint, in and to the several tracts or parcels of land 
 mentioned and described in said bill, are truly set forth and 
 stated in said bill. And these defendants submit to such decree 
 as this court may make in the premises, either for a partition of 
 the said several tracts or parcels of land, or for a sale of the 
 whole or a part thereof, in case said tracts or parcels of land are 
 so circumstanced that a partition thereof cannot be made without 
 great prejudice to the owners of the same. 
 
AFFIDAVIT TO AN8WEE. 
 
 113 
 
 Common form of affidavit to answer.(a) 
 
 State of New Jersey, \ 
 
 County(6) of J 
 
 , the above-named defendant, being duly sworn, {or 
 " affirmed ") on his oath (or " affirmation," as the case may be,) 
 saith * — That the matters and things set forth in the above 
 answer, so far as relates to his own acts, are true, and so far as 
 relates to the acts of others, he believes them to be true. 
 
 {Jurat.){d) {Signature.){G) 
 
 (a) An answer verified by the affi- 
 davit of the agent of the defendant is 
 not sufiScient. The complainant is 
 entitled to the benefit of the defend- 
 ant's own oath. If he is absent from 
 the country, it may be taken under a 
 commission Stotesbury v. Vail, 1 
 £eas. 394. An answer not verified as 
 the practice of the court requires will 
 be suppressed. Pincers v. Robertson, 
 9 C. E. Gr. 348. The affidavit to an 
 answer should be written, either at 
 the end of the answer or of the 
 schedule thereto. Sraithwait^s Pr. 
 342, n. (a). It should not be written 
 on a page upon which no part of the 
 statements in the answer appears. If 
 there are many defendants who are 
 sworn together, one affidavit is suffi- 
 cient. If the defendants are sworn at 
 different times, there must be separate 
 affidavits for each defendant, or each 
 set of defendants swearing. 1 Dan. 
 Gh. Pr. '746 ; Binney's Case, 2 Bland 
 99. Every person must be sworn, 
 unless he shall allege that he is con- 
 scientiously scrupulous of taking an 
 oath. Williamson v. Carroll, 1 ffarr. 
 217. Where an answer shall be sworn 
 to by a defendant out of this state, the 
 oath may be taken before a master in 
 chancery of this state, or a notary 
 public, certified under his seal, and 
 otherwise in compliance with the 
 requirements of statute or before any 
 person who shall be authorized by 
 
 the law of this state to take the 
 acknowledgment of the execution of 
 a deed for lands in this state, at the 
 place where such answer shall be 
 sworn to, and the authority to such 
 person shall be certified in the same 
 manner as required for the recording 
 of a deed acknowledged before him. 
 Mule 62 ; see FeHehiwanger v. McCool, 
 2 Stew. Eg. 151. 
 
 (i) It was held that the affidavit- 
 was not rendered defective by the 
 absence of a statement of the county 
 where it was taken, though the officer 
 before whom the affidavit was taken 
 was a county commissioner. Barnard 
 V. Darling, 1 Barb. Ch. 218 ; and see 
 Perkins v. Collins, 2 Or. Ch. 482. 
 The jurat must correctly express the 
 time when the answer is sworn. 1 
 Dan. Ch. Pr. 746. 
 
 (c) The defendant must sign his 
 name or put his mark at the side of 
 the jurat, not underneath it. Anderson 
 V. Slather, 9 Jur. 1085. And at the 
 foot of the affidavit, if the verification 
 is in the form of an affidavit ; if it be 
 in the form of a certificate, his name 
 should be subscribed to the answer. 
 Pincers v. Robertson, 9 C. E. Or. 349. 
 
 {d) The person before whom the 
 answer is sworn must sign his name 
 under the jurat, to which should be 
 added his official character. , Braith- 
 waite's JV. 342 ; Westerfieldy.Bried, 11 
 a E. Gr. 357. For form of verifica- 
 
114 
 
 F0BM9 OF PLEADINGS. 
 
 Affidavit to answer of guardian ad litem.(a) 
 
 State of New Jensey, ) 
 County of , ) ' 
 
 , the guardian ad litem of the above-named infant de- 
 fendant, being duly sworn, on his oath saith — That he has read 
 
 tion of answers by particular classes 
 of persons, see 1 Dan. Oh. Pr. 746, 
 et seg. In an answer by a husband 
 and wife, the latter must make affi- 
 davit thereto, as well as the husband. 
 Coltard V. Smith, 2 Beas. 43. If, after 
 the answer has been sworn, there is 
 discovered any defect in the formal 
 parts, such as the title oi jurat, or any 
 unauthenticated alteration or inter- 
 lineation, the answer must be re-sworn, 
 unless the complainant consent that 
 the answer be filed, notwithstanding 
 such defect. Dan. Oh. Pr. 743. An 
 answer to a bill in equity, complete in 
 every respect, cannot be treated as an 
 answer until the party has filed it; 
 and if the defendant dies before filing 
 ■ his answer, it cannot be filed by his 
 solicitor as an answer. Oiles v. Eaton, 
 54 Maine 186. It must be sworn to 
 before it is filed. TrumbvM v. Gibbons, 
 Oct., 1819. In the case of a foreigner 
 ignorant of the English language, his 
 answer should be interpreted to him 
 by some person skilled in a language 
 understood by both. The practice is 
 for the interpreter to make oath be- 
 fore an officer authorized by law to 
 administer an oath to an answer, that 
 he well understands the foreign lan- 
 guage ; that he has truly, distinctly 
 and audibly interpreted the contents 
 of the answer to the defendant, and 
 that he will truly interpret to him the 
 oath about to be administered to him ; 
 after which, the ordinary oath is ad- 
 ministered to the defendant through 
 the interpreter. 1 Dan. Oh. Pr. 746, 
 747 ; Hayes v. Lequin, 1 Hogan 274. 
 Where the complainant in his bill 
 
 prays that the defendant answer with- 
 out oath, the answer, if sworn to, is 
 evidence against the complainant on 
 a motion to dissolve the injunction, 
 (JRev., "Chancery," ? 23,) but not on 
 the hearing of the cause. Walker v. 
 mil, 6 O. E. Gr 191. An answer 
 put in without oath is evidence against 
 the defendant. Syer v. Little, 5 0. 
 E. Or. 443; Sweet v. Parker, 7 O. E. 
 Or. 453 ; Symmes v. Strong, 1 Stew. 
 Eq. 131. After a defendant had put 
 in his answer on oath to a bill in the 
 usual form, the complainant was not 
 permitted to amend his bill and in- 
 clude in such amendments a waiver 
 of the answer of the defendant on 
 oath, so as to deprive him of the 
 benefit of his answer to the amend- 
 ments, so far as it might be responsive 
 to the bill. Burras v. Looker, 4 Paige 
 227. Where one of several defend- 
 ants for whom an answer had been 
 prepared to be put in jointly with 
 other defendants, refused to concur in 
 the answer, or put in answer alone, 
 and stood out process of contempt, 
 leave to file the answer as the answer 
 of the defendants who had been sworn 
 was refused. The name of the dis- 
 senting defendant was struck out, and 
 the answer re-sworn by the other de- 
 fendants. Thatcher v. Lambert, 5 Sare 
 228; Vaughn v. Johnson, 1 Stock. 
 173; hvi see Young v. OlarksviUe Co., 
 12 0. E. Or. 67 ; Done v. Bead, 2 V. 
 &B.310; 1 Dan. Oh. Pr. 732. 
 
 (a) Verification is not required in 
 practice when the clerk of the court 
 is the guardian ad litem. 
 
INTBKROGATOEIES. 115 
 
 the foregoing answer, and that he is informed and verily 
 believes that the facts stated therein are true. 
 
 Jurat to answer of a corporation.(a) [ The seal of a 
 corporation should be fixed immediately after the answer, with the 
 signature of the president and the attestation of the secretary 
 attached, and then follows the jurat in the following form i\ 
 
 State of New Jersey, V 
 
 County of , / ' 
 
 The answer of the defendants, the Company, was taken 
 
 this day of , in the year , before me, under 
 
 the common seal of the said corporation, as by their said seal, 
 thereto affixed, appears. 
 
 {Signatwe of officer.) 
 
 INTERROGATORIES. 
 
 Interrogatories by a defendant to a complainant 
 
 after answer, (6) Interrogatories to be exhibited to , 
 
 one of the complainants in a certain cause depending in the 
 
 (o) A corporation aggregate must Ibid.; Anon., 1 Vern. 117. For di- 
 answer under the seal of the corpora- rections as to the officers before whom 
 tion. They may adopt and use any an answer out of this state may be 
 seal pro hoc vice. Ransom v. Savings sworn, see rule 62. 
 Bank, 2 Beaa. 212 ; Haight v. Morris (5) After the defendant shall have 
 Aqueduct, 4 Wash. C. O. 601. Where filed his answer, he may exhibit in- 
 a bill was filed against a corporation terrogatories to the complainant, which 
 generally, which put in an answer shall be answered by him on oath or 
 under their corporate seal, the court affirmation, and such answer shall be 
 refused, on motion, to order certain evidence in the cause in the same 
 officers of the corporation to make manner and to the same efiect as the 
 oath to the answer so filed. Brundey defendant's answer to the complain- 
 V. Westchester Society, 1 Johns. Oh. 366. ant's bill is evidence ; and if the com- 
 Individual members of a corporation plainant shall not answer such inter- 
 may be called upon to answer to a rogatories by the time appointed by 
 bill of discovery, under oath, but in the court, he shall be in contempt, 
 that case the individuals must be and his bill shall be dismissed, with 
 named as defendants in the bill. costs. Bev., " Chancery," ? 44. If the 
 
116 
 
 FORMS OF PLEADINGS. 
 
 Court of Chancery of New Jersey, wherein is complainant, 
 
 and and are defendants, on the part and behalf of 
 
 the said defendant : 
 
 First Interrogatory, — Were you, or were you not, in the pos- 
 session and occupancy of the mansion-house, late of , de- 
 ceased, after his death ? If yea, how long, in what manner, by 
 whose authority, and upon what terms did you occupy and 
 enjoy the same ? 
 
 (^And so on through the interrogatories, and conclude) — Declare 
 the truth of the several matters in the foregoing interrogatories 
 inquired after, according to the best of your knowledge, remem- 
 brance, information and belief. 
 
 {Solicitor and of eownsel with defendants.) 
 
 defendant intends to exhibit interrog- 
 atories' to the complainant, he shall 
 file the same and serve a copy thereof 
 within fifteen days after filing his 
 answer, and not afterwards, without 
 leave of the Chancellor; and the 
 complainant shall answer the inter- 
 rogatories within thirty days after 
 service thereof, unless the Chancellor 
 shall allow further time for answering 
 the same; and if the complainant 
 except to the interrogatories, he shall 
 file his exceptions within ten days 
 after service of the interrogatories, 
 and enter a rule of course with the 
 clerk to refer them to a master, who 
 shall decide and report thereon within 
 fifteen days after they are filed, but an 
 appeal to the Chancellor from such 
 report shall be allowed if taken within 
 ten days after filing the master's 
 report, and the Chancellor shall, upon 
 ten days' notice given by either party, 
 hear and determine the same. Costs 
 are awarded to the prevailing party. 
 Hule 77. It seems that no order is 
 necessary to enable the defendant to 
 file the interrogatories. Brailhwaii^s 
 Pr. 40 An order to compel the com- 
 plainant to answer interrogatories. 
 
 filed out of time, will not be granted 
 unless the defendant can show, by 
 a£Qdavits, sufficient excuse for his 
 neglect to file his interrogatories pur- 
 suant to the rule. Application for 
 such an order must be on notice. 
 Phelps V. Ourtis, 1 Gr. Oh. 387. In- 
 terrogatories for the examination of a 
 plaintiff' are on a diff'erent footing 
 from those for the examination of a 
 defendant, in this respect: that a 
 plaintiff' is not entitled to discovery of 
 the defendant's case, but a defendant 
 may ask any question tending to de- 
 stroy the plaintiff^'s claim. Hoffman 
 V. Postil, L. JR., 4 Ch. Ap. 673. The 
 practice of the court in England, with 
 reference to excepting to an answer, 
 for insufficiency or for scandal, extends 
 and is applicable to answers put in to 
 such interrogatories ; but in determin- 
 ing the materiality or relevancy of 
 any such answer, or of any exceptions 
 thereto, the court has regard to the 
 statements contained in the origin9.1 
 bill, and in the answer, which may 
 have been put in thereto by the de- 
 fendant exhibiting the interrogatories. 
 2 Dan. Ch. Pr. 1555 ; and see rule 76. 
 
PROCEEDING AT LAW. 
 
 117 
 
 Order that the complainant elect to proceed at law 
 or in equity.(a) Upon opening the matter to the court by 
 , of counsel with the defendants, it appearing that the 
 complainant prosecutes the defendants both at law and in this 
 court, for one and the same matter, whereby the defendants are 
 doubly vexed, and put to unnecessary costs and expenses : It 
 is thereupon, on this day of , in the year, &o., 
 
 ordered, that the complainant, within (thirty) days after service 
 upon him or his solicitor of a copy of this order, elect whether 
 he will proceed at law in the suit brought by him against the 
 defendants, or in this court upon his bill ; and if he elects to 
 proceed at law, or if he neglects to file such election within the 
 said (thirty) days, the bill in this cause shall thereupon stand dis- 
 
 (a) Where the complainant is suing 
 both at law and in equity at the same 
 time, for the same matter, the defend- 
 ant is entitled to an order that the 
 complainant elect whether he will 
 proceed with the suit in equity, or 
 with the action at law. Dan. Oh. Pr. 
 815 ; Mii. PI. 204 ; Carlisle v. Cooper, 
 S C. E. Or. 241. The complainant 
 will not be put to his election 
 unless the suit at law is for the same 
 <;ause, and the remedy afforded co- 
 extensive and equally beneficial with 
 the remedy in equity. Way v. Bra/- 
 gaw, 1 C E. Or. 214. If parties bring 
 suit in another state, and while that 
 suit is pending bring another action 
 here for the same cause, during the 
 progress of which they obtain judg- 
 ment in the first suit, it may be pleaded 
 in bar to the action brought here. 
 Barn.es v. Oibhs. 2 Vr. 318. The 
 •complainant will not be put to his 
 election in which court he will proceed 
 until after the defendant has answered. 
 Gonover's Eo^ra v. Conover, Sax. 409. 
 If the defendant's answer is not ex- 
 cepted to, or set down for hearing on 
 
 former exceptions, he may, on an 
 allegation that the complainant is 
 prosecuting him in this court, and also 
 at law, for the same matter, obtain, at 
 the expiration of eight days after his 
 answer, or further answer is filed, as 
 of course, on motion or petition, the 
 usual order for the complainant to 
 make his election in which court he 
 will proceed. Dan. Oh. Pr. 816. The 
 order must be served on the com- 
 plainant or his solicitor and attorney- 
 at-law; and within the time limited 
 by the order, the complainant must 
 make his election ; and if he elect to 
 proceed in equity, then his proceed- 
 ings at law are thereby stayed by in- 
 junction ; but if he elect fo proceed at 
 law, or in default of his making his 
 election within the specified time, 
 then his bill from thenceforth stands 
 dismissed, with costs to the defendant. 
 Dan. Ch. Pr. 816. The court will 
 allow the party a reasonable time to 
 make his election. Brocker v. Martin, 
 3 Yerger 55 ; Rogers v. Vosburg, 4 
 Johns. Oh. 84 ; Ld. Bacon's Orders, 
 No. 18. 
 
118 
 
 FOEMS OF PLEADINGS. 
 
 missed, with costs ; and if he elects to proceed in this court, it 
 is then further ordered that he proceed no further in the said 
 suit at law, without leave of this court.(a) 
 
 Order to speed cause.(6) It appearing to the court that 
 the defendants in the above-stated cause filed their answer to the 
 complainant's bill on the day of , last pastf and 
 
 (a) It is not the practice to issue an 
 injunction, the service of the order 
 being sufficient. JBraithwaite's Pr. 229. 
 "Where the defendant has obtained 
 such order on suggestion, the plaintiff 
 may move, on notice to the defendant, 
 to discharge it, either for irregularity 
 or upon the merits confessed in the 
 answer or proved by affidavit. If, 
 upon such motion, there should be 
 any doubt as to whether the suit in 
 equity and the action at law are for 
 the same matter, it is the usual course 
 to direct an inquiry into that fact. 
 Mousley v. Basnett, 1 V. & B. 382, n. 
 If the common order cannot, under 
 the circumstances, (the common mo- 
 tion cannot be made until the answer 
 has been put in) be obtained, it seems 
 the court will, if necessary, make a 
 special order, and grant an injunction 
 in the meantime. If the plaintiff 
 requires further time to make his 
 election, he must apply to the court 
 by motion, on notice, to have the time 
 extended. After decree, it is not the 
 practice to make an order to elect. 
 Dan. Oh. Pr. 817. 
 
 (6) Every cause shall be set down 
 for hearing at the next stated term 
 after the filing of the replication, or, 
 on failure thereof, the complainant's 
 bill shall be dismissed, with costs, 
 unless the court, on just cause and 
 reasonable terms, allow further time 
 for the hearing. If there be not fif- 
 teen days between the filing of the 
 replication and the next stated term, 
 
 then the hearing shall be had at the 
 subsequent stated term, or at a special 
 term. Bev., " Chancery," ? 47. The 
 advantages of this provision of the 
 statute are seldom accorded to the de- 
 fendant in practice, until he has first 
 taken an order on the complainant to 
 speed his cause. The order may be 
 taken at any time after the complain- 
 ant is in default, and be made return- 
 able in term or vacation, on such 
 notice as the court may appoint; and 
 if the complainant does not proceed 
 or show cause, as required by the 
 order, the defendant, upon producing 
 proof of the service of the order, will 
 be entitled to move for the dismissal 
 of the bill. Orders to speed the cause 
 may be resorted to at any stage of the 
 cause; they are generally granted 
 ex parte. The mere filing of a repli- 
 cation is not a compliance with an 
 order to speed the cause. When the 
 defendant took such an order, and the 
 complainant filed his replication, and 
 then took no further step, it was held 
 that the defendant was entitled to 
 have the bill dismissed at the next 
 stated term, because the complainant 
 had not, in compliance with the 
 statute, brought his cause to a hearing 
 at that time. West v. Paige, 1 Slock. 
 203. The discretion given to the 
 Chancellor under the statute will not 
 be exercised in a case of gross laches 
 and long delay. Shipman v. Cook, 1 
 C. E. Or. 251 ; Hoagland v. Soaglandy 
 1 Or. Ch. 511. 
 
PEOCEEDINGS BEFOEE REPLYING. 
 
 119 
 
 that the said complainant has not, since that time, taken any 
 proceeding in his said cause : It is, on this day of , 
 
 &c., on motion of , of counsel with the said defendants, 
 
 ordered that the said complainant do speed his cause on or 
 before the first day of the next stated term of this court, or show 
 cause why his said bill be not dismissed, with costs ; and that a 
 cop;^ of this order be served, within days from the date 
 
 thereof, on the said complainant or his solicitor. 
 
 PROCEEDINGS BY COMPLAINANT BEFORE 
 REPLYING. 
 
 Exceptions to an answer for insuiSciency.(a) 
 
 {Title of cause.) 
 
 Exceptions taken by the said complainant to the answer of 
 the defendant to the bill of complaint in this cause,* for insuffi- 
 ciency. 
 
 (a) If the complainant, upon an 
 examination of the answer, finds that 
 it contains scandalous or impertinent 
 matter, or that it does not sufficiently 
 answer the interrogatories, he may 
 file exceptions to it. Exceptions are 
 allegations in writing, stating the par- 
 ticular points or matters in respect to 
 which the complainant considers the 
 answer scandalous or impertinent, or 
 those interrogatories to which he 
 thinks there is not sufficient answer 
 given. 1 Dan. Gh. Pr. 758 ; rule 72. 
 Each exception to an answer should 
 be confined to a distinct question, al- 
 though the interrogatory as numbered 
 may contain several questions; at 
 least it ought to be so confined if there 
 is any ground for the defendant to 
 contend that he has answered a part 
 
 of the interrogatory. Bennett v. Sam- 
 lin, 2 Dick. Ch. Hep. 326 An excep- 
 tion for insufficiency may be allowed . 
 as to part and overruled as to part. 
 Ibid. Liberty was given to amend an 
 exception after hearing thereupon, 
 and defendant required to answer 
 the exception as amended Ibid. 
 Scandal consists in the allegation of 
 anything which is unbecoming the 
 dignity of the' court to hear, or is 
 contrary to good manners, or which 
 charges some person with a crime not 
 necessary to be shown in a cause. 
 Any unnecessary allegation, bearing 
 cruelly upon the moral character of 
 an individual, is also scandalous. 1 
 Dan. Ch. Pr. 347. Impertinences are 
 described by Lord Chief Baron Gil- 
 bert to be " where the records of the 
 
120 
 
 POEMS OF PLEADINGS. 
 
 First Exception. For that the said defendant hath not, in and 
 by his said answer, according to the best of his knowledge, 
 remembrance, information and belief, answered and set forth 
 whether, &c. 
 
 court are stuffed with long recitals or 
 with long digressions of matter of fact, 
 which are altogether unnecessary and 
 totally immaterial to the matter in 
 question : as where a deed is unneces- 
 sarily set forth in hmc verba." Id. 
 349. The same rules for distinguish- 
 ing scandal or impertinence, when 
 comprised in a bill, apply to answers 
 and any other pleadings, and the 
 practice of the court with regard to 
 exceptions to answers for insufficiency 
 is the same as that with respect to 
 exceptions to bills and other plead- 
 ings for scandal or impertinence. 
 Bute 76 ; see 'Exceptions to Bill." 
 The exceptions should adopt the lan- 
 guage of the interrogatories. In some 
 cases, however, where the difference 
 has not been a substantial one, the 
 court has held the exceptions suffi- 
 cient. Woodroffe v. Daniel, 10 Sim. 
 243 ; Brown v. Keating, 2 Beav. 581. 
 Exceptions to an answer for insuffi- 
 ciency should be entitled in the cause, 
 and must specify that the answer com- 
 plained of was an answer to the bill. 
 It is unnecessary to set forth the tenor 
 or scope of the bill, and the substance 
 of the answer, but the complainant 
 proceeds at once to point out, in the 
 exceptions, specifically, the particular 
 points or matters in the bill which 
 remain unanswered, or are imperfectly 
 answered, by separate exceptions, ap- 
 plicable to each part. 1 Dan. Oh. Pr. 
 763 ; Stafford v. Brown, 4 Paige 88 ; 
 Brooks V. Byam, 1 Story 297. Objec- 
 tions for insufficiency may be taken to 
 the answer of a corporation or to an 
 answer oath to which has been 
 
 waived. Beed v. Oumherland Ins. Co., 
 9 Stew. Eg. 393. Separate exceptions 
 must be taken to the answer of e^h of 
 several defendants, and in case of a 
 joint answer of two defendants, one of 
 whom has died, exceptions are taken 
 to the answer as being that of the 
 survivor only. Lord Herbert v. Ptisey, 
 Dick. 2-55 ; Northcote v. Northcote, Id. 
 22; see S. C, Coll. P. O. 288; Sydolph 
 V. Monkston, Id. 609. All exceptions 
 to an answer, as well for impertinence 
 or scandal as for insufficiency, must be 
 taken at the same time, and referred 
 by one rule to the same master. Bute 
 72. Separate exceptions to the same 
 matter, the one for scandal and the 
 other for impertinence, cannot be 
 allowed ; as nothing in a pleading can 
 be considered as scandalous, which is 
 not also impertinent. Melntyre v. 
 Union College, 6 Paige 240. The ex- 
 ceptions must be filed within thirty 
 days after the expiration of the time 
 limited or granted for filing the 
 answer. Bev., " Chancery," § 33. But 
 where the answer is not regularly 
 filed, the exceptions may be filed at 
 any time before replication. Knowles 
 V. Gwinnup, Jan., 182^. If the de- 
 fendant file a demurrer and answer, 
 the complainant cannot proceed on 
 the answer until the demurrer has 
 been argued or disposed of. Bev., 
 "Chancery," | 30. Where plea and 
 answer were filed, and the plea was 
 overruled, it was held that the time 
 for filing exceptions ran from the time 
 of overruling the plea. Esdaile v. 
 Molyneux, 2 Coll. 642; 11 Jur. 201. 
 Where an answer accompanied a plea. 
 
EXCEPTIONS TO ANSWEH. 
 
 121 
 
 /Second Exception. For that the Baid defendant hath not, in 
 and by his said answer, in manner aforesaid, answered and set 
 forth whether, &c. 
 
 {And so with respect to the other exceptions, using the words of 
 the interrogatory not answered.) 
 
 In all or some of which particulars, the said complainant is 
 ad^sed that the said answer of the defendant is evasive and 
 insufficient, and ought to be amended, and humbly prays that 
 the defendant may be compelled to amend the same, and to put 
 in a full and sufficient answer to the complainant's bill. 
 
 {Signature of solicitor and oounsel.){a) 
 
 Exceptions to an answer for scandal and imperti- 
 nence.(6) 
 
 {TMle of cause.) 
 
 Exceptions, &c., {as in preceding form to *, then "for scandal 
 and impertinence.")* 
 
 and the latter was overruled, the com- 
 plainant was allowed twenty days to 
 except to the answer. Summers v. 
 Murray, 2 Edw. 205. If the defend- 
 ant desires to prevent the exceptions 
 being set down for hearing, he must 
 submit to them within six days after 
 service upon him or his solicitor of a 
 copy of the exceptions, give notice of 
 the submission to the complainant's 
 solicitor and pay the costs of the 
 exceptions. Rxde 73. 
 
 (a) Exceptions to an answer must 
 be signed by counsel. Hitchcock v. 
 Bhodes, 15 Stew. Eg. 495. 
 
 (6) Each exception to an answer 
 should be confined to a distinct ques- 
 tion, although the interrogatory as 
 numbered may contain several ques- 
 tions ; at least it ought to be so con- 
 fined if there is any ground for the 
 defendant to contend that he has 
 answered a part of the interrogatory. 
 Bennett v. Bamlin, 2 Dick. Oh. Rep. 
 326. An exception for impertinence 
 fails if any part of the passage in- 
 
 cluded in it be not impertinent. 
 Wagstaff v. Bryan, 1 Buss. & My. 30. 
 An exception for impertinence must 
 be supported in toto; and if it includes 
 any part of the answer which is rele- 
 vant and proper, the exception must 
 fail altogether. Van Rensselaer v. 
 Brice, 4 Paige 174. Where excep- 
 tions for impertinence would mutilate 
 the answer of the defendant unneces- 
 sarily, if allowed, by breaking up 
 sentences or clauses which ought to 
 stand or fall together, the exceptions 
 should be disallowed. Franklin v. 
 Keeler, 4 Paige 382. Exceptions for 
 scandal or impertinence must point 
 out the exceptionable matter with 
 suflScient certainty to enable the ad- 
 verse party and the officers of the 
 court to ascertain what particular 
 parts of the pleading or proceeding 
 are to be stricken out if the exceptions 
 are allowed. Whitmarsh v. Campbell, 
 1 Paige 645. The court should be 
 especially clear that the impertinent 
 matter is such as ought to be struck 
 
122 
 
 rOEMS OF PLBADIKG8. 
 
 First Exception. For that the whole of the paragraph of the 
 said answer {here introduce language to identify the paragraph 
 referred to) is scaHdalous. 
 
 Second Exception. For that the said answer is impertinent 
 
 from and including the word , in the line of the 
 
 page, down to and including the word , in the 
 
 line of page. 
 
 In all which particulars this exceptant excepts to the said 
 
 answer put in by the defendant to the said complainant's bill as 
 
 scandalous and impertinent, and he humbly insists that the same 
 
 ought to be expunged from the said answer. 
 
 {Signature of solicitor and counsel.) 
 
 Rule referring exceptions.(a) 
 
 {Title of cause.) \ {Date of entry of rule.) 
 
 The complainant having filed exceptions to the answer put in 
 by the defendant to the complainant's bill in this cause, it is 
 ordered that it be referred to , one of the masters of this 
 
 out, for the reason that the error, on 
 the one side, is irremediable, on the 
 other not. Dodd v. Wilkinson, 15 SUw. 
 Eq. 647. The filing exceptions to an 
 answer constitutes no technical objec- 
 tion to the dissolution of an injunc- 
 tion. The court will look into them 
 merely to ascertain whether they 
 relate to the points of the bill on 
 which the injunction rests. Robert v- 
 Hodges, 1 C. JE. Or. 299. A motion 
 to dissolve an injunction and the 
 hearing of the exceptions were taken 
 up together and determined at thesame 
 time. Salmon v. Clagett, 3 Bland 1 25. 
 It has been held that exceptions 
 will not lie to the answers of cor- 
 porations, because they are not evi- 
 dence. Wallace v. Wallace, July, 1828; 
 but see Seed v. Owmberland Ins., Co., 
 9 Stew. Eq. 393. The answer of an 
 infant by his guardian cannot be ex- 
 cepted to for insufficiency. Leggett 
 
 V. Sellon, 3 Paige 84. Where a plea 
 is ordered to stand for an answer, it is 
 to be deemed sufficient, so far as it 
 covers the bill ; but the complainant 
 may still except to the residue of the 
 answer; and he may except to the 
 plea, but only by express leave of the 
 court. Kirby v. Taylor, 6 Johns. Ch. 
 242. It is a general rule that after an 
 order to amend, the right to except to 
 the answer to the original bill is 
 waived. Irving v. Viana, 1 M'Cle. & 
 Y. 563. 
 
 (a) If the defendant does not sub- 
 mit to the exceptions, the complainant 
 may, at the expiration of the time 
 mentioned in the seventy-third rule, 
 enter a rule, either in term time or 
 vacation, referring them to a master 
 of the court, who shall decide and 
 report upon them within thirty days 
 after they are filed, and if either party 
 be dissatisfied with the report, an 
 
EXCEPTIONS TO ANSWEK. 123 
 
 court, to look into the complainant's bill, the answer thereto and 
 the said exceptions, and examine and report to this court, with 
 all convenient speed, whether the said exceptions be well taken 
 or not. 
 
 Entered by , solicitor for the complainant. 
 
 By the court. 
 
 (Signatv/re of clerk.) 
 
 Rule referring exceptions for impertinence or 
 scandal, under rule 75. 
 
 {Title of cause.) I {Date of rule.) 
 
 The complainant having filed exceptions to the answer put in 
 by the defendant, , to the complainant's bill in this cause, 
 
 for insufficiency and for impertinence and scandal, {or, "for 
 insufficiency and impertinence or scandal," as the case may be;) 
 and the said defendant having submitted to answer the said 
 exceptions for insufficiency, but given no notice at the same time 
 that he consents to have the parts of the said answer excepted to 
 for impertinence or scandal expunged : It is ordered that it be 
 referred, &c., whether the said exceptions to the said answer for 
 impertinence or scandal be well taken or not. 
 
 Master's report on exceptions.(a) 
 
 {Title of cause.) 
 In pursuance of a rule of the Court of Chancery entered in 
 the above cause, bearing date on the day of last, 
 
 appeal may be taken therefrom to the (a) In proceedings upon exceptions 
 
 Chancellor, who shall hear and deter- for insufficiency before the master, the 
 
 mine the same at the next term, or at course is for the complainant's counsel 
 
 such time as, upon the application of to state the subject, shape and prayer 
 
 either party, shall be appointed. of the bill, and to read the first excep- 
 
 Bev., " Chancery,'' § 34 ; rule 12. For tion. The defendant's counsel then 
 
 the order of proceeding before the reads from the answer such parts as 
 
 master on the hearing of the excep- he insists is an answer thereto, and 
 
 tions, see rule 43 ; . also note, p. 63, each counsel argues on the point. 
 
 ante. It is irregular to obtain one The master will then allow or dis- 
 
 rule of reference only, where more allow it^ or suspend his opinion ; and 
 
 than one answer is excepted to. thus all the exceptions are gone 
 
 Allanson v. Moorsom, 2 Sim. & Stu. 478. through with. 1 Barb. Ch. Pr. 186 ; 
 
124 F0KM8 OF PLEADINGS. 
 
 whereby the exceptions filed by the complainant to the answer 
 of the defendant, , were referred to the subscriber, one of 
 
 the special masters of the said court, to * look into the complain- 
 ant's bill of complaint, the answer of the said defendant, and the 
 exceptions taken to said answer by said complainant, and report 
 whether said exceptions are well taken or not, I, the said master, 
 do hereby respectfully certify and report, that ("having been 
 attended by the counsel of the respective parties, and ") having 
 looked into said bill and answer and the exceptions thereto, and 
 having duly considered the same, I find that the second and 
 fourth exceptions to said answer are well taken, and that the 
 first, third and fifth exceptions are not well taken, {or as the case 
 may be; stating the reasons as to the various exceptions, and con- 
 elude.) . 
 
 Respectfully submitted, this day of , &c. 
 
 (Signature of master.) 
 
 Rule nisi to confirm report.(a) The form of this rule is 
 the same as that on page 64, ante, changing the word "com- 
 plainant" to "defendant," and vice versa.) 
 
 1 Tur. Oh. Pr. 477. The report report. For the practice of the court 
 should be sent to the clerk's office by as to the taking of the rule and ser- 
 the master to be filed. Where the vice thereof upon the defendant, eee 
 answer has been reported insufficient Miller's Adm'r v. Miller, 11 C. E. 
 and the master's report has been filed, Qr. 423 ; also, ante p. 63, note. The 
 the complainant is at liberty, on mo- practice of the court with regard to 
 tion as of course, to obtain an order to answers on account of scandal, imper- 
 amend his bill without costs, and that tinence and insufficiency, is the same, 
 the defendant answer the amendments mutatis mutandis, as that already de- 
 and exceptions at the same time. scribed with respect to exceptions to 
 This practice does not apply to in- bills. See "Exception to Bill " If the 
 junction bills. Smith 285 ; see rule 67. master reports the answer insufficient, 
 Liberty was given to amend an ex- and his report, if excepted to, is con- 
 ception after hearing thereupon, and firmed by the court, the defendant 
 defendant required to answer the ex- must answer further, by way of addi- 
 ception as amended. Bennett v. Ham- tion or supplement to his original 
 lin, 2 Dich. Ch Bep. 326. answer. If only one exception is 
 (a) This rule will be entered by the allowed, the answer is considered in- 
 clerk in the common rule-book, at the sufficient. Smith *2S4. 
 request of the solicitor filing the 
 
EXCEPTIONS TO ANSWER. 125 
 
 Notice of defendant's submission to answer ex- 
 ceptions.(a) 
 
 {IMe of eause.) 
 
 Take notice, that , the defendant in the above-entitled 
 
 cause, whose answer filed in said cause has been excepted to for 
 insufficiency, {or, "impertinence or scandal," as the case may be,) 
 as by the said exceptions filed in said cause appears, hereby sub- 
 mits to answer the said exceptions ; {or, if the exceptions to the 
 answer are for impertinence and scandal, add, "and hereby con- 
 sents(6) that the parts of the said answer so excepted to may be 
 expunged.") 
 
 {Signature of solicitor.) 
 To , {Solicitor of complainant.) 
 
 Exceptions to master's report on exceptions to 
 answer. 
 
 {Title of cause.) 
 
 Exceptions taken by the complainant {or "defendant") to 
 the report of , one of the special masters of this court, to 
 
 whom it was referred, to report as to the exceptions filed to the 
 answer of the said defendant. 
 
 (o) The submission is made by twenty days after receiving a copy of 
 giving notice thereof to the com- the exceptions, or on failure thereof, 
 plainant's solicitor and paying the the complainant's bill shall be taken 
 costs of the exceptions. Sule 73 ; as confessed, and such proceedings 
 Braithwaite' s Pr. 129. If the com- had thereon as if the first or original 
 plainant shall, within six days after answer had not been filed. Mule 74. 
 such notice, or within such further (6) When an answer shall be ex- 
 time as the court shall allow, amend cepted to for insufficiency and for 
 his bill and the defendant's copy, the impertinence and scandal, or for in- 
 defendant shall answer the exceptions sufficiency and impertinence or scandal, 
 and amendments at the same time. if the defendant submits to answer the 
 Bute 73. When a defendant shall exceptions for insuffieiency, but does 
 have given notice that he submits to not at the same time give notice that 
 answer the exceptions, he shall file he consents to have the parts of the 
 a second or further answer within answer excepted to for impertinence 
 twenty days after the complainant has or scandals expunged, the complain- 
 amended his bill a;nd the defendant's ant may immediately, and of course, 
 copy, if the complainant shall amend enter a rule to refer the exceptions for 
 his bill ; or if the complainant shall impertinence or scandal to a master, 
 not amend his bill, then within Bute 75. 
 
126 FOEMS OF PLEADINGS. 
 
 First. For that the said master has, in and by his said report, 
 certified that, &c., {set out the words of the report.) Whereas he 
 ought to have certified, &c. 
 
 Second. For that the said master has certified, &c. 
 
 In all which particulars the report of the said master is, as 
 the said is advised, erroneous, and the said appeals 
 
 therefrom to the judgment of this honorable court. 
 
 {Sigriature of solicitor and counsel.) 
 
 Rule for hearing upon exceptions to master's 
 
 report.(a) For form of above rule, see p. 66, substituting the 
 word " complainant " for " defendant," if the rule be taken at the 
 instance of the defendant.) 
 
 Order for further answer after report of master upon 
 insufiBciency of answer.(6) 
 
 {Title of cawse.) 
 
 The answer of the defendant, , having been reported 
 
 insufficient in the matters of the and exceptions 
 
 taken thereto, by , the master to whom the exceptions of 
 
 the complainant to such answer were referred ; and the report 
 of the said master having become absolute against the said 
 defendant : It is, on this day of , &c., on motion of 
 
 , of counsel with the complainant, ordered that the said 
 put in a further answer to the matters of the said 
 
 (a) The service of the rule setting time. Bev., " Chancery," I 36. New 
 
 down exceptions to a master's report exceptions for insufficiency cannot be 
 
 of insufficiency prevents process of taken to the further answer, founded 
 
 contempt issuing to compel a further upon the matter of the original bill 
 
 answer until the exceptions are dis- only. If the second or further answer 
 
 posed of. be considered insufficient, the com- 
 
 (6) When an answer shall be ad- plainaut does not except again, but 
 judged to be insufficient, the defendant the bill, the two answers and the old 
 must file a second or further answer exceptions are referred back to the 
 within thirty days after such adjudi- master. Williams v. Davies, 1 Sim. & 
 cation, or, on failure thereof, the said Slu. 426 ; Bennington Iron Co. v. 
 bill shall be taken as confessed, and Campbell, 2 Paige 159. An exception 
 such proceedings had thereon as if the for insufficiency may be allowed as to 
 first or original answer had not been part and overruled as to part. Sen- 
 filed within the limited or granted neit v. Samlin, 2 Dick. Gh. Bep. 326. 
 
EXCEPTIONS TO ANSWER. 127 
 
 and exceptions within thirty days after service upon him 
 
 of a copy of this order, and pay the costs of such exceptions, or 
 that an attachment issue, (or, " the bill be taken as confessed,") 
 against him. 
 
 Further answer after exceptions and amend- 
 ments.(a) 
 
 {Commencement as on page 105.) 
 
 This defendant, for further answer unto the original and 
 amended bill, or unto so much, &c., answers and says, &c. 
 
 And this defendant, in further answer to such original bill, 
 as to the matters of the exception taken by the complainant to 
 his former answer, says, &c. 
 
 And this defendant, for further answer to the amendments 
 made to such original bill, says, &c. 
 
 Rule referring exceptions on second or third 
 answer.(6) 
 
 {Title of cause.) V {Date of rule.) 
 
 Exceptions having been heretofore taken to the answer of the 
 defendant, , and such answer having been reported insuffi- 
 
 cient in the matters of the and exceptions, the said 
 
 (a) If a second or farther answer (6) The proceedings upon the ex- 
 shall be adjudged to be insufficient, ceptions to a second or third answer 
 the defendant shall pay double costs, for insufficiency are precisely the same 
 and shall file a third or further answer as those upon exceptions to a, first 
 within twenty days after such adjudi- answer. The master, in deciding upon 
 cation, or, on failure thereof, &c., {as the exceptions, will look at the second 
 in note a.) Rev., " Chancery," I 37. If or third answer in connection with 
 a fiirst or second answer is held in- the preceding answer, and report 
 sufficient, the complainant does not, accordingly. Farquharson v. Balfour, 
 by accepting a further answer, waive Turn. & R. 189. If a first or second 
 his right to the costs already due to answer is held insufficient, the statute 
 him for the insufficiency of the provides within what time the further 
 former answers. Broiherlon v. Chance, answer must be put in. Uct., " Chan- 
 Bunb. 34. eery,'' §§ 36, 37. But in the case of a 
 
128 FOEMS OP PliEADINGS. 
 
 defendant has put in a second {or " third ") answer to the bill 
 in this cause, which answer the complainant alleges to be insuffi- 
 cient in the matters of the and exceptions : It is 
 ordered that it be referred to , the master to whom such 
 exceptions were originally referred, to look into the bill of com- 
 plaint, the answers of the said defendant and the said and 
 exceptions, and report whether such second {or " third ") 
 answer is sufficient, in the matters of the said exceptions, or not. 
 
 Entered, &c. 
 
 By the court. {Signature of clerk.) 
 
 Order for an attachment on third answer beings 
 reported insufiicient. 
 
 {Title of cause.) 
 Commence as on page 36, and after * say, "that by an 
 order of this court, bearing date on the day of last, 
 
 it was referred to , one of the special masters of this 
 
 court, to look into the bill of complaint, the answers of the 
 defendant , and the and exceptions to his 
 
 original answer, and to report whether the third answer of the 
 said was sufficient in the matters of those exceptions or 
 
 not; and that said master has reported that the said third 
 answer was insufficient in the matters of the said and 
 
 exceptions (" as appears by the said report now on file : ") 
 It is, on this day of , &c., on motion of , of 
 
 counsel with the complainant, ordered, that an attachment issue 
 against the said defendant, , for not answering." 
 
 third insufficient answer, no further statute of New Jersey, if a third or 
 
 time to answer is allowed, but the further answer shall be adjudged to 
 
 court may order the defendant to be be insufficient, the defendant shall 
 
 examined upon interrogatories to the pay treble costs, and in such case, 
 
 point as to which the answer is held further time to answer shall not be 
 
 to be insufficient, and to stand com- allowed, but the said bill shall be 
 
 mitted until he shall have perfectly taken as confessed, and such proceed- 
 
 answered the interrogatories, and also ings had thereon as if the first or 
 
 paid the costs awarded to the com- original answer had not been filed in 
 
 plainant. 1 Dan. Oh. Pr. 771. By due time. Rev., " Chancery," ? 38. 
 
EXCEPTIONS TO ANSWER. 129 
 
 Order for examination of defendant upon interroga- 
 tories on third answer being reported insufficient.(a) 
 {Title of cause.) 
 
 As m preceding form to *, then, "that the third answer of the 
 defendant, , has been reported insufficient, on a reference 
 
 to a master upon the original exceptions, in the matters of the 
 and exceptions, and the report of , the 
 
 master to whom such exceptions were referred, having been filed, 
 and having become absolute, and an attachment having there- 
 upon issued against said in pursuance of an order of this 
 court. And the said now being personally before the 
 court by virtue of the said attachment, and the Chancellor now 
 adjudging the said defendant to have been guilty of the miscon- 
 duct alleged against him ; and that such misconduct was calcu- 
 lated to, or actually did, defeat, impede or prejudice the rights 
 or remedies of the complainant in this cause : It is, on motion, 
 &c., ordered, that the said be examined upon interroga- 
 tories before , one of the masters and examiners of this 
 court, to the points wherein his said third answer is reported 
 insufficient; and that he stand committed to the jail of the 
 county of , until he shall have answered such interroga- 
 tories to the satisfaction of the said master, and paid the costs 
 incurred by reason of his default in not answering, and that a 
 warrant issue for that purpose. And it is further ordered, that 
 the sheriff of said county keep the said defendant in his actual 
 custody until the further order of this court in the premises, and 
 that he produce the said before the said master to be 
 examined, at such times as said master shall appoint." 
 
 Master's report as to sufficiency of defendant's 
 examination. In pursuance of an order, &c., {and as on p. 
 123 to *, then,) "examine the defendant on interrogatories to the 
 points wherein his third answer to the bill in this cause was 
 reported insufficient, I, the said master, do hereby respectfully 
 
 (o) If the defendant be in custody, rogatories are to be settled by the 
 
 the complainant should exhibit his Chancellor before they are delivered 
 
 interrogatories without delay. Farqu- to the master. 
 harson v. Balfow, supra. The inter- 
 
130 FORMS OF PLEADINGS. 
 
 certify and report that having (" been attended by the counsel 
 
 for the respective parties, and ") caused the said to be 
 
 brought before me, I examined him upon oath upon the written 
 
 interrogatories filed for that purpose, " and also viva voce," and 
 
 that his examination thereto is contained in a schedule hereto 
 
 annexed, marked A. And I do further certify and report that, 
 
 in my opinion, the said examination is sufficient, {or as the case 
 
 may be.) All which," &c. 
 
 [Signature of master.) 
 
 Order to take bill as confessed on third answer 
 being reported insufficient, and after attachment 
 issued. -As on p. 36 to *, then, "that the third answer of 
 the defendant, , having been reported insufficient, on 
 
 reference to a master upon the original exceptions, in the matters 
 of the and exceptions, and the report of the 
 
 master to whom such exceptions were referred having been 
 filed and having become absolute, and an attachment having 
 been issued against the said , pursuant to an order of the 
 
 Chancellor in this cause, and it now appearing to the court, by 
 affidavit, that the said * cannot be arrested on such attach- 
 
 ment, and does not surrender himself thereon, (or, after the 
 second *, "having been arrested on such attachment, refuses to 
 answer the interrogatories filed for his examination to the satis- 
 faction of the master, as appears by his certificate and report : 
 It is, on this, &c., on motion, &c., ordered, adjudged and decreed 
 that the complainant's bill of complaint in this cause be, and 
 the same is hereby taken as confessed against the said defend- 
 ant.") 
 
 {For form of usual decree pro eonfesao, seepage 34, ante.) 
 
 Order confirming master's report on exceptions to 
 
 answer.(a) 
 
 {Title of cause.) 
 
 It appearing to the court that , esquire, one of the 
 
 special masters of this court, to whom a referencie had been 
 
 (a) If the exceptions are overruled, answer is adjudged insufficient, must 
 the complainant must p^y costs to the pay costs to the complainant. Rev., 
 defendant, and the defendant, if his " Chancery," ? 35. Where exceptions 
 
EXCEPTIONS TO ANSWER. 131 
 
 made, by an order of this court, of the exceptions taken and 
 filed by the complainant to the defendant's answer, has made a 
 report against said exceptions, in favor of the said defendant's 
 answer, and it appearing that the said complainant has obtained 
 an order to amend his said bill, and has filed such amendments, 
 and that the same requires a new or further answer from said 
 defendants : It is, on this day of , &o., on motion 
 
 of , solicitor and of counsel with the defendant, ordered, 
 
 that the said master's report be ratified and confirmed, and that 
 the exceptions of the complainant be overruled, with costs, to 
 include the said defendant's costs to be taxed on the amended 
 bill and further answer. 
 
 Order to expunge scandal and impertinence from 
 answer, on report of a master. 
 
 {Title of cause.) 
 
 As in form on page 36 to *, then, " that the answer of the 
 defendant, , has been reported by , the master to 
 
 whom the exceptions for scandal and impertinence were referred, 
 as scandalous in the matter of the and exceptions, 
 
 and impertinent in the matter of the exception, and no 
 
 cause being shown against confirming the said report : • It is, on 
 this, &o., on motion of, &c., ordered that the said master's 
 report do stand confirmed in all things; and it is further * 
 ordered that the clerk of this court expunge from said answer 
 auch scandalous and impertinent matter, according to said 
 report ; and it is further ordered that the said defendant , 
 
 pia,y to the complainant, or his solicitor, the costs of the said ex- 
 ceptions and the proceedings thereon, within days after 
 service upon him, or his solicitor, of a copy of this order and of 
 the taxed bill of costs." 
 
 are sustained in part, and overruled exceptions are sustained, the proper 
 in part, see, as to costs, C. & A. B. B. practice is to set the cause down for 
 Co. V. Stewart, 4 C. E. Or. 350; M. E. hearing ; not to take a decree pro con- 
 Church V. Jagues, 1 Johns. Ch. Bep. fesso for want of an answer, for defend- 
 65 ; Biehards v. Barlow, 1 Paige 323. ant has a right to answer again. 
 In case of exceptions for insufficiency O'Brien v. Hulfish, 7 C. E. Or. 477 ; 
 to only part of an answer, where the Vanderveer v. Holcomb, Id. 558. 
 
132 
 
 FORMS OF PLEADINGS. 
 
 Order to expunge scandal and impertinence on sub- 
 mission to exceptions. 
 
 {Title of cause.) 
 Commencement as in preceding form — that the answer of the 
 defendant, , has been excepted to for scandal and imperti- 
 
 nence, and that the said defendant has submitted to such excep- 
 tions in the matters of the and exceptions, {or, as 
 the case may be,) as appears by a notice of such submission, 
 signed by his solicitor, and served upon the complainant's 
 solicitor : On reading and filing such notice of submission, it is, 
 &c., on motion, &c. {ConclvMon as in preceding form after *, 
 except using the words " according to said notice of submission," 
 instead of " according to said report.") 
 
 AMENDING BILL. 
 
 Order for leave to amend bill after demurrer.(a) 
 {Title of cause.) 
 
 The defendant, , having filed a demurrer to the bill of 
 
 complaint in this cause, for want of parties, {or other formal 
 defect, as the case may be) : It is, on this, &c., on motion of , 
 
 (a) The complainant may amend 
 his bill of course, and without motion 
 or rule, at any time before answer, 
 plea or demurrer filed, and without 
 costs. Rule 66. If a bill does not 
 contain such material facts, or make 
 all such persons parties as are neces- 
 sary to .enable the court to do com- 
 plete justice, the complainant may 
 alter it by inserting additional matter 
 subsisting at the time of filing the 
 bill, of which he was not then ap- 
 prised, or which he thought not neces- 
 sary to be stated. And he may add 
 such persons as shall be deemed 
 necessary parties. Or in case the bill 
 is found to contain matter not relevant 
 
 or no longer necessary to complain- 
 ant's case, or the names of parties 
 who may be dispensed with, the bill 
 may be amended by striking out such 
 matter or parties. The original bill 
 thus added to or altered is an amended 
 bill. 1 Barb. Oh. Pr. 205. Amend- 
 ments are, as a general rule, in the 
 discretion of the court, especially in 
 matters of mere form, and are allowed 
 with great liberality until after repli- 
 cation. Buckley v. Corse, Sax. 504; 
 Ooddington v. MoU, 1 McCart. 431. 
 Facts which have occurred since the 
 filing of the original bill ought not to 
 be introduced by amendment, because 
 the introduction of matters of a pos- 
 
AMENDING BILL. 
 
 133 
 
 of counsel with the complainant, ordered that the said complain- 
 ant have leave to amend his bill as he may be advised, upon 
 payment of costs to be taxed, and that the defendant plead, 
 
 terior date would render the record 
 incongruous. Matter, therefore, which 
 has occurred since the original bill 
 was filed, should be brought before 
 the court by supplemental bill, and 
 not by amendment. 1 Barb, Ch. Pr. 
 207; Ogden v. Gibbon, July, 1823; 
 Archbishop of York v. Stapleian, 2 Ath. 
 137. There are exceptions, however, 
 to this rule. See Humphreys v. Hum- 
 phreys, 3 P. Wms. 351 ; Bradford v. 
 Felder, 2 Mcard's Ch. *170. Wher- 
 ever an amendment can be made it is 
 to be preferred to a supplemental bill. 
 Hammond v. Hammond, 2 Moll. 312. 
 But when the amendments would 
 change the issue, or introduce new 
 issues, or materially vary the grounds 
 of relief, and the application to amend 
 is made after the cause is at issue, and 
 evidence has been taken on both sides, 
 they must be introduced by supple- 
 mental bill. Seymour v. Long Dock 
 Co., 2 C. E. Or. 170. If the defendant 
 demur to the bill for want of parties 
 or other defect, which does not go to 
 the equity of the whole bill, the com- 
 plainant may amend, of course, at any 
 time before the next term after the 
 filing of the demurrer, upon payment 
 of costs. Rule 70 ; Hoboken Ass'n v. 
 Martin, 2 Beas. 427 ; Van Keuren v. 
 McLaughlin, 6 C. E. Or. 163, 379; 
 Barrett v. Doughty, 10 C. E. Or 379. 
 But where a bill on demurrer was 
 dismissed for want of equity, on the 
 merits of the case as stated, leave to 
 amend the bill was refused. Lyon v. 
 Talmadge, 1 Johns. Ch. 184. Appli- 
 cations to amend should be made 
 promptly after the necessity for the 
 amendment has been discovered. Cod- 
 V. Mott, 1 MeCart. 430; Rogers v. 
 
 Rogers, 1 Paige 424. The sixty-sixth 
 rule, it has been seen, allows the com- 
 plainant, in cases where the bill has 
 not been sworn to, to amend it at any 
 time before answer, plea or demurrer 
 filed, of course, without motion or 
 rule and without costs. If the de- 
 fendant put in an answer, which is 
 excepted to as insuflicient, and he sub- 
 mits to answer further, or the answer 
 shall, on reference, be reported in- 
 sufficient, the complainant may amend 
 his bill of course and without costs, 
 and the defendant shall answer the 
 amended bill and exceptions together, 
 and if the defendant shall plead or 
 demur, and the plea or demurrer shall 
 be overruled, the complainant may, 
 before the filing of an answer, amend 
 his bill of course and without costs. 
 Rule 67. In cases nbt provided for 
 by the sixty-sixth and sixty-seventh 
 rules, when the defendant shall have 
 answered the bill, and the complain- 
 ant shall obtain leave to amend, if 
 such amendment require a new or 
 further answer, then the complainant 
 shall pay costs. Rule 68. Where 
 the defendant's appearance has been 
 entered, and he has procured a copy 
 of the bill, and the complainant is 
 allowed to amend without costs, he 
 must furnish the defendant with a 
 certified copy of the amended bill, or 
 amend the defendant's copy gratis. 
 Rule 69. In all cases of amendments 
 not specifically provided for in the 
 rules above cited, application should 
 be made to the court on notice. Cod- 
 dington v. Mott, supra. The practice 
 of amending injunction bills and other 
 sworn bills, even after answer and 
 after argument, has obtained in New 
 
134 FORMS OP PLEADINGS. 
 
 demur or answer to the amended bill within days after 
 
 service upon his solicitor of said amended bill (or "amend- 
 ments.") 
 
 Order for leave to amend bill after a plea is allowed. 
 
 (Title of cause.) 
 
 The plea of the defendant, , to the bill of complaint 
 
 in this cause having been, on argument, allowed (" as to part of 
 said bill : ") It is, on this, &c., on motion of, &c., ordered, that 
 the complainant have leave to amend his bill by (state the man- 
 ner in which ii is to be amended,) upon payment of costs, to be 
 taxed, and (as in order above.) 
 
 Order for leave to withdraw replication, and 
 amend bill.(a) 
 
 (I^tle of cause.) 
 
 This matter being opened to the court by , of counsel 
 
 with the complainant, (" in presence of , of counsel with 
 
 the defendants," or, if no one appears to oppose, say, " and it 
 
 Jersey, and the indulgence has been complainant had not a knowledge of 
 granted more freely than has been the facts, so as to enable him to bring 
 approved elsewhere. Ibid. If the that case upon the record sooner, 
 complainant, after filing his bill for Such strictness of practice has not 
 an injunction, discovers that he has obtained upon first amendments, 
 omitted to state any matter or join any Buckley v. Corse, Sax. 509. On a de- 
 person as party to the suit, or if the murrer for causes other than those 
 defendant has answered and the provided for in the fifty-sixth rule, 
 complainant thereby obtains further the right to amend and the terms of 
 knowledge of facts or circumstances the amendments are in the discretion 
 which may aid him in the cause, or if of the court. Marsh v. Marsh, 1 C. 
 he has occasion to remedy any imper- £J. Or. 392. Amendments which seek 
 fection in the frame of the bill, he to make a new case inconsistent with 
 may apply to amend ; the amend- that originally made should be applied 
 ments may, if the court SQ order, be for before issue. Coddington v. Mott,' 
 without prejudice to the injunction. Seymour v. Long Dock Co., ubi mpra. 
 Bliss V. Boseawen, 2 Ves. & B. 102 ; (o) To amend the bill after repli- 
 Benmch v. Wilson, 6 Johns. Ch. 81. cation, an application to the court. 
 But an application for a second upon notice to the opposite party, for 
 amendment of such a bill must dis- leave to withdraw the replication and 
 close its nature with precision, and amend the bill is necessary. 1 Dan. 
 must be founded on affidavit that Ch. Pr. 834 ; Burgin v. Qiberson, 8 G. 
 
AMENDING BILL. 135 
 
 appearing that due notice has been given of this application," *) 
 and upon good cause shown by affidavit and otherwise : It is, 
 on this, &c., on motion as aforesaid, ordered, that the said com- 
 plainant have leave to withdraw his replication to the bill of 
 complaint in this, cause, and amend his bill in days from 
 
 this day ("by adding parties" or otherwise,) as he shall be 
 advised. And it is further ordered, that the complainant pay 
 to the defendant, , the usual costs of amendment and the 
 
 costs of this application. 
 
 Order for leave to amend bill under rule 67. 
 
 {Title of cause.) 
 
 The answer of the defendant, , to the bill of complaint 
 
 in this cause, having been excepted to for insufficiency, and the 
 said defendant having submitted to answer further, {or, " and 
 the master to whom the said exceptions were referred having 
 reported the said answer insufficient : ") It is, on this, &c., on 
 motion, &c., ordered, that the said complainant have leave to 
 amend his bill as he may be advised ; {or, if the defendant shall 
 have filed a plea or demurrer, commence mid say, "The plea {or 
 " demurrer ") to the complainant's bill in this cause having been, 
 on argument, overruled, and no answer having been filed to said 
 bill : It is," {conclude as above.) 
 
 Order to amend bill after ans-wer.(a) 
 
 {Title of caitse.) 
 
 The defendant, , having filed his answer to the bill of 
 
 complaint in this cause, {or state the position of the suit, as the 
 
 E. Or. 4C3; CarleUm -y. V Estrange,! Riper v. Claxton, 1 Stock. 302. Or at 
 
 ISirn. & R.2Z; Small v. Alwood, 2 Y. the hearing. Howell v. Sebring, 1 
 
 & Jer. 512. The complainant should, McOart. 84 ; Elmer v. Loper, 10 0. E. 
 
 if he applies to amend before filing Or. 475 ; Voorhees f. Melick, Id. 523. 
 
 replication, obtain an order to extend Or after hearing. JSampton v. Nichol- 
 
 the time for filing replication, pending son, 8 O. E. Or. 423. After the trial 
 
 his application for leave to amend, of an issue at law. Powell v. Mayo, 
 
 Vermillyea v. Odell, 4 Paige 121. 11 G. E. Or. 120. And where it is 
 
 (a) Amendments will be allowed necessary to make the allegations of 
 
 after proofs taken and closed. Van the bill correspond with the proofs. 
 
136 
 
 FORMS OF PLEADINGS. 
 
 case may be,) and it appearing that due notice has been given of 
 this application, and on good cause shown : It is, on this, &c., 
 on motion of , of counsel with the complainant, ordered, 
 
 that the said complainant have leave to amend his bill as he 
 shall be advised. And it is further ordered, that he pay to the 
 said defendant, , the costs of a further answer to be taxed, 
 
 if such shall be filed. 
 
 Midmer v. Midmer, 11 O. E. Or. 299. 
 An injunction bill may be amended 
 by inserting a prayer for process. 
 Sailey v. Stiles, 2 Or. Ch. 245. "When 
 a bill contains only a special prayer 
 for relief, and the facts as set forth in 
 the bill will not authorize any other 
 relief, the prayer cannot be amended. 
 Ealsted v. Meeker, 3 O. E. Or. 136. 
 An amendment, by adding parties, 
 cannot be made in the Court of Ap- 
 peals. New Jersey Franklinite Co. v. 
 Ames, 1 Seas. 507 ; see Black v. Del. 
 & Bar. Canal Co., 9 C. E. Or. 456. 
 When an order to amend is granted 
 upon payment of costs, these costs 
 must be paid or tendered before any 
 further proceedings are had ; other- 
 wise, such further proceedings will be 
 nugatory. Hinde 22. An amended 
 bill must be signed by counsel, when 
 the amendments are separate from the 
 original bill. Webster v. Threlfall, 1 
 Sim. & Stu. 135. The proper course 
 to be pursued, in general, by the de- 
 fendant, where the bill has been 
 irregularly amended, is to apply to 
 the court, by motion, either to have 
 the amended bill taken off the file or 
 to have the amendments expunged. 
 The former motion is applicable to 
 cases where there has been a new 
 engrossment, and the latter is adopted 
 where the amendments have been 
 merely made by interlineation of the 
 old record. 1 Barh. Ch. Pr. 221. An 
 amendment by an omission of a pas- 
 
 sage should be made by striking a line 
 through the part with a pen, not by 
 erasing it. Sinde 22 ; 1 Eoff. Ch. Pr. 
 292; Biky v. Kemmis, 1 Bedtiy 317- 
 The amendments should be served by 
 delivering a copy of them, specifying 
 the interlineations or passages stricken 
 out by the page and line, and any 
 additions annexed to the bill, by the 
 designating letter and the page and 
 lines where they are to be inserted. 
 1 Hojf. Ch. Pr. 292. It has been held 
 that a demurrer may be put in to an 
 amended bill, notwithstanding a de- 
 murrer to the original bill has been 
 previously overruled Bancroft v- 
 Wardour, 2 Bro. C.C. 66. An amended 
 bill takes date from the day it is filed, 
 and if that be after a cross-bill, the 
 latter must be answered first. Scales 
 V. Nichols, 3 Hay. {Term ) 281 -j.Long 
 V. Burton, 2 Atk. 218. Upon a mere 
 amendment of the complainant's bill, 
 no new subpoena is necessary except 
 to bring in new defendants who are 
 made parties by the amendment. 
 Lawrence v Bolton, 3 Paige 294. The 
 amended bill should call on the 
 original defendants to answer the new 
 matter, or on the new parties, if any, 
 to answer both. Pierce v. West's Ei^r, 
 3 Wash. C. C. 354. The original bill 
 must be dismissed as against those 
 defendants not retained before the 
 court as parties to the amended bill. 
 Sheppard v. Osborne, 1 Hogan 126. 
 
PAYMENT OF MONEY INTO COURT. 
 
 137 
 
 PEOCEEDINGS ON THE PART OF DEFENDANT 
 BEFORE REPLICATION. 
 
 Notice of motion for the payment of money into 
 court, upon admissions, (a) 
 
 To 
 
 {Title of cause.) 
 , defendant in the above- stated cause. 
 
 Please take notice, that I shall apply to the Chancellor, at 
 the state-house in Trenton, (or, "at the chancery chambers 
 in the city of ,") on the day of next, {or " in- 
 
 (a) In some cases, the court, upon 
 application of the complainant, will 
 order money in the hands of a de- 
 fendant to be paid into court by him, 
 to abide the event of the suit. The 
 time at which the application for this 
 purpose is usually made, is after the 
 defendant's answer has been put in. 
 But it may be made at any stage of 
 the cause, provided the court is satis- 
 fied that money in which the com- 
 plainant has an interest is in the 
 defendant's hands, who has no equit- 
 able right to it, or that it is in danger 
 of being lost Cases in which the ap- 
 plication for an order is most usually 
 made are upon admission ; in cases of 
 executors and trustees; and vendors 
 and purchasers. 1 Barb. Ch. Fr. 235 ; 
 Jervis v. White, 6 Ves. 737 ; Vann v. 
 Barnett, 2 Bro. O. C. 158. Money will 
 not be ordered to be paid into court, 
 which is not ascertained to be due by 
 an account, or a decree in the cause, 
 or admitted to be due by the answer 
 or other proceedings in the cause. 
 The order will not be granted upon 
 affidavit of the parol admissions of 
 the defendant outside of the suit. 
 McTighe v. Bean, 7 G. E. Or. 81; 
 2 Ban. Ch. Pr., et seq. When it ap- 
 pears by defendant's answer, Boihwell 
 
 V. Bothwell, 2 Sim. & Stu. 217; or 
 upon his examination before the mas- 
 ter, Quarrell v. Beckford, 14 Ves. 177 ; 
 or by the master's report, that money 
 is due, a motion may be made for 
 payment of the money into court. 
 Gordon v. Eothley, 3 Ves. 572. The 
 complainant will not be allowed to 
 make use of affidavits to supply any 
 defect in the answer, the rule being 
 that the order shall be made upon 
 the defendant's admissions alone, to 
 prove the complainant's title; but 
 affidavits will be received to verify 
 collateral facts. It must be admitted 
 that there is a balance actually in the 
 hands of the defendant; though the 
 actual amount of the balance need not 
 be stated. 2 Ban. Gh. Pr. 1780. It 
 was held that money admitted by an 
 executor to be in the hands of his 
 partner, is in his own hands, for the 
 purpose of being ordered to be paid 
 into court. Johnson v. Aston, 1 Sim. 
 & Stu. 73. Where the application is 
 against an executor or trustee, the 
 admission is all that is required. It 
 need not appear that the fund is in 
 danger or insecure. 1 Hoff. Gh. Pr. 
 321 ; Strange v. Harris, 3 Bro. G. G. 
 365 ; Blake v. Blake, 2 Sch. & Lef. 26. 
 He will be required to pay the actual 
 
138 FORMS OF PLEADINGS. 
 
 stant,") at ten o'clock in the forenoon, or as soon thereafter as 
 Counsel can be heard, for an order that * you do pay into this 
 court, in trust in this cause, the sum of dollars, admitted 
 
 by your answer filed in this cause, to be due from you ; and for 
 such further or other order or relief as may be proper in the 
 premises ; which motion will be founded on the bill and answer 
 in this cause. 
 
 Dated, , 18 . {Signatwre of solicitor.) 
 
 Order to pay money into court, (a) 
 {Title of cause.) 
 
 As on page 51 to the t> then, "on reading the bill and 
 answer in this cause : It is, on this, &c., on motion as aforesaid, 
 ordered, that the defendant, , do, on or before the 
 
 day of next, pay to the clerk of this court, in trust in 
 
 this cause, the sum of dollars, admitted by the answer of 
 
 the said defendant to be due from him ; and that when such 
 money is paid in, it be deposited to the credit of this cause, there 
 to remain until the further order of this court." 
 
 balance only into court. Anon., 4 8 Ves. 381. It was held, under the 
 
 Sim. 359; Sosack y. Sogers, Q Paige circumatancesof the case, that a motion 
 
 415. As to cases of vendor and pur- to rescinJ'an order to pay money into 
 
 chaser, see 1 Barb. Oh. Pr. 238. court would not be entertained by the 
 
 Where, in a bill for specific perform- court until the money had been paid 
 
 ance, complainant, who was a non- in. Dacie v. John, 13 Price 117. In 
 
 resident, tendered himself ready to the absence of any statutory regula- 
 
 pay the purchase money to defendant, tion upon the subject, the rule prevails 
 
 and by the answer the latter tendered that money paid into court is a mere 
 
 himself ready to receive it and convey collateral security, and is not to be 
 
 the property according to the agree- taken as a payment to the complaiu- 
 
 ment, on application of defendant, on ant. Clarkson v. De Peyster, Hopk. 
 
 motion, the money was ordered to be 505 ; S. C, on appeal, 2 Wend. 77 ; 
 
 paid into court. Binns v. Mount, 1 Ambrose v. Ambrose, 1 Cox S. G. 194; 
 
 Stew. Eg. 24. Kirwan v. Blake, 1 Hogan 158. Affi- 
 
 (o) In general, only the principal davits were admitted, after answer, to 
 
 sum due from the defendant, and not be read in support of a motion to pay 
 
 the interest, will be ordered paid into purchase money into court. Bradshaw 
 
 court. Wood V. Downes, 1 Ves. & B. v. Bradshaw, 2 Mer. 492. On a bill to 
 
 49. A reasonable time will be given redeem, or on plea of tender, the 
 
 to pay the money into court, and a money must be paid into court, 
 
 certain day for the purpose will be Shields v. Lozear, 7 C. E. Or. 477. 
 
 named in the order. Higgins v. . 
 
OP coNDtrer of cause by dependant. 
 
 139? 
 
 Order to show cause why defendant should not 
 proceed in name of complainant, (a) 
 
 {Title of cause.) 
 
 Order to show cause. 
 
 This matter being opened to the court by , of counsel 
 
 with , defendant in above cause, and it appearing that the 
 
 complainant has made the said defendant a party to the bill of 
 foreclosure in this suit, and that he claims to be an encumbrancer 
 by judgment {or " mortgage," &c.,) upon the lands mentioned 
 and described in complainant's bill subsequent {or " prior ") to 
 the complainant, and that the said defendant has appeared and 
 filed his answer to said bill, on the day of last, and 
 
 it further appearing that the complainant has since that time 
 
 (a) When the complainant, in any 
 hill filed to foreclose a mortgage, 
 makes prior or subsequent encum- 
 brancers parties thereto, and they 
 come in and answer, and the com- 
 plainant then for four months, neg- 
 lects or refuses to proceed, the said 
 defendants, or any of them, may take 
 an order upon the complainant to 
 show cause at any time, on ten days' 
 notice, why the said defendant or de- 
 fendants shall not be allowed to pro- 
 ceed with the cause to decree and 
 execution in his name; and unless 
 good cause be shown to the contrary, 
 an order may be made that said de- 
 fendant or defendants shall be allowed 
 so to proceed with the suit, and the 
 complainant shall not be allowed his 
 costs. Side 28. The design and 
 operation of this rule is to prevent 
 any arrangement betweeen the com- 
 plainant and the mortgagor, operating 
 to delay or defeat the suit, to the 
 prejudice of other encumbrancers who 
 have appeared and answered. No act 
 or agreement of the complainant can 
 interfere with the exercise of the right 
 . of the defendant under this rule. The 
 complainant's costs may be paid in 
 
 full, or he may stipulate to give 
 further time to the mortgagor; the 
 defendant who has answered may, 
 nevertheless, enforce the payment of 
 his demai^d, by means of the suit in- 
 stituted by the complainant. The 
 rule transfers the conduct of the suit 
 to the defendant substituting him in 
 the place of the complainant for the 
 purpose. Young v. Young, 2 G. E. Or. 
 161. In cases where the complainant 
 would have been bound to rule the 
 defendant to answer by the terms of' 
 rule 27, the defendant who has thus 
 assumed the conduct of the suit must 
 proceed according to that rule, against 
 the other defendants, as if the com- 
 plainant had proceeded with the same 
 cause. Ibid. When the cause is con- 
 ducted and the decree taken at the 
 instance of the defendant who has 
 answered, the provision requiring the 
 cause to be set down on bill and 
 answer, where there is neither excep- 
 tion nor replication, (2Je«., "Chan- 
 cery," § 33,) does not apply; his 
 entering the decree is a waiver of his 
 rights and a consent to the decree. 
 Id. 164. 
 
140 FORMS OF PLEADINGS. 
 
 neglected to proceed in said cause : It is, on this day of 
 
 , in the year, &c., ordered, that the said complainant do 
 show cause on the day of next, at o'clock in 
 
 the forenoon, at the state-house in Trenton, {or "at the chancery 
 chambers in the city of ,") why the said defendant should 
 
 not be allowed to proceed with the said cause to decree and 
 execution in the name of the complainant. 
 
 Order to proceed on the above. 
 
 {Title of caiise.) 
 This matter being opened to the court by , of counsel 
 
 with the defendant, , and due proof being made that the 
 
 order issued in above cause on the day of , has 
 
 been duly served upon the ("solicitor of the") complainant, and 
 no cause being shown to the contrary by the complainant : It is 
 thereupon, on this day of , &e., ordered, that the 
 
 said defendant be allowed to proceed with the said cause to 
 decree and execution in the name of complainant, and that the 
 complainant shall not be allowed his costs. 
 
 Order to dismiss bill by complainant.(a) 
 
 {TiUe of cause.) 
 It being suggested to the court, by , of counsel with the 
 
 complainant, that the matters in controversy in the above-stated 
 cause have been settled by the parties, {or, " the complainant 
 applying to dismiss his bill in this cause : ") It is, on this, &c., 
 on motion on behalf of , the said co mplainant, ordered, 
 
 (o) A complainant may, unless he must be a special motion and notice 
 
 sue for the benefit of another person, to the defendants. Rule 15. The dis- 
 
 or is in contempt, at any time before missal is always with costs, except by 
 
 decree, dismiss his bill, with costs. the consent of the defendant. Ibid.; 
 
 Carrington v. Holly, Dick. 281 ; Thomas Fisher v. Quick, 1 Stock. 312 ; Andrews 
 
 V. Thomas, Lilt. 9 ; Bossard y. Lester, v. Ford, 2 Hal. Ch. 488. When the 
 
 2 McCord's Ch. *419 ; Smith v. Smith, defendant was served with notice of 
 
 2 Slack/. 232. The dismissal is of an application to dismiss without costs, 
 
 course Dixon v. Parks, 1 Ves., Jr., and did not appear to oppose the 
 
 402. Unless a replication has been motion, the dismissal was granted with 
 
 filed and the taking of proofs begun costs. Anon., 1 Fes., Jr., 140. 
 by either party, in which case there 
 
DISMISSAL OF BILL. 
 
 141 
 
 that the complainant's said bill be, and the same is, hereby dis- 
 missed, [if the defendant has filed an answer, plea or demurrer,) 
 upon payment of the costs of the defendant to be taxed, (or, 
 "without prejudice.")(o) 
 
 Notice of motion to dismiss bill for want of pros- 
 ecution,(i) ^s on page 137, changing "defendant" to "com- 
 plainant," to the *, then, " the bill of complaint in this cause be 
 dismissed, with costs, for want of prosecution ; " or, if the motion 
 be under Rev,, "Chancery," § 33, state the object of the motion 
 accordingly. 
 
 (o) A voluntary dismissal of a bill 
 by the complainant, or a voluntary 
 dismissal upon any interlocutory pro- 
 ceeding, will not prevent a new bill 
 from being filed. It is not pleadable 
 unless it is a, dismissal by tlie court 
 upon the hearing. But a dismissal of 
 an original bill, on motion of the 
 complainant, is a good bar to a bill of 
 revivor and supplement, or either, 
 founded upon it. 1 Barb. Ch. Pr. 
 228; Brandlyn v. Ord, 1 Aih. 571; 
 Bowden v. Beauchamp, 2 Atk. 82. 
 Dismissal of a bill for want of neces- 
 sary parties should be without preju- 
 dice. Mims V. Mims, 3 /. /. Marsh. 
 105 ; Steele v. Lewis, 1 Monro 49 ; 
 Van Epps y. Van Deusen, 4 Paige 64. 
 The Chancellor has power to dismiss 
 the complainant's bill, without preju- 
 dice, for gross negligence in failing to 
 prepare his suit without showing 
 cause for delay. McDonald v. Logsdon, 
 3 Bibb 229. An order of dismissal, 
 80 far as it respects the parties preju- 
 diced thereby, was vacated after the 
 lapse of three years from the date of 
 the order. Collins v. Taylor, 3 Or. 
 Oh. 163. Whenever any suit or pro- 
 ceeding shall be dismissed, in pursu- 
 ance of the consent or agreement of 
 the parties, no enrollment shall be 
 necessary ; nor shall any fees be taxed 
 therefor ; either party, however, may, 
 
 at his or their own expense, require 
 the same to be enrolled. Bev., " Chan- 
 eery," I 52. 
 
 (6) If the complainant does not file 
 exceptions to the defendant's answer, 
 or a replication, or set the cause down 
 for hearing on bill and answer within 
 thirty days after the expiration of the 
 time limited or granted for filing the 
 answer, his bill will be dismissed, 
 with costs, unless good cause be shown 
 to the contrary. Bev., " Chancery" ^ 
 33. And where a replication has 
 been filed, if the cause shall not be set 
 down for hearing at the next stated 
 term thereafter, the complainant's bill 
 will be dismissed, with costs, unless 
 the court, on just cause and reason- 
 able terms, allow further time for the 
 hearing; and if the hearing be not 
 had within the time so limited or 
 allowed, then the court shall dismiss 
 the bill, with costs ; but if there shall 
 not be fifteen days between the filing 
 of the replication and the next stated 
 term, then the hearing shall be had at 
 the subsequent stated term or at a 
 special term. Bev , " Chancery," § 47. 
 If the complainant shall not attend 
 at the time appointed for the hearing 
 of the cause, his bill shall be dis- 
 missed, with costs Id., I 48. It has 
 been held that the statute {Bex, 
 " Chancery," ? 47,) has rendered the 
 
142 
 
 FORMS OP PLEADINGS. 
 
 Order to dismiss bill for want of prosecution.(a) 
 (IMe of eavse.) 
 
 This matter being opened, &c., and it appearing that due 
 notice has been given to the complainant of this application : 
 It is, &c., on motion as aforesaid, " and on hearing, , 
 
 of counsel with the complainant, in opposition thereto," ordered 
 that the bill of complaint in this cause be and the same is hereby 
 dismissed, with costs. 
 
 English pracliue {see Orders in Chan~ 
 eery, XVIL,) inapplicable in cases 
 where the cbmplainant fails to bring 
 the cause to a hearing at the lirst 
 stated term after the filing of the 
 replication. West v. Paige, 1 Slock. 
 203. The court may, of its own 
 accord, at its discretion, dismiss the 
 bill when it appears on the hearing 
 that the complainant has a complete 
 and adequate remedy at law, notwith- 
 standing the objection was not taken 
 in the pleadings nor noticed at the 
 argument. Chitting v. Dana, 10 O. E. 
 Or. 265. That one defendant puts in 
 a plea, and does not set it down, or the 
 solicitors agree to delay the cause 
 unreasonably, is no excuse for the 
 complainant, upon an application to 
 dismiss the bill for want of prosecu- 
 tion by another defendant who has 
 answered. iWinans v. Walworth, July, 
 1823. 
 
 (a) If a suit be suffered to lie without 
 substantial prosecution for one year, 
 it is considered as abandoned, and a 
 motion may be made on five days' 
 notice to the complainant or his solic- 
 itor to dismiss the bill. Bule 30. This 
 rule can only be taken advantage of 
 by application to the court before 
 the defendant has taken steps which 
 amount to a waiver of the rule. Home 
 Ins. Co. V. Howell, 9 G. E. Gr. 238. 
 The court will not, on motion to dis- 
 
 miss for want of equity, dismiss a bill 
 without going into a full hearing, 
 unless it appear very strongly on the 
 face of the proceedings that the com- 
 plainant has no ground of complaint, 
 or that the court cannot grant the 
 relief prayed. Holman v. Holman, 3 
 Dessaus. 210. Where no relief was 
 prayed for against a defendant, and he 
 was not compellable to answer the 
 prayer for discovery, the bill was dis- 
 missed as to him on demuri-er. Pat- 
 terson V. Patterson, 1 Hayw. 167. A 
 bill was dismissed for want of prose- 
 cution, pending a notice given by the 
 defendant of a motion to dissolve an 
 injunction which the complainant had 
 obtained. Farquharson v. Pitcher, 3 
 Buss. 383. It was held that a motion 
 to dismiss a bill to perpetuate testi- 
 mony for want of prosecution was 
 irregular, and that the proper appli- 
 cation is, that the complainant may 
 proceed within a given tiipe, or may 
 pay the defendant his costs. Wright 
 V. Tatham, 2 Sim. 459. Where a bill 
 is dismissed for want of prosecution, it 
 operates as a discontinuance and does 
 not prevent the bringing of a new bill. 
 McBroom v. Somerviile, 2 Stew. (Ala.) 
 515. Where the defendant gave notice 
 to dismiss, and two days aflewards the 
 complainant obtained an order to 
 amend, the notice to dismiss was never- 
 theless granted. Swinfen v. Swinfen, 3 
 
REPLICATION. 
 
 143 
 
 REPLICATION. 
 
 General replication.(a) 
 
 {Title of cause.) 
 
 The replication of , complainant, to the answer {or 
 
 " answers,") of defendant {or " defendants.") 
 
 Sim. 384. A person named as a de- 
 fendant in the prayer for process may 
 appear and answer, without service of 
 subpoena, and when the time has 
 expired, apply to dismiss the bill for 
 want of prosecution. Sume v. Bab- 
 ington, 1 Sogam 8. 
 
 The dismissal of a bill in chancery 
 is not conclusive against the com- 
 plainant in a court of law, although 
 the bill may have been brought for 
 the same matter. Wright v; De Klyne, 
 1 Pet. C. a 199. A decree of dis- 
 missal may be set aside on the ground 
 of surprise and laches of a solicitor. 
 Boone v. Bidgwaj/s JEi^rs, 12 CM. Or. 
 297. It was held that where both parties 
 had the right to bring the cause to a 
 heai-ing, a motion to dismiss the bill 
 for want of prosecution was irregular. 
 Whitney v. Mayor, &c., 1 Paige 548. 
 
 (a) The form of replication here 
 given is the same in case of a plea. 
 Where the complainant has taken 
 issue upon a plea, by filing a repli- 
 cation thereto, either party may 
 enter the plea for argument at the 
 next or any subsequent term. Bide 
 13. When the complainant conceives 
 the plea to be good, though not true, 
 he may reply to and take issue upon 
 it as in case of an answer. Bev., 
 " Ohaneery," § 29. Every cause in 
 the Court of Chancery shall be deemed 
 to be at issue on the filing of a repli- 
 cation ; and it shall not be necessary 
 
 to issue a subpoena or enter a rule to 
 re-join in any case. Bev., " Ohaneery", 
 ? 40. Only one replication is to be 
 filed in each cause, unless the court 
 otherwise directs. See Dan. Ch. 829. 
 The use of a special replication to 
 an original bill has been discon- 
 tinued. If the complainant wants to 
 avoid the effect of matter pleaded 
 in bar, his proper course is to apply 
 to amend the charging part of his 
 bill. 1 Barb. Ch. Pr. 250 ; McClane 
 V. Shepherd, 6 C. E. Or. 78. By 
 the forty-fifth equity rule of the 
 United States Courts, it is provided 
 that no special replication shall be 
 filed. But if any matter alleged in 
 the answer renders it necessary for the 
 complainant to amend his bill, he 
 paay have leave to amend the same, 
 with or without costs, in the discretion 
 of the court. 
 
 The replication must be filed within 
 thirty days after the expiration of 
 the time limited or granted for filing 
 the answer. Bev., "Ohaneery," § 38. 
 When a replication has been filed and 
 the taking of proofs begun by either 
 party, the complainant shall not be 
 at liberty to dismiss his bill except 
 upon special motion and notice to the 
 defendants, and in any such cause, if 
 the complainant shall fail, within ten 
 days after the expiration of the time 
 to take testimony, to notice the cause 
 for argument, the defendant shall be 
 
144 
 
 FOEMS OF PLEADINGS. 
 
 The replication of , complainant, to the plea of , 
 
 defendant. 
 
 The complainant joins issue on the answer {or "plea") of 
 the defendant. 
 
 (Signature of solicitor.) 
 
 The replication puts the cause at issue, and the parties are required to pro- 
 ceed with their testimony, pursuant to rules Nos. 78 and 80-86. As to testi- 
 mony taken on an issue joined on a plea, see rule 91. 
 
 entitled of course to an order directing 
 the complainant to show cause why 
 the defendant should not be permitted 
 to notice the cause for argument and 
 bring on the hearing thereof at the 
 next stated term ; and if cause be not 
 shown to the contrary, the defendant 
 may be permitted to give notice and 
 bring on the hearing of the cause. 
 Bide 15. If no replication has been 
 filed, the facts stated in the answer 
 must be taken as true on the hearing. 
 But if the counsel on both sides acted 
 under the same misapprehension that 
 a replication had been filed, when in 
 fact it had not, and the evidence in 
 the cause had been taken, the filing of 
 the replication would be regarded as 
 a mere form, and be permitted at the 
 hearing as a, matter of course. Gas- 
 kill V. Sine, 2 Seas. 130. Every alle- 
 gation of the answer which is not 
 directly responsive, but sets forth 
 matter in avoidance or bar, is denied 
 by the general replication, and must 
 be proved aliunde. Lovett v. Demarest, 
 1 Hal. Oh. 113. In a proper case, to 
 prevent injustice, the court will direct 
 a replication to be filed nunc pro tunc. 
 Scott V. Glarkson, 1 Bibb 277 ; Bodney 
 
 V. Hare, Mos. 296 ; Peirce v. West, 1 
 Pet. C. C. 351 ; Evans v. Veysey, McCle. 
 341. The filing of a replication after 
 notice given of a motion to dismiss 
 the bill for failure to file it, is good 
 cause against the motion, but in such 
 case the complainant must pay costs. 
 Oriswold V. Inman, Hopk. 86. If it 
 become necessary, after filing the 
 replication, to amend the bill, a 
 special motion should be made to the 
 court for leave to withdraw the repli- 
 cation and amend. Proof must be 
 made, at the hearing of the motion, 
 that the matter of the proposed 
 amendment is material, and that the 
 complainant could not, with reason- 
 able diligence, have sooner introduced 
 the new matter into his bill 1 Ban. 
 Ch. Pr. 834; Oalanan v. Salway, 
 MeCU. 598 ; S. C, 13 Price 799. A 
 replication to a plea is an admission 
 of its sufficiency in point of equity ; 
 and all the defendant has to do is to 
 prove it, in point of fact. Hughes v. 
 Blake, 6 Wheat. 472; see Flagg v. 
 Bonnell, 2 Stock. 82 ; Davison v. John- 
 son, 1 G. E. Gr. 112; McEwan v. 
 Broadhead, 3 Stock. 129. 
 
EXAMINATION BBFOEE COMMIS8IONEKS. 
 
 145 
 
 TESTIMONY. 
 
 Notice of motion for an order for the examination 
 of witnesses de bene esse, (a) 
 
 (Title of cause.) 
 As in form on page 148 to *, then, "for an order appointing 
 , of , in the of , in the county of 
 
 , and State of , a commissioner to take the testi- 
 
 mony of , a witness in the above-stated cause, residing in 
 
 , in the county of , and State of , on behalf 
 
 of the complainant. 
 
 (Signature of solicitor.) 
 To , esquire, Solicitor of defendant. 
 
 (o) Either party in a civil cause 
 desiring the testimony of any witness 
 who resides out of this state, may, 
 instead of taking his testimony by 
 commission, take the testimony of 
 such witness de bene esse, before any 
 judge of any Supreme, Circuit or Dis- 
 trict C!ourt, or Court of Common Pleas, 
 of the state where such witness is, or 
 before any commissioner of deeds, Ac, 
 appointed by the governor of this 
 state, resident in the state where such 
 witness is, or before a commissioner 
 specially appointed for that purpose 
 by the court in which such action is 
 pending. Notice in writing of the 
 time and place of such examination 
 and of the names of the witnesses to 
 be examined, must be given to the 
 adverse party or his solicitor, which 
 notice must be served, not less than at 
 the rate of one day (Sundays excluded) 
 for every fifty miles of travel ; in all 
 cases, at least ten days' notice (ex- 
 clusive of Sundays) must be given. 
 Where the witness whose testimony is 
 desired resides in any foreign state or 
 kingdom or on the Pacific coast, the 
 court must direct what notice shall be 
 
 given. The officer taking the testi- 
 mony must first take an oath fairly 
 and impartially to take the same, 
 before some person authorized to ad- 
 minister an oath in the place where 
 he resides. The oath to be taken by 
 the witness must be administered 
 according to the laws of this state. 
 The interrogatories and the answers 
 thereto must be reduced to writing 
 by the officer taking the testimony 
 and subscribed in his presence by the 
 deponent, and must be certified, sealed 
 up, endorsed and directed in the same 
 manner as is required in cases where 
 a commission has issued. This pro- 
 vision applies to any proceeding in 
 the Court of Chancery. Bev., " Evi- 
 dence," II 38, 39. The examination 
 of a witness de bene esse takes place 
 where there is danger of losing his 
 testimony from death, by reason of old 
 age or dangerous illness, or his ab- 
 sence from the state. Rev., "Evi- 
 dence," i 25 ; or in the case of his 
 non-residence. Id., H 29, 38. In such 
 cases, the court, to prevent the party 
 from being deprived of the benefit of 
 his evidence, will permit his deposi- 
 
146 
 
 FORMS OF PLEADINGS. 
 
 Order to examine a witness de bene esse. 
 {Title of cause.) 
 
 Upon opening this matter, &c., and it appearing that due 
 notice of this application has been served upon the complainant 
 {or " defendant," or " his solicitor," as the case may be ;) It is, 
 on this, &c., ordered, that , of , in the county of 
 
 , and State of , be and he is hereby appointed a 
 
 commissioner to take the testimony of , of , as a 
 
 witness in this cause, de bene esse; and that , defendant in 
 
 this cause, attend and put interrogatories, if he shall see fit. 
 
 Notice of examination of witnesses de bene esse.(a) 
 
 {Title of cause.) 
 Sir — Take notice, that , of , will be examined as 
 
 a witness in this cause, de bene esse, at the office of , in 
 
 tion to be taken before the cause is at 
 issue, in order that if the witness die, 
 or he be not forthcoming to be exam- 
 ined after issue joined, the depositions 
 so taken may be used at the hearing. 
 Sinde 368; Leonard v. Sutphen, 3 
 Hid. Ch. 545 ; Ogden v. Robertson, 3 
 Gt. 124. An order for the examina- 
 tion of a witness de bene esse on the 
 part of complainant will be made, 
 though no answer has been put in, if 
 the necessity for taking his deposition 
 is satisfactorily shown by affidavit. 
 Fart V. Ragusin, 2 Johns. Ch. 146; 
 Byrne v. Byrne, 2 Mol. 440; Brown 
 V. Greenly, Dick. 504. Parties intend- 
 ing to apply for a, commission to 
 examine a witness, must give eight 
 (by rule, five) days' notice of such ap- 
 plication to the party or his solicitor, 
 and of the name of the witness, and of 
 his place of residence, and also of the 
 name of the person he intends to 
 nominate as commissioner, and must 
 also serve with the notice a copy of 
 the interrogatories intended to be 
 annexed to the commission. Reo., 
 "Evidence," § 31, and rule 141. The 
 
 issuing of the commission may be 
 ordered and the interrogatories ap- 
 proved upon shorter notice, by con- 
 sent of parties or in the discretion of 
 the court. Id., § 32. The officer 
 before whom the deposition is to be 
 taken, under J 25, must cause notice 
 to be given to the adverse party or his 
 solicitor immediately or at such short 
 day as the case, in the opinion of the 
 said officer, may require, to attend, 
 and be present at the taking thereof, 
 and put questions, and cross-examine, 
 if he shall think fit. Id., I 25. For 
 directions as to the manner of taking 
 and filing such depositions, and trans- 
 mitting them to the court, see Id., ?? 
 27, 28. 
 
 (o) A commissioner, appointed under 
 Rev., " Evidence," I 38, has no power 
 to adjourn the examination, but only 
 to continue it when once commenced, 
 from day to day, while actually pro- 
 ceeding with the examination of wit- 
 nesses. An adjournment does not 
 supply the place of the notice required 
 by the statute. Parker v. Hayes, 8 C. 
 E. Qr. 186. 
 
EXAMINATION BEFORE C0MMI8SI0NEES. 147 
 
 the citj of , {or as the case may be,) on the day of 
 
 instant, at ten o'clock A. M., before , a commis- 
 
 sioner appointed by an order of this court, dated the day 
 
 of instant. 
 
 Yours, &c., 
 
 {Signature of solicitor.) 
 To , esquire, Sol'r of deft or compl't. 
 
 Affidavit to obtain a commission to examine wit- 
 nesses de bene esse out of this state, (a) 
 
 {Title of cause.) 
 State of , \ 
 
 county of , J " 
 
 , one of the defendants, {or " the complainant ") in this 
 cause, being duly sworn, deposes and says — That is a 
 
 material witness in this cause, and * resides in , in the 
 
 county of , and State of , {or after *, " is out of 
 
 this state,") and that deponent cannot safely proceed to a hear- 
 ing of this cause without the benefit of his testimony. 
 
 {Jurat.) {Signatwe.) 
 
 (a) If a material witness in any is at issue. In such case a commis- 
 ^ction or proceeding of a civil nature sion for the examination of a witness 
 in any of the courts of this state reside out of this state (whether his resi- 
 out of the state, it shall be lawful for dence be in the state or not,) may be 
 the court, in term or vacation, on applied for, in term or vacation, upon 
 affidavit or proof thereof to the satis- affidavit stating that the witness is 
 faction of the court, and on such terms material, and that the party applying 
 as the court may direct, to award and cannot safely proceed to a hearing of 
 issue, under the seal of the court, a the cause without his testimony ; and 
 commission to such person or persons upon giving five days' notice of the 
 as the court may think fit, authorizing intended application, with the name 
 him or them to examine, de bene esse, or names of the witnesses, their resi- 
 the said witness on oath or affirma- dence, and the name or ilames, addi- 
 tion. Rev., " Evidence," ?. 29. In tions and residences of such person or 
 cases where the application is not to persons as the party applying intends 
 examine witnesses de bene esse, a com- to nominate as commissioner or com- 
 mission can issue only after the cause missioners. Rule 96. 
 
148 FORMS OF PLEADINGS. 
 
 Notice of motion for a commission to examine a 
 
 witness.(o) 
 
 (Title of cause.) 
 
 Take notice, that I shall apply to the Chancellor of this state, 
 on Tuesday, (or " Monday," if at chambers,) the day of 
 
 next, {or " instant,") at ten o'clock in the forenoon, or 
 as soon thereafter as counsel can be heard thereon, at the 
 State-house in the city of Trenton, (or, "at the chancery 
 chambers in the city of *,") for an order that ** a com- 
 
 mission issue, under the seal of this court, directed to , 
 
 of , as commissioner to take the examination of , 
 
 a witness in this cause, residing at , in , upon the 
 
 accompanying interrogatories. 
 
 Order for commission to examine witnesses de 
 
 bene esse.(6) 
 
 {Title of cause.) 
 
 As on page 36 to *, then, by affidavit, to the satisfaction of the 
 Chancellor, that is a material witness for complainant 
 
 {or " defendant ") in this cause, and that the said resides 
 
 at , in the county of , in the State of , {or 
 
 (a)* A party intending to apply for (6) If the party to whom notice is- 
 
 a commission to examine a witness or given, as mentioned in rule 96, intend 
 
 witnesses in any cause, shall give to ' to join in the commission, and to 
 
 the party or to his solicitor, if he ap- name any other commissioners, he 
 
 pears by solicitor, five days' notice of shall give notice to the adverse party 
 
 such application, and of the name or two days before the intended appli- 
 
 names of the witness or witnesses, to cation, and of the name or names, 
 
 be examined, and of the place of his additions and residence of the persons 
 
 or their residence, and also of the whom he proposes for commissioners ;. 
 
 name or names of the person or per- the Chancellor will appoint the com- 
 
 sons whom the party applying intends missioners to execute the commission, 
 
 to nominate as commissioners, apd and the party first applying for the 
 
 shall serve therewith a copy of the commission shall sue out and forward 
 
 interrogatories intended to be annexed the same ;• but if he shall unreason- 
 
 to the commission, in order that the ably delay so to do, the other party 
 
 adverse party may examine the same may forward and cause it to be exe- 
 
 and submit cross-interrogatories, if he cuted and returned. Mule 97. By the 
 
 thinks proper. Bev., " Evidence,'' § English practice, depositions taken de 
 
 31 ; rule 96 ; Wilson v. Cornell, 1 South, bene esse can never be used, except for 
 
 *117. the purpose of supplying the want of 
 
EXAMINATION BEFOEE COMMISSIONEE8. 
 
 149 
 
 •" in England," or as the ease may be,) and that the said com- 
 plainant cannot safely proceed to the hearing of this cause with- 
 out the benefit of his testimony : It is, on this, &c., ordered, 
 that a commission issue out of, and under the seal of this court, 
 directed to , of , in the county of , and State 
 
 of , authorizing him to examine, de bene esse, the said 
 
 witness above named, on oath or affirmation, upon the inter- 
 rogatories annexed to said commission, and to reduce such 
 examination to writing, and to return the same, annexed to the 
 said commission, into this court, on or before the day of 
 
 next.(a) 
 
 an examination-in-chief. If the wit- 
 ness is alive or in the state, he must be 
 examined-in-chief, and proof should 
 be made, at the hearing, to the satis- 
 faction of the Chancellor, of the death 
 or absence of the witness when tJie 
 proofs-in-chief were taken. Cann v. 
 Oann, 1 P. Wms. 567 ; Hinde 368, 387. 
 By statute, in New Jersey, the exami- 
 nation of any witness by commission 
 or deposition taken, returned and 
 filed, as provided for in the act, {Bev., 
 "Evidence," p. 378,) or a duly-certified 
 copy thereof, shall be as competent 
 evidence in the cause in which it shall 
 be taken, as if such witness had been 
 examined in open court on the hear- 
 ing or trial thereof, proof being first 
 made to the satisfaction of the court 
 that such witness resides, or is out of 
 the state, or is dead, or by reason of 
 age, sickness or bodily infirmity is 
 unable to attend the court, and if the 
 testimony be taken under the thirty- 
 eighth section of the said act, on proof 
 being made that notice of the taking 
 thereof was given as therein pre- 
 ^scribed. Bev., "Evidence," ? 42 ; Law- 
 rence V. Finch, 2 C. E. Gr. 235. If 
 the deposition be admitted in evidence 
 ..at the hearing of the cause, the ab- 
 
 sence of the witness from the state at 
 the time of the hearing will be pre- 
 sumed, unless the contrary appear. 
 See Burley v. Kitchell, Spen. 305. The 
 depositions shall be subject to objec- 
 tions as to competency, &c., but shall 
 not be excepted to or excluded for 
 informality, if the court in which it is 
 ofiered shall be satisfied that the testi- 
 mony of the witness has been fairly 
 and truly taken and returned. Bev., 
 "Evidence," § 43. If the evidence 
 was competent when given, the death 
 of the witness or of the other party 
 before the trial will not exclude it. 
 Lawrence v. Finch, sv/pra. 
 
 (a) Every order for a commission 
 shall fix a time for the return of the 
 commission, and it shall not be used 
 if not returned within such time, 
 unless the time be extended by an 
 order for that purpose. Rule 97. The 
 party requiring such examination or 
 deposition shall be at the sole expense 
 thereof, and shall not have any allow- 
 ance for the same in the taxation of 
 costs. Bev., "Evidence,'' ? 44. The 
 taking out of a commission for the 
 examination of witnesses shall not be 
 a stay of proceedings in the cause. 
 Id., I 46 ; StoTces v. Qarr, 2 Harr. 451. 
 
150 POBMS OF PLBADIKG8. 
 
 Commission for examination of witnesses out of 
 
 the state.(a) New Jersey, ss. — The State of New Jersey to 
 
 , of , in the county of , and State of 
 
 — Greeting : 
 
 Know ye, that we, in confidence of your prudence and 
 
 fidelity, have appointed you, and by these presents do 
 [l. s.j give unto you, full power and authority diligently to 
 
 examine and , of , in the county of , 
 
 in , [upon certain interrogatories, to be exhibited to you,] 
 
 " as well " on the part of the complainant, , "as upon the 
 
 part of the defendants, and , or either of them ; "' 
 
 and therefore we command you, that at certain days and places, 
 to be appointed by you for that purpose, [having given due 
 notice of such examination to the solicitor of the opposite party,] 
 you do cause the said witnesses to come before you, and then 
 and there examine each of them [upon the said interrogatories,], 
 on their respective corporal oath's or affirmations, first taken 
 before you, and that you do take such their examination and 
 cause the same to be reduced to writing and signed by said wit- 
 nesses and by yourself; and when you have so taken them, you 
 are to send them to us, in our Court of Chancery, without delay, 
 closed up under your seal, distinctly and plainly set, [together 
 with the said interrogatories,] and this writ. And we further 
 command you, before you act in or be present at the swearing or 
 examining of any witness or witnesses, you do take the oath 
 specified in the schedule hereto annexed, before some person 
 competent to administer the same. 
 
 (a) The name (jf every witness to shall be furnished six days, and copies- 
 be examined by virtue of the commis- of the cross-interrogatories two days 
 sion must be inserted therein, and the before the time of submitting the same 
 interrogatories to be administered to to the Chancellor for his approval;- 
 the witness having been first drawn and notice of the time and place of 
 and signed by the parties or their such submission shall be served with> 
 counsel, annexed to the commission ; the interrogatories, at which time and 
 and copies of the interrogatories fur- place the cross-interrogatories shall 
 nished to the opposite party, i. e., also be submitted. J2«ie 98; Bev.,. 
 copies of all direct interrogatories "Evidence," I 30. 
 
EXAMINATION BEFOEE C0MMISSI0NEE8. 151 
 
 Witness , Chancellor of the State of New Jersey, at 
 
 Trenton, this day of , in the year of our Lord one 
 
 thousand eight hundred and 
 
 Clerk. 
 
 Commissioner's oath.(a) I do swear, [or, being conscien- 
 tiously scrupulous of taking an oath, do solemnly, sincerely and 
 truly declare and affirm,] that I will faithfully, fairly and im- 
 partially execute the annexed commission to the best of my skill 
 and knowledge [so help me God.] 
 
 {Signature of commissioners.) 
 
 Sworn (or affirmed) and subscribed before me, at , in 
 
 the county of , a ■ for said county, this day of 
 
 ,18 . 
 
 Directions for the execution of a commission by 
 commissioners. 
 
 1. The commissioner to whom the commission is delivered 
 should keep it, unopened, until the day of attendance, and give 
 six days' notice, in writing, of the time and place of executing 
 it to all the other commissioners, if there be more than one.(6) 
 
 2, The commissioners, before they enter upon their duties, 
 must take an oath or affirmation (see form of oath above,) faith- 
 fully, fairly and impartially to execute the commission, before 
 any person lawfully authorized to administer an oath or affir- 
 mation in the state, territory or kingdom where the commis- 
 sioners reside or may be at the time.(c) 
 
 (o) The commissioner or commis- may be taken before any person law- 
 
 sioners appointed under the statute or fully authorized to administer an oath 
 
 under the general power or authority or afBrmation in the state, territory 
 
 of the Court of Chancery, or such of or kingdom where the said commis- 
 
 them as shall act, shall, before they sioner or commissioners reside or may 
 
 enter upon their duties, take an oath be at the time. Bev., "Evidence,'' ? 
 
 or aflBrmation faithfully, fairly and 33 ; Lawrence v. Finch, supra. 
 impartially to execute the said com- (6) Hinde 234. 
 
 mission ; which oath or affirmation (c) Rev., "Evidence" ^ 33. 
 
152 FORMS OF PLEADINGS. 
 
 3. On the day appointed, those who attend will proceed to 
 execute the commission ; and in case any do not attend, a minute 
 should be made, at the head of the depositions, to the following 
 effect: We {or "I") certify that on , the day of 
 
 , 18 , at , being the day and place appointed for 
 
 executing the commission to us {or " me ") directed, we {or "I") 
 attended to execute the same, and that , named in such 
 
 commission, neglected to attend, due notice of the said time and 
 place having been given him, as appears by the affidavit of 
 
 hereto annexed. 
 
 4. When one or more commissioners are named in the com- 
 mission on behalf of the adverse party, in addition to those 
 named on the part of the party applying for the commission, 
 two commissioners may act, if the rest do not attend. (a) 
 
 5. The oath to be administered, unless the witness be of a 
 religion other than the Christian, is as follows — the witness lay- 
 ing his hand on and kissing the Book of the Gospels :{b) 
 
 " You do swear, that the answers given by you to the inter- 
 rogatories which shall be proposed to you, shall be the truth, 
 the whole truth, and nothing but the truth, so help you God ? " 
 ( Or, if the witness desire it, he may be sworn as follows — holding 
 up his hand instead of as above : " You do swear, by the ever- 
 living God, that the answers," &c., conclude as in preceding 
 /orm.)(c) 
 
 If the witness declare that he is conscientiously scrupulous of 
 taking an oath, then as follows : " I, , do solemnly, sin- 
 
 cerely and truly declare and affirm," &c., {conclude as above, 
 omitting the words, " so help me God." Or, if such person shall 
 choose to declare : " 1, , do declare, in the presence of 
 
 Almighty God, the witness of the truth of what I say — ")(d) 
 
 (a) Id., I 29. must be made according to the form 
 
 (6) Rev., "Oaths of Public Officers," and solemnities of the Jewish religion. 
 
 2 23. Newman v. Newman, 3 Hal. Oh. 26 ; 1 
 
 (c) Id., U 22, 23. Vernon 263. 
 
 (d) Id., J 26. The oath of a Jew 
 
EXAMINATION BEFORE COMMISSIONEBS. 153 
 
 6. The commissioners will cause the examination of each wit- 
 ness to be reduced to writing, and to be subscribed by him ; and 
 the commissioners who are present shall also sign the same, (a) 
 
 7. The heading or title of the depositions is as follows : 
 ^' Depositions of witnesses produced, sworn {or " affirmed ") and 
 examined the day of , 18 , at , under and 
 by virtue of a commission issued out of the Court of Chancery 
 of New Jersey, in a certain cause therein depending, wherein 
 
 is complainant, and and others are defendants. 
 
 , of the of , in the State of , a wit- 
 
 ness produced on the part of the , being duly sworn {or 
 
 " affirmed,") deposes and says : 
 
 First. — To the first interrogatory, he says : {and so on through 
 the direct-interrogatories.) 
 
 To the first cross- interrogatory, he says : {and so on through 
 the cross-interrogatories.) 
 
 When the deposition is finished, it should be subscribed by 
 the witne8S,(5) and certified in the following form : 
 
 "Examination taken, reduced to writ- 
 ing, and sworn, this , day of , ^ {Signature of witness.) 
 before — " {Signature of comm'rs.) 
 
 t-1 
 
 8. If any exhibits are produced and proved before the com- 
 missioners, they shall be annexed to the depositions to which 
 they relate, and shall be certified by the comfmissioners, or, if 
 requested by the party producing the exhibit, they will mark it 
 as an exhibit in the suit, and return it to the party ofi^ering it.(e) 
 
 9. The commissioners will endorse on the back of the com- 
 mission the following return : " The execution of the foregoing 
 commission appears by the depositions and exhibits hereunto 
 annexed." {Signatures of commissioners.) 
 
 (o) Bev., "Evidence,'' § 34. Depo- same, and subscribed by the deponent 
 
 sitions de bene esse, taken under the in his presence. Id., § 38. 
 thirty-eighth section, must be reduced (6) Id., \ 27. 
 
 to writing by the officer taking the (c) Id., § 40. 
 
154 FORMS OP PLEADINGS. 
 
 10. The acting commissioners will annex the interrogatories, 
 depositions and exhibits to the commission, and close up the same 
 ander their hands and seals, or under the hands and seals of any 
 two of them, (usually done by sealing the envelope and writing 
 the commissioners' names across the seals,) and direct the same 
 to the Chancellor, at Trenton. If the package is to be sent by 
 mail, the commissioners may place the same in any post-office, 
 certifying thereon the time when, and the post-office in which 
 the same may be so placed, as follows: " Deposited in the post- 
 office at , this day of , 18 , by us." 
 
 (J8ignaiures.)(a) 
 
 11. It is lawful for the commissioners to deliver the commis- 
 sion and return closed up and directed as aforesaid, to the party 
 in the commission, his attorney or agent, who shall deliver the 
 same to the Chancellor ; in which case the person delivering the 
 package will be required tojmake oath in the following form : 
 " That he received the said commission and return sealed up, 
 from the hands of the said commissioners, at , on the 
 
 day of J 18 , and that the same has not been 
 
 opened or altered since he received it."(6) 
 
 12. In the case of a commission which has been executed in 
 any foreign state, nation or kingdom, it may be transmitted to 
 the party on whose application it was issued, his agent or attor- 
 ney in the United States, who will deliver the same to the 
 Chancellor or the clerk of the court, making oath or affirmation 
 when and how he received it, and also " and that he verily 
 believes that it has not been opened or altered since it was closed 
 up and sealed as aforesaid."(c) 
 
 13. If the commission and return have been received by mail, 
 the Chancellor or clerk, upon being satisfied that it has not been 
 opened or altered since it was closed up and sealed, will open 
 the same, and endorse thereon: "This packet received this 
 
 day of , sealed up, from the postmaster at , 
 
 (a) Id., ? 35. (c) Id., § 37. 
 
 lb) Bev., "Evidence," § 36. 
 
LETTEBS ROGATORY. 
 
 15& 
 
 and opened by me," sign it, and immediately file the 8ame.(a) 
 If the packet shall be delivered by the party, his agent or 
 attorney, the endorsement will be made accordingly, and the 
 affidavit of the messenger will also be filed with the commission 
 and return. (6) 
 
 Letters rogatory.(e) 
 
 The State of New Jersey to — Greeting : 
 
 Whereas, a certain suit is pending in our Court of Chancery, 
 
 in which is complainant and is defendant, 
 
 [l. s.] and it has been suggested to us that there are witnesses 
 
 residing within your jurisdiction without whose testi- 
 mony justice cannot be completely done between the said 
 parties, we therefore request you, that in furtherance of justice,^ 
 you will, by the proper and usual process of your court, cause 
 such witness or witnesses as shall be named or pointed out to 
 
 (o) Id., § 35. 
 
 (6) Id., I 37. 
 
 (c) By law in this state it is pro- 
 vided that in case a commission issued 
 out of any court of the United States 
 or of any state or territory * * shall 
 be directed to any person in this state 
 authorizing him to examine or take 
 the deposition of any witness named 
 in such commission, and the person to 
 be examined under such commission 
 shall refuse to attend and give testi- 
 mony before such commissioner, any 
 justice of the Supreme Court of this 
 state may, upon application made to 
 him by or on behalf of such commis- 
 sioner, and upon proof being made of 
 such refusal, make an order awarding 
 process of subpoena out of the said 
 court for such witness to appear and 
 testify before such commissioner, and 
 upon filing such order in the clerk's 
 ofSce of the said Supreme Court, it 
 shall be the duty of the said clerk to 
 issue process of subpoena under the 
 seal of said court requiring such wit- 
 
 ness to appear and testify before such 
 commissioner. Rev., "Evidence," § 49. 
 The letters rogatory are directed to 
 any judge or tribunal having jurisdic- 
 tion of civil causes in the state or 
 foreign country where the witnesses 
 are. A special application must be 
 made to the court where the suit is 
 pending, for such letters. 
 
 Although statutes similar to the 
 above doubtless exist in most of the 
 United States, it is assumed that in 
 case there was no such statute, such 
 letters would issue and be recognized 
 by comity. The letters, under the 
 seal of the Court of Chancery, to- 
 gether with the commission and in- 
 terrogatories annexed, should be pre- 
 sented to the judge or tribunal to 
 which letters are directed, who could 
 on proper application make order 
 requiring the attendance of the wit- 
 nesses before the commissionei: named 
 in the commission. The practice is 
 derived from the civil law. 
 
156 POEMS OF PLEADINGS. 
 
 you by the said parties, or either of them, to come before you or 
 
 some competent person by you for that purpose to be appointed 
 
 and authorized, at a precise time and place by yon to be fixed, 
 
 and there to answer on their oaths or affirmations to the several 
 
 interrogatories hereto annexed ; and that you Will cause their 
 
 depositions to be committed to writing and returned to us under 
 
 cover duly closed and sealed up, together with these presents. 
 
 And we shall be ready to do the same for you in a similar case 
 
 when required. 
 
 Witness , our Chancellor, at the city of Trenton, (date.) 
 
 fa- J r /• -J \ (8iqnaiii/re of clerk.) 
 
 {/Signature of solicitor.) ^ ^ ' ' 
 
 Notice by part of the commissioners to the 
 
 others, (a) 
 
 {Title of cause.) 
 
 The subscriber having received a commission, issuing out of 
 and under the seal of the Court of Chancery of the State of 
 New Jersey, directed to us and yourselves as commissioners for 
 the examination of witnesses in a certain cause depending in 
 said court, wherein is complainant, and is defend- 
 
 ant, hereby give you notice that we shall proceed to execute such 
 commission on the part of the complainant {or " defendant,") on 
 the day of next, {or " instant,") at , in , 
 
 at o'clock in the forenoon. 
 
 {Signatures of commissioners.) 
 
 Dated ,18 . 
 
 To and , esquires. 
 
 Subpoena ad testiflcandum.(6) 
 
 The State of New Jersey to — Greeting : 
 
 For certain reasons, offered before us in our Court of Chan- 
 cery, we command you that you personally be and 
 [l. s] appear before , one of the masters and examiners 
 
 (a) By the English practice the it is directed, and keep it unopened 
 
 commissioner or 'commissioners to until the day of attendance specified 
 
 whom the commission is delivered in the notice. Hinde 334, 362. 
 must give six days' notice, in writing, (6) In order to compel the attend- 
 
 of the time and place of executing it ance of witnesses who reside in the 
 
 to the other commissioners to whom state before the examiners of the 
 
SUBPCENA TO TESTIFY. 
 
 15T 
 
 in our Court of Chancery, at the house of , in , 
 
 in the county of , on the day of next, 
 
 at o'clock in the forenoon, to give evidence in a cer- 
 
 tain cause now depending in our said Court of Chancery, 
 wherein is complainant, and is defendant. {In case 
 
 the vntness is required to bring with him any written paper in his 
 possession, say here, "and that you then and there produce," 
 naming the domiment or paper required.) Hereof fail not, under 
 the penalty of two hundred dollars. 
 
 Witness , our Chancellor, at Trenton, the day 
 
 of , in the year of our Lord eighteen hundred and 
 
 Clerk 
 Solicitor. 
 
 Order for witness to show cause for disobeying 
 subpcBna.(a) 
 
 {Title of cause.) 
 
 Upon reading and filing the affidavit of , whereby it 
 
 appears that a subpoena ad testificandum was duly served upon 
 
 court, for the purpose of giving evi- 
 dence in a cause depending in the 
 court, a subpoena may be issued by the 
 clerk, upon request of any complain- 
 ant or defendant, or his solicitor, with 
 a blank for the names of the wit- 
 nesses, to be filled up by the party 
 procuring the same, as occasion may 
 require, commanding the attendance 
 of the witnesses before the examiner 
 therein named, at the time and place 
 therein expressed ; and the names of 
 any number of witnesses may be in- 
 serted in the same subpoena. Sule 
 94. The subpoena is served by ex- 
 hibiting to the witness the original 
 writ, under the seal of the court, de- 
 livering to him a copy, and paying or 
 tendering to him the fee allowed by 
 law. See Having v. Kauffmam, 2 Beas. 
 397 ; Sev., "Evidence," I 13. 
 
 (a) If any person, on whom lawful 
 process shall have been duly served to 
 testify, depose or give evidence con- 
 
 cerning any cause or matter pending 
 in any court of this state, and to whom 
 shall have been paid or tendered, at 
 the time of such service, fifty cents,, 
 if he is to attend in the county, and 
 one dollar if he is to attend out of the 
 county, shall not appear according to 
 the command of said process, having 
 no lawful or reasonable excuse for 
 such default, he shall, for every such 
 ofl^ence, forfeit to the party aggrieved, 
 any sum not exceeding fifty dollars, to 
 be ascertained and adjudged' by the 
 court, and shall also pay to the party 
 damages, &c., and also be punishable 
 as for a contempt of the court out of 
 which process shall issue. Rev., "Evi- 
 dence" § 13 ; Murray v. Elston, 8 C. 
 E. Or. 212; Ogden v. Gibbons, 2 
 South. *532; Slate v. Trumbull, 1 
 South. *130. As to the penalty for 
 the contempt, see Bev, "Chancery," 
 2103. 
 
158 FOEMS OF PliEADINGS. 
 
 , on the day of instant, whereby he was 
 
 required to appear before , one of the examiners of this 
 
 court, on the day of , to testify on the part of the 
 
 ; and that the said has wholly neglected to attend, 
 
 as therein required : It is, on, &c., on motion, &c., ordered, that 
 the said show cause before the Chancellor, at the state- 
 
 house, in Trenton, on Tuesday, the day of next, 
 
 why an attachment should not issue against him, and he be 
 punished for his alleged misconduct in disobeying such subpoena. 
 And it is further ordered, that a copy of said affidavit and of 
 this order be served on the said , personally, within 
 
 days from the date hereof. 
 
 Affidavit for examination of domestic witness 
 under section 25.(a) 
 
 {Title of oatise.) 
 State of New Jersey, \ 
 
 county of , f ' 
 
 A B, the complainant in said cause, being duly sworn, deposes 
 and says, that E F, of the city of , in this state, is of the 
 
 (a) If any material witness in an Any material witness of the de- 
 ;action or suit of a civil nature in any scription aforesaid being in this state 
 of the courts of this state be in this . may be compelled to appear and be 
 state, but is ancient or very infirm, or examined before any of the said 
 is sick or is about to go out of this officers, in the same manner and 
 state, the deposition of such witness under the same penalties as if sub- 
 may, at the option of either party, be poenaed to appear and testify in the 
 ■taken de bene esse before any justice of court wherein the said action is pend- 
 the Supreme Court, or judge of the ing, and shall be allowed compensa- 
 ■Court of Common Pleas, or Supreme tion for his time and attendance at the 
 Court commissioner or master in same rate as if he had personally 
 chancery ; provided, that the officer appeared and given testimony in the 
 before whom the deposition is to be cause before the court in which it is 
 taken shall cause notice to be given to pending. Id., § 26. 
 the adverse party immediately, or at Every person deposing as aforesaid 
 such short day as the case, in the shall be sworn or affirmed to testify 
 opinion ofthe said officer, may require, the whole truth, and shall subscribe 
 to attend and be present at the taking the testimony by him given after the 
 thereof, and to put questions and same shall be reduced to writing, 
 cross-examine if he shall think fit. which shall be done only by the 
 Jtev., "Evidence," I 25. officer taking the deposition or by 
 
DEPOSITIONS BEFORE EXAMINEES. 
 
 159 
 
 age of seventy years and upwards, and is very infirm {or as the 
 case may be,) and is a material witness for the complainant in 
 the above- entitled cause. 
 
 (Jurat.) {Signature.) 
 
 Notice of examination of domestic witness under 
 section 25. 
 
 {Title of cause.) 
 
 Sir — Take notice, that the deposition of E F, of , will 
 
 be taken de bene esse before the subscriber, one of the masters in 
 chancery of the State of New Jersey, pursuant to the statute in 
 such case made and provided, at {place,) on {day and hour,) at 
 which time and place you are to attend and be present at the 
 taking thereof, and to put questions and cross-examine, if you 
 shall think fit. 
 
 {Signature of master.) 
 To , defendant. 
 
 the deponent in his presence; and 
 the deposition so taken shall be 
 retained by such officer until he 
 deliver the same, together, with a 
 certificate of the reasons of its being 
 taken and of the notice, if any was 
 given, to the adverse party with his 
 own hand, to a judge or the clerk of 
 the court for which it is taken ; or the 
 said deposition shall be by the said 
 officer sealed up, directed and trans- 
 mitted, either by mail or private 
 messenger, to such judge or clerk, 
 who shall open and immediately file 
 the same in the office of the said 
 clerk, there to remain as aforesaid. 
 Id., § 27. 
 
 The person by whom such, depo- 
 sition shall be transmitted to the judge 
 or clerk * * shall make oath or 
 affirmation that he received the same 
 sealed up from the hands of the officer 
 by whom it was taken, designating 
 
 the time and place when and where 
 received, and that the same has not 
 been opened or altered since he so 
 received it. Id., ? 28. 
 
 A notice of taking a deposition 
 under the twenty-fifth section must be 
 served on the party, and not on his 
 solicitor in the cause. Arnold v. 
 Menshaw, 6 Sdtst. *317. 
 
 The deposition of a domestic wit- 
 ness can only be taken under section 
 "25 ; and the taking of depositions by 
 commission, on interrogatories and 
 cross-interrogatories, is only permissi- 
 ble where the witness resides out of 
 the state, and the deposition may be 
 taken during the trial of the cause. 
 Johnson v. Arnwine, 13 Vr. 460. 
 
 A certificate of the master that the 
 witness was duly sworn is sufficient ; 
 the cautioning need not appear on the 
 face of the depositions. N. J. Express 
 Co. V. NicUls, 3 Vr. 166. 
 
160 FORMS OF PLEADINGS. 
 
 {Title of cause.) 
 Deposition of E F, of, &c., in a cause depending in the Court 
 of Chancery of the State of New Jersey, wherein is com- 
 
 plainant and is defendant, taken at , on the 
 
 day of , &c., before me, , one of the masters of the 
 
 isaid court, in the presence of , of counsel with the com- 
 
 plainant, and of , of counsel with the defendant, pursuant 
 
 to the statute in such case made and provided. 
 
 {Signature of master.) 
 
 E F, of, &c., being duly sworn, deposes and says — 
 See forms of oath to he administered to witnesses. * 
 
 {Add certificate of master.) 
 
 Notice of taking depositions within the state.(a) 
 
 {Title of cause.) 
 
 Sir — Take notice, that the depositions of witnesses will be 
 taken in this cause, on behalf of the , at the house of 
 
 (o) When any cause shall be at mence taking testimony on his part, 
 
 issue, and the interrogatories exhibited if any he has, and shall conclude the 
 
 to the complainant, if any, answered, same in thirty days, and declare when 
 
 each party, the complainant first, and the same is concluded. JRuie 81. 
 
 then the defendant, shall proceed to When issue shall be joined on a plea, 
 
 take and complete the testimony on the defendant shall begin taking testi- 
 
 his part before an examiner, by ses- mony, and the same shall then pro- 
 
 sions continued from day to day, on ceed in the manner above directed; 
 
 ten days' notice of the time and place but the times for commencing and 
 
 of commencing the same. Rule 78. taking the same by each party shall 
 
 See, as to notice, Sev., " Chancery," § be one-third of the times prescribed 
 
 45. The complainant shall commence in the above rules. Rule 91. The 
 
 taking testimony on his part within examiner may, at the request of the 
 
 fifteen days after issue joined, and party taking testimony, adjourn to any 
 
 shall conclude the same in thirty days, day within said thirty days, and to 
 
 and declare to th« examiner when the any place within the county ; and any 
 
 testimony on his part is concluded. examiner may take such testimony, 
 
 Rule 80. Within fifteen days after or any part thereof, in place of the 
 
 thetestimony on part of the complain- examiner before whom the same was 
 
 ant is declared to be concluded, or noticed or commenced ; but only one 
 
 after the time for taking the same has examination shall proceed in the same 
 
 expired, if no such declaration has cause at the same time, except on 
 
 been made, the defendant shall com- commission by interrogatories. Ride 
 
DEPOSITIONS BEFORE EXAMINERS. 
 
 161 
 
 , in , on the day of next, at the hour 
 
 of ten in the forenoon, before , one of the masters and 
 
 examiners in the Court of Chancery of New Jersey. 
 
 Dated, &o. Yours, &o., 
 
 (Signature of solicitor.) 
 To , Solicitor of 
 
 Examination of witnesses within the state.(o) 
 Examination of witnesses, &c., in a cause depending in the 
 Court of Chancery of the State of New Jersey, wherein 
 
 82. When the defendant shall declare 
 the testimony on his part closed, or 
 when the thirty days for taking testi- 
 mony on his part shall have expired, 
 the complainant may proceed im- 
 mediately, or hy adjournment, not 
 exceeding ten days, with testimony to 
 rebut the testimony of the defendant, 
 or to sustain testimony on his part, 
 impeached or contradicted by the de- 
 fendant, and the defendant may after- 
 wards produce counter-rebutting evi- 
 dence on his part ; but such evidence 
 shall not be continued for more than 
 five days on each side. Rule 83. 
 The examiner may, at the request of 
 either party, adjourn the examination 
 to a day within the time limited to 
 said party, giving precedence to the 
 request of the party then proceeding 
 with taking testimony ; and when 
 such adjournment is regularly made 
 at the time and place at or to which 
 an examination was noticed or ad- 
 journed, no notice of the same need be 
 given. Rule 84. If either party can- 
 not complete his testimony within 
 such thirty days, his time may be 
 enlarged upon motion, on notice 
 served before the expiration of said 
 time, for reasons verified by proof 
 satisfactory to the Chancellor. Rule 
 85. The time for taking testimony 
 above limited shall not be extended, 
 
 except by written consent or by order 
 of the court, made upon notice. Rule 
 86. No legal holiday, except Sunday, 
 nor any day between the fifteenth day 
 of July and the first day of Septem- 
 ber, unless occupied in taking testi- 
 mony, shall be computed as part of 
 said limited time. Rule 87. Deposi- 
 tions, except when taken ex parte, 
 shall be taken before an examiner to 
 be agreed upon by the solicitors of the 
 parties to the issue. If they are 
 unable to agree thereon, the examiner 
 shall be named by the Chancellor, on 
 motion to be made on a, regular 
 motion-day. Ruleill. The examiner 
 does not require proof of the service 
 of the notice before commencing the 
 examination, but allows the party to 
 proceed, at the peril of having the 
 depositions suppressed, upon the ap- 
 plication of the opposite party, if 
 notice has not been given. 1 Barb. 
 Oh. Pr. *279. 
 
 (a) All examinations of witnesses, 
 to be taken and made use of at the 
 hearing of any cause in the Court of 
 Chancery, except such as shall be 
 taken before a Vice Chancellor, (or 
 an advisory master,) shall be taken 
 and reduced to writing by one of the 
 examiners of the court, or before a 
 commissioner appointed by the Chan- 
 cellor, according to the course of the 
 
162 
 
 FOEMS OF PLEADINGS. 
 
 is complainant, and 
 in the city of 
 
 on 
 
 is defendant, taken at 
 , the day of 
 
 in 
 
 the year of our Lord, &c., before 
 
 one of the masters 
 
 court. The rules permit the taking 
 of testimony before an examiner by 
 means of a stenographer when the 
 parties agree to such course, and the 
 legal fees are to be divided between 
 the examiner and stenographer in the 
 proportion of one-third to the former 
 and two-thirds to the latter. Rule 
 110. When oral examinations are 
 had before a Vice Chancellor by 
 means of a stenographer, the expense 
 thereof is borne by the state. Sev. 
 Sup., " Chancery," §20. 
 
 Either of the parties may, either in 
 person or by their solicitors or coun- 
 selj be present, and examine and 
 cross-examine the witnesses. Sev., 
 " Chancery," ? 45. A witness should 
 not be allowed to have his direct tes- 
 timony read to him before cross- 
 examination. Such irregularity is 
 not sufficient to suppress the testi- 
 mony, but must almost destroy his 
 credibility. Derby v. Derby, 6 C. E. 
 Or. 36. A party before a master 
 cannot be cross-examined generally. 
 He cannot make evidence for himself 
 by the introduction of facts or matters 
 not the subject of inquiry or original 
 examination. He can only be called 
 on to explain or to make such state- 
 ments as may prevent misunderstand- 
 ing or rebut any unfair inference that 
 may arise from the answer. Jackson 
 V. JacJcson, 2 Or. Ch. 96. The com- 
 plainant or petitioner in any action or 
 proceeding of an equitable nature, is 
 a competent witness to disprove so 
 much of the defendant's answer as 
 may be responsive to the allegations 
 contained in the bill or petition. 
 Bev., "Evidence," § 6. All depositions 
 of witnesses before examiners shall be 
 taken in the first person, as spoken by 
 
 the witness, and, as near as practica- 
 ble, in the words of the witness ; and 
 such depositions shall be taken down 
 in the narrative form, and not by 
 entering both question and answer, 
 except in cases where the examiner 
 shall, from the subject-matter or the 
 manner of the witness, determine that, 
 in his opinion, it is necessary for the 
 correct understanding of the evidence, 
 or of the disposition of the witness, to 
 take down both question and answer ; 
 and in such cafe, the examiner shall 
 enter on his minutes and sign his de- 
 termination to that eflfect, provided 
 that in litigated cases the testimony 
 may, by consent of the parties, be 
 taken by a stenographer, question and 
 answer, and afterwards written out in 
 full. Ilvie 90. The exhibits offered 
 in any cause, except books of account 
 in actual use, shall, upon request, 
 be left with the examiner for such 
 reasonable time as he may prescribe, 
 that the same may be examined 
 by other parties, and copies made 
 by the examiner, unless the party 
 producing them will furnish such 
 copies ; and then they may be in- 
 spected, as directed by the examiner, 
 in the presence and custody of the 
 party producing them ; and there 
 shall be paid for such copies, when 
 made by the master, ten cents per 
 folio, and when made by the party, 
 four cents per folio, which shall be 
 allowed and taxed as costs in the 
 cause. Mule 89. The examiner shall 
 number each page of the examina- 
 tion taken by him, and also every 
 tenth line of the same, leaving suffi- 
 cient margin for the purpose; and 
 where more than one witness is ex- 
 amined, he shall annex a separate 
 
DEPOSITIONS BEPOKB EXAMINEES. 
 
 163 
 
 and examiners of the said court, in the presence of , 
 
 solicitor and of counsel with the said complainant, and of 
 
 , solicitor and of counsel with the said defendant. 
 
 leaf to the examination, containing a 
 list of the names of the witnesses, 
 and a reference to the pages on which 
 their examination respectively com- 
 mences; and no costs shall he taxed 
 for any examination where this rule 
 has not heen strictly complied with. 
 Bide 92. The first thing to be done 
 by the examiner is to administer the 
 oath to the witness. The form of the 
 oath is as follows — the witness laying 
 his hand on and kissing the Book of 
 the Gospels : " You do swear, that the 
 evidence given by you upon the 
 examination in this cause, pending in 
 the Court of Chancery of the State of 
 New Jersey, wherein is com- 
 
 plainant, and is defendant, shall 
 
 be the truth, the whole truth, and 
 Tiothing but the truth, so help you 
 <5od." Or, if the witness desire it: 
 "You do swear, by the ever-living . 
 <}od," &c. While taking this oath, 
 the witness must hold up his hand, 
 instead of touching and kissing the 
 Book of the Gospels. Ben., "Oaths of 
 Public Officers," U 22, 23. For forms 
 of affirmation, see Id., § 26 ; also page 
 152, ante. The only causes which go 
 to the capacity of a witness, are the 
 want of discretion, as in the case of 
 infants; the want of intellectual 
 powers, as in the case of idiots, luna- 
 tics and madmen, and the want of 
 religious principle and belief, as in 
 the case of those who do not believe 
 in the being, perfection and provi- 
 ■dence of God, nor in the future state 
 of rewards and punishments. Den v. 
 Vancleve, 2 South. 589, 653 ; Donnelly 
 V. State, 2 Dutch. 601, 620; and see 
 Miller v. MUler, 1 Or. Oh. 139. The 
 ■deposition of a witness must be signed 
 by the witness ; if not signed, it is im- 
 
 perfect, and cannot be read at the 
 hearing. Flavell v. Flavell, 5 C. E. 
 Gr. 211; 7 O. E. Or. 599; Vander- 
 haise v. Hughes, 2 Beas. 412. And 
 the master should also annex a jurat 
 properly signed to each one. Ibid. 
 If he should die after his examination 
 is completed, but before it is signed, 
 the deposition cannot be used. Cope- 
 land V. Stanton, 1 P. Wms. 414. It is 
 the duty of the examiners in chancery 
 to transmit, without any unnecessary 
 delay, all depositions and examina- 
 tions of witnesses by them taken in 
 any cause pending in the court, to the 
 clerk, to be filed ; and all depositions 
 and examinations of witnesses taken 
 in a cause by an examiner must be 
 filed in the clerk's office within ten 
 days after the examination of wit- 
 nesses in the cause shall be closed; 
 and no examination will be filed after 
 the expiration of the said ten days, 
 without an order of the Chancellor 
 directing the filing thereof. Bule 93. 
 Examiners are not authorized to retain 
 depositions for non-payment of their 
 fees. Application should be made to 
 the court for relief in such cases. 
 
 It shall be the duty of the examiner 
 before whom testimony is taken to 
 decide upon all objections to evidence, 
 and his decisions shall be final unless 
 reversed on appeal to the Chancellor, 
 which is to be taken as hereinafter 
 provided. Though appeal be taken 
 the examination shall nevertheless 
 proceed, but in conformity with the 
 ruling. Notice of appeal must be given 
 and entered on the record immedi- 
 ately upon the making of the decision 
 of the examiner, otherwise the right 
 of appeal will be considered as waived. 
 The notice will be merely oral. If 
 
164 
 
 FORMS OF PLEADINGS. 
 
 , of the township of , in the county of , a 
 
 witness produced on the part of the aforesaid complainant, being 
 duly sworn, deposes and says, &c. 
 
 there be notice of appeal, the objec- 
 tion and the ground of it and the 
 .examiner's decision thereon must, 
 with a memorandum of the fact of the 
 appeal, be entered on the record of 
 the evidence at the place in the 
 record where they occur. The entry 
 will be in brief form, as follows, for 
 example : 
 
 " Defendant objects to the evidence, 
 on the ground that it is irrelevant to 
 the issue. Objection overruled. Ap- 
 peal. 
 
 "A. B., Examiner. Nov. 10th, 1883." 
 The appeal shall be heard, without 
 further notice, on the next regular 
 motion-day, at the chancery cham- 
 bers, (the State-house being deemed 
 for this purpose a chancery chamber,) 
 nearest the place where the testimony 
 was being taken at the time of the 
 appeal, if three days intervene be- 
 tween the time of making the decision 
 and that day, but if not, then on the 
 next motion-day thereafter. If the 
 appellant shall not bring on the 
 appeal at the time fixed, he shall pay 
 costs of the notice, unless he give at 
 least one day's notice to the solicitor 
 or solicitors of the other party or 
 parties to the issue that he has 
 abandoned the appeal. Depositions, 
 except when taken ex parte, shall be 
 taken before an examiner to be agreed 
 upon by the solicitors of the parties 
 to the issue. If they are unable to 
 agree thereon, the examiner shall be 
 named- by the Chancellor on motion 
 to be made on a regular motion-day. 
 Rule 211. 
 
 Under the provisions of rule 211, 
 the examiner may reject an incom- 
 petent witness. Demarest v. Vanden- 
 burg, 12 Stm. Eq. 130. A party fail- 
 
 ing to object waives his right to 
 exclude evidence, but the court, on its 
 own motion, may throw out the evi- 
 dence of an imcompetent witness. 
 Manfort v. JRoidand, 11 Slew. Eq. 181. 
 QucBre — As to the legality of the 
 rule of court authorizing the master 
 to reject testimony. Rice v. Rice, 2 
 Dich. Oh. Rep. 559. 
 
 Examination of 'witnesses before 
 a Vice Chancellor or an advisory 
 master. At the time noticed or 
 designated for hearing, both parties 
 shall attend with their witnesses and 
 other evidence, and the cause shall 
 proceed as at a trial at law before a 
 jury, by the oral examination of the 
 witnesses on both sides continuously 
 until all the evidence has been pro- 
 duced and closed ; the party holding 
 the affirmative first producing all his 
 evidence, and, after resting, he shall 
 be permitted to produce evidence in 
 rebuttal only ; but the Vice Chancellor 
 may, in his discretion, under restric- 
 tions mentioned in the rule, reserve to 
 either party the right to produce one 
 or more witnesses, who shall be named, 
 to be examined orally or by deposition 
 at a future day. But such right shall 
 not be granted unless the Vice Chan- 
 cellor be satisfied that due diligence 
 has been used to procure the attend- 
 ance or deposition of such witness 
 before the trial, nor unless it be fairly 
 disclosed what is expected to be 
 proved by such witness, and such evi- 
 dence shall appear to be material, 
 and shall not be admitted by the 
 other party or parties. Ride 196. 
 When a stenographer appointed by 
 the Vice Chancellor shall attend to 
 take down the testimony, the exami- 
 nation shall proceed as rapidly as 
 
DEPOSITIONS BEFORE EXAMINEES. 165 
 
 Notice of using documentary paper at the hear- 
 ing.(a) 
 
 {Title of cause.) 
 
 Take notice, that I shall use, at the hearing of this cause, as 
 evidence on the part of the complainant, {or " defendant,") an 
 answer of the defendant, , filed by him to the bill of 
 
 complaint of in this court, which answer purports to have 
 
 been sworn to on the day of , before , a master 
 
 of this court, {or as the case may be, specifying the record or 
 paper to be iised.) 
 
 {Signature of solicitor.) 
 
 To , Solicitor of 
 
 Affidavit, in a cause before the Vice Chancellor, 
 -vehereon to ground the taking of depositions before 
 an examiner.(6) 
 
 {Title of cause.) 
 State of , 1 
 
 county of , j * 
 
 , the complainant in this cause, being duly sworn, 
 deposes and says — that , of , is of the age of 
 
 counsel can ask, and the witness notice given before the teBtimony of 
 answer, the questions. The examining the party giving it is closed. Bule 95. 
 -counsel shall not take notes, nor shall {b) Either party, after a cause is at 
 the examination be delayed in order issue, may, upon filing an affidavit 
 that any counsel or other person, that a material witness is very old, 
 except the reporter, may take minutes infirm, or about to leave the state, 
 of the testimony. But every efibrt and that he is in danger by reason 
 shall be made by the court and coun- thereof of losing the benfifit of his 
 sel to expedite the cause, so far as testimony, take the deposition of such 
 may be consistent with a full and fair witness before any examiner, upon 
 hearing thereof. Rule 197. The like notice and in like manner as 
 competency of evidence shall be de- such evidence has heretofore been 
 termined by the Vice Chancellor, taken; and such deposition shall be 
 who, upon the objection of either filed with the clerk in chancery, by 
 party or of his own motion, shall the examiner before whom it was 
 exclude evidence that may be illegal taken, within six days after it is Con- 
 or irrelevant. Bule 198. eluded, and may be read as evidence, 
 (o) No documentary evidence, which subject to all exceptions, at the hear- 
 is not made an exhibit before the ing of the cause, unless some party to 
 master, shall be read at the hearing the cause shall produce such witness 
 of the cause, except records or files of ^t the hearing, in which case he shall 
 the court, which may be read, upon be examined orally. Bule 200. 
 
166 FORMS OF PLEADINGS. 
 
 and upwards, {or, " is dangerously ill, and is not expected to 
 recover," or, " is very infirm," or, " is about to leave the state, 
 and that he is in danger by reason thereof of losing the benefit 
 of his testimony, and that he is a material witness for this 
 deponent in the above-entitled cause.") 
 
 (Jurat.) (Signatwe.) 
 
 Notice of motion to extend the time for taking 
 testimony.(a) 
 
 {Title of cause.) 
 
 As in form on page 148 to *, then, " for an order to extend 
 the time for taking testimony on the part of the complainant " 
 or " defendant.") 
 
 Order extending the time for examining witnesses 
 
 under the rules. 
 
 {Title of cause.) 
 
 On opening the matter to the Chancellor this day, by , 
 
 of counsel with the , and on reading the affidavit of 
 
 , by which it appears, to the satisfaction of the Chan- 
 cellor, that the said requires more time for the production 
 of the testimony than is allowed by the rules : It is, on this, 
 &c., ordered, that the said have days further time 
 from and after the expiration of the time limited by the rule to 
 take his testimony-in- chief {or "in rebuttal," if order obtained 
 by complainant,) in this cause. 
 
 Order extending time for taking testimony, where 
 parties are proceeding not under the rule. 
 
 {Title of cause.) 
 Upon opening the matter this day to the Chancellor, by , 
 
 of counsel with the , and upon reading the affidavit(6) of 
 
 (a) If either party cannot complete before the expiration of such time^ 
 his testimony within the time limited for reasons, verified by proof, satis- 
 by the eightieth, eighty-first and- factory to the Chancellor. 2Juies85, 86. 
 eighty-third rules, his time may be (6) A copy of every aflidavit in- 
 enlarged, by written consent of the tended to be used on the argument of 
 adverse party, or by order of the any special motion, or of any other 
 court, upon motion, on notice served special matter before the court, of 
 
DEPOSITIONS BEFORE EXAMINEES. 
 
 167 
 
 , the , whereby it appears that the examination of 
 
 certain witnesses, alleged to be necessary and material on the 
 part of the said defendant in said cause, could not be had and 
 taken within the time limited by the rule to close the examina- ■ 
 tion of witnesses in the above cause, on the day of 
 
 last, and the said praying that the time may be enlarged 
 
 and extended : It is thereupon, on this day of , in 
 
 the year, &c., ordered, that days from the date hereof be 
 
 allowed for the examination of witnesses in said cause. 
 
 Order to close testimony.(a) 
 
 {Title of cause.) 
 Upon opening the matter to the court, &c., and on good cause 
 shown : It is, on this, &o., on motion, &c., ordered, that the 
 examination of witnesses on the part of the complainant [or 
 " defendant ") be closed in days from and after the date 
 
 of the service of this order upon the said or his solicitor. 
 
 which notice shall be necessary, shall 
 he served on the adverse party at 
 least four days before the day of 
 argument, or shall be taken on two 
 days' notice, at least, of the time and 
 place of taking the same; and all 
 affidavits made use of in court shall 
 be first filed with the clerk; and 
 no writ, order or other proceeding, 
 grounded upon an affidavit or affi- 
 davits, shall be issued, filed or entered 
 by the clerk, unless the affidavit or 
 affidavits upon which it shall be 
 grounded shall have been previously 
 filed. Bule 138. Affidavits, upon 
 which ate founded applications to 
 extend the time of taking testimony, 
 shall be served for three days; but 
 counter-affidavits may be read without 
 notice. Side 140. 
 
 (a) When either party has neglected 
 to observe strictly the directions of 
 the rules for taking and closing his 
 testimony, and desires to be relieved 
 from the efiect of his laches, he must 
 
 obtain and serve upon the adverse 
 party an order to close his testimony 
 within a limited lime. The order is 
 usually granted ex parte, on the repre- 
 sentations of counsel. If the terms of 
 the order are not complied with, the 
 party obtaining it will then be in a 
 position to hasten the progress of the 
 suit in accordance with the rules and 
 practice of the court. 
 
 The court may relieve a party who 
 has not punctually complied with its 
 own rules. HUlyer v. Schench, 2 Mc- 
 Cart. 399. Formerly, by a rule of this 
 court, after issue joined, either party 
 might enter of course, with the clerk, 
 a rule that the examination of wit- 
 nesses be closed in fifty days, a copy 
 of which rule was to be served on the 
 opposite party within eight days after 
 the entry thereof; and within the time 
 so limited by the rule, the examina- 
 tion of witnesses to be closed, unless 
 the time should be enlarged by con- 
 sent, or the Chancellor, upon petition' 
 
168 
 
 FORMS OF PLEADINGS. 
 
 Order for re-examination of a witness.(a) 
 
 {Title of cause.) 
 This matter being opened to the court, &c., and it appearing 
 by affidavit (or otherwise), to the satisfaction of the court, that 
 the re-examination of , a witness in this cause on the part 
 
 of the complainant {or " defendant,") is necessary : It is, on this, 
 &c., on motion as aforesaid, ordered, that the __ have leave 
 
 to re-examine the said witness, on due notice to the solicitor of 
 , the adverse party, {or as the case may be.) 
 
 or motion, and sufficient cause shown, 
 should give further time for closing 
 the examination ; but an ex parte order 
 could not be granted after the time 
 had expired, nor could a second order 
 be granted to the same party, except 
 on two days' notice to the opposite 
 party, and upon terms; but the 
 seventy-eighth, eightieth and eighty- 
 first rules were, in 1866, substituted 
 for this practice. 
 
 Every cause must be noticed for 
 hearing at the next term after the 
 evidence therein is closed, provided 
 there shall be sufficient time to notice 
 it at or in such term; and no cause 
 can be set down for hearing on any 
 day in term after the twentieth day. 
 Rule 10 ; and see Rev., " Chancery," 
 §47. 
 
 (a) To examine a witness more than 
 once, without leave, is opposed to the 
 policy and practice of the court. See 
 Delany v. Nohle, 2 Or. Ch. 441; 
 Crawford v. Bertholf, Sax. 458. If a 
 witness has been re-examined without 
 an order, the court will reject the 
 second examination. Hanson v. Trus- 
 tees, &c., 3 Stock. 441. But if the 
 opposite party do not object to evi- 
 dence thus taken, it does not lie 
 in the mouth of the party offering 
 it to call it in question. Delany v. 
 Noble, supra. It is in the discretion 
 of the court whether it iwill permit a 
 
 witness to be recalled, and it is not 
 necessary that the opposite side should 
 consent. 2 Dan. Ch. Pr. 1104. The 
 eighty-fourth rule of the chancery 
 rules of New York provided that a 
 witness once examined, either before 
 an examiner or commissioners, should 
 not be again examined, either to the 
 same or different facts, unless by the 
 consent of the opposite party, or by 
 order of the court, on sufficient cause 
 shown by affidavit or otherwise, accord- 
 ing to circumstances. An express 
 rule, in the same words, existed in 
 this state at the time of the decision 
 in Delany v. Noble, supra. In this 
 state the order is generally granted 
 ex parte, but an application for a 
 second examination should be on 
 notice. 
 
 A witness cannot, without leave of 
 the court, be re-examined on a matter 
 as to which he has been previously 
 examined ; but this ground of objec- 
 tion must be specifically stated when 
 he is recalled or his testimony will 
 not be excluded. The rule, however, 
 does not prevent the recalling of 
 a, witness in rebuttal. Osborne v. 
 O'Reilly, 7 Stew. Eq. 60. 
 
 In all cases, the re-examination of a 
 witness is regularly to follow imme- 
 diately upon his cross-examination. 
 Dan. Ch. Pr. 919, 981. On an appli- 
 cation for leave to re-examine a wit- 
 
DEPOSITIONS BEFORE EXAMINERS. 
 
 169 
 
 Ifotice of motion to suppress deposition, (a) 
 
 {Title of eause.) 
 Take notice, {as on page 148 to **, then, "the deposition of 
 , a witness examined in this cause on the part of the 
 , before , one of the examiners of this court," or, 
 
 •" a commissioner duly appointed by this court to take the exami- 
 nation of witnesses in this cause,") on the ■ day of 
 last, be suppressed. 
 
 Order suppressing deposition.(6) 
 
 {Title of cavise.) 
 This matter coming on to be heard, &c., * and on reading and 
 filing notice of motion and affidavits in support thereof and in 
 
 ness whose testimony had been given 
 to correct a mistake involving the 
 •direct contradiction of a material fact, 
 leave was granted, with a direction in 
 the order that the examiner should 
 <;ertify specially as to the circum- 
 stances. £yrne v. Frere, 1 Mol. 396. 
 A party will not be allowed to re-ex- 
 amine a, witness whose memory has 
 been refreshed since his examination 
 closed, except as to documentary evi- 
 dence. Noel V. Fitzgerald, 1 Hogan 
 135. There is no universal and abso- 
 lute rule which prohibits the court 
 from allowing the introduction of 
 newly-discovered evidence of witnesses 
 to facts in issue in the cause, after 
 publication and knowledge of the 
 former testimony, and even after the 
 hearing. But the allowance of it is 
 not a matter of right in the party, but 
 of sound discretion in the court, to be 
 ■exercised cautiously and sparingly, 
 and only under circumstances which 
 -demonstrate it to be indispensable to 
 the merits of the case. Midoch v. 
 Mulock, 1 Stew. Eg. 15; see Gray v. 
 Murray, 4 Johns. Oh. 412 ; Nevjman, v. 
 Kendall, 2 A. K. Marsh. 236. 
 
 (a) In case notice has been given to 
 suppress depositions at the hearing, it 
 is usual to bring it on before entering 
 upon the hearing of the cause. The 
 court may either decide the question 
 at once, as to the admissibility of the 
 depositions, or may allow them to be 
 read de bene esse, reserving the ques- 
 tion until the final disposition of the 
 cause. 1 Barb. Oh. Pr. *317. De- 
 positions, when objected to as taken 
 upon leading interrogatories, or as 
 scandalous, or for some irregularity in 
 relation to them, are suppressed prior 
 to the hearing; and the question 
 whether the depositions shall be sup- 
 pressed is a matter of discretion. 
 Brown v. Buckley, 1 McCart. 294. 
 Depositions taken in another state, 
 on behalf of complainant, before a 
 commissioner, were, on notice, sup- 
 pressed for reasons stated in the 
 opinion. See Fulton v. Oolden, 1 Stew. 
 ■Eg. 37. 
 
 (h) The court will suppress the de- 
 position of a witness who, after his 
 direct examination, secretes himself 
 so that he cannot be cross-examined. 
 FlaveU v. Flavell, 5 O. E. Or. 211 ; 7 
 
170 F0EM8 OF PLEADINGS. 
 
 opposition thereto, {or, after *, "on an order to show cause, 
 heretofore granted herein,") and on motion of , of counsel 
 
 with the : It is, on this, &o., on motion, &c., ordered that 
 
 the deposition of , taken before ,* one of the exami- 
 
 ners of this court, (or, afler *, " under a commission issued in 
 this cause,") be and the same is hereby suppressed, with costs, 
 and is declared inadmissible as evidence in this cause. 
 
 Order for proofs ex parte,(a) 
 
 {Title of cauae^ 
 
 Upon opening the matter to the court, by , of counsel 
 
 with the complainant, and it appearing to the Chancellor that 
 notice of the order made in this cause, on the day of 
 
 last past, directing the defendant to appear, plead, answer 
 or demur to the complainant's bill on or before the day 
 
 of then next, has been duly published and mailed, {or 
 
 " served,") as in and by said order was directed, and that the 
 said defendant has not appeared and pleaded, answered or 
 demurred to the same within the time limited by said order, or 
 at any other time : It is, on this day of , in the 
 
 year, &c., ordered, that the bill of complaint be taken as con- 
 fessed against the defendant, and it is further ordered that the 
 complainant proceed to take depositions and other evidence to 
 substantiate and prove the allegations in his said bill, and to 
 bring on the hearing of the cause ex parte. 
 
 O. E. Or. 599. No notice having been prove the allegations in his bill, the 
 
 given of the time and place of taking proceedings subsequent to the said 
 
 depositions, under Rev., "Evidence," § order may be considered as ex parte, 
 
 38, they were suppressed. Parker v. and it will not be necessary for the 
 
 Hayes, 8 O. E. Or. 186. complainant to give notice thereof to 
 
 (o) In cases where the court shall the defendant. Bide 26. See part of 
 
 order the complainant to produce note (a), page 35, ante, for practice in 
 
 documents and depositions, exhibits certain cases of creditors' bills, 
 or other evidence, to substantiate and 
 
HEARING. 
 
 171 
 
 HEARING.(a) 
 
 Rule for hearing. 
 
 {Title of cause.) >■ (Date.) 
 
 It is ordered, on motion of , solicitor for and of counsel 
 
 with the complainant, that this cause be set down for hearing 
 on the first day of the next stated term of this court, to be held 
 
 (a) Every cause must be set down 
 for hearing at the next stated term 
 after the filing of the replication, pro- 
 vided there be fifteen days between 
 filing the replication and the next 
 stated term ; and if there be not, then 
 the hearing shall be had at the next 
 subsequent stated term. Mev., " Chan- 
 cery," § 47. If the complainant shall 
 not attend at the time appointed for 
 the hearing, the pleadings and proofs 
 shall be read on the part of the de- 
 fendant, and the court thereupon may 
 decree in favor of the defendant or 
 complainant, as the case may require, 
 or may dismiss complainant's bill, 
 with costs. Mev. Sup., "Chancery," 
 i 3. If a complainant do not file 
 exceptions to the answer or a. replica- 
 tion, he must set the cause down for 
 hearing upon bill and answer, within 
 thirty days after the expiration of the 
 time limited or granted for filing the 
 answer. Mev., " Chancery,'' § 33. All 
 causes, including pleas and demurrers, 
 shall be set down for hearing for the 
 first day of the term, provided there 
 is time sufficient to give the notice 
 required ; if not time, then at a subse- 
 quent day in the term, not later than 
 the twentieth day, and shall have 
 priority according to the date of issue ; 
 and the party setting down a cause for 
 hearing, or his solicitor, shall, at least 
 six days before the first day of the 
 term for which the cause is noticed. 
 
 furnish the clerk with a note of the 
 time issue was joined, which shall be 
 entered on the calendar; and in de- 
 fault thereof, the cause set down with- 
 out such note shall lose its priority. 
 Mule 3. But no day will be assigned 
 by the court for the final hearing of 
 any cause on the list until after the 
 evidence shall have been closed, unless 
 the cause be set down for hearing on 
 bill and answer. Mule 2. Where the 
 complainant has taken issue upon a 
 plea, by filing a replication thereto, 
 either party may enter the plea for 
 argument at the next or any subse- 
 quent term. Mule 13. No decree in 
 an ex parte divorce case shall be 
 signed until after the master's report 
 shall have been on file thirty days. 
 Mule 165. A motion to strike out an 
 insufficient plea is not correct prac- 
 tice ; the plea should be set down for 
 argument. Corlies v. Corlies, 8 C. E. 
 Or. 197 ; but see rule 213. And a plea 
 or demurrer must be noticed and set 
 down for argument for the next term, 
 by the party demurring or pleading, 
 within ten days after the time limited 
 for filing the same. JJct., " Chancery," 
 ? 24. In all suits where the equities 
 between the parties shall have been 
 settled by an interlocutory decree, the 
 cause may be at once set down for 
 final hearing, and a final decree may 
 be entered at the same term after such 
 hearing. Mule 16. 
 
172 
 
 FOKMS OF PLEADINGS. 
 
 at the State-house, in the city of Trenton, at the hour of ten 
 
 o'clock in the forenoon of that day, or as soon thereafter as 
 
 counsel can be heard thereon. 
 
 By the court. 
 
 Clerk. 
 
 Notice of hearing, (a) 
 
 {Title of cause.) 
 
 Take notice, that this cause will be brought to a hearing on 
 bill and answer, (or, "on pleadings and proofs," or, "on the 
 demurrer," or " plea,") filed therein, [or, " on bill, answer, repli- 
 cation and proofs," or, " on the exceptions filed by complainant 
 (or ' defendant ') to the master's report therein,") (or as the case 
 may be,) before the Chancellor, on the first day of the next 
 stated term of this court, to be held at the state-house, in the 
 
 (a) Each regular term of the court 
 shall continue, for the setting down 
 of causes and arguments, until the 
 twentieth day thereof, and for all 
 other purposes until the next regular 
 term ; but no arguments or contested 
 motions shall be heard between the 
 sixteenth day of July and the first day 
 of September, except in injunction 
 <;ases, unless by consent and the special 
 order of the Chancellor. Rule 1. 
 And no cause shall be set down for 
 hearing on any day in term after the 
 twentieth day. Rule 10. Notices of 
 bringing causes to a hearing, including 
 the bringing on the argument of a 
 plea, demurrer and of exceptions to a 
 master's report, shall be served at 
 least fifteen days before such intended 
 hearing or argument; and the order 
 setting down exceptions to a master's 
 report for argument, must be both 
 entered and served before the expir- 
 ation^ of the time limited by the rule 
 ^isi, or the report may be confirmed. 
 
 Bule 11 ; Morris v. Taylor, 8 C. E. 
 Or. 131. Every cause shall be noticed , 
 for hearing at the next term after the 
 evidence therein is closed, provided 
 there shall be sufiScient time to notice 
 it at or in such term. BtUe 10. When 
 a party shall set down a cause for 
 hearing or argument, and give notice 
 thereof, and shall not bring on the 
 same agreeably to his notice, the 
 opposite party, upon the production 
 of the notice, shall be entitled to costs 
 to be taxed, for the attendance on the 
 court, unless the Cburt shall order ofi" 
 the hearing or argument without costs. 
 Ride 106. When the hearing or 
 argument of a cause shall be ordered 
 ofi' upon the application of a party to 
 whom notice has been given, the 
 party setting down the cause shall be 
 entitled to costs for attendance on the 
 court upon such notice, to be taxed, 
 unless the court shall order off' the 
 hearing or argument without costs. 
 Rule 107. 
 
HEABING. 
 
 173 
 
 city of Trenton, at the hour of ten o'clock in the forenoon of 
 that day, or as soon thereafter as counsel can be heard thereon. 
 
 Dated, &c. Yours, &c., 
 
 (Signature of solicitor.) 
 
 To , Solicitor of defendant. 
 
 Order for hearing of exceptions to the report of a 
 master, (a) 
 
 {Title of cause.) 
 
 This matter being opened to the court, by, &c., and it appear- 
 ing that exceptions have been taken and filed to the report of 
 , one of the masters of this court, to {state the nature of 
 the exceptions,) and on reading and filing proof of due notice of 
 this application : It is, on this, &c., on motion as aforesaid, 
 ordered, that the said exceptions be set down to be heard before 
 the Chancellor {or " one of the Vice Chancellors,") on , 
 
 the day of next, at 
 
 Submission of cause without argument.(6) 
 
 {Title of cause.) 
 It is stipulated and agreed that this cause be submitted to the 
 
 (a) Exceptions to a master's report 
 may be set down to be heard at any- 
 day in tbe term, on the application of 
 either party; but five days' notice 
 shall be given of such application. 
 Rule 12. If the solicitor of the ad- 
 verse party do not attend on the 
 hearing of the motion, then serve him 
 with a copy of the order. 
 
 If no order is applied for, the ex- 
 ceptions must be set down for hearing 
 and placed upon the calendar, as pro- 
 vided in the eleventh rule. Morris 
 V. Taylor, 8 O. E. Or. 131. 
 
 (6) Where cases are submitted to 
 the Chancellor without argument, such 
 submission shall be made by agree- 
 ment in writing, signed by the solicitors 
 of the respective parties, and shall be 
 
 accompanied by briefs or notes of the 
 points and cases upon which the said 
 parties respectively rely. JEwte 17. 
 
 Argument of the cause. The 
 party who sets down any cause, plea 
 or demurrer for hearing or argument, 
 shall deliver to the Chancellor, before 
 the commencement of the hearing 
 or argument, an abbreviation of the 
 pleadings, or a state of the case as 
 contained in the pleadings ; and each 
 party shall also furnish him with a 
 statement of the material points of 
 the case on which he intends to rely. 
 Rule 8. On all hearings and arguments 
 before the court, after reading the 
 pleadings, one of the counsel for the 
 complainant or party holding the 
 affirmative, and having the right of 
 
174 
 
 F0SM8 OF PLEADINGS. 
 
 Chancellor on written arguments. The complainant's counsel 
 to serve his argument within days, and the defendant's 
 
 opening, shall open the cause or 
 matter in question, then two counsel 
 for the adverse party may be heard in 
 answer, after which one counsel only, 
 for the party having the opening, may 
 he heard in reply ; but in case there 
 be several defendants who have sepa- 
 rate and distinct interests, and different 
 counsel concerned for them, then the 
 counsel for the respective defendants 
 shall be heard in such order as the 
 court may direct, but In no case shall 
 more than two counsel be heard for 
 one defendant ; and if more than two 
 counsel are heard in answer for the 
 defendants, in that case two counsel 
 may be heard in reply. Mule 7. 
 Upon hearing on bill, cross-bill, an- 
 swers and depositions, where both 
 causes come on to be heard together, 
 and each party has material alle- 
 gations to sustain under his bill, the 
 complainant in the original bill is 
 entitled to the opening and reply. 
 ■Murphy v. Stults, Sax. 561. Where 
 there are two defendants who set up 
 adverse claims, the . practice is for the 
 complainant to open; for the defend- 
 ant who sets up a claim against the 
 other, then to go on, and for the other 
 defendant to answer ; there is no reply 
 between the defendants, unless spec- 
 ially directed by the court. Walton v. 
 Van Mater, April, 1823. Upon plea 
 or demurrer, the defendant holds the 
 affirmative, and opens the argument ; 
 upon exceptions to a master's report, 
 the party excepting opens the argu- 
 ment ; but where both parties except, 
 the complainant's counsel is first heard 
 upon his exceptions, and then the 
 defendant's counsel answers him, and 
 opens the argument upon his own 
 exceptions. 1 Barb. Oh, Pr. 317. 
 
 Where the cause is heard on bill and 
 answer, the course of procedure is the 
 same as on a hearing on pleadings 
 and proofs; the statements in the 
 answer must be taken as true, without 
 regard to their improbability. Booraem 
 V. Wells, 4 0. E. Or. 87. 
 
 If any complainant proceed to a 
 hearing on bill and answer only, 
 the answer shall be taken to be true 
 in all points, and no evidence can be 
 received to contradict the answer, 
 unless it be matter of record to which 
 the answer relates, and is provable by 
 the same record. Bev., "Chancery," 
 i 43 ; Phillips v. Kinney, MS., Wil- 
 liamson, C. Where a cause was 
 brought on for hearing on bill and 
 answer, and the complainant failed in 
 making out his case for want of an 
 absolute admission of it by the answer, 
 the court, under the circumstances of 
 the case, permitted him to reply, on 
 payment of costs. Barker v. Wyld, 1 
 Fern. 140. If the complainant shall 
 not attend at the time appointed for 
 the hearing of the cause, his bill will 
 be dismissed, with costs. If the de- 
 fendant shall not attend, the pleadings 
 and proofs shall be read, on the part 
 of the complainant, and the court 
 thereupon will decree in favor of the 
 complainant, or dismiss his bill, as the 
 case may require. Bev., " Chancery,'' 
 U 48, 49. 
 
 Hearing of the cause before the 
 Vice Chancellor or an advisory- 
 master. When a cause referred to the 
 Vice Chancellor shall be at issue, 
 either party may, upon five days' 
 notice to the other party or parties, 
 apply to the Vice Chancellor to whom 
 the cause is referred to fix a time 
 and place for the hearing thereof; 
 
HEA.EING. 
 
 175 
 
 counsel to answer the same and submit the cause within 
 days thereafter. 
 
 (Si^natn/rea of solicitors.) 
 Dated, &o. 
 
 and upon such application the Vice 
 Chancellor may designate such time 
 and place ; and upon fifteen days' 
 notice, in writing, of the time and 
 place so designated, given by either 
 party to the other or others, the cause 
 may he hedrd Ride 195. At the 
 time designated for the hearing of a 
 cause, the hearing shall not be put 
 ofi" (except by consent) for the absence 
 of a material witness, unless the Vice 
 Chancellor shall be satisfied that a 
 fair and earnest effort has been made 
 in proper time to procure the attend- 
 ance of such witness, and if such 
 attendance could not be procured, to 
 procure his deposition ; and the Vice 
 Chancellor may, in his discretion, 
 order the hearing to proceed, and 
 direct that any material witness named 
 may be examined orally, or his de- 
 position procured at a future day 
 fixed and named in such order; 
 but the matter to be proved by such 
 witness shall be disclosed at the mak- 
 ing of such order, and no hearing 
 shall be postponed for any cause, 
 unless a future time and place for 
 hearing be fixed and designated, and 
 such terms as to costs as may be 
 directed by the Vice Chancellor be 
 complied with. The argument of a 
 cause or matter may be had, at the 
 discretion of the Vice Chancellor, 
 either immediately upon the closing of 
 the testimony, or at a future day to be 
 fixed. Uule 199. At the time noticed 
 or designated forbearing, both parties 
 shall attend with their witnesses and 
 other evidence, and the cause shall 
 proceed as at a trial at law before a 
 jury, by the oral examination of the 
 witnesses on both sides continuously. 
 
 until all the evidence has been pro- 
 duced and closed; the party holding 
 the affirmative first producing all his 
 evidence, and, after resting, he shall 
 be permitted to produce evidence in 
 rebuttal only ; but the Vice Chancellor 
 may, in his discretion, reserve to 
 either party the right to produce one 
 or more witnesses, who shall be named, 
 to be examined orally or by deposi- 
 tion at a future day. But such right 
 shall not be granted, unless the Vice 
 Chancellor be satisfied that due dili- 
 gence has been used to procure the 
 attendance or depositibn of such wit- 
 ness before the trial, nor unless it be 
 fairly disclosed what is expected to be 
 proved by such witness, and such evi- 
 dence shall appear to be material and 
 shall not be admitted by the other 
 party or parties. Rule 196. If a 
 report of the evidence so taken before 
 him shall become necessary in the 
 progress of the cause, for use on appeal 
 from the decree of the Chancellor 
 thereon or otherwise, the Vice Chan- 
 cellor shall settle and sign such report. 
 Reo., " Chancery," § 117. An advisory 
 master shall hear a cause or matter in 
 the same manner as provided by the 
 rules of the court in the case of refer- 
 ences to the Vice Chancellor, and all 
 the provisions of such rules, with 
 respect to fixing the time for the 
 hearing of a cause, (as far as applica- 
 ble,) the taking of testimony, as well 
 de bene esse as otherwise, the exclud- 
 ing of incompetent evidence, and the 
 hearing and conduct of the cause before 
 the Vice Chancellor, shall govern the 
 like matters in cases before the ad- 
 visory masters. Rule 202. 
 
176 
 
 F0KM8 OF PLEADINGS. 
 
 Order of reference to a Vice Chancellor or an. 
 advisory master.(a) 
 
 {I^tle of cause.) 
 
 It is, on this, &c., on motion of, &c., ordered, that the above- 
 stated cause be referred to , one of the Vice Chancellors^ 
 (or, " , one of the advisory masters of this court,") to 
 hear the same for the Chancellor, and to report thereon to him, 
 and advise what order or decree should be made therein. 
 
 Order for cause to stand over to add parties.(6) 
 
 {Title of cause.) 
 This cause coming on to be heard this day, and counsel for 
 both parties having been in part heard ; and it appearing that * 
 
 (o) The Chancellor may refer to a 
 Vice Chancellor (or to an advisory 
 master) any cause or other matter 
 which at any time may be pending 
 in the Court of Chancery, to hear the 
 same for the Chancellor, and to report 
 thereon to him, and advise what.order 
 or decree should be made therein; 
 and any matter or cause in which 
 the Chancellor is interested may be 
 referred to a Vice Chancellor. Bev., 
 " Chancery," ? 116 ; Laws of 1878, p. 
 290. Any cause or other matter may 
 be referred to a Vice Chancellor (or 
 to an advisory master,) at the discre- 
 tion of the Chancellor. Application 
 for such reference, if not made by both 
 parties, may be in the presence of, or 
 upon five days' notice to the adverse 
 party or his solicitor. Bule 193. 
 When a cause shall be referred to a 
 Vice Chancellor (or to an advisory 
 master,) all proceedings in it to the 
 final decree shall be had before him. 
 Bides 194, 202. 
 
 (6) It is the established practice in 
 England that causes will never be dis- 
 missed for want of parties, but are only 
 ordered to stand over on paying the 
 costs, in order to give the complainant 
 an opportunity to make the proper 
 
 parties. 1 Barb, Oh Pr. 321 , and cases 
 cited. The proper time for taking an 
 objection for want of parties is upon 
 opening the pleadings and before the 
 merits are discussed. Jones v. Jones^ 
 3 Atk. 111. But when it appears, at 
 any time before final decree, that a, 
 person not made a party is a necessary 
 party to the suit, courts of equity will, 
 of their own motion, arrest the pro- 
 ceedings, that such person may be 
 made a party. Van Keuren v. Mc- 
 Laughlin, 6 a E. Or 163, 379 ; Sey- 
 mour V. Long Dock Co., 2 C. E. Or. 
 169. By statute in New Jersey, ap- 
 plications to be made parties by per- 
 sons who have acquired an interest in 
 the subject-matter of the suit since the 
 filing of the bill, may be made, either 
 before or after decree, by petition 
 instead of by the filing of a supple- 
 mental bill. The forms and the prac- 
 tice under this statute will be given in 
 a subsequent part of this work. 
 
 An order allowing the cause to- 
 stand over is a relaxation on the part 
 of the court, and is always considered 
 as made by consent ; therefore, it can- 
 not be appealed from. Beresford V- 
 Adair, 2 Cox 156. 
 
HEAEING, 177 
 
 is a necessary party defendant (or " complainant ") to this 
 cause : It is, on this, &c., on motion, &c., ordered, that this cause 
 do stand over, to the end that the complainant may make the 
 said a party thereto, either by amendment or supple- 
 
 mental bill, as he may be advised. 
 
 Order for cause to stand over to supply proofs.(a) 
 {Title of oaiise,). 
 
 As in preceding form to *, then, " the complainant has omitted 
 to introduce proof of the death of , his intestate, {or as 
 
 the case may be:) It is, on this, &c., on motion, &c., ordered, 
 that this cause do stand over, to the end that the complainant 
 may examine witnesses to prove the death of the intestate {or as 
 the case may be.) 
 
 Decretal order retaining bill, with liberty to bring 
 an action at law.(6) 
 
 ( Title of cause.) 
 
 This cause having been brought to hearing upon the pleadings 
 and proofs therein, and having been argued by , of coun- 
 
 (rt) Leave will be given by the (6) The cases in which the court 
 
 court, at the hearing, for the cause to retains the bill, with liberty to the 
 
 stand over for the purpose of supply- complainant to proceed at law, are 
 
 ing defects in the testimony, under those in which it is necessary to estab- 
 
 certain circumstances. See 1 Barb. lish his right at law, in order to 
 
 Ch. Pt. *322, and cases cited. The . found the equitable relief. Widton v. 
 
 introduction of newly-discovered evi- Law, 6 Ves. 150. The complainant 
 
 dence to facts in issue in the cause, ■ cannot take advantage of this practice 
 
 after publication and knowledge of to try whether he has a claim at law, 
 
 the former testimony, and even after and failing there, to come into chan- 
 
 hearing, may be allowed, in the dis- '■ eery and try to raise an equity. . Ibid. 
 
 cretion of the court, where it is indis- The court does not, by retaining the 
 
 pensable to the fijerits and justice of bill, admit the complainant's right to 
 
 the cause. Mulock v. Muhek, 1 Stetx. equitable relief, ■ but may, neverthe- 
 
 . Eq. 15. A defendant may, in the less, ultimately determine against the 
 
 discretion of the court, obtain leave complainant. 2 Dan. Oh. Pr. (Isi 
 
 to amend his answer, after the cause Am. ed.) 1201 ; Seaton on Decrees 356. 
 
 has been set down for hearing. If If the title to dower is disputed, the 
 
 necessary, leave will be given to file right must be established at law, and 
 
 a supplemental answer. Arnaud v. for this purpose the court may direct 
 
 Origg, 2 Stew. Eq. 1. an issue, or in its discretion retain the 
 
178 FORMS OP PLEADINGS. 
 
 sel with the complainant, and by , of counsel with the 
 
 defendant: It is, on this, &c., ordered, that the bill in this 
 cause be retained for , with liberty to the complainant, in 
 
 the meantime, to proceed at law touching the matters in question 
 in this cause, as he shall be advised. And it is further ordered, 
 that if the complainant shall commence an action and proceed to 
 trial within the time above specified, the court reserves the con- 
 sideration of the costs of this suit, and of all further directions, 
 until after such trial shall be had. But in case the complainant 
 shall not proceed at law, and go to trial within the time afore- 
 said, his bill is, from thenceforth, to stand dismissed out of this 
 court, with costs to be taxed. And in either case, any of the 
 parties are to be at liberty to apply to this court, as they shall 
 be advised, (a) 
 
 FINAL DECREE.(6) 
 
 In Chancery of New Jersey. 
 {Title of oaiise.) 
 This cause coming on to be heard at the present (or " last ") 
 regular term (or as the case may be,) of the Court of Chancery, 
 held at the state-house, in the city of Trenton, in the presence of 
 
 till with liberty to the complainant to be disposed of there, jurisdiction 
 
 to bring an action at law. Palmer v. will be retained. Mosser v. Pequest 
 
 ■Casperson, 2 O. E. Gr. 20i. It was Co., 11 C. E. Or. 200. 
 
 ordered that the bill be retained for (o) Where default is made in bring- 
 
 'twelve months, and that the com- ing the action -at law, the bill will 
 
 iplainant be at liberty to bring eject- not be out of court, unless the decree 
 
 ment, in Tomlinson v. Sheppard, 3 expressly directs that, upon default, 
 
 Hcd. Ch. 80. Another cause was re- the bill is to stand dismissed " with- 
 
 tained for the purpose of putting the out further order." 2 Dan. Ch. Pr. 
 
 defendant to his election either to 995 ; Seaton on Decrees 357 ; see Cater 
 
 accept the title or to abandon the v. Dewan, DicJe. 654 ; Stevens v. Praed, 
 
 contract and restore the possession. 2 Cox 374. 
 
 Damson v. Perrine, 7 C. E. Or. 87. (6) When a decree finally decides 
 
 Where a controversy is already before and disposes of the whole merits of the 
 
 the Court of Chancery, and the whole cause, and reserves no further ques- 
 
 matter ma/ be adjusted there, and, in tions or directions for the future judg- 
 
 justice to some of the parties, ought ment of the court, so that it will not 
 
FINAL DECEEB. 
 
 179 
 
 , of counsel with the complainant, and , of counsel 
 
 with the defendants, {or, " the defendant , the complain- 
 
 ant's bill having been heretofore taken as confessed against the 
 other defendants,") and the pleadings and proofs having been 
 read,(a) and the arguments of the respective counsel having 
 been heard and considered, and the court having duly considered 
 the said pleadings, proofs and arguments, (or, " and it appear- 
 ing(6) to the court that the complainant is," or, "is not,") 
 entitled to the relief sought and prayed for by him in his bill of 
 complaint : It is, on this day of , one thousand eight 
 
 hundred and ,(c) by , Chancellor of the State of 
 
 be necessary to bring the cause again 
 before tlie court for its final decision, 
 it is a final decree. Mills v. Hoag, 7 
 Paige 18 ; see Newark Plank Road Co. 
 V. Elmer, 1 Stock. 754. A decree may 
 be final, although it directs a reference 
 to a master, if all the consequential 
 directions depending upon the result 
 of the master's report are contained in 
 the decree, so that no further decree 
 of the court will be necessary, upon 
 the confirmation of the report, to give 
 the parties the entire and full benefit 
 of the previous decision of the court. 
 Ibid. ; see Decker v. Ruckman, 1 Stew. . 
 Eq. 614; Whiting v. Bank U. S., 13 
 Peters 15 ; Michoud v. Oirod, 4 How. 
 503 ; Forgay v. Conrad, 6 Sow. 204. 
 
 Every party who may be aflTected 
 by any order or decree shall be held 
 to have waived all. objection to the 
 form thereof, unless he shall file his 
 objection thereto in ten days from the 
 time of filing such order or decree. 
 The objection shall specify the part or 
 parts of the order or decree to which 
 he objects and state what the form 
 ought to be, provided that nothing 
 herein contained shall be held to pre- 
 vent or preclude an application to the 
 Chancellor to settle the form of the 
 order or decree at any time. Mule 220. 
 
 (a) A decree shall not contain any 
 recital of the bill, answer or other 
 pleadings, but the pleadings, report, 
 or other matters or documents on 
 which the decree is founded, should 
 be merely referred to. JRev., " Chan- 
 cery," ? 51 ; 2 Dan. Ch. Pr. 1002. 
 
 (6) Where the suit seeks a declara- 
 tion of the rights of the parties, the 
 ordering part of the decree should be 
 prefaced by such a declaration. Jenour 
 v. Jenour, 10 Ves. 562, 568. 
 
 (c) Where a party in interest dies 
 after the argument and before the 
 signing of the decree, the decree and 
 orders in the cause should be signed 
 and filed as of the date of the argu- 
 ment. An order for that purpose is 
 necessary. Bumham v. Dailing, 1 C. 
 E. Or. 310. So where a sole com- 
 plainant or defendant dies. Benson 
 V. Woolverton, 1 C. E. Or. 110. When 
 the decree is entered nwnc pro tunc 
 the order required may be made by 
 inserting a recital and direction in the 
 decree in the following form : "And it 
 appearing, (by aflBdavit,) to the satis- 
 faction of the court, that the com- 
 plainant, , {or, 'defendant, ,') 
 has departed this life since the argu- 
 ment of this cause: It is further 
 ordered that this decree be entered 
 
180 
 
 FORMS OP PLEADINGS. 
 
 New Jersey, ordered, adjudged and decreed, [in case the relief 
 prayed for is denied, insert here, " that the complainant's bill be 
 and the same is hereby dismissed, with costs,") and the said 
 Chancellor, by virtue of the power and authority of this court, 
 doth hereby order, adjudge and decree that, &c., {stating the 
 relief granted.){a) 
 
 And * it is further ordered and decreed that the defendants 
 pay to the complainant the costs of this suit to be taxed, and 
 that execution issue therefor according to the practice of this 
 court(6), {or, if further directions are reserved, after * say, " the 
 consideration of all further directions, and of the costs of this 
 suit, are reserved until after the said master shall have made his 
 report," or as the case may be.){c) (If the decree requires a 
 
 nunc pro tunc as of the day of 
 
 , the day when this cause was 
 argued."- 1 Barb. Ch. Pr. *340. 
 Decree, signed by Chancellor on the 
 opinion. of his predecessor in office. 
 Ruekman v. Decier, 12 0. E, Or. 244. 
 If the Chancellor by whom any cause 
 shall, have been finally heard and 
 determined shall go o,ut of office, a,ud 
 some other person sha,ll be apppipted 
 Chancellpr, before the proceedings 
 and final -decree shall, ^lave beein 
 enrolled; and signed, then;hip successor 
 
 . in office .shall sign, such ; enrollment 
 with his own nape, prefixing to his 
 signature tihe.. words V by the statute," 
 
 . and all; pjroceedings and deprees, po 
 
 . signed shall be as good and effectual 
 in law.as if-.the. same^had been duly 
 signed by the ChanpeJlor who pro- 
 nounced .such deprees. Rtv., " Chwa- 
 
 . cery,":i 55., Wherg the original decree 
 was lost, the. court permitted it to be 
 entered w?ib pro tunc, from the office 
 ccpy, after the, lapse pf .twenty-three 
 years. Lawrence y. Bichmojid, 1 J. & 
 W. 241 1 Donne v. iewis, 11 Ves. 601 ; 
 see Jesson v. Brewer, Diek. 370. In 
 all pages where a depree pro confesso 
 may be taken in vapation, it shall be 
 
 lawful * *. * iQ make a final 
 decree in vacation. Mev., " Chancery," 
 H. 
 
 (o) The depree must be in words at 
 length, and not in figures. 
 
 (b) No execution shall issue for 
 costs allowed by any decree or order 
 of the court, unless specially directed. 
 
 . JRule 112. 
 
 (c) The reservation of further con- 
 sideration is not confined to the firet 
 decree, but will be j-epeated in every 
 
 , dccce in which • it may be necessary 
 , to direct an inquiry ; after such a 
 reservation the court will not interfere 
 \ upon the matter reserved in a snm- 
 . mary way, but will require the cause 
 - to be set down Jor hearing. 2 Dan. 
 i Gh. Pr. 993 ; Cook v. Owyn, 3 Ack. 
 
 • 689. Where costs are given by the 
 . decree at the hearing, the subsequent 
 
 • costs will be included. 
 
 , In all suits where the equities be- 
 tween the parties have been settled by 
 an interlocutory decree, the cause 
 may be at once set down for final 
 hearing, and a final decree may be 
 entered at the same term after such 
 
 , hearing. Rule 16 ; Decker v. Buck- 
 man, J. Slew. Eq. 617. Where a decree 
 
FINAL DECBEE. 
 
 181 
 
 further order to complete it, add " and any of the parties are to 
 be at liberty to apply to this court as occasion shall require.")(a) 
 
 {Forms of decrees in particular oases will befownd in a subse- 
 quent part of this work.) 
 
 ( Where a party is required to do any act, as in a creditor's bill, 
 say,) And it is further ordered, adjudged and decreed, that the 
 said shall, within days after service upon him of a 
 
 copy of this decree and of the taxed bill of costs in this cause, 
 pay to the complainant the said sum of , together with 
 
 interest thereon as aforesaid, and the taxed costs of this suit, and 
 that in default thereof, an execution issue, &c.(6) 
 
 reserves further directions and equity 
 until the coming in of the master's 
 report, the cause should be set down 
 for hearing on the equity reserved. 
 Buckman v. Decker, 1 Stew. Eq. 5; 6 
 Stew. Eq. 545. Every party who may 
 be affected by any order or decree 
 shall be held to have waived all 
 objection to the form thereof, unless 
 he shall file his objection thereto in 
 ten days from the filing of the order 
 or decree. Every party who may be 
 affected by an award of costs in any 
 order or decree where the opinion is 
 silent on the subject of costs, shall be 
 deemed to have waived all objection 
 thereto unless he objects, in writing, 
 in ten days from the filing of the 
 order or decree. Rules 220, 221. But 
 application may be made at any time 
 to settle the form of the order or 
 decree or to change the same as to the 
 award of costs. No steps can be taken 
 to enforce the provisions of the decree 
 or to carry the same into execution 
 within ten days from the filing thereof 
 without the special order of the court, 
 and an appeal from the final decree 
 within the ten days stays the issuing 
 of process thereon. See rule 149. 
 
 [a) This clause has not the effect to 
 alter the final nature of the decree. A 
 
 decree with such a liberty reserved is 
 still a final decree, and when signed 
 and enrolled, may be pleaded in bar 
 to another suit for the same matter. 
 The effect of the reservation is to per- 
 mit persons having an interest under 
 it to apply to the court touching such 
 interest, in a summary way, by motion 
 or petition without the necessity of 
 again setting the cause down. 2 Dan. 
 Oh. Pr. (1st Am. ed.) 1203; Anon., 4 
 Madd. 228 ; Seathcole v, Edwards, Jac. 
 504. It has been held that the reser- 
 vation of liberty to apply does not 
 extend to an application by com- 
 plainant to be allowed costs, as to 
 which there is no express direction in 
 the decree. Kendall v. Marsters, 2 
 De G., F. & J. 200. When a decree 
 is entered by consent, the merits shall 
 never be inquired into. 7 Vin. Abr. 
 398. 
 
 (6) Every decree or order requiring 
 a person to do an act, is to state the 
 time, or the time after service of the 
 decree or order, within which the act 
 is to be done. 2 Dan. Ch. Pr. 1005. 
 Where a decree of the Court of Chan- 
 cery shall be made for a conveyance, 
 release or acquittance of lands, or any 
 interest therein, and the party against 
 whom the said decree shall pass shall 
 
182 FOEMS OF PLEADINGS. 
 
 Decree on final hearing in the absence of the 
 complainant.(a) 
 
 {Title of cause.) 
 
 This cause having been regularly set down for hearing at the 
 last term of this court, and the complainant not attending 
 
 at the time appointed for the hearing, either in person or by 
 counsel, and , the answering defendant, appearing by 
 
 , his counsel, and the pleadings and proofs in the cause 
 having been read and the arguments of the counsel of the said 
 defendant heard, and the Chancellor having considered the said 
 pleadings, proofs and argument : It is, on this, &c., ordered and 
 decreed that, &c., (then follows the decretal part in favor of the 
 defendant or complainant, as the case may require, or a dismissal 
 of the bill, with costs.) 
 
 REHEA.RING.(6) 
 
 {Title of cavse and address.) 
 
 The petition of , the defendant in the above- stated 
 
 cause, respectfully shows, that your petitioner finds himself 
 much aggrieved by a decree made by your Honor in this cause, 
 
 not comply therewith by the time ap- and proofs shall be read on the part 
 pointed, then such decree shall be of the defendant or defendants; the 
 considered and taken, in all courts of court thereupon may decree in favor 
 law and equity, to have the same of the defendant or defendants, or 
 operation and effect, and be as avail- complainant or complainants, as the 
 able, as if the conveyance, release or case may require, or may dismiss the 
 acquittance had been executed con- complainant's said bill, with costs, 
 formably to such decree, and this not- Bev. Sup., ''Chancery," § 3. 
 withstanding any disability of such (6) As long as the decree and pro- 
 party by infancy, lunacy, coverture ceedings are not enrolled, it is in the 
 or otherwise. Sev., " Ohancery,'' ^ power of the court to grant a rehear- 
 63 ; see Price v. Sisstii, 2 Beas. 168 ; ing. Srumagim v. Chew, 4 C. E. Cfr. 
 2 C. E. Or. 476 ; Kloepping ads. Slell- 337. A rehearing in equity rests in 
 macher, 7 Vr. 177. the discretion of the court. It is not 
 (o) If the complainant shall not regarded here so much a matter of 
 attend at the time appointed for the course as in the English practice. JV. 
 hearing of the cause, the bill, answer, J. Zinc Co. v. Franklinite Co., 1 Mt- 
 replication, documents, examinations Cart. 308. Eehearings in equity are 
 
EEHBAEING. 
 
 185 
 
 on the day of last, whereby it was, among other 
 
 things, ordered and decreed that {insert the decree or part com- 
 plained of.) And your petitioner submits, that so much of the 
 
 allowed in the United States courts 
 only where some plain omission or 
 mistake has been made, or where 
 something material to the decree is 
 brought to the notice of the court, 
 which had been overlooked. Jenkins 
 V. Eldredge, 3 Story 299. Where a 
 rehearing is sought on the ground of 
 newly-discovered evidence, after an 
 interlocutory decree, the court will 
 grant such a rehearing upon the 
 filing of a. supplemental bill, if the 
 evidence is of such a nature as to 
 entitle the party to relief, upon a, bill 
 of review, or a supplemental bill in 
 the nature of a bill of review, after a 
 finstl decree, but not otherwise. Baker 
 V. Whiting, 1 Story 218. The court 
 always inclines to grant a rehearing 
 upon the usual certificate of counsel, 
 if, upon the matters stated in the 
 petition, there is apparent ground for 
 apprehending that an error has been 
 committed or injustice done by the 
 decree, or if there is reason for believ- 
 ing that a further and fuller argument 
 will shed new light upon the contro- 
 versy or advance the ends of justice. 
 N. J, Zinc Co. V. Franklinite Co., 
 supra. When the ground on which 
 the petition for a rehearing rests, 
 does not afieet the merits of the con- 
 troversy, nor is a matter by which the 
 petitioner can be aggrieved, and when 
 its only effect would be, if maintained, 
 to turn the complainant out of court 
 as an improper party, leaving the 
 controversy undecided, the applica- 
 tion will be denied. Ibid. On a 
 petition and order for rehearing gen- 
 erally, the whole case is open ; and 
 the party supposing himself aggrieved 
 has a right to insist on a reconsidera- 
 
 tion of every part of it. Olover v. 
 Hedges, Sax. 113. A rehearing is 
 always granted when the Chancellor 
 apprehends that a mistake may have 
 been made in the decision, either in 
 law or in fact; but never when the 
 introduction of new evidence is neces- 
 sary to show the mistake. Brumagim. 
 V. Chew, 4 C. E. Or. 337. If the ab- 
 sence of the defendant at the hearing 
 was involuntary or accidental, and a 
 defence was intended to be made, the 
 remedy is by petition to the Chan- 
 cellor for a rehearing. Tawmend v. 
 Smith, 1 Beas. 350. Where the evi- 
 dence failed to support the allegations, 
 but showed complainant's equity on 
 another ground, a rehearing was 
 ordered. Hoagland v. Titus, 1 C. E. 
 Gr. 44. A rehearing will not be 
 granted if the evidence proposed to be 
 offered be merely cumulative. Mc- 
 Dowell V. Perrine, 9 Stew. Eq. 632. 
 A rehearing may be granted after 
 decree, on evidence which the solicitor 
 of the party applying neglected to 
 present to the court. Day v. Allaire, 
 4 Stew. Eg. 303. 
 
 Every petition for a rehearing shall 
 set out concisely the special matter or 
 cause on which such rehearing is 
 applied for, and shall be signed by 
 two counsel, except in cases submitted 
 without argument, when it shall be 
 sufficient if signed by one counsel ; 
 and if a rehearing is ordered, the 
 party who complains of the decree or 
 order, and applies to have it corrected, 
 shall be entitled to open and close the 
 argument. Rule 143. It is not neces- 
 sary to state the proceedings anterior 
 to the decree or order complained of. 
 In a complicated case, however, the 
 
184 
 
 FORMS OP PLEADINGS. 
 
 said decree is erroneous as relates, &c,, because your petitioner 
 shows unto your Honor, that at the hearing of the said cause 
 it was alleged, and strongly urged and insisted on the part of 
 the complainant, that, &o. ; whereby it appeared that, &c. ; and 
 under the impression that, &c., your Honor, as your petitioner 
 conceives, made the decree in relation to, &c. But your peti- 
 tioner now shows unto your Honor, that he has, since the hear- 
 ing, discovered that, &c., before the said hearing, and that, &c. ; 
 and that your petitioner, through inadvertence or forgetfulness, 
 (or as the case may be,) has neglected, &c. 
 
 And your petitioner further shows, that the said decree bus 
 been settled and filed, but has not yet been enrolled. Where- 
 upon your petitioner prays that your Honor will be pleased to 
 grant a rehearing of this cause, your petitioner submitting to 
 pay such costs as the court shall award in case his complaint 
 shall be found groundless. And your petitioner will ever 
 pray, &c. {Signatwes of ootmsel.) 
 
 petition may contain a full statement 
 of the facts requisite to explain the 
 effect and working of the decree 
 sought to be reheard ; nor is it neces- 
 sary it should state the reasons why 
 the party presenting the petition is 
 dissatisfied with the original decree or 
 order. 2 Dan. Ch. Br. 1477 ; Gifford 
 V. Hort, 1 Sch. & Lef. 398. If any 
 order of the court has been made since 
 the decree, for the purpose of carry- 
 ing its provisions into effect, it should 
 be stated. Wood v. Griffith, 1 Mer. 35. 
 The petition to open a decree should 
 state newly-discovered evidence. Mc- 
 Dowell V. Perrine, 9 Stem. Eq. 632. 
 A copy of every petition for rehearing 
 must be served on the opposite party, 
 with a notice of presenting the same. 
 Rule 144. In all cases submitted by 
 the consent of parties without argu- 
 ment, a rehearing shall be granted of 
 course, if either party is dissatisfied 
 with the decree or order made in 
 such case, and phall apply therefor 
 
 within ten days after such decree or 
 order shall be made. Rale 146. A 
 rehearing of decrees signed upon the 
 advice of the Vice Chancellor may be 
 had in the same manner and upon 
 the same terms as in cases heard 
 by the Chancellor. But no rehearing 
 shall be ordered as to conclusions of 
 fact, unless the Vice Chancellor shall 
 certify that, in his opinion, the ques- 
 tions involved, or some of them, 
 should be again heard upon the evi- 
 dence. Rule 148 ; Swallow v. Swallow, 
 12 a. E. Gr. 278. An application for 
 the rehearing of a decree advised by 
 a Vice Chancellor, under this rule, 
 should ordinarily be made to the Vice 
 Chancellor who advised the decree, 
 and if he advise a rehearing he should 
 rehear it himself, and such application 
 should be made to and entertained by 
 the Chancellor only in exceptional 
 oases. Rusling v. Bray, 11 Stew. Eq. 
 398. 
 
KEHEAEING. 185 
 
 We certify that we have examined the case referred to in the 
 foregoing petition, and are of opinion that the decree therein 
 mentioned is erroneous, in the particulars specified in the said 
 petition. {Signatures of eownsel.) 
 
 Caveat against enrolling a final decree.(a) 
 
 (Title of cause.) 
 Let this be a caveat against enrolling and signing the decree 
 made by his Honor the Chancellor, bearing date the day 
 
 of , 18 . 
 
 Witness my hand this day of , 18 . 
 
 {Signature of solicitor or party entering the caveat.) 
 
 Notice of presenting petition for rehearing.(6) 
 
 {Title of cause.) 
 {As on page 148 to *, ihen^ by petition, (a copy of which is 
 hereto annexed,) for an order that the prayer of the said petition 
 be granted, and that " the enrollment of the decree in said cause 
 and " all further proceedings thereon, {or, " on the decretal order 
 in said cause,") be stayed pending such rehearing. 
 
 Order for rehearing, (c) 
 
 {Title of cause.) 
 On reading the petition of , the defendant, filed in the 
 
 above-stated cause, praying for a rehearing of the said cause, 
 
 (a) If a petition for rehearing shall petition, on the opposite party. Side 
 
 be presented to the Chancellor within 144. 
 
 ten days after pronouncing any final In the absence of any express rule 
 
 decree, and a 'caveat against enrolling on the subject, it is presumed that the 
 
 and signing the same shall be filed notice required by the above rule will 
 
 with the clerk of the court, such final be the same as that required on all 
 
 decree shall not be enrolled and special motions, 
 
 signed, nor any process issued thereon (c) No order for a rehearing shall 
 
 until the said application shall be stay proceedings on any interlocutory 
 
 fioally disposed of. Ride 145. decree or order, unless by the special 
 
 (6) A notice of presenting the direction of the court. Bute 147. 
 
 petition to the Chancellor shall be The general practice of applying 
 
 served, together with a copy of the for rehearing of causes in the Court of 
 
186 
 
 F0BM8 OP PLEADINGS. 
 
 and it appearing that due notice has been given of this applica- 
 tion ; and upon hearing , of counsel with the petitioner, 
 " no one appearing to oppose," {or, " and , of counsel with 
 the complainant : ") It is, on this day of , &c., ordered 
 that a rehearing of said cause be granted; and it is further 
 ordered that, upon the said defendant's depositing with the clerk 
 of this court the sum of one hundred dollars,(a) to answer such 
 costs as this court shall award in case the said petitioner's com- 
 plaint shall be found groundless, that (" the clerk of this court 
 refrain from enrolling the final decree in this cause, and that ") 
 all further proceedings in this cause, on the part of the said 
 complainant, be stayed until the further order of this court. 
 
 APPEALS. 
 
 Notice of appeal.(6) 
 
 {Title of cause.) 
 The complainant hereby appeals from the interlocutory decree, 
 {or, " an order made, &c., and from the whole and every part 
 
 Errors and Appeals is the same as in 
 the Court of Chancery, by petition 
 and notice, &c. It is questionable if 
 a rehearing would ever be ordered 
 unless some member of the court, who 
 had voted against the party applying, 
 moved for it. King v. Buekman, 7 C. 
 E. Or. 551 ; Cassedy v. Bigelow, 12 C. 
 E. Qt. 505. 
 
 The following indicates the practice 
 on the subject of rehearing in the 
 United States Supreme Court : Where 
 counsel desire to have a case reheard 
 they may, if the court does not, on its 
 own motion, order a rehearing, sub- 
 mit without argument a brief, written 
 or printed petition or suggestion of the 
 point or points which they think im- 
 portant. If, upon such petition or 
 
 suggestion, any judge who concurred 
 in the decision thinks proper to move 
 for a rehearing, the motion will be 
 considered. If not so moved, the 
 rehearing is denied as of course. Pnh- 
 lic Schools V. Walker, 9 Wall. 603. 
 
 (a) Eehearings in equity, after a 
 decree, are not a matter of right, but 
 rest in the sound discretion of the 
 court. By the English practice a 
 deposit for costs was required. Price 
 V. Dewhurst, 4 Myl. & G. 282. Also 
 by the practice in New York. 1 Barb. 
 Ch. Pr. 359. And in our practice 
 the rehearing is granted on such 
 terms, as to costs, as may be just. 
 
 (6) All persons aggrieved by any 
 order or decree of the Court of Chan- 
 cery may uppeal from the same or any 
 
APPEALS. 
 
 187 
 
 thereof," or, " so much of the final decree {or ' order ') made in 
 this court, in the above-stated cause, as declares the mortgage of 
 the said defendant, , in the pleadings in the cause men- 
 
 part thereof to the Court of Errors 
 and Appeals, and all appeals, except 
 from final decrees, shall be made 
 within forty days after the filing of 
 the order or decree appealed from ; 
 and all appeals from final decrees in 
 the said court shall be made within 
 three years after making such decree, 
 unless a notice of lis pendens has been 
 filed in the county clerk's office, 
 according to law, in which cases all 
 appeals from final decrees shall be 
 made within three months after filing 
 the decree appealed from ; provided 
 that in cases where the person entitled 
 to such appeal from any final decree, 
 be an infant, feme covert or insane he 
 or she shall have three years to bring 
 such appeal after such disability shall 
 be removed. Bev,, " Chancery," § 
 114 ; see Qreen v. Blackwell, 5 Stew. 
 Eq. 768. The word "person" applies 
 to corporations. See Rev., "Statutes^' 
 \ 9. It was held that it is not neces- 
 sary that the person who appeals 
 should be actually a party to the 
 record, provided he has an interest in 
 the matter which may be afiected by 
 the decree or order appealed from. 
 This decision would seem to be appli- 
 cable in New Jersey from the lan- 
 guage of the statute quoted above; 
 See Gifford v. Hart, 1 Sch. & Lef. 409. 
 But it is only in cases in which the 
 interest of the person wishing to ap- 
 peal will be bound by the decree that 
 an appeal will be permitted at the 
 instance of a party not on the record. 
 Winchelsea v. Oaretly, 1 Myl. & Keen 
 253. He may file a supplemental bill 
 for the purpose of making himself a 
 party to the suit, in order to appeal 
 from it. Oifford v. Hort, supra. The 
 
 language of the statute above cited is 
 similar to the provision of the consti- 
 tution regulating appeals from the 
 Orphans' Court to the Prerogative 
 Court. Const., Art. VI., i 4 (3) ; see, 
 also, Bev., "Courts," ? 58, as to appeals 
 from the Prerogative Court ; and see, 
 as to who are "persons aggrieved," 
 Conover v. Walling, 2 McOart. 167 ; 
 Borback v. Van Blarcom, 5 C. E. Or. 
 461 ; Baleigh v. Sogers, 10 C E. Gr. 
 507 ; Swackhamer v. Kline, 10 C. E. 
 Or. 503. An appeal may be prose- 
 cuted in forma pauperis, in a proper 
 case. To obtain leave to do so, a peti- 
 tion must be presented, accompanied 
 by an affidavit, substantially in the 
 same form as required in chancery. 
 Embley v. Hunt, March T., 1878 ; see, 
 also, Bev., "Practice," ?? 307-309. 
 It should state special reasons why 
 the appear is proper. 2 Ban. Ch.' 
 Pr. 1482. A married woman appeal- 
 ing in forma pauperis prosecutes the 
 appeal without a next friend; but a. 
 next friend is required for an infant. 
 Id. Where the complainant in the 
 original suit died after decree, it was 
 held that a bill of revivor will lie, 
 where the sole design of reviving the 
 suit is that an appeal may be taken 
 from the decree, if the parties have 
 the right of appeal. Peer v. Cookerow, 
 2 Beas. 136; Rogers v. Paterson, 4 
 Paige 415. Upon the death of a 
 respondent in appeal, an order mak- 
 ing his administrators and heirs-at- 
 law parties, and for an order of publi- 
 cation, (some of the heirs residing out 
 of this state,) according to the practice 
 in chancery, was made. McOurdy v. 
 Agneii), 4 Hal. Ch. 728 ; and see, as to 
 abatement, &c., 1 Barb. Ch. Pr. 417, 
 
188 
 
 FORMS OF PLEADINGS. 
 
 tioned, to be an existiDg encumbrance upon the mortgaged 
 premises prior to the complainant's mortgage," or otherwise, 
 stating the part of the order or de&ree complained of as erroneous, 
 as the case may be,) to the Court of Errors and Appeals in the 
 last resort in all causes. 
 
 Solicitor of complainant. 
 Dated, &c. Of counsel. 
 
 I conceive there is good cause for appeal in the above-stated 
 cause. . Of counsel with complainant. 
 
 et seg. The court may order a re- 
 argument while a cause is still pend- 
 ing, and before the papers have been 
 remitted. But after the judgment 
 has been entered and the papers 
 remitted, the Court of Appeals has no 
 further jurisdiction with . respect to 
 the case. King v. Suckmam, 7 C. E. 
 Gr. 551. 
 
 The appeal to be filed shall state 
 shortly the parts of the order or de- 
 cree complained of as erroneous, and 
 shall be signed by counsel, who shall 
 state that he conceives there is good 
 cause for the appeal. Rule 151. If 
 the party appealing from a final de- 
 cree shall, within ten days after the 
 filing of such final decree, file his 
 appeal with the clerk of the Court of 
 Chancery, pro(;ess shall not issue on 
 said decree without the order of said 
 couit or of the Court of Appeals. 
 Rule 150; see Sakenck v. Conover, 2 
 Beas. 31. In case a defendant does 
 not appear at the hearing before the 
 Chancellor, the cause having been 
 regularly noticed for argument, he 
 cannot appeal from the decree thus 
 rendered in his absence. Townsend v. 
 Smith, 1 Seas. 350. When a final 
 
 decree involves the merits of the 
 case settled by the interlocutory de- 
 cree, an appeal from the final decree 
 brings the whole case before the court. 
 Ter Aune v. CoUon, 1 Beas. 312; Orane 
 V. Be Camp, 7 0. E. Gr. 614; Decker 
 V. Ruekmam, 1 Stew. Eq. 614 ; Clair v. 
 Terhune, 8 Stew. Eq. 336. The general 
 rule is, that an appeal will lie from 
 all orders either granting, refusing, 
 sustaining or dissolving injunctions. 
 Morgan v. Rose, 7 C. E. Gr. 584; 
 Chegary v. Schofield, 1 HaX. Ch. 525. 
 A decree appointing a receiver may 
 be appealed from. Weissenhorn v. 
 Sieghortner, 6 C. E. Gr. 482. An 
 order refusing to eet aside a sale upon 
 an application based on the illegality 
 of the sale, is appealable. Bank of 
 Metropolis v. Sprague, 6 C. E. Or. 
 458. There can be no appeal from 
 an order directing process to bring in 
 the parties to answer for an alleged 
 contempt. Coryell v. Sblcombe, 1 
 Stock. 650. The fact that the decree 
 sought to be appealed from has been 
 executed, does not deprive the party 
 of his right of appeal. Peer v. Cooke- 
 row, 1 McCart. 361. 
 
APPEALS. 189 
 
 Affidavit of service of notice of appeal, (a) 
 
 State of New Jersey, 1 
 
 county of , J ' 
 
 , being duly sworn, says — that on the day of 
 
 , at , he served the within notice, {or, " the notice 
 
 hereto annexed," or, "the notice, a copy of which is hereto 
 annexed,") on , the defendant in this cause, * by delivering 
 
 the same, {or, " a copy thereof,") to him personally, and leaving 
 the same with him, {or, " by leaving said notice at his residence 
 with , a member of his family," or, " by delivering the 
 
 same to ," a clerk or person having charge of the office,) ■ 
 
 the said being absent at the time. 
 
 Sworn, &c. {Signature.) 
 
 Order to stay proceedings on an appeal from an 
 interlocutory decree.(A) 
 
 {I^tle of cause.) 
 This matter being opened to the court by , of counsel 
 
 with the complainant {or " defendant,") and it appearing that 
 the complainant {or " defendant ") has filed an appeal froin the 
 interlocutory decree made in this cause on the day of 
 
 last : It is, on this, &e;, ordered, that all further proceed- 
 ings in this court in the above cause be stayed pending the said 
 appeal.(e) 
 
 (o) A copy of the foregoing notice (c) The court, as a general rule, 
 of appeal shall be served on the will not stay the execution of an inter- 
 solicitor of the adverse party,' if he ' locutoiry decree pending an appeal, 
 has prosecuted or defended by a soli- unless its execution will render it im- 
 citor. Ride 151. It is the practice to , possible to set the appellant right 
 procure a copy from the Clerk, and to again in case he is successful on the 
 make service of the notice of appeal appeal. Ratzer v. Ratzer, 2 Stew. Eq. 
 within ten days after the filing 162. An appeal from a decree di- 
 thereof . , recting an account to be stated, will 
 
 (h) An appeal from an interlocutory not stay the accounting. Ibid. ; 
 
 decree or order shall not stay proceed- Schenck v. Oonover, 2 JBeas. 32 ; Jewelt 
 
 ings in the cause without an order of v. Dringer, 2 Slew. Eg. 199. In con- 
 
 the Court of Chancery or of the Court sidering an application to stay the 
 
 of Appeals for that purpose first had, execution of an interlocutory decree 
 
 ' which shall be granted upon such pending an appeal, the court must 
 
 terms as the court making the order assume the decree to be right. Ratzer 
 
 may impose. Rule 149. v. Ratzer, supra. 
 
190 
 
 POEMS OF PLEADINGS. 
 
 SUMMONS AND SEVERANCE (a) 
 
 Rule to show cause, &c. 
 
 This cause being opened to the court by , solicitor and 
 
 of counsel with the defendants below, {naming them,) on motion 
 to strike from the files of this court the petition of appeal, 
 
 (a) It is a certain rule that all the 
 parties to the suit below must in all 
 cases of error be made parties also in 
 the writ of error, and in case of the 
 death of a party he must he named 
 and his death alleged in the writ. 
 Brewer v. Turner, Sir. 233 ; Cooper v. 
 Ouiger, Sir. 606. See form of allega- 
 tion in writ of error in case of death, 
 1 Arch. Pr. 232. 
 
 If, therefore, there is a joint judg- 
 ment against two and the writ is laid 
 ad damnum of one of them only, it 
 will be quashed on motion, for other- 
 wise this inconvenience would ensue, 
 that every defendant might bring a 
 writ of error by himself, and by that 
 means delay the plaintiff from having 
 the benefit of his judgment, though it 
 should be affirmed once or oftener. 
 1 Arch. Pr. 232; 2 SeU. Pr. 536. If 
 one, therefore, bring error, he must do 
 it in the name of all; and if after- 
 wards any of the others refuse to 
 appear upon the scire facias quare, 
 &c., or to assign errors upon the rule 
 given for that purpose, summons and 
 severance lies; and the court will 
 grant the other plaintiff in error time 
 till such summons and severance is 
 effected. Mod. G. 40 ; Yelv. 4. 
 
 After a scire facias taken out and a 
 scire /eci returned, one of the plaintiffs 
 in error moved for time to assign 
 errors till there could be a summons 
 and severance of the other, upon affi- 
 davits that the other execution was in 
 the interest of the defendant in error 
 
 and would not join, and time was 
 given accordingly. Frescobaldi v. 
 Mnaston, Str. 783. 
 
 Three join in bringing a writ of 
 error ; the defendant pleads outlawry 
 in abatement aa to one of them, but 
 the court held this no good plea, 
 because they are all compellable to 
 join. Pcdm. 151. 
 
 Bat although there is this strictness 
 in all the parties who should be 
 plaintiffi in error joining, yet it does 
 not seem to hold with respect to the 
 defendants in error, for where one 
 defendant in error only appeared and 
 sued out the scire facias qtuire, and 
 plaintiff.assigned errors, it was deemed 
 a waiver of the objection that the 
 other should have joined ; and it was 
 said that the reason why plaintiffs 
 should join did not apply to defend- 
 ants, viz., the inconvenience that 
 would arise by a perpetual delay in 
 execution if every defendant might 
 bring a writ of error by himself. 
 Knox V. Costello, Burr. 1789. 
 
 A writ of error was quashed because 
 all the proper parties were not 
 plaintiffs. Ld. Raym. 71. 
 
 But if the defendant in error pro- 
 ceeds without quashing the writ, and 
 judgment is affirmed, he can only sue 
 out execution against the one who was 
 party to the writ ; nor can he do that 
 if the error be in Exchequer Cham- 
 ber till the remittitur is sent into 
 King's Bench. Laroche v. Wasbrough, 
 2 Dum. & E. 737. 
 
APPEALS. 191 
 
 because the said petition has been irregularly filed, in that it 
 names and joins as appellants with said the last-named 
 
 parties and others, against their will and without their consent ; 
 and the matter having been considered by the court : It is 
 ordered, on this (dale,) that the said appellant, , have 
 
 leave to summon the defendants, (naming them,) by an immediate 
 service of a copy of this order on said parties or their solicitors, 
 to show cause, on the (date,) before this court, at the state-house, 
 in the city of Trenton, why they and each of them shall not be 
 joined as appellants in this court in said cause on appeal ; and 
 it is further ordered, that in case all or any of the said defend- 
 ants below refuse to join in said appeal in this court with the 
 said , that then the said defendants in the court below, as 
 
 above named, be and they shall be severed from the said 
 as appellants in this court ; and that they, the said defendants 
 below, (naming them,,) be regarded and stand as respondents in 
 the above-stated cause on appeal in this court. 
 On motion of 
 
 (Name of solicitor of appellant.) 
 
 Another form of rule to show cause.(a) 
 
 This matter being opened to the court by , of counsel 
 
 with the appellants, and it appearing that has filed his 
 
 petition of appeal from the decree of the Court of Chancery in 
 said petition mentioned, and has joined in said appeal 
 and , who have failed to appear and prosecute said 
 
 appeal : It is (date) ordered, that said and show 
 
 cause before this court, on (date,) why the said (appellants) 
 should not be severed in said appeal, and said should not 
 
 prosecute the appeal alone ; and it is further ordered, that this 
 
 (a) Instead of the common-law pro- The practice indicated above ap- 
 
 cess of summons, the practice is to plies to cases on appeal from the 
 
 take and serve a rule to show cause, Prerogative Court {Holcombe v. Hoi- 
 
 upon those who failed to appear, why combe, 2 Stew. Eq. 375), and from 
 
 he who had sued out the writ should the Court of Chancery. See record 
 
 not prosecute it alone. Sheppard v. in Johnson v. PouUon, 5 Stew. Eq. 
 
 Fenton, 4 Salst. 8; Van Buskirk v. 390. 
 Soboken & N. Y. B. B. Co., 2 Vr. 368. 
 
192 FORMS OF PLEADINGS. 
 
 rule be served upon said and within five days from 
 
 the date hereof. On motion of 
 
 {Name of solioitor.) 
 
 Refusal to join. 
 
 Under the rule to show cause, entered in the above-entitled 
 suit on the part of , appellant, at the present term of , 
 
 of this court, the following-named persons, to wit, (naming them,) 
 all of whom are defendants in this cause in the Court of Chan- 
 cery, now come here into court by , their solicitor, in 
 obedience to said rule to show cause, and say that they have not 
 appealed from the decree made by the Chancellor in this cause, 
 nor from any part thereof, and that their names have been used 
 as appellants in the petition filed in this court by the said 
 without their consent and against their will, and they 
 hereby refuse to join in the said appeal. 
 
 Dated, &c. {Signature of solicitor.) 
 
 Order of severance. 
 
 It appearing to the court that the order of this court hereto- 
 fore made, requiring {naming them) to show cause, on this {date,) 
 why they, and each of them, should not be joined as appellants 
 in this court in said cause on appeal, has been duly served, and 
 it further now appearing that they and each of them refuse to 
 join in the said appeal, and are content with the decree below, 
 and desire to be regarded as respondents in this cause in this 
 court: It is now, on this, (^a<e,) lOrdered by the said court that 
 the said {naming thejn) be and they are hereby severed from the 
 said in thp prosecution of said appeal, and that they 
 
 stand and be regarded as respondent's in the prosecution thereof, 
 together with , who were complainants below, and that 
 
 the said have l^slve to ataeiid, and to file an amended 
 
 petition of appeal in this cause accordingly. 
 , On motion of 
 
 {Name of solicitor of appellant.) 
 
APPEALS. 19? 
 
 Ancient form of writ of summons.(a) 
 
 To, &c. — Greeting: 
 
 Since we lately have given in charge to our juatices aesigned 
 for holding pleas before us, our writ of error, setting forth that 
 in the record and process and also in the giving of judgment 
 of the plaint which was in our court before our justices of the 
 bench by our writ, between A C and R S and W A, executors 
 of the will of H P, lately of, &c., soldier, manifest error hath 
 intervened in this, that the said R and W should render to the 
 plaintiff, A C, fifty pounds, to the great damage of them, the' 
 said R and W, as we from their complaint are informed ; we 
 being willing that the error, if any there be, should be corrected 
 in due manner, and that full and speedy justice should be done 
 to the parties aforesaid in this behalf, have caused for certain 
 reasons the record and process to come before us and to remain 
 before us, and have given in charge to said justices, that the 
 record and process aforesaid being inspected, they should further 
 cause to be done thereupon for correcting that error what of 
 right and according to the law and custom of our realm of 
 England ought to be done ; whereupon the said R and W, for 
 prosecuting the writ of error aforesaid in our said court before 
 us having been solemnly called, the said W in his own proper 
 person in our court before us appeared, and the said R made 
 default; for which cause the said W in our said court prays 
 our writ to be directed to you to summon the aforesaid R, that 
 he be before us to prosecute, together with the said W, against 
 the aforesaid A, the writ of error aforesaid, which by us is 
 granted to him ; therefore we command you that you summon 
 by good summoners the aforesaid R, that he be before us at a 
 day, &c., wherever, &c., to prosecute, if he shall wish, together 
 with the said W, the writ of error aforesaid, and further to do 
 and receive what our said court before us shall consider in this 
 behalf; and have you there the names of the summoners and 
 this writ. Witness, &c. 
 
 (a) The form of writ of summons as into English, is given above. See 
 anciently used in England, translated Thes. Brev. 301. 
 
 N 
 
194 
 
 FORMS OF PLEADINGS. 
 
 Order for execution to issue, notwithstanding an 
 appeal.(a) 
 
 {Title of cause.) 
 
 This matter being opened to the court by, &c., and it appear- 
 ing that due notice of the application for this order was given 
 to the solicitor of the {adverse party:) It is, on this, &c., ordered, 
 that a writ o{ fieri facias do issue, pursuant to the decree in this 
 cause, nothwithetanding the appeal therein. 
 
 Petition of appeal to the Court of Appeals.(6) 
 
 To the Honorable the Court of Errors and Appeals in the last 
 resort in all causes : 
 The petition of , the appellant in the above- stated 
 
 cause, respectfully shows that your petitioner finds himself 
 
 (a) See rule 150. Whether the party 
 shall be permitted to proceed, not- 
 withstanding the appeal, rests in the 
 discretion of the court, and if the stay 
 of execution is unnecessary to protect 
 the rights of the appellant under the 
 appeal, and must operate prejudicially 
 to the complainant, the court ought 
 not to interfere to prevent the issuing 
 of the execution. This practice is in 
 accordance with that of the English 
 courts of equity, which we follow 
 -except 80 far as it may be modified by 
 statute or rule, or by the established 
 practice in our own court, as well as 
 by the practice in chancery of New 
 Jersey. Schenck v. Conover, 2 JSeas. 31. 
 The court may continue an injunction 
 pending an appeal from a decree of 
 ■dismissal. Jewett v. Dringer, 9 Stem. 
 Eq. 199. In Penn Mut. Ins. Co. v. 
 Semple, where an injunction was ap- 
 plied for pending an appeal restrain- 
 ing the sale of certain machinery, and 
 to have a receiver therefor appointed, 
 the Chancellor held that the defend- 
 ant should have security. Where 
 respondent is entitled to execution, 
 
 and the appellant applies for a stay in 
 the appellate court, the stay will not 
 usually be granted without security to 
 the respondent. 11 Stew. Eq 314. 
 
 (6) The party appealing from a 
 final decree shall present his petition 
 of appeal to the Court of Appeals at 
 the next term after pronouncing the 
 said final decree, and on the first or 
 second day thereof; and in default of 
 so doing, such appeal shall be deemed 
 to have been waived, and the cause 
 may proceed as if no appeal had been 
 filed. Rule 152. In the petition of 
 appeal shall be briefly stated the order 
 or decree complained of, and the 
 grounds of appeal ; and the party ap 
 pealing shall serve a copy thereof on 
 the solicitor of the adverse party, if 
 he has a solicitor, or if he has not, 
 then on the adverse party, if to be 
 found in this state, within thirty days 
 after filing the said petition ; and 
 shall also, within the same time, de- 
 posit with the clerk in chancery one 
 hundred dollars to answer the costs of 
 the appeal, if the appellant shall not 
 prosecute the same to efiect: and in 
 
APPEALS. 195 
 
 aggrieved by a final decree {or " an order,") made in the Court 
 of Chancery by his Honor , Chancellor of New Jersey, 
 
 bearing date the day of , in the year, &c., wherein 
 
 the said was complainant, and the said and 
 
 were defendants, in this respect, to wit: that the said decree 
 adjudges that, &c., {reciting the decree or order, or such part of 
 it as is complained of as erroneous.) And your petitioner hum- 
 bly appeals from that part of the decree {or " order ") of the 
 Chancellor which decrees {or "orders") as aforesaid, upon the 
 ground that the same is erroneous, for that, &o., {as the case may 
 be.) Your petitioner therefore prays that the said decree {or 
 " order ") of the said Chancellor may be, in the particulars afore- 
 said, reversed, set aside and for nothing holden. And that your 
 petitioner may have such relief in the premises as to this honor- 
 able court shall seem meet. 
 
 Solicitor of appellant. 
 Of counsel with appellant. 
 
 Answer to petition of appeal.(a) 
 
 New Jersey Court of Errors and Appeals. 
 
 Between ) 
 
 Appellant, I 
 
 and ^ j 
 
 Kespondent. J 
 
 The answer of the above-named respondent to the petition of 
 appeal of the above-named appellant. 
 This respondent, not acknowledging all or any of the matters 
 which in the said petition of appeal are contained to be true, 
 
 default of serving a copy of the peti- answer to the petition of appeal within 
 
 tion, and making such deposit as thirty days after service of a copy of 
 
 aforesaid, proceedings may be had on the said petition and the making of 
 
 the order or decree appealed from, as the deposit required by rule 19; and 
 
 if such appeal had not been made ; in default thereof, the appellant may 
 
 and the said appeal may be dismissed enter a rule as of course, in vacation 
 
 by the Court of Appeals, with costs, or term time, with the clerk of the 
 
 Rule 16, Court of Appeals. The ap- Court of Appeals, for the hearing of 
 
 pellant in his petition of appeal should the appeal, and may bring on the 
 
 state his case fully and the particulars same, by giving and filing notice 
 
 in which he is aggrieved. Jachson v. thereof, as required by the rules. 
 
 Peoples Bank, 1 Stock 205. Mule 21, Court of Appeals. 
 (a) The respondent shall file an 
 
196 F0EM8 OF PLEADINGS. 
 
 for answer thereto, nevertheless, says and admits, that a decree 
 {or " an order ") was, on the day of last past, made 
 
 and entered in the Court of Chancery, in the cause for that pur- 
 pose mentioned in the said petition, as is therein stated ; but as 
 to the substance and form thereof, this respondent prays to refer 
 thereto when the same shall be produced. And this respondent 
 is advised and believes, that the said decree {or "order") is 
 agreeable to equity, and he prays that the same may be aiErmed^ 
 with costs to be adjudged to this respondent. 
 
 {Signature of solicitor and counsel.) 
 
 Notice of argument in Court of Appeals.(a) 
 
 {Title of cause.) 
 Sir — Take notice that the argument of the appeal in the 
 above cause will be brought on at the next term of the Court of 
 Errors and Appeals, to be held at the state-house, at Trenton, 
 on Tuesday, the day of next, at eleven o'clock 
 
 A. M., or as soon thereafter as counsel can be heard. 
 
 {Signature of solicitor.) 
 To , Solicitor of respondent.(6) 
 
 (a) All causes on appeal may be (i) The solicitor for the adverse 
 
 brought on and heard on twenty party, if any, in the court below, shall 
 
 days' notice thereof in writing, and be considered as solicitor for the 
 
 on filing a copy or abstract of such ' respondent on appeal ; and notices 
 
 notice in the office of the clerk, at and papers served on him shall be^ 
 
 least five days previous to the first deemed good service until the respond- 
 
 day of the term at which such cause is ent in appeal shall give notice in 
 
 to be set down for hearing. JRide 11. writing to the appellant in appeal 
 
 All causes shall be noticed for hearing that he has employed another solicitor, 
 
 on the first day of the term, if at issue naming in such notice the solicitor 
 
 long enough to admit of such notice ; employed, or until appeai-ance entered 
 
 if not, then they may be noticed for a by a new solicitor. Rule 2. 
 
 day in term not later than the twen- Order of the hearing. The neces- 
 
 tieth day. Sule 12. When a cause sary papers in the cause shall be read 
 
 is regularly noticed for hearing, if the without explanation or comment, after 
 
 appellant shall not appear to argue which one of the counsel for the 
 
 the appeal, the decree of the court appellant shall open the cause ; then 
 
 below shall be affirmed, with costs; two counsel for the opposite party 
 
 and if the respondent fails to appear, may be heard in answer, and one 
 
 the appellant may proceed ex parte. counsel only for the opening party 
 
 Rule 27. shall be allowed to reply ; but in case- 
 
APPEALS. 
 
 197 
 
 Printed cases and briefs in Court of Appeals.(a) 
 
 The points or brief will of course vary in every case. They are 
 similar in form to the points on a hearing in the Court of Chan- 
 cery. The requirements of the rules in regard to them will he 
 found in the notes. 
 
 •of an appeal from an order or decree 
 of the Court of Chancery, in a cause 
 where there are several defendants 
 who have separate and distinct inter- 
 ests, and who have different counsel 
 concerned for them, the counsel for 
 the respective defendants shall be 
 heard in such order as the court may 
 direct, but not more than two counsel 
 shall be allowed to argue for any one 
 defendant; and if more than two 
 ■counsel answer for the defendant, in 
 that case two counsel may be heard in 
 reply. Rvle 28. 
 
 In the argument of all causes, 
 • there shall be allowed to each side, 
 when but one counsel is to be heard 
 on either side, the period of one 
 hour ; when two or more counsel are 
 ■to be heard on each side, the period 
 of two hours, unless express permis- 
 sion shall be given for a longer speci- 
 fied time before the argument of the 
 -cause is commenced, and the argu- 
 ments shall then be limited to the 
 time thus allowed. The presiding 
 officer shall in all cases enforce a 
 strict observance of this rule. On all 
 arguments arising incidentally before 
 •the court, or not before provided for, 
 one counsel shall be heard in opening 
 the matters in question or points, then 
 two counsel for the opposite party may 
 answer, and one counsel only for the 
 opening party shall be allowed to 
 reply. Bule 29. 
 
 (o) The appellant * * * shall 
 provide a state of tlie case, containing 
 the pleadings, proofs and order or 
 decree in chancery, and the petition of 
 
 appeal and answer on appeal, * * * 
 and also the reasons given in the court 
 below for the decree or order * * * 
 complained of, (or an abridgment 
 thereof, in case one can be agreed on 
 by the parties or their counsel,) which 
 shall be printed on good paper, with 
 a large inargin, with pages numbered 
 consecutively, and every tenth line of 
 each page numbered. Three copies 
 of the state of the case shall be fur- 
 nished to each adverse party, at least 
 twenty days before the day noticed for 
 argument, and a copy shall, previous 
 to the hearing, be delivered to each 
 member of the court, and to the clerk, 
 to be filed. Bule 17. 
 
 It is not necessary to print the 
 pleadings and evidence in full. The 
 formal parts of the bill may always 
 be advantageously omitted, and the 
 pleadings in most cases materially 
 abridged. Cooper v. Cooper, 1 Stock. 
 655. 
 
 Each party shall furnish to each 
 member of the court and to each of 
 the opposite counsel, in print, at the 
 commencement of the argument, the 
 points upon which he means to rely, 
 with n, citation of all the authorities 
 to be used in the argument, and cases 
 may be submitted on such arguments. 
 Ride 18. When an appeal from an 
 order or decree shall be heard, the 
 Chancellor shall inform the court, in 
 writing, of the reasons for his order or 
 decree, but he shall not sit as a mem- 
 ber, or have a voice, in the hearing or 
 final sentence. Const. N. J., Art. VI., 
 § 2,T[5; Eev.," Courts," I 9. 
 
198 
 
 FOKMS OF PLEADINGS. 
 
 Remittitur on affirmance.(a) 
 
 New Jersey Court of Errors and Appeals. 
 
 Term, 18 
 
 Between ^ 
 
 Appellant, I 
 
 and I 
 
 Respondent. J 
 
 This cause having been brought to a hearing, on an appeal 
 from the Court of Chancery, at the last term of this court, 
 
 {or as the ease may be,) and , of counsel with the appel- 
 
 (o) By the English practice, the 
 ordering or decretal part may be fully 
 recited, if the petition of appeal com- 
 plains of the whole order or decree ; 
 but if such petition complains only 
 of part of the order or decree, then no 
 more thereof is to be recited than is 
 complained of, or what necessarily 
 relates thereto ; nor is more of such 
 petition to be recited than the points 
 complained of, and no recital is to be 
 made of the reasons or allegations of 
 counsel therein assigned. But- in 
 cases where the decree or order is 
 varied, the scope and substance of so 
 much of the proceedings only as is 
 material and tending to the points 
 varied, is to be recited ; and the 
 recital is to be made in the most con- 
 cise manner. JBeames' Orders 381 ; 
 Sealon on Decrees *390. 
 
 When a cause has been decided by 
 final decree or order of the Court of 
 Errors and Appeals, it is the duty of 
 the clerk of that court to return to the 
 clerk of the Court of Chancery all the 
 papers which have been received 
 from him, for which he shall take a 
 receipt, together with a copy of the 
 order or decree of the Court of Ap- 
 peals (called the re/mittiiur), which 
 order or decree it is made the duty of 
 the Court of Chancery to carry into 
 effect. Bev., "Courts," ? 15. The 
 
 court renders such a decree as chan- 
 cery ought to have made; reverses 
 what is wrong ; decrees what is right, 
 and models the relief according to its 
 own views of the ends of justice and' 
 the exigencies of the case. Where 
 the Court of Errors and Appeals has 
 rendered a decree after hearing on 
 the merits and the decree has been 
 entered in the minutes in accordance 
 with the views of the court, and the 
 record has been regularly remitted to 
 the court below, it has no further 
 jurisdiction of the case. Putnam v. 
 Clark, 8 Stew. Eg. 145. 
 
 The prevailing party recovers costs 
 in the Court of Errors and Appeals, 
 in which is included cost of printing,. 
 unless the court shall in express terras 
 adjudge to the contrary. Rule 34. 
 The payment of the costs which are 
 awarded by the Court of Errors and 
 Appeals, upon appeal, is enforced by 
 the Court of Chancery according to 
 the practice of that court. See Dan. 
 Ch. Pr. 1504 
 
 A writ of error to remove a cause 
 to the Supreme Court of the United 
 States, may be directed to the Court of 
 Errors and Appeals where the judg- 
 ment was rendered, if the record still 
 remains there, or to the court below, 
 if it has been remitted. Brumagim v. 
 Chew, 6 C. E. Ch. 180. 
 
APPEALS. 199^ 
 
 lant, and , of counsel with the respondent, having been 
 
 heard, and the questions brought up by said appeal having been 
 duly considered: It is, on this, &c., ordered, adjudged and 
 decreed, that the decree [or " order ") of the Court of Chancery, 
 made on the day of ,18 , which * is appealed 
 
 from by the appellant j be and the same is hereby ** in all things 
 affirmed, with costs of appeal to be paid by the appellant, {or, 
 " with costs in this court and in the Court of Chancery, to be 
 paid by the appellant,") and that the petition of appeal be dis- 
 missed. And it is further ordered, that the record be remitted 
 to the Court of Chancery to proceed further thereon according 
 to law and the practice of said court. 
 On motion of 
 
 Solicitor of respondent. 
 
 {Certificate of clerk of Court of Appeals, under his seal, to be 
 annexed.) 
 
 Remittitur on reversal. As in preceding form to *, then, 
 adjudged {reciting the finding of the court, if it be special; and 
 then, be and the same is hereby reversed, f set aside and for 
 nothing holden, with costs of appeal to be paid by the respondent, 
 {or, " with costs both in this court and in the Court of Chan- 
 cery, to be paid," &c.) And it is further ordered, that the 
 record and proceedings be remitted to the Court of Chancery, to 
 the end that this decree may be carried into execution, {or, 
 after f, " with costs of appeal to be paid by the respondent,") 
 and that a decree be entered in the Court of Chancery, for the 
 complainant therein, for {amount,) with the costs taxed in that 
 court, {or, renting the directions of the court, as the case may be. 
 Conclude as above.) 
 
 On motion of, &c. 
 
 Decree of reyersal in chancery on remittitur. (a) 
 
 {Title of cause.) 
 Upon opening the matter this day to the court by , of 
 
 counsel with {the appellant in the Court of Appeals,) and it ap- 
 
 (o) In some cases the appellate the decree appealed from, will give 
 court, instead of affirming or reversing directions to the court below to rectify 
 
200 
 
 FORMS OF PLEADINGS. 
 
 pearing that said filed an appeal from the decree made in 
 
 this cause, {or, if an order or interlocutory decree has been ap- 
 pealed from, say here, instead of " decree," " order," or, " inter- 
 locutory decree filed in this cause,") on the day of , 
 18 , to the Court of Errors and Appeals in the last resort ; 
 and that the said appeal has been determined by the said Court 
 of Appeals, and the proceedings have been remitted to this court 
 to proceed further thereon according to law ; and on reading 
 the remittitur from the said Court of Appeals, whereby it ap- 
 pears that * it was ordered and decreed by said court that the 
 said decree {or "order") of the Chancellor be in all things 
 reversed, set aside and for nothing holden, with costs to be paid 
 by the defendants, in this court, to the complainant, (or vice 
 versa :) It is thereupon, on this, &c., on motion as aforesaid, 
 ordered, that the decree of the said Court of Appeals be and the 
 same is hereby made the decree of this court ; and it is further 
 ordered, that an execution issue out of this court for the said 
 costs, according to the practice of this court. 
 
 it. In such cases, and in cases where 
 the appellate court reverses the de- 
 cree, the order or decree of the appel- 
 late court must be made the order or 
 decree of the Court of Chancery. 
 AWy-Otn. V. Scott, 1 Ves. 419. Where 
 a decree of the Court of Chancery was 
 affirmed by consent, it was moved to 
 make the judgment of the Lords an 
 order of the Court of Chancery, but 
 Lord Hardwicke doubted whether 
 such a thing was ever done. Id. 419 
 It cannot, under any circumstances, be 
 necessary, where a decree is simply 
 affirmed, unless the proceedings under 
 it have been suspended pending the 
 appeal. 2 Dan. Oh. Pr. 1503. In 
 practice in New Jersey, no order is 
 entered on a remittitur simply affirm- 
 ing the decree of the Court of Chan- 
 cery, but an order to make a decree of 
 the appellate court the decree of the 
 Court of Chancery may, by the Eng- 
 lish practice, [and a like practice pre- 
 
 vails in New Jersey,] be obtained of 
 course, on motion, upon the produc- 
 tion of the remittitur from the appel- 
 late court. Man v. Bicketts, 3 De G. 
 & S 446. This decree or order be- 
 comes the law of the case, and care 
 should be taken in drawing it up that 
 it embrace all the points determined 
 where the decree is modified or 
 reversed, that the court below may 
 know with precision the directions of 
 the court above. ' On presenting the 
 remittitur and on special motion, with- 
 out notice, the Court of Chancery will 
 grant an order or decree to be entered 
 on filing the remittitur pursuant to and 
 in the terms of the order of the court 
 above. If the appeal was from au 
 interlocutory order, and the Court of 
 Appeals had not disposed of the whole 
 subject-matter, the proceedings are 
 resumed at the stage of the cause when 
 the appeal was taken. 
 
APPEALS. 201 
 
 Order for execution for costs on affirmance in Court 
 of Appeals.(a) 
 
 {T^tle of cause.) 
 
 Upon opening this matter, &c., {proceed substantially as in 
 foregoing form to *, then,) the decree of the Court of Chancery 
 appealed from, (in part,) was in all things affirmed, (or, " affirmed 
 as to the parts thereof appealed from,") with costs in the said 
 Court of Appeals and in this court, to be paid by the said 
 {appellant;) and it further appearing, by affidavit, that a copy 
 of the said decree of this court, and of the remittitur from the 
 Court of Appeals, and of the said taxed bills of costs, has been 
 duly served upon the said {appellant,) and that he has neglected 
 and refused to pay the said costs: It is, on this, &c., ordered, 
 that an execution forthwith issue out of this court for the said 
 <costs, together with the costs of this order and of said writ. 
 
 Order to pay over money deposited on an appeal.(6) 
 
 {Title of cause.) 
 
 TJpon opening the matter this day, by , of counsel with 
 
 , and it appearing to the court that the said , on 
 
 ^filing an appeal from the decree made in this cause to the Court 
 
 of Errors and Appeals in the last resort, deposited with the clerk 
 
 of this court the sum of one hundred dollars, pursuant to the 
 
 (o) It is in the discretion of the commissions of the clerk. In case of 
 
 Court of Errors and Appeals, in cases an affirmance, the clerk will draw an 
 
 of appeal from a decree or order of order in one of the forms indicated 
 
 the Chancellor, to award costs or not. above, according to the facts, and 
 
 Hev., " Courtt," ? 13. The prevailing present the same to the Chancellor, 
 
 party shall be considered as recover- who will sign it on mere motion 
 
 ing costs in this court, in which shall ex parte. Where the party appealing 
 
 be included costs of printing, unless is liable fo'r costs in the same suit in 
 
 the court shall, in express terms, ad- chancery, the Chancellor, will in a 
 
 judge to the contrary. Bvle 34. proper case, but not usually without 
 
 (6) No petition is necessary to oh- notice, on the application of the party 
 
 tain money deposited in court to to whom such costs have been awarded, 
 
 answer the costs of appeal. In case direct in the order that the remainder 
 
 of a reversal, the party making the of the deposit, or so much thereof as 
 
 deposit will be entitled to the return may be necessary, be applied to the 
 
 of his money, with interest at the rate payment of such costs. 
 allowed by the court, less the lawful 
 
202 FORMS OP PLEADINGS. 
 
 rules and practicfe of the said court, to answer the costs of saidf 
 appeal, and that the said appeal has been determined by the said 
 Court of Appeals, and that the proceedings have been remitted 
 to this court, to proceed further thereon according to law ; and 
 it appearing to this court that * there is no claim on the said 
 sum for costs in the Court of Errors and Appeals, (or, after *, 
 say, " there is due to the clerk of the said Court of Errors and 
 Appeals, for his costs, the sum of , and to {the respondent 
 
 in said appeal) for his costs, the sum of : It is, on this, 
 
 &c., ordered, that the clerk of this court, after deducting his 
 lawful commissions on said deposit, do forthwith pay to the said 
 clerk of the Court of Errors and Appeals, and to the said 
 {respondent) or to his solicitor, said sums of money respectively, 
 and to the solicitor of said t {appellamt) the remainder of said 
 sum of one hundred dollars, together with the accumulations 
 thereon, according to the rule of this court, {or, if the respondent 
 be entitled to costs in the Court of Chancery, after f say, " {the 
 respondent) the remainder of the said moneys to be applied, so 
 far as necessary, towards the payment of his costs in this court.") 
 
 EXECUTION OF DECREE.(a) 
 
 {In case the purchaser at the sheriff's or master's sale is denied 
 possession of the premises, he will proceed by serving upon the 
 party in possession the following :) 
 
 (a) After sale on foreclosure, the And to the assignee of a purchaser, 
 
 court will compel the mortgagor, or Etkings v. Murray, 2 Stew. Eq. 388. 
 
 any person who has come into posses- It can only issue against persons who 
 
 sion under him pending the suit, or are parties to the suit, or who come 
 
 whose title is not superior to his, to into possession under the defendant 
 
 deliver up the possession of the prem- after its commencement. JBlauvelt v. 
 
 ises, and will not drive the purchaser Smith, 7 C. E. Or. 31. The power 
 
 to an action of ejectment. Schenck v. rests in the sound discretion of the 
 
 Conover, 2 Beax. 220 ; Thomas v. De court. It will never be exercised in a 
 
 Baum, 1 McCart. 37. And this assist- case of doubt, nor, under color of its 
 
 auce will be extended to a stranger exercise, will a question of legal title 
 
 to the record purchasing at such sale, be tried. Schenck v. Conover, supra; 
 
 as well as to the mortgagee. Ibid. Fare Meier v. Borden, 10 C E. Or^ 
 
EXECUTION OP DECKEE. 203 
 
 Notice and demand of possession, (a) 
 To 
 
 Sir — Immediate possession is hereby demanded of the {here 
 describe the premises,) being the same premises granted and con- 
 veyed to me in fee by , sheriff of the county of , by 
 deed herewith shown, and dated the day of ,18 , 
 sold by him and purchased by me at sheriff's sale by virtue of a 
 writ of fieri facias, issued out of the Court of Chancery of this 
 state, in a suit wherein was complainant, and you, , 
 ("and others") were defendants, for the foreclosure and sale of 
 said premises, and I do hereby authorize , the bearer of 
 this notice, to take and receive the possession of said premises 
 for me. 
 
 Dated, &c. (Signature.) 
 
 Proof of service of notice. (6) New Jersey, ss. — , 
 
 being duly sworn, saith — that on the day of last, 
 
 this deponent personally demanded of the defendant, , 
 
 the possession of the premises mentioned and referred to in the 
 within written notice and demand, and also personally served 
 upon the said a written notice and demand of possession 
 
 of said premisesj of which the within is a true copy, and at the 
 time of making said demand, this deponent showed to the said 
 the deed by the sheriff of the county of to this 
 
 deponent for the said premises, which said deed is referred to 
 within, and that said refused to comply with the demand 
 
 for possession. 
 
 Sworn, &o. (Signature.) 
 
 414 ; barton v. Beatty, 1 Stew. Eg. {a) The first proceeding is a demand 
 
 412. After a sale in a foreclosure suit, of possession, accompanied by an ex- 
 
 and the purchaser has got his deed, a hibit of the deed from the sheriff or 
 
 writ of assistance will go ex debito master. Schenck v. Conover, supra. 
 
 justiticB, to put him in possession. (6) Proof must be made that the 
 
 Beatty y. De Forrest, 10 O.E. Or: 3i3; deed was shown to the tenant, that a 
 
 S. C, on appeal, 12 C. E. Or. 482. demand of possession was made, and 
 
 The same relief by writ of assist- that the tenant refused to comply^ 
 
 ance will be extended to a purchaser Fackter v. Worth, 2 Beas. 395. 
 at a sale in partition. 
 
•204 FORMS OF PLEADINGS. 
 
 Petition for writ of assistance. 
 
 In Chancery of New Jersey. 
 
 Complainant, 
 
 Between 
 
 and 
 
 Defendant. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , of the (residence,) respectfully shows, 
 
 that by virtue of the final decree made in the above cause, on 
 the day of last, a writ of fieri facias, tested on or 
 
 ^bout the day of last, issued out of this honorable 
 
 court, directed to the sheriff of the county of , commanding 
 
 him to make sale of {here describe the premises as infi.fa.;) and 
 your petitioner further shows, that in pursuance of said writ of 
 fi^ facias, then and still being sheriff of the said county 
 
 of , having first, in due form of law, advertised the said 
 
 premises to be sold at public vendue, the said sale to be held at 
 the , in the city of , in said county, on the 
 
 ^ay of last, at the hour of o'clock in the forenoon, 
 
 at the said place and hour, did accordingly offer and expose said 
 premises for sale at public vendue, under and by virtue of said 
 writ of ^eri/acias; and thereupon, your petitioner having bid 
 for the said premises the sum of dollars, and no other 
 
 person having bid so much therefor, the said sheriff did then 
 and there, openly and publicly, in due form of law, strike off 
 and sell the said premises for the said sum to your petitioner, he 
 being then and there the highest bidder for the same. 
 
 And your petitioner further shows, that afterwards, to wit, on 
 the day of last, the said sheriff did execute and 
 
 <leliver unto your petitioner a deed of conveyance of said 
 premises, bearing date the day of last, wherein and 
 
 whereby the said sheriff did grant, bargain, sell, assign, transfer 
 and convey unto your petitioner, his heirs and assigns, the 
 premises above described, with the appurtenances, to have and 
 to hold to his own use and benefit forever, in as full, ample and 
 beneficial a manner as by virtue of the said writ of fieri facias 
 -the said sheriff might, could or ought to convey the same ; which 
 
WEIT OP ASSISTANCE. 205- 
 
 conveyance was afterwards duly acknowledged by the said 
 sheriff before , one of the masters of this court, and after- 
 
 wards duly recorded in the clerk's office of the said county of 
 , as by reference to said deed will more fully appear. 
 
 And your petitioner further shows, that the said premises, at 
 the time of filing the bill of complaint in said cause, were and 
 now are in the possession and occupation of the defendant, {or 
 as the case may be,) and that he then enjoyed and now enjoys 
 the rents, issues and profits thereof. 
 
 And your petitioner further shows, that since the sale of the 
 said premises, and the execution and delivery of the said sheriff's 
 deed therefor to your petitioner, your petitioner has frequently 
 applied to the said , and requested him to deliver up the 
 
 possession of the said premises to your petitioner, but that the 
 said has hitherto refused and still does refuse to comply 
 
 with such reasonable request of your petitioner; that, on the 
 day of last, your petitioner (" by his agent ") called 
 
 upon the said , and exhibited to him the said sheriff's 
 
 deed to your petitioner for said premises, and demanded posses- 
 sion thereof, but that the said absolutely refused to deliver 
 the same to your petitioner. 
 
 Your petitioner therefore prays that an order may be made 
 by this honorable court, directing and commanding the said 
 and his confederates, or any one holding under him, forthwith 
 to quit said premises, and to deliver the possession thereof to 
 your petitioner, and said to pay the costs of this applica- 
 
 tion, and that your petitioner have such other or further relief 
 in the premises as may be necessary and proper. And your 
 petitioner, as in duty bound, will ever pray, &c. 
 
 {Signatwe of solicitor and oovmsel.) 
 
 New Jersey, ss. — , of full age, being duly sworn, on 
 
 his oath saith — that he is the petitioner named in the above 
 petition ; that the matters and things therein set forth are true,, 
 to the best of his knowledge, information and belief. 
 
 Sworn, &c. (Signature.) 
 
206 FORMS OF PLEADINGS. 
 
 Notice of motion for order for possession.(a) 
 
 {Title of cause.) 
 To , defendant in the above-entitled cause : 
 
 Please take notice, that I shall apply to the Chancellor of 
 this state, at the state-house, in Trenton, {or, " at the chancery 
 chambers in ,") on , the day of next, 
 
 {or " instant,") at ten o'clock in the forenoon, or as soon there- 
 after as counsel can be heard thereon, upon a petition for an 
 order directing and commanding you to quit the premises in 
 said petition described, being, &c., {the mortgaged premises, or 
 ■otherwise, briefly describing them,) and to deliver possession 
 thereof unto , the purchaser thereof at the sheriff's sale 
 
 under the decree in the above cause, and also directing you to 
 pay the costs of this application. 
 
 Dated, &c. {Solicitor of petitioner.) 
 
 New Jersey, ss. — , of full age, being duly sworn, 
 
 «ays — that he served a notice, of which the foregoing is a true 
 
 copy, on , by delivering the same to the said , to 
 
 whom the same is directed, personally, on the day of 
 
 instant, and informing him of the object of said notice. 
 
 Sworn, &c. {Signature.) 
 
 Order for possession.(6) 
 
 {Title of cause.) 
 It appearing to the court, by the petition filed by , 
 
 and the affidavit annexed thereto, that the said purchased 
 
 (a) In all cases, the parties in pos- petitioner will present the petition to 
 session must have notice of the appli- the Chancellor, duly verified, accom- 
 cation and are entitled to be heard on panied by the proof of due service of 
 it. Blauvelt v. Smith, supra; Fackler the demand for possession and of the 
 V. Worth, supra. Five days' notice is notice of motion. 
 
 required of the application. Mule Where a purchaser held the deed 
 140. And the notice must, unless for two tracts of land, one of which 
 otherwise ordered by the Chancellor, was insufficiently described in the ad- 
 be for a regular motion-day. See rides vertisement of sale, on an application 
 4, 5. for an order for possession, leave to 
 
 (b) On the day for which the appli- amend the petition, so that it might 
 ■cation is noticed, the counsel of the be an application for the possession of 
 
WRIT OF ASSISTANCE. 207 
 
 ihe mortgaged premises, described in the bill of complaint and 
 foreclosed in the above-stated cause, at the sale made thereof by 
 the sheriff of the county of , by virtue of the execution 
 
 issued' in said cause, and that the defendant, , who, at the 
 
 time of filing said bill of complaint and making the decree in 
 said cause, owned the equity of redemption, and was in the pos- 
 session of the said mortgaged premises, is still in possession 
 thereof, and refuses to deliver up possession unto the said , 
 
 the purchaser, and now owner thereof, and that the said 
 hath prayed the aid of this court ; and it appearing that due and 
 legal notice of this application hath been given to the said : 
 
 It is, on this day of , in the year of our Lord one 
 
 thousand eight hundred and , on motion of, &c., ordered, 
 
 that said , defendant in this cause, on being served with a 
 
 certified copy of this order, forthwith deliver up to the said 
 
 the possession of the mortgaged premises mentioned and 
 described in the pleadings and decree in this cause, and in the 
 deed of conveyance executed by the sheriff of the county of 
 
 to the said , in pursuance of said decree and execu- 
 
 tion thereon, and upon such service, accompanied with demand 
 of possession, and refusal thereof, the said may apply for 
 
 a writ of assistance, according to the course of this court in such 
 case. 
 
 Proof of service of order for possession.(a) New 
 Jersey, as. — , of full age, being duly sworn, on his oath 
 
 saith — that on the day of instant, he served a copy 
 
 of the order of this court made in this cause, bearing date the 
 day of instant, and duly certified under the seal of 
 
 this court, and the hand of the clerk, personally, by delivering 
 the same to him ; and at the time of such service, this deponent, 
 in behalf of , and as the agent of the said' , de- 
 
 one tract only, was refused, and the defendant to an action at law for the 
 purchaser left to his action at law for other. 7am Meter v. Borden, 10 C. E. 
 both tracts, on the ground that there Or. 414. 
 
 was no sufficient ground to justify the (a) The clerk will furnish the 
 
 separation of the transaction, giving solicitor with true copies of the order, 
 relief in chancery by summary pro- under the seal of the court, to be served 
 cess as to one part, and exposing the on the tenants and others in possession. 
 
208 FORMS OP PLEADINGS. 
 
 manded of the said the possession of the mortgaged' 
 
 premises mentioned and set forth in the petition of the said' 
 , and in said order, pursuant to said order, and that the 
 said , the possessor, refused to deliver up the possession 
 
 of the said premises to the said , or to this deponent, as 
 
 the agent of said 
 Sworn, &c. 
 
 Notice of motion for writ of assistance.(a) 
 {Title of cause, and mentioning petition.) 
 To , defendant in the above cause : 
 
 Please take notice, that I shall apply to the Chancellor or 
 this state, at the state-house, in Trenton, {or, " at the chancery 
 chambers in ," as the case may be,) on , the 
 
 day of instant, at the hour, &c., for an order for a writ of 
 
 assistance, and for a writ of assistance to cause you to quit the 
 premises described in the petition above referred to, and to 
 deliver possession thereof unto , the purchaser thereof at 
 
 the sheriff's sale under the decree in the above cause. 
 
 Dated, &c. {8ignatv/re of solicitor.) 
 
 Order for writ of assistance. 
 
 {T\tle of cause.) 
 
 It appearing to the Chancellor that, by an order of this court,, 
 made on the day of instant, in the above-stated 
 
 cause, upon the petition filed by against the defendant, 
 
 , the said , on being served with a certified copy 
 
 of said order, was directed forthwith to deliver up to the said 
 , the purchaser under the sheriff's sale, the mortgaged 
 premises mentioned in the bill of complaint and decree of fore- 
 closure in said cause, granted and conveyed to the said , 
 by the sheriff of the county of ; and it further appear- 
 ing to the Chancellor that the said , the said petitioner, 
 
 (a) Under the present practice, the cation, proof of the service of the 
 writ of assistance does not issue of order to deliver possession and refusal 
 course, but upon notice of the appli- to obey. Fackler v. Worth, 2 Beas. 395. 
 
WEIT OF ASSISTANCE. 209" 
 
 hath caused a certified copy of 8aid order to be duly served on the 
 said , pursuant to the said order, and that the said 
 
 hath refused to deliver up the said premises, in contempt of the 
 order of this court ; and it also appearing that due and legal' 
 notice of this application hath been given to the said : It 
 
 is, on this day of , in the year of our Lord one 
 
 thousand eight hundred and , ordered by the Chancellor, 
 
 on motion of , of counsel with the said petitioner, that a 
 
 writ of assistance do issue, according to the course of this court, 
 and under the seal of this court, directed to the sheriff of the 
 county of , commanding the said sheriff to enter into the 
 
 said mortgaged premises so purchased by the said , and 
 
 from thence remove the said and his confederates, and 
 
 any one claiming under him, and in possession thereof, and to 
 put and place the said , or his lawful attorney or agent, 
 
 in full and peaceable possession thereof. And it is further 
 ordered, that the said do pay the costs of the petition and 
 
 proceedings thereon to be taxed.(c[) 
 
 Writ of assistance. New Jersey, as. — The State of New 
 Jersey to the sheriff of the county of — Greeting : 
 
 Whereas, it has been represented to us, in our Court of 
 
 Chancery, in a certain cause therein depending, wherein 
 [l. 8.] is complainant, and is defendant, that by 
 
 an order made in said cause, bearing date the day 
 
 of , in the year of our Lord eighteen hundred and , 
 
 it was ordered, that the said should forthwith deliver up 
 
 to , or to his lawful attorney or agent, the possession of 
 
 the mortgaged premises mentioned and described in the plead- 
 ings and decree in said cause, and in the deed executed by the 
 sheriff of the county of to the said , in pursuance of 
 
 said decree, on being served with a certified copy of said order ; 
 and whereas the said , who was in possession of said prem- 
 
 (a) The costs of this proceeding Patrick v. Warner, 4 Paige 397. Id 
 
 may be collected by execution after the case first cited above, the party 
 
 demand of payment and refusal. In charged took the benefit of the insol- 
 
 Chancery, September, 1874 ; and see vent laws and was discharged. 
 
210 FOBMS OP PLEADINGS, 
 
 ises, has been duly served with a certified copy of said order, 
 and required to deliver the possession of said premises pursuant 
 thereto, which he has refused, and still refuses to do : Now, 
 therefore, we command you, that you do forthwith eject and 
 remove from the said premises the said , and all persons 
 
 claiming under him, or in possession of any part thereof under 
 him, and that you deliver possession thereof to the said , 
 
 or to his solicitor, or other authorized attorney or agent ; and 
 hereof fail not at your peril. 
 
 Witness , our Chancellor, at Trenton, the day of 
 
 , in the year of our Lord eighteen hundred and 
 
 Solicitor. 
 Clerk. 
 
 OF EXECUTIONS. 
 
 Execution for sale of mortgaged premises, (a) New 
 Jersey, to wit — The State of New Jersey to the sheriff of the 
 county of , {or, " to , one of the masters in chan- 
 
 cery of New Jersey,") — Greeting : 
 
 (a) The Court of Chancery has full recorded in full by the clerk of the 
 
 power to issue all process necessary court out of which the same issues; 
 
 to carry its decree into effectual exe- and the record so made is as good 
 
 cution. Bev., " Chancery," I 64. At evidence as the writ itself. Rei>., 
 
 the expiration of ten days after the "Executions" J 2. Every execution 
 
 filing of the final decree (in case no issued shall be directed to a sherifi) 
 
 order staying the execution shall have unless the Chancellor shall, for reasons 
 
 been entered), the complainant is en- presented to him, otherwise order, 
 
 titled to his execution. iJuZe 118. Rule 115. When the mortgaged 
 
 The entering of an appearance by premises are situate in more than one 
 
 a defendant does not operate to stay county, the practice is to direct the 
 
 the issuing of an execution. Pamph. execution to a, master ; but the writ 
 
 L., 1893, p. 202. will not be directed to any master 
 
 Every writ of execution against connected in business with, or who is 
 
 lands, tenements, hereditaments and clerk for, or employed in the business 
 
 real estate shall, before it be delivered of the solicitor of any of the parties 
 
 to the sheriff or other ofiScer, be to the suit^ Rule 46. 
 
EXECUTION. 
 
 211 
 
 Whereas, on the day of , in the year of our Lord 
 
 one thousand eight hundred and , by a certain 
 
 [Xj. s.] decree made in our Court of Chancery, before our 
 Chancellor, at Trenton, in a certain cause therein de- 
 pending, wherein is complainant, and and , his 
 wife, are defendants : It was ordered, adjudged and decreed, 
 that so much(o) of certain mortgaged premises, with the 
 appurtenances, in the bill of complaint in the said cause par- 
 ticularly set forth and described, that is to say — all that, &c., 
 {descrihe the premises as in the bill.)(b) Together with all and 
 singular the rights, privileges, hereditaments and appurtenances 
 thereunto belonging or in any wise appertaining, and the rever- 
 sions and remainders, rents, issues and profits thereof, and all 
 the estate, right, title, interest, use, property, claim and demand 
 of the said defendants of, in, to and out of the same, as may be 
 necessary for the purpose, be sold to pay and satisfy ("in the 
 
 (a) Sale in parcels. Whether the 
 execution commands the sheriff to 
 . sell so much of the premises as may 
 be necessary to satisfy the decree or to 
 raise the sum required out of the 
 premises or not, the duty imposed 
 upon him as to the quantity of land to 
 be sold, is the same. His duty, in 
 -either event, is to sell only so much of 
 the premises as may be necessary to 
 satisfy the requirements of the execu- 
 tion, provided such portion can be 
 conveniently and reasonably detached 
 from the residue of the property. 
 Van Duyne v. Van Duyne, 1 G. E. 
 Or. 93 ; Corles v. Laahley, 1 McCart. 
 116. Non-compliance with such rule 
 is sufficient ground for setting aside 
 the sale. Johnson v. Oarrett, 1 C E. 
 Or. 31. But a mere error of judgment 
 or mistaken exercise of discretion by 
 the sheriff in the absence of fraud or 
 unfairness in the sale, affords no 
 ground for the interference of the 
 court. Van Duyne v. Fam Duyne, vhi 
 Mupra. The defendant in execution 
 
 was allowed an order requiring the 
 sheriff to sell the premises in parcels. 
 Byerson v. Boorman, 3 Hal. Ch. 167, 
 640 The exception to this rule is 
 where, under the statute {Bev., " Chan- 
 cery,'' ? 74,) ^t is decreed that a part 
 of the premises cannot be sold to 
 satisfy the amount due without ma- 
 terial injury to the remaining part of 
 the mortgaged premises. Parkhurst 
 V. Gory, 3 Stock. 233. Where a de- 
 fendant stands by without objection, 
 and permits a sheriff to sell several 
 separate lots as one tract, he cannot 
 afterwards object because they were 
 not sold in parcels. Solmes v. Steele, 1 
 Stew. Eq. 173. If the order for sale be 
 erroneous, the practice is to apply by 
 petition or motion to amend the decree. 
 Horner v. Gorning, 1 Stew. Eq. 254. 
 
 (b) The description of the premises 
 in the execution must conform to and 
 include only those in the complain- 
 ant's mortgage. Gorles v. Lashley, 
 supra; Ely v. Perrine, 1 Or. Ch. 396. 
 
212 F0EM8 OF PLEADINGS. 
 
 first place ") unto the said complainant the sum of , the 
 
 principal and interest secured by a certain mortgage given by 
 and his wife, the defendants, to the complainant, 
 
 bearing date the day of , in the year of our Lord 
 
 one thousand eight hundred and , together with lawful 
 
 interest thereon, from the day of {date, of master's 
 
 report) until the same be paid and satisfied, and also the costs of 
 the said complainant ; and (" in the second place, unto the de- 
 fendant,- , the sum, &e., together with lawful interest 
 thereon as aforesaid," reciting the decree, as the case may be;) 
 and that for that purpose a writ of fieri facias should issue, 
 directed to the sheriff of the county of , commanding him 
 to make sale as aforesaid ; and that the surplus money arising 
 from such sale, if any there be, should be brought into the said 
 court, subject to the further order of the said court, as by the said 
 decree,(a) remaining of record in our said Court of Chancery, 
 at Trenton, does and may more fully appear. And whereas,, 
 the costs of the said complainant have been duly taxed at 
 dollars and cents : 
 
 Therefore, we command you, that you cause to be made of 
 the premises aforesaid, by selling so much thereof as may be 
 necessary for the purpose, the said sum of dollars, together 
 
 with lawful interest thereon as aforesaid, and said sum of costs,. 
 with lawful interest thereon, from the date of said decree, 
 {insert here decree for defendant, if any,) and that you have 
 those moneys before our said Chancellor, in our Court of Chan- 
 cery aforesaid, at Trenton, on the Tuesday of next^ 
 to render to the said complainant (" and defendants,") and also 
 the surplus money ,(6) if any there be, to abide the further order 
 
 (o) The execution must conform either of the above respects ; and any 
 
 substantially to the decree. A want sheriff who shall pay over to any de- 
 
 thereof will avoid the sale. Common- fendant named in an execution, any 
 
 wealth V. Fisher, 2 J. J. Marsh. 137. money raised by him on the same,, 
 
 (6) Every sheriff shall make return unless so directed by the writ, or by 
 
 of his execution and pay to the clerk an order of the court afterwards made, 
 
 of the court any surplus in his hands, shall have no allowance for the same, 
 
 within thirty days after sale ; and no Ride 117. Sheriffi and other officers 
 
 execution will be directed to any whose duty it is or shall be to make 
 
 sheriff while he shall be in default in return of any writ or process, shall' 
 
EXECUTION. 
 
 213 
 
 of our said court, according to the decree aforesaid. And you 
 are to make return at the time and place aforesaid, by certificate 
 under your hand,(a) of the manner in which you shall have 
 executed this our writ, together with this writ. 
 
 put their own names to the return of 
 such writ or process, so that the court 
 may know of whom they receive such 
 return ; and any sheriff who shall not 
 sign such return, shall be amerced, 
 and also answer in damages to the 
 party. Bev., "Sheriffs," ? 17. 
 
 (a) Adjournment of sale. The 
 sheriff or other officer selling under 
 process of execution, may make two 
 adjournments, (but no more, unless by 
 permission, in writing, from the com- 
 plainant in execution,) of the sale of 
 lands, &c., to any time not exceeding 
 one month for each adjournment. 
 Mev., "Sale of Lands," ? 5. Subject to 
 the limitations and restrictions of the 
 section above quoted, an adjournment 
 is discretionary with the sheriff. 
 S^illman v. Holcomb, 1 Beas. 131 ; 
 Morris V. Woodward, 10 0. E. Or. 32. 
 He may adjourn the sale to a place 
 other than that specified in the adver- 
 tisement. Penn v. Craig, 1 Gr. Ch. 
 495. If any sale of lands be adjourned 
 for more than one week, such ad- 
 journment must be published in the 
 same two newspapers in which the 
 notice of sale was published; the 
 original advertisement of sale need 
 jiot be published, but a statement of 
 the parties to the cause, and the time 
 and place of such adjournment, is 
 sufficient. Rev., 'Sale of Lands," J 6. 
 If the adjournment be for a less time 
 than one week, public proclamation 
 made at the time at which the sale 
 was published to take place is all the 
 law requires. Allen v. Cole, 1 Stock. 
 286 ; Coxe v. Hoisted, 1 Gr. Ch. 311. 
 Where the sale is adjourned from 
 
 week to week, the adjournments need 
 not be published. Hewitt v. Moniclair 
 B. W. Co., 10 a E. Gr. 392. Sales 
 should not be appointed to take place 
 on a legal holiday, but when such is 
 the case, the sheriff may adjourn a 
 sale on that day ; and when the day 
 fixed for the sale (not a legal holiday) 
 is afterwards appointed a legal holi- 
 day, he may and should adjourn the 
 sale. White v. Zvxt, 1 Stew. Eg. 107. 
 Sales may be made on Saturday after- 
 noon. Pamph. L., 1892, p. 337. 
 
 The sale. Where the writ is di- 
 rected to the sheriff, it may be exe- 
 cuted by the under-sheriff or a special 
 deputy ; but a sheriff cannot appoint 
 a special deputy, pro hac viee, by parol. 
 Allen V. Smith, 7 Hal. 159 ; Meyer v. 
 Patterson, 1 Stew. Eq. 239 ; see Wroe 
 V. Harris, 2 Wash. (Va.) 126. For 
 mode of appointment of under-sheriff, 
 see Beo., "Sheriffs," § 43 A coroner 
 may execute a writ in case of the 
 death or disability of the sheriff. 
 Bev., "Sheriffs," § 39. Execution sales 
 are to be made at public auction, for 
 money in hand, and to the highest 
 bidder. Bev., "Sales of Lands," J 1. 
 It has been held that by the mutual 
 consent of plaintiff and defendant, an 
 execution sale may be made on a 
 credit instead of for cash in hand. 
 Killgore v. Peden, 1 Strobh. (Law) 18. 
 The place of sale is discretionary with 
 the sheriff, but the discretion must 
 be reasonably exercised. Cwmmins v. 
 Utae, \ C. E. Gr. 48, 54. It is the 
 practice in New Jersey for the Chan- 
 cellor, in a proper case and upon 
 proof of its advisability, to direct that 
 
214 
 
 FOKMS OF PLEADINGS. 
 
 Witness 
 day of 
 eight hundred and 
 
 , our Chancellor, at Trenton aforesaid, this^ 
 , in the year of our Lord one thousand 
 
 Clerk. 
 
 Solicitor. 
 
 {Endorsement.) 
 
 In Chancery of New Jersey. 
 
 {mie of cause.) \ Fi. fa. tov B^le of 
 
 ) mortgaged premises. 
 Term, 18 . 
 
 Returnable 
 
 Decree for $ 
 
 Interest from 
 Costs taxed at 
 Interest from 
 
 Besides sheriff's execution fees. 
 
 Solicitor. 
 
 Execution against goods and lands for costs.(a) 
 New Jersey, ss. — The State of New Jersey to the sheriff of the 
 county of — Greeting : 
 
 the sale be had upon the premises to 
 be sold, instead of at the county seat. 
 It is the custom in said state, where a 
 bid is fairly claimed by two or more 
 persons, to put the property up again 
 at the price bid, and as at the bid of 
 the person whom the auctioneer may 
 declare entitled to it. Conover v. Wal- 
 ling, 2 McCart. 173. 
 
 (a) No execution can issue for costs 
 allowed by a decree or order of the 
 court, unless specially directed. Mule 
 114. The practice, under the fore- 
 going rule, is to serve a copy of the 
 decree or order granting costs and a 
 copy of the taxed bill of costs upon 
 the party against whom costs are 
 awarded, and file proof of such ser- 
 vice, and also of demand of payment 
 
 of the costs, and if it appear to the 
 court that the party has neglected or 
 refused to pay, the execution will issue. 
 The levy cannot be made after the 
 return-day of the writ. 3 Bao. Ab., 
 "Execution," 734; see KembleY. Harris, 
 7 Vr. 526. An execution should be 
 delivered to the sheriff before the 
 return-day mentioned in it. When 
 this cannot be done, it is the practice 
 to return the writ into court and ob- 
 tain a new one. Where a bill has 
 been dismissed or demurrer allowed,, 
 and another bill is filed for the same 
 matter, this court will stay proc.eed- 
 ings in the second suit till the costs- 
 of the former are paid. Updike v. 
 Bartles, 2 Beaa. 231. 
 
EXECUTION. 215 
 
 Whereas, by a certain final decree of our Chancellor, in our 
 Court of Chancery, at Trenton, in a certain cause 
 [l. S.J therein depending, wherein is complainant, and 
 
 and are defendants: It was ordered, adjudged 
 
 and decreed, that the complainant's bill of complaint in that 
 cause should stand dismissed out of our said court for want of 
 prosecution, {or as the case may be,) with costs to be paid by the 
 complainant to the said defendants; and whereas, the clerk of our 
 said Court of Chancery has duly taxed the said "defendants' costs, 
 in and about their defence in the said cause, at dollars and 
 
 cents : Therefore, we command you, that, without delay, you 
 do cause to be made of the goods and chattels of the said 
 in your county, the said sum of dollars and cents, for 
 
 the defendants' costs aforesaid, and interest thereon from (the date 
 of the decree,) together with the costs of this writ ; and if suffi- 
 cient goods and chattels of the said in your county you 
 cannot find, whereof to make the said sum of money, then and 
 in that case we command you, that of the lands, tenements, 
 hereditaments and real estate of the said in your county, 
 whereof he was seized on the day of , in the year of 
 our Lord one thousand eight hundred and , the day of 
 the date of the decree aforesaid, or at any time afterwards, in 
 whosesoever hands the same may be, you do cause to be made 
 the whole or the residue, as the case may require, of the afore- 
 said sum of dollars and cents, and interest as afore- 
 said together with the costs of this writ, and that you pay the 
 said sum of money, so by you to be levied and made, to the said 
 defendants, or their solicitor in the said cause ; and have you 
 this writ, with your proceedings thereon, and also the surplus 
 money, if any there be, before our Chancellor, in our Court of 
 Chancery, at Trenton, on the Tuesday of next. 
 
 Witness , our Chancellor, at Trenton aforesaid, the 
 
 day of , in the year of our Lord one thousand 
 
 eight hundred and 
 
 Clerk. 
 Solicitor. 
 
216 POEMS OF PLEADINGS. 
 
 Execution against goods and lands on a decree 
 for payment of money, (a) New Jersey, ««. — The State of 
 New Jersey to the sheriff of our county of — Greeting : 
 
 Whereas, in and by a certain decree made in our Court of 
 Chancery, before our Chancellor, at Trenton, on the 
 j[l. S.J day of , in the year of our Lord one 
 
 thousand eight hundred and , in a certain cause 
 
 therein depending, wherein and are complainants, 
 
 and and are defendants : It was ordered, adjudged 
 
 -and decreed, that the complainants are entitled to receive the 
 sum of dollars, together with lawful interest thereon from 
 
 the day of , in the year of our Lord one thousand 
 
 '^ight hundred and , until the same be paid and satisfied, 
 
 and that they are entitled to receive of the said defendants their 
 costs of this suit to be taxed ; and by the said decree it was 
 further ordered, adjudged and decreed, that unless the said de- 
 fendants should, within days after service upon them of a 
 copy of the said decree and of the taxed bill of costs, pay to the 
 said complainants, or to their solicitor, the said sum of 
 ■dollars, together with interest and costs as aforesaid, the com- 
 ,plainants should have execution for the same; and whereas, 
 the costs of the said complainants in this suit have been duly 
 taxed at dollars, and we, being satisfied that the said de- 
 fendants have not complied with the terms of the said decree : 
 Therefore, we hereby command you, that of the goods and 
 ■chattels of the said defendants in your county, you cause to be 
 made the said debt, interest and costs, together with the costs of 
 this writ ; and if sufficient goods and chattels of the said defend- 
 ants in your county you cannot find, whereof to make the said 
 debt, interest and costs, together with the costs of this writ, then 
 
 (o) The same rule prevails as to will issue. Where the decree provides, 
 
 this writ as in the case of an execu- as is sometimes the case, that execu- 
 
 ition for costs ; the decree usually tion issue for the amount of the decree 
 
 directs that a copy of it be served, and costs, no further order of the 
 
 together with the taxed bill of costs, court is necessary on filing the proofs 
 
 and if payment of the decree and of service of copies of the decree and 
 
 costs is not made within the time costs, 
 mentioned in the decree, execution 
 
EXECUTION. 217 
 
 we further command you, that of the lands, tenements, heredita- 
 ments and real estate, whereof the said defendants were seized 
 on the day of , or at any time afterwards, in whose- 
 
 soever hands the same may be, you cause to be made the whole 
 or the residue, as the case may require, of the said sum of 
 dollars, with the interest and costs as aforesaid, and the costs of 
 this writ ; and that you have those moneys before our Chan- 
 cellor, in our said Court of Chancery, at Trenton, on the 
 Tuesday of next, to render to the said complainants, and 
 
 also the surplus money, if any there be, to abide the further 
 order of our said court ; and you are to make return at the time 
 and place aforesaid, by certificate under your hand, of the 
 manner in which yon shall have executed this writ, together 
 with this writ. 
 
 Witness , our Chancellor, at Trenton, this 
 
 day of , in the year, &c. 
 
 CUrh. 
 Solicitor. 
 
 Advertisement of sheriff's or master's sale.(a) By 
 virtue of a writ of fieri facias, to me directed, issued out of the 
 
 (a) In all cases whatsoever where the county in which the lands are 
 any sheriff, coroner, master in chan- situate, of which one shall be a news- 
 eery * * * or other officer or paper printed and published at the 
 person is required by any public county seat of said county, if a news- 
 statute, or the direction of any court paper be published at such county 
 of competent jurisdiction in this state, seat, and if no newspaper be published 
 to make sale of any lands, tenements, at the county seat, then in any two 
 hereditaments or real estate, such newspapers published in the county 
 officer or person, unless otherwise and circulating in the neighborhood 
 specially directed by law, shall give of said lands, at least four weeks suc- 
 notice by public advertisements, signed cessively, once a week, next preceding 
 by him and set up at five or more pub- the time appointed for selling the 
 lie places in the county, one whereof same ; and at the time and place so 
 shall be in the township (or if the appointed, between the hours of twelve 
 land be in a city, in the ward) where and five in the afternoon, such officer 
 such real estate is situate, of the time or person shall sell the same at public 
 and place of such sale, at least four vendue to the highest bidder. Beo., 
 weeks next before the time, so ap- "/SWe o/iands," §§ 1, 29, amended by 
 pointed, and shall likewise cause the Pamph. L., 1887, p. 29. In addition 
 same to be published in two of the to the foregoing requirements, Pamph. 
 newspapers printed and published in L., 1891, p. 491, requires that the 
 
218 
 
 F0KM8 OF PLEADINGS. 
 
 Court of Chancery of New Jersey, in the cause wherein 
 
 is complainant, and is defendant, I will expose to sale at 
 
 public vendue, on , the day of , eighteen 
 
 sheriflf shall have the power to cause 
 the sale to be published in two of the 
 newspapers printed and published in 
 the county in which the lands are 
 situate that are now or hereafter may 
 be designated for the publication of 
 the laws of this state ; or if no desig- 
 nation has been made of newspapers to 
 publish the laws in the year in which 
 such advertisement is made, then in 
 two of the newspapers designated for 
 the publication of the laws of this 
 state in the year preceding such ad- 
 vertisement; such publication shall 
 be at least four weeks successively, 
 once a week, next preceding the time 
 appointed for selling the said lands, 
 tenements, heredita.ments or real 
 estate, and such publication, if so 
 made, shall be deemed sufficient with- 
 out compliance with tjie provisions of 
 any act heretofoi-e passed in reference 
 to such publication ; and after the 
 sherifl' shall have made such publica- 
 tion in two of such newspapers as 
 aforesaid, then such publication shall 
 be as valid and effectual as if made 
 under the provisions of law now 
 existing. The foregoing act seems 
 clearly to be a repealer of the act 
 {Pamph. L., 1891, p. 161,) which 
 requires publication in a paper pub- 
 lished in the German language, so far 
 forth as concerns sales by sheriffs. 
 All sales conducted by officers other 
 than sheriffs should be published in a 
 German newspaper, but the advertise- 
 ment must be in the English language, 
 and the German newspaper is one of 
 the two newspapers in which sales are 
 required to be published. Publication 
 
 in three newspapers in such cases i» 
 not required. 
 
 It is further provided by law that 
 all sales of land made by virtue of any 
 order, judgment or decree of any court 
 of record of this state, shall be con- 
 firmed by the court, notwithstanding 
 any defect or irregularity in the pub- 
 lication of the advertisement of such 
 sale ; provided, that the officer making 
 such sale shall certify, under oath,, 
 that such sarle was otherwise regular, 
 and that the property was sold for a 
 fair price in the judgment of such 
 officer ; and provided further, that the- 
 court shall be satisfied by affidavit 
 that the defect or irregularity in the 
 publication was not injurious to the- 
 parties in interest. Famph. L , 1891, 
 p 24. That is a public and proper 
 place for setting up advertisements 
 contemplated by the above act which 
 is likely to give information to those 
 interested and who may become bid- 
 ders at the sale. C'ammins v. Little, 1 
 C. E. Or. 48. A compliance with 
 both the letter and spirit of the statute 
 is essential to a fair sale. Ibid. If 
 one of the notices is not set up the 
 length of time required by law, the 
 title of the purchaser is worthless. 
 Ibid. The act requires the first pub- 
 lication of the notice in the news- 
 papers to be made four whole weeks- 
 next preceding the day appointed for 
 the sale. Parsons v. Lanning, 12 CI 
 E. Or. 70. By commencing with the 
 day of sale, and counting backward, it 
 will be certainly ascertained when 
 the first insertion in the newspapers- 
 should be made. 
 
APPOINTMENT TO ADJOUBN SALE. 
 
 21»- 
 
 hundred and , at the hoat of (a) o'clock in the after- 
 
 noon of said day, at , in the city of , in the county 
 
 of , all that certain(6) (here describe the property to be sold.)' 
 
 Sheriff or master. (o) 
 Solicitor. 
 Adv'g fee, $ 
 
 Appointment of master or sheriff to adjourn a sale 
 of lands. (<i) 
 
 [Title of cause.) 
 
 To , one of the masters in chancery of New Jersey, (or, 
 
 " sheriff of the county of ," as the ease may be) — Greeting : 
 
 (a) Where a sale is advertised for a 
 specified day, between the hours of 
 twelve and five o'clock in the after- 
 noon, and the property is sold in pur- 
 suance of such advertisement, the sale 
 will not be set aside, although there is 
 a propriety and convenience in speci- 
 fying a particular hour for the sale. 
 Coxe V. Halsted, 1 Or. Ch. 311. All 
 sales of land should be made at the 
 hour usual in the locality where the 
 sale is held. Howell y. Sehrivg, 1 
 McGart. 84. 
 
 (6) If the advertisement sufficiently 
 identifies the property to be sold, it is 
 a compliancewith the law. Allen v. 
 Cole, 1 Stock. 286 ; Merwin v. Smith, 1 
 Gr Oh. 182. The sale may be set 
 aside if the description is defective. 
 Hodgson v. Farrell, 2 McCart. 88; 
 Merwin v. Smith, supra; Waldron v. 
 LeUon, 2 McCart. 126. 
 
 (c) It is not necessary that adver- 
 tisements of the sale of real estate by 
 a sheriff or master in chancery should 
 be signed by the officer with his own 
 proper signature. Whether the offi- 
 cer's name is signed to the advertise- 
 ment by himself, or printed or signed 
 by another, is immaterial. In either 
 
 case it is a virtual signing by the 
 officer. Ooxe v. Halsted, 1 Or. Ch. 311. 
 (d) Any master of the Court of 
 Chancery, to whom any execution or 
 order of sale of any lands or real 
 estate may be directed, may continue 
 such sale by public adjournment sub- 
 ject to such limitations and restric- 
 tions as may be specially provided 
 therefor, either in person or by 
 authority in writing under his hand, 
 and con»missioning or appointing a 
 master of said court, or the sheriiF of 
 said county in which such lands are 
 situated, to make such adjournment in 
 the name and stead of the master to 
 whom such writ or order is directed, 
 and such authority for such adjourn- 
 ment must be returned by the master, 
 with the statement made by him of 
 the proceedings under and by virtue 
 of the writ of execution or order of 
 sale as aforesaid. Rev., "Sale of 
 . Lands," ? 37. It would seem to be 
 proper practice, under this statute, in 
 case the lands are situate in more 
 than one county, to address the com- 
 mission to a master, and not to a 
 sheriff. 
 
'220 FOKMS OF PLEADINGS. 
 
 You are hereby appointed (or " commissioned ") and author- 
 ized to continue the sale of the * mortgaged premises described 
 in the execution in the above-stated cause, which said execution 
 was tested on the day of , eighteen hundred and 
 
 , and directed to me as master, {or, after *, " premises 
 described in the decree for sale in the above-stated cause, bearing 
 date on the day of , eighteen hundred and ," 
 
 or as the case may be,) by public adjournment, to , the 
 
 day bf , eighteen hundred and , at the hour 
 
 and place appointed in the original advertisement, and for so 
 doing this shall be your authority. 
 
 Witness my hand this day of , eighteen hundred 
 
 and , at 
 
 {Signatwre of master.) 
 
 Statement of the master or sheriff of his proceed- 
 ings under the foregoing appointment. In pursuance 
 of the foregoing commission {or " appointment,") I did, on the 
 day of , eighteen hundred and , publicly 
 
 adjourn the sale of lands and premises therein referred to, until 
 the day of , eighteen hundred and , at the 
 
 place and hour at which said lands were fir^t advertised to be 
 sold. 
 
 {Signature of master or sheriff.) 
 
 Order for fieri facias for deficiency .(«) 
 
 {JMe of cause.) 
 
 Whereas, by the final decree in this cause, it was among other 
 -things therein adjudged and decreed, that in case the proceeds of 
 the sale of the mortgaged premises mentioned in the bill of com- 
 plaint should be insufficient to satisfy and discharge the mort- 
 
 (o) In all foreclosure suits begun The forms proper under the forroer 
 
 since March 12th, 1880, the right to statute are given for convenient refer- 
 
 decree the payment of any excess of ence in cases where they are appli- 
 
 the mortgage debt above the net pro- cable. 
 ,ceeds of sale is taken away by statute. 
 
EXECUTION FOE DEFICIENCY. 22 i 
 
 gage debt, the deficiency be made of the lands and tenements,, 
 goods and chattels of the defendant, , as specifically 
 
 prayed in the bill of complaint, it appearing to the court 
 that notice that such relief was sought by the said bill had 
 been duly served on said defendant, according to law and the 
 rules and practice of this court, and that a writ of jieri fadaa 
 therefor issue out of this court against said defendant ; and 
 whereas, it appears to the court that , sheriff of the county 
 
 of , has duly executed the jieri faaias issued to him for 
 
 the sale of the said mortgaged premises, and has made return to 
 this court of the said writ and his proceedings thereon, accord- 
 ing to law, and that the proceeds of the sale of the said mort- 
 gaged premises were insufficient to satisfy and discharge the 
 said mortgage debt, and it being ascertained by the statement of 
 said sheriff", annexed to said writ of fieri facias and returned 
 therewith, that the said mortgaged premises have been sold by 
 him according to law, and that said deficiency is the sum of 
 dollars and cents: It is, on this day of 
 
 , in the year of our Lord eighteen hundred and ,. 
 
 ordered, that a writ of fieri facias do issue pursuant to said 
 final decree, to levy and make the said deficiency, to wit, the 
 sum of dollars and cents, together with interest 
 
 thereon from the day of instant, of the goods and 
 
 lands of the said defendant, together with the costs of the said 
 order and of this writ. (In case the decree" be against an 
 executor or administrator, say after "defendant," administrator, 
 &c., out of the personal estate which has come to his hands in 
 due course of administration ; and it is further ordered, that the 
 complainant shall be at liberty to apply for farther directions 
 against said administrator, or to call him to account before the 
 surrogate, as he shall be advised.) 
 
■222 
 
 P0KM8 OP PLEADINGS. 
 
 Abstract of decree.(«) 
 
 tBetween 
 
 Complainant, 
 
 and 
 
 Defendant. 
 
 J 
 
 In Chancery of New Jersey. 
 
 Abstract of decree to be filed 
 and recorded under an act 
 of March 27th, 1874. 
 
 A final decree was filed in the above cause, against the de- 
 fendant ipr "defendants") therein, in favor of the above com- 
 
 (a) The decree of the Court of 
 
 ■ Chancery shall, from the time of its 
 being signed, have the force, operation 
 and effect of a judgment at law in the 
 Supreme Court, from the time of the 
 actual entry of such judgment; and 
 
 ; all decrees and orders of the Court of 
 Chancery, whereby any sum of money 
 shall be ordered to be paid by one 
 person to another, shall have the 
 
 .force, operation and effect of a judg- 
 ment at law in the Supreme Court, 
 from the time of the actual entry of 
 
 -such judgment, and the Chancellor 
 may order such executions thereon 
 as in other cases; provided, that no 
 decree of the Court of Chancery shall, 
 
 .as against any person not a party 
 thereto, become a lien upon or bind 
 any lands, tenements, hereditaments or 
 real estate other than those speoific- 
 
 .^Uy mentioned and described in such 
 
 .decree or in the bill of complaint on 
 which the same is foimded, until the 
 parties interested in such decree, or 
 some or one of them, shall have fil'ed 
 in the oflSce of the clerk of the Su- 
 preme Court, a statement or abstract 
 of such decree, containing the names 
 of all the parties thereto, designating 
 particularly those against whom it is 
 rendered, with the state and county 
 in which they respectively resided, 
 
 ithe time at which the said decree was 
 signed, and the amount of the debt. 
 
 damages, costs or other sum of money 
 thereby directed to be paid ; which 
 statement or abstract the said clerk 
 shall forthwith record in a proper 
 book, which book shall be properly 
 indexed, and be a public record. Rev., 
 "Chancery," § 56. Before the enact- 
 ment of what is now the first clause of 
 the fifty-sixth section of the chancery 
 act, (June 13th, 1799,) a decree for the 
 payment of money not chargeable as 
 a specific lien, was in personam only. 
 The act of June 13th, 1799, was not 
 intended to embrace all decrees and to 
 charge all the lands of all defendants 
 with their performance, but applied 
 .only to decrees as resembled judgments 
 at law in the pecuniary obligations 
 they imposed, and made them equiva- 
 lent to such judgments in their effects. 
 The proviso of the fifty-sixth section, 
 before cited, was designed, under just 
 interpretation, to reach only the de- 
 crees which, before its enactment, had 
 operated as judgments in the Supreme 
 Court, and made the docketing of 
 such decrees with the clerk of that 
 court a condition precedent to their 
 constituting against all persons, liens 
 upon the defendant's lands; but lest 
 the general language of the act, "no 
 decree of the Court of Chancery," 
 should be liable to misconstruction, 
 those creating or enforcing equitable 
 liens on lands specifically mentioned 
 
ABSTRACT OF DECKEE. 
 
 223 
 
 plainant (^or "complainants") in the said Court of Chancery 
 of New Jersey, on the day of , eighteen hun- 
 
 dred and . The defendant, , resided, at the 
 
 time of the signing of the said decree, and still resides, (or as 
 ihe case may be,) in the county of , and State of New 
 
 Jersey, and the defendant, , resided, at the same time, 
 
 &c., in the county and State of New York, {or as the case may 
 
 and described in the decree or bill of 
 complaint as subject thereto, were 
 expressly excepted. The proviso of 
 the fifty-sixth section (passed origi- 
 nally in 1839) modified the law of 
 1799, declaring that the decree, from 
 the time of its being signed, should 
 have the force and efiect of a judgment 
 at law in the Supreme Court, from the 
 time of the actual entry of the judg- 
 ment, and enacted that such a lien 
 should not exist until the docketing 
 of the decree. Close v. Close, 1 Stew. 
 Eq. 472. The practice of the Court of 
 Chancery, under a decree for defi- 
 ciency, is to follow the decree by an 
 order after sale, reciting the proceed- 
 ings under the execution and the ex- 
 istence and amount of the deficiency, 
 as ascertained by the statement of the 
 officer by whom the writ was executed, 
 and an award of execution to make 
 the amount, with interest and the costs 
 of the order and the last-mentioned 
 writ. Mutual Life Ins. Co. v. Southard, 
 10 C. E. Or. 337. A bona fide mort- 
 gage, given after the entry of a per- 
 sonal decree of the Court of Chancery 
 against the mortgagor for the payment 
 of money merely, but before the filing 
 of a statement or abstract of the de- 
 cree in the Supreme Court, in accord- 
 ance with the fifty-sixth section of the 
 chancery act, is entitled to priority 
 over the decree. Jersey v. Demarest, 
 12 C. E. Or. 299. And, see, as to the 
 construction of the fifty-sixth section 
 
 of the chancery act, lb. In foreclo- 
 sure cases, a personal decree for defi- 
 ciency does not become a lien upon 
 the real property of the person against 
 whom it is taken, until after the sale, 
 and a deficiency is found to exist. 
 The Chancellor has adopted the lan- 
 guage of the court in Chapin v. 
 Broder, 16 Cal. 403, where it is said 
 that no general lien was acquired by 
 the docketing of the judgment, before 
 the amount to be recovered by it is 
 ascertained and fixed ; and that so 
 long as the matter of personal lia- 
 bility was contingent, indefinite and 
 uncertain, no efiect whatever could be 
 given to the judgment by docketing it. 
 See BeU v. Oilmore, 10 C. E. Or. 104 ; 
 Mutual Life Ins. Co. v. Southard, Id. 
 337. In the case last cited, the ques- 
 tion was as to the priority of lien 
 between a decree docketed in the 
 Supreme Court, where there had been 
 no ascertainment of the amount of the 
 deficiency, and a mortgage registered 
 subsequent to the final decree in the 
 cause. A decree directing a defend- 
 ant to pay a certain sum of money to 
 the complainant and declaring that it 
 shall constitute a lien upon all the 
 defendant's real and personal prop- 
 erty in New Jersey, creates no lien 
 upon lands as against persons not par- 
 ties thereto until an abstract thereof 
 is filed in the Supreme Court. Close 
 V. Close, supra. 
 
224 FOEMS OF PLEADINGS. 
 
 be.) {And if the defendant be a corporation, say " the defendant, 
 , is a corporation of the State of New Jersey, located at,'^ 
 &c.) The amount decreed to be paid to the complainant (or 
 " complainants ") by the decree aforesaid, is dollars and 
 
 cents, with lawful interest thereon, to be computed from 
 the day of , eighteen hundred and , and the 
 
 costs of suit, which have been taxed at the sum of dollars 
 
 and cents. {In case of a decree for defidenoy in a fore- 
 
 closure suit, add :) And it was further, by said decree, ordered, 
 adjudged and decreed, that in case the proceeds of sale be not 
 sufficient to pay the said mortgage debt to the said complainant 
 {or " complainants ") that the said , defendants, {naming 
 
 them,) severally do pay such deficiency, and that the complain- 
 ant {or " complainants ") do recover the same against him {or 
 "them." 
 
 And by the further order of said Court of Chancery, bearing 
 date the day of , in the year of our Lord eighteen 
 
 hundred and , such deficiency was ascertained and ad- 
 
 judged to be the sum of dollars and cents, together 
 
 with interest thereon from the day of , eighteen 
 
 hundred and 
 
 The foregoing abstract and statement of the final decree, " and 
 order directing such deficiency to be paid," in the foregoing suit, 
 are made to the end that the same may be recorded by the clerk 
 of the Supreme Court in his office, in pursuance of the fifty- 
 sixth section of the act of the legislature of this state entitled 
 "An act respecting the Court of Chancery," approved March 
 twenty-seventh, eighteen hundred and seventy-four. 
 
 {Signature of solicitor,) 
 
 Fieri facias for deficiency. New Jersey, to wit — 
 The State of New Jersey to the sheriflF of the county of 
 — Greeting : 
 
 Whereas, on the day of , in the year of our 
 
 Lord eighteen hundred and , by a certain decree made 
 
 in our Court of Chancery, before our Chancellor, at Trenton, in 
 a certain cause therein depending, wherein it was ordered, ad- 
 judged and decreed, that certain mortgaged premises, in the bill 
 
EXECUTION FOE DEFICIENCY. 225 
 
 oi complaint in the said cause particularly set forth and described, 
 together with all and singular the appurtenances to the same 
 belonging, be sold to pay and satisfy unto the said complainant 
 the sum of , with interest, and also the costs of the said 
 
 complainant, which have been taxed at the sum of ; and 
 
 that a writ of fieri facias should issue, directed to the sheriff of 
 , commanding him to make sale as aforesaid ; and whereas, 
 by a certain order made in said cause, bearing date the 
 day of , eighteen hundred and , it is recited that the 
 
 said sheriff has duly executed the said writ, and has made return 
 thereof to this court, with his proceedings thereon, whereby it 
 appears that the proceeds of said sale were insufficient to satisfy 
 and discharge said mortgage debt, and that the said deficiency is 
 the sum of , and that the bill of complaint in said cause 
 
 specifically prayed that the defendant, , might be held 
 
 liable to make good such deficiency, and that notice that such 
 relief was sought by said bill has been given to said defendants, 
 , according to the rules and practice of this court ; and 
 it was ordered, that a writ of fieri facias do issue, to levy and 
 make the said deficiency, together with interest thereon from the 
 day of , eighteen hundred and , of the goods 
 
 and lands of the said defendant, , together with the costs 
 
 of said order and of this writ. 
 
 Therefore, we command you that, without delay, you do 
 cause to be made of the goods and chattels of the said 
 in your county, the eaid sum of , with interest thereon as 
 
 aforesaid, and also the costs of said order and of this writ ; and 
 if sufficient goods and chattels of the said defendant, , in 
 
 your county you cannot find, whereof to make the said sum of 
 money, then and in that case we command you that of the lands, 
 tenements, hereditaments and real estate of the said defendant, 
 , in your county, whereof seized on the day 
 
 of , eighteen hundred and ,(a) or at any time after- 
 
 wards, in whosesoever hands the same may be, you do cause to 
 be made the whole or the residue of the said sum of and 
 
 (a) The date of the filing of the abstract in the Supreme Court, 
 
 p 
 
226 -POEMS OF PLEADINGS. 
 
 of the said costs, and that you do pay the said sum of money so 
 by you to be levied and made, to the said complainant or to his 
 solicitor, and that you do pay the surplus money, if any there 
 be, to the clerk of this court, to abide the further order of the 
 court ; and have you this writ, with your proceedings thereon, 
 before our Chancellor, in our Court of Chancery, at Trenton, on 
 the Tuesday of next. 
 
 Witness , our Chancellor, at Trenton aforesaid, the 
 
 day of , in the year of our Lord eighteen hundred 
 
 and . Clerk, 
 
 Solicitor. 
 
 Petition for new execution on death of sheriff, (a) 
 [Tide of cause.) 
 
 The petition of , complainant in the above-stated cause, 
 
 respectfully shows, that on or about the day of , 
 
 in the year eighteen hundred and , a final decree was 
 
 made in the above-entitled cause ; that on or about the 
 
 (a) When any sheriff or other per- to the sheriff of the proper county, or 
 son, to whom any writ of execution to one of the masters of said court, 
 issuing out of the Court of Chancery commanding him to proceed to dis- 
 shall be directed and delivered, shall charge the exigencies of said writ in 
 -die, or become disabled by law, to the same manner as Such officer so 
 discharge the duties of his office or dying, becoming disabled or removing 
 appointment, or shall remove out of as aforesaid, was commanded in and 
 the state, and continue to reside there- by said writ to do ; and any proceed- 
 out, without discharging the duties of ing had by such officer to whom such 
 his office or appointment in relation writ shall be directed and delivered, 
 to the command of said writ, then, or shall be as good, valid and effectual as 
 in either of said cases, it shall and if the said execution first issued had 
 may be lawful for the court, upon a been originally directed to him ; and 
 , petition being presented setting forth such sheriff or master shall be enti- 
 the facts above mentioned, and veri- tied to the same fees for services done, 
 fied to the satisfaction of the court, and be subject to the same suits, pen- 
 and upon due notice being given to allies, amercements and proceedings 
 any party who has entered an appear- for neglect of duty as if the said exe- 
 ance in the suit, or in whose behalf cution had been originally directed 
 the decree was made, to award and and delivered to such sheriff or mas- 
 order another execution to be directed ter. Rev. Sup., "Chancery," § 5. 
 
EXECUTION. . 227 
 
 ■day of , in the year eighteen hundred and , a writ 
 
 of execution thereon was duly issued out of the Court of Chan- 
 cery, directed to the sheriff of the county of , command- 
 ing him to make sale of certain mortgaged premises therein 
 particularly described, for the purpose of raising and satisfying 
 the several sums of money therein mentioned and specified, 
 decreed to be due the persons therein designated; that on or 
 about the day of , in the year eighteen hundred and 
 , said writ of execution was delivered to > , then 
 being sheriff of the county of , who thereupon proceeded 
 to the execution thereof, and duly advertised the said lands and 
 premises therein mentioned and described, to be sold; that 
 pending the execution of said writ, and before the sale of said 
 premises, on the day of , in the year eighteen hun- 
 dred and , the said , sheriff as aforesaid, died with- 
 out fully discharging the duties of his office in relation to said 
 writ. 
 
 Your petitioner therefore prays, that another execution may 
 be awarded and ordered by this honorable court, to be directed 
 to , one of the masters of the Court of Chancery, com- 
 
 manding him as said , deceased, sheriff as aforesaid, was 
 
 commanded in and by said former writ. 
 
 Your petitioner further prays, that he may be allowed the 
 execution fees and charges accrued to the said , deceased, 
 
 sheriff as aforesaid, on his proceedings in the execution of said 
 writ, together with the costs of this application, and that he may 
 have such other relief as he may be equitably entitled to. 
 
 And your petitioner will ever pray. 
 
 Solicitor and oou/nsel of petitioner. 
 
 {Affidavit to be annexed.) 
 
 State of New Jersey, 1 
 county of , ) 
 
 , being duly sworn according to law, on his oath says — 
 that he is the petitioner in the foregoing petition named; 
 that the matters and things therein stated are true, and that said 
 
228 FORMS OF PLEADINGS. 
 
 , late sheriff, died without executing(a) the writ of execu- 
 tion issued in the above-stated cause, and to him directed and' 
 delivered. 
 
 Sworn and subscribed before me, 
 at , this day of , 
 
 A. D. 18 . 
 
 Affidavit to accompany foregoing petition. 
 
 State of New Jersey, 1 
 county of , J 
 
 , being duly sworn according to law, on his oath says — 
 that during the term of office of as sheriff of the county 
 
 of , he was a deputy sheriff of said county ; that on the 
 
 day of , one thousand eight hundred and , a 
 
 writ of execution issued in the above-stated cause was delivered 
 to the said , then being sheriff of said county of ; 
 
 that pursuant to the command of said execution, said sheriffs 
 proceeded to advertise the premises therein mentioned and 
 described, for sale; that before a sale of said premises was 
 effected, and on the day of , A. D. 18 , said 
 
 died without discharging the duties of his office in relation to 
 the command of said writ ; that in proceeding to execute said 
 writ, said sheriff, now deceased, became entitled by law to 
 receive the sum of dollars and cents, as for his 
 
 execution fees, in which is included the sum of dollars by 
 
 him disbursed for printers' fees for advertising sale of said 
 premise described in said writ. 
 
 Sworn and subscribed before me, 
 at , this day of , 
 
 A, D. 18 . 
 
 Notice under foregoing petition. Take notice, that I 
 shall present to the Chancellor of this state, at the , in 
 
 the city of , on , the day of next (or 
 
 (a) To execute the writ in the sense done. Waterman v. MerriU, 4 Vr. 378 ;. 
 of the statute, (Bei)., "Sheriffs,") is to Scott v. Dow, 2 Or. 350. 
 do all that the writ commands to be 
 
EXECUTION. 229 
 
 ■" instant,") at A. M., a petition setting forth the fact that the 
 
 sheriff to whom the writ of execution issued in this cause was 
 directed and delivered, has died without discharging the duties 
 of his office in relation to the command of said writ, and shall 
 thereupon apply to the court to award and order another execu- 
 tion, to be directed to one of the masters of the Court of Chan- 
 cery, commanding him to proceed to discharge the like exigencies 
 in the same manner as required of said sheriff in and by said 
 writ to him directed. 
 
 Dated, , 18 . 8olieitor. 
 
 To 
 
 Order for new execution in case of death of a 
 [Sheriff. 
 
 (Title of cause.) 
 
 Upon reading and filing the petition of the said , duly 
 
 verified to the satisfaction of this court, setting forth, amongst 
 other things, that on the day of , one thousand 
 
 eight hundred and , a writ of execution was issued out 
 
 of this court upon the final decree before that time made in the 
 above-stated cause, directed to the sheriff of the county of , 
 
 commanding him to make sale of the mortgaged premises in the 
 said writ particularly described, for the purpose of raising and 
 satisfying certain sums of money therein mentioned and speci- 
 fied, which writ of execution was on the day of , 
 one thousand eight hundred and , delivered to , 
 then being sheriff of the county of , who thereupon pro- 
 ceeded to the execution thereof, and advertised the said premises 
 for sale ; and that said sheriff has died without discharging the 
 duties of his office in relation to the command of said writ, and 
 it appearing that due notice of this application has been given 
 to each of the parties defendant in this cause, and no cause being 
 shown or appearing to the contrary : It is thereupon, on this 
 day of , one thousand eight hundred and , 
 on motion or behalf of the petitioner, ordered, that said writ of 
 execution be delivered to the clerk of this court, and that 
 another writ of execution do issue out of this court, in place 
 
230 jjobms op pleadings. 
 
 thereof, to be directed to , one of the masters of this court,, 
 
 commanding him as the said sheriff, now deceased, was in and 
 by said former writ commanded. 
 
 It is farther ordered, that in addition to. the sums due the 
 complainant for his debt and costs of suit, said master be 
 directed to make the sum of dollars and cents,^ 
 
 for the execution fees accrued to said deceased sheriff on said 
 writ, the same appearing to be due by the affidavit of , 
 
 deputy sheriff, now on file, together with the costs of this order. 
 
 Advertisement in newspapers of the adjournment 
 of sale.(a) 
 
 SHERIFF'S OR MASTER'S SALE. 
 
 In Chancery of New Jersey. 
 Between , complainant, and and others, defendants. 
 
 Fi. fa. for sale of mortgaged premises. 
 The sale of the lands and premises in the above-stated cause 
 stands adjourned until , the day of next, {or 
 
 as the case may be,) at two o'clock p. m., at , in the city 
 
 of , {or as the case may be.) 
 
 Dated, &c. {Signature of officer.) 
 
 Conditions of sale.(6) Conditions of the sale of land, 
 made on the day of , &c., by , sheriff of the 
 
 (o) If any sale of lands * * * (J) Execution sales, in the absence 
 
 be adjourned for more than one week, of any memorandum of the officer 
 
 such adjouriiment shall be published selling, are considered within the 
 
 in the same two newspapers in which statute of frauds. 4 Kent Com. 434. 
 
 the notice of sale was published, for Such sales by the sheriflF are mad& 
 
 the publication of which not more under the law and not under the direc- 
 
 than five dollars shall be allowed in tion of the court, and not being sales 
 
 any case as against the defendant in of the court, as are judicial sales 
 
 execution ; in publishing the adjourn- strictly such, which require confirma- 
 
 ment, it shall not be necessary to con- tion by the court to complete them, 
 
 tinue the publication of the original they are within the statute. See 
 
 advertisement of sale, but a statement Arnold v. Smith, 5 Mason C. G. 414. 
 
 of the parties to the cause, and the The statute prohibits the maintenance 
 
 time and place of such adjournment, of an action upon a contract for the 
 
 shall be sufficient. Mev., " Sale of sale of lands, unless the agreement or 
 
 Land," i 6. some memorandum or note thereof be 
 
EXECUTION. 231 
 
 county of , (or, " by , one of the masters in chan- 
 
 cery of New Jersey,") by virtue of an execution issued out of 
 the Court of Chancery of New Jersey in a suit wherein 
 is complainant, and and others, are defendants : 
 
 1. The highest bidder ("for each lot sold") shall be the 
 purchaser, and shall, immediately after the sale, sign his name 
 to an acknowledgment of his purchase, and pay per cent, 
 of the purchase money. 
 
 2. A deed will be delivered to the purchaser on the ■ 
 day of next {or " instant,") at , at o'clock in 
 the noon, (provided such sale shall have been confirmed 
 by the court or as soon thereafter as the sale shall have been 
 confirmed',) when and where the purchaser shall pay the balance 
 of the purchase money, in cash. 
 
 3. The purchaser shall be liable for the payment; of the pur- 
 chase money, whether he attends and receives his deed at the 
 time and place aforesaid or not; and in case he neglects to 
 receive the deed and pay the purchase money as aforesaid, the 
 property will be advertised and sold again ; and if it produce a 
 less sum than the former bid, and interest and expenses, the 
 purchaser will be held liable for the difference ; and if it bring 
 a larger sum, he shall not be bei^efited thereby. 
 
 in writing. Courts of equity are as to sell according to law and the eii- 
 
 much bound by the provisions of the gency of his writ; he is not justified 
 
 statute as courts of law, and are not at in imposing terms on the purchaser 
 
 liberty to disregard them. Brewer v. different from those required by the 
 
 Wilson, 2 C. JS. Or. 180. There is no law. If he undertakes, by any condi- 
 
 difference between a «ale by a sheriff tions of sale, to vary the relative posi- 
 
 under an execution out of chancery tions of parties and create liabilities 
 
 on a foreclosure, and that of an officer which the law does not impose, he 
 
 or individual selling under any power exceeds his authority, and the pur- 
 
 or authority not coupled with an in- chaser is not bound. Stevenson v. 
 
 terest. Townshmd v Simon, 9 Vr. 239. Black, Sax. 338. Sheriffs and other 
 
 The officer himself, and not the bid- officers who sell land by virtue of an 
 
 ders, is to fix the terms of sale. Swope order in pursuance of our statutes, 
 
 V. Ardery, 5 Ind. 215; Cha/pman v. having no interest, execute a naked 
 
 Harwood, 8 Blackf. 82. See Chancellor power, under a special authority, which 
 
 V. Owmmere, 12 Stew. Eq. 582 ; S. C, must be strictly pursued. Wortman v. 
 
 13 Stew. Eq. 279. The sheriff is bound Skinner, 1 Beas. 387. 
 
232 FOBMS OF PLEADINGS. 
 
 {Or instead of the third condition the following may be substi- 
 tuted:) 
 
 3. The purchaser will be held bound by the purchase whether 
 he attends to receive the deed and comply with the conditions of 
 sale or not. If he does not so comply with them, the property 
 may be again advertised and sold or the purchaser may be held 
 liable for his bid, at the option of the (officer.) In case of 
 resale at a less price than the fornier bid, with interest and 
 expenses, the former purchaser will be held liable for the 
 deficiency, to meet which the money paid by him shall be 
 retained and applied by the (officer.) 
 
 (Signature of sheriff.) 
 
 I acknowledge myself to be the purchaser of the property 
 sold this day under the above-mentioned execution, at the price 
 of dollars, subject to the foregoing conditions. 
 
 Dated ,18 . (Signaiv/re of pwchaser.)(a) 
 
 (If the property shall be sold in lots or parcels, and there are 
 several purchasers of different lots, the description of the property 
 in the memorandum of sale at the foot of the conditions will be as 
 follows :) 
 
 Lot No. 1. Being, &c., (describe it shortly.) 
 
 Lot No. 2. (And so on as to all the lots or parcels ) 
 
 (a) In Townshend v. Simon, vii supra, Force v. Duicher, 3 0. E. Or. 401; 
 
 it was held that an action at law lies . Wdsh v. Bayaud, 6 C. E. Or. 186. 
 
 at the suit of the sheriff on a writ- And the names of the buyer and seller, 
 
 ten acknowledgment of purchase at Johnson v. Biick, 6 Vr. 339. It need 
 
 sheriff^s sale, signed by the purchaser, not be subscribed by the party to be 
 
 when the purchaser refuses to comply binding,; a signing anywhere in the 
 
 with the conditions of sale. See also instrument is sufficient, and such sig- 
 
 Ely V. Perrine, 1 Or. Oh. 396 ; Silver nature may be evidenced by the ini- 
 
 V. Campbell, 10 O. E. Or. 465, and tials of the party's name. Smith v. 
 
 Bowne v. Bitter, 11 O. E. Or. 456. An Howell, 3 Stick. 349. A signing by the 
 
 agreement or memorandum for the hand of another is sufficient. Stevens 
 
 sale of land must designate with cer- v. Vancleve, 4 Wash. C. O. 262. Or 
 
 tainty the lands to be sold, as well as by an auctioneer's clerk. Johnson v. 
 
 the price. Oarr v. Pass. Imp. Co., 4 Biuik, supra. 
 a E. Or. 424 ; S. C, 7 C. E. Or. 85 ; 
 
EXECUTION. 
 
 233 
 
 Sheriff's or master's statement.(fl) 
 
 In Chancery of New Jersey. 
 
 [Title of cause.) \ , OnFLFa.iov 
 
 ) sale of mortgaged premises. 
 
 Returnable Term, 18 . 
 
 Decree for complainant % 
 
 Interest from ,18 ^to ,18 
 
 ■Costs of complainant taxed at 
 
 Interest from , 18 , to ,18 
 
 Decree for defendant, 
 
 Interest from , 18 , to ,18 
 
 Oosts taxed at 
 
 Interest from , 18 , to ,18 
 
 Sheriffs execution fees 
 
 Total % 
 
 Proceeds of sale , 
 
 Decree for complainant, as above $ 
 
 Proceeds of sale, less execution fees 
 
 Deficiency {daie) $ 
 
 (o) In case of a sale on execution, Rev., "Sheriffs," ?.25. The purchaser 
 
 made by a sheriflf, under-sheriff, coro- will not be prejudiced by omission of 
 
 ner or other officer, he shall, within the officer to return and file a certifl- 
 
 thirty days thereafter, file in the cate of sale; under the statute, the 
 
 clerk's office of the court out of which requirement is only directory. See 
 
 the execution issued, a true statement Jackson v. Young, 5 Cowen 269. Every 
 
 and calculation, in order of time, of sheriff shall make return of his exe- 
 
 the execution or executions in his cution, and pay to the clerk of the 
 
 hands upon which such sale was made, court any surplus in his hands within 
 
 .and the amount due thereon, respect- thirty days after sale; and no execu- 
 
 ively, at the time of such sale, men- tion shall hereafter be directed to any 
 
 tioning the time or times of sale, as sheriff while he shall be in default in 
 
 .also the amount of sales certified either of the above respects ; and any 
 
 under his hand, together with his bill sheriff, who shall pay over to any 
 
 .of costs or execution fees ; provided, defendant named in an execution 
 
 that such statement so filed shall not any money raised by him on the same, 
 
 be conclusive against any person other unless so directed by the writ, or by 
 
 than such officer ; and provided, that an order of the court afterwards made, 
 
 if there be more sales than one, such shall have no allowance for the same, 
 
 rstatement shall be made and filed Sule 117. 
 within thirty days after the final sale. 
 
234 
 
 F0BM8 OF PLEADINGS. 
 
 Return of writ,(a)...$ 
 
 Advertising sale,(6), 
 
 Adj'nm't (each)(c)... 
 
 Advertising adjourn- 
 ment, not more 
 than (d) 
 
 Crier's fee,(e) 
 
 Drawing and making 
 deed,(/) 
 
 Affid't and certificate 
 of master, &c.,{g) 
 
 Commi8sions,(A) 
 
 Statement,(i) 
 
 By virtue of the annexed writ, I 
 did, on the day of , 18 , 
 
 sell at public vendue, at , 
 
 having first duly advertised the 
 same, the land and premises de- 
 scribed in said writ, to , for 
 the sum of dollars, he being 
 the highest bidder therefor. The 
 amount remaining due to the com- 
 plainant by virtue of said writ, at 
 this date, is dollars and cents. 
 
 I hereby certify that the fore- 
 going statement and calculation arfr 
 true and correct. 
 
 Dated, &c. 
 
 (Signature and addition.){j) 
 
 (a) Rev., "Fees and Costs," p. 404. 
 
 (6) Id., p. 405 ; iJen., "Sale of Land," 
 ^2; as to rate for legal advertising, 
 see Bev., "Fees and Costs," § 26, p. 
 413 ; 'Anon., 2 Zab. 211. 
 
 (c) 14., p. 405. No more than two 
 adjournments allowed, except by per- 
 mission, in writing, of complainant 
 in execution. Mev., "Sale of Land," 
 g 5. The legal price of the advertise- 
 ment to be published therewith. JRev., 
 "Fees and Costs," I 27, p. 413. 
 
 {d) If the sale be adjourned for 
 more than one week, such adjourn- 
 ment to be published, for which not 
 more than five dollars is to be allowed 
 in any case against the defendant in 
 execution. Rev., "Sale of Lund," § 6. 
 
 (e) Rev., "Fees and Costs," p. 405. 
 
 (/) lb. A sheriff, on sale of lands, 
 cannot charge to the defendant the fee 
 for acknowledging the sheriff's deed. 
 ■Ano%, 2 Zab. 211. 
 
 [g) Rev., "Sale of Land," § 13. 
 
 (A) On all sums not over one thou- 
 sand dollars, two per cent, on the 
 amount of sales ; if over one thousand 
 
 dollars, and not more than three thou- 
 sand dollars, one per cent, on such- 
 excess ; if over three thousand dollars, 
 oue-half of one per cent, of such ex- 
 cess; when the execution is settled 
 without actual sale, and such settle- 
 ment is manifested to the officer, he 
 is entitled to one-half the amount of 
 percentage allowed in cases of sale. 
 Rev., "Fees and Costs," p. 405. If the 
 proceeds of the property exceed the 
 amount of the claims, directed by the 
 execution to be raised, the sheriff or 
 other officer is entitled to centage 
 only on the gross amount raised for 
 the parties. See Slack v. Ely, 1 Sal. 
 232 ; Sinnickson v. Oale, 1 Sarr. 21. 
 
 (i) Rev., "Fees and Costs," p. 405, 
 Every sheriff shall, at the expiration 
 of his term of office, turn over, in 
 writing under his hand and seal, all 
 writs unexecuted, to the succeeding 
 sheriff, who shall execute and return 
 the same. 2Jct., "Sheriffs," § 35. 
 
 ij) SherifS and other officers, 
 whose duty it shall be to make return 
 of any writ or process, shall put their 
 
REPORT OF SALE. 
 
 235 
 
 SheriflF's report of sale of mortgaged premises.(a) 
 
 {I'iUe of cause.) 
 To his Honor, , Chancellor of the State of New Jersey : 
 
 I, , sheriff of the county of , do hereby respect- 
 
 fully report that I did, on the day of , eighteen 
 
 own names to the return of such ^rit 
 or process, so that the court may know 
 of whom they receive such return ; 
 and any steriff or other officer, who 
 shall not sign such return, shall he 
 amerced, and also answer damages to 
 the party. Sev., "Sheriffs,'' § 17 ; see 
 Allen V. Smith, 7 Hal. 159 ; Meyer v. 
 Patterson, 1 Stew. Eq. 239. 
 
 (o) In all foreclosHre proceedings, 
 the sheriff or other officer who may 
 be directed to sell any mortgaged 
 premises, shall, after making such 
 sale, report the same within five days 
 thereafter to the court out of which 
 an execution or order to sell is issued, 
 stating the name of the purchaser or 
 purchasers and the price obtained, 
 and if the said court or a judge thereof 
 shall approve of such sale, he or it shall 
 confirm the same as valid and effectual 
 in law, and shall, by rule of court, 
 allowed in open court, or by a judge 
 thereof at chambers, direct the said 
 sheriff or other officer to execute a 
 good and sufficient conveyance in law 
 to the purchaser or purchasers for the 
 inortgaged premises so sold ; provided, 
 that no sale of mortgaged premises 
 shall be confirmed by the court or 
 further proceedings had until the 
 court or such judge is satisfied by evi- 
 dence that the property has been sold 
 at the highest and best price the same 
 would then bring in cash, and such 
 evidence may be in the form of affi- 
 davits. Bev. Sup., "Mortgages," I 4. 
 
 The sheriff or other officer * * * 
 shall, within five days after the sale, 
 
 report it to the Court of Chancery in 
 writing, stating the name of the pur- 
 chaser and the price obtained; and 
 he shall accompany the report with 
 his affidavit that the price was the 
 best the property would, at the time 
 of sale, bring in cash; and unless writ- 
 ten objection to the confirmation of 
 the sal? be filed within five days from 
 the expiration of the time limited for 
 filing the report, if the report be duly- 
 filed within the time limited by law ; 
 and this rule (and if the report be 
 not so filed, then within five days- 
 from the filing thereof,) an order, 
 which shall be an order of course, 
 confirming the sale as valid and 
 effectual in law, and directing the offi- 
 cer by whom the sale was made, to 
 execute a good and sufficient convey- 
 ance in law to the purchaser for the 
 mortgaged premises, may be entered 
 after the expiration of the time lim- 
 ited for making objections. If objec- 
 tions shall be filed, the question- 
 whether the property was sold for the 
 best price that could be obtained for 
 it in cash, shall be disposed of sum- 
 marily by the court on affidavits or 
 depositions. Mule 208. 
 
 The legislature did not intend, by 
 the above act, to authorize the court to 
 protect the property from sacrifice by 
 setting aside sales until an adequate 
 price had been obtained for it. Del., 
 L. & W. B. B. Co. v.Scranton, 7 Slew. 
 Eq. 429; Mut. Ben. Life Ins. Co. v. 
 Qovld, 7 Stew. Eq. 411 ; Guarantee 
 Trust Co. V. Jenkins, 13 Stew. Eq. 451^ 
 
^36 F0EM8 OF PLEADINGS. 
 
 hundred and , sell at public vendue, at , (having 
 
 •first duly advertised the same,) the lands and premises described 
 in the writ of execution lasued to me in the above-stated cause, 
 to , of the of , county of and State of 
 
 New Jersey, for the sum of , he being the highest bidder 
 
 therefor. 
 
 Respectfully submitted, this day of , A. D. eigh- 
 
 teen hundred and 
 
 •State of New Jersey, ^ 
 
 {Signatwe of sheriff.) 
 
 }' 
 
 county, 
 
 , of full age, being duly sworn according to law, on 
 his oath says — that the mortgaged premises mentioned and 
 referred to in the foregoing report, were duly sold for the 
 highest and best price the same would bring in cash at the time 
 of sale. 
 
 {Jwrat.) {Signature.) 
 
 Order confirming sale of mortgaged premises. 
 
 (Title of cause.) 
 Upon reading and filing a report made by , sheriff of 
 
 the county of , bearing date the day of , 
 
 -eighteen hundred and , and the affidavit thereto annexed, 
 
 whereby it appears that on the day of , eighteen 
 
 hundred and , he sold at public vendue, at , (hav- 
 
 ing first duly advertised the same,) the lands and premises 
 described in the writ of execution issued to him in the above- 
 stated cause, to , of the of , county of 
 and State of New Jersey, for the sum of , he being the 
 highest bidder therefor, and that the said lands and premises 
 were so sold at the highest and best price the same would then 
 bring in cash, and no cause being shown or appearing to the 
 contrary : It is, on this day of , eighteen hundred 
 and , ordered, that the said sale be and the same is hereby 
 confirmed as valid and effectual in law. And it is further 
 ordered, that the said sheriff do execute a good and sufficient 
 conveyance in the law to the said (or his assigns) for the 
 -said mortgaged premises so sold. {Signature.) 
 
DEED. 237 
 
 Deed by sheriff or master for land sold under 
 foreclosure.(a) This indenture, made this day of 
 
 , in the year one thousand eight hundred and , 
 
 between , sheriff of the county of , (or, " , 
 
 one of the masters in chancery of New Jersey,") of the first 
 part, and , of , in the county of , and State 
 
 of , of the second part. 
 
 Whereas, a certain writ of fieri fadaa lately issued out of the 
 Court of Chancery of the State of New Jersey to the said 
 , (" sheriff of the said county of ,") directed and 
 
 delivered in the following words, to wit: {reoite{b) the writ ver- 
 batim) as by the said writ duly recorded in the clerk's office of 
 the Court of Chancery of New Jerssy will more fully appear. 
 And to the end that a sale of the said lands and premises should 
 be made, pursuant to the statute in such case made and pro- 
 vided, the said , sheriff as aforesaid, by public advertise- 
 ments(c) signed by himself and set up at five or more public 
 places in the said county of , one whereof was in the 
 {tovmship or ward) where such lands and real estate are situate, 
 
 (o) The sheriiF or other officer who, therein described, were sold ; but the 
 by virtue, of any writ of execution, same shall be good and valid, and 
 shall sell any lands, tenements, here- received in evidence as such, notwith- 
 ditaments and real estate levied on, standing any variance between the 
 shall make to the purchaser thereof a recital in said deed and the execution 
 deed of conveyance for the lands, &c., by virtue of which the sale was made, 
 so sold ; which deed of conveyance and notwithstanding any variance be- 
 shall transfer to and vest in the said tween the said execution and the 
 purchaser as good and perfect an estate judgment upon which the execution 
 to the premises therein mentioned as was issued. Bev., "Sale of Land," ? 8. 
 the person against whom the said writ A variance is cured by the statute, 
 or writs of execution were issued, was Den v. Taylor, 1 Sarr. 532. Recital 
 seized of or entitled to at or before does not mean copy; if it recites 
 the said judgment, and as fully to enough to show under what execution 
 all intents and purposes as if such the sheriff acted, it will be a sufficient 
 person had sold the said lands, tene- recital. Den v. Downam, 1 Or. 137. 
 ments, hereditaments and real estate (c) A sheriff's deed may be admit- 
 to such purchaser, and had received ted in evidence, although it contains 
 the consideration money and signed, no recitals of advertisements, but the 
 sealed and delivered a deed for the grantee must prove that due public 
 same. Bev., "Sale of Lands," § 7. notice was given. Den v. Downam,. 
 
 (6) The deed shall recite the writ supra; Osborne v. Tunis, 1 Dutch. 633 ; 
 
 by virtue whereof the said lands, &c., Den v. Humphreys, 1 Harr. 25. 
 
238 P0BM8 OF PLEADINGS. 
 
 at least four weeks(a) next before the time appointed for selling 
 the same, and also published in the and , two of the 
 
 newspapers printed and published in the county of , in 
 
 which said lands and real estate are situate, and designated for 
 the publication of the laws of New Jeree7,(6) of which one was 
 a newspaper printed and published at the county seat(c) of said 
 county, at least four weeks successively once a week next preced- 
 ing the time appointed for said sale, did give public notice that 
 the said lands and premises would be exposed to sale at public 
 vendue on , the day of , A. D. eighteen hun- 
 
 dred and , at o'clock in the afternoon, at , 
 
 in the , and at the time and place so appointed and adver- 
 
 tised, (did publicly adjourn the said sale until the day of 
 
 , &c., at the hour of, &c., at the place aforesaid ; and at 
 the time and place to which the sale was adjourned as aforesaid, 
 did again publicly adjourn the said sale until, &c., which said 
 adjournments were advertised in (the same two newspapers in 
 which the notice of sale was published;) and at the time and 
 place to which the sale was adjourned as (" last") aforesaid, did 
 expose the said lands and premises to sale by public vendue to 
 the highest bidder, and * (" the said ") being the highest 
 
 bidder therefor, the same were, then and there, between the 
 hours of twelve and five o'clock in the afternoon of the day last 
 aforesaid, struck off and sold to him for the sum of dol- 
 
 lars, according to the form of the statute in such cases made and 
 provided.) {If the premises sold shall be only a part of the land 
 described in the execution, the form above will be varied accord- 
 ingly.) {In case the deed is made to the assignee of the purchaser, 
 substitute the name of the original purchaser in place of the party 
 of the first part at the *, and insert here, "And whereas, the said 
 
 {naming purchaser) has duly assigned his bid to the said 
 party of the second part hereto, with directions in writing to the 
 
 (a) See Pamph. L., 1891, p. 491. (6) See act above referred to for 
 
 This act repeals the statute requiring publication in case no designation has 
 
 such sales to be advertised in a news- been made of newspaper to publish 
 
 paper published in the German Ian- the laws. 
 
 , guage, but applies to sheriff's sales (c) See Bev., "Sale of Land," ? 29. 
 
 only. 
 
DEED. 239 
 
 said party, of the first part to execute the deed to him the said 
 party of the second part hereto ; and whereas, the said sheriff 
 reported the said sale in writing to the Chancellor, stating the 
 name of the purchaser of said lands and premises and the price 
 obtained therefor, annexing to said report an affidavit that said 
 lands and premises were sold for the highest and best price the 
 same would at the time of sale bring in cash, and the said 
 did, by an order made on the (date,) confirm the said sale as 
 valid and effectual in law, and directed said sheriff to execute a 
 good and sufficient conveyance in the law to the said , the 
 
 purchaser, (or his assigns,) for the said mortgaged lands and 
 premises so sold, as by the said order of confirmation, reference 
 being thereto had, will more fully appear : "(a) 
 
 Now this indenture witnesses, that the said sheriff {or 
 
 " master ") as aforesaid, for and in consideration of the sum of 
 dollars to him paid, the receipt whereof is hereby 
 acknowledged, hath granted, bargained and sold, and by these 
 presents doth grant, bargain, sell and convey(6) unto the said 
 , his heirs and assigns, all the hereinbefore described 
 tract of land and premises, {or, if the sale be of a part of the land 
 only, say, " all that," &c., describing the part sold, " being a part 
 of the lands and premises hereinabove first described,") together 
 with the hereditaments and appurtenances thereto belonging or 
 appertaining: To have and to hold the said ("last") above- 
 mentioned and described tract of land and premises, with the 
 appurtenances, unto the said , his heirs and assigns for- 
 
 ever, as fully and absolutely as the said , the said party 
 
 (a) The purchaser can assign his Whipple v. Farrar, 3 Mich. (Cfihbs) 
 
 bid, and the deed is good if made to 436 ; Proelor v. Famum, 5 Paige 614; 
 
 the assignee of the purchaser stated to Den v. Lambert, 1 Or. 182, 185. 
 
 be such, in the deed, by the officer. (6) The deed must contain apt 
 
 Ekings v. Murray, 2 Stew. Eq. 388 ; words of conveyance and grant, and it 
 
 <md see Sigby v. McNamara, 6 Ves. must substantially purport to grant 
 
 515 ; Vale v. Davenport, Id. 615 ; and convey the premises to the pur- 
 
 Stafford v. Williams, 12 Barb. 240 ; chaser in consideration of the contract 
 
 U. S. Bank v. Voorhees, 1 McLean of sale and payment of the purchase 
 
 221 ; Frizzle v. Veach, 1 Dana 211. money. Johnson v. Baniock, 38 lU. 
 
 The assignment may be enforced in 111. 
 ■equity. Ekings v. Murray, supra; 
 
240 
 
 FORMS OF PLEADINGS. 
 
 of the first part, sheriflF {or " master ") as aforesaiid, can, may or 
 ought, by virtue of the said execution and of the statute in such 
 cases made and provided, to grant, bargain, sell and convey the 
 same. 
 
 In witness whereof, the said sheriff (or " master ") has here- 
 unto set his hand and seal, the day and year first above written. 
 {8ignatv/re of sheriff or master.){a) [l. s. J 
 
 Signed, sealed and delivered(6) in the presence of — 
 
 {Signature of witness.) 
 {Add aehnowledgment in due form.) 
 
 (a) It has been held in New York, 
 that a deed executed by the deputy 
 sheriff in the name and on the behalf 
 of his principal was a good execution 
 of the deed ; that a sale, and the con- 
 summation of that sale by deed, are 
 acts which the sheriff may do by 
 deputy ; that the law does not require 
 them to be done by the sheriff in per- 
 son. Jackson v. Bush, 19 Johns. 223. 
 
 The conveyance of any land or 
 real estate sold by any sheriff or 
 other officer, * * * in pursuance 
 of a decree, judgment, execution or 
 order of a court, * * * made and 
 duly acknowledged or approved, and 
 the record thereof, or a certified copy 
 of such record, shall be good and 
 sufficient prima fade evidence of the 
 truth of the recital in the said deed 
 or conveyance contained. iJeii., "Sale 
 of Lands," i 14. The statute does 
 not affect the title under the deed, 
 but only changes the rule of evidence 
 as to the manner of proving the facts 
 required to constitute a valid sale; 
 and it applies where a deed, given 
 before the passage of the act, is offered 
 in evidence. Campbell v. Devrick, 5 
 <7. E. Or. 186. 
 
 (6) A sheriff's deed takes full effect 
 only from the time of delivery, and 
 does not relate back to the time of 
 sale, so as to sustain an intermediate 
 sale and conveyance by the sheriff 
 of the lands therein mentioned. Den 
 V. Steelman, 5 Sal. 193. A deed exe- 
 cuted and acknowledged by a sheriff, 
 in this state, for lands sold by him 
 under execution, may be delivered 
 in another state. Walker v. Hill's Ex-^ 
 7 O. E. Gr. 513 ; affirming 6 C. E. 
 Gr. 192. The legal title of Jand is 
 not affected by a sheriff's deed, where^ 
 at the time gf levy ajid sale, the 
 title was not in the defendant in exe- 
 cution. Belford v. Orane, 1 O. E. Gr. 
 265. 
 
 Title cannot be derived through a 
 sheriff's deed unless it appears affirm- 
 atively by recitals in the deed, or by 
 proof aliunde, that the sheriff has 
 advertised the sale according to law. 
 Henderson v. Hays, 12 Vr. 387. A 
 reversal of the judgment under which 
 a sale has been made, subsequent to 
 the passage of title, will not nullify or 
 disturb the purchaser's title. Shvllz 
 V. Sanders, 11 Stew. Eq. 154. 
 
OATH OR AFFIRMATION. 
 
 241 
 
 Oath or affirmation to be endorsed on or added 
 to the convey ance.(a) I, , sheriff of, &c., {or "mas- 
 
 ter ") as aforesaid, do solemnly swear [or " affirm ") that the land 
 
 (a) Where a sheriff or other officer 
 
 * * * shall make sale of any lands 
 or real estate in pursuance of a decree, 
 judgment, execution or order of any 
 court, the said sheriff, officer or audi- 
 tor shall make and sign an affidavit, 
 endorsed on or added to the convey- 
 ance therefor, before the Chancellor, 
 one of the justices of the . Supreme 
 Court or a master in chancery, in the 
 above form. Rev., "Sale of Lands,'' § 
 13. Which conveyance, approved, 
 
 * * * may.be recorded as if duly 
 acknowledged; and the said convey- 
 ance, or the record thereof, or a certi- 
 fied copy of such record shall be evi- 
 dence of a good and valid sale and 
 conveyance of said land and real 
 estate, as if the same had been reported 
 to and approved by the court, in pur- 
 suance of whose decree, &c., the same 
 was made. Ibid. The sections (13 and 
 14) above quoted, seem to qualify the 
 section of the act declaring that no 
 deed shall be recorded unless duly 
 acknowledged or proved. Bev., "Con- 
 veyances," 2 13. It is the uniform 
 practice, however, for sheriffs and 
 other officers to acknowledge deeds 
 made by them. 
 
 In general, sheriffs' deeds are within 
 the provisions of recording acts. 
 Borer on Jud. Sales, I 833, and notes. 
 Where a deputy duly appointed con- 
 ducts the sale, the sheriff may take 
 the oath required by Bev. 1045, § 13. 
 Meyer v. Patterson, 1 Stew. Eq. 239. 
 If any sheriff or coroner, who shall 
 make sale of any lands or real estate 
 by virtue of an execution against the 
 same, shall abscond, or depart from 
 the state, or be disqualified by law, or 
 rendered unable by death, or be other- 
 
 wise incapable to make a deed or con- 
 veyance for the same, it shall be law- 
 ful for any succeeding sheriff of the 
 county in which such lands or real 
 estate are situate, on receiving a certi- 
 ficate from the Court of Common Pleas 
 of such county, signed by the clerk by 
 order of the said court, setting forth 
 that sufficient proof has been made to 
 the said court that such sale was 
 fairly and legally made, and on tender 
 of the purchase money, or if the pur- 
 chase money or any part of it has 
 been paid, theii, on proof of such pay- 
 ment, and on tender of the residue, if 
 any there be, to sign, seal and deliver 
 to the said purchaser, or his legal 
 representative, a deed or conveyance 
 of the lands and real estate so sold ; 
 which deed shall be as good and 
 valid, and shall have the same force 
 and effect as if the sheriff or coroner 
 who made such sale had signed, 
 sealed and delivered a deed or con- 
 veyance for the same in due form of 
 law ; and the purchase money received, 
 by the sheriff making the deed shall 
 be paid to the person entitled thereto 
 by law. Bev., "Sale oj Lands" I 11 ;. 
 Ben V. Mulford, 1 Zah. 500. If any 
 master in chancery, who has made or 
 shall make sale of any lands, &c., by 
 virtue of an execution against the 
 same, shall abscond or depart from 
 the state, or be disqualified by law, or 
 shall die, or in any way become in- 
 capable of making a deed of convey- 
 ance for the same, it shall be lawful 
 for the court out of which the said 
 execution issued, upon satisfactory 
 proof that such sale has been fairly 
 and legally made, to appoint another 
 master in chancery, who shall have 
 
 Q 
 
242 
 
 FOEMS OF PLEADINGS. 
 
 and real estate described in this deed made by me to was 
 
 by me sold by virtue of a good and subsisting execution, as is 
 therein recited ; that the money ordered to be made has not been, 
 to my knowledge or belief, paid or satisfied; that the time and 
 place of the sale of said land and real estate were by me duly 
 advertised as required by law, and that the same was cried off 
 and sold to a bona fide purchaser for the best price that could be 
 obtained. 
 
 {Signature of sheriff or master.) 
 
 Sworn {or " affirmed ") before me, one of the masters, &c., {or 
 as the case may be,) on this day of , A. D. , 
 
 and I having examined the deed above mentioned, do approve 
 the same, and order it to be recorded as a good and sufficient 
 conveyance of the land and real estate therein described. 
 
 {Signature of officer.) 
 
 Capias ad satisfaciendum.(a) New Jersey, to wit — The 
 State of New Jersey to the sheriff of the county of 
 [L. s. j —Greeting : 
 
 rfuU power, on tender of purchase 
 money, or if the purchase money or 
 any part of it has heen paid, then, on 
 proof of such payment, and on tender 
 of the residue, if any there be, to 
 sign, seal and deliver to the said pur- 
 chaser, or his legal representative, a 
 ■deed or conveyance of the lands, tene- 
 ments, hereditaments and real estate 
 «o sold ; which deed shall be as good 
 and valid, and have the same force 
 and effect as if the master who made 
 .such sale had signed, sealed and de- 
 livered a deed or conveyance for the 
 same in due form of law; and the 
 moneys received on such conveyance 
 shall be paid to the person entitled 
 thereto by law. Miv., "Sale of Lands,'' 
 
 (a) The complainant having ob- 
 tained a decree, it shall be lawful for 
 the court to issue process for the im- 
 
 mediate sequestration of the real and 
 personal estate of the defendant, or so 
 ..much thereof as may be sufficient to 
 satisfy the demand of the complainant 
 in the decree specified, with costs, or 
 to issue a writ of fieri facias against 
 the goods and chattels, lands,- tene- 
 ments, hereditaments and real estate 
 of the defendant, upon which sufficient 
 property shall be taken and sold to 
 satisfy the said demand, with costs, or 
 to issue a capias ad satisfaciendum 
 against the defendant, upon which 
 writs o{ fieri facias and capias ad satis- 
 fadendum there shall be the same pro- 
 ceedings as at law ; or to cause by in ■ 
 junction the possession of the effects 
 and estate demanded by the bill, and 
 whereof the possession or a sale is de- 
 creed to be delivered to the com- 
 plainant or otherwise, according to 
 such decree and as the nature of the 
 
FEIGNED ISSUE. 243 
 
 We command you that you take , if he may be found 
 
 in your county, and him safely keep so that you may have his 
 body before our Chancellor, in our Court of Chancery, on the 
 
 Tuesday of next, to satisfy dollars and 
 
 cents, and interest thereon from , eighteen hundred and 
 
 , which the said complainant lately, in our said Court of 
 ■Chancery, before our Chancellor, reccc^ered against the said de- 
 fendant, , for the costs and charges by the said complain- 
 ant in suit in that behalf expended, whereof the said 
 defendant is convictedj as appears to us of record. 
 
 Witness his Honor , Chancellor, at Trenton, this 
 
 day of , in the year one thousand eight hundred 
 
 and 
 
 Clerh. 
 Solicitor. 
 
 FEIGNED ISSUE.(a) 
 
 Notice of motion for an issue at law under the 
 statute. As on page 148 to *, then, for an order awarding an 
 issue at law in this cause for the trial by a jury of the facts in 
 controversy therein. 
 
 To , Solicitor of 
 
 {Signcdwre oj solicitor.) 
 
 case may require; and in case of be delivered to the sheriflF or other 
 
 sequestration the court shall order officer to be executed, as at law. Rev., 
 
 payment and satisfaction to be made " Ohamcery," § 65. For form of writ 
 
 out of the estate so sequestered, of sequestration, see page 43, and of 
 
 according to the true intent and mean- writ of fieri facias, page. 216, ante. 
 
 ing of the decree. Bev., " Chancery," (a) If any matter of fact shall 
 
 I 64. This section applies to personal render the intervention of a jury 
 
 decrees for the payment of money, for necessary, then the Court of Chancery 
 
 costs and the like. A writ of fieri is authorized to direct an issue for 
 
 facias shall bind the property or the trial of the same in the Supreme 
 
 goods of the person against whom it Court. Rev., "Chancery," ? 100. 
 
 is issued from the time that it shall Upon the application of either party, 
 
244 FOBMS OP PLEADINGS. 
 
 Order for an issue at law under the statute,(a) 
 {Title of cause.) 
 
 This matter being opened to the court by , of counsel, 
 
 &o., and it appearing that this cause is at issue upon a replica- 
 tion to the answer of the defendant, , and is in readiness 
 to take testimony thereinpthe bill having been taken as con- 
 fessed against the defendant, . , and on reading and filing 
 a notice of motion on the part of the defendant (or " complain- 
 ant,") , for an issue in this cause to be tried by a jury, and 
 an affidavit of the due service of such notice upon the solicitor 
 for the , and on hearing the arguments of the respective 
 counsel, {or as the case may be:) It is, on this day of 
 
 , &c., ordered, that an issue at law be framed in the 
 Supreme Court of New Jersey, and tried in the ordinary man- 
 ner, between the said , defendant {or "complainant") in 
 this cause, as plaintiff, and , complainant {or "defend- 
 ant") in this cause, as defendant, by a jury of the county of 
 
 , to inquire, ascertain and determine whether, &c., {redte 
 the issue to be tried as settled by the Chancellor; and either 
 party may notice the cause for trial, and a special jury may be 
 had upon the application to this court of either party ; and if 
 the application shall be made after the hearing in chancery, say, 
 " and the exhibits, documents and depositions in this cause may 
 be used in evidence on the trial, in case the witnesses who testi- 
 
 an issue at law shall be directed to that court only. Am. Dock & Imp. 
 try the validity of a claim to real Oo. v. Trustees, 10 Stew. Eq. 266. 
 estate in certain cases, "or to settle the (o) Whether an order is for an 
 facts, or any specified portion of the action at law or an issue out of chan- 
 facts upon which the same depends, eery, does not depend upon the foriii 
 and the Court of Chancery shall be in which the issue is raised. For 
 bound by the result of such issue, but convenience of trial the issue must be 
 may, for sufficient reasons, order a given the form of a common-law 
 new trial thereof, according to the. action, with appropriate pleadings at 
 practice in such cases. Reo., "Titles," law, to raise an issue ; but the nature 
 § 5, p. 1190. Where an issue is sent and purpose of the issue gives it char- 
 out of Chancery the whole proceeding acter as a feigned issue or otherwise, 
 is under the control of the Court of and not the form in which the issue is 
 Chancery, and the conduct and result expressed. Am. Dock & Imp. Co. v. 
 of the trial are subject to review in Truateet, 10 Stew. Eq. 266. 
 
FEIGNED ISSUE. 245 
 
 fied to the same be dead, or upon sickness or other sufficient 
 cause be unable to attend such trial, in the discretion of the 
 Chancellor.") 
 
 And all further directions are reserved until the issue shall be 
 tried, and the postea returned into this court. 
 
 Order for a feigned issue alf the hearing.(a) 
 (lUle of cause.) 
 
 This cause coming on to be heard at a regular term of this 
 •court, held at Trenton, in the presence of , of counsel 
 
 with the complainant, and , of counsel with the defend- 
 
 ant, whereupon, and upon hearing the pleadings, ezhibits and 
 evidence in the cause read, and upon hearing what was alleged 
 by the counsel for the said respective parties, the Chancellor 
 having taken time to consider and advise thereon : It is, on this 
 day of , in the year, &c., ordered, adjudged and 
 
 decreed, and the Chancellor, by virtue of the power and authority 
 of this court, does adjudge and decree, at the instance and upon 
 the motion of the complainant,(6) by his said counsel, that a 
 
 (a) It is the province and the duty In general, according to the practice 
 
 of the court to decide upon the facts in chancery, a cause will be brought 
 
 SLuA the law, except in cases of real to a formal hearing before an issue ie 
 
 diflSculty, growing out of contradictory directed. Eames v. Eames, 16 Pick. 
 
 testimoay, or opposing facts and cir- 143 ; 1 Barh. Oh. Pr. 446, 463. An 
 
 cumstances which it is impossible for issue may be awarded before final 
 
 the court to reconcile ; then an issue hearing. Bliss v. Slater, May T., 
 
 is directed to inform the conscience of 1872 ; Carpenter v. E. & A. B. B. Co., 
 
 the court. Miller v. Wack, Sax. 204 ; 9 C. E. Or. 408 ; Prudden v. lAndsley, 
 
 Decker v. Caskey, Id. 427 ; Am. Dock 1 Stew. Eq. 381. An order made at 
 
 :& Imp. Co. V. Trustees, &c., 10 Stew. the final hearing for an issue is 
 
 Eq. 266. The practice of sending appealable. Bailroad Co. v. Newark, 
 
 ordinary matters to a jury ought to.be 8 C. E. Or. 515. 
 
 discouraged. Bassett v. Johnson, 2 (6) The court may refer a disputed 
 
 Or. Ch. 417 ; Denton v. Leddell, 8 C. question of fact to the decision of a 
 
 E. (?r. 64; Newark & N. Y. B. B. Co. jury, on its own motion. Black v. 
 
 T Mayor, &c., of Newark, Id. 515. Lamh, 1 Beas, ,108 ; Carpenter v. E. & 
 
 The awarding of an issue rests in A. B. B. Co., 9 C. E. Or. 408. Or 
 
 the discretion of the court, and upon application of relators in an 
 
 should be sparingly exercised, Tren- information. AtSy-Oen. v. Heishon, 3 
 
 ion Bank v. Woodruff, 1 Or. Ch. 118 ; C. E. Or. 413. 
 Bassett v. Johnson, 2 Or. Ch. 417. 
 
246 FOKMS OF PLEADINGS. 
 
 feigned issue be framed in the Supreme Court, and tried in the 
 ordinary manner, between the said , complainant in this 
 
 cause, as plaintiff, and , defendant in this cause, as de- 
 
 fendant, by a jury of the county of , at the next Circuit 
 
 Court to be holden in said county, to inquire, ascertain and de- 
 termine, by the verdict of said jury, whether the erection of the 
 dam by the defendant, mentioned in the pleadings in this cause^ 
 has seriously and permanently affected and injured the meadows 
 of the complainant, lying above it, {or otherwise, reciting the 
 issue to be tried, as the case may be;) and that either party may 
 notice the cause for trial, and the defendant in the issue may 
 carry down the record by proviso,(a) in order that the trial may 
 be had at the ensuing circuit ; and that a special jury (5) will be 
 ordered by this court, on the application of either party, subject 
 to the preference given to the plaintiff by the rules of the Su- 
 preme Court ; and that copies of the depositions, certified by the 
 clerk of this court, be read, and received in evidence on the said 
 trial, as rebutting evidence, or as original evidence, in case the 
 witnesses who testified to the same be dead, or from sickness or 
 other sufficient cause be unable to attend such trial ; and that na 
 new witnesses shall be produced at said trial without giving ten 
 days' notice of the intention to produce them, with the name 
 and place of abode of such witnesses ; and that all further direc- 
 tions be reserved until the said issue shall be tried, and the 
 postea returned to this court. 
 
 Feigned issue from ch.ancery.(c) 
 
 New Jersey Supreme Court. 
 Pleas before the Justices of the Supreme Court of Judicature 
 of the State of New Jersey, at Trenton, of the term of , 
 
 in the year, &c. Witness , Chief Justice. 
 
 Clerk. 
 
 (a) See 3 Bla. Com. 357. by the plaintiff's solicitor, or by the 
 (6) The Chancellor may order a solicitor of whichever party is ordered 
 special jury. BoMett'v. Johnson, supra. by the court to prepare it. The party 
 (c) Upon granting an order for a supporting the affirmative of the ques- 
 feigned issue, a draft of the pleadings tion to be tried is usually directed lo- 
 in an action of assumpsit is prepared be the plaintiff in the issue. This is- 
 
FEIGNED ISSUE. 247 
 
 county, ss. — puts in his place , his attor- 
 
 ney, against , in a plea of trespass on the case, &o. 
 
 county, 88. — puts in his place , his attor- 
 
 ney, against , at the suit of , in a plea of trespass 
 
 on the case, &c. 
 
 county, 88. — Be it remembered, that on the day 
 
 of , before the Justices of the Supreme Court of the State 
 
 of New Jersey, at Trenton, came , the plaintiff in this 
 
 suit, by , his attorney, and. brought into this court his 
 
 declaration against , the defendant in this suit, in a plea 
 
 of trespass on the case, &c. ; which said declaration is in these 
 words : 
 
 county, 88. — complains of , in custody, 
 
 &c., for that whereas, on the day of , in the year, 
 
 &c., at , in the county of , in a certain discourse 
 
 then and there had by and between the said and , 
 
 in a certain suit depending in the Court of Chancery of the 
 State of New Jersey, wherein the said is complainant, 
 
 and the said is defendant, a question then and there 
 
 arose, and was debated between the said and the said 
 
 , whether a certain dam erected by the said , in 
 
 creek, in the said county of , had seriously and 
 
 permanently affected and injured the meadows of the said , 
 
 lying and being above the said dam, in the county aforesaid ; 
 and the said then and there asserted and affirmed, that 
 
 the said dam so as aforesaid erected in creek, in the 
 
 county of aforesaid, had seriously and permanently 
 
 affected and injured the meadows of the said , lying and 
 
 generally the plaintiff in ec[uity, but sent. Sell v. Woodward, 47 N. H. 539. 
 
 the court will direct any other party The facts to be stated in the ease may 
 
 to be plaintiff at law, if the issue can be stated in the order by the court 
 
 be thus more conveniently raised. without reference. The case is signed 
 
 1 Barb. Ch. Pr. 463. Objections to by the counsel on each side. If one 
 
 the form of the issues should be made refuse he waives its benefit. Here 
 
 before trial. JBassett v. Johnson, 1 Or. the issue has been usually directed to 
 
 Ch. 155 ; Black v. Lamb, 1 Beas. 108. the Supreme Court, and an issue of 
 
 And in the court from which they are fact to the Circuit. 
 
248 FORMS OP PLEADINGS. 
 
 being above said dam as aforesaid; which said assertion and 
 affirmation of the said the said then and there 
 
 wholly denied, and asserted to the contrary thereof; and there- 
 upon, afterwards, to wit, on the day and year last aforesaid, at 
 aforesaid, in consideration that the said , at the 
 
 special instance and request of the said , had then and 
 
 there paid to the said the sum of one hundred dollars, 
 
 lawful money of the United States, the said then and 
 
 there undertook and faithfully promised the said to pay 
 
 him the sum of two hundred dollars, like lawful money as 
 aforesaid, in case the said dam had seriously and permanently 
 affected and injured the said meadows of the said , and 
 
 the said in fact says, that the said dam has seriously and 
 
 permanently affected and injured his said meadows, to wit, on 
 the day of , in the year, &o,, at aforesaid, 
 
 whereof the said , afterwards, to wit, on the said 
 
 day of , in the year, &c., at aforesaid, had notice, 
 
 nevertheless the said , not regarding his said promises and 
 
 undertakings, by him in form aforesaid made, has not as yet 
 paid to the said the said sum of two hundred dollars, nor 
 
 any part thereof, although so to do the said , afterwards, 
 
 to wit, on the day and year aforesaid, and often afterwards, at 
 aforesaid, was by the said requested, but the same 
 
 to him to pay he has hitherto altogether refused, and still does 
 refuse, to the damage of the said five hundred dollars, 
 
 and therefore he brings suit, &c. 
 
 And the said , by , his attorney, comes and de- 
 
 fends the wrong and injury, when, &c., and says the said 
 ought not to have and maintain the aforesaid action against him, 
 because, he says, that though true it is the said discourse, in the 
 plaintiff's declaration mentioned, was had and moved by and 
 between the said and the said , wherein the ques- 
 
 tions did arise as aforesaid; and that he did undertake and 
 promise, in manner and form as the said has above in that 
 
 behalf alleged, nevertheless, for plea in this behalf, the said 
 says, that the said dam, so as aforesaid erected in creek, 
 
 in the county of aforesaid, has not seriously and perma- 
 
 nently affected and injured the meadows of the said , 
 
FEIGNED ISSUE. 249 
 
 lying and being above the said dam as aforesaid ; and of this he 
 puts himself upon the country, &c. 
 
 And the said doth the like, &c. 
 
 The foregoing is a true transcript of the declaration and 
 pleadings in this case, remaining of record in the clerk's office of 
 the Supreme Court of the State of New Jersey. 
 
 In witness whereof, I have hereunto set my hand, and caused 
 the seal of the said court to be hereunto affixed, at 
 £l. s.] Trenton, this day of , in the year, &c. 
 
 Clerk. 
 
 Order for a struck jury .(a) 
 
 {Title of cause.) 
 
 As on page 36 to *, then, that due notice of this motion has 
 been given to the defendant's solicitor, and the counsel of the 
 respective parties having been heard on the matter : It is, on, 
 &c., ordered, that the issue heretofore ordered to be tried at law 
 in the above-stated cause, .be tried before a special or struck 
 jury, and that a jury be struck for the trial thereof, in the 
 manner required by law and the practice of the courts, before 
 Hon. , one of the Justices of the Supreme Court. 
 
 And it ia further ordered, that if the struck jury be not ready 
 to be called and impaneled on , the time now fixed for 
 
 the said trial, then said issue is to be tried before a common 
 jury of said county, notwithstanding this order. 
 
 Postea.(6) Afterwards, that is to say, at a Circuit Court of 
 the Supreme Court of the State of New Jersey, holden in and 
 for the county of , on the day of , &c., as 
 
 yet of the term of , &c., before the Honorable , one 
 
 of the Justices of said Supreme Court, came as well the said 
 , the plaintiff, as the said , the defendant, by their 
 
 respective attorneys within mentioned, and the jurors of the 
 jury, &c., being duly called, chosen and summoned, and to 
 speak the truth of the matters within contained, being chosen, 
 
 (o) By the English practice, if (6) The transcript and postea must 
 
 either of the parties requires a special be returned to the court awarding 
 
 jury, a motion for one should be made the issue, and not to the Supreme 
 
 to the Court of Chancery. Anon., 2 Court. Trenton Bank v. Rosidl, 1 Or. 
 
 p. Wms. 68. CA.492. ' 
 
250 FORMS OF PLEADINGS. 
 
 tried and sworn, say, upon their oath aforesaid, that the said 
 dam of the said defendant has not seriously and permanently 
 affected the said meadow of said plaintiff (or state the finding of 
 the jury, as the case may be.) 
 
 {Signatwre of justice.) 
 
 Certificate of judge to be annexed to minutes of 
 trial, &e.(a) 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 I, , one of the Justices of the Supreme Court of the 
 
 State of New Jersey, do hereby certify and report that the issue 
 directed in the above-stated cause was duly tried before me, at 
 the Supreme Court Circuit in and for the county of , at 
 
 the term of , 18 , by a jury of the said county ; that 
 
 the annexed contains the depositions read and the oral evidence 
 taken, which, with the various exhibits in said cause, (extracts 
 from which are also annexed,) were submitted to the court and 
 jury in said trial, and also my charge to the said jury on said 
 trial. And I further certify that, in my opinion, the verdict 
 was warranted by the evidence. 
 
 Dated, &c. [Signaiwre and addition.) 
 
 Notice of motion for new trial of feigned issue.(&) 
 
 {Title of cause.) 
 As on page 148 to *, then, for an order directing a new trial 
 of the issue directed in the above-stated cause. 
 
 {Signature of solicitor.) 
 To , Solicitor of 
 
 (o) The judge before whom the with the verdict. Carpenter v. E. & A. 
 
 issue is tried should not only return R. M. Co., 11 C JE. Or. 168. Gener- 
 
 the postea, but also furnish the Chan- ally this court will not set aside a 
 
 cellor with a, statement of the trial, verdict on an issue at law where the 
 
 containing the general character of judge before whom such issue was 
 
 the evidence offered, the part objected tried certifies that he is satisfied with 
 
 to, and his decision on those objec- the verdict, and that it ought to be 
 
 tions, together with his charge to the regarded as conclusive on the question 
 
 jury, and the Chancellor may call submitted to the jury. Prudden v. 
 
 upon him for an additional report. Lindsley, 4 Stem. Eq. 436. 
 
 Sasseti v. Johnson, 2 Or. Oh. 417. And (6) A new trial of an issue at law 
 
 also to certify whether he is satisfied may be granted by the Chancellor, if 
 
FEIGNED ISSUE. 251 
 
 Order denying motion for a new trial of feigned 
 
 issue.(a) 
 
 {Title of eauae.) 
 
 Upon the return of the poatea and of the report of Hon. 
 
 , one of the Justices of the Supreme Court, on the issue 
 heretofore ordered by this court, the defendant having moved 
 that a new trial of the issue directed in this cause be granted, * 
 and the said motion having been argued by , of counsel 
 
 with the ("defendant,") and by , of counsel with the 
 
 ("complainant,") and the Chancellor having duly considered 
 the same : It is, on this day of , t in tlie term of 
 
 , ordered, that the said motion be denied, with costs. 
 
 Order for a new trial of feigned issue.(6) 
 
 [Titte of cause.) 
 
 This cause coming on to be heard at the term of this 
 
 court, in the year, &c., and an order for the trial of a certain 
 
 he is dissatisfied with, the evidence, or new trial. Tatham v. Wright, 2 Russ. 
 
 for other reasons. Harrison v. Rowan, & My. 31. But a new trial will not 
 
 3 Wash. C. C. 580; 4 Wash. C. C. 32. be granted if the Chancellor is satis- 
 
 By the English practice, an applica- fied that the verdict is right, although 
 
 tion for a new trial of an issue must be the judge misdirected the jury. Tren- 
 
 made before the hearing on the equity ton Bank v. Rossell, 1 O. Ch. 511 ; 
 
 reserved. Att'y-Oen. v. Montgomery, Barker v. Bay, 2 Buss. 63; Newark 
 
 2 Atk. 378 ; but otherwise in New Plank Bead Co. v. Elmer, 1 Stock. 785. 
 
 York Chancery — see Apthorp v. Com- If the judge certifies that he is dis- 
 
 stock, 2 Paige 485; Van Alst y. Hunter, satisfied with the verdict, the court 
 
 5 Johns. Ch. 153. No exception can does not as of course grant a new trial, 
 
 be taken at nisi prius to the opinion though it is the ordinary practice to 
 
 of the judge who tried the cause; do so. Falconberg v. Pierce, Amb. 
 
 the proper mode is to move, before 210 ; Atkyns v. Drake, 1 McCle. & Y- , 
 
 the Chancellor, for a new trial. Har- 229. 
 
 rison v. Bowan, supra. (b) The party applying for a new 
 
 (o) If the court feels satisfied, from trial prepares the case, and submits it 
 
 the report of the judge, that the to the solicitor of the adverse party, 
 
 points in the case have not been dis- and if they cannot agree, the case 
 
 tinctly presented to the jury, it will, must be settled by the judge before 
 
 without entering into the question whom the issue was tried. Trenton 
 
 whether the verdict was or was not Bank v. Bossell, 1 Or. Ch. 492. 
 satisfactory upon the facts, direct a 
 
252 FORMS OF PLEADINGS. 
 
 issue in this cause before a jury, having been made by the Chan- 
 cellor, on the day of , &c., and there having been 
 a trial under said order, and the circuit record and certificate of 
 the judge who presided at the trial of said issue, and the postea, 
 having been duly returned to this court, and thereupon, the said 
 complainant moving for a new trial of the said issue so as afore- 
 said directed, pursuant to the practice of this court, and it 
 appearing that due notice of said motion has been given to the 
 solicitor of the defendant, ; {proceed as in preceding form 
 after * to f, then, " ordered, that there be a new trial of the 
 issue directed in this cause by the said order heretofore made 
 therein ; the issue to be tried in all respects in the manner as in 
 the said order is directed.") 
 
 Notice of hearing for further directions after trial 
 of feigned issue, (a) i 
 
 {Title of cause.) 
 
 Take notice, that this cause will be brought to a hearing for 
 further directions upon the pleadings in the feigned issue framed 
 therein, and upon the certified copy of the minutes of the trial 
 of such feigned issue annexed thereto and filed in the office of 
 the clerk of this court, at the next regular term of this court, to 
 be held at the state-house^ in the city of Trenton, on the 
 Tuesday of next, at the hour of ten o'clock in the fore- 
 
 noon, or as soon thereafter as the same can be heard. 
 
 (a) After the issues at law have cause may he set down as soon as 
 
 been tried, the cause, unless a new the trial has taken place. Rogers v. 
 
 trial is moved for and granted, must Nowell, 6 Hare 338. The fact that an 
 
 be heard for further directions upon appeal is pending from an order 
 
 the equity reserved. The cause then refusing a new trial is not sufficient 
 
 comes on in the regular course, when to stay the further hearing of the 
 
 such final or other decree as the cause cause. McOregor v. Topham, 4 Sare 
 
 calls for, will be pronounced. The 162. 
 
PBOCBBDINGS AGAINST A PUKCHASBB. 
 
 253 
 
 PROCEEDINGS TO COMPEL A PURCHASER TO 
 COMPLETE HIS PURCHASE. 
 
 Petition to compel a purchaser to complete his 
 purchase after execution sale.(a) 
 
 (^Title and address.) 
 The petition of , the complaiDant in this cause, respect- 
 
 fully shows, that on or about the day of , &o., he 
 
 filed his bill in this court to foreclose a mortgage in said bill 
 mentioned, made and executed by and , upon cer- 
 
 tain lands and premises {here identify the property) in said bill 
 
 (a) If a purchaser is responsible, 
 he will not be permitted to baffle the 
 court ; and, therefore, instead of dis- 
 charging him from his bidding, and 
 ordering a resale, the court will make 
 an order that he shall, within a given 
 time, pay the purchase money and be 
 let into possession. 2 Dan. Ch. Pr. 
 1282; SUver v. Campbell, 10 C. E. Qr. 
 465. A purchaser may be discharged 
 from his bid whenever he shows a 
 good reason for being released. 
 Irregularity in the proceedings of sale 
 which renders the title defective, has 
 been held a good cause for discharg- 
 ing a purchaser. Alvord v. Beach, 5 
 Ab. 451 ; Hopper v Hopper, 1 0. E. 
 Or. 149. A purchaser at a sheriff's 
 sale, when not a party to the suit, is 
 held to bejnade a party by the pur- 
 chase, so far as to be subject to the 
 jurisdiction of the court on questions 
 arising from the sale. Shann v. Jones, 
 4 0. E. Or. 251. Such purchaser 
 may therefore be compelled to com- 
 plete his purchase in a summary way 
 by an order upon him, without a bill, 
 to pay the money or bring it into 
 court. Silver v. Campbell, supra. The 
 remedy in the Court of Chancery to 
 compel the purchaser to complete 
 the purchase by summary process is 
 
 not exclusive. A sheriff who has 
 sold lands under a fieri facias out of 
 chancery in a foreclosure suit, may 
 bring an action at law in his own 
 name against a purchaser who refuses 
 to comply with the conditions of sale. 
 Where the conditions of sale are that 
 if a purchaser refuse to comply, the 
 property will be resold, and the pur- 
 chaser held liable for all losses and 
 expenses, and on the refusal of the 
 purchaser to comply, the property has 
 been resold on the same conditions of 
 sale, and a less sum realized ; in an 
 action against the former purchaser, 
 the measure of damages is the differ- 
 ence between the defendant's bid and 
 the sum realized at the second sale, 
 together with the costs and expenses 
 of the resale. Townshend v. Simon, 9 
 Vr. 239. Where, by the conditions of 
 sale, it is provided that "if the pur- 
 chaser do not comply with the condi- 
 tions, the property shall be resold," 
 the officer is not bound, upon a failure 
 of the purchaser to comply with the 
 conditions, to make a second sale, 
 though requested to do so by the 
 defendant in execution. Woodhull v. 
 Neafie, 1 Or. Ch. 409; see Seton v. 
 Slade, 7 Ves. 265; Wood v. Mann, 3- 
 Sumn. C. C. 318. ' 
 
254 POEMS OF PLEADINGS. 
 
 particularly described; that such proceedings were thereupon 
 had in said cause ; that on the day of , &c., it was 
 
 ordered and decreed by this honorable court that an execution 
 issue out of this court for the sale of said lands and premises, to 
 raise and pay the amount adjudged to be due to your petitioner 
 upon his said mortgage, together with his taxed costs and the 
 sheriff's execution fees; that a writ of execution was duly issued 
 thereon pursuant to said decree, directed and delivered to the 
 sheriff of the county of , and that the said lands and 
 
 premises, after having been duly advertised by said sheriff, were 
 on the day of , &c., struck off and sold to , 
 
 of , be being the highest bidder therefor. 
 
 And your petitioner further shows, that said sale was upon 
 the following terms and conditions, to wit, {state the conditions 
 of sale,) a true copy of which is annexed to this petition; that 
 said , the purchaser, immediately after said sale, signed 
 
 ^he said conditions and an acknowledgment of his purchase, 
 and paid to the sheriff per cent, of the purchase money, 
 
 according to the terms thereof; that said did not comply 
 
 with the other conditions of said sale, or complete his purchase 
 within the time limited by said conditions, and has not paid the 
 balance of the said purchase money or any part thereof to said 
 sheriff, or to your petitioner, or to any other person for them or 
 either of them ; that after the time so limited as aforesaid for 
 the completion of said purchase and the delivery of the deed had 
 expired, your petitioner called upon said and requested 
 
 him to complete his said purchase {state any particulars of the 
 interview bearing upon the case.) 
 
 And your petitioner further shows, that he verily believes 
 that the said does not intend to complete his purchase, 
 
 and he therefore prays, that an order of this court may be made, 
 requiring the said specifically to perform his said contract 
 
 of purchase of the mortgaged premises in this cause, under the 
 execution issued therein, or that your Honor will make such other 
 or further order in the premises as may be agreeable to equity. 
 
 And your petitioner will ever pray, &c. 
 
 {Signature of solicitor and counsel.) 
 
 {Annex an affidavit of full verification of the facts.) 
 
PE0CEEDIN6S AGAINST A PURCHASBB. 255 
 
 Order to show cause upon foregoing petition. 
 
 {Title of cause.) 
 
 This matter being opened to the court, &c., and upon reading 
 and filing the petition of , the complainant in this cause, 
 
 and the affidavit thereto annexed, whereby it appears that , 
 
 the purchaser at the sale of the lands and premises in the plead- 
 ings and execution in this cause described, has failed to comp^ly 
 with the conditions of sale thereof, and acknowledgment of 
 purchase signed by him : It is, on this, &c., on motion, &c., 
 ordered, that the said show cause before the Chancellor, 
 
 on , the day of next {or " instant,") at 
 
 -o'clock in the forenoon, at , why he should not be 
 
 required specifically to perform his contract of purchase of the 
 mortgaged premises in this cause, under the execution issued 
 therein. 
 
 And it is further ordered, that a copy ("of said petition and") 
 of this order be served on the said within days 
 
 from the date hereof. 
 
 Order making preceding order absolute.(a) 
 
 {Title of cause.) 
 This matter coming on to be heard in the presence of , 
 
 of counsel with the petitioner, and of , of counsel with 
 
 , the purchaser in the petition in this cause mentioned, 
 on the order granted on said petition for the said to show 
 
 cause why the prayer of said petition should not be granted, and 
 ^ipon hearing the arguments of the respective counsel : It is, on 
 this, &c., on motion, &c., ordered, that said order to show cause 
 be made absolute. 
 
 And it is further ordered, that said do, within 
 
 ■days after service upon him of a copy of this order, pay to 
 , sheriff of the county of , the balance of the pur- 
 
 chase money due from him under the terms and conditions of 
 
 (o) The order for payment of the the ordinary manner. 2 Dan. Ch. 
 
 purchase money being made, must be Pr. 1283, The court may, however, 
 
 served personally upon the purchaser, direct other service when personal 
 
 and if not complied with, may be service is impossible, by reason of the 
 
 enforced by process of contempt, in purchaser avoiding it, &o. 
 
256 FORMS OF PLEADINGS. 
 
 sale in said petition mentioned, signed by him on the day 
 
 of , together with lawful interest thereon from the date 
 
 last aforesaid ; and that within the same time he do also pay to 
 the said petitioner, or to his solicitor, the costs of said petition 
 and of this order. 
 
 APPLICATIONS FOR SURPLUS MONEY. 
 
 Petition for surplus money.(ci) 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , of the county of , in the State 
 
 of New Jersey, respectfully shows, that an execution, tested on 
 the day of , in the year, &c., issued out of this 
 
 court, in a certain cause wherein was complainant, and 
 
 your petitioner and , his wife, and , were defend- 
 
 ants, which execution was directed to the sheriff of the county 
 of , commanding him to miake sale according to law, in 
 
 the first place, of three tracts of land, described in a certain 
 mortgage bearing date on the day of , in the year, 
 
 &c. ; and that out of the proceeds of such sale he should pay to 
 
 (a) Petitions for surplus moneys a foreclosure suit shall be ordered to 
 or other moneys deposited in court, be taken as confessed against any de- 
 should always be entitled in the cause fendant, no report or decree shall be 
 or matter to the credit of which the made by which his right or claims 
 fund stands. are postponed to those of any other 
 
 Petitions for surplus moneys in defendant, unless the priority of the 
 foreclosure sales may be presented at rights or claims of such other defend- 
 any time after the sale, and before the ant and the facts upon which it de- 
 moneys are paid into court. And if pends, are distinctly set forth in the 
 any order be made for the payment of bill. And any controversies between 
 such surplus before the delivery of such defendants may be settled upon 
 the deed, the sheriff or other ofScer application for the surplus moneys, 
 making the sale shall accept the Rule 24. The surplus moneys arising 
 receipt or order of the person to on a sale of land under a decree of 
 whom such surplus, or any part of it, foreclosure, stand in the place of the 
 may be ordered to be paid, as pay- land in respect to those having liens 
 ment to that extent of the purchase upon or vested rights therein. Mat- 
 money, or may pay the same to such thewg v. Duryee, 46 Barb. 69. 
 person. Mule 153. Where the bill in 
 
SUBPLU8 MONEY. 257 
 
 the said complainant, or to his solicitor, the sum of dol- 
 
 lars, with the interest thereon from the day of , in 
 
 the year, &c., and also the sum of dollars of costs, if the 
 
 same would so far extend ; and that he should then make sale 
 of the tract of land described in the mortgage bearing date on 
 the day of , in the year, &c,, and that out of the 
 
 proceeds of such sale he should pay to the said complainant, or 
 to his solicitor, the sum of , with interest thereon from 
 
 the day of , and that he should apply the surplus 
 
 money, if any there be, arising from the last-mentioned sale, to 
 the payment of such part of the said sum of dollars, with 
 
 the interest thereon as aforesaid, and of so much of the said sum 
 of dollars of costs, as should remain unpaid by the sales^ 
 
 of the said three tracts of land first directed to be sold, &c., {as 
 the case may be, reciting the execution.) And in case more 
 money should be raised by the said sales than should be suflS- 
 cient to answer such payments, the said sheriff was commanded 
 to bring such surplus money into the said court, and deposit the 
 same with the clerk thereof, until the further order of the said 
 court, as by reference to the said execution will more fully 
 appear. 
 
 And your petitioner further shows unto your Honor, that, in 
 pursuance of the said writ of execution, , sheriff of the 
 
 said county of , has made sale of the several tracts of land 
 
 mentioned in said writ, and has deposited with the clerk of this 
 court the sum of dollars, as the surplus money remaining 
 
 in his hands after the several payments which by the said writ 
 he was commanded to make. 
 
 And your petitioner further shows, that the several tracts of 
 land directed by the said writ of execution to be sold, were a 
 part of the real estate of your petitioner, and were sold for the 
 payment and satisfaction of a certain mortgage given by your 
 petitioner to the said , which mortgage was discharged by 
 
 said sale, and your petitioner is therefore entitled to receive the 
 said surplus money. {The above is in a plain case where there 
 
 E 
 
258 FORMS OF PLEADINGS. 
 
 was but one mortgage, and that held by the complainant. If 
 there are other liens or encumbrances on the fund, they must be 
 stated according to the facts.) 
 
 Your petitioner therefore prays, that an order of this court 
 be made, directing the clerk to pay over to your petitioner the 
 said surplus money, or such other order as to your Honor shall 
 seem proper. 
 
 And your petitioner will ever pray, &c. 
 
 {Signature of solicitor and counsel.) 
 
 {Annex affidavit of verification.) 
 
 Order of reference on petition for surplus, (a) 
 
 {Title of cause.) 
 
 Upon reading and filing the petition of , setting forth 
 
 that the sheriff of the county of has deposited with the 
 
 clerk of this court the sum of dollars, being the surplus 
 
 money arising from the sale of certain real estate of the said 
 petitioner, made by virtue of an execution issued out of this 
 court in the above-stated cause, and praying that an order may 
 be made upon the said clerk to pay over the said surplus money 
 to the said petitioner, or such other order as may be proper in 
 the premises : It is thereupon, on this day of , in 
 
 the year, &c., ordered, that it be referred to , one of the 
 
 special masters of this court, to ascertain the truth of the alle- 
 gations of the said petition, and whether the said petitioner is 
 entitled to the said surplus money {or vary the order to meet the 
 circumstances of the particular case ;) and that he make report 
 thereon with all convenient speed. And all further directions 
 are reserved until the coming in of the said master's report. 
 
 (o) Any master, to whom an appli- shall not proceed, unless such sum- 
 cation for surplus moneys may be monses shall have been served five 
 referred, shall issue summonses to all days, in the manner directed in the 
 defendants whose claims are not twentieth rule, or the parties shall 
 directed in the execution to be paid appear before him. Mvie 154. 
 out of the proceeds of sale; and he 
 
8UEPLUS MONEY. 259 
 
 Master's report on petition for surplus.(a) 
 
 {Tiile of cause.) 
 In pursuance of an order of this court, bearing date the 
 day of , in the year, &c., whereby it was referred to the 
 
 subscriber, one of the special masters of this court, to report 
 as to the truth of the allegations of said petition, &c,, I do 
 report, that I have been attended by the solicitor of the peti- 
 tioner, and also by the solicitor of , claiming to be in- 
 terested in, and to be entitled to, some part of the surplus 
 money mentioned in the said petition, and haviBg heard the 
 proofs of the parties, do report, that the matters and things set 
 forth in the petition are true ; and that the sheriff of the county 
 of has deposited with the clerk of this court the sum of 
 
 dollars, as the surplus money arising from the sale 
 of certain mortgaged premises sold by virtue of an execution 
 issued out of this honorable court as the premises of the said 
 
 , to satisfy a certain mortgage given by the said 
 and wife to 
 
 And I further report, that it has appeared in evidence before 
 me that the said obtained a judgment in a plea of trespass 
 
 on the case upon promises against the said , on the 
 
 day of , in the year, &c., in the Court of , {as the 
 
 case may be,) for the sum of dollars, damages, and 
 
 dollars, costs of suit, amounting to the sum of ; and that 
 
 execution was thereon issued and delivered to the sheriff of the 
 said county of , , who levied on the said mortgaged prem- 
 
 ises, besides other property of the said 
 
 And I further report, that by virtue of the said execution 
 last mentioned, the said sheriff made sale of certain personal 
 property of the said , on the day of last, and 
 
 that he received on that day from such sale the sum of 
 dollars. 
 
 (a) Parties and other claimants, master may examine the claimants on 
 
 upon a reference to a master to oath touching their respective claims, 
 
 ascertain the rights to the surplus Hurlburt v. McKay, 8 Paige 651. As 
 
 moneys upon a mortgage sale, must to claims of judgment creditors in 
 
 verify their claims in the same man- attachment, see Sill v. Beach, 1 Beaa. 
 
 ner as creditors coming in under a 32; Brantingham v. Brantingham, 1 
 
 decree are required to do ; and the Beas. 164. 
 
260 FORMS OF PLEADINGS, 
 
 And I further report, that, on the said day of , 
 
 the principal and interest due to the said on his said judg- 
 
 ment amounted to the sum of dollars, after deducting the 
 
 said sum received by the said sheriff towards the payment 
 thereof; and that the said is entitled to receive the said 
 
 sum of dollars, with interest, out of the said surplus 
 
 money; and that the said is entitled to receive the 
 
 remainder of the said surplus money, (or setting forth the sub- 
 stance of the master's report, as the case may be.) 
 
 All which will more fully appear by the schedule to this 
 report annexW, and which I pray may be taken as part hereof. 
 
 Respectfully submitted, this day of , eighteen 
 
 hundred and .(a) 
 
 \ {Signature of master.) 
 
 Final order on petition for surplus. Upon reading 
 and filing the report of , one of the special masters of 
 
 this court, to whom was referred the matters contained .in the 
 petition of the said , which said report bears date on the 
 
 day of instant, whereby it appears that the sheriff 
 
 of the county of has deposited with the clerk of this court 
 
 the sum of dollars, as the surplus money arising from the 
 
 sale of certain mortgaged premises sold by virtue of an execution 
 issued out of this court, as the premises of the said , to 
 
 satisfy a certain mortgage given by the said and wife to 
 
 ; and it further appearing by the said report that one 
 is entitled to receive the sum of dollars, with in- 
 
 terest from the (Jay of last past, out of the said 
 
 surplus money, being the balance due the said upon a 
 
 certain judgment obtained by him against the said ; and 
 
 that the said is entitled to receive the remainder of the 
 
 (a) Where it appears from the mas- the special order of the court to can- 
 ter's report that the proceedings upon firm the report, and pay over the sur- 
 the reference as to surplus moneys plus moneys according to the report, 
 were entirely ex parte, so that no party may be entered together. But- in all 
 has a right to except to the report, other cases, a rule nisi to confirm the 
 the entry of a rule nisi to confirm the report must be first entered. Hurl- 
 report may be dispensed with; and burt v. McKay, 8 Paige 651. 
 
SURPLUS MONEY. 
 
 261 
 
 said surplus money ; and upon reading the petition of the said 
 , praying that such order be made in the premises as 
 shall be agreeable to equity : It is thereupon, on this day 
 
 of , in the year, &c., by his Honor , Chancellor 
 
 of the State of New Jersey, on motion of , solicitor and 
 
 of counsel with the petitioner, ordered, that the said master's 
 report be in all things confirmed. 
 
 And it is further ordered, that the clerk of this court pay unto 
 , the said judgment creditor, the said sum of dollars, 
 
 with the interest thereof from the day of ♦ last until 
 
 the date of this order, and that the said clerk, after deducting 
 the commissions allowed to him upon the said surplus money, 
 do pay the remainder thereof, together with the accumulations 
 on the said deposit according to the rule of this court, to the 
 said or his solicitor.(a) 
 
 (a) The sheriff or other officer to 
 •whom a writ of fieri facias shall be 
 directed and delivered, shall make 
 sale pursuant to the command of the 
 writ, and shall make and execute a 
 deed or deeds for the premises sold, as 
 the case may require ; and the moneys 
 arising from said sale shall he applied 
 to pay off and discharge the moneys 
 decreed to be paid, and the remainder, 
 if any there be, and if the person or 
 persons entitled to receive it shall be 
 absent out of this state, it may be in- 
 vested in stock of the United States, 
 or put at interest on such security as 
 the court shall think proper to order ; 
 and the same shall be delivered or 
 paid to the person or persons entitled 
 to receive it upon his application to 
 the court for the same; no greater 
 estate in the premises sold shall at 
 any time be conveyed or granted to 
 such purchaser, than would have 
 vested in the mortgagee had the 
 equity of redemption been duly 
 
 foreclosed. Rev , " Chancery," § 72. 
 Where the lands have been sold and 
 the surplus deposited, and any person 
 or corporation shall theretofore or 
 thereafter have obtained judgment 
 against the owner of the land so 
 ordered to be sold, or any other per- 
 son or persons who may be entitled 
 to the surplus, or any part thereof, 
 the Chancellor may, on petition filed 
 by such judgment creditor and on due 
 proof to his satisfaction that the resi- 
 dence of the person entitled to the 
 surplus money is unknown and can- 
 not be ascertained, order the judg- 
 ment to be satisfied out of the surplus, 
 notwithstanding such creditor was 
 not made a party defendant in the 
 cause; it shall not be necessary in 
 such cases for the judgment creditor 
 to apply to be admitted as a party 
 defendant, but the petition shall be 
 entitled in the cause out of which the 
 surplus was realized. Pampji. L., 1892, 
 p. 412. 
 
262 
 
 POEMS OF PliEADIUGS. 
 
 Petition 
 
 &C.(a) 
 
 for surplus money by administrator. 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition(6) of , administrator of the goods and 
 
 chattels, moneys and effects, rights and credits, which were of 
 
 , deceased, at the time of his death, who died intestate, 
 respectfully shows, that an execution, tested on the day 
 
 of , in the year eighteen hundred and , issued out 
 
 of this court in a cause wherein was complainant, and 
 
 and {others) were defendants, which execution was directed 
 to the sheriff of the county of , commanding him to make 
 
 sale according to law, of a lot or tract of land described in a 
 mortgage set forth in the bill of complaint in said cause, and 
 bearing date the day of , eighteen hundred and 
 
 ; and that out of the proceeds of such sale he should pay 
 to the complainant or his solicitor the sum of dollars, 
 
 with interest thereon from the day of , eighteen 
 
 hundred and 
 
 and also the sum of 
 
 dollars, costs, if 
 
 (a) The Chancellor may order sur- 
 plus money paid to executor, &c., of 
 deceased mortgagor. See Rev. Sup., 
 " Chancery," I 21. 
 
 (6) Applications by executors or 
 administrators for the surplus moneys 
 on foreclosure sales, or for the pro- 
 ceeds of lands sold in suits for parti- 
 tion, to be applied by them to the 
 payment of the debts of a decedent 
 represented by them, shall be made 
 by petition ; the petition shall state 
 the time of the death of the decedent, 
 the date of the sheriff's or master's 
 deed upon which such moneys were 
 received, whether any of the heirs or 
 devisees have aliened or encumbered 
 their estate in the lands sold, in whole 
 or in part, and when and what part, 
 and to whom. There shall be an- 
 nexed to the petition a true account 
 of the personal estate of the decedent 
 
 that has come to the hands or knowl- 
 edge of the petitioner, stating the 
 amount of the same which has been 
 collected or realized, and what part, 
 if any, has not been collected or real- 
 ized, and specifying what parts are 
 deemed good, doubtful or desperate ; 
 such account shall also state how the 
 amount realized has been disposed of, 
 and how much remains on hand, also 
 the debts due, or claimed to be due, 
 from the decedent, and to whom 
 owing, and what part of such debts is 
 disputed by the petitioner. And such 
 petition and account shall be verified 
 by oath. Ride 155. The surplus 
 money on a forelosure sale is regarded 
 as realty for the purpose of distribu- 
 tion, except where conversion has 
 taken place by the act of the parties. 
 Smith V. Bayright, 7 Stew. Eq. 424. 
 
SUBPLUS MONEY. 263 
 
 the same would so far extend ; and in case more money should 
 be raised by said sale than should be sufficient to answer such 
 payments, he was commanded to bring such surplus money into 
 this court, and deposit the same with the clerk until the further 
 order of this court, as by reference to the said execution will 
 more fully appear. 
 
 And your petitioner further shows, that in pursuance of said 
 writ of execution, the sheriff of said county of , has made 
 
 sale of the said land and premises to one and delivered 
 
 a deed therefor to the said purchaser, dated on the day 
 
 of , eighteen hundred and , and has deposited with 
 
 the clerk of this court the sum of dollars, as the surplus 
 
 money remaining in his hands after the several payments which 
 by the said writ of execution he was commanded to make. 
 
 And your petitioner further shows, that the said land and 
 premises directed by the said writ of execution to be sold were 
 part of the real estate of said , deceased, and were sold 
 
 for the payment and satisfaction of a mortgage given by one 
 and wife to one ; and assigned by said to 
 
 said complainant ; that the said and wife, the mortgagors 
 
 above named, conveyed the said mortgaged premises, subject to 
 the said mortgage, to the said , in his lifetime, by deed 
 
 dated the day of , eighteen hundred and ; 
 
 and that the said died seized of the said land and prem- 
 
 ises, on or about the day of , eighteen hundred and 
 
 , intestate, and leaving him surviving the said , 
 
 his widow, and and , his only children and heirs- 
 
 at-law, and that none of the said * heirs-at-law {or in case the 
 decedent shall have lejt a will, ajter *, " devisees ") have aliened 
 or encumbered their estate in the lands so sold ; that after the 
 death of the said , your petitioner made application to the 
 
 surrogate of the county of , in this state, for letters of 
 
 administration upon his estate; and that afterwards, on the 
 day of , in the year last aforesaid, the said surro- 
 
 gate granted to your petitioner letters of administration, of the 
 goods and chattels, rights and credits which were of said , 
 
 deceased, according to the statute in such case made and pro- 
 vided, whereby your petitioner became and is duly authorized 
 to administer the same agreebly to law. 
 
264 F0EM8 OF PLEADINGS. 
 
 And your 'petitioner further shows, that , {one of the 
 
 hArs-at-law,) is a married man, and that his wife's name is 
 
 , and that she would have been entitled to an inchoate 
 
 right of dower in the said lands and premises, if the same had 
 
 not been so sold. 
 
 And your petitioner further shows, that there have been pre- 
 sented to your petitioner, as administrator as aforesaid, debts of 
 the said , deceased, to an amount greatly exceeding the 
 
 value of all the property, rights and credits left by him at 
 the time of his death, and which have come to the hands of 
 your petitioner, to be administered as administrator as aforesaid, 
 and that said debts exceed the amount or value of said property, 
 rights and credits and the surplus money aforesaid ; and that 
 the schedule hereto annexed contains a just and true statement 
 and account of said estate and debts. 
 
 And your petitioner further shows, that the aforesaid mort- 
 gage was discharged by the said sale, and there not being sufiS- 
 cient estate, property, rights and credits of the said , 
 
 deceased, to pay his debts as aforesaid, it is necessary for the 
 proper administration of his estate that the said surplus money 
 should be paid to your petitioner as administrator of said 
 deceased, for the payment of said debts, and to be administered 
 according to law. 
 
 Your petitioner therefore prays, that an order of this court 
 may be made, directing the said clerk to pay over to your peti- 
 tioner, as administrator as aforesaid, the said surplus money, or 
 such other order as to your Honor shall seem proper. 
 And your J)etitioner will ever pray, &c. 
 
 (Signature of solieitor and counsel.) 
 
 Schedule. 
 
 The account of , administrator, &c., of , late of 
 
 , deceased, referred to in the foregoing petition. 
 
 DB. 
 
 This accountant charges himself {here follow the items of the 
 moneys and property come to his hands and collected or realized.) 
 
SURPLUS MONEY. 265 
 
 OK. 
 
 This' accountant prays allowance. {Here follow the items of 
 payments and diabursements.{a) 
 
 Balance in the hands of the accountant. 
 
 Statement of the estate of said decedent come to the knowl- 
 edge of this accountant, not included in the above account. 
 {Here follows the inventory of the estate.) 
 
 Statement of the debts due, or claimed to be due, from said 
 decedent, and to whom owing. {Here follows the statement of 
 items, specifying, in order, those considered good, doubtful and 
 desperate, and those disputed, and not disputed, separately.) 
 
 Affidavit of verification. 
 
 New Jersey, ss. — , of full age, being duly sworn 
 
 according to law, says — that he is the petitioner named in the 
 foregoing petition and that the matters and things therein set 
 forth are true, to the best of his knowledge, information and 
 belief. 
 
 And he further says, that the statement annexed to his said 
 
 petition is a true account both of the personal estate of the said 
 
 , deceased, so far as the same has come to the hands or 
 
 knowledge of this deponent, and of the condition of the same, 
 
 and of the debts of said deceased. 
 
 Sworn, &c. {Signature.) 
 
 Notice of application by executors or administra- 
 tors for surplus money.(6) 
 
 {Title of cause, and mentioning petition.) 
 
 Please take notice, that I shall apply, &o., {as in form on 
 page 148 to *, and add,) by petition, for the payment to , 
 
 (a) The items of the credit side of (h) The petition shall be filed, and 
 
 an account in the Orphans' Court may notice of the application shall be 
 
 be expressed in general terms. Lid- given for ten days before the same is 
 
 dell V. Mc Vickar, 6 Hoist. 44. made, to all persons entitled to such 
 
266 FORMS OF PLEADINGS. 
 
 administrator, &o., {or " executor,") of , deceased, of the 
 
 surplus money deposited in the Court of Chancery, in the above- 
 stated cause, for the payment of the debts of the said , 
 deceased ; the amount of the personal estate that has come to the 
 hands of the said petitioner is dollars; the amount of 
 debts and expenses paid by him is dollars ; and the 
 amount of debts claimed to be due and unpaid is dollars. 
 
 Yours, &c.. 
 
 Dated, . {Signature of aolioitor of petitioner.) 
 
 To 
 
 Order of reference on foregoing petition.(a) 
 
 {Title of cdMse.) 
 
 It appearing to the court that , administrator, &c., of 
 
 , deceased, has filed a petition in the above- entitled cause, 
 setting forth that the sheriff of the county of has deposited 
 
 in this court the sum of dollars and cents, as the 
 
 surplus money remaining in his hands arising from the sale of 
 certain mortgaged premises, under an execution issued out of 
 this court in the above-stated cause; that , widow of said 
 
 moneys, or any part thereof, if not cient part thereof, to the petitioner, it 
 
 required for the payment of debts ; shall be referred to a master to ascer- 
 
 such notice, beside the time and place tain and report upon the truth of the 
 
 of application, shall state the amount matters in such petition and account ; 
 
 of the personal estate that has come and also how much will be required 
 
 to the hands of the petitioner, the for the payment of the debts of the 
 
 amount paid out for debts and ex- decedent above the amount realized, 
 
 penses, and the amount of debts paid and likely to be realized, from the 
 
 and claimed to be due and unpaid; personal estate; and also whether 
 
 such notice may be served upon per- any part of the lands sold has been 
 
 sons who reside out of the state, and aliened by the heirs or devisees before 
 
 have not appeared in the suit, by the sale, so as by law to be free from 
 
 setting up a copy in the oflSce of the the lien for the debts of the decedent, 
 
 clerk of this court, and also mailing and what part, and when and to whom 
 
 a copy to the post-office address of aliened. And the summons to attend 
 
 such persons, if the same be known. such hearing before the master shall 
 
 Hule 156. not be required to be served on any 
 
 (a) Unless the consent of all inter- person, except such as may have 
 
 ested in such moneys shall be given entered an appearance on the notice 
 
 to the payment of the same, or a suffi- of the application. Rule 157. 
 
STJBPLUS MONEY. 267 
 
 deceased, is entitled to her right of dower in said surplus 
 money ;(a) that the personal estate of the said , deceased, 
 
 that has come to the hands of the said petitioner, and been col- 
 lected by him, is dollars and cents ; and that there 
 is no other personal estate of the said intestate to be collected or 
 realized ; and that the sum of dollars and cents has 
 been disbursed by said petitioner on account of said estate ; and 
 that there was, at the time of filing said petition, in the hands 
 of said petitioner, the sum of dollars and cents ; and 
 that the debts due, or claimed to be due, from the decedent, and 
 undisputed, is the sum of dollars and cents : It is 
 thereupon, on the day of , eighteen hundred and 
 , ordered, that it be referred to , one of the special 
 masters of this court, to ascertain and report upon the truth of 
 the allegations of said petition ; and also to ascertain and report 
 the amount of the personal estate of the said deceased that has 
 come into the hands of the administrator of the said deceased to 
 be administered ; and what disposition has been made of the 
 same ; and what amount of debts has been paid by said admin- 
 istrator, with the money arising from said personal estate, and 
 the amount of the debts and claims against the estate of the 
 said deceased, and the amount of money deposited in this court 
 arising from the sale of the mortgaged premises in this cause, of 
 which the said died seized ; and also the amount to be in- 
 vested for the benefit of the widow of the said decedent, out of 
 the proceeds of the sale of the said real estate ; or in case she 
 consents to accept a sum in gross, in lieu of such investment, 
 then to ascertain and report what amount, under all the circum- 
 stances of the case, should be paid to such widow in satisfaction 
 
 (a) The court may order a sum in elects to take a gross sum in lieu of 
 gross to be paid out of the proceeds of dower, her rights are at once vested, 
 sale by consent of the tenant in dower and the fact of her subsequent death 
 or by the curtesy ; or if no consent cannot affect the valuation made or to 
 be given, may order a sum to be in- be made of her interest in the pro- 
 vested for the benefit of the person ceeds. McLaughlin v. McLaughlin, 7 
 entitled to such estate. Pamph. L., C. E. Gr. 505. 
 1887, p. 179. Where the widow 
 
268 FOKMS OF PLEADINGS. ' 
 
 of her said dower ;{a) and how much will be required for the 
 payment of the debts of the said , deceased, above the 
 
 amount realized, or likely to be realized, from the personal estate; 
 and whether the whole or what part of the money deposited 
 in this court should be paid to said petitioner, as administrator 
 as aforesaid, to be by him applied in payment of debts of said 
 deceased ; and whether any part of the lands has been aliened 
 by the heirs-at-law of said , deceased, before the said sale, 
 
 so as to be free from the debts of the decedent, and what part, 
 and when and where situate. 
 
 And said master is to report with all convenient speed, 
 and all further equity is reserved until the coming in of his 
 report. 
 
 Master's report in pursuance of foregoing order. 
 
 ( Title of cause f and mentioning petition.) 
 
 In pursuance of an order of this court, made in the above- 
 stated cause, bearing date the day of , eighteen 
 hundred and , whereby it was referred to the subscriber, 
 one of the special masters of this court, to ascertain the truth 
 of the allegations contained in said petition, &c., and among 
 other things, whether the petitioner is entitled to the surplus 
 money in said cause, and to make report thereon : I report that 
 I have been attended by the solicitor of the petitioner, (" and 
 by , the solicitor of the defendant, ,") and have 
 taken proofs in said matter, which proofs are hereto annexed, 
 and make part of this report. 
 
 And I further report, that all the allegations contained in 
 said petition are true ; that the sheriff of the county of 
 has deposited with the clerk of this court the sum of dol- 
 
 lars and cents, as the surplus money arising from the sale 
 
 (a) In ascertaining the proper sum spective of the result of the applica- 
 
 in gross to a tenant in dower, or by tion of the rules, the court should de- 
 
 the curtesy, in commutation of such termine what, under the circumstances 
 
 interest, the rules of the Court of of each case, is a reasonable sum to be 
 
 Chancery on the subject should not be paid in commutation. Cronkright v. 
 
 taken as an absolute guide; but irre- Haulenheck, 10 C. E. Or. 513. 
 
8UBPLUS MONEY. 269 
 
 of certain mortgaged premises sold by virtue of an execution 
 issued out of this court, and sold as the premises of , 
 
 deceased, to satisfy a mortgage given by one , former 
 
 owner of the said mortgaged prem,ises, and , his wife, 
 
 to one , and by the said assigned to the com- 
 
 plainant, ; that the petitioner, after the decease of the 
 
 said , was granted letters of administration of the estate 
 
 of the said , deceased, by the surrogate of the county of 
 
 , in this state. 
 And I further report, that it appears that the said 
 died insolvent ; that the petitioner, , has applied all the 
 
 assets of the said deceased to the payment of his debts, amount- 
 ing to a dividend of per cent, on the claims filed against 
 said estate; and that no other assets remain for further dividend, 
 except the amount of surplus money deposited in this cause. 
 
 And it further appears, that , the widow of , 
 
 deceased, is entitled to an estate in dower(a) in the said surplus 
 money ; that she is of the age of years, and in good health, 
 
 and has an average expectancy of life ; and {if she has consented 
 to aooept a sum in gross) that the sum in gross, to which she is 
 entitled out of said surplus money in satisfaction of her said 
 estate of dower therein, is the sum of dollars. {Or in 
 
 case of a married woman, say, "And that it further appears, 
 that , the wife of , is entitled to an inchoate right 
 
 of dower in said surplus money." " 
 
 And I further certify and report, that the schedule annexed 
 to this report contains a statement of the amount to be paid 
 to the said as aforesaid, to which, for greater certainty, I 
 
 refer. 
 
 And I further certify and report, that * the said , ad- 
 
 ministrator as aforesaid, is entitled to the remainder of the said 
 surplus money, after deducting said gross sum, in lieu of dower, 
 for the payment of the debts of the said decedent, to be admin- 
 istered by him according to law ; {or in ease of inchoate right of 
 dower, after * add, "after deducting from the one-fourth part of 
 said surplus money, {or as the case may be,) the sum of 
 
 (a) See Pamph. L., 1887, p. 179. 
 
270 FORMS OP PLEADINGS. 
 
 dollars, being the one-third of the share in said surplus money 
 of , husband of said , to be invested under the 
 
 order of this court, and the income thereof during the lifetime 
 of {the husband) to be paid to the lienors upon such share as 
 aforesaid, and upon the death of {the husband) said income to be 
 paid to {the wife) during her lifetime, and upon her death to be 
 disposed of according to law,(o) the remainder of the said one- 
 fourth part of the said surplus money to be paid to the said 
 , and that the remaining three- fourth parts of said sur- 
 plus moneys be paid to the petitioner, administrator as afore- 
 said,") {eonclude as above.) 
 
 EespectfuUy submitted, this day of , eighteen 
 
 hundred and 
 
 {Signature of master.) 
 
 {Annex schedule showing calculation in figures.) 
 
 Order for payment of surplus money to adminis- 
 trator, &c.(6) 
 
 {7}itle of cause.) 
 
 This matter being opened to the court, &c., and it appearing 
 by the report of , one of the special masters of this court, 
 
 to whom was referred the petition of , administrator, &c., 
 
 (a) There is no direct provision of real estate has been sold and conveyed 
 
 law for the protection of an inchoate by virtue of any judgment or decree, 
 
 right of dower in the equity of re- or by virtue of any deed, &c., executed 
 
 demption in foreclosure cases. But it by the husband, or by his assignee in 
 
 is a well-settled rule that the equity bankruptcy, in which the wife shall 
 
 of the wife in the mortgaged premises not have joined, may release her in- 
 
 is paramount to the claim of a judg- choate right of dower in such real 
 
 ment creditor, who has only a general estate by her separate deed. Pamph. 
 
 lien upon the husband's interests in L , 1890, p. 40. 
 
 the premises, subject to the mortgage. (6) No order shall be made for the 
 
 Burnet v. Burnet, 1 Dick. Oh. Hep. payment of such moneys, unless it 
 
 151. Therefore, in an application shall appear that such executor or ad- 
 
 for the distribution of the surplus, the ministrator shall have administered, 
 
 inchoate right of dower should be as nearly as practicable, all the 
 
 protected in the manner set forth in moneys received by him, and used 
 
 the order. due diligence to collect such as have 
 
 A married woman whose husband's not come to his hands. Bide 158. 
 
SUBPLU8 MONEY. 271 
 
 of , deceased, filed in this cause, which said report bears 
 
 date on the daj of , eighteen hundred and , 
 
 that the sheriff of the county of has deposited with the 
 
 clerk of this court the sum of dollars, as the surplus 
 
 money arising from the sale of certain, mortgaged premises sold 
 by virtue of an execution issued out of this court in the above- 
 stated cause, as the premises of , deceased, to satisfy a 
 certain mortgage given by to the complainant ; and that 
 , the widow of said , deceased, who is entitled to 
 dower in the said surplus money, has consented to accept such 
 sum in gross, in full satisfaction of her interest, as shall be 
 approved by the Chancellor, (or, " has consented to release all 
 her interest in the said surplus money, upon the investment of 
 such sum as the Chancellor may deem reasonable, in such man- 
 ner that the interest thereof shall be paid to her during her 
 life ; ") and that the sum of dollars should be * paid to 
 her in satisfaction of her said dower, (or after *, "invested, 
 under the direction of the Chancellor, for the benefit of the said 
 ; " or, if the owner of the mortgaged premises be living, 
 and he have a wife entitled to an inchoate right of dower in the 
 su/rplus, insert the language of the master's report accordingly.) 
 
 And it further appearing by said report, that the whole of the 
 said (or, " the remainder of the said ") surplus money should 
 be paid to the said petitioner, administrator as aforesaid, for the 
 payment of the debts of the said , deceased, to be by him 
 
 administered according to law, (or recite the report of the master, 
 as the case may be:) It is thereupon, on this day of , 
 
 on motion of, &c., ordered, that the said master's report be 
 and the same is hereby confirmed accordingly. And it is 
 further ordered, that the clerk of this court * do pay in the 
 first place to the said , widow of , deceased, the 
 
 sum of dollars, in full satisfaction of her dower in said 
 
 surplus moneys; (or after * add, "after deducting from the 
 said surplus money the sum of dollars, which is hereby 
 
 adjudged to be a reasonable sum, to be invested in such manner 
 that the interest shall be paid to the said for the dura- 
 
 tion of her estate in said surplus moneys ; " or in ease of an 
 inchoate right of dower, after * say, " after deducting from said 
 
272 FORMS OP PLEADINGS. 
 
 surplus moneys the sum of dollars, being one-third of the 
 
 same, to be invested, and the income thereof to be enjoyed by 
 said (the married woman,) after the death of her husband, 
 
 during her life," {or as in the report;) and secondly, after 
 deducting his lawful co/umissions upon the said deposit, he 
 do pay the remainder thereof, together with the accumulations 
 on the said surplus money, according to the rule of this court, 
 to the said petitioner, or to his solicitor, upon said petitioner 
 filing in this court his bond to the Ordinary of this state, and 
 his successors, in double the sum hereby directed to be paid to 
 him, with two sufficient sureties, residents of this state, with 
 condition similar to that prescribed by law for bonds upon 
 orders of the Orphans' Court for the sale of lands for the pay- 
 ment of debts. 
 
 Bond by executor or administrator on payment 
 of surplus money.(a) Know all men by these presents, 
 that we, , of , and and , of , are 
 
 held and firmly bound unto the Ordinary of the State of New 
 Jersey, in the sum of dollars, lawful money of the United 
 
 States of America, to be paid to the said the Ordinary of the 
 State of New Jersey, and his successors ;(6) to which payment 
 well and truly to be made, we bind ourselves, our and each of 
 our heirs, executors and administrators, jointly and severally, 
 firmly by these presents. Sealed with our seals. Dated this 
 
 day of , in the year eighteen hundred and 
 
 Whereas, the said has been duly appointed by the sur- 
 
 rogate of the county of , administrator, &c., (or as the case 
 
 may be,) of , late of , deceased ; and whereas, in a 
 
 certain suit in the Court of Chancery of New Jersey, wherein 
 
 was complainant, and and others were defendants, 
 
 (a) No money shall be paid to an condition similar to that prescribed 
 
 executor or administrator on an ap- by law for bonds upon orders of the 
 
 plication for surplus moneys, until he Orphans' Court for the sale of lands 
 
 shall have filed in the court his bond for the payment of debts. Jiule 158 ; 
 
 to the Ordinary, in double the sum Hev., "Orphan^ (hurts," | 75. 
 directed to be paid, with two sufficient (6) Halsted v. Fowler, 2 Zab. 48. 
 
 sureties, residents of this state, with 
 
MOTIONS. 273 
 
 under and by virtue of a decree of the said court, certain lands, 
 the property of the said , deceased, were ordered to be sold 
 
 to pay and satisfy a certain mortgage thereon ; and the surplus 
 money arising from such sale, amounting to dollars, was 
 
 paid by the sheriff of the county of into the said Court of 
 
 Chancery ; and whereas, by an order of the said court, the said 
 surplus money has been ordered to be paid to the said adminis- 
 trator for the payment of the debts of the said , deceased, 
 according to law : 
 
 Now, the condition of this obligation is such, that if the 
 above bonnden , administrator as aforesaid, shall well 
 
 and truly administer the said surplus money, and further do 
 make, or cause to be made, a just and true account of his ad- 
 ministration, within twelve months from the date of the above 
 obligation, and the surplus money which shall be found 
 remaining upon the account of such surplus money so ordered 
 to be paid as aforesaid, (the same being first examined and 
 allowed by the judges of the Orphans' Court of the county of 
 , or other competent authority,) shall distribute and pay 
 unto such person or persons respectively, as is, are or shall be 
 i)y law entitled to receive the same, then the above obligation to 
 be void, and of no effect, otherwise to be and remain in full 
 ■force and virtue. (Signatv/re of principal.) [l. 8.] 
 
 (Signature of surety.) [l. s.] 
 {Signature of surety.) [l. s.] 
 
 Sealed and delivered in the presence of — 
 
 INTERLOCUTORY APPLICATIONS AND OTHER 
 PROCEEDINGS IN A CAUSE. 
 
 Notice of motion, (a) 
 
 {Title of cause.) 
 Take notice, that I shall apply to the Chancellor of this state, 
 * on the first day of the next regular term of this court, to be 
 
 (a) When the application to be does not come within that class of 
 made to the court is not of course, or special applications which the court 
 
274 
 
 FOEMS OP PliEADINGS. 
 
 held at the state-house, in Trenton, on Tuesday, the day 
 
 of , &c., (or after *, " on Tuesday, or ' Monday,' if at 
 
 chambers, the day of next, or 'instant,' at ten 
 
 permits to be made ex parte, a state- 
 ment in writing of the terms of the 
 motion must be served upon the ad- 
 verse party or his solicitor, before the 
 day on which the motion is intended 
 to be made ; this statement is termed 
 a notice of motion. 2 Dan. Ch. Pr. 
 1593. A notice of motion must be 
 properly entitled in the cause or matr 
 ter in which the application is to 
 be made; it must be correctly ad- 
 dressed to the solicitor of the party 
 or parties intended to be affected by it, 
 or to the party himself, where he 
 acts in person, and be signed by or in 
 the name of the solicitor, or firm of 
 solicitors, of the party moving, or of 
 the party himself, where he acts in 
 person. A notice of motion by a 
 party suing or defending in forma 
 pawperis, (except for the discharge of 
 his solicitor,) must be signed by the 
 solicitor of such pauper. A notice of 
 motion must state the day on which 
 the motion is to be made, which must 
 be one of the days appointed for 
 motions, unless special leave has been 
 obtained to give the notice of motion 
 for another day, in which case the 
 fact of such special direction having 
 been made, must be expressed in the 
 notice. See rule 5. The notice, how- 
 ever, though it expresses the day 
 when the motion is to be made, 
 usually adds, "or as soon thereafter 
 as counsel can be heard," and when- 
 ever a motion is to be made, "by 
 leave of the court," the notice ought 
 to mention that it is so made, other- 
 wise the adverse party may disregard 
 it. 2 Dan. Ch. Pr. 1594. All 
 notices of motions, &c., must be 
 served on the solicitor of the adverse 
 party, if a solicitor be concerned for 
 
 him ; but if no solicitor be concerned 
 for him, the service may be on the 
 party, or left at his usual place of 
 residence, or if not resident in this 
 state, by setting up the same in the 
 office of the clerk of the court. Rule 
 20. Notice of an application in any 
 legal proceeding or in any proceeding 
 under a statute, where no provision of 
 law exists for such notice or the time 
 or mode of service thereof, may be 
 served either by personal service in 
 or out of the state, by mailing to the 
 parties at their last known place of 
 residence, or by publication in one or 
 more newspapers, published either in 
 or out of the state, for such period of 
 time as the court shall determine. A 
 notice given pursuant to an order of 
 the court, made upon ex parte applica- 
 tion, in any of the modes above pre- 
 scribed, shall be deemed and taken to 
 be a good- and legal notice of such 
 application. Pamph. L., 1889, p.- 
 294. Every Monday shall be motion- 
 day at the chancery chambers, in 
 Camden and Jersey City, and every 
 Tuesday at the state-house, at Trenton,, 
 and the chancery chambers in Newark, 
 both in term and vacation, except 
 the third and fifth Mondays and 
 Tuesdays in July and the Mondays 
 and Tuesdays in August, save the- 
 second Tuesday in that month, at 
 Trenton ; the second Monday at Jersey 
 City; the third Tuesday at Newark, 
 and the third Monday at Camden. 
 All motions on said days may be 
 heard by the Chancellor or the Vice 
 Chancellors, one of whom will attend 
 for that purpose; provided, that 
 when such regular motion-day shall 
 fall on a legal holiday, the day follow- 
 ing shall be the motion-day. Rule 4, 
 
MOTIONS. 
 
 275 
 
 o'clock in the forenoon, or as soon thereafter as counsel can be 
 heard, at the state-house, in the city of Trenton, or, ' at the 
 chancery chambers, in the city of ,'") (or as the case 
 
 may be,) for an order that {specify the object of the motion; 
 if the motion is to be made on affidavits, add, "which motion 
 will be founded on affidavits, copies of which are herewith 
 served on you.") 
 
 Yours, &c., 
 
 {Signature of solicitor.) 
 To , Solicitor of 
 
 Affidavit of service of notice of motion.(a) 
 
 {Title of cause.) 
 State of , V^^ 
 
 county of , ) ' 
 
 , of , in said county, being duly sworn {or 
 
 " affirmed,") says — that on the day of , instant, this 
 
 deponent served upon , the solicitor of the complainant 
 
 All motions in causes qot referred to 
 the Vice Chancellors shall be made 
 on such motion-days, and notice of a 
 motion at any other time shall be of 
 no avail, unless specially directed by 
 the Chancellor, and unless the fact of 
 such special direction having been 
 made, be expressed in the notice. 
 Hide 5. Notices of motions to dis- 
 solve injunctions shall be served 
 eight days ; of motions to extend the 
 time for filing pleadings and other 
 papers, three days ; and of all other 
 special motions, five days ; and such 
 notices of said motions, respectively, 
 shall be sufficient. Bute 141. A 
 notice of a motion to dissolve an in- 
 junction for irregularity, &c., should 
 state the irregularity. Miller v. 
 Traphagen, 2 Sal. Oh. 200. It is 
 necessary that everything a party 
 wishes to obtain on his motion, should 
 be expressed in the notice. 2 Dan. 
 Ch. Pr. 1599. Where the object of 
 a motion is to prevent the perform- 
 
 ance of some act which, if done, 
 would be attended with irreparable 
 injury, and there is danger that the 
 object would be defeated by notice, it 
 will be dispensed with. But where, 
 in such case, there is no danger that 
 the object of the motion would be 
 defeated if notice were given, an ex 
 parte motion will not be permitted. 
 1 Barb. Ch. Pr. 568. A motion may 
 be made by or on behalf of any of 
 the parties to the record ; provided, 
 such party is not in contempt. But 
 an individual who is not a, party to 
 the record, cannot, in general, be 
 allowed to apply by motion. No one 
 but a party to a suit can make any 
 motion in it, except for the purpose 
 of being made a party. Linn v. 
 Wheeler, 6 O. E. Or. 231. 
 
 (a) After notice of motion has been 
 served, the party serving the same 
 should make an affidavit of the ser- 
 vice, (unless service be acknowledged 
 as hereafter mentioned,) to be us6d 
 
276 
 
 FORMS OF PLEADINGS. 
 
 {or "defendant") in this cause, a copy of the affidavits and a 
 copy of the notice of motion hereto annexed, by delivering the 
 same to him personally, [or as the ease may be. See form on 
 
 page 189, ante.) 
 
 (Signature.) 
 Sworn {or " affirmed,") &c. 
 
 Order for costs where the party serving the notice 
 of motion does not attend.(a) 
 
 {Title of cause.) 
 This matter being opened to the court, &c., and it appearing 
 that the said complainant {or " defendant ") served due notice of 
 a motion to be made in, this cause on the day of 
 
 last past ; and that the said defendant {or " complainant ") did 
 not attend and move accordingly : It is, on this, &c., ordered, 
 that the said defendant {or "complainant") pay to the com- 
 plainant {or " defendant ") his costs of said notice and of this 
 order, to be taxed. 
 
 ■when tlie motion is made, in case the 
 party served should fail to appear. 
 This affidavit should state the time 
 and manner of the service, and should 
 he attached to or endorsed upon the 
 original papers. A simpler method 
 of proving service than by affidavit, 
 is to take an admission, signed by the 
 opposite party or his solicitor, of ser- 
 vice of a copy of the notice, dated a 
 sufficient number of days before the 
 time the motion is to be made, or an 
 acknowledgment of due and legal ser- 
 vice, without a, date. 1 Barb. Gh. 
 Pr. 574. Generally, a party making 
 a successful motion is entitled to his 
 costs. MS., Williamson, C, Jan'y, 
 1828. A motion was granted, but 
 costs refused, because they were not 
 sought for in the notice. Little v. 
 Johnson, 1 Moll. 234 ; see contra, 
 Magrath v. Veitch, Id. 
 
 A party shall not be allowed costs 
 against his adversary for any amend- 
 ment, or for any motion occasioned 
 
 by his own fault, mistake or laches 
 though he may by his decree recover 
 costs of suit; and when the court 
 makes no special order respecting 
 costs, a party making a successful 
 motion or successfully opposing a 
 motion shall have costs against the 
 other party. Ride 106. 
 
 (a) If U party gives notice of a 
 motion, and does not move accord- 
 ingly, he shall, upon production of 
 the notice, pay to the other side costs, 
 to be taxed, unless the court, upon a 
 consideration of the circumstances of 
 the case, shall direct otherwise. Rvle 
 105. It was held, that In order to 
 obtain the costs of an abandoned 
 motion, the respondent must mention 
 the motion to the court not later than 
 the motion-day next after the day for 
 which the notice was given. Wood- 
 cock V. Railway Co., 10 Sare Ap. 54, 
 »./ 17 Jur. 33, V. 0, K.; Qorely v. 
 Oorely, 25 Beav. 234 ; In re Smith, 23 
 Beav. 284. 
 
OKDER8 AND AFFIDAVITS. 
 
 277 
 
 General form of order.(o) 
 
 {Title of cause.) 
 
 On reading and filing (recite papers on which motion was 
 founded,) and on motion of , of counsel with the com- 
 
 plainant [or " defendant,") no one appearing to oppose, although 
 due notice has been given of this application, (or, "and on 
 hearing , of counsel with the defendant or ' complainant,' 
 
 in opposition thereto : ") It is, on this day of , &c., 
 
 ordered, &c. 
 
 (o) All orders of course (called 
 common rules) may be entered with 
 the clerk, in the common rule-book 
 kept in his ofSce, at the instance of 
 the party or his solicitor, and at the 
 pdril of the party taking the same. 
 The day on which the rule is made, 
 must be noticed in the entry thereof. 
 Mule 19. It is usual for the clerk to 
 draw up and enter such rules on re- 
 quest of the solicitor oi(the party. All 
 orders requiring the signature of the 
 Chancellor, whether made upon notice 
 or ex parte or by consent, are made on 
 special applications. 
 
 An application to enter an order 
 nunc pro tunc is a motion of course, 
 where the party entitled to the order 
 comes recently ; but after a length of 
 time, there ought to be notice of the 
 motion. Anon., 3 Atk. 521. An order 
 made on a hearing before the Vice 
 Chancellor or an advisory master, is 
 in the same form as that made on a 
 hearing before the Chancellor. Orders 
 advised by the Vice Chancellor or an 
 advisory master, are signed by the 
 Chancellor, as a matter of course, 
 upon being presented to him. 
 
 The complainant's name must 
 always be placed first, whichever 
 party may draw up the order. It is 
 not usual in New Jersey to recite the 
 names of all the parties at the head 
 
 of the order or decree. It is sufficient 
 to entitle it in the name of the com- 
 plainant against the first defendant, 
 adding the words " and others,'' with- 
 out setting forth the names of all the 
 defendants. The order is prefaced 
 with a brief description of the papers 
 upon which it is founded, and of the 
 names of the counsel of the respective 
 parties, who appeared in support of, 
 or in opposition to, the application. 
 In drawing orders, brevity should be 
 studied, so far as may be consistent 
 with the statement of the grounds 
 upon which the order is made, and 
 showing that its entry is regular. 
 The order concludes with the ordering 
 part, which contains the directions of 
 the court upon the matter of the ap- 
 plication. 
 
 Where a proceeding in a, cause is 
 required to be within a certain num- 
 ber of days after the entry of an order, 
 the whole of the first day is excluded 
 in the computation of time. Thome 
 V. Mosher, 5 G. E. Or. 257. It has 
 been held that where an order was 
 required to be complied with " forth- 
 with," the party was not entitled to 
 twenty-four hours after service of the 
 order to comply therewith, but only 
 the time absolutely necessary for 
 compliance. The People v. Broyier, 
 4 Faige 405. "Month" means a 
 
278 
 
 FORMS OF PLEADINGS. 
 
 General form of an affidavit.(a) 
 
 ' \s8. 
 ) ■' 
 
 {Title of cawse.) 
 
 State of 
 county of 
 
 , of , in the county and state aforesaid, {or as the 
 
 case may be,) being duly sworn, deposes and says, {or, " alleging 
 himself to be conscientiously scrupulous of taking an oath, and 
 being duly solemnly affirmed, on his solemn affirmation says ") 
 —that, &c. 
 
 {Signature.) 
 Sworn {or " affirmed ") and sub- 
 scribed before me, this, &c. 
 
 {Signature and addition of office.) 
 
 calendar month. Bev., "Statutes,'' § 10. 
 An irregular order, though made ex 
 parte, is not void, but remains in force, 
 until it is set aside by the court, or is 
 waived. Hunt v. Watlis, 6 Paige 371 ; 
 Body v. Kent, 1 Mer. 361. The party- 
 injured by an improper order, or one 
 obtained by inadvertence or mistake, 
 should apply to vacate the order. 
 Sigbie v. Edgarton, 3 Paige 253. 
 
 Where the court directs a party to 
 do an act within so many days after 
 service of the order, a copy must be 
 served ; but where the act is directed 
 to be done within so many days after 
 the date or of the entering of the order, 
 the court intends the party shall take 
 notice of the order without service or 
 express notice thereof. 1 Barh. Ch. 
 Pr. *590. 
 
 (a) Affidavits are generally resorted 
 to in support of, and in opposition to, 
 motions and petitions, or for certify- 
 ing the service of process, notices, &c. 
 They may be made by the parties in 
 the suit during the progress thereof; 
 but they can only be read on motions, 
 Ac. They are inadmissible as evi- 
 dence at the hearing. 1 Lil. Abr. 52. 
 
 As a general rulej they should be 
 made by a person who has a personal 
 knowledge of the facts. See Young- 
 blood V. Schamp, 2 MeGari. 43, It 
 is not necessary to the validity of an 
 affidavit that ftie residence of the de- 
 ponent should be stated in it, or that 
 it should show the town or county 
 where it was taken. Benson v. Ben- 
 nett, 1 Dutch. 166; Perhins v. Collins, 
 2 Or. Ch. 482. A party who makes 
 an affidavit to oppose a motion is only 
 authorized to state facts ; it is scandal- 
 ous or impertinent to draw inferences, 
 or to state arguments in the affidavit 
 reflecting on the adverse party or his 
 solicitor. In re Burton, 1 Buss. 380. 
 Affidavits should be fairly and legibly 
 written, without blots or interlineations 
 of any words of substance. For man- 
 ner of signing the affidavit and jurat, 
 see notes to page 113, ante. 
 
 It has been decided, that where 
 nothing appears to show that an affi- 
 davit was taken out of the jurisdiction 
 of the officer before whom it was 
 sworn, it will be presumed to have 
 been taken within the limits of his 
 jurisdiction, Parker v. Baker, 8 Paige 
 
ELECTION. 
 
 279 
 
 Election to proceed with suit in chancery. 
 
 (Title of cause.) 
 In pursuance of an order of this court made in this cause, 
 and dated the day of , &c., the complainant doth 
 
 hereby elect to proceed in this court. 
 
 (Signature of solicitor.) 
 Dated, &c. 
 
 Order that the complainant elect to proceed at 
 
 law or in equity .(«) Upon opening this matter to the court 
 by , of counsel with the defendants, it appearing that the 
 
 428. Affidavits taken before a master 
 in chancery of this state, may be 
 sworn to out of this state. Sev., 
 '"Oaths," ? 5; see Sev., "Conveyances,'' 
 
 I 7. 
 
 An affidavit, when oflFered to be 
 read, must appear to have been taken 
 before the proper officer, and in com- 
 pliance with all leg^ requirements. 
 Stale V. Green, 3 Gr. 88 An affidavit 
 taken before a solicitor or counsel in 
 the cause is irregular. Dallas v. 
 Jeffers, 1827 ; see also Den v. Geiger, 4 
 Hal. 225. In a civil cause, the ad- 
 ministering an oath or affirmation is 
 presumed to be correct and legal. 
 Coxe V. Field, 1 Or. 215. A copy of 
 every affidavit intended to be used on 
 the argument of any special motion, 
 or of any other special matter before 
 the court of which notice shall be 
 necessary, shall be served on the ad- 
 verse party at least four days before 
 the day of argument, or shall be taken 
 on two days' notice at least of the 
 time and place of taking the same; 
 and all affidavits made use of in court 
 shall be first filed with the clerk; 
 and no writ, order or other proceed- 
 ing, grounded upon an affidavit or 
 affidavits, shall be issued, filed or 
 jcntered by the clerk, unless the affi- 
 
 davit or affidavits upon which it shall 
 be grounded shall have been pre- 
 viously filed. Mule 138. Affidavits 
 and petitions duly sworn to, on which 
 rules to show cause may be granted, 
 if served as affidavits, may be used on 
 the hearing of the order to show cause. 
 Rule 139. Affidavits upon which are 
 founded applications to extend the 
 time for taking testimony, or filing 
 pleadings or other papers, shall be 
 served for three days; but counter- 
 affidavits may be read without notice. 
 Bule 140. 
 
 (a) Where the complainant is suing 
 both at law and in equity at the same 
 time, for the same matter, the defend- 
 ant is entitled to an order that the 
 complainant elect whether he will 
 proceed with the suit in equity, or 
 with the action at law. Dan. Oh. Pr. 
 815 ; Mil. PI. 204 ; Carlisle v. Cooper, 
 3 0. E. Gr. 241. The complainant 
 will not be put to his election 
 unless the suit at law is for the same 
 cause, and the remedy affi)rded co- 
 extensive and equally beneficial with 
 the remedy in equity. Way v. Bracjaw, 
 1 C. E. Or. 214. If parties bring suit 
 in another state, and while that suit 
 is pending bring another action here 
 for the same cause, during the pro- 
 
280 
 
 itOKMS OF PLEADINGS. 
 
 complainant prosecutes the defendants both at law and in this' 
 court for one and the same matter, whereby the defendants are- 
 doubly vexed and put to unnecessary costs and expenses : It is 
 thereupon, on this day of , in the year, &c,, ordered^ 
 
 that the complainant, within (thirty) days after service upon him 
 or his solicitor of a copy of this order, elect whether he will 
 proceed at law in the suit brought by him against the defendants 
 or in this court upon his bill ; and if he elects to proceed at law, 
 or if he neglects to file such election within the said (thirty) days, 
 the bill in this cause shall thereupon stand dismissed, with 
 costs ; and if he elects to proceed in this court, it is then further 
 ordered that he proceed no further in the said suit at law with- 
 out leave of this court, (a) 
 
 gress of which they obtain judgment 
 in the first suit, it may be pleaded in 
 bar to the action brought here. Barnes 
 V. CHbbs, 2 Vr. 318. The complainant 
 will not be put to his election in which 
 court he will proceed until after the 
 defendant has answered. Conaver's 
 En^rs V. CoTimer, Sax. 409. If the de- 
 fendant's answer is not excepted to, 
 or set down for hearing on former ex- 
 ceptions, he may, on an allegation 
 that the complainant is prosecuting 
 him in this court, and also at law, for 
 the same matter, obtain, at the expira- 
 tion of eight days after his answer, or 
 further answer is filed, as of course, on 
 motion or petition, the usual order for 
 the complainant to make his election 
 in which court he will proceed. Dan. 
 Ch. Pr. 816. The order must be served 
 on the complainant or his solicitor and 
 attorney-at-law ; and within the time 
 limited by the order, the complainant 
 must make his election ; and if he 
 elect to proceed in equity, then his 
 proceedings at law are thereby stayed 
 by injunction ; but if he elect to pro- 
 ceed at law, or in default of his mak- 
 ing his election within the specified 
 time, then his bill from thenceforth 
 
 stands dismissed, with costs to the de- 
 fendant. Dan. Ch. Pr. 816. The- 
 court will allow the party a reasonable 
 time to make his election. JBrocher v. 
 Martin, 3 Terger 55 ; Sogers v. Vos- 
 burg, 4 Johns. Oh. 84; Id. Bacon' sr 
 Orders, No. 18.« 
 
 (a) It is not the practice in Eng- 
 land to issue an injunction, the ser- 
 vice of the order being sufficient. 
 Braithwaite's Pr. 229. Where the 
 defendant has obtained such order 
 on suggestion, the plaintifi' may move, 
 on notice to the defendant, to dis- 
 charge it, either for irregularity or 
 upon the merits confessed in the- 
 answer or proved by affidavit. If upon 
 such motion, there should be any doubt 
 as to whether the suit in equity and the- 
 action at law are for the same matter,. 
 it is the usual course to direct an in- 
 quiry into that fact. Mousley v. Bas^ 
 nett, IV.&B 382, n. If the common 
 order cannot, under the circumstances, 
 (the common motion cannot be made- 
 until the answer has been put in) bfr 
 obtained, it seems the court will, if 
 necessary, make a special order, and 
 grant an injunction in the meantime. 
 If the plaintiff requires further timer 
 
SUBSTITUTION OP SOLICITOR AND MASTEK. 281 
 
 Order substituting solicitor, (a) 
 
 {I^ile of cause.) 
 
 It appearing to the court that , the solicitor of the 
 
 complainant in the above-stated cause, has * departed this life, 
 {or, stating the reason for the order, as th€ case may be:) It is, 
 on this, &c., ordered, that be substituted as solicitor for' 
 
 the complainant in the place and stead of the said 
 
 Order that complainant appoint a solicitor. (6) 
 
 {Title of cause.) 
 
 This matter being opened, &c., and it appearing to the Chan- 
 cellor, by affidavit, that , the solicitor of the complainant 
 in the above-stated cause, has departed this life. And it further 
 appearing that no solicitor has been appointed by the said com- 
 plainant in his stead : It is, on this, &c., ordered, that the com- 
 plainant appoint a solicitor to conduct this cause within 
 days, or that the said complainant's bill be dismissed, with costs^ 
 
 to make his election, he must apply Where a party has employed a solici-^ 
 to the court by motion, on notice, to tor, and afterwards desires to prose- 
 have the time extended. After decree, cute the suit in person, an order for 
 it is not the practice to make an order the purpose must be obtained. Braith- 
 to elect. Ban. Ch. Pr. 817. waile 564. But where a party sues or 
 (a) A party suing or defending by defends in person, and afterwards ap- 
 a solicitor, is not at liberty to change points a solicitor, an order is not 
 his solicitor in any cause or matter, necessary. Id. 565. The dissolutiort 
 without an order of the court for the of partnership of a firm of solicitors- 
 purpose; until such order is obtained, retained by a client to prosecute a 
 the former solicitor will be considered suit, operates as a discharge of the 
 the solicitor of the party. 1 Dan. Oh. client. lb. ; Griffiths v. Griffiths, 2' 
 Pr. 454. By statute, solicitors in chan- Hare 588, 594. 
 
 eery, partners in their business as (6) When any solicitor shall die 
 
 solicitors, may, in their partnership or remove out of the state, or be put- 
 
 name, appear and prosecute or defend out of the roll, the person for whom 
 
 any action. iJeu., "Practice," ^ 1. It he was solicitor shall be warned to 
 
 will be presumed that the solicitor appoint another in his stead, and if he 
 
 who filed the bill had full authority fail to do so, the adverse party may 
 
 to commence the suit. E. & A. P. P. proceed in the suit. Pev., "Practice,"' 
 
 Co. V. Greenwich, 10 C. E. Gr. 565. I 6. 
 
282 FORMS OF PLEADINGS. 
 
 ■{In case the complainant resides out of this state, and his residence 
 is wnknown, add, "And it is further ordered, that a copy of this 
 order be * set up in the office of the clerk of this court, and so 
 remain for days; and that a copy thereof be also mailed 
 
 to the said complainant at , his last known place of resi- 
 
 dence, within days from the date hereof," or after * say, 
 
 " served on the said complainant within days from the 
 
 date hereof.") 
 
 Dismissal of bill on failure of complainant to 
 appoint a solicitor. 
 
 (Title of eaVise.) 
 
 It appearing, by affidavit, to the satisfaction of the Chancellor, 
 ihat a copy of the order inade in this cause, bearing date, &c., 
 whereby it was ordered that the complainant do, within 
 days, appoint a solicitor to conduct this suit, in the place of 
 , deceased, who was the complainant's solicitor in this 
 cause, or that the complainant's bill be dismissed, with costs, 
 was, as in said order directed, set up in the office of the clerk of 
 this court, and so remained there for days ; and also that 
 
 within days from the date of said order, a copy thereof 
 
 was deposited in the post-office at , in this state, postage 
 
 prepaid, directed to the said complainant at , being his 
 
 last known place of residence. And it farther appearing, that 
 the said complainant has not .appointed any solicitor to conduct 
 this suit in place of the said , deceased : It is, on this^ 
 
 <&c., on motion of , of counsel with the defendant, ordered, 
 
 adjudged and decreed, that the complainant's bill in this cause 
 be and the same is hereby dismissed, with costs to be taxed. 
 
 Order substituting master.(a) 
 
 (Title of cause.) 
 
 It appearing to the court that , one of the masters of 
 
 ihis court, to whom certain matters in the above cause were 
 
 (a) After a cause has been referred from that master without an order of 
 to a master, it cannot be withdrawn the court, and special circumstances 
 
ADMISSION OP PABTIES. 283 
 
 Teferred by a decree {or " an order,") made on the day of 
 
 , eighteen hundred and , has {state the reason for 
 
 the substitution,) and that no report has been made by him 
 touching the matters of the said reference ; It is, on this 
 day of , in the year eighteen hundred and , on 
 
 motion of , solicitor for and of counsel with the complain- 
 
 ants, (" and in the presence of , solicitor and of counsel 
 
 with the defendants,) ordered, that , one of the masters of 
 
 this court, be substituted in the room and stead of the said 
 , and that the said proceed in the said matters 
 
 referred as aforesaid, in all respects as the said was 
 
 authorized and directed to do by the aforesaid decree (or 
 " order,") and that he make report thereon with all convenient 
 speed. 
 
 Petition to be admitted as a party defendant to 
 
 a suit, (a) 
 
 {Title of cause and address.) 
 
 The petition of, &c., respectfully shows, that on the 
 day of , &c., your petitioner became the purchaser of the 
 
 mortgaged premises in question in the above- stated cause, at a 
 
 must be shown to authorize a change bill to make such person a party ; but 
 
 ■of masters. 2 Dan. Ch. Pr. 1168. the same may be done by petition 
 
 No sale will be ordered to be made by filed in the cause ; which petition, 
 
 any master connected in business with, verified by oath, shall state the inter- 
 
 or who is clerk for, or employed in est of such person, and the manner in 
 
 the business of, the solicitor of either which the same was acquired ; and a, 
 
 of the parties to the suit. Rvle 46. copy of the petition and notice of the 
 
 Testimony shall not be taken, except application shall be served on the 
 
 .by consent, before an examiner who is complainant or his solicitor, and notice 
 
 a partner of, or connected in business of the application shall be served on 
 
 -with, or clerk for, the solicitor of such of the defendants as the Chan- 
 
 -either of the parties. Bide 79. cellor shall direct, if made before the 
 
 (a) Where, after the filing of the time for answering has expired, and 
 
 bill, any person shall acquire such an if after that time, on each defendant 
 
 interest in the subject-matter of the who has answered or appeared in the 
 
 .suit as would have made him a proper cause ; and, the Chancellor may, there- 
 
 or necessary party, if such interest had upon, if it appear that such person is 
 
 .been possessed by him at the time of entitled to be made a party to the 
 
 ihe commencement of the suit, it shall cause, and has acquired his interest 
 
 not be necessary to file a supplemental from some party to the same, order 
 
284 FORMS OF PLEADINGS. 
 
 sale thereof made by the sheriff of, &c., by virtue of an execu- 
 tion issued out of the Supreme Court of New Jersey, on a judg- 
 ment recovered, &c., {or as the case may be, stating the interest 
 of^ the petitioner, and the manner in which such interest was 
 acquired,) as by the deed of the said sheriff, duly executed and 
 delivered, (a copy of which is hereto annexed,) will appear. 
 
 And your petitioner further shows, that at the time of the 
 purchase of said premises by your petitioner, the same were 
 subject to a certain mortgage, executed by the said {the 
 
 judgment debtor) to , to secure the payment of a certain 
 
 bond, for the sum of dollars, with interest thereon from,. 
 
 &e., {state the condition of the bond shortly.) 
 
 And your petitioner further shows, that on or about the 
 day of , &c., the said filed his bill of complaint in 
 
 this court against said , for the foreclosure of the said 
 
 mortgage, and * that no final decree has yet been made in said 
 suit; {or after *, "an execution has lately issued out of this 
 court for the sale of the said mortgaged premises, by virtue of 
 the final decree therein, (or state the condition of the suit, as the 
 case may be.) 
 
 that lie be made a party thereto ; but by ; and in all cases where the person 
 such person shall be bound by all so made a party does not dispute the 
 orders and proceedings in the cause claim of the complainant, or any part 
 against the party whose interest he of it, the complainant, or any defend- 
 has acquired ; and the cause shall not ant whose prior right is not disputed^ 
 be delayed by the admission of such shall not be delayed by the admission 
 party, except for such time as it may of such party ; but his claim shall be 
 seem to the Chancellor to be necessary fully heard and investigated in dis- 
 to take the evidence regarding such posing of the residue of the subject- 
 claim. iJej)., "Chancery,'' § 41 ; see matter of the suit, or of the proceeds 
 Conrad v. Mullis»n, 9 C. E. Or. 65; thereof. Bev., "Chancery," § 42. 
 See as to manner of service in case After a decree pro confesso and sale of 
 party entitled to notice be dead, rule the premises under a foreclosure, the 
 142. In all cases in which it is pro- purchaser was admitted as a party 
 vided in the foregoing section that a defendant, but not to file an answer ;. 
 person may be made a party by peti- and it was held that he might avail 
 tion after the commencement of the himself of any defence the mortgagor 
 suit, such person may be made a party could have set up after a decree, 
 either before or after interlocutory or Hewitt v. Montdair R'y Co., 10 C. K 
 final decree therein, but such decree Or. 100 ; see aho S. C, 12 C. E. Or. 
 shall not be opened or set aside there- 479. 
 
ADMISSION OP PARTIES. 285 
 
 Your petitioner is advised and believes, that the proceeds of 
 said sale will be much more than sufficient to satisfy said mort- 
 gage debt ; and also that the whole principal sum, with interest 
 thereon, as alleged in said bill, is not due to the said complain- 
 ant on his mortgage, {or state the reason of the application, as 
 the case may be.) 
 
 Your petitioner therefore prays that he may be admitted as 
 a party defendant to said suit for foreclosure, and allowed to 
 answer said bill of complaint as he may be advised, or as may 
 be necessary and proper to protect his interests as the purchaser 
 and owner of said mortgaged premises. 
 
 {Signatv/re of solicitor and counsel.) 
 
 {Annex affidavit of verification and copy of instrument upon 
 which his interest depends.) 
 
 Notice of application on foregoing petition. 
 
 {Title of cause.) 
 As in form on page 148 to **, then, " be admitted as a 
 
 party defendant in the above-stated cause, and for such other or 
 further relief as may be proper." 
 
 Order admitting petitioner as a party.(o) 
 
 {Title of cause.) 
 A motion having been made before the Chancellor, on the 
 petition of , praying that he be made a party defendant in 
 
 (a) In any suit for the foreclosure shall be bound by the proceedings in 
 
 of a mortgage upon, or which may such suit, so far as the said property is 
 
 relate to, real or personal property in concerned, in the same manner as if 
 
 this state, all persons claiming an he had been made a party to, and 
 
 interest in, or encumbrance or lien appeared in, such suit, and the decree 
 
 upon, such property, by or through therein made against him as one of 
 
 any conveyance, mortgage, assign- the defendants therein ; but such per- 
 
 ment, lien or any instrument which, son, upon causing such conveyance, 
 
 by any provision of law, could be mortgage, assignment, lien-olaim or 
 
 recorded, registered, entered or filed other instrument to be recorded, regis- 
 
 ih any public office in this state, tered, entered or filed, as provided by 
 
 and which shall not be so recorded, law, may cause himself to be made a 
 registered, entered or filed at the time ' party to such suit by petition, in the 
 
 of the filing of the bill in such suit, same manner as is provided in the 
 
286 FOEMS OF PLEADINGS. 
 
 the above-stated cause, and the matters having been debated by 
 the counsel of the petitioner and the counsel of the complainant^ 
 and the Chancellor having considered of said matter, and being 
 of opinion that the said petitioner is a proper party defendant 
 to this cause : It is, on this, &c., ordered, that the said 
 be admitted as a party defendant in this cause, and that * he 
 have days from the date of this order to file his answer 
 
 to the bill of complaint herein ; {or after *, " he have leave to 
 appear before the master to whom it has been referred, to ascer- 
 tain and report as to the claims of the difierent parties to this 
 suit, and their priorities, and to prove his claim on or to, or 
 interest in the mortgaged premises," or, " he have the right to 
 appear before the master on the reference in this cause, and that 
 notice be given him of the proceedings before said master.") 
 
 INJUNCTION.(a) 
 
 Common order for injunction. 
 
 {Title of cause.) 
 Upon reading the bill of complaint in this cause, and the 
 affidavit thereto annexed, and on motion of , of counsel 
 
 case of persons acquiring an interest that the complainant held the instru- 
 in the subject-matter of a suit after its ment, and refused to deliver posses- 
 commencement; the petitioner in such sion of it. Kirtland's Adm'x \. Kirt- 
 case must set forth the instrument at land, 11 C. E. Or. 276. Where a lien- 
 length, and the title and interest of claim was filed after the commence- 
 such party, in such a manner as to ment of a suit in the Court of Chan- 
 show that he has an interest in the eery to foreclose a mortgage, which 
 subject-matter, and is a proper party was on the lands before the work was 
 in the suit. Reo., " Chancery," i 78. done or materials provided for which 
 Where the applicant fully stated in the lien was claimed, and the lien- 
 his petition his title and interest, and claimants were not made parties, and 
 whence and in what manner derived, did not apply to be made parties, the 
 it was held that he could not be de- claim was held to be cut off by sale 
 prived of his right to be admitted a under foreclosure. Saymond v. Post, 
 party to the suit, because he did not 10 C E. Or. 447. 
 set out at length the instrument under (a) An injunction may be obtained 
 which he claimed ; it being alleged at any time, in vacation as well as ia 
 
INJUNCTION. 
 
 287 
 
 with the complainant : It is, on this, &c., ordered, that * upon 
 filing the said bill and affidavits, (" and a bond according to the 
 one hundred and twenty-seventh rule of this court,") an injunction 
 
 term. The court is always open for 
 granting injunctions, jfjeu., " Chav/- 
 cery," § 3. It is a law of the court, 
 and dictate of sound reason, that when 
 a party desires extraordinary aid, he 
 must be prompt in his application. 
 Scudder v. Folk Co., Sax. 695. Espe- 
 cially when the party is seeking the 
 injunction against an important public 
 work. Scardan v. Howe, 9 C. E. Or. 
 273; Easton v. BaUroad Co., Id. 50. 
 The distinction in the English books 
 between a common injunction which 
 issues on some default of the defend- 
 ant, and special injunctions granted 
 on special applications to the court, is 
 of no importance. All injunctions 
 here against individuals, applied for 
 before answer, are granted on the 
 merits, and on special application to 
 the court, ex parte, on filing the bill. 
 Buckley v. Corse, Sax. 504; rvles 121, 
 127. Though the operations of large 
 companies ought not to be arrested 
 without notice, yet it is a matter rest- 
 ing in the sound discretion of the 
 court. Perkins v. Collins, 2 Or. Ch. 
 482; 7-MZel20. When public interests, 
 or the rights of large classes are in- 
 volved, an injunction will not be 
 granted, except upon hearing and 
 potice, and then only when it clearly 
 appears that the injunction will not 
 prejudice a public or quasi public 
 interest. Society, &e., v. BvMer, 1 Beas. 
 499 ; Su^dr Refining Co. v. Jersey City, 
 13 C. E. Or. 247. No injunction shall 
 be allowed against an incorporated 
 company or against any individual, 
 the effect of which is to stay the pro- 
 gress of any public work authorized 
 by a law of this state, without an order 
 first made to show cause, as provided 
 
 in rule 122; and this rule shall not 
 be dispensed with in any case, except 
 by the order of the Chancellor first 
 obtained and filed, unless such injunc- 
 tion be granted by the Chancellor 
 himself. Bide 120. To entitle the- 
 complainant to an injunction, he must 
 show, not only that the act of which 
 he complains is illegal, but that his 
 rights are prejudiced or injured by it. 
 MUler V. Craig, 3 Stock. 176. The 
 granting and continuing of injunctions 
 rests mainly on equitable grounds, and 
 is not exercised for the mere purpose 
 of protecting legal rights, irrespective 
 of the claim of the party to equitable 
 relief. Silles v. Parish, 1 McCart. 380. 
 An application for an injunction must 
 (except in interpleader) be supported 
 by affidavits of merits, or the admis- 
 sions of the defendant in his answer. 
 See Youngblood v. Schamp, 2 McCart.. 
 42. An application for injunction in 
 interpleader need not be supported by 
 an aflBdavit of merits ; but the money 
 or other property in dispute must be 
 secured by payment into court ; though 
 if there be not time to bring the 
 money into court, the court will pro- 
 vide for the emergency. The injunc- 
 tion should be so framed, if there be 
 occasion so to do, as not to deprive 
 the defendants of any legal rights 
 they may have acquired. Hamilton 
 V. Marks, 6 Be G. & S. 638 ; Sieveking 
 V. Behrem, 2 Myl. & C. 581. The 
 affidavits in support of an application 
 for an injunction are usually made by 
 the complainant; but they may be 
 made by any person acquainted witk 
 the facts. See rvle 119. In New Jersey, 
 they are ordinarily made before the 
 bill is filed, and are annexed to, and 
 
288 
 
 FORMS OF PLEADINGS, 
 
 do issue, f according to the prayer of said bill ; [or if the imjy/ne- 
 tion be special, after f add, " restrainiDg the defendants," redting 
 the terms of the injunction, as the case may be.) (If it be neces- 
 sary to make personal service on a defendant out of thejwisdie- 
 iion, add, "And it is further ordered, that said injunction may 
 be served upon the said defendant, , out of this state.")(a) 
 
 Notice of motion for injunction.(6) 
 
 {Title of cause.) 
 As in form on page 148 to *, then, "for an injunction to 
 restrain the defendant, his agents, &c., from (state the acts to be 
 enjoined,) and for such other or further relief as may be just.'' 
 
 filed with, the bill. JEJx parte affi- 
 davits made after the bill is filed will 
 not be read in support of the applica- 
 tion. Brundred v. Paterson Machine 
 Co., 3 Or. Oh. 294. 
 
 Affidavits of the complainants, made 
 after the filing of the bill, were not 
 permitted to be read upon a motion 
 for an injunction and receiver against 
 a corporation alleged to be insolvent, 
 the court saying that the complainants 
 had an opportunity when the bill was 
 filed of subjoining their affidavits and 
 filing them with the bill, and that they 
 ought to have done so. Brundred v. 
 Patersmi Machine Co., 3 Or. Ch. 309. 
 When an injunction is applied for, 
 there should be a special affidavit of 
 the truth of all the material facts upon 
 which the application is founded. An 
 injunction issued upon the common 
 affidavit, in the form ordinarily an- 
 nexed to an answer, will be dissolved 
 -very much as a matter of course. 
 Youngblood v. S'chanvp, 2 McCart. 42. 
 There is no relaxation of the rules of 
 evidence, with respect to affidavits an- 
 nexed to injunction-bills. C. & A. R. 
 B. Co. \. Stewart, 6 O. E. Or. 484. If 
 an injunction is allowed upon an in- 
 sufficient affidavit, it is not merely an 
 
 irregularity, but an error to which the 
 principle of waiver does not apply. 
 Perkins v. Collins, 2 Or. Ch. 483. The 
 facts upon which injunction depends, 
 must • be verified by positive proof, 
 annexed to the bill, or the injunction 
 will be dissolved, even if. the denial 
 in the answer is not sufficient, for want 
 of personal knowledge by the defend- 
 ant. Soldrege v. Ovrynne, 3 C. E Or. 
 27. The evidence must also prove 
 some actual violation of the complain- 
 ant's right, or a sufficient ground to 
 apprehend it. 2 Dan. Ch. Pr. 1670. 
 As a general rule, a preliminary in- 
 junction will not be granted, unless 
 the act threatened to be done will in- 
 flict an irrepai'able injury on the com- 
 plainant. Citizen^ Coach Co. v. Camden 
 Co., 2 Stew. Eq. 299. 
 
 {a) When the defendants reside out 
 of the state, and cannot be found, it 
 is the practice for the court, by special 
 order, to dispense with personal ser- 
 vice. Haring v. Kauffman, 2 Beas. 
 397. 
 
 The court sometimes orders service 
 to be made on the defendant out of the 
 state. 
 
 (6) If the application for an injunc- 
 tion is not made ex parte, a notice of 
 
INJUNCTION. 
 
 28? 
 
 Order to show cause why an injunction should 
 not issue, with restraint in the meantime;(a) 
 
 (Title of cause.) 
 
 As in form on page 286 to *, then^ "the defendants show 
 cause before the Chancellor, at the state-house, in Trenton, (or, 
 
 motion must be served in the usual 
 manner. It must state the day on 
 which the notice is to be made, which, 
 except in causes referred to a Vice 
 Chancellor, must be one of the days 
 appointed for motions, unless special 
 leave has been obtained to give the 
 notice of motion for another day ; and 
 the fact of such special direction hav- 
 ing been made, must be expressed in 
 the notice. Rule 5. Whether notice of 
 an application for an injunction shall 
 be given, depends on no settled prac- 
 tice, but on the nature of each case. 
 Buckley v. Corse, Sax. 504. A motion 
 cannot be made on behalf of the 
 relators in an information; it must 
 be made on behalf of the attorney- 
 general. Ait'y-Gen. V. Wright, S Beav. 
 447. No injunction can issue after 
 answer filed, without giving five days' 
 notice of the application therefor, 
 unless it shall be made to appear to 
 the Chancellor, Vice Chancellor or 
 master that the circumstances of the 
 case are such as to make it proper 
 to dispense with notice. Bule 128. 
 "Where the application for an in- 
 junction was of a special character, 
 and one not of ordinary occurrence, 
 it was directed that a copy of the 
 bill be served on the defendant, and 
 notice given of an application at a 
 future day. Hardenburgh v. Farmer!^ 
 Bank, 2 Gr. Ch. 73. It is the practice 
 in New Jersey, upon application for 
 injunction, where notice is given, and 
 the parties are heard upon the appli- 
 
 cation before answer, to permit the 
 defendant to read on the hearing 
 afiidavits taken ex parte and without 
 notice, touching matters stated in the 
 bill. Ibid. Injunction was refused 
 while a plea or demurrer was pending, 
 on the ground that until the plea or 
 demurrer was argued it does not ap- 
 pear the court has cognizance of the 
 cause. 3 P. Wrm. 396 ; see Hinde Pr. 
 578. 
 
 (tt) If the Chancellor thinks the 
 defendants, or any of them, should be 
 heard on the question before the 
 injunction is granted, he will refuse 
 to allow it ex parte, and either direct 
 that notice be given, or make an order 
 requiring the defendant to show cause 
 before the court, on a regular motion- 
 day, or on a particular day to be 
 appointed in the order, why the in- 
 junction should not be granted. He 
 will in such case also direct on which 
 of the defendants the bill and affidavits 
 and notice or order to show cause shall 
 be served, and the time and manner 
 of such service. Unless such order 
 shall otherwise direct, it will be the 
 duty of the complainant to serve 
 the order to show cause on the de- 
 fendant, together with a copy of the 
 bill and affidavits annexed, at least 
 six days previous to the day fixed 
 for the hearing. On the hearing, 
 the defendant may read his answer 
 to the bill, and also affidavits in reply 
 to affidavits annexed to the bill, 
 but no other affidavits can be read 
 
290 POEMS OF PLEADINGS. 
 
 ' at the chancery chambers, in ,') on the day of 
 
 next, at ten o'clock in the forenoon, or as soon thereafter as 
 counsel can be heard, why an injunction should not issue ** 
 according to the prayer of the said bill, {or after **, ' restraining 
 them from,' ataie the acts to be enjoined,) and for such further 
 relief as may be just." 
 
 And it is further ordered, that the said defendants, their 
 agents, &c., in the meantime, and until the further order of this 
 court in the premises, desist and refrain from (state the acts 
 enjoined.){a) 
 
 And it is further ordered, that a copy of the "said bill and 
 affidavits " (or, " of this order ") be served on the said defend- 
 ants, respectively, within days from the date of this order. 
 
 Order denying motion for injunction. (6) 
 
 [Title of cause.) 
 
 Upon reading the bill of complaint in this cause, and the 
 affidavits thereto annexed, and on hearing , of counsel 
 
 on either side, unless, for special Where there is an order to show 
 
 reasons, the Chancellor, on applica- cause, there need be no subpoena to 
 
 tion, at the time appointed for the bring defendant into court, but he 
 
 application, shall, by order, otherwise need not file an answer until required 
 
 direct ; and where further affidavits to do so by subpoena, nor is he obliged 
 
 are taken, under an order for the pur- to serve his answer on the complain- 
 
 pose, they shall be taken on two days' ant before the hearing on the order 
 
 notice to the opposite party. See Rule to show cause. Dean v. Bonnell, 4 
 
 122. The- answer of a corporation, N. J. L. J. 348, Dodd, V. C. The 
 
 under its corporate seal, is not evi- regular course for showing cause is by 
 
 dence on the hearing of the order.to affidavits taken on two days' notice, 
 
 show cause, and is of no consequence, or taken ex parte, and served four 
 
 except in explanation of the meaning days before the day of argument, 
 
 of the affidavits. Oitizens' Coach Co. P. & S. R. Co. v. Little, 14 Stew. Eq. 
 
 V. Camden H. R. Co., 2 Stew. Eq. 299. 519. See Rule 138. 
 
 (a) Where an order merely re- (5) In all cases where an applica- 
 
 strains a party from doing a certain tion is made for an injunction to the 
 
 act, and does not award an injunction, Chancellor or to a Vice Chancellor 
 
 a writ of injunction does not issue. or master, and the same is denied. 
 
 The order is termed a " restraining an endorsement of the denial shall be 
 
 order," and a copy of the order itself made on the bill or petition, and the 
 
 should be served. BraithwaMs Pr. said bill or petition shall be put on 
 
 229. the files of the court. Rule 129. The 
 
INJUNCTION. 
 
 291 
 
 ^th the complainant: It is, on this, &c., ordered, that the 
 motion on behalf of the said complainant for an injunction, be 
 and the same is hereby denied, "without prejudice to the com- 
 plainant's right to renew it upon the same or other papers." 
 And it is further ordered, that the said bill and affidavits be 
 filed with the clerk of this court. 
 
 Preliminary injunction. New Jersey, ss. — The State of 
 New Jersey to and , their servants, workmen and 
 
 agents, and each and every of them, [or, " their attorneys and 
 agents,")(a) — Greeting : 
 
 bill must be filed, whether the injunc- 
 tion is made use of or not. Slimson 
 V. Bacon, 1 Slock. 144. An injunction 
 -should not be granted on a bill which 
 is bad upon demurrer, even in point 
 •of form merely. Sose v. Sole, 11 
 Paige 166. 
 
 (a) If the object of the suit is to 
 restrain proceedings in another court, 
 •the injunction will be awarded against 
 ■the defendant, his attorneys and agents. 
 If it is to restrain waste, or any other 
 inequitable act, it is awarded against 
 the defendant, his servants, workmen 
 and agents. 2 Dan. Ch. Pr. 1673. A 
 Tvrit of injunction ought to be su£5- 
 ciently explicit upon its face to apprise 
 the party upon whom it is served as 
 to what he is restrained from doing, 
 -jrithout the necessity of his resorting 
 to the complainant's bill to ascertain 
 what the injunction means. Richards 
 V. West, 2 Gr. Ch. 456 ; McKillop v. 
 Taylor, 10 C. E. Gr..l39. It should 
 inot deprive the defendant of any right 
 which the case made by the bill does 
 .pot require he should be restrained 
 from exercising. Laurie v. Laurie, 
 ■§ Paige 234. To effect a regular ser- 
 -yjce of an injunction, the writ itself. 
 
 under the seal of the court, must be 
 shown to the party against whom it 
 issues, and a true copy thereof de- 
 livered to him. Haring v. Kauffman, 
 2 Beas. 397. The copy should be a 
 full copy, including the signature of 
 the clerk, and should be endorsed in 
 like manner as the original. Braith- 
 wait£s Pr. 228. The writ must be 
 issued within five days from the date 
 of the order or fiai therefor, and 
 served within twenty days after the 
 issuing thereof; and within ten days 
 after service a return of such service 
 made to the court, and on failure 
 thereof, the defendant will be entitled 
 to a dissolution of the injunction, un- 
 less the Chancellor shall, by order, 
 give further time for its service and 
 return. Pule 130. A subpoena must 
 be taken out with an injunction, and 
 made returnable within the time pre- 
 scribed by the rule for the return of 
 service of the injunction. Lee v. 
 Cargill, 2 Stooh. 331. A court of 
 equity will punish the violation of its 
 order for an injunction, though the 
 writ be not served, if the defendant 
 knew of its existence. Chambers v. 
 Pwyer, 12 Vr. 95. 
 
292 FORMS OF PLEADINGS. 
 
 Whereas, it has been represented to us, in our Court of Chan- 
 cery, on the part of , complainant, that he has 
 [l. s.] lately exhibited his bill of complaint against you, the 
 said and , defendants, to be relieved 
 touching the matters therein contained, and that your actings 
 and doings in the premises are contrary to equity and good 
 conscience : We, therefore, in consideration thereof, and of the 
 particular matters in the said bill set forth, do strictly erjoin 
 and command you, the said , your workmen, laborers, 
 servants and agents, and each and every of you, (or as the case 
 may be,) under the penalty that may fall thereon, that you, and 
 each and every of yon, do absolutely desist and refrain from 
 (insert the matter prohibited to be done,) until you, the said ,. 
 shall have fully answered the bill of complaint, and our said 
 court shall make other order to the contrary. 
 
 Witness , our Chancellor, at Trenton, the day of 
 
 , &c. (Signature of clerk.) 
 
 (Signature of solicitor.) 
 
 Injunction to stay proceedings at law.(o) New 
 Jersey, to wit — The State of New Jersey to , his coun- 
 
 selors, attorneys, solicitors and agents, and each and every of 
 them — Greeting : 
 
 (o) Wherever a party, by fraud, by affidavit certified at the foot or on 
 
 accident, mistake or otherwise, has ob- the back of the bill that the allega- 
 
 tained an advantage in proceedings in tions thereof are true, or by other 
 
 a court of ordinary jurisdiction, which means. Mev., "Chancery" § 84, 
 
 must necessarily make that court an Whenever a cause shall be at issue in 
 
 instrument of injustice, a court of any court of common law, no injunc- 
 
 equity will interfere to prevent a tion shall issue before answer filed to 
 
 manifest wrong, by restraining the stay the trial of the cause, unless ap- 
 
 party whose conscience is thus bound, plied for and actually taken out twenty 
 
 from using the advantage he has there days previous to the sitting of the 
 
 gained. 2 Dan. Ch. Pr. 1623. No court in the county in which the trial 
 
 person can enjoin a judgment at law, is to be had, except some special 
 
 to which he is not a party. Jordan v. cause shall be shown by aflidavit to 
 
 Wiliiams, 3 Band. 501. No injunc- the Chancellor, or to a Vice Chancel- 
 
 tion shall be granted to stay proceed- lor, or to the master authorized to re- 
 
 ings in any suit at law before verdict port upon the propriety of issuing the 
 
 or judgment, unless the Chancellor be injunction prayed for, and it shall be 
 
 satisfied of the complainant's equity, made to appear that the injunctioQ i& 
 
INJUNCTION. 293 
 
 Whereas, it has been represented to our Chancellor, in our 
 Court of Chancery, on the part of , complainant, 
 
 f L. S.J that he has lately exhibited his bill of complaint against 
 you, the said , and others, defendants, to be 
 
 relieved touching the matters therein contained, and that the 
 actings and doings of you, the said defendant, are contrary 
 to equity and good conscience : We, therefore, in consideration 
 of the premises, and of the particular matters set forth in 
 the said bill, do strictly enjoin and command you, the said 
 , and all and every the persons before mentioned, and 
 •each and every of you, under the penalty that may fall thereon, 
 that you, and every of you, do absolutely desist and refrain from 
 all further proceedings at law against the said , in a suit 
 
 commenced by you, the said , in our Supreme Court, on 
 
 a certain bond executed by the said complainant, on the 
 ^ay of , in the year, &c. ; and which said action you, 
 
 the said defendant, threaten, as is alleged in the said bill, to 
 notice and bring to trial at the next Circuit Court to be held in 
 and for the county of , until you, the said defendant, shall 
 
 have fully answered the bill of complaint, and our said court 
 ishall make other order to the contrary. 
 Witness, &c. 
 
 Injunction to stay waste-Ca) New Jersey, to wit — The 
 State of New Jersey to and , his wife, and 
 
 and , their workmen, servants and agents, and each and 
 
 ■every of them — Greeting: 
 
 applied for within a reasonable time was noticed, which have accrued up 
 ;after the complainant became ap- to the time of the service of the in- 
 prised of the circumstances on which junction. Side 125. 
 his application is founded ; and when- (a) A charge of waste, whereby 
 ever an injunction shall be granted to the mortgage security is diminished, 
 •stay proceedings at law within twenty is always a sufficient ground for an 
 •days previous to the sitting of the injunction as between mortgagor and 
 court as aforesaid, it shall be upon con- mortgagee. Capner v. Fleminglon Co., 
 ■dition that the party pay the costs at 1 Or. Ch. 467 ; Allen v. Taylor, Id. 
 iaw of the term at which the cause 435. 
 
294 POBMS OF PLEADINGS. 
 
 Whereas, it has been represented to us, in our Court of Chan- 
 cery, on the part of , complainant, that he has 
 [ji. S.J lately exhibited ,his bill of complaint against you, thfr 
 said , and wife, and , defendants, to 
 be relieved touching the matters therein contained, in which said 
 bill it is, among other matters, set forth, that you, the said , 
 do threaten and intend to cut down timber and other trees, and 
 to commit other waste and injury on certain mortgaged premises^ 
 mentioned in the complainant's bill, and situate in the township 
 of , in the county of , containing acres, more 
 or less, and being (here insert brief statement of description, so far 
 as to identify the premises, but no more,) and that the actings and 
 doings of you, the said defendants, touching the matters in the 
 said bill mentioned, are contrary to equity and good conscience:; 
 We, therefore, in consideration of the premises, do strictly enjoin 
 and command you, the said , and , and , 
 your workmen, servants and agents, and each and every of you,, 
 that under the penalty that may fall thereon, you, and each and 
 every of you, do, from henceforth, altogether and absolutely 
 desist and refrain from cutting down or destroying the timber 
 or other trees standing, growing or being in or upon the said 
 mortgaged premises before mentioned, or any part thereof, and 
 from taking and carrying away, or causing to be taken and 
 carried away, any wood lying or being upon the said premises, 
 or any part thereof, cut therefrom,(a) and from committing or 
 doing any further or other waste or spoil in or upon the said 
 premises, or any part thereof, or in or upon any of the lands in 
 question in the said cause, until our said court shall make other 
 order to the contrary. 
 
 Witness, &c. 
 
 (o) An injunction may be. granted permitted, or where there is , fraud, 
 
 at the suit of a mortgagee to prevent Bank of Chenango v. Cox, 11 C. E. Or. 
 
 the removal from the mortgaged prem- 452. But where the bill alleges- 
 
 ises of timber trees cut down in waste neither of such considerations, and 
 
 of the security, where the person prays an account from the person vrho 
 
 against whom relief must be sought has committed the waste, an injunc- 
 
 for the waste committed is insolvent, tion will not be granted. Ibid. For 
 
 or where no redress can be obtained punishment of breach of injunction to 
 
 at law or in equity, if the removal be stay waste, see Bev., "Chancery," ? 87, 
 
INJUNCTION. 295 
 
 Perpetual injunction after deeree.(a) New Jersey, to 
 wit— The State of New Jersey to and , their agents, 
 
 &c. — Greeting: 
 
 Whereas, by a certain final decree made in our Court of 
 Chancery of New Jersey, on the day of 
 
 [li. S.J (the date of the decree), in a certain cause therein depend- 
 ing, wherein is complainant, and the said 
 are defendants, it was ("amongst other things" — if the decree 
 applies to other things besides the injwnction, so much only of the 
 mandatory part of the decree as relates to the injunction need be 
 recited, prefixing, however, the words "it was, amongst other 
 things," &c., or, "our said court did, amongst other things," 
 &c.) — ordered, adjudged and decreed, that {recite, in the past 
 tense, so much of the mandatory part of the decree as relates to 
 the injunction, as follows, instead of saying "that the said 
 should be restrained," &o., say "that you, the said , 
 should be," &c., and instetid of the words "this court," say 
 "our said court.") We, therefore, in consideration of the 
 premises, do hereby strictly enjoin and command you, the said 
 , your servants, agents and workmen, (or according to 
 the command of the writ, as the case may be,) under the penalty 
 that may fall thereon, that you, and every of you, do, from 
 henceforth and forever, absolutely desist and refrain from {here 
 repeat, in the present tense, the mandatory part of the decree 
 relating to the injunction.) 
 Witness, &c. 
 
 Petition for injunction to stay waste after bill filed. 
 
 ( Title of cause and address.) 
 The petition of the said complainant respectfully shows, that 
 the said , one of the above-named defendants, has com- 
 
 mitteS, or caused to be committed, great waste, spoil and destruc- 
 tion upon certain of the lands and premises in the bill of the 
 said complainant mentioned, called the , {or otherwise 
 
 briefly describing the premises for identification,) said to contaiit 
 
 (o) It is not usual to issue a second petual. The writ may, however, be 
 writ in cases where an injunction is, issued and served. £raithwaite's Pr. 
 at the hearing of the cause, made per- 229. 
 
296 FORMS OF PLEADINGS. 
 
 acres, and mortgaged by the said to the said com- 
 
 plainant, as in the said bill is alleged, by cutting down the timber 
 and trees which were standing and growing upon the said prem- 
 ises, or causing the same to be cut down, and a large quantity 
 whereof, cut up into cordwood, now remains upon the said 
 premises. 
 
 And your petitioner further shows, that the said has 
 
 advertised for public sale, on the day of next, the 
 
 wood so cut down, thereby declaring his intention to make sale 
 thereof; and that he intends to commit, or cause to be committed, 
 further waste, spoil and destruction in and upon the said prem- 
 ises, by cutting down the trees growing thereon, and causing the 
 same to be carried away, whereby the petitioner's security is 
 greatly diminished, and he is in danger of sustaining loss. 
 Your petitioner therefore prays, that a writ of injunction may 
 issue out of this court, to be directed to the said , 
 
 and his workmen, servants and agents, commanding them, and 
 €ach and every of them, that under the penalty that may fall 
 thereon, they and every one of them, do henceforth absolutely 
 desist and refrain from felling or cutting down any timber or 
 other trees standing, growing or being in or upon the premises 
 before mentioned, or any part thereof, and from taking and 
 carrying away, or causing to be taken and carried away, any 
 wood lying and being upon the said premises, or any part thereof, 
 and from committing or doing any further or other waste or 
 spoil in or upon the said premises, or any part thereof, or in and 
 upon any other part of the mortgaged premises. And your 
 petitioners will ever pray, &c. 
 
 {Signature of solicitor and counsel.) 
 
 Affidavit of verification of petition. New Jersey, to 
 wit — , the above-named petitioner being duly sworn 
 
 according to law, deposes and says — thatthe matters and things 
 set forth in the above petition are true; and that the said 
 has, to the personal knowledge of this deponent, within 
 days past, cut down a number of trees upon the mortgaged 
 premises mentioned, and cut the same up into cordwood, and 
 that he has advertised the same for sale. 
 
INJUNCTION. 297 
 
 And this deponent further says, that he verily believes that 
 "the said intends to go on committing waste and destruc- 
 
 tion of the timber standing and growing upon the said premises; 
 and that the mortgaged premises are a scanty security for the 
 money due upon this deponent's mortgage; and he further says, 
 that if the wood is taken off, the premises will not, in deponent's 
 opinion, bring the amount of the mortgage debt, with interest 
 and costs" of suit ; and that the said (the mortgagor) is 
 
 insolvent, and, though personally liable therefor, is unable to 
 pay any excess of that debt above the proceeds of the sale of the 
 .mortgaged premises, (a) 
 
 Petition for injunction to stay waste after decree, 
 
 {Title of cause and address.) 
 
 The petition of , above named, respectfully shows, that 
 
 iieretofore your petitioner filed his bill of complaint in this hon- 
 orable court against the above-named , defendant, for the 
 foreclosure and sale of certain mortgaged premises, situate in the 
 township of , in the county of , in this state, mort- 
 gaged by the said to your petitioner, and which said 
 mortgaged premises are more particularly described in the said 
 bill of complaint; that process of subpoena to appear and answer 
 ihe said bill, directed to the said defendant, has been regularly 
 issued, and returned served, and such further proceedings had 
 in the said cause, that on the day of instant it was, 
 among other things, ordered, adjudged and decreed, that {briefly 
 state the substance of the decree;) but as to the said bill, parties, 
 object, proceedings and decree, your petitioner, for greater cer- 
 tainty, prays leave to refer to the files of this court; that no 
 -execution has as yet issued on the said decree, and your peti- 
 
 (a) After sale of the mortgaged is not authorized to cut down timber 
 
 ■premises under decree and execution, and commit waste upon the premises, 
 
 the mortgagor in possession will be even if the proceeds were applied to 
 
 restrained from committing waste. the extinguishment of his debt. Toule 
 
 Phoenix v. Olark, 2 Hal. Ch. 447. v. Bichards, Sax. 538. 
 And a mere mortgagee in possession 
 
298 FORMS OF PLEADINGS. 
 
 tioner is advised that none can issue until the expiration of ten 
 days after pronouncing the said decree, without the special order 
 of this court therefor. 
 
 And your petitioner further shows, that the said mortgaged 
 premises, with the appurtenances, decreed to be sold as aforesaid, 
 are a scanty and insufficient security for the payment of the debt, 
 interest and costs due and ordered to be paid to your petitioner 
 as aforesaid, the said mortgaged premises, with the appurtenances, 
 being worth, before the committing of the waste and destruction 
 hereafter mentioned, only about dollars, which sum i& 
 
 several hundred dollars less than the debt, interest and costs due 
 and ordered to be paid to your petitioner as aforesaid. 
 
 And your petitioner further shows, that the said is em- 
 
 barrassed in his pecuniary affairs, and unable to pay the balance 
 that will "remain due to your petitioner after the sale of the said 
 mortgaged premises, with the appurtenances, if sold for their 
 full value. 
 
 And your petitioner further shows, that on the day of 
 
 , &c., the said did pull down and remove from 
 
 the said mortgaged premises a barn, of the value of about 
 dollars, and has also removed a part of the fencing stuff from 
 the said premises, and has threatened to remove the kitchen 
 attached to the dwelling-house standing and being on the mort- 
 gaged premises. 
 
 And your petitioner verily believes, that the said will 
 
 commit other waste, spoil and destruction in and upon the said 
 mortgaged premises, unless restrained from so doing by this 
 honorable court. Your petitioner therefore prays that a writ of 
 injunction may issue out of and under the seal of this honorable 
 court, to be directed to the said , his workmen, servants 
 
 and agents, and each and every of them, strictly enjoining and 
 commanding them, and all and every of them, under the penalty 
 that may fall thereon, henceforth absolutely to desist and refrain 
 from removing off the said mortgaged premises, or destroying 
 or in any way injuring any building or fences, or fruit, timber 
 or shade trees on said premises, and from committing any other 
 or further waste, spoil or destruction in or upon the said mort- 
 
INJUNCTION. 29&- 
 
 gaged premises, or any part thereof, until the further order of 
 this court. 
 
 And your petitioner will ever pray, &c. 
 
 {Signature of solicitor and ooimsel.) 
 
 New Jersey, ss. — , the petitioner in the foregoing 
 
 petition named, being duly sworn, on his oath says — that the 
 matters and things therein set forth, so far as they relate to his 
 own acts and deeds, are true, and so far as they relate to the 
 acts and deeds of any other person or persons, he believes them' 
 to be true ; and that,. &c., (setting out in short the mischief com- 
 plained of.) 
 
 {Signature.) 
 
 Sworn, &c. 
 
 Special order for injimction. 
 
 {Title of cause.) 
 
 Upon motion made this day on behalf of , of counsel 
 
 with the complainant, and upon reading the petition of the said 
 complainant, and his affidavit thereto annexed, in and by which 
 said petition it appears, among other things, that a decree has been 
 made in this cause for the sale of certain mortgaged premises, situ- 
 ate in the township of , in the county of , in this 
 state, mortgaged by the above-named to the complainant ;, 
 and that certain waste has been done, and further waste is threat* 
 ened in and upon said mortgaged premises ; and, upon examin- 
 ing the bill, proceedings and decree in the said petition mentioned 
 and referred to : It is, on this day of , in the year,, 
 &c., by his Honor , Chancellor of the State of New 
 Jersey, ordered, that the said petition and affidavit be filed, and 
 that an injunction do forthwith issue out of, and under the seal 
 of this court, directed to the said and his workmen, ser- 
 vants and agents, therein and thereby commanding them, and all 
 and every of them, that under the penalty that may fall thereon,, 
 they, and each of them, do, from henceforth, altogether and abso- 
 lutely, desist and refrain from removing off the said mortgaged 
 premises, or destroying thereon, any building, fences, fruit, timber 
 
300 P0BM8 OP PLEADINGS. 
 
 or shade trees, and from committing or doing any other or further 
 waste, spoil or destruction, in or upon the said premises, or any 
 part thereof, until the further order of this court. 
 
 Petition for injunction where bill is presented to 
 a master.(a) 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of respectfully shows, that your petitioner 
 
 has filed in this court his bill of complaint against and 
 
 , praying relief touching the matters therein set forth; 
 and he is advised that the issuing of a writ of injunction is 
 necessary to his effectual relief. He therefore respectfully prays, 
 that your Honor will grant him an injunction, agreeably to the 
 prayer of his said bill. 
 
 (Signature of solicitor and cotmsel.) 
 
 (The master will make his report at the foot of this petition.) 
 
 Master's report for injunction. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The subscriber, the master of the Court of Chancery desig- 
 nated by his Honor the Chancellor to report on the propriety 
 of issuing writs of injunction in the absence of the Chancellor 
 
 (a) In the absence of the Chancel- plainant in the first instance, and will 
 
 lor from the city of Trenton, a petition be included in the taxed bill of costs, 
 
 addressed to him for an injunction Application for the dissolution of such 
 
 may be presented to such master of injunction is to be made, as in other 
 
 the court, residing at the city of Tren- cases, to the Chancellor. Rule 121. 
 
 ton, as the Chancellor shall for that At present there is no such master 
 
 purpose by order designate, and the designated to grant injunctions. The 
 
 master shall exercise the power of re- Vice Chancellors are empowered to 
 
 porting upon the propriety of issuing grant injunctions, and injunctions 
 
 the injunction prayed for; and in case issue upon filing their determination 
 
 the master shall report that an injunc- advising the same. The allowance or 
 
 tion ought to issue, it shall be issued denial by a Vice Chancellor of an in- 
 
 by the clerk, on filing with him the junction will be endorsed on the back 
 
 said petition and report. The injunc- of the bill or petition, in the same 
 
 tion master is entitled to a fee of two manner as on application for injunc- 
 
 doUarsupon the allowance of the writ; tion to the Chancellor, and a petition 
 
 which sum must be paid by the com- is unnecessary. See Rule 131. 
 
INJUNCTION. 301 
 
 from the city of Trenton, respectfully reports, that, having 
 perused the bill mentioned in the foregoing petition, and the 
 affidavits thereto subjoined, he is of opinion that * an injunction 
 should issue agreeably to the prayer of the bill; {or, if not 
 allowed, after * say, " the injunction prayed for ought not to be 
 granted.") 
 
 All which is respectfully submitted. 
 
 [Signatwe of master.) 
 
 Dated, &c. 
 
 Rule for injunction where the master reports an 
 allowance. 
 
 {Title of cause.) > {Date of rule.) 
 
 , the master of this court designated by the Chan- 
 cellor to decide upon the propriety of granting injunctions in 
 the absence of the Chancellor from the city of Trenton, havings 
 reported that he is of opinion that an injunction ought to issue 
 agreeably to the prayer of the petition in this cause : It is ordered,, 
 on motion of , solicitor of the complainant, that an injunc- 
 
 tion do issue accordingly. 
 
 By the court. 
 
 Clerk. 
 
 Bond, on allowing injunction under rule 127.(a)- 
 
 Know all men by these presents, that {principal) and 
 
 and {sureties) are held and firmly bound unto 
 
 {the defendant), in the sum of dollars, lawful 
 
 money of the United States of America, to be paid to the said 
 
 {the defendant), his executors, administrators or assigns. 
 
 {a) Where an injunction is granted court shall eventually decide that the 
 
 ex parte, the Chancellor or master may, injunction was unfairly obtained ; the 
 
 at his discretion, take from the com- damages to be ascertained in such 
 
 plainant a bond to the party enjoined, manner as the Chancellor shall direct, 
 
 in such sum as may be deemed suffi- Bule 127. As to the mode of obtain- 
 
 cient, either with or without sureties, ing and proceeding upon an attach- 
 
 conditioned to pay to the party en- ment for breach of an injunction, see 
 
 joined such damages as he may sustain MwdoeWs Case, 2 Bland 461, 486. 
 by reason of the injunction, if the 
 
^02 FOEMS OF PLEADINGS. 
 
 For which payment, well and truly to be made, we bind our- 
 selves, our and each of our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals. Diated the day of , eighteen hundred 
 
 and . * 
 
 The condition of the above obligation is such, that, whereas, 
 in a certain cause in the Court of' Chancery of the State of New 
 Jersey, wherein is complainant, and is defendant, f 
 
 an order has been this day made that an injunction do issue, on 
 the application of the said (pomplainant) against the said 
 (defendant.) 
 
 Now, therefore, if the said (complainant) shall pay to the said 
 (defendant) such damages es he shall have sustained by reason 
 of said injunction, (the damages to be ascertained in such man- 
 ner as the Chancellor shall direct,) in case the said court shall 
 eventually decide that the said injunction was unfairly obtained, 
 then this obligation to be void, otherwise to be and remain in 
 full force and virtue. 
 
 Sealed and delivered in presence of — 
 
 (Add justification of sureties in form as on page 71, ante, in 
 double the amount of the bond.) 
 
 Bond on allowing injunction to stay ejectment 
 suit after issue joined therein. (a) As in preceding form 
 
 (o) No injunction shall issue to stay ant shall give bond, with sufficient 
 
 proceedings at law in any mixed action sureties, in the penalty of at least 
 
 after verdict or judgment, on the double the rent of the premises for 
 
 application of a defendant in such two years, if the premises are leased 
 
 proceedings at law, unless the appli- at a fixed rent, or if not leased, then 
 
 cant shall first deposit with the clerk in such sum as the Chancellor or 
 
 in chancery such sum of money as master shall direct, conditioned for 
 
 the Chancellor shall direct, or give the payment to the party against 
 
 puch security, by bond, to the party whom such injunction is granted, of 
 
 against whom the injunction is prayed all such damages and costs as may be 
 
 jis the Chancellor shall direct. Itev., awarded to him, either at law or in 
 
 "Chancery," § 81. No injunction this court, in case of a decision against 
 
 shall be allowed to stay the proceed- the party obtaining such injunction, 
 
 ings in an ejectment suit, after issue Rule 126; see Rev., "Chancery," ?§ 
 
 joined thereon, unless the complain- 80-83. 
 
INJUNCTION. 303 
 
 to *, then, "whereas, the above-named (pomplainant in chancery) 
 has filed his bill of complaint in the Court of Chancery against 
 the above-named {defendant^ praying, amongst other things, for 
 an injunction to restrain the further prosecution of an action of 
 ejectment brought in the Supreme Court by the said 
 against the said , f and now pending therein, and at issue, 
 
 but not yet brought to trial j" {or after f, "in which action a 
 verdict has been obtained by the said against the said 
 
 for the recovery of the lands in controversy in that suit.") 
 
 Now, therefore, the condition of the above obligation is such, 
 that if the above-bounden {principal and sureties,) their exec- 
 utors and administrators, or any of them, shall and do | well and 
 truly pay, or cause to be paid to the said {defendant,) his exec- 
 utors, administrators or assigns, all such damages and costs as 
 may be awarded to the said {defendant in chancery,) either at 
 law or in the said Court of Chancery, in case of. a decision 
 against the said {complainant,) then the above obligation, &c. 
 (conclude as in preceding form.) 
 
 Bond on allowing Injunction to stay proceedings 
 at law in a personal action after judgment. (a) Proceed 
 as in last preceding form to f, omitting the words " of ejectment," 
 then add, "in which suit a judgment was recovered by the said 
 
 (o) No injunction shall issue to the costs at law, with condition to abide 
 
 stay proceedings at law in any per- such order or decree as the Chancellor 
 
 Sonal action after verdict or judgment, shall make in the premises ; or if the 
 
 on the application of a defendant in bill be dismissed, to pay the amount 
 
 such proceedings at law, unless a sum of the said verdict or judgment, and 
 
 of money equal to the amount due at costs, with the interest thereon. Men., 
 
 -the time of such deposit upon said "Chancery" ^ 80. The statute applies 
 
 verdict or judgment, with costs, shall to a bill of interpleader, where an in- 
 
 be first deposited with the clerk of the junction is prayed. Morris Canal Co. 
 
 Court of Chancery by the applicant v. Bartlelt, 2 Or. Ch. 9. The expres- 
 
 for such injunction, or unless said ap- sion, " proceedings at law in a per- 
 
 plicant shall give such security, by sonal action after verdict or judg- 
 
 tond, as the Chancellor shall deem ment," means proceedings at law by 
 
 good, to the party or parties at law execution, or suit at law within the 
 
 against whom such injunction is state, upon the judgment. C.&F.Co. 
 
 prayed, in double the amount then v. TO««, 11 0. ^. Or. 94. 
 due on such verdict or judgment, and 
 
304 
 
 FORMS OF PLBADINGS. 
 
 against the said , on the (date,) for the sum of 
 
 dollars damages and costs : " Now, therefore, &c,, {continue a^ 
 in last form to X, then, "abide such order or decree as the Chan- 
 cellor shall make in the premises," or, if the bill be dismissed^ 
 " shall and do, well and truly, pay to the said , his exec- 
 
 utors, administrators or assigns, on demand, the said sum of 
 dollars recovered by the said judgment, and costs, with 
 the interest thereon,") then the above obligation, &c., {as before.} 
 
 Notice of motion to dissolve or modify injunc' 
 
 tion.(a) 
 
 {Title of oause.) 
 
 As on page 148 to *, then, "for an order that the injunction 
 heretofore issued in this cause be dissolved, {or, ' be modified so 
 as to permit the defendants,' &c.,) with costs, and for such other 
 or further relief as may be just." 
 
 (a) No motion to dissolve an in- 
 junction before answer shall be enter- 
 tained, except on the ground of want 
 of equity in the bill, unless the de- 
 fendant shall show good cause why an 
 answer has not been put in ; and 
 where no answer has been put In, and 
 the Chancellor shall allow the motion 
 to be heard on affidavits on the part of 
 the defendant, the adverse party shall 
 be permitted to rebut them by couuter- 
 affidavite; but such affidavits, on 
 both sides, shall be taken on two 
 days' notice. Rule 123. No motion 
 to dissolve an injunction which has 
 been regularly obtained, -shall be 
 heard until ten days after the answer 
 is filed, if the party rely in any man- 
 ner on his answer for the dissolution. 
 Rev,, "Chancery," ? 85. Where a 
 motion is made to dissolve an injunc- 
 tion upon the answer, the defendant 
 shall rely on his answer, and on the 
 affidavits annexed thereto, in reply to 
 affidavits annexed to the bill ; and no 
 affidavits, except^those annexed to the 
 
 bill, shall be read on such motion on 
 behalf of the complainant, except in 
 reply to new matters set up in the 
 answer, and upon which the defendant 
 shall in any manner rely for a dissolu- 
 tion of the injunction. Rule 124 ; see 
 Oariss v. Oarisi, 2 Beas. 320;. 
 Mulock V. Mulock, 11 G.E. Or. 461 . An 
 injunction can be removed only upon 
 notice and motion to dissolve, in ac- 
 cordance with the rule of the court, 
 Manhattan Mfg. Co. v. Van Keuretif 
 8 O. E. Or. 251. When a motion is 
 to be made to dissolve the injunction 
 for want of equity in the bill, a gen- 
 eral notice is sufficient. When the 
 motion is for any special matter not 
 touching the equity of the case, the 
 notice should set out the grounds of 
 the motion. Morris Canal Co. v. Bart- 
 lett, 2 Or. Ch. 9. On a motion to dis- 
 solve an injunction for want of equity 
 in the bill, or because the equity is- 
 answered, affidavits cannot be read in 
 opposition to it. Brown v. WinanSf 
 3 Stock. 267 ; Merwin Y.Smith, 1 Or. Ch. 
 
INJUNCTION. 
 
 305 
 
 Order dissplving injunction.(a) 
 
 {Title of caitae.) 
 This matter coming on to be heard, in the presence of 
 of counsel with the defendants, f "and after hearing 
 
 ,of 
 
 182. Bat they may be read where 
 the motion is based upou some techni- 
 cal ground merely. And where, on a 
 motion to dissolve an injunction, the 
 defendant relies upon anything except 
 a want of equity in the bill, and that 
 the equity of the bill is answered, he 
 must specify in his notice the grounds 
 upon which he rests for a dissolution. 
 Brown v. Winans, supra. 
 
 For practice where a defendant 
 moves to dissolve an injunction and 
 relies on new matter, see Sobernheimer 
 V. Wheeler, 18 Stew. Eq. 619. 
 
 The general rule is, that in order 
 to obtain the dissolution of an injunc- 
 tion, all the defendants must answer 
 the equity of the bill. But it is a 
 qualification of the rule, that it is 
 enough if those defendants answer 
 upon whom the gravamen of the 
 charge rests. Adams v. Hudson County 
 Bank, 2 Sloch. 535. If injunction is 
 irregular, defendant does not, by ap- 
 plying for time to answer, waive the 
 redress he is entitled to by means 
 of such irregularity. 2 Ves. 20. 
 Inj auction in cause abated by death 
 of either party, unless motion to 
 revive same within stated time, will 
 be dissolved. Hinde Pr. 598. 
 
 Cases of waste are an exception to 
 this rule. Affidavits are admissible 
 in support of the bill to prove acts of 
 waste. Id. The allegations will be 
 taken as true where they are not met 
 and denied by the answer ; and if the 
 answer does not fully meet the case 
 disclosed by the bill, the injunction 
 
 will be sustained. Id. The aflSdavit 
 of a third party annexed to an answer 
 cannot be read upon a motion to dis- 
 solve the injunction upon the answer, 
 where the complainant's affidavit 
 alone is annexed to the bill. Muloek 
 V. Muloek, 11 a E. Or. 463. It is 
 not necessary that affidavits annexed 
 to and filed with the answer should be 
 taken upon notice, or that copies 
 should be served on the adverse party. 
 Oariss v. Oariss, 2 Beas. 322. 
 
 (a) In general, an injunction will 
 not be dissolved unless the defend- 
 ants implicated in the charge have ' 
 answered. It is the duty of the com- 
 plainant to take the requisite steps to 
 compel an answer from all the defend- 
 ants, and if he neglects to do so, the 
 injunction may be dissolved, though 
 a, part only of the defendants have 
 answered. Sioutenburgh v. Peek, 3 
 6r. Ch. 446. The general rule is, that 
 where the equity of the bill is com- 
 pletely answered, the injunction will 
 he dissolved. Keron v. Coon, 11 C. E. 
 Or. 26. Upon a motion to dissolve an 
 injunction, the court will not under- 
 take to determine points of doubt or 
 difficulty upon which the merits of 
 the case may depend, but will leave 
 them to be determined at the final 
 hearing, when the evidence is fully 
 before the court. Huffman v. Hum- 
 mer, 2 C. E. Or. 263. Where the 
 complainant took no proceedings in 
 the suit for more than a year and four 
 months, the injunction was dissolved. 
 Hendrickson v. Norcross, 4 G. E. Or. 
 
306 FORMS OF PLEADINGS. 
 
 counsel with the complainant," ((w, " and on proof of service of 
 notice of motion, and no one appearing,") in opposition : It is, 
 on this, &c., ordered, that * the injunction heretofore issued in 
 this cause be and the same is hereby dissolved, with costs, {or 
 add, "to abide the event of this suit.") 
 
 The like, unless cause be revived.(a) As in preced- 
 ing form to *, then, " the complainant [or, ' the legal representa- 
 tives of ,' the deceased complainant^ revive this suit against 
 the legal representatives of , {the defendant^ {or, 'the 
 defendant, ,') within days after service upon them, 
 {or 'him') of a copy of this order, or that in default thereof, 
 the injunction heretofore granted in this cause be dissolved, with 
 costs." 
 
 Xotice of motion to ascertain damages occasioned 
 
 by injunction. (6) 
 
 {Title of cause.) 
 
 As on page 148 to *, then, " for a reference to ascertain the 
 damages sustained by the defendants by reason of the injunction 
 
 417 ; see Huffman v. Hummer, supra. After an injunction dissolved on 
 
 Or where an injunction has been ob- the merits, the complainant may 
 
 tained on the complainant's affidavit amend and obtain another injunction 
 
 alone and a motion is made by the on the amended bill. Buckley v. Corse, 
 
 ■defendant, upon filing his answer, to Sax. 504. 
 
 dissolve the injunction, affidavits can- (o) After injunction granted, the 
 
 not be read upon the argument of the defendant died, and the complainant 
 
 motion, either in support of the bill had not revived the suif ; it was held 
 
 or answer. Merwin v. Smith, 1 Or. that the proper mode of proceeding 
 
 Oh. 192. When an injunction has on the part of the defendant in such 
 
 been granted upon a bill filed merely case, is by order that complainant re- 
 
 for discovery, in aid of a defence at vive within a specified time after ser- 
 
 law, it will be dissolved as soon as vice of the order, or that, in default 
 
 the answer is perfected. This rule thereof, the injunction be dissolved, 
 
 does not apply where the bill is filed Oummins v. Oummins, 4 Hal. Ch. 173. 
 
 for relief and discovery incidental to (6) This application may be made by 
 
 the granting thereof. Henwood v. motion or by petition, duly verified ; 
 
 Jarvis, 12 C. E. Or. 247. whereupon, if the facts alleged be 
 
INJUNCTION. 307 
 
 heretofore granted in this suit, and for such farther or other 
 order in the premises as may be just." 
 
 Order to show cause on foregoing motion. 
 
 After formal commencement, then, " the complainant show 
 cause, &c., (as on page 289,) why the bond given by him on 
 granting the injunction in this cause should not be delivered up 
 to the defendant, to be prosecuted according to law." 
 
 Order of reference to ascertain dainages.(a) 
 
 {Title of cause.) 
 
 As inform on page 305 to f, then, "and it appearing that due 
 notice of motion has been given to the said complainant, and 
 also to his surety, on the bond hereinafter mentioned, and the 
 Chancellor having considered the matters presented on this 
 application, and being of opinion that the complainant was not 
 equitably entitled to the injunction obtained by him *, and that 
 the defendant, , is entitled to recover in this court under 
 
 the bond given on granting the injunction, any damages sus- 
 tained by him by reason of the injunction issued in this cause : It 
 is thereupon, on this, &c., ordered, that it be referred to * , 
 
 one of the Vice Chancellors, to hear this matter for the Chancellor, 
 and to ascertain and report to him whether said has sus- 
 
 tained any such damages, and the amount thereof, if any ; and 
 to advise the Chancellor what order or decree to make there- 
 upon ; " (or after * say, " , esquire, one of the special mas- 
 sufficient to justify such a course, an bond cannot be taken from the files 
 order wUl be granted for the com- of chancery, without the consent of 
 plainant to show cause why the bond all the obligees ; where there is no 
 given on granting the injunction consent, a certified copy should be de- 
 should not be prosecuted. Easton v. livered to the applicant, the clerk to 
 N. Y. & L. B. JR. JR. Co., 11 O. E. produce the original in evidence when 
 Gr. 359 ; Cook v. Chapman, 3 Stew. Eq. properly required so to do. Easton v. 
 114; see Smith v. Kuhl, 11 C. E. Or. L. B. B. R. a.. 
 
 97 1 Beck v. JHorris, May T., 1877. (a) Qreen v. Philadelphia Co., 11 C. 
 
 Where the suit on an injunction-bond E. Or. 443 ; Cook v. Chapman, 3 Stew. 
 is prosecuted in a court of law, the Eq. 114. 
 
308 FOEMS OF PLEA.DIKG8. 
 
 ters of this court, to ascertain and report whether said haa 
 
 sustained any such damages, and if so, the amount thereof; and 
 that he return with his said report all depositions and other 
 evidence taken before him in pursuance of this order.") 
 
 Order ascertaining damages on injunction, and 
 directing payment by sureties. 
 
 ( Title of cause.) 
 
 {The following order was made on a hearing before a Vice 
 Chancellor. In case an order is made on a report of a master, 
 the usual practice as to reports is observed.) 
 
 This mat'ter coming on to be heard in the presence of, &c., 
 {and stating the proceedings briefly,) and it appearing that the 
 defendant, , has sustained damage by reason of the injunc- 
 
 tion issued in this cause, to the amount of dollars : It is 
 
 on this, &c., ordered and adjudged that the said {complainant 
 and sureties, naming them,) pay to the defendant, , the 
 
 sum of , &c., for his damages as aforesaid, together with 
 
 the taxed costs of this proceeding. 
 
 And it is further ordered, that unless the said {complainant and 
 sweties) pay the said damages and the said taxed costs within 
 days after service upon them of a copy of this order and of 
 said costs, an execution issue out of this court therefor, accord- 
 ing to the practice of this court. 
 
 Order for delivery of bond for prosecution at law. 
 
 As inform on page 305 to *, then, " it is, &c., ordered, that f 
 the injunction-bond given by in this cause be delivered up 
 
 to the said defendant for prosecution at law, as he may be ad- 
 vised." {Or, if all the obligees, if there be more than one, do not 
 consent, after f, " the clerk of this court deliver to the defend- 
 ant a certified copy of said bond, and that he produce the 
 original in evidence whenever properly required so to do,") 
 
NE EXEAT. 
 
 309 
 
 NE EXEAT.(a) 
 
 Affidavit to obtain a ne exeat. 
 
 {Annex an affidavit, in substantially the following form, to the 
 hill or petition.) 
 
 State of New Jersey, \ 
 county of , J 
 
 {After the general form of verification as on page 16, ante, 
 insert as in form after * below; or, if a verification be of a peti- 
 tion after bill filed, commence as follows:) 
 
 (a) No writ of ne exeat shall be 
 granted unless satisfactory proof be 
 made to the Chancellor that the 
 defendant designs quickly to depart 
 from this state. Bev., "Chancery" 
 g 16. To entitle the complainant to 
 a writ of ne exeat, he must be in a situ- 
 ation either to swear positively that so 
 much money is actually due, or in 
 some other manner Ijo point out to the 
 court the sum to be marked on the 
 writ. jBiCo V. Oaultier, 3 Aih. 501; 
 Boehm v. Wood, Turn. & B. 332. Ex- 
 cept in the case of a suit for an account, 
 in which it will be sufficient if he can 
 .swear that to the best of his belief any 
 particular sum, at the least, would be 
 found due to him upon a balance, if 
 the account was taken. Ibid. ; Mac- 
 Donough v. Gaynor, 3 C. E. Or. 249. 
 The affidavit must be as positive as to 
 the equitable debt as an affidavit of a 
 legal debt to hold to bail. Jackson v. 
 Petrie, 10 Ves. 164. Upon a bill filed 
 for alimony only, the affidavit of the 
 wife is sufficient to support an order 
 for a ne exeat. Yule v. Yule, 2 Stock. 
 138. In such case, the affidavit should 
 £how that the defendant intends to go 
 abroad. It must be positive as to this 
 point, or as to his threats or declara- 
 tions to that effect, or facts evincing 
 
 it, or circumstances amounting to it. 
 Ibid. ; Anshutz v. Anshutz, 1 C E. Or. 
 162. It is not necessary that the affi- 
 davits should show that defendant is 
 about to depart in order to avoid the 
 jurisdiction, if his departure would 
 defeat the suit. MacDononc/k v. Oay- 
 nor, supra; Baker v. JSaily, 2 Dick. 
 632 ; see also p. 14, (».), ante. 
 
 A writ of ne exeat regno was granted 
 in England after the decree for ali- 
 mony was passed, (Shaftoe v. Shaftoe, 7 
 Ves. 172 ; Ooglar v. Coglar, 1 Ves., Jr., 
 94,) on the application of the wife, and 
 her affidavit that her husband was 
 about to leave the country to avoid 
 payment. 2 Bish. M. & D., U SOS- 
 SOS. In the United States such a 
 writ — ne exeat republica — may be 
 granted, even before the decree, any 
 time after suit has begun (Bylandt v. 
 Bylandt, 2 Hal. Ch. 28,) on the wife's 
 petition and affidavit ( Yule v. Yule, 2 
 Stock. 138,) and prior to the decree 
 for alimony. Denton v. Denton, 1 
 Johns. Ch, 364. Her single affidavit 
 is enough, but her allegation that he 
 is going to leave the state must be 
 explicit. Yule v. Yule, supra. If the 
 husband gives security, the writ will 
 be discharged. 
 
310 FOBMS OP PLEADINGS. 
 
 , the above-named complainant, says, * that , ther 
 
 above-named defendant, is justly indebted to this deponent in 
 the sum of dollars for (state cause of indebtedness), " for 
 
 the recovery of which he has lately exhibited his bill in this 
 court against the said defendant;" and that being so indebted, 
 he, the said defendant, has lately threatened and given out that he 
 will speedily leave this state and go to the Eepublic of France. 
 And this deponent verily believes, that if the said defendant 
 should be suffered to leave this state, this deponent will either 
 lose his said debt, or the same will be very much endangered, 
 and it will be difficult, if not impossible, for this deponent to 
 recover the same. {If in a divorce case the affidavit should shovr 
 that the defendant's departure will defeat the complainants claim, 
 or that the defendant is leaving the state for that purpose, or his 
 threats or declarations to that effect, or facts evincing his purpose 
 or circumstances amounting to it.) 
 
 Order for ne exeat.(a) 
 
 {!n,tle of cause.) 
 
 The complainant having filed his bill against the defendant, 
 to be relieved touching the matters therein contained, and now, 
 upon reading the affidavit of annexed to the said bill,, 
 
 whereby it satisfactorily appears that the defendant, , 
 
 designs quickly to depart from this state : It is, on this, &c., on 
 motion of , of counsel with the complainant, ordered, 
 
 that a writ of ne exeat republica be awarded against the said 
 until he shall fully answer the complainant's bill, and 
 this court shall make other order to the contrary; and the said 
 writ is to be endorsed in the sum of dollars, in words at 
 
 length, and not in figures. 
 
 Writ of ne exeat.(6) New Jersey, to wit — The State of 
 New Jersey to the sheriff of the county of — Greeting: 
 
 (a) The order for the writ states interest, having regard to the probable 
 
 the sum in which the defendant is to duration of the suit. Oiberl v. Colt, 
 
 be held to bail upon the writ, suffi- Sopk. 500 
 
 cieut to cover not only the existing (6) The writ is to be endorsed be- 
 
 debt, but a reasonable amount of future fore it issues with the title of the- 
 
NE EXEAT. 311 
 
 Whereas, it is represented to us, in our Court of Chancery, 
 before our Chancellor, on the part of , complain- 
 
 [l. S.J ant, against , defendant, that the said , 
 
 [who is greatly indebted to the said complainant,] {or 
 in a divorce case inserting the appropriate allegations,) designs 
 quickly to go into parts without the State of New Jersey, as by 
 oath, on that behalf made, appears, which tends to the great 
 prejudice and damage of the said complainant: Therefore, in 
 order to prevent this injustice, we hereby command you that 
 you do, without delay, cause the said personally to come 
 
 before you, and give sufficient bail or security in the sum of 
 dollars, lawful money of the United States, that the said 
 will not go, or attempt to go, into parts without the said 
 state, without leave of our said court; and in case the said 
 shall refuse to give such bail or security, then you are to 
 commit him, the said , to the common jail of your county, 
 
 there to be kept in safe custody until he shall do it of his own 
 accord ; and when you have taken such security, you are forth- 
 with to make and return a certificate thereof to our Chancellor, 
 in our Court of Chancery, at Trenton, distinctly and plainly 
 under your hand, together with this writ. 
 
 Witness , Chancellor of the State of New Jersey, at 
 
 Trenton aforesaid, the day of , in the year, &o. 
 
 Solicitor. 
 
 Clerk. 
 
 cause, and the words " the defendant son v. Bisby, Clarke 551. Where the 
 is to give bond in the sum of writ issues against a personal repre- 
 dollare," in words at length, being the sentative, at the instance of a person 
 amount named in the writ. Beames' claiming a share of the residue, it 
 Ne Exeat 93. This is done as a guide must be marked for the whole amount 
 to the sheriff to take suflBcient security, due from the defendant, to all inter- 
 by bail-bond, for the defendant's yield- ested in the residue, and not merely 
 ing obedience thereto. Hinde Pr. 611. for the share of the residue due com- 
 And the sheriff must take a bond in plainant. Pannell v. Taylor, Turn,. & 
 the sum directed by the court, without B. 100. Where the writ has been 
 any addition. Gibert v. Colt, svpra. endorsed for a larger sum than is 
 The endorsement will be signed by really due, the court may order that 
 theChancellor or a Vice Chancellor, if the security shall be given for so 
 practicable ; but if the writ is actually much only as is really due, without 
 marked by the clerk, it will be pre- quashing the writ, und that too on j 
 sumed to have been so done in pursu- motion to quash it. Ibid. 
 ance of the order of the court. Glea- 
 
312 FOBMS OF PLEADINGS. 
 
 Return to ne exeat where defendant has been 
 arrested and has given security.(a) I certify and return 
 that I have caused the within-named personally to come 
 
 before me, and he has found bail in the sum of dollars? 
 
 according to the command of the within writ. 
 
 {Signatwre of sheriff.) 
 
 The like, where defendant is not to be found. I 
 
 certify that the within-named is not to be found in my 
 
 county. 
 
 The like, where defendant has been arrested and 
 committed for want of bail. 1 certify that I have caused 
 the within-named personally to come before me ; and he 
 
 having refused to give the bail or security mentioned in the 
 within writ, I have his body in the common jail of the county 
 of , under my custody. 
 
 Bond to sheriflF upon a ne exeat. (6) Know all men 
 by these presents, that we , of , and and 
 
 , of , are held and firmly bound unto , 
 
 sheriff of the county of , in the sum of dollars, to 
 
 be paid to the said , sheriff as aforesaid, or his assigns. 
 
 For which payment well and truly to be made, we bind our- 
 selves, our and each of our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with our 
 seals, and dated the day of , &c. 
 
 Whereas, the above-bounden has been arrested upon a 
 
 writ of ne exeat issuing out of and under the seal of the Court of 
 Chancery of the State of New Jersey, in a certain cause therein 
 depending, wherein is complainant and is defendant, 
 
 and is now in custody of the said sheriff by virtue thereof : 
 
 Now, the condition of this obligation is such, that if the said 
 shall * not depart from or leave this state without the 
 
 (a) It seems that instead of bail, (i) If the writ be granted, the 
 
 the sheriff may take a deposit of the amount of the bond to be given, with 
 
 amount endorsed upon the writ. sureties, being freeholders, shall be 
 
 Boehm v. Wood, Turn. & It. 332, fixed by the court and endorsed on 
 
 340. the writ. Bev., "Chancery," § 16. 
 
NB EXEAT. 313 
 
 permission of the said Court of Chancery, (or use the form indi- 
 cated by rule 192,) then this obligation to be void ; otherwise, to 
 remain in full force and virtue. 
 
 Bond, under rule 192, to obtain a discharge of 
 
 ne exeat.(a) As in last form to *, then add, "cause his appear- 
 ance to be entered in the said suit, and continue such appearance 
 by a solicitor of said Court of Chancery, residing in the State of 
 New Jersey ; and shall at all times render himself amenable to 
 the orders and process of said court pending such suit, and to 
 such process as shall be issued to compel the performance of the 
 final decree therein, and shall appear before said court, or any 
 officer thereof, when so required by the order of said court, then 
 this obligation," &c., (as in last form.) 
 
 Notice of motion for discharge of ne exeat.(6) 
 
 (Title of cause.) 
 
 As on page 148 to *, then, "on the part of the defendant, 
 , that the writ of ne exeat republioa issued against him 
 
 (o) When a defendant shall be the ground of irregularity, or upon 
 
 arrested on a writ of ne exeat, the sheriff the merits, supported, if necessary, by 
 
 may, in lieu of the bond heretofore affidavits. MacDonough v. Oaynor, 
 
 used and required, take a bond in the supra ; Orant v. Chant, 3 Russ. 598, 
 
 sum endorsed on the writ, with sure- 602. And before answer. Gary v. Gary, 
 
 ties as required by law, with condi- 12 Stew. Eq. 3. But the application 
 
 tion that the defendant shall cause his must be made without unreasonable 
 
 appearance to be entered in the suit, ' delay, and before the cause is noticed 
 
 and continue such appearance by a - for final hearing. Milter v. Milter, 
 
 solicitor of this court, residing in the Sax. 386. A defendant is entitled to 
 
 state ; and shall at all times render the benefit of his sworn answer to the 
 
 himself amenable to the orders and charges of the bill upon which a ne 
 
 process of this court pending the suit, exeat issued Jewett v. Bowman, 12 
 
 and to such process as shall be issued C. E. Or. 275. A motion to discharge 
 
 to compel the performance of the final the writ was refused, on the ground of 
 
 decree therein, and will appear before insufficiency of the answer and affi- 
 
 this court, or any officer thereof, when davits. Myer v. Myer, 10 G E. Or. 
 
 so required by the order of this court. 28. Discharge was refused upon the 
 
 Rule 192. unsupported affidavits of the defend- 
 
 (6) The party may apply by motion, ant, denying affidavits as to his acts 
 
 with notice, to disharge the writ on and declarations, and of his indebted- 
 
314 
 
 FOBMS OF PLEADINGS. 
 
 pursuant to an order in this cause, dated, &c,, and the said order 
 may be discharged, with costs ; and that the bond given by the 
 said defendant to the sheriff of , pursuant to the said order 
 
 and writ, may be delivered up to be canceled. 
 
 ABATEMENT AND EEVlVOR.(a) 
 
 Order on death of a complainant that suit proceed." 
 in name of surviving complainants. 
 
 ■ {Title of cause.) 
 It appearing by affidavit, to the satisfaction of the court, that 
 , one of the complainants in the above-stated cause, has 
 
 ness to his copartner. Souaeworih' s 
 Adni'r v. Hendrickson, 12 C. E. Or. 
 60. It was directed tliat the writ 
 should be discharged, and the bond 
 given under it canceled, on the de- 
 fendant's giving bond with security, 
 in the sum for which bail was ordered, 
 conditioned to abide the decree of the 
 court. Ibid. And in cases where 
 the court feels constrained to dis- 
 charge the writ, it will often require 
 security to abide the decree. Ma£- 
 Donough v. Oaynor, vhi sup. And the 
 court will also discharge the writ, 
 upon the defendant's paying into 
 court the sum for which the writ is 
 marked. 1 Ves., Jr., 96. Where 
 sureties had been induced to sign a 
 bond substituted for a ne exeat bond 
 which was not only more stringent 
 than they supposed, but also more 
 stringent than the order or rules of 
 court required, it was held that it was 
 the province of the court to say 
 whether there had been a breach of 
 the condition, and whether the bond 
 should be prosecuted. Wauters v. Van 
 Vorst, 1 Stew. Eq. 103. Chancery has 
 
 power to determine the question of 
 liability on a ne exeat bond, and the 
 extent of liability. Ibid. 
 
 (a) The abatement of a suit in 
 equity is merely an interruption to the 
 suit, suspending its progress until new 
 parties are brought before the court. 
 Soxie V. Cat^r, 1 Sumn. 173. The abate- 
 ment of a suit in equity by the death 
 of a party, and its revival against his 
 personal representatives by a bill of 
 revivor, or by proceedings under the 
 fifth section of the act relating to the 
 abatement of suits, does not make it a 
 new suit. It is still the same suit, in 
 which both parties are entitled to the 
 benefit of all former proceedings. No 
 answer is required if the bill has 
 already been answered, unless a dis- 
 covery of assets is desired ; the depo- 
 sition of witnesses, if any have been 
 taken, may be used ; and if the cause 
 has proceeded to a final decree, it will 
 remain in force against the new party. 
 All that is opened for litigation is, 
 whether the new party brought before 
 the court has the representative char- 
 acter imputed to him. Marlatt v. 
 
ABATEMENT AND BEVIVOB. 
 
 315- 
 
 departed this life, and that the cause of action survives to the 
 surviving complainants: It is, &c., on this, &o., on motion of 
 , of counsel with the said surviving complainants, ordered, 
 that the said suit proceed against the defendants in the name of 
 the surviving complainants.(a) 
 
 Warwick, 4 C. E. Gr. 445, Depue, J. 
 The rule, irrespective of the statute, 
 is, tha( where a sole plaintiff dies 
 before decree, the suit cannot be 
 revived at the instance of the defend- 
 ant, or his legal representative. The 
 statute {"Abalement") has not altered 
 the practice, except by providing a 
 more expeditious mode of proceeding 
 by order, instead of resorting to a bill 
 of revivor. Benson v. Woolverton, 1 
 O. E. Or. 110. Where one or more 
 of the complainants or defendants 
 die, and the cause of action does not 
 survive, the suit , abates only as to the 
 person or jJersons so dying ; and the 
 surviving parties may proceed with- 
 out reviving the suit. Reo., '^Abate- 
 ment," I 4. Where there has been a 
 devise of the real estate in litigation, 
 the heirs and devisees must both be 
 made parties. Peer v. Gookerow, 1 
 McCart. 371. After decree, if the de- 
 fendant, or his representative, have an 
 interest in the further prosecution of 
 the suit, the suit may be revived 
 at his instance. Peer v. Gookerow, 2 
 Beas. 136. The order to proceed 
 without reviving, after the death 
 of a party, may be obtained on an 
 affidavit, or otherwise showing to the 
 satisfaction of the court the death 
 of the party, and that the cause of 
 action has survived. Ibid. This 
 section is intended to apply to cases 
 where, by the act of law, the cause of 
 action survives. The act is designed 
 to save the necessity of filing biUs of 
 revivor, not supplemental bills. Boss 
 V. Hfitfield, 1 Gr. Gh. 363. Where 
 
 new matter must be shown and proved, 
 a supplemental bill must be filed. Ibid. 
 Nothing in the abatement act shall 
 prevent the reviving of any suit, &c., 
 by bill of revivor, where the plaintiff,, 
 or his representative, &c., may prefer 
 that course of practice, or when the 
 court may deem it expedient to direct 
 that course of practice to be pursued. 
 Bev., "Abatement," ? 9. Where a suit 
 abates after an appeal, but before the 
 appellate court has become possessed 
 of the cause, it must be revived in the 
 court below, before any further pro- 
 ceedings can be had on the appeal ; 
 but if the appellate court has become 
 possessed of the cause, that court may 
 order the suit to stand revived in the 
 name of the representatives of the 
 deceased party. Bogers v. Paterson, 
 4 Paige 409 ; see p. 188, ante, (m.) 
 
 (a) In every suit or action in the 
 Court of Chancery, in which any bill 
 is or shall be filed, and in which there 
 are or shall be two or more plaintifis 
 or defendants, and any of them die, 
 and the cause, of action does not sur- 
 vive, but other persons shall become 
 parties in interest, in right or by the 
 death of such deceased party, such 
 suit shall, by reason of such death, be 
 abated only with respect to such de- 
 ceased party, and the surviving plain- 
 tiff or plaintiffs may proceed against 
 the surviving defendant or defendants 
 without reviving the suit against the 
 representatives of the deceased party, 
 or any other who may become inter- 
 ested by the death of such party ; 
 but in such case such representatives,. 
 
316 FORMS OF PLEADINGS. 
 
 Order on death of a defendant that suit proceed 
 against surviving defendants. 
 
 (Title of cause.) 
 It appearing, &c., that , one of the defendants, &c., has 
 
 departed this life, &c., and that the cause of action survives to 
 the complainants against the surviving defendants: It is, on 
 this, &c., ordered, &o., that this suit proceed against the surviv- 
 ing defendants. 
 
 Order reviving suit against the representative of 
 a deceased defendant.(a) 
 
 (mie of cause.) 
 It appearing, &c., , one of the defendants to this suit, 
 
 has departed this life, and that, by the death of the said , 
 
 and , the heirs-at-law of the said , deceased, 
 
 -{or as the case may be), have become interested in this suit, and 
 that the complainants choose to make them defendants hereto : 
 It is, on this, &c., on motion of , of counsel with the com- 
 
 plainants, ordered, that the said suit stand revived against said 
 heirs-at-law, and that the said and , said heirs-at- 
 
 law of the said , deceased, be made defendants thereto, in 
 
 the place and stead of the said , deceased. 
 
 -or sucli person or persons as shall direct ; and unless the representatives 
 
 become interested by the death of of such deceased party, or others who 
 
 such party, shall not be bound by may become interested by the death of 
 
 any order or decree in such cause to such party, shall, within such time 
 
 which they are not made parties. after such service as aforesaid as the 
 
 Bev., "Abatement," § 5. court shall limit and appoint, appear 
 
 (a) If the plaintiff or plaintiffs and proceed thereon as when a suit - 
 
 •choose to make the representatives has been revived by bill, the plaintiff 
 
 of the deceased party, or others who or plaintiffs may cause their appear- 
 
 may become interested by the death ance to be entered, and in such case 
 
 of such decedent, parties to such the answer of the deceased party, if 
 
 suit, no bill of revivor or subpoena any there be, shall be deemed and 
 
 -ad revivendum shall be necessary ; but taken as and for the answer of such 
 
 the court shall and may, by rule or representatives, or other person or 
 
 order, as often as there shall be occa- persons interested by the death of 
 
 sion for it, direct the suit to stand such party. Rev., "Abatement," § 5. 
 
 revived, which rule or order shall be See, as to representation of person 
 
 served on such person or persons, having limited administration, &c., 
 
 and in such manner as the court may Pamph. L., 1890, p. 14. 
 
ABATEMENT AND REVIVOB. 317 
 
 And it is further ordered, that the said and appear 
 
 in this suit, and proceed therein according to law and the rules 
 of this court, within days after service upon them of a 
 
 copy of this order; and in case they fail so to do, that the com- 
 plainants may cause their appearance to be entered, * {if no 
 answer \had been put in by deceased party, and the time for 
 answering had expired in the lifetime of the deceased party, add 
 after *, "and that the bill in this cause be taken as confessed 
 against the said ; " or, if an answer had been put in by 
 
 the deceased party, and nofwther answer is required, after * add, 
 " and the answer of the said heretofore put in, be deemed 
 
 and taken as and for the answer of the said .") 
 
 Order that suit be revived against the represen- 
 tative of deceased sole complainant.(a) 
 
 (Title of caM«e.) 
 It appearing, <&c., , the complainant in this cause, 
 
 departed this life on the , &c., having first duly made 
 
 and published his last will and testament, whereby, among other 
 
 (a) In every suit or action in the the court may direct, to which amend- 
 Court of Chancery, in which any bill ment or amendments the defendant or 
 has been or shall be filed, and the defendants shall be compellable, by 
 subpoena returned served, and in rule or order of the said court, to 
 which there was, is or shall be but answer, proceed to issue snd exami- 
 one plaintiff or one defendant, and the nation of witnesses and production of 
 said plaintiff has died, or shall die, proofs, and all other proceedings shall 
 the lawful representative or represen- be had thereon as in ordinary cases, 
 tatives of such deceased plaintiff, or Sev., "Abatement," ^ 6. Where a sole 
 any other person or persons interested plaintiff or defendant dies after decree, 
 by the death of such plaintiff, shall either party may revive the suit. Ben- 
 and may, upon affidavit thereof by son v. Woolverton, 1 C E. Or. 110. On 
 him, her or them, or any other person the death of a lunatic, the office of a 
 or persons, and on motion made in guardian ceases ; his authority thence 
 court, be, by rule or order of the extends only as to the settlement of 
 court, inserted as a complainant or his account. The executor or admin- 
 complainants in the said suit, and be istrator of the lunatic will, in such 
 permitted to make such amendment in case, be substituted as complainant in 
 the bill or bills of complaint as his, the Court of Chancery, in place of the 
 her or their title or interest therein guardian. Greveling v. Karr, 2 N. J. 
 may require, and upon such terms as L. J. 119. 
 
318 FORMS OF PLEADINGS. 
 
 things, he appointed his executor, who has taken upon 
 
 himself the burthen of the execution thereof, * (or state the facta, 
 as the case may be:) It is, on this, &c., ordered, that the said 
 {the executor), be and he is hereby inserted as complainant in this 
 suit; and that the said suit stand revived and continued in the 
 name of the said , as executor of said , deceased. 
 
 And it is further ordered, that he be permitted to amend the 
 bill of complaint herein, as his interest may require. 
 
 Order by defendant on representative of sole com- 
 plainant, deceased, to revive. 
 
 Cntle of cawse.) 
 It appearing to the court that the complainant has died leav- 
 ing a last will, &c., which has been duly admitted to probate 
 and letters testamentary thereon granted to , executor in 
 
 said will named, who has taken upon himself the burthen of the 
 execution thereof, and that the said {the execfutor) has neglected to 
 have himself inserted as complainant herein : It is, &c., ordered, 
 that the aaid {the executor) cause himself to be inserted as com- 
 plainant in this suit in the place of the complainant, , 
 deceased, within days after service upon him of a copy of 
 this order, and that he be permitted to make such amendment 
 in the bill of complaint as his title or interest may require, upon 
 such terms as the court may direct; and that on his failure so to 
 have himself inserted as complainant as aforesaid, the bill of 
 complaint in this cause be dismissed. 
 
 Order on motion of representative of deceased co- 
 complainant to be inserted as a party.(a) 
 
 It appearing by affidavit that , one of the complainants 
 
 in this suit, has died * intestate and that has been duly 
 
 (o) Any executor or administrator either before or after decree ; provided, 
 
 appointed by letters obtained in that on making the application he 
 
 another state or territory, or in the file in the suit, in the ofiSce of the 
 
 District of Columbia, may, on his ap- clerk, an exemplified copy of the 
 
 plication, become a party complainant record of his appointment. Pamph. 
 
 in place of his testator or intestate, L., 1888, p. 473. 
 
ABATEMENT AND EEVIVOB. 319 
 
 appointed administrator of his estate, {or after *,) leaving a last 
 will and testarfleilt, whereby he appointed the executor 
 
 thereof, and that said will has been daly probated and said 
 has duly qualified as such executor : It is, on this, &c., ordered, 
 that said be inserted as a complainant herein, and that he 
 
 be permitted to make such amendment to the bill of complaint 
 as his interest may require. 
 
 Order that suit be revived against the represen- 
 tative of deceased sole defendant.(a) 
 
 {Tiile of cause.) 
 As in first form on page 316, to *, using the word "defendant" 
 instead of " complainant," then add, "and that said executor has 
 not applied to be made defendant herein in the place of said 
 testator: It is, <&c., ordered, that this suit stand revived, and 
 that (the representative) be made defendant in this suit, and that 
 he do, within days from the date of service upon him of a 
 
 copy of this order, appear and put in his answer or signify his 
 disclaimer of this suit, and the matters in controversy therein ; 
 and in default thereof, that the complainant enter his appearance 
 to this suit," * (in case the decedent party has not answered, and 
 
 (a) If in any such suit in which of such party, shall, within such time 
 
 'there was, is or shall be but one de- after service as aforesaid as the court 
 
 fendant, and the said defendant has shall limit and appoint, appear and 
 
 died, or shall die, and the plaintiff or put in their answer, or signify their 
 
 plaintiffe choose to make the repre- disclaimer of the suit, and the matters 
 
 sentative or representatives of the in controversy therein, the plaintiff or 
 
 deceased party, or others who have or plaintiffi may cause his or their ap- 
 
 may become interested by the death pearance to be entered, and in such 
 
 of such decedent, parties to such suit, case the answer of the deceased party, 
 
 no bill of revivor or subpoena ad re- if any there be, shall be deemed and 
 
 mvendum shall be necessary ; but the taken as and for the answer of such 
 
 court shall and may, by rule or order, representative or representatives, or 
 
 as often as there shall be occasion for other person or persons interested by 
 
 it, direct the suit to stand revived, the death of such party; and such 
 
 which rule or order shall be served as further proceedings may and shall be 
 
 the court may direct; and unless the had in the said suit- as are according 
 
 representative or representatives of to equity and the rules and practice of 
 
 such deceased party, or others who the said court. Bev., "Abatement," I 7. 
 may become interested by the death 
 
320 
 
 POEMS OF PLEADINGS. 
 
 the time for answering expired in the lifetime of the deceased 
 defendant, add, " and that the bill of complaint be taken as con- 
 fessed against the said , to the end that," &o., {conclude as 
 in decree pro confesso ;) or, if the deceased party has answered, 
 and no further answer is required, after * add, " and that the 
 answer of the said , now deceased, to the bill of complaint 
 herein, be deemed and taken as and for the answer of the said 
 " {the representative.) 
 
 Order that suit stand revived against the repre- 
 sentative of a deceased co-complainant.(a) 
 
 {I^tle of cause.) 
 
 It appearing, &c., that , one of the complainants, &c.^ 
 
 departed his life, &c. : It is, on this, &c., ordered, that the said 
 {representative) do, within days after service upon him of 
 
 a copy hereof, cause himself to be entered as a complainant in 
 this suit in the place of the said {deceased complainant;) and 
 
 (a) And if any plaintiff or plain- 
 tiffs, in any suit now depending or 
 hereafter to be brought, wherein the 
 cause of action does not survive as 
 aforesaid, happen to die pending such 
 suit, the lawful representative or rep- 
 resentatives of such deceased plain- 
 tiff or plaintiffs, or any other person 
 or persons interested by the death of 
 such plaintiff or plaintiffs, shall and 
 may, upon affidavit thereof by him, 
 her or them, or any other person or 
 persons, and on motion made in court, 
 be, by the rule or order of the court, 
 inserted as a complainant or com- 
 plainants in the said suit, and be per- 
 mitted to make such amendment in 
 the bill or bills of complaint as his, 
 her or their title or interest therein 
 may require, to which amendment or 
 amendments the defendant or defend- 
 ants shall be compellable, by rule or 
 order of the said court, to answer, 
 proceed to issue and examination of 
 
 witnesses and production of proofs, 
 and all other proceedings shall be had 
 thereon as in ordinary cases ; and in 
 case such person or persons shall not, 
 within such time after the death of 
 such plaintiff or plaintiffi as the court 
 shall limit and appoint, cause himself, 
 herself or themselves to be entered as 
 plaintiff or plaintiffs, in the room of 
 such deceased plaintiff or plaintiffs, 
 then, and in every such case, the sur- ' 
 viving plaintiff or plaintiiis may in- 
 sert the representative or representa- 
 tives of such deceased plaintiff or 
 plaintiffs, or other person or persons 
 interested by his, her or their death, 
 as defendant or defendants in such 
 suit, and proceed in the manner here- 
 inbefore directed in cases where the 
 lawful representative or representa- 
 tives of a deceased defendant or de- 
 fendants may be made party or parties. 
 Rev., "Abatement," J 5. 
 
ABATEMENT AND KEVIVOB. 321 
 
 that on his failure so to do, the surviving complainant insert 
 the said {representative) as a defendant ; and that this suit stand 
 revived, and that such further proceedings be had therein as are 
 according to equity and the rules and practice of this court, (a) 
 
 An order to dismiss bill on failure of representa- 
 tive of sole complainant to revive.(6) 
 
 (Title of cause.) 
 
 An order having been heretofore made in the above- entitled 
 suit, that {the executor) do, within days after service upon 
 
 him of a copy thereof, cause himself to be inserted as complain- 
 ant in this suit in the place of the complainant, , now 
 deceased, and that he be permitted to amend the bill of com- 
 plaint, &c., and it appearing to the court that the said {the exec- 
 utor) has been served with a copy of said order and that he has 
 neglected to have himself inserted as complainant, pursuant to 
 said order, within the time limited thereby, (or at any other 
 time:) It is thereupon, on this, &c., ordered, that the bill of 
 complaint in this cause be and the same is hereby dismissed. 
 
 (a) In case of the death of any sole court shall limit and appoint for that 
 
 plaintiiT, if his lawful representative purpose, then, and in every such case 
 
 or representatives, or such other per- the said suit shall be considered as at 
 
 son or persons as shall become inter- an end, and shall not be revived in 
 
 ested by his death, shall not, within the manner provided for by this act. 
 
 such time as the court may limit and jRev., "Abatement," ^ 8. Where after 
 
 appoint for that purpose, cause him- ah injunction had issued, defendant 
 
 self, herself or themselves to be entered died and complainant had not revived 
 
 as complainant or complainants in the the suit, the proper proceeding is by 
 
 said suit, in the room of such deceased order that complainant revive within 
 
 plaintifl) or in case of the death of any a specified time, or that the injunction 
 
 sole defendant, if the plaintiff or be dissolved. Cummins v. fttmmms, 
 
 plaintiffs shall not make the represen- 4 Hal. Oh. 173. 
 
 tative or representatives of the de- (5) For practice to revive a suit 
 
 ceased defendant, or others who may where an administrator having letters 
 
 have become interested by the death pendente lite or other limited adminis- 
 
 of such decedent, party or parties to tration is a party, and such administra* 
 
 such suit, and cause the said suit to tion has terminated, see Pamph. L., 
 
 stand revived within such time as the 1890, p. 14. 
 
322 FOEMS OF PLEADINGS. 
 
 PROCEEDINGS IN THE NATURE OF SCIRE 
 FACIAS. 
 
 Petition for writ of scire facias, (a) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , sole executrix of the last will and tes- 
 
 tament of , deceased, of , in the county of , 
 
 and State of New Jersey, respectfully shows, that on or about 
 the day of , in the year, &c., the said , the 
 
 late husband of your petitioner, filed his bill of complaint in 
 this honorable court against and others, to foreclose a cer- 
 
 tain mortgage made an'd executed by said to one , 
 
 and bearing date the day of , eighteen hundred and 
 
 , upon l^nds in the city of , to secure the sum of 
 
 dollars; which said mortgage was, on or about the 
 day of , eighteen hundred and , duly assigned 
 
 by the said to the said , and said assignment duly 
 
 recorded in the clerk's office of the county of , in Book 
 
 of Mortgages, page ; that thereupon such proceed- 
 
 ings were had in said suit, that on the day of , 
 
 (a) Execution may issue, without a proceeding indicated above. In all 
 
 revival of the decree, at any time cases not within the proviso of the 
 
 within twenty years from the date of one hundred and tenth section, an 
 
 such decree ; provided, the parties to original bill, in the nature of a bill of 
 
 the decree, or those of them during revivor or a supplemental bill, would 
 
 whose lives execution may now issue be the appropriate proceeding. 2 
 
 without a revival, be then living. If Dan. Ch. Pr. 1545 ; Peer v. Oookerow, 
 
 more than six years have elapsed 2 Beas, 136 ; Lyons v. Van Riper, 11 
 
 since the entering of the decree, a C E. Or. 337. Unless the suit can be 
 
 special order of the court shall be revived under rule 210. Tlie statutory 
 
 necessary before the execution issue, provisions on the subject of abatement 
 
 to be made upon ten days' notice to are confined to suits which have been 
 
 the defendant of the application abated by the death of a party, and 
 
 therefor, and proof to the satisfaction only extend to those cases where, by 
 
 of the court of the amount remaining the former practice, the proceedings 
 
 due upon the decree. Rev., " Chan- could be revived and continued by a 
 
 eery," i 110. The former practice by simple bill of revivor. Douglass v. 
 
 scire facias has been superseded by the Shennan, 2 Paige 358. 
 
SCIEB FACIAS. 323 
 
 €ighteen hundred and , a final decree was made and filed 
 
 therein; whereby it was ordered, adjudged and decreed that cer- 
 tain mortgaged premises in the bill of complaint in said cause 
 described, with the appurtenances, be sold to raise and satisfy 
 the sum of dollars due to the said , the complainant, 
 
 together with interest thereon from the day of , 
 
 eighteen hundred and , and his costs to be taxed, and that 
 
 a writ of fi&ri facias should issue for that purpose out of this 
 <!Ourt, directed to the sheriif of the county of , command- 
 
 ing him to make sale accDrding to law of the said mortgaged 
 premises. 
 
 And your petitioner further shows, that no writ of fieri facias 
 has issued out of this court in pursuance of the decree aforesaid. 
 
 And your petitioner further shows, that on or about the 
 day of , eighteen hundred and , the said 
 
 departed this life, having first made and executed his last will 
 and testament, in writing, wherein and whereby, among other 
 things, he appointed your petitioner the executrix thereof; and 
 that afterwards your petitioner duly proved said will before the 
 surrogate of the county of , as by the letters testamentary 
 
 will appear. 
 
 And your petitioner further shows, that said left him 
 
 surviving, besides your petitioner, his wife, the following-named 
 «hild, to wit, ; and that the said is an infant under 
 
 the age of twenty-one years. 
 
 And your petitioner further shows, that the said sum of 
 dollars, together with interest thereon from the day of 
 
 , eighteen hundred and , is wholly unpaid and unsat- 
 
 isfied, and your petitioner is entitled to have a writ o£ fieri facias 
 issued out of this court, pursuant to the said decree ; but your 
 petitioner is informed that, by reason of the death of the said 
 , no writ of fieri facias can be issued in his name, but 
 that said decree must first be revived in the name of his exec- 
 utor, or some order of the court made to enable her to procure 
 said writ. 
 
 Your petitioner therefore prays, that an order be made by 
 this honorable court for a writ of fieri facias to issue pursuant 
 
324 FORMS OF PLEADXJSGS. 
 
 to the said decree, or that such other order may be made in the 
 premises as to your Honor shall seem meet. 
 And your petitioner will ever pray, &c. 
 
 {Signature of solicitor.) 
 
 Affidavit of verification. 
 
 State of New Jersey, \ 
 
 county of , J 
 
 , the petitioner named in the foregoing petition, being 
 duly sworn according to law, says — that the matters and things 
 set forth in said petition, so far as relates to her acts and deeds, 
 are true, and so far as relates to the acts and deeds of others, she 
 believes them to be true ; and she further says that the state- 
 ments in said petition as to the death of said , and her 
 right to represent her estate, are true ; and that no part of the 
 moneys mentioned in the decree set forth in said petition, has 
 been paid to her since the death of her husband ; and that to 
 the best of her knowledge and belief, the said moneys have 
 never been paid either to the said , in his lifetime, or to 
 any other person or persons; and that the amount of said 
 decree is still unpaid. 
 
 Sworn, &c. 
 
 Order to show cause upon foregoing petition, (a) 
 
 {Title of cause.) 
 Upon opening the matter in this cause to the court, and it 
 appearing by the petition of filed herein, that by a certain 
 
 (ft) An order to show cause will not served on the opposite party, and the 
 
 be necessary, if the application for the parties are heard upon affidavits. The 
 
 execution be made within six years petition itself is no evidence of the 
 
 from the date of the decree ; but an facts stated in it. They must all be 
 
 order for the writ may be made upon proved aliunde. Carpenter v. Mueh- 
 
 the presentation of the petition, duly more, 2 McCart: 123 ; Dinsmm-e v. 
 
 verified to the satisfaction of the Weslcott, 10 G.E. Or. 305. No answer 
 
 court. See Glaflin v. Voorhees, 6 Vr. to the petition is required. See Crane 
 
 484 ; Pears v. B'ache, Coxe 206. When v. Brigham, 3 Slock. 29. 
 a petition is presented, and an adverse Affidavits and petitions duly sworn 
 
 party has a right to be heard in oppo- to on which orders to show cause may 
 
 sition, the usual proceeding is to take be granted, if served as affidavits, may 
 
 an order fixing a day for the hearing. be used on the hearing of the order to 
 
 Copies of the petition and order are show cause. Rule 138. 
 
SCIEB FACIAS. 325 
 
 final decree made in this cause, it was ordered, adjudged and 
 decreed, that so much of certain mortgaged premises mentioned 
 in the bill of complaint as should be necessary for the purpose, 
 should be sold, to pay the above-named complainant the debt, 
 interest and costs mentioned in said decree, and that a writ 
 o( fieri facias should issue to the sheriff of the county of , 
 
 commanding him to make sale of the said mortgaged premises 
 for that purpose. 
 
 And it further appearing that no writ o{ fieri facias has been 
 issued, pursuant to the said decree, it is thereupon, on this, &c., 
 on motion of , of counsel with the complainant, ordered, 
 
 that the said defendants show cause on , the day of 
 
 next, at, &c., why a writ of fieri facias should not issue 
 upon the said decree, pursuant to the statute in such case made 
 and provided. 
 
 Order for execution to issue.(a) 
 
 {litle of cause.) 
 
 Upon opening the matter to the court by , solicitor for 
 
 and of counsel with the complainant, and it appearing that the 
 order to show cause heretofore granted in the petition of said 
 complainant has been duly served upon the said defendant, pur- 
 suant to said order, and no cause being shown or appearing to 
 the contrary : It is, on this day of , in the year, 
 
 <&c., ordered, adjudged and decreed, that a writ of fieri facias do 
 issue, directed to the sheriff of the said county of , com- 
 
 manding him to make sale of so much of the mortgaged prem- 
 ises mentioned in the final decree in this cause, as will be sufiicient 
 to satisfy the debt, interest and costs of the said complainant in 
 the said decree mentioned, according to the force, form and effect 
 of the said decree and of the statute in such case made and pro- 
 vided, and also the costs thereof. 
 
 (a) The execution is in the same v. Wood, Coxe 118), and may be 
 
 form as that on an original decree. A amended. Condit v. Gregory, 1 Zab. 
 
 scire facias may issue where an execu- 429. 
 tion has been partly satisfied, (Stelle 
 
326 
 
 FOKMS OF PLEADINGS. 
 
 OF THE DIFFERENT KINDS OF BILLS AND 
 PROCEEDINGS THEREON. 
 
 A short form of foreclosure bill.(a) 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Your orator, , of the township of , in the county 
 
 of , and State of New Jersey, complaining, shows : 
 
 (a) The object of a bill of fore- 
 closure is to enable the mortgagee to 
 have the mortgaged premises sold in 
 order to get his mortgage money and 
 interest, or that the mortgagor may 
 redeem it without delay, and in de- 
 fault thereof, that the mortgagor and 
 all persons claiming under him, or to 
 claim from or under him, be forever 
 barred of and from all equity of 
 redemption in the mortgaged prem- 
 ises. Blake Oh. Pr. 56. It is pro- 
 vided by statute that when a bill 
 shall be filed for the foreclosure or 
 satisfaction of any mortgage, it shall 
 be lawful for the Court of Chancery 
 to decree a ' sale of the mortgaged 
 premises, or such part thereof as shall 
 be sufficient to discharge the said 
 mortgage or encumbrances thereon, 
 besides costs; the sale to be made 
 either by one of the masters of the 
 court, or by the sheriff of the county 
 where the premises are situate Rev., 
 " Chancery," § 71. The first business 
 of the solicitor, when a bond and 
 mortgage are placed in his hands for 
 collection, is to ascertain, by searches 
 in the proper offices, whether the 
 mortgaged premises remain the prop- 
 erty of the mortgagor, and if not, to 
 ascertain who have successively be- 
 come the owners thereof, and whether, 
 by their deeds, any of the grantors 
 have assumed payment of the mort- 
 gage ; and also whether the mortgagor 
 
 or his grantee, or any prior or inter- 
 mediate owner, has given any mort- 
 gage on the same property, and if any, 
 whether they remain uncanceled of 
 record; and also whether any judg- 
 ments or other liens have been ob- 
 tained against the mortgagor or any 
 prior owner, which operate as existing 
 liens on the property. Under some 
 circumstances, it will be prudent ta 
 ascertain whether there are any out- 
 standing claims against the property 
 for unpaid assessments and taxes j 
 also to ascertain whether the owner 
 be married or single ; if he be dead, 
 who are his heirs, and what are their 
 ages; and if he left a last will and 
 testament, what are its provisions as 
 affecting the land covered by the 
 mortgage ; he must also examine the 
 conveyances and mortgages critically,, 
 to ascertain the nature of the estates 
 conveyed thereby, so as to be able to 
 set forth with exactness the whole 
 history of the property, as far as 
 necessary, in his bill, and to bring all 
 the proper parties before the court, 
 and to state the nature of their several 
 interests. Everything, therefore, that 
 suggests itself to the solicitor in pre- 
 paring an abstract of title, whether it 
 be matter of record or not, affecting 
 the title to the property should be 
 considered in preparing a memoran- 
 dum for the purpose of drawing a bill 
 of foreclosure. 
 
FOEECLOSUEE. 327 
 
 1. That on the day of , in the year eighteen 
 hundred and , , being indebted to in the 
 sum of dollars, by his bond, dated on that day, became 
 bound to said in the sum of dollars, to be paid to 
 him, his executors, administrators or assigns, with a condition 
 thereunder written, that if the said should, in 
 
 years from the date thereof, pay to the said , his executors, 
 
 administrators or assigns, said sum of dollars, with interest 
 
 at the rate of per cent, per annum, payable half yearly, 
 
 then that bond should be void. 
 
 2. That in said bond it was declared to be agreed between the 
 parties thereto, that if said interest, or any part thereof, should 
 not be paid within thirty days after the same should become 
 due, then the whole of the principal sum mentioned in the con- 
 dition should be immediately due, at the option of said , 
 his executors, administrators and assigns. 
 
 3. That to secure the payment of said dollars, with 
 interest, the said , and , his wife, by a deed of 
 mortgage bearing date on the same day as said bond, conveyed 
 to said , and his heirs and assigns forever, in fee simple, 
 that tract or parcel of land {here insert description, &g.) 
 
 4. That said mortgage contained a proviso that it should be 
 void upon payment of said sum of dollars, with interest 
 according to the condition of said bond. 
 
 5. That said mortgage contained an agreement of the same 
 effect as that in said bond above set forth in paragraph 2, that 
 the whole of the principal should become due if any part of the 
 interest due remained unpaid for thirty days. 
 
 It is lawful for the clerk to tax, as provided also, that the master to 
 
 a part of the taxable costs, the ex- whom it shall be referred to ascertain 
 
 penses paid or incurred by the com- the amount due upon the mortgage 
 
 plainant in obtaining certificates of shall, in his report, also certify that, 
 
 search in any of the courts or public in his opinion, such certificates of 
 
 offices of the state against or in rela- search were necessary for the proper 
 
 tion to the title of the mortgaged foreclosure of the mortgage. Rev., 
 
 premises; provided, the person mak- "Chancery," § 79, p. 1274; amended 
 
 ing the search shall certify on the by ? 121, p. 127. 
 same the amount of such expenses; 
 
328 FORMS OP PLEADINGS. 
 
 6. That said mortgage was, on the day of , 
 eighteen hundred and , duly recorded (or " registered ") 
 in the office of the clerk (or " register ") of the county of , 
 in Book of Mortgages, page , the execution of the 
 same having been first duly acknowledged, and such acknowledg- 
 ment certified thereon, as required by law. 
 
 7. That the said , on the • day of , eighteen 
 hundred and , by writing, under his hand and seal, dated 
 on that day, assigned said bond and mortgage to , who 
 afterwards, on the day of , eighteen hundred and 
 
 , by writing, under his hand and seal, dated on that day, 
 assigned the same to your orator. 
 
 8. That said bond and mortgage and said two assignments, 
 to which your orator refers for certainty, are in his possession, 
 ready to be produced and proved. 
 
 9. That the said , on the day of , eighteen 
 hundred and , mortgaged said lands to to secure 
 the payment of dollars, with interest, which mortgage 
 was, on the day of , eighteen hundred and , 
 recorded in said clerk's (or "register's") office, in Book , 
 page 
 
 10. That the said , on the day of , eighteen 
 hundred and , mortgaged said lands to , to secure 
 the payment of dollars, with interest, which mortgage was, 
 on the day of the date thereof, registered in said clerk's (or 
 "register's") office, in Book of Mortgages, page 
 
 11. That on the day of , eighteen hundred and 
 
 , recovered a judgment in the Supreme Court of 
 
 this state against said , for dollars. 
 
 12. That on the day of , eighteen hundred and 
 
 , recovered a judgment against in 
 
 County Circuit Court, for dollars. 
 
 13. That said two mortgages and said two judgments,. men- 
 tioned in paragraphs 9, 10, 11 and 12 are uncanceled and un- 
 satisfied of record, and are claimed to be subsisting liens on said 
 premises mortgaged to ; but your orator shows and insists 
 that they were severally executed, recorded or registered, and 
 
FOEECLOSUBE. 329 
 
 assigned subsequent to the execution and recording {or "regis- 
 try ") of said mortgage to , and the said mortgage is a 
 prior lieu on the premises therein mortgaged. 
 
 14. That said and , his wife, on the day 
 of , eighteen hundred and , by their deed dated on 
 that day, conveyed said mortgaged premises in fee to , 
 which deed was accepted by said ; and that it was stipu- 
 lated in said deed that said lands were conveyed subject to said 
 mortgage. 
 
 15. That on the day of , eighteen hundred and 
 
 , dollars, being months' interest on the prin- 
 
 cipal sum of dollars secured by said bond and mortgage 
 
 given by to , became due, and that the same has 
 
 not been paid, and has remained unpaid for more than thirty 
 days after the same became due, and your orator has elected, 
 and hereby elects, that the whole of said principal shall be due. 
 
 16. That the whole of said principal sum of dollars, 
 with interest thereon from the day of , eighteen 
 hundred and , is due and payable to your orator. 
 
 17. That said have not, nor has your orator ever had 
 possession of said mortgaged premises, or received any of the 
 rents or issues thereof. 
 
 18. That your orator has requested said and , 
 his wife, to pay him said principal and interest so due on said 
 bond and mortgage, with which request they have refused and 
 neglected to comply. 
 
 In consideration whereof, and inasmuch as your orator is 
 remediless in the premises in the courts of law, and can only 
 have adequate relief in a court of equity, and to the end — 
 
 1. That the defendants, and each of them, may answer, upon 
 their respective oaths or affirmations, according to the best of their 
 respective knowledge, information and belief, all and singular the 
 premises and each fact above stated. 
 
 2. That an account may be taken, under the direction of this 
 court, of the amount due upon your orator's said mortgage. 
 
 3. That the defendants, or some of them, may be decreed to 
 pay unto your orator the amount so found due, with interest 
 
330 FOEMS OP PLEADINGS. 
 
 thereoD, and your orator's costs in this suit, by a short day, to 
 be appointed by this court; and that in default thereof, they, 
 and each of them, do stand debarred and foreclosed of all equity 
 of redemption in said mortgaged premises. 
 
 4. That eaid premises may be sold by the order of this court, 
 and out of the proceeds of sale your orator may be paid the 
 amount so found due upon his said mortgage, with interest 
 thereon, and his costs of this suit. 
 
 And that your orator may have such further or other relief 
 as the nature of his case requires, and as may be agreeable to 
 equity. 
 
 May it please your Honor to grant unto your orator the state's 
 writ of subpcena, issuing out and under the seal of this court, to 
 be directed to the said and and , his wife, 
 
 commanding them to appear before your Honor in this court, 
 then and there to answer the premises and to stand to, abide by 
 and perform such order and decree as your Honor shall make 
 therein. 
 
 Affidavit where Christian name of married woman 
 is not known.(a) 
 
 State of New Jersey, \ 
 county of , ) 
 
 , the complainant (or, " the solicitor of the complain- 
 ant") in the above-stated cauEe, being duly sworn, &c., says — 
 
 (a) Where, in any suit, it shall be so designated in any suit, may appear 
 thought necessary or proper to make and plead, answer or demur, either by 
 any married woman a party, and it the name by which she shall have 
 shall appear by the affidavit of the been made a party, or by her own 
 complainant, or his or her solicitor. Christian name ; but if by the latter, 
 annexed to the bill of complaint and she shall also state the name by which 
 filed therewith, that, notwithstanding she was made a party. All proceed- 
 due inquiry has been made therefor, ings had or taken in any suit against 
 the Christian name of such married any married woman who shall have 
 woman cannot be ascertained, it will been made a party as aforesaid, shall 
 be lawful and sufficient to designate be as valid, binding and conclusive as 
 any such married woman by the they would have been had she been 
 name of her husband, with "Mrs." made a party by her own Christian 
 prefixed thereto. Any married woman name. Mev., " Chancery," ^ 10-12. 
 
PORECLOSUEE. 
 
 331 
 
 that the wife of , one of the defendants in said suit, is 
 
 a necessary (or "proper") party therein ; and that notwithstand- 
 ing due inquiry has been made therefor, the Christian name of 
 such married woman cannot be ascertained. (Signature.) 
 
 Sworn, &c. 
 
 Form of bill to foreclose in a complicated case.(a) 
 
 (Address.) 
 
 Complaining, show unto your Honor your orators, 
 
 , executors of the last will and testament of ^ 
 
 and 
 
 (a) Of parties complainant. In 
 determining wlio are the proper and 
 necessary parties to a bill to foreclose 
 a mortgage, two fundamental princi- 
 ples in all proceedings in equity must 
 be kept in view — first, that no one 
 shall be deprived of his rights except 
 he is before the court; and second, 
 that the rights of all persons inter- 
 ested in the object of the suit should 
 be provided for in the determination 
 of it. Jones on Mortgages, i 1367. 
 McCall V. Yard, 3 Stock. 58 ; I¥ades 
 Sav. Bank v. Freese, 11 C. E. Or. 
 453 ; Vanderveer v. Holcomb, 2 O. E. 
 Or. 87, 547 ; Gould v. Wheeler, 1 Stew. 
 Eq. 541. If the mortgagee is the 
 only party in interest, he is, of course, 
 the only complainant. If several 
 persons are made mortgagees, or are 
 entitled to the mortgage money, all of 
 them must be parties to the suit, 
 though there' are many cases in which 
 some of the persons so interested may 
 properly be made defendants. Story's- 
 Eq. PL, I 201. When a person hav- 
 ing an interest in the security is made 
 a defendant in the suit, the bill ought 
 to show his refusal to join as a com- 
 plainant. Jones on Mortgages, i 1369. 
 If a mortgagee has assigned the mort- 
 gage absolutely to a third person, the 
 mortgagee is not a necessary or proper 
 
 party to the foreclosure suit. But if 
 the assignment is not absolute, then 
 he is a necessary party. Miller v. 
 Henderson, 2 Stock. 320. An assignee 
 of a mortgage as collateral security 
 may foreclose the mortgage, but the 
 mortgagee should be joined with him 
 as complainant. In such a case hte 
 would sue in his own right and as 
 trustee for the legal owner. If the- 
 assignee refuses to foreclose and the 
 collateral character of the assignment 
 appears on the face of it, the assignor 
 may foreclose in his own name and 
 make the assignee a party defendant. 
 Jones on Mortgages, § 1375 ; Ackerson 
 V. Lodi Branch B. B. Co., 1 Stew. Eq. 
 542. A bond and mortgage may be 
 assigned by writing not under seal. 
 McKinna v. Smith, 2 Or. Ch. 14 j 
 Mulford V. Peterson, 6 Vr. 127. And 
 by mere delivery without writing. 
 Kamena v. Suelbig, 8 O. E. Or. 78 ;. 
 Williamson v. JV. J. S. B. B. Co., 1 Stew. 
 Eq. 345. It is a general rule that 
 where there is a bond and mortgage 
 the assignment of the bond operates 
 as an assignment of the mortgage. 
 Stevenson v. Black, Sax. 339. The 
 assignment of a bond and mortgage 
 duly executed is prima facie evidence 
 that the consideration was paid. 
 Dunn V. Seymour, 3 Stock. 278. A 
 
332 
 
 F0EM8 OF PLEADINGS. 
 
 late of, &c., deceased, that 
 
 late of 
 
 , in the county 
 
 and state aforesaid, deceased, being indebted to the said , 
 
 in his lifetime, in the sum of dollars, did execute and 
 
 partner who holds a mortgage as 
 security for a debt due the partnership 
 should join the other partners with 
 him as complainant in a suit to fore- 
 close it. De Orieff v. Wilson, 3 Siew. 
 Eg. 435; Noyes v. Savage, 3 Vt. 160. 
 It is a general rule that a trustee can- 
 not bring his suit in his own name 
 alone, but that the cestuis que trust 
 must be associated with him. Large 
 V, Van Doren, 1 McCart. 208; Allen 
 V. Roll, 10 0. E. Gr. 163; Tyson v. 
 Applegate, 13 Stew. Eg. 805. But the 
 ■court will, in its discretion, dispense 
 with a strict adherence to the rule 
 where by complying with it great in- 
 convenience or unnecessary expense 
 would be incurred. WUlink v. Morris 
 Canal Co., 3 Gr. Oh. 377; JV. J. 
 Franklinite Co. v. Ames, 1 Beas. 507, 
 o» appeal. It is not necessary that 
 the complainant should state upon the 
 face of his bill, in order to warrant 
 the filing of the bill in his own name, 
 that the cestuis que trust are so numer- 
 ous that they cannot, without great 
 inconvenience, be brought before the 
 court, if the character of the transac- 
 tion sufficiently appears upon the face 
 of the mortgage as disclosed in the 
 bill. Ibid. Upon the death of the 
 mortgagee the right of action^ upon 
 the mortgage securities is in his 
 executor or administrator, and not in 
 the heir of the mortgagee nor in his 
 devisee or legatee. Kinna v. Smith, 
 2 Gr. Oh. 14. If there are conflicting 
 claims to the mortgage money be- 
 tween the surviving mortgagee and 
 the executor of his co-mortgagee, the 
 surviving mortgagee may file a bill to 
 foreclose in his own name, and make 
 the executor of the deceased mort- 
 
 gagee a defendant. Freeman v. Sco^ 
 field, 1 0. E. Gr. 28. If there be 
 more than one executor, only those 
 who have proved the will must be 
 parties. An executor who has re- 
 nounced need not be joined as co- 
 plaintiff. Minehart v. Rinehart, 2 
 MeOart. 44. Any executor or admin- 
 istrator, by virtue of letters ob'ained 
 in another state, may prosecute any 
 action or sue out execution upon any 
 judgment or decree in any court of 
 this state, as if his letters had been 
 granted in this state, provided he 
 shall first file in the office of the clerk 
 an exemplified copy of his letters. 
 Pamph. L., 1887, p. 154. A foreign 
 executor or administrator may be- 
 come a party complainant upon his 
 application and upon filing in the 
 suit an exemplified copy of the record 
 of his appointment. Pamph. L., 
 1888, p. 473. Security for costs may 
 be required in such cases. 
 
 It has been held that an objection 
 that the foreign executor or adminis- 
 trator has no standing in court to 
 enforce the mortgage, must be made 
 by demurrer or answer, or it will be 
 deemed to have been waived. McBride 
 V. Farmers' Bank, 2 N. Y. 457 ; and see 
 pages 5 and 6, ante, [note c.) A mort- 
 gage executed to persons in an official 
 capacity may be foreclosed by their 
 successors in office in their own names, 
 as equitable assignees of the security. 
 Iglehart v. Bierce, 86 III. 133. A mar- 
 ried woman owning a mortgage as her 
 separate property cannot join her hus- 
 band as a co-complainant to foreclose 
 it. Paidison v. Van Idersiine, 1 Stew. 
 Eg. 301 ; see Johnson v Vail, 1 McOart. 
 423 ; Shockley v. Shoekley, 20 Ind. 108 ; 
 
POEECL08UEE. 333 
 
 deliver unto the said his certain bond or writing obligatory, 
 
 bearing date the day of , eighteen hundred and , 
 
 in the penal sum of dollars, lawful money of the United 
 
 States, conditioned for the payment by the said , his 
 
 heirs, executors, or administrators, or any of them, to the said 
 ,-his certain attorney, executors, administrators or assigns 
 of the just and full sum of dollars as aforesaid, on or 
 
 before the day of then next ensuing the date thereof, 
 
 with lawful interest for the same, without any fraud or further 
 delay, as in and by the said bond or writing obligatory, now in 
 the custody of your orators, and ready to be produced, as this 
 honorable court shall direct, and to which, for greater certainty, 
 your orators pray leave to refer, may more fully appear. 
 
 And your orators further show, that the said being 
 
 seized in fee, or of some other good and sufficient estate or 
 inheritance of, in and to the lots or parcels of land hereinafter 
 particularly described and set forth, in order to secure the 
 payment of the said sum of dollars mentioned in the 
 
 condition of the said bond or writing obligatory, and the interest 
 that might accrue thereon to the said , his executors, 
 
 administrators and assigns, did, together with , his wife, 
 
 by a certain deed or indenture of mortgage, under their hands 
 
 Reo., "Married Women,'' § 11. On a can be effected. He is not bound to 
 bill of foreclosure, it is not necessary incur the risk- of selling the property 
 to make any encumbrancer whose without the sanction of a decree -Free- 
 equity of redemption has been fore- man v. Freeman, 2 G. E. Or. 44. A bill 
 closed, a party. Broorn v. Beers, 6 for the foreclosure of a chattel mort- 
 Oonn. 198. ■ gage should show of what the property 
 Chattel mortgages. Chattel mort- consists, the mortgagors title or claim, 
 gages are valid by the laws of New to it and that it is within the jurisdic- 
 Jersey, and the rights of mortgagees tion of the court. Chapman v. Hunt, 
 are similar to the rights of mortgagees 1 McCart. 150. To a suit to foreclose 
 of real estate, except in those respects a chattel mortgage, the mortgagor of 
 in which the title to personal property the holder of another mortgage is not 
 and real estate differs. Miller ads. a, necessary party. Gregory v. Cable, 
 Shreve, 5 thdch. 250 ; Doughten y. 11 G. E. Or. 178. And a person pur- 
 Cray, 2 Stocks 323. A mortgagee of chasing the property pendente lite is 
 chattels has a right to come into equity treated as a purchaser with notice 
 to obtain a foreclosure of the equity of where the purchaser derives title from 
 redemption and a sale of the chattels, one of the parties litigant. AUen t. 
 and also to protect the property from Morris, 5 Vr. 159. 
 conversion or destruction until a sale 
 
334 
 
 FOKMS OF PliEADINGS. 
 
 and seals duly executed, bearing date, &c., a% well in considera- 
 tion of the said debt or sum of dollars, as for the better 
 securing the payment thereof, .with the interest, unto the said 
 , his executors, administrators and assigns, in discharge 
 of the said bond and obligation above recited, did grant, bargain, 
 sell, convey and confirm unto the said , his heirs and 
 assigns, all the following described lots or parcels of land 
 situate in the township of , in the county of , 
 a;nd state aforesaid (here deseribe the premises as in mort- 
 gage).{a) Together with all and singular the buildings, &c. : 
 
 (a) Desoription of the property. 
 The bill should so describe the mort- 
 gaged property that if a sale is 
 ordered the oflBcer may know on what 
 land to execute the decree of the 
 court. It is generally suflScient, how- 
 ever, to describe the premises as they 
 appear in the mortgage itself. The 
 uncertainty of that description is no 
 ground for refusing a decree of sale, 
 though it may affect the title to the 
 premises when sold. Jones on Mort- 
 gages, ? 1462 ; see Tanmeter v. Borden, 
 10 C. E. Or. 414. Where, by mis- 
 take, a piece of land not intended to 
 be mortgaged was included in the 
 description, the mortgage may be 
 foreclosed as to the other land without 
 first reforming the deed. As a general 
 rule, a mortgage cannot be reformed 
 or corrected in a matter of substance 
 in a foreclosure suit. Oraham v. 
 Berryman, 4 G. E. Or. 29 ; French'' v. 
 Oriffin. 3 C. E. Or. 179. Under a 
 prayer for other or further relief in a 
 bill of foreclosure, a mortgage was 
 reformed by rectifying it so as to con- 
 vey a fee according to the intention of 
 the mortgagor. Coe v. N. J. Mid. 
 By. Co., 4 Stew. Eq. 105; see Fish v. 
 N. Y. Water Proof Paper Co., 2 Stew. 
 Eq. 16, 610. The defence of mistake 
 in the mortgage cannot be raised in 
 an answer. If objection is made to 
 the form in which the defence of mis- 
 
 take comes before the court, the de- 
 fendant will be required to seek relief 
 by cross-bill. Burgin v. Giberson, 11 
 C. E Or. 72. As a rule, one defend- 
 ant can have relief against another 
 only upon a cross-bill. Brinkerhoffy. 
 FranMin, 6 C. E. Or. 334; but see 
 practice under rule 212. If a mort- 
 gage is, by mistake as between mort- 
 gagor and mortgagee, so drawn as not 
 to include land which they intended 
 it should include, and the mortgage is 
 recorded as drawn, and the lands not 
 included in it are sold to a bona fide 
 purchaser, without notice of the mis- 
 take, or lands as well those included 
 as those not included in the mortgage, 
 but intended to be, are sold^ together 
 with other lands not intended to be 
 included in the mortgage, subject to 
 such mortgage, as a part of them, to a 
 bona fide purchaser, without notice of 
 a mistake, the mistake will not be 
 corrected as against such purchaser. 
 Rutgers v. Kingsland, 3 Hal. Ch. 178, 
 658. After a decree of foreclosure and 
 a sale of the mortgaged premises as 
 actually described, the mortgage can- 
 not be reformed and a sale made of an 
 additional quantity of land alleged to 
 have been omitted in the desoription 
 contained in the mortgage. Id. 658 ; 
 see Waldron v. Letson, 2 McCarl. 126 ; 
 Zingsem v. Kidd, 2 Stew. Eq. 516. 
 
FOEEOLOSUBE. 335 
 
 to have and to hold the said lots or parcels of land, heredita- 
 ments and premises therein granted, or intended so to be, with 
 the appurtenances, unto the said , his heirs and assigns 
 
 forever; provided always, and the said indenture of mortgage 
 was therein declared to be upon this express condition, that if 
 the said party of the first part to the said indenture of mortgage, 
 his heirs, executors or administrators, should well and truly pay, 
 or cause to be paid, unto the said , his certain attorney, 
 
 executors, administfators or assigns, the said sum of 
 dollars, together with lawful interest thereon, at the time and in 
 the manner mentioned in the paid condition, according to the 
 true intent and meaning thereof, then the said indenture of mort- 
 gage and the estate thereby granted should cease, determine and 
 from thenceforth be null and void. 
 
 And your orators further show, that after the execution of the 
 said indenture of mortgage, the same was, in due form of law, 
 acknowledged by the said and , his wife, on the 
 
 day of the date thereof, before , [one of the commissioners 
 
 appointed to take the acknowledgment and proofs of deeds, &c,, 
 in and for the said county of ,J and the said indenture of 
 
 mortgage was duly recorded (or " registered") in the clerk's (or 
 "register's") office of the county of , in Book of 
 
 Mortgages, page , on the day of , eighteen 
 
 hundred and , as by the certificate of the clerk (or "reg- 
 
 ister") of the said county, endorsed on the said indenture of 
 mortgage, fully appears, and to which record (or "registry") and 
 certificate thereof, so as aforesaid endorsed on the said indenture 
 of mortgage, your orators, for greater certainty, beg leave to refer, 
 if it be necessary so to do.(a) 
 
 (a) Of the frame of the bin. In of the document, omitting all parts not 
 case of a corporation complainant, an relevant to the relief sought, or the de- 
 averment of its corporate existence is fence set up ; and no pleading shall 
 unnecessary. German B,ef. Oh. v. Von repeat documents or parts of docu- 
 Pnechelstein, 12 C. E. Or. 30. No bill ments set forth in any previous plead- 
 er other pleading shall recite records, ing, but if the same are not fully or 
 deeds, or other documents in full, but accurately set forth, it may add such 
 only so much and such parts thereof parts as shall be necessary to complete 
 as may be necessary for the clear ex- or correct the same. Mule 49. No 
 hibition of the case, or the construction foreclosure bill shall set forth the 
 
336 
 
 FORMS OF PliEADINGS. 
 
 A'nd your orators further show, that on or about the 
 day of , eighteen hundred and , the said 
 
 and , his wife, executed a mortgage on the same premises 
 
 to one , to secure the sum of , or some other sum, 
 
 by virtue of which mortgage the said claims to have some 
 
 bond or mortgage at length, but only 
 those parts thereof upon which the 
 relief sought is founded, including the 
 date, names of parties, consideration, 
 words of conveyance, description of 
 premises, the words limiting the estate 
 and the condition in full ; and no costs 
 shall be taxed or allowed for any bill 
 drawn in palpable violation of this 
 rule. Buk 50. The complainant 
 must show by his bill either that he is 
 the mortgagee, or that he has legal 
 title to the security by assignment or 
 otherwise. It is not necessary to set 
 out the assignment. An allegation 
 that the complainant is assignee is 
 sufficient. Cornelius v. Halsey, 3 Slock. 
 27. The bill must also show the ma- 
 turity of the mortgage debt. Ibid. 
 When, by the terms of the mortgage, 
 it has become due by default in the 
 payment of interest, before suit com- 
 menced, it is not necessary that the 
 bill should formally allege that the 
 principal was due. An allegation that 
 no principal or interest has been paid 
 is sufficient. Bodine v. Oray, 9 C. E. 
 Or. 335. When the debt is payable 
 by installments, a suit to foreclose 
 may be brought when the first install- 
 ment falls due and is not paid. Oral- 
 tan V. Wiggins, 23 Cal. 16. In such 
 case, if it shall appear to the court 
 that a part of the mortgaged premises 
 cannot be sold without material injury 
 to the remaining part thereof, and that 
 it is just and reasonable that the whole 
 should be sold together, the court may 
 so decree. Sev., " Chancery'' § 74. 
 When the proceedings are under this 
 
 statute, the jurisdictional facts should 
 be set forih in the bill. 
 
 It was held that where the princi- 
 pal debt was due, and the mortgagee, 
 on a foreclosure for non-payment of 
 interest, purchased the premises, he 
 thereby extinguished the mortgage. 
 Molt V. Shreve, 10 C. E. Or. 438. 
 In such case the proper practice 
 would be to sell expressly subject 
 to the principal of the mortgage. 
 Where a bill to foreclose , contained 
 no allegation that the complainant's 
 mortgage was given for unpaid pur- 
 chase-money, or that subsequent mort- 
 gagees, made defendants, had notice 
 of it before the mortgage to them, and 
 the priority of the complainant's mort- 
 gage depended on these facts, and they 
 appeared clearly in proof — held, that 
 the bill was defective, and no decree 
 or relief, founded on the facts above 
 stated, could be given unless they were 
 set forth in the bill ; but that the bill 
 might be amended. Armstrong v. iJcss, 
 5 C. E. Or. 109. No positive relief is 
 ever granted a defendant, except on 
 cross-bill. Leddel's Ex'r v. iStai-r, 4 C. 
 E. Or. 159. A mortgagee having two 
 mortgages upon the same premises 
 must include both in one bill for fore- 
 closure. Costs will be allowed but in 
 one suit. If one mortgage covers only 
 a part of the premises included in the 
 other, suit should be brought in the 
 first place for the foreclosure of the 
 mortgage covering the entire premi- 
 ses, for then a second suit will be un- 
 necessary. Demareat v. Berry, 1 C. E. 
 Or. 481. 
 
FOEECLOSXTBB. 337 
 
 lien upon the said premises ; but your orators charge that the 
 last- mentioned mortgage was executed and recorded subsequent to 
 your orators' eaid mortgage, and with full notice thereof, and if 
 an encumbrance at all upon the said premises, is subsequent to 
 the mortgage of your orators. 
 
 And your orators further show, that on or about the 
 day of , eighteen hundred and , as your orators 
 
 have been informed and believe, one recovered a judgment 
 
 against the said and one , in the Supreme Court 
 
 of New Jersey, for the sum of dollars, or some other sum,, 
 
 by virtue of which judgment the said claims to have some 
 
 lien upon the said premises; but your orators charge that the- 
 said judgment was obtained subsequent to the execution of your 
 orators' said mortgage, and with full notice thereof, and if a lien 
 at all upon the said premises, is subsequent to the encumbrance 
 of your orators' said mortgage. 
 
 And youi* orators further show, that on, &c., a rule was 
 entered in the minutes of the said Supreme Court, that, it 
 appearing (upon an application made, and notice thereof given 
 to the other parties to the judgment above mentioned), that the- 
 said judgment has been paid by the said , a defendant 
 
 secondarily liable thereon, he should have the full benefit and 
 control of such judgment, for the purpose of compelling re- 
 payment from the said defendant, , who is liable to him 
 for such repayment. By reason whereof the said claims 
 to have some lien on the said mortgaged premises, but your 
 orators charge that his claim is subject to your orators' said 
 mortgage. , 
 
 And your orators further show, that afterwards, to wit, on oi; 
 about the day of , eighteen hundred and ,, 
 
 the said , {one of the heirs-at-law as aforesaid), conveyed 
 
 all his right, title and interest which he, the said had, or 
 
 claimed to have in said premises, to one , by virtue of 
 
 which conveyance the said claims to have some interest 
 
 in the said premises ; but your orators expressly charge that the 
 said conveyance was made subsequent to, and with full knowl- 
 edge of your orators' said mortgage. 
 
 w 
 
338 FORMS OF PLEADINGS. 
 
 And your orators further show, that after the execution of the 
 said bond or writing obligatory, and of the said deed or inden- 
 ture of mortgage from the said and wife to the said , 
 and before paying or in any way satisfying the same, to wit, on 
 or about the day of , eighteen hundred and , 
 the said (the purchaser) departed this life intestate, leaving 
 and , his sons and heirs-at-law ; * and that letters 
 of administration of all and singular the goods and chattels, &c., 
 which were of the said , have been duly granted by , 
 surrogate of said county of , to one , who has taken 
 upon himself the burthen thereof; (or if no Utters of adminis- 
 tration have been granted, after * add, "and that no letters of 
 administration have been granted to any one upon his estate.") 
 
 And your orators further show, that they have been informed 
 and verily believe that the said and , heirs-at-law 
 
 of the said above-mentioned, are infants under the age of 
 
 twenty-one years, to wit, that the said is "of the age of 
 
 fourteen years and upwards ; and that said is under the 
 
 age of fourteen years. 
 
 And your orators further show, that on (date) the said 
 entered into a recognizance to the State of New Jersey with 
 condition for his appearance at the Court of Quarter Sessions 
 of the Peace in and for the county of in the sum of 
 
 , by reason whereof the said the State of New Jersey 
 may have some interest in the said mortgaged premises. - 
 
 And your orators further show, that on, &c., one filed 
 
 in the office of the clerk of the county of , a lien under 
 
 the act entitled "An act to secure to mechanics and others pay- 
 ^ ment for their labor and materials in erecting any building," 
 and the supplements thereto, against the said mortgaged premises 
 and the building thereon, and about the (date) said 
 recovered judgment on said lien-claim against and , 
 
 as builder and owner respectively, in the Court, for the 
 
 sum of dollars, by reason whereof said may claim 
 
 some interest in said mortgaged premises. 
 
 And your orators further show, that afterwards, to wit, on or 
 about the day of , eighteen hundred and , the 
 
FORECLOSURE. 339 
 
 said departed this life, having first duly made, executed 
 
 and published his last will and testament, in writing, in due 
 form of law, and thereby did, among other things, appoint your 
 orators the executors thereof. 
 
 And your orators further show, that the said last will and 
 testament of the said , deceased, was afterward, to wit, 
 
 on the day of , eighteen hundred and , duly 
 
 proved by your orators, the executors therein named, before 
 , surrogate of the said county of , as by a certified 
 
 copy of the same, and probate thereof, now in the custody of 
 your orators, and ready to be produced when and where this 
 honorable court may direct, or the record thereof, now remain- 
 ing in the surrogate's office of said county of , in Book 
 of Wills, page , &c., reference being thereunto had, 
 may more fully appear. 
 
 And your orators further show, that they have taken upon 
 themselves the burthen of the administration of the estate of the 
 said , deceased, pursuant to his said last will and testament, 
 
 and that they are entitled to have and receive the moneys now 
 due and owing for principal and interest on the said bond or 
 writing obligatory, and in the proviso of redemption of the said 
 deed or indenture of mortgage mentioned. 
 
 And your orators further show, that no part of the principal 
 sum of dollars, mentioned in the condition of your orators' 
 
 said bond or writing obligatory, and in the proviso of redemp- 
 tion of their said deed or indenture of mortgage has been paid 
 by the said , in his lifetime, or by the said , his wife, 
 
 or by any other person or persons whomsoever, since his decease, 
 either to the said , in his lifetime, or to your orators, since 
 
 the decease of the said , or to any other person or persons 
 
 whomsoever for their use, and that no part of the interest money 
 due upon the said bond or writing obligatory has been paid, 
 except the sum of dollars, paid on the day of , 
 
 eighteen hundred and ; which said payment of interest 
 
 money was made to the said , in his lifetime, and was in 
 
 full of the interest money due upon the said principal sum of 
 dollars, mentioned in the condition of the said bond, and 
 in the proviso of redemption of the said deed or indenture of 
 
340 F0BM8 OF PLEADINGS. 
 
 mortgage, up to the day of , eighteen hundred and 
 
 , as by the receipt for the same, signed by said ,. 
 
 and endorsed upon the said bond and writing obligatory in the 
 custody of your orators, and ready to be produced when and 
 where this honorable court may direct, reference being thereunta 
 had, will more fully appear. 
 
 And your orators further show, that there is now due unto 
 yours orators,- as the executors of the said , deceased, the * 
 
 said principal sum of dollars, mentioned in the condition 
 
 of the said bond or writing obligatory, and in the proviso of 
 redemption in the said deed or indenture of mortgage, and 
 interest upon the said principal sum from the day of 
 
 , eighteen hundred and , and the estate of your 
 
 orators in the said mortgaged premises has become absolute;. 
 {or, if the foreclosure be for interest only, insert after *, "sum of 
 dollars, for interest on your orators' said mortgage, and 
 that the principal sum secured thereby will become due," state 
 date of maturity of mortgage; or, if the suit be for an installment 
 of the mortgage debt, after * say, " sum of dollars, part of 
 
 the principal sum secured by your orators' said mortgage," and 
 add, if the fact is so, " and that a part of the mortgaged premises 
 cannot be sold to satisfy the amount due upon your orators' 
 mortgage without material injury to the remaining part of the 
 mortgaged premises, and that it is just and reasonable that the 
 whole of the mortgaged premises should be sold together, and 
 the proceeds of said sale, or so much thereof as may be neces- 
 sary, applied to the payment of the amount due to your orators 
 as aforesaid, with their costs, and also the principal sum to be- 
 come due as aforesaid, with interest thereon.")(a) 
 
 And your orators further show, that the said , in his 
 
 lifetime, and the said {defendants,){b) or some or one of them, 
 
 (a) See Bev., " Chancery," § 74. ers or encumbrancers, or otherwise,. 
 
 (6) Of parties defendant. It is with sufiBcient particularity to show 
 suflScient for the complainant, after the nature of such defendants' inter- 
 setting out his own rights, to set forth ests or claims. Where there are in- 
 (on information and belief, if pre- fant defendants, the complainant must 
 ferred,) the interests of the defendants allege the requisite facts to show what 
 in the premises as subsequent purchas- their interests are. In respect to the 
 
F0EECL08UEE. 
 
 341 
 
 Bince the death of the said , have, at all times since the 
 
 execution and delivery of your orators' said mortgage, possessed 
 and enjoyed, and still do possess and enjoy the said mortgaged 
 
 •defendants in a foreclosure suit, they 
 are either necessary or proper parties. 
 A necessary party is one whose pres- 
 ence before the court is indispensable 
 to the rendering of a decree which shall 
 have any effect on the property ; with- 
 out whom the court might properly 
 refuse to proceed, because its decree 
 would be practically nugatory. Jones 
 on Mortgages, ^ 1394. If the owner of 
 the premises is not a party to the pro- 
 •ceedings of foreclosure, the equity of 
 redemption is not affected by the de- 
 cree. Brundred v. Walker et al,, 1 Seas. 
 140. A mortgagor who has parted 
 -with all his interest in the mortgaged 
 premises, is not a necessary party to a 
 bill of foreclosure. Chester v. King, 1 
 ■Gr, Ch. 405 ; Vredand v. Lowbai, Id. 
 104. A mortgagee who has assigned 
 his mortgage by an instrument not 
 under seal, and in whom the legal 
 title to the mortgaged premises still 
 remains, is not a necessary party to a 
 bill of foreclosure filed by the assignee. 
 Parker v. Stevens, 2 Or. Ch. 56. Upon 
 a bill for foreclosure and sale of mort- 
 gaged premises, all the subsequent en- 
 cumbrancers are necessary parties, and 
 to effectuate a complete decree, the 
 existence, validity, order of priority, 
 and amount due upon the several 
 mortgages, must be settled and de- 
 ■cided. Vanderveer v. Holcomb, 2 C. 
 E. Gr. 87 ; Iriek v. Black, 2 C. E. Gr. 
 190; Gmdd v. Wheeler, 1 Stew. Eq. 
 54:1. The first mortgagee is not a 
 proper party to a bill by a subsequent 
 mortgagee, if the sole design of the 
 bill is a foreclosure of the equity of 
 redemption. Hvdnit v. Nash, 1 C. E. 
 Gr. 550. When prior encumbrancers 
 are made parties to a bill for fore- 
 
 closure and sale of mortgaged prem- 
 ises, if the first mortgagee, defendant 
 in such bill, comes in with his mort- 
 gage, he simply assents to the relief 
 prayed for by the complainant. Ibid. 
 All parties in interest in the subject- 
 matter of a suit, and who are neces- 
 sary to the protection of other parties, 
 are necessary parties. Hicks v. Camp- 
 bell, 4 a E. Gr. 183. The rule that 
 to a bill to foreclose a mortgage made 
 to a trustee in trust, the cestui que 
 trust, as well as the trustee, should be 
 made a party, is to be observed when 
 the cestuis que trust are known, and 
 are not so numerous as to make it im- 
 possible or highly inconvenient to in- 
 clude them as parties. Tyson v. Ap- 
 plegaie, 13 Stew. Eq. 305. All persons 
 whose interests are involved in the 
 issue, and who must necessarily be 
 affected by the decree, are necessary 
 parties. Pence v. Pence, 2 Beas. 257. 
 Where it appears, at any time before 
 final decree, that a person not made 
 a party is a necessary party to the 
 suit, courts of equity will, of their 
 own motion, arrest the proceedings, 
 that such person may be made a 
 party. Van Keuren v. McLaughlin, 
 6 a E. Or. 163 ; Gould v. Wheeler, 
 1 Stew. Eq. 541. Junior encum- 
 brancers may be admitted as defend- 
 ants in a foreclosure suit, by peti- 
 tion. Leveridge v. Marsh, 3 Stew. Eq. 
 59. An objection for want of proper 
 parties, taken at the hearing, will 
 not prevail, unless such parties are 
 necessary to the final determination 
 of the cause. Van Dorem v. Robinson, 
 1 C. E. Or. 256 ; Voorhees v. Melich, 
 10 C. E. Gr. 523. A person who 
 has an interest in property which 
 
342 
 
 F0KM8 OF PLEADINGS. 
 
 premisea, and every part thereof; and have at all times received, 
 and still do receive, the rents, issues and profits thereof; and 
 that the said premises are a slender and scanty security for the 
 
 is the subject-matter of a suit, is not a 
 necessary or proper party, if his in- 
 terest cannot in any way be affected 
 by the result. Vun Keuren v. Mc- 
 Laughlin, 6 C E. Or. 163. No person 
 is a necessary party against whom the 
 complainant is entitled to no relief, 
 and as against whom, at the hearing, 
 the bill must be dismissed. Ibid. A 
 foreclosure suit is not a proper pro- 
 ceeding in which to litigate the rights 
 of a party claiming title to the mort- 
 gaged premises in hostility to the 
 mortgagor. Wilkins v. Kirkbride, 12 
 C. E. Or. 93. Eemaindermen who 
 have not joined in a mortgage in fee 
 made by a life tenant, are neither 
 necessary nor proper parties to a fore- 
 closure suit on the mortgage. Ibid. 
 Proper parties are not always neces- 
 sary parties, and where no objection 
 to want of a party as a necessary party 
 was made below, nor such want made 
 a. ground of appeal, the Court of 
 Errors and Appeals will not permit 
 such question to be raised, unless the 
 party omitted is an indispensable 
 party, and justice cannot be done 
 without him. Berryman v. Oraham, 
 6 C. E. Or. 370. A mortgagor, after 
 his equity of redemption is sold, is not 
 a necessary party to a bill for fore- 
 closure. Andrews v. Stelle, 7 G. E. 
 Or. 478. A sale of the mortgagor's 
 interest upon execution, does away 
 with the necessity of making him a 
 party as effectually as a voluntary sale 
 would. Jones on Mortgages, ^ 1405. 
 In Freeman v. Scofield, 1 C. E. Or. 28, 
 it was held that where a mortgage is 
 given or assigned for the payment of 
 a debt due to two or more jointly, on 
 a bill to foreclose, filed by the surviv- 
 
 ing obligee, the executor of a deceased 
 co-obligee need not necessarily be 
 joined as a complainant; and that 
 when there are conflicting claims be- 
 tween the parties in interest in the 
 mortgage debt, the surviving obligee 
 may file the bill in his own name, 
 and make the executor of the deceased 
 co-obligee a defendant. In Trader 
 Savings Bank v. Freese, 11 C. E. Or. 
 453, it was held that on a suit to fore- 
 close a mortgage, given to A and his 
 wife jointly, brought by the holder of 
 the mortgage under assignment from 
 A's executors, in which A's widow did 
 not join, the widow was a necessary 
 party defendant. 
 
 The owner of a mortgage, by an 
 unrecorded assignment, is bound by 
 proceedings in foreclosure of a prior 
 mortgage in this court, to which his 
 assignor was made a party defendant 
 by reason of his apparent ownership 
 of the mortgage, so far as the mort- 
 gaged premises are concerned, although 
 he was not a party to such proceed- 
 ings. Cannon v. Wright, 4 Dick. Ch. 
 Rep. 17. 
 
 Where the assignment of a judg- 
 ment constituting a lien on mortgaged 
 premises is absolute and uncondi- 
 tional, the assignor is not a necessary 
 party to a bill for foreclosure. Brum 
 V. Crane, 1 Or. Ch. 347. Husband 
 and wife gave a bond and mortgage 
 on the property of the wife to secure 
 the bond. The husband died. On a 
 bill to foreclose the mortgage, it was 
 held that neither the heirs-at-law nor 
 the personal representatives of the 
 husband were necessary parties. Sav- 
 ings Association v. Vandeoere, 3 Stock. 
 382. The assignee of a bankrupt 
 
FORECLOSTJEB. 
 
 343 
 
 payment of the principal and interest money so due, and grow- 
 ing due, to your orators. 
 
 And your orators further show, that they have frequently, 
 and in a friendly manner, applied to the said {defendants^) and 
 
 or an insolvent is a necessary party 
 to a bill affecting the property of such 
 bankrupt or insolvent, because the 
 property, by the assignment, passes 
 to, and vests in, the assignee. Willink 
 V. Morris Canal Co., 3 Or. Ch. 377 ; 
 MuL Life Ins. Co. v. Sturges, 5 Stew. 
 Eq. 684. Where the owner of the 
 equity of redemption is declared to be 
 a bankrupt pending a suit to foreclose 
 a mortgage, the assignee in bank- 
 ruptcy must be made a party before a 
 decree can be regularly taken in such 
 suit. Anon, 10 Paige 20. Where 
 the receivers were appointed after a 
 decree pro confesso had been taken 
 against the corporation, by which the 
 right of the complainant to recover 
 was established — held, that they were 
 not necessary parties, and an objec- 
 tion, made by a third party, to the 
 bill, for want of proper parties, on that 
 ground, was not sustained. Willink 
 V. Morris Canal Co., supra. If the 
 receivers should ask to be substituted 
 as defendants, with a view of setting 
 up a defence, the court would permit 
 them to do so at any stage of the pro- 
 ceedings. Ibid. If the bill is defective 
 for want of parties, the complainant 
 will be permitted to amend by adding 
 the proper parties. So leave will be 
 given at the hearing to amend, when 
 a matter has not been put in the bill 
 with sufficient precision; also to 
 amend the prayers for relief, or any 
 clerical mistake or misstatement. 
 Seymour v. Long Lock Co., 2 C. E. Or. 
 169. After general demurrer for want 
 of equity, amendments are granted 
 only where there is some defect as to 
 
 parties, or some omission or mistake 
 of a fact or circumstance connectedi 
 with the substance of the case, but not 
 forming the substance itself. Ibid. 
 Purchasers and encumbrancers who 
 have acquired their interests in the 
 equity of redemption, after the com- 
 mencenient of proceedings to fore- 
 close, need not be brought before the 
 court. If a mortgagor could, after 
 the commencement of the suit, create 
 new parties at his pleasure, by mak- 
 ing new encumbrances upon his prop- 
 erty, whose presence in court would 
 be necessary to the foreclosure of their 
 rights, there might be no end to the 
 suit. Oarth v. Ward, 2 Atk. 175. 
 Such cases are provided for by statute. 
 Sev., " Chancery," § 41. If, pending 
 the bill, the mortgagor's interest in 
 the land is sold on execution, the 
 plaintiff is not bound to amend his 
 bill so as to make the purchaser a 
 party. Bennett v. Calhoun As^n, & 
 Rich. 163. The provision of law re* 
 quiring notice of the pendency of a 
 suit in chancery to be filed in the 
 register's or clerk's office of the county, 
 does not apply to foreclosure proceed- 
 ings. Rev., "Chancery," ? 57. A 
 lunatic, having an interest in the 
 cause, must be made a party. Harri- 
 son V. Rowan, 4 Wash. C. C. 202, 207. 
 The guardian of a party defendant, 
 declared a lunatic after the bill was 
 filed, should be made a party to the 
 suit. Search v. Search, 11 C. E. Or. 
 110. A married woman is a necessary 
 party by reason of her inchoate right 
 of dower. Carter v. Lenman's Exr, 3 
 Zab. 260 ; Jones on Mortgages, §§1420, 
 
344 FORMS OF PLEADINGS. 
 
 requested them to pay to your orators the amount of principal 
 and interest moneys so remaining due to your orators on the 
 said bond or writing obligatory and indenture of mortgage so as 
 aforesaid given by the said , in his lifetime, and , 
 
 his wife, to the said , in his lifetime, or that they would 
 
 suffer your orators to enter upon the possession of the said mort- 
 gaged premises, and receive and take the rents, issues and profits 
 thereof; and that they would release to your orators all their 
 right, title and equity of redemption of, in and to the said mort- 
 gaged premises, and deliver unto your orators all deeds, evidences 
 and muniments of title relating to and concerning the same, (a) 
 
 And your orators welf hoped that the said {defendants) would 
 have complied with such reasonable requests, as in justice and 
 equity they ought to have done : 
 
 To the end, therefore, {insert interrogating part, as on page 
 10, ante;) and that they may be decreed to pay unto your 
 orators, by a short day to be appointed by this honorable court, 
 the amount found due unto your orators upon said bond and 
 mortgage, together with your orators' costs and charges in this 
 behalf expended ; and that, on failure thereof, they, and all per- 
 sons claiming or to claim by, from, through or under them, or 
 any of them, may be barred and foreclosed forever of and from 
 
 1421. A creditor, holding a judg- to be dead, and the complainant has 
 
 ment recovered prior to the mortgage, been unable to ascertain the names 
 
 is not a proper party to a suit to fore- and residences of his heirs, devisees or 
 
 •close it, unless an equity is claimed personal representatives, or that any 
 
 against him. Hendry v. Quinan, 4 person mentioned in the bill, or his 
 
 Hal. Oh. 534. The executors or ad- heirs, devisees or personal representa- 
 
 ministrators of a deceased mortgagor tives are proper parties defendant, and 
 
 are proper parties, as they have an he has been unable to ascertain 
 
 interest in the land in case a sale whether such person is still alive, or if 
 
 thereof is necessary to pay debts. he is known or believed to be dead, 
 
 If a person be properly charged in has been unable to ascertain the 
 
 the bill as executor, devisee or names and residences of his heirs, &o., 
 
 assignee, or in any other capacity, it such parties will be proceeded against 
 
 is not a good objection that he is not according to the provisions of the 
 
 so styled in the prayer for process of acts regulating such practice, to which 
 
 subpoena, White v. Davif, 3 Dick. Oh. the reader is referred as follows : 
 
 ■B«P- 22. Pamph. L., 1891, p. 96 ; Pamph. L., 
 
 (a) If any person claiming title, 1892, p. 192; PampA. i., 1893, p. 256. 
 •Ac, to the lands is known or believed 
 
FOBECLOSUEE. 
 
 345 
 
 all right, title and equity of redemption, of, in and to the said 
 mortgaged premises, and every part thereof, and may deliver 
 the possession of the said mortgaged premises, and all deeds, 
 evidences and muniments of title relating to and concerning the 
 same, unto your orators; or, if your Honor shall deem it more 
 equitable and just, that the mortgaged premises, with the appur- 
 tenances, may be sold to pay unto your orators the money so 
 due and owing to them as aforesaid, and their costs and charges ; 
 and that your orators may have such further or other relief in 
 the premises as the nature of the case may require, and as may 
 be agreeable to equity and good conscience.)(a) May it please 
 your Honor, &c., {inset prayer for suhpcena, as on page 1 2, ante.) 
 
 [Signature of solicitor and counsel.) 
 
 Answer to bill of foreclosure, setting up a ten- 
 
 der.(6) After title, as in form on page 104, ante, then, " that 
 this defendant admits, {stating briefly those allegations of the bill 
 
 (a) By carefully noticing the form 
 and order of stating the various facts 
 in the above bill, the solicitor will 
 find no difficulty in conforming it to 
 the great variety of circumstances he 
 will meet with in foreclosure ca^es. 
 
 (6) Tender. The remedy of the 
 mortgagor, where there has been a, 
 lawful tender of the amount due on 
 the mortgage, and refusal to receive 
 it, is, where a bill to foreclose the 
 mortgage has been brought, to set up 
 the tender by answer, or to file a bill 
 to redeem; in both cases the whole 
 mortgage money should be paid into 
 court. A tender of the mortgage debt 
 does not, in New Jersey, discharge 
 the lien of the mortgage. Stockton v. 
 Dundee Go., 7 C. E. Or. 56. A tender 
 of the amount of a mortgage on the 
 day on which it is due, determines 
 the estate of the mortgagee in the land, 
 although it does not satisfy or extin- 
 guish the debt. Shields v. Lozear, 5 
 Vr. 496, 530. So as to a tender after 
 
 the day, if accepted. Ibid. The 
 effect of a tender lawfully made is to 
 discharge the debtor from subsequent 
 interest and costs. But to have this 
 efiect, the amount tendered must be 
 kept in readiness, and on bill to 
 redeem or on plea or answer setting 
 up tender, the money must be paid 
 into court. Shields v. Lozear, 7 C. E. 
 Or. 447. A mere offer to pay money 
 is not a, tender. Woodruff y.Depue, 1 
 McOart. 168 ; but a refusal to accept 
 is a sufficient excuse for not making 
 an actual tender. Thome v. Mosher, 
 5 O. E. Or. 257 ; Sendee v. Howe. 6 
 Stew. Eq. 92. To make a tender 
 valid, the debt must be due at the 
 time of the tender. TiUou v. Britlon, 
 4 Hal. 120. It is provided by statute 
 that where any action shall be 
 brought on any bond for payment of 
 money secured by mortgage, or per- 
 formance of the covenants therein 
 contained, or where any action of 
 ejectment shall be brought by any 
 
346 FOEM8 OF PLEADINGS. 
 
 admitted to be true,) that the statements and allegations con- 
 tained in the said bill of complaint, that, &c., [specify them,) are, 
 and each of them is, as he believes, true." 
 
 And this defendant, further answering, admits, that the sum 
 of dollars, the interest for months on the principal 
 
 sum of dollars, mentioned in said bond, became due on 
 
 the day of , eighteen hundred and . And 
 
 he further says, that on the day of , eighteen hun- 
 
 dred and , at the residence of said complainant, in th& 
 
 township of , in the county of , and State of New 
 
 Jersey, within days after the same became due, and before 
 
 the commencement of this action, he offered to pay, and tendered 
 to said , and also to said , the said sum of 
 
 dollars, being the said interest for months on the principal 
 
 of said bond, as and for the payment of the same, and the said 
 and , each and both of them, then and there wholly 
 
 refused to receive the same. And this defendant further says, 
 that ever since said day of , the time of said offer 
 
 to pay and tender, he has at all times been ready to pay the 
 same, and is still ready so to do, and now brings the same into 
 court. 
 
 mortgagee or his heirs, executors, ad- brought into court shall be deemed 
 
 ministrators or assigns, for the recov- a, full satisfaction and discharge of 
 
 ery of the possession of any mortgaged the mortgage ; and thereupon the 
 
 land, &c., and no suit shall be then mortgagee shall be compelled to 
 
 depending in the court of equity for reconvey and surrender the premises, 
 
 or touching the foreclosing or redeem- Sev., "Mortgages,"-^ 1. This act i& 
 
 ing of such mortgaged land, &c., if the not to affect a subsequent mortgagee, 
 
 person having right to redeem such nor to extend tp cases where the 
 
 lands, &c., and who shall appear and equity of redemption is controverted, 
 
 become defendant in such action, or the money due is not adjusted, 
 
 shall, at any time pending such action. Id., § S. The first section cited above 
 
 pay to such morrgagee, or in case of was not intended to supplant bills of 
 
 his refusal, shall bring into court redemption in the court of equity, 
 
 where such action shall be depending, where the remedy is complete. Shields 
 
 all the principal moneys and -Interest v. Lozear, 5 Vr. 496, 530. Nor does 
 
 due on such mortgage, and also all it apply to a case in Tyhich the mort- 
 
 such costs as have been expended in gagor is himself the actor. Ibid.,- 
 
 any suits at law or in equity upon but see Rev. Sup., "Mortgages," ?§ 6, 7, 
 such mortgage ; the moneys so paid or 
 
F0EECLO8UEE. 347 
 
 And this defendant, further answering, says, that by reason of 
 said offer by him to pay said sum of dollars for the said 
 
 months' interest, and the tender of said sum therefor, on 
 said day of , eighteen hundred and , and 
 
 within days after the same became due, and the refusal of 
 
 said to receive the same, as above set forth, the sa,id com- 
 
 plainant was and is precluded from the exercise of any alleged 
 right to elect that the whole principal sum in said bond men- 
 tioned, shall be due ; and that said attempted election, and the 
 commencement and prosecution of this suit, is contrary to law, 
 and against equity and good conscience ; and he denies, &c., that 
 said principal sum is now due {conclude as on page 107, ante. 
 Add affidavit of verification.) 
 
 Interlocutory decree where there are non-resident 
 and also infant defendants, and the money secured 
 by the mortgage is due.(a) 
 
 {Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that process of subpoena 
 for the appearance of the defendants has been duly issued, and 
 
 (a) In all suits for the foreclosure the complainant's bill shall be ordered 
 or satisfaction of a mortgage, when the to be taken pro eonfesso against a de- 
 complainant's bill shall be ordered to fendant, where there are no infant 
 be taken as confessed, or the defend- defendants, and there shall be a refer- 
 ant shall make default at the hearing, ence to a master ordered in the cause, 
 and the whole amount of the debt in- the complainant may proceed before 
 tended to be secured by the mortgage the master, without notice thereof to 
 shall have become due, no order of such defendant, and it shall not be 
 reference to a master to ascertain and necessary, upon the coming in of the 
 report the sum due to the complainant master's report, to enter a rule to con- 
 shall be necessary, unless specially firm the same nisi, or to set the cause 
 ordered by the court ; but a report by down preparatory to further direc- 
 a master being made of the amount tions, or to a final decree against such 
 due upon the mortgage, the same, if defendant ; but the complainant shall, 
 no cause to the contrary be shown, without further notice, be entitled to 
 shall be filed of course, and without a final decree. Side 22. In a case 
 any motion or rule for that purpose or within the twenty-second rule, if ex- 
 for confirmation, and a decree made ceptions are filed to the report, the 
 accordingly. Sule2l. In cases where complainant may set the cause dowri 
 
348 
 
 FORMS OF PLEADINGS, 
 
 returned served upon , of the defendants in this 
 
 cause ; and that due notice of the order of this court, made on 
 the day of last past, directing , another of the 
 
 preparatory to further directions or to 
 a final decree ; and if the exceptions 
 be overruled, may get a final decree 
 at the term at 'which the cause is so 
 set down. Srundoge v. Ooodfellow, 4 
 Bal. Ch. 513. In suits for the satis- 
 faction of a mortgage, when an appli- 
 •catiou shall be made for the appoint- 
 ment of a guardian for an infant 
 defendant, as provided for in the 
 sixty-fourth rule, or when it shall 
 appear by aflBdavit, to the satisfaction 
 of the Chancellor, that notice cannot 
 be served, as mentioned in that rule, 
 4he Chancellor may, on the applica- 
 tion of the complainant, appoint the 
 <;lerk of the court guardian ad litem 
 for such infant, whose duty it shall be, 
 if no application shall be made, on 
 behalf of the infant, for the appoint- 
 ment .of a guardian within the time 
 allowed by law for such infant to 
 answer, plead or demur to the bill, to 
 ■enter an appearance for the infant to 
 the suit ; after whichthe complainant 
 may, if the suit is against the infant 
 alone, or the bill shall have been 
 ordered to be taken pro confesso against 
 the other defendant or defendants, 
 take an order to refer the cause to a 
 master to ascertain the truth of the 
 .allegations of the complainant's bill, 
 and to take an account of what is due 
 upon the complainant's mortgage, (if 
 anything,) and also upon any other 
 encumbrance, the amount of which it 
 may be necessary to ascertain, and if 
 more encumbrances than one, to 
 report their several priorities; and 
 the complainant and every other per- 
 son setting up an encumbrance before 
 the master, affecting the estate or 
 interest of such infant, shall prove his 
 
 demand before the master; and the 
 master may, if he thinks proper so to 
 do, examine the complainant, or other 
 person setting up such demand, on 
 oath or aflBrmation, to ascertain the 
 truth thereof, and shall report such 
 examination, (if any ) and all the 
 proofs taken before him, to the court ; 
 and shall also inquire and report 
 whether, under the circumstances of 
 the case, a sale of the whole, or a part 
 only, of the mortgaged premises is 
 necessary to be made, and any other 
 special matter which the master may 
 deem proper for the benefit of the 
 infant ; and, if no exception to said 
 master's report shall be filed within 
 four days after the filing of said 
 report, the complainant shall, without 
 further notice or setting down such 
 cause for hearing, be entitled to a final 
 decree. Bule 65. In Faiiout^s Ex'rs 
 V. Saycoch, 1 Or. Ch, 105, it was held 
 that on a bill for foreclosure, against 
 infants and others, where any of the 
 defendants have answered, an order of 
 reference to a master will not be 
 made, except by consent of such de- 
 fendants as have answered, or their 
 solicitor. And in Wright v. McKean, 
 2 Beas. 259, that in a foreclosure suit, 
 when an answer has been filed by a 
 junior encumbrancer, which neither 
 denies the amount claimed nor the 
 order of priority, an order of reference 
 cannot be made unless by consent, 
 without setting the cause down for 
 hearing. But rule 29, made in 1877, 
 provides that whenever, in a suit for 
 foreclosure of mortgage, or for parti- 
 tion, the answer or answers shall not 
 appear to set up any defence or to 
 present any question, except such as is 
 
FOKECLOSUKE. 340 
 
 defendants, to appear, plead, demur or answer the complainant's 
 bill on or before the day of then next, has been 
 
 duly published, * and also mailed to said last-mentioned defend- 
 ant in the manner and as in the said order directed and pre- 
 scribed, (or after *, " and due inquiry made for the residence of 
 said defendants in the manner prescribed by the rules of this 
 court, but that the residence or address of said last- mentioned 
 defendants cannot be ascertained.'*) And it further appearing 
 that , clerk of this court, has been appointed guardian ad 
 
 litem for the infant defendants, , and has entered an ap- 
 
 pearance for them to this suit, and the said defendants, , 
 
 have not, nor has either of them, filed any plea, demurrer or 
 answer to said bill within the time limited by law and said 
 order, but have wholly failed and neglected so to do : * It is 
 thereupon, on this day of , eighteen hundred and 
 
 , ordered, adjudged and decreed that the said bill be 
 taken as confessed against the said , and that it be referred 
 
 to , one of the masters of this court, to ascertain [the 
 
 truth of the allegations of the complainant's bill, and ascertain} 
 {jf there are no infant defendants, the words in brackets will be 
 omitted) and report the amount due to the said complainant for 
 principal and interest upon the mortgage held by upon 
 
 the premises mentioned and described in the said bill of com- 
 plaint, and also the amount due, if anything, to the said 
 and upon respective mortgage and judgment, and 
 
 the appropriate subject of a reference time to answer be signed and filed on 
 
 to a master, it shall not be necessary the same day with the signing of the 
 
 to set the cause down for hearing in decree. Emery v. Downing, 2 Seas. 
 
 order to obtain a reference, but the 59. On an application to open such 
 
 same may be granted on motion, on decree, if it appears, upon an exami- 
 
 notice to the solicitor or solicitors of nation of the answer, that it contains 
 
 the answering defendant or defend- no valid ground of defence, the decree 
 
 ants, (or to such defendant or defend- will not be opened. Ibid. 
 ants if appearing in person,) and if Usually, where an encumbrancer in 
 
 the reference be ordered, the cause his answer prays for a decree, an 
 
 may proceed under it, as provided by order of reference is made without 
 the twenty-third rule. Rule 29. A _ any other formal consent being filed, 
 
 decree pro confeaso, signed after the it being understood that the encum- 
 
 time for answering has expired, is brancer is entitled to a summons 
 
 regular, although an order for further before the master. 
 
350 
 
 POEMS OF PLEADINGS. 
 
 to report accordingly ; and also to ascertain and report the order 
 and priority of the said several mortgages and judgment re3pec- 
 tively, and whether they all embrace the same premises ; and 
 whether the said mortgaged premises sjbould be sold together or 
 in parcels, and if in parcels, in what order, [" and any other 
 special matter he may deem proper, or which shall appear for 
 the benefit of the infant defendants ; "] and that the said master 
 do make his report with all convenient speed. And all further 
 equity is reserved until the coming in of the said master's report. 
 
 Decree pro confesso and reference in a foreclosure 
 case, where the money secured by the mortgage is 
 not all due.(a) 
 
 {Title of cause.) 
 
 As in preceding form to *, then, " and that the whole money 
 intended to be secured by the mortgage in the said bill men- 
 tioned to have been made and executed by the said to the 
 
 (a) When a decree of tlie Court of 
 Chancery shall be made for the sale of 
 mortgaged premises (in cases where 
 the whole sum secured by the mort- 
 gage is not due) either for non-pay- 
 ment of any portion or installment of 
 the debt or demand intended to be 
 secured by the mortgage, or the non- 
 payment of interest due, or both, and 
 it shall appear to the court that a part 
 of the mortgaged premises cannot be 
 sold to satisfy the amount due without 
 material injury to the remaining part 
 thereof, and that it is just and rea- 
 .fionable that the whole of the mort- 
 gaged premises should be sold to- 
 gether, it shall and may be lawful for 
 the said court to decree a sale to be 
 made of the whole of the mortgaged 
 premises, and to apply the proceeds of 
 the sale of said premises, or so much 
 thereof as shall be necessary, as well 
 to the payment of the interest, install- 
 ments or portions then due, and also 
 the costs then due and payable, as to 
 
 the payment of the whole or residue 
 of the debt or demand which hath not 
 become due and payable, and the 
 residue of the proceeds of such sale to 
 be paid to the person or persons 
 entitled to receive the same, or to be 
 brought into court to abide the further 
 order of the court, a^ the equity and 
 circumstances of the case require ; 
 provided always, that when the resi- 
 due of the debt or demand intended 
 to be secured by the said mortgage, is 
 payable at a future day, without in- 
 terest, and the mortgagee is willing to 
 receive the same, the court shall 
 deduct a rebate of legal interest for 
 what the mortgagee shall receive on 
 the said debt or demand, to be com- 
 puted from the time of the actual pay- 
 ment thereof to the time such residue 
 of the debt or demand would have 
 become due and payable. Mev., 
 "Chancery,'' § 74. For proceedings 
 for default of payment of an install- 
 ment, see American Ins. Co. v. JRyer- 
 
FOBECLOSUEB. 351 
 
 complainant, is not yet payable : It is, on this day of , 
 
 &c., ordered, adjudged and decreed, that the complainant's bill 
 be taken as confessed against the said defendant, and that it be 
 referred to , one of the masters of this court, to ascertain 
 
 and report what is now due and payable to the complainant for 
 principal and interest upon his said mortgage; and also the 
 amount to grow due and payable thereon, and when payable, 
 and whether with interest or not. And in order that it may 
 appear to the court whether a part of the mortgaged premises 
 can be sold to satisfy the amount now payable to the complain- 
 ant, without material injury to the remaining part, or whether it 
 is just and reasonable that the whole of the mortgaged premises 
 should be sold together, it is further ordered and decreed that 
 the said master do examine and inquire into the nature, value 
 and situation of the mortgaged premises, and report to this court 
 whether a competent part thereof can be sold separately, without 
 material injury to the remaining part thereof, to raise and satisfy 
 the principal and interest which have become due to the com- 
 plainant on his mortgage, with his costs of'suit, or whether it is 
 just and reasonable that the whole of the mortgaged premises 
 should be sold together, and if so, that he state shortly the facts 
 and reasons upon which his opinion shall be founded ; and if 
 the master should be of opinion that only a part of the mort- 
 
 son, 2 Sal. Ch. 9. The condition obligor failed to pay his interest 
 
 under which the forfeiture is claimed within the thirty days limited by the 
 
 must be explicit. Ackens v. Winston, condition of the bond, equity will 
 
 7 C. E. Gr. 444. Equity will not relieve him from the forfeiture. Mc- 
 
 cnforce a forfeiture of the credit if the Gotten- v De Groot, 4 C E. Or. 72. A 
 
 omission to pay interest within the receipt of interest upon a, mortgage, 
 
 time specified has been occasioned by without claim of forfeiture, after the 
 
 the acts or declarations of the com- time when, by its terms, the principal 
 
 plainant. De Groot v. McCotter, 4 C became due, and endorsing the pay- 
 
 E. 6r. 531. Belief will not be ment of the interest on the mortgage, 
 
 afforded in equity, on the ground of is a waiver of the forfeiture. Sire v. 
 
 mistake, where the defendant's lia- Wightman, 10 C E. Gr. 102; see 
 
 bility is the result of pure carelessness. Martin v. Melville, 3 Stoch. 222. The 
 
 Voorhis V. Murphy 11 G. E. Or. 434 ; time specified for the payment of a 
 
 Spring v. Fisk, 6 C. E. Gr. 175. mortgage may be extended by parol. 
 
 Where; in consequence of an agree- Tompkins v. Tompkins, 6 C. E. Or. 
 
 ment by the obligee with the obligor, 338 ; Measmall v. Pearce, 4 Ail. Hep. 
 
 that the former would call at the 678 ; Van Syckel v. O'Hearn, 5 Dick. 
 
 office of the latter for the interest, the Gh. JRep. 173. 
 
352 FOBMS OF PLEADINGS. 
 
 gaged premises ought to be sold to satisfy the amount which has 
 become due to the complainant, then that he report to this court 
 what part thereof ought to be sold for that purpose, to the end 
 that such further decree may be made as the Chancellor shall think 
 equitable and just ; and that the master make his report to this 
 court with all convenient speed. And all further equity and direc- 
 tions are reserved until the coming in of the said master's report. 
 
 Master's report where there is no order of refer- 
 
 ence.(a) ^^.^^^ ^j ^^^^^ 
 
 T, , one of the masters in chancery of the State of New 
 Jersey, do hereby certify and report to his Honor the Chancellor^ 
 that I have seen and inspected the bond and mortgage (marked 
 Exhibits and ) mentioned in the bill of complaint 
 in this cause ; and that there is due to the said complainant, on 
 this day, on the bond, the payment whereof was intended to be 
 secured by the said mortgage, the sum of dollars, for 
 principal and interest, as by the schedule hereto annexed will 
 more fully appear. All which is respectfully submitted, this 
 day of , &c. (Signature of master.) 
 Schedule. 
 Bond bearing date the day of , 18 , in 
 the penal sum of $ , conditioned for the 
 payment of $ , in year , with law- 
 ful interest, secured by the mortgage in the com- 
 plainant's bill mentioned $ 
 
 Interest paid to , and endorsed upon said bond. 
 
 Interest from to 
 
 Amount due complainant this, &c $ 
 
 (a) In all suits for the foreclosure or plainant shall he necessary, unless- 
 
 satisfaction of a mortgage, when the specially made by the court ; but a 
 
 complainant's bill shall be ordered to report by a master being made of th& 
 
 be taken as confessed, or the defend- amount due upon the mortgage, the 
 
 ant shall make default at the hearing, same, if no cause to the contrary be 
 
 and the whole amount of the debt shown, shall be iiled of course, and 
 
 intended to be secured by the mort- without any motion or rule for that 
 
 gage shall have become due, no order purpose or for confirmation, and a 
 
 of reference to a master to ascertain decree made accordingly. Rvle 21. 
 and report the sum due to the com- 
 
F0BEUL08UEE. 35? 
 
 Final decree pursuant to foregoing report. 
 
 {Title of oaiiae.) 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that process of subpoena, 
 for the appearance of the defendants has been duly issued, and 
 returned served by the sheriif of the county of ; and that 
 
 the defendants have neglected to file any plea, demurrer or 
 answer to the complainant's bill within the time limited by law r 
 Whereupon, and upon reading and filing a report, made in this 
 cause by , one of the masters of this court, bearing date 
 
 the day of •, eighteen hundred and , whereby 
 
 it appears that there is due to the complainant, for principal and 
 interest on his mortgage, the sum of dollars, and no cause 
 
 being shown or appearing to the contrary : It is, on this 
 day of , eighteen hundred and , by his Honor 
 
 , Chancellor of the State of New Jersey, ordered, ad- 
 judged and decreed, that the said bill of complaint be taken as 
 confessed ; and that the said master's report, and all the matters 
 and things therein contained, do stand confirmed; and that the 
 complainant is entitled to have the said sum of dollars, 
 
 with lawful interest thereon, to be computed from the date of 
 said report, together with his costs of this suit, raised and paid 
 out of the mortgaged premises. 
 
 And it is accordingly further ordered, adjudged and decreed,, 
 that so much of the said mortgaged premises as will be sufficient 
 to raise and satisfy the said debt, interest and costs, be sold ; and 
 that a writ of fieri facias do issue for that purpose out of this 
 court, directed to the sheriff of the county of , {where the 
 
 land lies,) commanding him to make sale according to law of sa 
 much of the said mortgaged premises as will be sufficient to sat- 
 isfy the said debt, interest and costs, and that he pay the same 
 to the complainant or to his solicitor; and that in case more 
 money should be raised by the sale than shall be sufficient to 
 answer such payment, such surplus money be brought into this 
 court, and deposited with the clerk, to abide the further order 
 of this court, unless otherwise previously disposed of by order of 
 
354 
 
 FOBMS OF PLEADINGS. 
 
 the court ; and the said sheriff is to make return to this court of 
 his proceedings by virtue of the said writ. 
 
 And it is further ordered, adjudged and decreed, that the 
 defendants stand absolutely debarred and foreclosed of and from 
 all equity of redemption of, in and to so much of the said 
 mortgaged premises as shall be sold as aforesaid by virtue of this 
 decree. (For paragraph as to costs and ooimsel fees, see page 
 364.) 
 
 Master's summons on reference in foreclosure 
 
 suit.(o) 
 
 {!ntle of eosMse.) 
 
 To , one of the defendants in the above-stated cause, (or 
 
 his solicitor, as the case may be :) 
 
 Sir — By virtue of an order of reference made in the above 
 
 cause, you are hereby summoned to be and appear before me, 
 
 at my office, in , on , the day of , 
 
 eighteen hundred and , at 
 
 (a) All summonses to attend a mas- 
 ter shall be served on the solicitor of 
 the adverse party, if a solicitor be 
 concerned for him ; if no solicitor be 
 concerned for him, the service may be 
 on the party or left at his usual place 
 of residence, or if not resident in this 
 state, by setting up the same in the 
 office of the clerk in chancery. Umle 
 20. 
 
 When a matter is referred to a 
 /master of the court to examine and 
 • report upon, he shall, if notice be 
 necessary, assign a day and place 
 to hear the parties; and the party 
 •obtaining the reference, or who shall 
 be ordered to procure the master's 
 report, shall serve the adverse party, 
 at least four days exclusive before 
 the day assigned for the hearing, 
 with a summons, issued by the mas- 
 ter, requiring his attendance at such 
 time and place, and make proof 
 thereof to the master; and there- 
 upon, if the party summoned shall 
 
 o'clock in the 
 
 at 
 
 not appear, or good cause shall not 
 be shown why he does not, the mas- 
 ter may proceed ex parte; and if the 
 party serving the summons shall not 
 appear at the time and place, or show 
 cause why he does not, the master 
 may either proceed ex parte, or the 
 party obtaining the summons, and not 
 appearing, shall lose the benefit of the 
 reference, at the election of the other 
 party. Bule 43. Where encumbran- 
 ces, held by defendants, are set out in 
 a bill with sufficient particularity, 
 with their order of priority, and a de- 
 cree pro confesso has been taken, and a 
 reference made, the master, by issu- 
 ing a summons to a defendant en- 
 cumbrancer to appear before him, 
 cannot put such defendant in a posi- 
 tion to lose his rights admitted by the 
 bill, and established by the decree 
 pro confesso, by failing to attend the 
 master. Mulford v. Williams, 4 Hal. 
 Ch, 536 ; see rule 24. 
 
F0EECL08UEE. 
 
 355 
 
 "which time I shall proceed to [ascertain the truth of the allega- 
 iions of complainant's bill in said cause, and to] {the clause in 
 brackets to be inserted only in cases where there are infant defend- 
 ants,) take an account of what is due to the complainant for 
 principal and interest upon mortgage in his bill of com- 
 
 plaint mentioned, and also what is due upon the other encum- 
 brances in said bill mentioned, and the priority of said encum- 
 brances, and proceed to report upon the same, and the other 
 matters referred to me. (Signature.) 
 
 Dated ,18 . 
 
 Master's report in foreclosure where mortgage is 
 due and there are infant defendants,(a) 
 
 {Title of cause.) 
 In pursuance of an order of this court, entered in the above 
 «ause, bearing date the day of , eighteen hundred 
 
 and 
 
 I have been attended by the solicitor of the com- 
 
 (a) A court of equity will not make 
 a decree against an infant, except on 
 full proof. Walton v. Covhon, 1 Mc- 
 Lean 120. For form of order of refer- 
 ■ence, and duty of master in cases where 
 infants are parties defendant, see page 
 547, ante, {note). In cases where the 
 complainant's bill shall be ordered to 
 be taken pro confesso against a defend- 
 ant, where there are no infant defend- 
 ants, and there shall be a reference to 
 a master ordered in the cause, the 
 complainant may proceed before the 
 master without notice thereof to such 
 ■defendant, and it shall not be neces- 
 sary, upon the coming in of the mas- 
 ter's report, to enter a rule to confirm 
 the same nisi, or to set the cause" down 
 preparatory to further directions, or to 
 a final decree against such defendant ; 
 but the complainant shall, without 
 further notice, be entitled to a final 
 decree. Ride 22. Where the bill in 
 a foreclosure suit shall be ordered 
 to be taken as confessed against a 
 
 defendant, no report or decree shall be 
 made by which his rights or claims 
 are postponed to those of any other 
 defendant, unless the priority of the 
 rights or claims of such other defend- 
 ant and the facts upon which it de- 
 pends, are distinctly set forth in the 
 bill. And any controversies between 
 such defendants may be settled upon 
 application for the surplus moneys. 
 S/ide 24. In all cases where the com- 
 plainant's bill shall be taken pro eon- 
 fesso against the mortgagor, and other 
 defendants claiming to be encumbran- 
 cers file their answer or answers set- 
 ting up said encumbrances, if the 
 order of priority, shall not appear, 
 upon the face of the pleadings, to 
 be disputed by the parties, either 
 complainant or defendant, and the 
 amounts respectively claimed as due, 
 do not appear to be denied, and a 
 report be made upon an order of ref- 
 erence to a master, it shall not be 
 necessary to enter a rule nisi to con- 
 
356 
 
 FORMS OF PLEADINGS. 
 
 plainant and by the solicitor of the defendant, , (or, " the 
 
 defendant, , in person,") (no person attending for , 
 
 guardian ad litem of the infant defendants, although duly sum- 
 
 firm 6aid report, or to set the cause 
 down for hearing on the same ; but if 
 no exceptions to said report be filed 
 within four days after the filing of 
 said report, the complainant shall, 
 without further notice, be entitled to a 
 final decree. Rule 23. Orders nisi, 
 when necessary to confirm reports of 
 masters need not be served upon a 
 defendant who has been notified to 
 attend the master respecting the mat- 
 ter referred, and has refused or neg- 
 lected to attend, but shall become ab- 
 solute of course as to such defendant, 
 unless cause be shown to the contrary. 
 Hide 25. Where a defendant who was 
 entitled to notice of proceedings be- 
 fore the master, attends in pursuance 
 of such notice, a rule to confirm the 
 report of the master nisi should be 
 entered on the part of the complain- 
 ant. Brundage v. Goodfellow, 4 Hcd. 
 Ch. 513 ; Miller's Adm'x v. MiUer, 11 
 a E. Gr. 423. When, by a decretal 
 order of the court, any inquiry before 
 a master is directed to be made in a 
 cause, and the examination of wit- 
 nesses shall be necessary to obtain the 
 proper information, such examination, 
 if required by either party, shall, at 
 the expense of the party requiring it, 
 be reduced to writing by the master, 
 in the form of depositions, and returned 
 and filed with the report. Rule 44. 
 In an ordinary foreclosure case, after a 
 decree pro confesso, the mortgage itself 
 is sufficient evidence, but in other 
 cases there must be an order to take 
 proofs. Bowers v. Bowers, July, 1829. 
 In a foreclosure suit the complainant, 
 in practice, recovers installments of 
 principal as well as of interest falling 
 due after the commencement of the 
 
 suit. If the mortgage is forfeited, and 
 the complainant I is entitled to a decree 
 of foreclosure at the time of the com- 
 mencement of the suit, a decree for 
 the whole amount due upon the mort- 
 gage, whether it became due before or 
 after the commencement of the suit, is 
 strictly within the prayer for relief, 
 and such as the case stated will justify. 
 It becomes simply a question of the 
 amount due upon the mortgage at the 
 date of the master's report. Jordan v. 
 Clark, 1 a E. Gr. 247. The master's 
 authority as to the subjects and extent 
 of his examination and report is lim- 
 ited and controlled by the order of 
 reference. Gordon v. Hobart, 2 Story 
 243. Exception was allowed to the- 
 report of a master where he reported 
 a sum of money due for premiums for 
 insurance, in a case where no aver- 
 ments were made in the bill that any 
 premiums for insurance had been 
 paid by complainant, or that defend- 
 ant had failed to insure, and where 
 complainant's right to insure was not 
 put in issue by the pleadings, although 
 by a liberal construction of the order of 
 reference, it might have been deemed 
 within the cognizance of the master. 
 Stonington Bank v. Davis, 2 McOart. 30. 
 Where the master has reported the 
 amount due upon several mortgages, 
 and also their order of priority, and 
 upon exceptions to the report the 
 order of priority is changed, a final 
 decree may be taken at once, with- 
 out a reference back to the master. 
 Chance v. Teeple, 3 Gr. Ch. 173. The 
 court will not refer accounts back to 
 a master on grounds which can be 
 taken on the argument of exceptions to 
 his report. Camm: v. Francis, 3 Wash^ 
 
POBBCLOSURB. 357 
 
 moned, as by due aeknowledgment of the summons hereto 
 annexed appears,) and in the presence of the parties attending 
 me, I have considered of the matters thereby referred to me. 
 And the solicitor of the complainant produced before me the 
 mortgage in his bill mentioned, bearing date the day of 
 
 , eighteen hundred and , and made and executed 
 
 by and , his wife, to the said complainant, and 
 
 which said mortgage was duly acknowledged according to law 
 by the said and wife, and recorded as in the bill men- 
 
 tioned, as appears by endorsements thereon ; and the said com- 
 plainant's solicitor also produced to me the bond intended to be 
 secured by the said mortgage, and which was proved before me 
 by the oath of ' , one of the subscribing witnesses thereto, 
 
 as appears by his deposition accompanying this report, and 
 making part thereof; which bond and mortgage are marked 
 Exhibits and on the part of the complainant. And I 
 :find that there is due to the complainant on his said mortgage, 
 for principal and interest on this day, the sum of dollars ; 
 
 and I certify and report that the schedule hereunto annexed, 
 marked No. 1, and making part of this my report, contains a 
 statement and account of the principal and interest money due 
 to the complainant on his said mortgage ; to which, for greater 
 <!ertainty, I refer. And I further report, that the defendant, 
 
 , produced before me the mortgage in the said complain- 
 ant's bill referred to, bearing date the day of , 
 eighteen hundred and , and made and executed by the 
 said and wife to the said ; which mortgage was 
 <July acknowledged according to law, by the said and 
 wife, before , one of the masters in chancery of New 
 Jersey, and recorded (or "registered") in the clerk's (or "reg- 
 ister's ") office in the county of , on the day of , 
 
 C. C. 108. Exceptions to a master's red, are properly brought before the 
 
 report must be founded on the facts court by motion to set aside the report, 
 
 stated in the report, or in the accom- or to refer it back to be perfected, 
 
 panying documents and proof. Dexter Douglas v. Mercdes, 9 O. E. Or. 25 ; 
 
 V. Arnold, 2 Sumn. 108. Irregulari- Miller's Adm'x v. Miller, 11 C E. Or. 
 
 ties in the master's proceedings, or 423. 
 neglect to report on the matters refer- 
 
358 FOEMS OF PLEADINGS. 
 
 eighteen hundred and , as appears by endorsements- 
 
 thereon ; and the said also produced to me the bond 
 
 referred to in the last-mentioned mortgage, the payment of 
 which was intended to be secured thereby; which bond was 
 proved before me by the oath of a witness produced on the part 
 of the said , and whose deposition accompanies this 
 
 report, and makes a part thereof; which last-mentioned bond 
 and mortgage are marked Exhibits and on the part of 
 
 the defendant, . And I find that there is due to the said 
 
 on his said mortgage, for principal and interest, on this 
 day, the sum of dollars ; and I certify and report that the 
 
 schedule hereunto annexed, marked No. , and making part of 
 this report, contains a statement of the principal and interest 
 money due to the said on his said mortgage ; to which, 
 
 for greater certainty, I refer. And I further certify and report 
 that the same premises comprised in the complainant's mortgage 
 are also comprised in the mortgage of the said , (or as the 
 
 case may be,) and that the mortgage to the said complainant 
 was made and executed, and also recorded, prior to the mortgage 
 of the said , and is entitled to priority in payment (herer 
 
 state other encumbrances or liens, if any ;) and that * it is neces- 
 sary and, advisable that the whole of the mortgaged premises 
 should be sold to raise and pay the money so due to the com- 
 plainant and to the said , respectively, together with the 
 costs of this suit. {If a sale of a part of the mortgaged premises 
 will be sufficient, after * say, " under the circumstances of this 
 case, it will, in my opinion, be sufficient to sell a part of the 
 mortgaged premises to raise and pay the moneys due to the com- 
 plainant and to the said , respectively, together with the 
 costs of this suit ; and that it is for the benefit of the infant de- 
 fendant to make sale, for that purpose, of all that lot of ground,"^ 
 &c., {describing particularly the part to be sold.) And I further 
 certify, that I know of no other special matter which I deem it 
 for the benefit of the said infant defendants to report. 
 
 All which is respectfully submitted, this day of , 
 
 eighteen hundred and 
 
FORECIiOSUEE. 359 
 
 Master's report where money is not all due.(a) 
 
 {Title of cause.) 
 
 In pursuance of an order made in this cause, bearing date the 
 day of , eighteen hundred and , whereby it 
 
 was referred to the subscriber, one of the masters of the said 
 court, to ascertain and report the amount now due to the said 
 complainant on his mortgage in the bill of complaint in this 
 cause mentioned, and also the amount to grow due, and when 
 payable, and whether with interest [ or not, &c., I, , do 
 
 hereby report that I have examined the matters referred to me 
 by the said order, and that the complainant produced before me 
 the three bonds mentioned in his bill of complaint, and the 
 indenture of mortgage given to secure the same ; and that one of 
 the said bonds became due on the day of , eighteen 
 
 hundred and , and that there is due thereon, at this date^ 
 
 for principal and interest, the sum of dollars. 
 
 And I further report, that on the second bond, which became 
 due on the day of , eighteen hundred and , 
 
 there is due, at this date, for principal and interest, the sum of 
 dollars. 
 
 And I further report, that there was due on the remaining 
 
 bond, for interest, on the day of last, the sum of 
 
 dollars, and that the interest accrued on that bond from 
 
 the date last aforesaid, to this date, is the sum of dollars, 
 
 (a) Where the bond and mortgage .greater than the interest, deduct the 
 
 call for interest without naming the payment; if the payment does not 
 
 rate, the rate fixed by the law at the equal the interest, it is not to be cred- 
 
 date of the instruments will be charge- ited until, with future payments, it 
 
 able. Ackens v. Winston, 7 C. E. Or. equals or exceeds the interest due. 
 
 444 ; Bmne v. RUter, 11 C E. Or 456. Baker v. Baker, 4 Dutch. 13 ; Meredith 
 
 A decree will bear only legal interest v. Banks, 1 E[al. 408 ; Stark v. Sunton, 
 
 for the time being, although founded on 2 Or. Oh. 300. Where a creditor 
 
 a mortgage lawfully drawing a higher claims upon a bond secured by a 
 
 rate. Wilson v. Marsh, 2 Beas. 289. mortgage, the master may calculate 
 
 The true rule for calculating interest interest beyond the penalty of the 
 
 where partial payments have been bond. Clark v. Lord Abingdon, 17 
 
 made, is to cast the interest on the Ves. 106 ; Long's Adm. v. Long, 1 O. 
 
 principal to the time of the first pay- E. Or. 59, 67 ; Mower v. Kip, 6 Paige 
 
 ment, and if the payment equals or is 88. 
 
360 POEMS OF PLEADINGS. 
 
 making the total amount of principal and interest, at this date, 
 due the complainant, dollars. 
 
 And I further report, that the last-mentioned bond will 
 become due on the day of , and that there will then 
 
 be due thereon, for principal and interest, the sum of 
 dollars. All which will more fully appear by the schedule 
 hereto annexed, and making part of this report. 
 
 And I further report, that I have examined into the nature, 
 value and situation of the mortgaged premises, and that a com- 
 petent part thereof cannot be sold to raise and satisfy the 
 principal and interest which have become due the complainant 
 on his said bond and mortgage, with the costs of suit, without 
 material injury to the remaining part ; but that, under the cir- 
 cumstances of the case, it is just and reasonable that the whole 
 of the mortgaged premises should be sold ; and my reasons for 
 this opinion are founded on the affidavits of and , 
 
 two disinterested persons, which are hereto annexed. 
 
 Respectfully submitted, this day of , eighteen 
 
 hundred and 
 
 {Annex schedule showing oaloulation of interest, &e., as inform 
 <m page 352.) 
 
 Master's report for the sale of the residue of mort- 
 gaged premises, to satisfy amount becoming due 
 after former decree and sale of part. 
 
 {Title of cause.) 
 
 Whereas, by a decree mude in the above cause, on the 
 day of , eighteen hundred and , it was, among 
 
 other matters, ordered, adjudged and decreed, that the com- 
 plainant should be at liberty thereafter, from time to time, to go 
 before a master of this court, if it should be necessary, upon the 
 foot of the decree, and obtain a report as to the amount that 
 should be due and payable on his bond and mortgage therein 
 mentioned, and also as to what part of the said mortgaged prem- 
 ises it would be proper to sell to satisfy the same, with costs : 
 
 Now, therefore, I, , one of the masters of this court, 
 
 do respectfully report, that, in pursuance of said order, the 
 
P0EBCL08URB. 361 
 
 solicitor of the said complainant this day came before me, and 
 produced the said decree, and also the bond and mortgage in the 
 complainant's bill mentioned, given by , the defendant, 
 
 to the said complainant, dated the day of , eighteen 
 
 hundred and , and I have inspected the same, and find 
 
 that since the last report, in the said decree mentioned, the 
 remainder of the sum intended to be secured by the said mort- 
 gage has become due and payable, and that there is due to the 
 complainant, at this date, for principal and interest upon the 
 bond secured by the complainant's said mortgage, the sum of 
 dollars, and that the whole of the said mortgaged preni- 
 ises not heretofore sold, that is to say, (describe the premises 
 remaining imsold,) should be sold to satisfy the said debt and 
 interest. 
 
 And I further report, that the schedule hereunto annexed, 
 and making part of this report, contains a statement of the 
 principal and interest money remaining due the said on 
 
 his said mortgage, and to which, for greater certainty, I refer. 
 
 Respectfully submitted, this day of , eighteen 
 
 hundred and 
 
 (Signature.) 
 
 Final decree for sale of whole of mortgaged prem- 
 ises, (o) 
 
 (I^tle of cause.) 
 
 This cause coming on to be heard in the presence of , 
 
 of counsel with the complainant, and it appearing that the com- 
 
 (a) The decree must conform to the be decreed to be sold, unless the first 
 bill, and be warranted by it, both in mortgagee comes in with his mort- 
 the relief and in the grounds of relief. gage, and thereby consents that a de- 
 Belief not embraced in the prayer of cree shall be made for the sale of the 
 the bill cannot be decreed, nor can re- property to pay bis mortgage. BoU 
 lief asked for be granted upon grounds v. Smalley, 2 Hal. Oh. 464 ; see also 
 not disclosed by the bill. Syerson v. Hudnit v. Nash, 1 0. E. Or. 550. A 
 Adams, 2 Sal. Ch. 618 ; and see Jor- subsequent mortgagee may, however, 
 dan V. Clark, 1 C. E. Or. 243 ; Ely v. in a bill to foreclose, seek relief against 
 Perrine, 1 Or. Ch. 396. On a mere the prior mortgagee, and of course 
 foreclosure bill by a second mort- may make him a party. Oihon v. 
 gagee, nothing more than the equity Belleville Co., 3 Hal. Ch. 531, 536. 
 of redemption mortgaged to him can Where a subsequent encumbrancer 
 
362 
 
 FOEMS OF PLEADINGS. 
 
 plainant's bill has been heretofore taken as confessed against the 
 defendant {omitting the names of the infant defendants, if any:} 
 whereupon, and upon reading a report upon file, made by , 
 
 files his bill to foreclose, and makes 
 a prior mortgagee a party, and a 
 decree pro oonfesso is taken against 
 such prior mortgagee, and under the 
 usual decree for sale, &c., the premises 
 are sold, and bought by one who had 
 notice of the existence of the first 
 mortgage, such first mortgage is not 
 affected by the proceedings. William- 
 son V. Probasco, 4 Hal. Oh. 571. In 
 all cases of a decree for sale of mort- 
 gaged premises against any absent de- 
 fendant, if such defendant shall, at 
 any time before the sale made by the 
 sherifij in pursuance of the writ of 
 execution, cause his appearance to 
 be entered in court, and shall pay 
 such costs to the complainant as 
 the court . shall think reasonable, 
 then it shall and may be lawful for 
 the said court, by a, writ of su- 
 persedeas, (see page 33, ante,) directed 
 to the sheriff or other officer, to stay 
 his proceedings on the execution for 
 the sale of such mortgaged premises ; 
 and thereupon such proceedings shall 
 and may be had as if an appearance 
 had been entered within such time 
 and in such manner as, according to 
 the rules of the court, the same ought 
 to have been entered, in case the first 
 process in the suit had been duly 
 served. Bev., " Chancery," I 73. This 
 statute is not mandatory. To justify 
 the interference of the court, such 
 party ought to show surprise and 
 merits. Jdorner v. Corning, 1 Stew. 
 Eg. 254. When the amount due on 
 any decree in chancery for the fore- 
 closure and sale of mortgaged prem- 
 ises shall be paid and satisfied in any 
 other way than by a sale of the mort- 
 gaged premises, or when any decree 
 
 in chancery for the payment of money 
 shall be paid and satisfied, satisfaction 
 shall be entered on the margin of the 
 enrollment by the party receiving 
 satisfaction, or his solicitor, or by the 
 clerk by virtue of a warrant of attor- 
 ney from the party, duly acknowl- 
 edged or proved in the same manner 
 as satisfaction is entered of judgments 
 at law. Bev., " Chancery," J 77. If a, 
 decree be entered by a written agree- 
 ment between the parties, their signa- 
 tures should be proved by* affidavit, 
 Aliter, where such agreement is signed 
 by their solicitors. Shuie v. QuatiUy 
 Oct., 1822. A party to a foreclosure 
 suit is bound by the decree, and can- 
 not contest the title of a purchaser 
 under it, while the decree and the 
 sale and conveyance remain in force. 
 McQee v. Smith, 1 O. E. Gr. 463, 
 Where a party has obtained a decree 
 of foreclosure, under which the mort- 
 gaged premises have been sold, it is 
 too late to question the validity of the 
 mortgage. Gest v. Flock, 1 Gr. Ch. 
 108. A complainant who holds a 
 bond and mortgage given to him by 
 the mortgagor as collateral security 
 merely, should, if the debt be less 
 than the mortgage, take a decree for 
 the actual debt and interest. Van 
 Beventer v. Stiger, 10 O. E. Gr. 224. 
 In a bill of foreclosure, the plaintiff 
 may omit tracts which have been sold 
 under a prior mortgage, or to which 
 the mortgagor had no title. Sedamr 
 V. Williams, 4 McLean 51. A decree 
 of sale in a suit to foreclose a mort- 
 gage, in which known cestuis que trust 
 are not joined, the only defendant 
 being a trustee, who made the mort- 
 gage on account of known cestuis que 
 
FORKCLOSDBE. 36S 
 
 one of the masters of this court, bearing date on the day 
 
 of , eighteen hundred and , from all which it ap- 
 
 pears that there was due to the complainant, on the day of the 
 making of the said report, for principal and interest on 
 mortgage, the sum of dollars, and to the defendant, , 
 
 the sum of dollars ; that the same premises are comprised 
 
 in the respective mortgages of the complainant and last-afore- 
 said defendant, and that the mortgage of is first in registry 
 and execution, and is entitled to priority of payment ; and that 
 the mortgage of is second in registry and execution, and 
 is entitled to be secondly paid ; and that * it is necessary and 
 advisable that the whole of the mortgaged premises should be 
 sold to raise and pay the money so due as aforesaid ; and no 
 cause being shown or appearing against confirming the said 
 report : It is thereupon, on this day of , eighteen 
 hundred and , by , Chancellor of the State of New 
 Jersey, ordered, adjudged and decreed, and the said Chancellor 
 doth, by virtue of the power and authority of this court, hereby 
 order, adjudge and decree, that the said report, and all the 
 matters and things therein contained, do stand ratified and con- 
 firmed, and that the said mortgaged premises be sold to raise 
 and satisfy the several sums of money due to the said complain- 
 antfand defendant, that is to say, in the first place, to the said 
 
 the sum of dollars, together with lawful interest 
 
 thereon, to be computed from the day of , eighteen 
 
 hundred and , being the date of the master's report, with 
 
 costs to be taxed ; and in the second place, to pay unto the said 
 
 the sum of dollars, together with lawful interest 
 
 thereon as aforesaid, with his costs to be taxed ; and that a writ 
 of fieri facias do issue for that purpose out of this court, directed 
 to the sherifi^ of the county of , commanding him to make 
 
 sale, according to law, of the said mortgaged premises, f and that 
 
 trust, does not bind the title of the ing bond, calculating the value at the 
 
 latter. Oliver v. Piatt, 3 Sow. 333. time of the actual foreclosure. 
 
 In Satch v. White, 2 Oall. 152, it was It is error to make a decree upon 
 
 held that after a, strict foreclosure, admissions in the unsworn answer of 
 
 the mortgagee may recover at law the a guardian ad litem. Bank of U. S. v> 
 
 balance of his debt on the accompany- Rltehie, 8 Pet. 128. 
 
564 FOKMS OF PLEADINGS. 
 
 out of the money arising from such sale, he pay to the com- 
 plainant, or to his solicitor, said debt, interest and costs; and 
 also to the aforesaid defendant, or his solicitor, his said debt and 
 interest and costs, in manner aforesaid ; and in case more money 
 should be raised by the said sale than shall be su£Qcient to 
 answer such several payments, that such surplus be brought into 
 this court, to abide the further order of the court, unless other- 
 wise previously disposed of by the order of this court; and that 
 the said sheriff make return, without delay, of his proceedings 
 by virtue of the said writ. 
 
 And it is further ordered, adjudged and decreed, that the 
 <lefendants stand absolutely debarred and foreclosed of and from 
 all equity of redemption of, in and to the said mortgaged 
 premises, when sold as aforesaid by virtue of this decree. 
 
 And it is further ordered, adjudged and decreed, that the sum 
 of dollars be allowed and paid to the solicitor of the com- 
 
 plainant, instead of the retaining fee now allowed to counsel by 
 statute, and that the same be included in the taxed bill of costs, 
 and collected with the other items of said bill. 
 
 Form of decree for sale of a part of the mortgaged 
 premises against infants, &c., when the bill has 
 heen ordered to be taken pro confesso against the 
 
 other defendants. 
 
 {Title of cause.) 
 
 As in last form to *, then add, "that, under the circumstances 
 of this case, it will, in the opinion of the master, be suflBcient to 
 sell a part of the mortgaged premises to raise and pay the money 
 ^ue to the complainant and to the said , respectively, 
 
 together with the costs of this suit, and that it is for the benefit 
 of the defendants, and , to make sale for that pur- 
 
 pose of all that messuage, &c,, {describing particularly the part 
 to be sold,) being part of said premises, and no cause being 
 shown or appearing against confirming the said report : It is, 
 on this day of , by , Chancellor of the State 
 
 of New Jersey, ordered, adjudged and decreed, and the said 
 Chancellor doth, by virtue of the power and authority of this 
 <jourt, hereby order, adjudge and decree, that the master's report 
 
FOKECLOSUBB. 36&- 
 
 do stand ratified and confirmed, and that the above- described 
 part of the mortgaged premises, with the appurtenances, be sold 
 to raise and satisfy the sum of dollars, due to the com- 
 
 plainant, together with lawful interest thereon, from the 
 day of , eighteen hundred and , the date of the 
 
 said master's report, with the complainant's costs to be taxed ; 
 and also the said sum of dollars, due to the said , 
 
 together with lawful interest thereon as aforesaid ; and that a 
 writ of fieri facias do issue for that purpose out of this court, 
 directed to the sheriflF of the county of , commanding him 
 
 to make sale, according to law, of the before- described part of 
 the mortgaged premises (conclude as in last form after f.) 
 
 Final decree after report for sale of part, where 
 the whole mortgage money is not due. 
 
 {Title of cause.) 
 
 This cause coming on to be heard, &c., and upon reading and 
 filing the report made in this cause, in pursuance of a decretal 
 order of the court, by , one of the masters of this court^ 
 
 bearing date the day of , eighteen hundred and 
 
 , by which it appears that there was due to the com- 
 plainant, at the date of said report, on his mortgage set forth in 
 his bill, the sum of dollars; and that the further sum 
 
 of dollars will become due and payable on the 
 
 day of , eighteen hundred and , with legal interest 
 
 on the said respective sums of money from the day of 
 
 , eighteen hundred and , (taking the language of 
 
 the report as to the future installments and interest ;) and that a 
 part of the mortgaged premises, to wit, &c., {here set out the 
 description of the part to be sold, as in the report,) can be sold to 
 satisfy the said sum of dollars, now due and payable,, 
 
 together with interest thereon and costs, without material injury 
 to the remaining part of the mortgaged premises, and no cause 
 being shown or appearing against confirming the said report r 
 It is thereupon, on this day of , eighteen hundred 
 
 and , ordered, adjudged and decreed, by , Chan- 
 
 cellor of the State of New Jersey, and it is hereby ordered,. 
 
366 FORMS OP PLEADINGS. 
 
 adjudged and decreed, by virtue of the power and authority of 
 this court, that the said report, and all the matters and things 
 therein contained, do stand ratified and confirmed, and that the 
 part of the mortgaged premises mentioned and described in the 
 master's report for that purpose, be sold to raise and satisfy the 
 said sum of dollars, reported to be now due and payable 
 
 to the complainant, together with the lawful interest which may 
 accrue thereon, to be computed from the day of , 
 
 eighteen hundred and , being the time to which interest 
 
 has been computed by the master, and also the complainant's 
 costs to be taxed; and that a writ oi fieri facias do issue for that 
 purpose out of this court, directed to the sheriff of the county of 
 
 , commanding him to make sale, according to law, of said 
 part of the mortgaged premises, to raise and satisfy said sum of 
 
 dollars, together with interest and costs as aforesaid, and 
 that he pay the same to the complainant or his solicitor; and 
 that in case more money should be raised by such sale than 
 shall be sufficient to answer such payment, such surplus money 
 be brought into this court, and deposited with the clerk, to abide 
 the further order of this court, unless otherwise previously dis- 
 posed of by the order of this court ; and that the said sheriff 
 make return to this court of his proceedings by virtue of the 
 said writ. 
 
 And it is further ordered, adjudged and decreed, that the 
 defendants stand absolutely debarred and foreclosed of and from 
 all equity of redemption of, in and to the part of the said mort- 
 gaged premises ordered to be sold, when so sold as aforesaid. 
 And inasmuch as the part of the mortgaged premises so ordered 
 to be sold, may not sell for a sufficient sum to pay the debt, 
 interest and costs ordered to be raised and satisfied as aforesaid ; 
 and as it appears by the master's report, that the said mortgage 
 is intended to secure further payments not yet due, with interest 
 to accrue thereon, and which ought to be raised (if not otherwise 
 paid) out of the mortgaged premises, by future sales thereof: It 
 is further ordered, adjudged and decreed, that the complainant 
 shall be at liberty hereafter, as shall be necessary, to apply to 
 this court for further directions respecting the same, or from 
 time to time to go before a master upon the foot of this decree, 
 
FOBECLOSUBE. 367 
 
 and obtain a report as to the amount of such deficiency, or of 
 the further amount then due and payable; and also as to what 
 further part of the mortgaged premises it is proper to direct to 
 be sold to satisfy the same ; to the end that, such report being 
 made to this court, a decree may thereupon be made for a sale of 
 the residue of the mortgaged premises, or such part or parts 
 thereof as may be equitable and just, and the case may require, 
 to satisfy such deficiency, or what shall be so reported to have 
 become due and payable, with the costs attending such report, 
 and the order or decree thereon. 
 
 Final decree upon a report for sale of residue of 
 the mortgaged premises. 
 
 {I^Ue of cause.) 
 . This cause coming on to be heard, &c,, and it appearing that, 
 . by a decree of this court made in this cause on the day of 
 
 , eighteen hundred and , among other things it 
 
 was ordered, adjudged and decreed, that the complainant should 
 be at liberty thereafter, from time to time, to go before a master 
 of this court, and obtain a report as to the amount that should 
 become due and payable on his bond and mortgage therein men- 
 tioned, and also as to what further part of said mortgaged 
 premises therein referred to, it would be proper should be 
 directed to be sold to satisfy the same ; and upon reading and 
 filing a report made in this cause, in pursuance of the said order, 
 by , one of the masters of this court, bearing date the 
 
 day- of , eighteen hundred and , by which 
 
 said report it appears that there was due the said complainant, at 
 the date of the said report, on his mortgage, referred to in the 
 bill of complaint filed in this cause, for principal and interest, 
 
 dollars; and, that the residue of the said mortgaged 
 premises, not heretofore directed to be sold, that is to say, {here 
 deseribe the premises remaining unsold, as in the report), should 
 now be sold to pay to the said complainant the said sum of 
 
 dollars, together with lawful interest thereon from the 
 date of said report, and the complainant's costs to be taxed, and 
 no cause being shown to the contrary : It is, on this day 
 
368 FOEMS OF PLEADINGS. 
 
 of , eighteen hundred and , by , Chancellor 
 
 of the State of New Jersey, ordered, adjudged and decreed, and 
 the said Chancellor, by virtue of the power and authority of 
 this court, doth order, adjudge and decree that the said report, 
 and all the matters and things therein contained, do stand rati- 
 fied and confirmed ; and that all the residue of the said mort- 
 gaged premises not heretofore sold, be sold, to raise and pay the 
 said sum of dollars, reported to be now due and payable 
 
 to the said complainant, with the lawful interest thereon, to be 
 computed from the date of the said report, and the costs of the 
 said complainant to be taxed ; and that a writ of fieri facias do 
 issue for that purpose out of this court, directed to the sheriff of 
 the county of , commanding him to make sale, according 
 
 to law, of the said residue of the said premises, to raise and pay 
 the sum of dollars, with interest and costs as aforesaid; 
 
 and that in case more money should be raised by such sale than 
 shall be sufficient to answer such payment, such surplus money 
 be brought into this court, and be deposited with the clerk, to 
 abide the further order of this court, unless otherwise previously 
 disposed of by the order of this court; and that the said sheriff 
 make return to this court of his proceedings by virtue of the 
 said writ. 
 
 And it is further ordered, adjudged and decreed, that the 
 defendants stand absolutely debarred and foreclosed of and from 
 all equity of redemption of, in and to the said residue of said 
 mortgaged premises, when sold as aforesaid, by virtue of this 
 decree. 
 
 Special decree in a mortgage case in favor of 
 complainant and several defendants who are mort- 
 gagees, directing sale and payment according to 
 priorities.(a) 
 
 {Title of cauise.) 
 
 The bill filed in this cause having been heretofore ordered to 
 be taken as confessed against all the defendants, and the cause 
 
 (a) Where a mortgagor, after giv- for a valuable consideration, the resi- 
 ing a mortgage, sells a part of the due of the premises, in the hands of 
 mortgaged premises to a third person the mortgagor, or his vendee, must 
 
F0EECL08UBE. 
 
 369 
 
 now coming on to be heard in presence of , of counsel 
 
 with the complainant, and it appearing by the report of , 
 
 one of the masters of this court, bearing date the day of 
 
 instant, that there was due, on the day of the date thereof, 
 to , upon the bond held by him, payment whereof was 
 
 intended to be secured by the mortgage made to him, 
 dollars, and that his said mortgage debt is first in order of 
 priority upon the lot of land and premises first mentioned and 
 described in the complainant's mortgage, and is entitled to be 
 first paid and satisfied out of those premises ; and that there was 
 due to , upon the bond held by him, payment whereof 
 
 was intended to be secured by the mortgage made to him, 
 dollars, and that his said mortgage debt is first in order 
 of priority upon the lot of land thirdly described in the com- 
 plainant's mortgage, and is entitled to be first paid and satisfied 
 out of those premises ; and that there was due to , on the 
 
 bond held by him, dollars, and that his said mortgage 
 
 debt is first in order of priority upon the lots secondly, fourthly 
 
 be sold first to satisfy the mortgage. 
 Shannon v. Marcelis, Sax. 413. And 
 where mortgaged premises are sold in 
 separate parcels successively, to differ- 
 ent purchasers, with covenants against 
 encumbrances, the parcels are liable 
 to payment in the inverse order of 
 their sale. Mount v. JPotts, 8 C. E. 
 Or. 188 ; Biles v. Ooult, 3 Stew. Eg. 
 40. A release of any of the parcels 
 of the mortgaged premises succes- 
 sively sold, from the mortgage, not 
 only frees that parcel entirely from 
 the lien, but also frees the parcel sold 
 before it, or so much of that parcel as 
 the parcel released would have satis- 
 fied if not released. And the mort- 
 gagee cannot, by a release or any act of 
 his, change the right of the purchaser 
 of any of the parcels to have every 
 parcel subsequently sold, or its value 
 first appropriated to the payment. 
 lb. Where, after a sale of the mort- 
 
 gaged premises in successive parcels, 
 the purchaser of a parcel first sold, 
 gives another mortgage on that par- 
 cel, such second mortgage cannot be 
 decreed, at the instance of the owners 
 of the third and fourth parcels, in a 
 suit to foreclose the first mortgage 
 covering the whole tract, to be paid 
 by the mortgagee holding such second 
 mortgage, on the ground of its being 
 a personal obligation. lb. The equity 
 which entitles a subsequent mortgage 
 encumbrancer to the benefit of a re- 
 lease executed by a first mortgagee, 
 arises only when the first mortgagee 
 gives the release with knowledge of 
 the existence of the subsequent mort- 
 gage. The recording of the subse- 
 quent mortgage will not operate as 
 constructive notice of its existence to 
 the prior mortgagee. Ward^s Ex'rs 
 V. Hayne, 10 C. E. Gr. 397. 
 
370 POEMS OF PLEADINGS. 
 
 and fifthly described in the com|)lainant's mortgage, and is entitled 
 to be first paid and satisfied out of those premises ; and that there 
 was due to , upon the bond held by him, payment whereof 
 
 was intended to be secured by the mortgage held by him, 
 dollars, and that the last- mentioned mortgage is second in order 
 of priority upon the lot of land and premises first described in 
 the complainant's mortgage, and is entitled to be paid and satisfied 
 next after the mortgage of the said , out of those premises, 
 
 and before the complainant's mortgage; and also that there was 
 due to the complainant, upon the bond held by him, payment 
 whereof was intended to be eecured by the mortgage made to him, 
 dollars, and that his mortgage debt is second in order 
 of priority upon the tracts of land and premises secondly, 
 thirdly, fourthly and fifthly described in the complainant's 
 mortgage, and third in order of priority upon the residue of 
 the said premises; and no cause being shown or appearing 
 against confirming the said report: It is, on this day of 
 
 , eighteen hundred and , by , Chancellor of 
 
 the State of New Jersey, ordered, adjudged and decreed, that 
 the master's report, and all the matters and things therein con- 
 tained, do stand ratified and confirmed, and that the said com- 
 plainant is entitled to relief and to a sale of so much of the said 
 mortgaged premises as shall be necessary to satisfy to the said 
 , , , and , and the complainant, the 
 
 amounts so as aforesaid reported due to them respectively, with 
 the complainant's costs. 
 
 And it is accordingly further ordered, adjudged and decreed, 
 that so much of said estate and premises in the said mortgages 
 of the complainant and the said last-named defendants men- 
 tioned, as will be sufficient to raise and satisfy the said sums so 
 as aforesaid reported to be due to them, respectively, with the 
 complainant's costs to be taxed, be sold; and that a writ of 
 fieri fadas do issue for that purpose out of this court, directed 
 to the sheriff of the county of , commanding him to make 
 
 sale, according to law, of the said mortgaged premises; and that 
 he make sale, in the first place, of the tract of land first set forth 
 in complainant's bill ; and that out of the moneys arising from 
 such sale, he, in the first place, pay to , or his solicitor, 
 
POEBCLOSUKB. 371 
 
 the sum of dollars, with interest, to be computed from 
 
 the date of said report until the same be paid; and that he do 
 then pay out of the proceeds arising from such sale, (in case 
 there be more than sufficient to answer such payment to said 
 
 ), in the second place, to , or his solicitor, the sum 
 
 of dollars, with interest as aforesaid; and that in case 
 
 there be any surplus after paying the two amounts as aforesaid, 
 he do pay therewith, if sufficient, (and if not, then he do pay 
 therewith, so far as the same will extend), to the said com- 
 plainant, or to his solicitor, the said sum of dollars, with 
 lawful interest thereon as aforesaid, with his costs'in this suit to 
 be taxed; and that, in the second place, he make sale of the 
 tract of land thirdly set forth in the complainant's bill; and 
 that out of the moneys arising from such sale, he, in the first 
 place, pay to the said the sum of dollars, with law- 
 ful interest thereon as aforesaid ; and in case more money should 
 be raised by such sale than shall be sufficient to answer such 
 payment, and the balance arising from the sale of the first tract, 
 after payment of the first two mortgages, should be insufficient 
 to satisfy the complainant's debt, interest and costs, then he pay 
 out of the surplus from the sale of the third tract, (or so far as 
 the same will extend towards paying the same), the amount or 
 balance remaining due to the complainant; and that, in the third 
 place, he make sale of the tracts of land secondly, fourthly and 
 fifthly set forth in the complainant's bill; and that out of the 
 moneys arising from such sale, he, in the first place, pay to 
 
 , or to his solicitor, the sum of dollars, with lawful 
 
 interest thereon as aforesaid ; and in case more money should be 
 raised by such sale than shall be sufficient to answer such pay- 
 ment, and the balance, if any, arising from the gales of the first 
 and third tracts, after payment of the respective mortgages 
 thereon prior to the complainant's mortgage, should be insuffi- 
 cient to satisfy the complainant's said debt, interest and costs, 
 that then he apply the surplus arising from the sale of the three 
 last- mentioned tracts, to, or so far as the same will extend 
 towards, paying off the amount or balance remaining due the 
 complainant for his said debt, interest and costs; and in case, 
 after satisfaction of the complainant's debt, interest and costs. 
 
372 
 
 F0BM8 OF PLEADINGS. 
 
 there still be any surplus, that the same be brought into this 
 court, and deposited with the clerk, to abide the order of this 
 court, unless otherwise previously disposed of by the further 
 order of the court ; and that the said sheriff make return to this 
 court of his proceedings by virtue of the said writ. 
 
 And it is further ordered, adjudged and decreed, that the 
 defendants stand absolutely debarred and foreclosed of and from 
 all equity of redemption of, in and to so much of the said mort- 
 gaged premises as shall be sold as aforesaid by virtue of this 
 decree. 
 
 {Add the usual clause as to counsel fee.) 
 
 Petition for receiver of rents, &c., of mortgaged 
 
 premises.(a) 
 
 {Title oj cause.) 
 
 The petition of , of, &c., respectfully shows, that on 
 
 the day of , he filed his bill of complaint in the 
 
 above-stated cause to foreclose a mortgage held by him, and 
 made by the said defendants. 
 
 (o) Prior to 1873, applications for 
 receivers in mortgage cases had been 
 very unusual in the Court of Chan- 
 cery of New Jersey. Frisbie v. JBate- 
 man, 9 O. E. Gr. 28. It was formerly 
 held that a receiver to collect rents 
 from tenants of the mortgagor would 
 not be appointed on filing a fore- 
 closure bill. Best V. Schermier, 2 Hal. 
 Ch. 154. This was on the ground 
 that the mortgagor was entitled to the 
 rents while in possession by his ten- 
 ants, and before the actual entry by 
 the mortgagee. IKd. ; see Sanderson 
 V. Priee, 1 Zab. 637. The practice in 
 chancery has been modified in this 
 respect, and now, if the bill contains 
 sufiBcient grounds for the appointment 
 of a receiver, and is sworn to, the 
 complainant may move for one on the 
 bill alone, or on a petition in the 
 cause, duly verified. Cortleyeu v. 
 
 Hathaway, 3 Stoch. 39. And after 
 bill for foreclosure, a first mortgagee 
 is entitled to a receiver in a case 
 where he shows that he has no per- 
 sonal security for his debt ; that the 
 premises are an insufficient security ;. 
 that the mortgagor has not paid the 
 interest, and has not paid the taxes 
 on the premises, whereby a lien has 
 been created paramount to that of 
 the mortgage, and which may, if not 
 itself extinguished, extinguish the 
 mortgage. Mahon v. Orothers, 1 Stew. 
 Eq. 567. Where the application for 
 the appointment of a receiver is made 
 on the bill, it must contain a specific 
 prayer that a receiver may be ap- 
 pointed. Ban. Ck. Pr. 1734. The 
 application for a receiver on the bill 
 is made by motion, of which the de- 
 fendants are entitled to notice. Tib- 
 bak V. Sargeant, 1 McCart. 449. The- 
 
FOEECLOSUEB. 
 
 373 
 
 And your petitioner further shows, that the mortgaged prem- 
 ises consist of (sicde generaUy and briefly the character of the 
 premises,) situate, &c. ; that the said defendants have neglected 
 to make the necessary repairs to the said buildings ; and that 
 the said house and the lot embra&ed in your petitioner's said 
 mortgage have greatly depreciated in value since the making of 
 said mortgage, and are not now worth more than the sum of 
 dollars, and at a fair and ordinary sale would not realize 
 more than that sum, and at a forced sale would not, in the 
 opinion of your petitioner, sell for more than dollars; 
 
 that the said mortgage was given by the said defendant , 
 
 and , his wife, to your petitioner on the day of 
 
 , eighteen hundred and , to secure the sum of 
 
 dollars, payable in one year from the date thereof, with 
 
 first mortgagee is entitled to the j)03- 
 session of the mortgaged premises, 
 and being in possession, there can be 
 no receiver as against him. Trenton 
 Banking Co. v. Woodruff, 2 Or. Ch! 
 210. Although the validity or ex- 
 istence of the first mortgage be dis- 
 puted, the court should not interfere 
 •with the receipt of the rents and 
 profits by the first mortgagee in pos- 
 session, by appointing a receiver as 
 against him, which is a virtual dis- 
 possession of him, unless it be shown 
 that he will not be able to respond 
 for the rents in case of a decree 
 against him. Ibid. The rule in 
 New York, that where premises are 
 an inadequate security, and the mort- 
 gagor is insolvent, a receiver will be 
 appointed, has not been adopted in 
 New Jersey. Gortleyeu, v. Hathaway, 
 3 Stock. 39 ;■ see Frisbie v. Bateman, 9 
 C E. Or. 28. If buildings have been 
 burned down, or have been permitted 
 to go to decay, or waste committed, 
 and the property has depreciated in 
 value through the fault or negligence 
 of the mortgagor or tenant in posses- 
 sion ; or where there is any act on the 
 
 part of the mortgagor or such tenant, 
 which shows fraud or makes him 
 chargeable with bad faith in misap- 
 propriating the rents and profits for 
 other purposes than keeping down the 
 interest on the encumbrances, in such 
 cases the court may properly appoint a 
 receiver. The power should be exer- 
 cised with great caution, and only in 
 cases where there is an apparent neces- 
 sity for it. Ihid. Where mortgaged 
 premises were so situated that they 
 could not be sold in parcels, a receiver 
 of the rents was appointed upon a 
 part only of the mortgage debt falling 
 due, the other requisite facts being 
 made to appear. Qaincy v. Cheefman, 
 4 iSamdf. Ch. 405. In Sea Ins. Co. v. 
 Stebbint, 8 Paige 565, it was stated 
 to be the practice in New York, that 
 where the party in possession con- 
 sented to give security to account for 
 the rents and profits, as the court 
 should direct, in case there should 
 ultimately be a deficiency upon the 
 sale of the premises under the decree, 
 not to appoint a receiver. There are 
 instances of such practice in New 
 Jersey. 
 
374 POEMS OP PLEADINGS. 
 
 lawful interest thereon, semi-annually; and that no part of 
 either the principal or the interest due or accrued thereon has 
 been paid. 
 
 And your petitioner further shows, that the taxes on the said 
 mortgaged premises, for the year eighteen hundred and , 
 
 are in arrear and unpaid ; and that said premises have been sold 
 for the taxes due thereon for the year eighteen hundred and 
 ; the lien of which taxes is paramount to the lien of your 
 petitioner's said mortgage. 
 
 And your petitioner further shows, that the said mortgaged 
 premises have been, for the past months, and now are,^ 
 
 occupied by , who holds the same as a tenant of the said 
 
 {the mortgagor,) at the monthly rental of dollars; and 
 
 that the said {the mortgagor) collects the said rent, and refuses 
 to pay the same to your petitioner, or allow your petitioner ta 
 collect and apply the same to the payment of the said mortgage 
 debt. 
 
 And your petitioner further shows, that the said {the mort- 
 gagor) is insolvent. 
 
 Your petitioner therefore prays, that a receiver may be 
 appointed to collect the rents of the said mortgaged premises 
 now due or hereafter to become due, with such powers as may 
 be necessary ; and that the said {the mortgagor) be enjoined from 
 further collecting said rents, and the said {the tenant) from pay- 
 ing over to the said {the mm-tgagor,) or to any other person 
 whomsoever, any of the rents and profits of the said mortgaged 
 premises, until the further order of this court. 
 
 And your petitioner, &c. 
 
 {Signature of solicitor and counsel.) 
 
 {Annex affidavit fully verifying the petition and the particular 
 facts alleged therein.){a) 
 
 (a) The application must be sup^ upon as rendering the appointment 
 ported by evidence of the facts relied proper. 
 
F0RECL08UBB. 375 
 
 Order to show cause on foregoing petition, (a) 
 (Title of cause.) 
 
 This matter beiog opened to the court by, &c., and upon read- 
 ing and filing the petition of the said complainant, and the affi- 
 davits thereto annexed: It is, on this, &c., ordered, that {the 
 mortgagor) show cause, before the Chancellor, on , the 
 
 day of next, (or " instant,") at ten o'clock in the forenoon, 
 
 at the state- house, in Trenton, {or, "at the chancery chambers, 
 in the city of ,") why a receiver should not be appointed 
 
 of the rents and profits of the mortgaged premises described in 
 the bill of complaint in this cause. 
 
 And it is further ordered, that in the meantime, after notice 
 of this order, the said {the mortgagor) refrain from collecting or 
 receiving, and that {the tenant) refrain from paying over to any 
 person whomsoever, any of the said rents and profits, until the 
 further order of this court. 
 
 And it is further ordered, that a copy of this order be served 
 on the said and , respectively, within days 
 
 from the date hereof. 
 
 Order appointing a receiver of rents, &c., of mort- 
 gaged premises. 
 
 {Title of cause.) 
 
 This matter being opened to the court, &q., and it appearing 
 that a copy of the order to show cause why a receiver should 
 not be appointed in this suit, has been duly served on the 
 defendant, , and upon , the tenant, as directed in 
 
 said order ; and it further appearing that the prayer of the said 
 petition should be granted : It is, on this, &c., ordered, that the 
 said order to show cause be made absolute ; and that , of 
 
 , be and he is hereby appointed a receiver in this cause, 
 to take charge of the mortgaged premises in said petition and 
 in the bill of complaint in this suit mentioned, and to manage 
 the same, with power to sue for, collect and receive the rents, 
 
 (a) This order must be served in clerk, to be used on the hearing of 
 the manner directed therein, and the order, 
 proof of such service filed with the 
 
376 FOEMS OP PLEADINGS. 
 
 issues and profits thereof ;(a) (and he is to account for and pay 
 what he shall so receive, as this court shall direct) ; to let the 
 said premises, or any part thereof, from time to time; and to 
 agree concerning the rents to be paid therefor, and to do all 
 things necessary for the proper care and management of said 
 premises. (6) 
 
 And it is further ordered, that before entering upon his 
 duties, he give a bond to the Chancellor for the faithful per- 
 formance of his duties, in such sum and with such surety or 
 sureties as may be approved by , one of the special masters 
 
 of this court ; said bond to be filed with the clerk of this court. 
 
 Bond of receiver under foregoing order, (c) Know 
 all men by these presents, that and are held and 
 
 firmly bound unto the Chancellor of the State of New Jersey in 
 the sum of, &c., to be paid to the said Chancellor, his successors 
 and assigns, in the sum of , then as in form on page 302 
 
 to *, then, " The condition of this obligation is such, that whereas 
 the above-named has been appointed a receiver of the 
 
 rents and profits of the mortgaged premises mentioned and 
 described in the bill of complaint in a certain cause depending 
 in the Court of Chancery of the State of New Jersey, wherein 
 is complainant, and and others are defendants : 
 
 Now, therefore, if the said do and shall, duly and 
 
 faithfully, account for and pay what he shall receive of said 
 rents and profits, as the said Court of Chancery shall direct, and 
 shall in all things well and truly fulfill and discharge the duties 
 of his said office of receiver, then this obligation to be void ; 
 otherwise, to remain in full force and virtue. 
 
 [L. 8.] 
 
 Sealed and delivered in the presence of — [l. s.] 
 
 (a) If the appointment is of rents 1747 ; Hokombe v. Holcombe, 2 Seas. 
 and profits of real estate, the order 417 ; and McArihur v. Kontdair Jtail- 
 should direct the tenants to attorn way Co., 12 C. E. Or. 77. 
 and pay their rents in arrears and (c) The security is generally re- 
 growing rents to the receiver. Dan. quired to be for double the annual 
 Ch. Pr. 1737. rental or value of the property likely 
 
 (6) For practice as to commissions to be got in by the receiver. Dan. 
 
 of receivers and allowances for ex- Ch. Pi: 1736. 
 penses, &c., see Dan. Ch. Pr. 1746, 
 
REDEMPTION. 
 
 377 
 
 REDEMPTION OF MORTGAGED PREMISES. 
 
 Bill to redeem mortgaged premises, setting up 
 tender and payment.(a) 
 
 (Address.) 
 Complaining, shows unto your Honor your orator, , 
 
 ■of , in the county of , and State of New Jersey, 
 
 that on or about the day of , eighteen hundred 
 
 (a) A mortgagor cannot redeem the 
 •mortgaged estate without making all 
 ■those who have an equal right to 
 redeem with himself parties to the 
 suit. This rule has been held to 
 apply to a second encumbrancer filing 
 a bill to redeem a prior encumbrance, 
 who must, in such case, bring the 
 mortgagor, as well as the prior en- 
 cumbrancer, before the court. 1 Dan. 
 ■Ch. Pr. 212, 213. As a general rule, 
 where the mortgage is due, and liable 
 to be foreclosed, all persons who have 
 ;acquired an interest in the lands 
 mortgaged, have a right to disengage 
 ■the property from all encumbrances, 
 when it becomes necessary so to do, in 
 order to make their own claims avail- 
 . able or beneficial. Bigelow v. Cassedy, 
 11 O. E. Gr. 557. The mere fact that 
 :a person occupies the position of a 
 second mortgagee or subsequent judg- 
 ment creditor, does not entitle him to 
 redeem the prior mortgage. Unless 
 rsome special equity exists in the sub- 
 sequent encumbrancer, the prior mort- 
 .gagee has a right to retain his secur- 
 ity, and may refuse to surrender it, so 
 long as the mortgagor does not wish 
 to discharge it. Ibid. If the second 
 incumbrancer happens to be in such a 
 j)Osition that he is in danger of losing 
 ithe benefit of his security, unless he is 
 permitted to redeem, and the circum- 
 stances are such that equity would 
 
 subrogate him, upon making these 
 facts known to the first mortgagee, 
 and making him an unconditional 
 tender of his money, he would be put 
 upon his inquiry, and, after taking a 
 reasonable time to be advised, his 
 refusal to accept the tender and de- 
 liver up his mortgage would be at his 
 peril. Ibid. The right of redemp- 
 tion cannot be restricted to a limited 
 time, or to a particular class of per- 
 sons. Yovle v. Bichards, Sax. 534. 
 Nor can the mortgagor deprive him- 
 self thereof, even by express covenant. 
 Vanderhaise v. Muguee, 2 Beas, 244, 
 410. A widow entitled to dower has 
 a right to her bill in equity to redeem 
 a mortgage which is an encumbrance 
 upon her rights. Opdyhe v. BarUes, 
 3 Stock. 133. A purchaser (first mort- 
 gagee) at a sale under a foreclosure 
 suit upon his mortgage, to which suit 
 a second mortgagee was, by oversight, 
 not made a party, is entitled to re- 
 quire the second mortgagee to redeem 
 in a reasonable time, or in default 
 thereof to be foreclosed. Parker v. 
 Child, 10 C. E. Or. 41. The purchaser 
 of a mere equity of redemption pur- 
 chases a. right, and does not assume 
 an obligation to redeem. He may, at 
 his pleasure, give up the mortgaged 
 premises in satisfaction of the encum- 
 brance, and he is liable to the ex- 
 tent of the value of the premises 
 
378 
 
 POKMS OF PLEADINGS. 
 
 and , in pursuance of a bargain previously made between 
 
 your orator and one , of aforesaid, the said 
 
 and , his wife, did deliver to your orator a deed of con- 
 
 veyance, duly signedj sealed and acknowledged by said 
 and his wife, bearing date the day of , eighteen 
 
 hundred and , expressed to be for the consideration of 
 
 dollars, (which was the true consideration,) in and by 
 which deed the said and , his wife, did, for the 
 
 consideration aforesaid, convey to your orator, his heirs and 
 assigns forever, all those two certain lots, &c., {describe prem- 
 ises,) as by reference to the said deed of conveyance, to which 
 your orator prays leave to refer, will more fully and at large 
 appear. 
 
 only. Tichenor v. Dodd, 3 Gr. Oh. 
 454. The price for which the "prop- 
 erty was purchased at a sale under 
 foreclosure cannot affect the equities 
 subsisting between the mortgagees. 
 The subsequent encumbrancer can 
 only redeem by paying the full, 
 amount of the first mortgage. Large 
 V. Van Dorm, 1 MeCart. 208. If the 
 owner of the fee purchases n. mort- 
 gage upon the premises, after a sale 
 thereof for taxes, the mortgage does 
 not merge so as to deprive him of the 
 mortgagee's right to redeem, although 
 his own right as owner is forfeited by 
 the lapse of time. Duncan v. Smith, 
 2 Vr. 325. After the death of a mort- 
 gagor, his heirs are the persons pri- 
 marily liable for any unpaid balance 
 due upon the mortgage ; and they 
 alone can ask to redeem, and have 
 the mortgage canceled and satisfied. 
 Sutherland v. Base, 47 Barb. 145. The 
 redemption must be of the entire 
 mortgage, and not by parcels. He 
 who redeems must pay the whole debt. 
 Palk V. Clinton, 12 Ves. 59. There- 
 fore, an owner of part of an estate 
 mortgaged, cannot separately redeem 
 his part. The mortgagee is entitled to 
 
 insist that the whole of the mortgaged 
 premises shall be redeemed together. 
 Ibid. ; Cholmondeley v. Clinton, 2 Jac. 
 & W. 189. But one who has the 
 equity of redemption of a part of 
 mortgaged premises, has a, right to- 
 redeem the entire premises. Boqut- 
 v. Coburn, 27 Barb. 230. It is essen- 
 tial to a bill to redeem a mortgage, 
 that the complainant should ofier to 
 pay the debt, interest arid costs. Beek- 
 man v. Frost, 1 8 John. 544. A mort- 
 gagor filing a bill to redeem, must 
 pay the cost of persons defendant 
 claiming under the mortgagee. Weth- 
 erell v. Collins, 3 Mad. 255. As a 
 general rule, a party coming into a 
 court of equity to redeem, pays costs 
 to the defendant, in addition to 
 the amount due upon the mortgage, 
 although he obtains the relief prayed 
 for. Vroom v. Ditmas, 4 Paige 52e. 
 If the defendant resists improperly 
 the claim of the complainant to re- 
 deem, or sets up an unconscientious 
 defence, he will be refused his costs,. 
 and may be compelled to pay costs to 
 the adverse party, in the discretion of 
 the court. Ibid. 
 
REDEMPTION. 379 
 
 And your orator further shows, that in order to secure the 
 payment of a part of the purchase-money agreed by your orator 
 to be paid for the said lands and premises, your orator, on the 
 said day of , eighteen hundied and , did 
 
 deliver to the said a bond, made by your orator to the 
 
 said , bearing date the day of , eighteen hun- 
 
 dred and , in the penal sum of , dollars, with condi- 
 
 tion thereto, that if your orator, his heirs, executors or adminis- 
 trators, should w^U and truly pay, or cause to be paid, unto the 
 said , his executors, administrators or assigns, the just and 
 
 full sum of dollars, on the day of , eighteen 
 
 hundred and , with interest from date, then the said bond 
 
 or obligation should be void, otherwise to be and remain in full 
 force and virtue, as by reference to the said bond now in the 
 possession of the said , and to which, when produced by 
 
 the said , your orator prays leave to refer, will more fully 
 
 and at large appear. 
 
 And your orator further shpws unto your Honor, that in 
 order to secure the payment of the said bond, your orator, on 
 the said day of , eighteen hundred and , did 
 
 deliver to the said a certain indenture of mortgage, duly 
 
 signed, sealed and acknowledged, made by your orator and 
 , his wife, to the said , bearing date the day 
 
 of , eighteen hundred and , in and by which your 
 
 orator and his said wife did grant, bargain, sell and convey unto 
 the said , his heirs and assigns forever, the same two lot& 
 
 of land and premises hereinbefore particularly described, with a 
 proviso or condition therein contained, that if your orator, his 
 heirs, executors or administrators, should pay, or cause to be 
 paid, unto the said , his executors, administrators or 
 
 assigns, the just and full sum of dollars, with interest 
 
 thereon, on the day of , eighteen hundred and , 
 
 according to the condition of the said bond or obligation, then 
 the said indenture of mortgage and everything therein contained 
 should cease and be void, anything therein contained to the con- 
 trary notwithstanding, as by reference to the said indenture of 
 mortgage, now in the possession of the said , and ta 
 
 which, when produced, your orator prays leave to refer, will 
 more fully and at large appear. 
 
380 FOJtMS OP PLEADINGS. 
 
 And your orator farther shows, that on or about the 
 ^ay of , eighteen hundred and , the said 
 
 entered into possession of said mortgaged premises as such 
 ■mortgagee thereof, and as such mortgagee has ever since then 
 remained, and still is, in possession thereof. 
 
 And your orator further shows unto your Honor, that prior 
 to and on the day of , eighteen hundred and , 
 
 your orator was under the belief that the said bond did not 
 become due and payable until the day of , eighteen 
 
 hundred and , and for that reason did not make prepara- 
 
 tions to pay the same on the day of , eighteen hun- 
 
 dred and . On the day last named, your orator, much to 
 
 his astonishment, learned that said bond was then due and pay- 
 able. On or^ about the day of , eighteen hundred 
 and , your orator took the money to pay the said bond 
 to the house in which said then resided, &c., {state the 
 ■dreumstances of the tender particularly, and of the refusal to 
 receive the money.) 
 
 And your orator further shows, that the said tender was an 
 unconditional offer of said money in payment of said bond and 
 mortgage without requiring any receipt, or even the giving up 
 of the said bond and mortgage, or either of them. 
 
 And your orator further shows, that ever since the 
 day of , eighteen hundred and , he has been, and 
 
 now is, able, ready, willing and desirous to pay the amount of 
 the principal and interest due on the said bond and mortgage, 
 but the said , or any one for him, at no time since the 
 
 day of , eighteen hundred and , has made 
 
 -demand upon or requested your orator to pay the said bond and 
 mortgage. 
 
 And your orator further shows, that he was greatly incon- 
 venienced and has been greatly damaged by the refusal of the 
 said to remove from the said lands and premises, and by 
 
 his withholding the possession thereof from your orator, as 
 said has done ever since the day of , and 
 
 still does. 
 
 And your orator farther shows, that after the said tender was 
 .made to said as aforesaid, and on or about the day 
 
EEDEMPTION. 381 
 
 of , eighteen hundred and , your orator commenced 
 
 an action of ejectment in the Supreme Court of this state against 
 the said , to recover possession of the land and premises 
 
 hereinbefore described. And such proceedings were had in the 
 said action of ejectment, that a trial was had therein at a Supreme 
 Court Circuit holden at , in and for the said county 
 
 of , on the day of , eighteen hundred and 
 
 , before the Honorable the Chief Justice of the Supreme 
 Court, (both parties having consented to try said action before 
 the said Chief Justice, without a jury, and to waive a trial by 
 jury.) Upon the said trial the said defendant offered and read 
 in evidence the aforesaid bond and mortgage, and under them 
 claimed to hold the possession of the said lands and premises as 
 a mortgagee in possession, and offered no other defence to said 
 action. In reply to said defence, your orator proved the making 
 of the aforesaid tender, and the said 's refusal to accept 
 
 the money when tendered. But the said Chief Justice sustained 
 the said defence, and found in favor of said , and ruled 
 
 that a tender made to the said after the day of 
 
 , and not accepted by said , did not, at law, divest 
 
 and terminate the lien of the said mortgage, nor extinguish or 
 terminate the right at law of said to hold possession of 
 
 said premises by virtue of said mortgage; and at the term of 
 
 , eighteen hundred and , of the said Supreme 
 
 Court, judgment in the said action of ejectment was rendered 
 against your orator and in favor of the said , for costs. 
 
 And your orator further shows, that at the trial of the said 
 action of ejectment, in open court, when your orator was on the 
 stand as witness in said trial, your orator produced dollars 
 
 in United States legal-tender notes of various denominations, 
 and the attorney of your orator then and there offered to pay 
 the said bond and mortgage, and tendered to the attorney of 
 said of said money the sum of dollars, which the 
 
 attorney of said then and there refused to receive, and 
 
 then the attorney of your orator laid on the table before the 
 attorney of said the said package of legal-tender notes 
 
 containing dollars, and requested ^the attorney of said 
 
 to take from said package whatever he, said attorney, or said 
 
382 FORMS OP PLEADINGS. 
 
 , claimed to be due on said bond and mortgage ; but he 
 refused to do so, and refused to receive any money in payment 
 of the said bond and mortgage. Said tender last mentioned 
 was made to the attorney of said because he then and 
 
 there had the said bond and mortgage in his possession, and 
 because said was not then and there personally present. 
 
 And your orator shows, that if he could then have extinguished 
 said bond and mortgage, and have had them delivered to him, 
 he was then willing to pay for them the said sum of 
 dollars, not because said was entitled equitably or legally 
 
 to receive that amount, but merely to purchase his peace. 
 
 And your orator submits, that he is entitled to redeem the 
 said mortgage, and, in redemption, should not be required to 
 pay or allow anything more than the principal sum named in 
 the condition of said bond, and should not be required to pay 
 any interest thereon, or if any, at the most, only interest from 
 the day of , eighteen hundred and , to and 
 
 including the day of , eighteen hundred and ; 
 
 and that after the day last named, no interest should be com- 
 puted or charged on the said bond and mortgage. 
 
 And your orator further submits and charges, that the said 
 should be charged with, and required to apply on, said 
 bond and mortgage, the full value of the use or rents and profits 
 of the said mortgaged premises from the day of , 
 
 eighteen hundred and , until he shall give possession of 
 
 said premises to your orator. 
 
 And your orator further shows, that the just value under the 
 circumstances of the said mortgaged premises, since the 
 day of , eighteen hundred and , is not less than at 
 
 the rate of dollars a year ; and that your orator should be 
 
 allowed, and the said should be charged for, the use and 
 
 occupation of said premises by said for all the time since 
 
 the day of , eighteen hundred and , at a rate 
 
 not less than dollars a year. 
 
 And your orator further shows, that he has frequently and in 
 a friendly manner applied to the said to receive the money 
 
 secured by, and due and owing on, the said bond and mortgage, 
 and to deliver possession to your orator of the said mortgaged 
 
REDEMPTION. 383 
 
 premises; and your orator well hoped that the said 
 would have complied with those reasonable requests, as in equity 
 and good conscience he ought to have done : But the said 
 defendant refuses to receive payment of the said bond and mort- 
 gage, and to deliver possession of said mortgaged premises to 
 your orator. In consideration whereof, &c. 
 
 To the end therefore, &o., {as on page 10.) And that your 
 orator may be decreed to be entitled to redeem the said mort- 
 gage, (your orator hereby tenders himself ready and willing to 
 pay at any time, when permitted so to do, whatsoever sum of 
 money this honorable court shall adjudge to be the sum which 
 he. should pay, to pay, satisfy and discharge the said mortgage ;) 
 that it may be decreed that the said defendant is not entitled to 
 oharge or receive any interest on the said sum of dollars 
 
 named in the condition of said bond and in the proviso of said 
 mortgage ; that the said defendant may be decreed to be liable to 
 account for and pay to your orator, by deducting the same from 
 the amount equitably due upon said bond and mortgage, the 
 rents and profits and value of the use of the mortgaged premises 
 since the day of , eighteen hundred and ; 
 
 and that the said defendant may be decreed, upon payment or 
 tender to him by your orator of the amount decreed to be equit- 
 ably due to the said defendant on the said bond and mortgage, 
 to deliver to your orator the said bond and mortgage, and also 
 full and exclusive possession of all and every part of the said 
 mortgaged premises ; and that an account may be taken, under 
 the direction of this honorable court, of what is equitably due 
 and owing by your orator on the said bond and mortgage, and 
 also of what is due from, and chargeable against, the said 
 defendant in respect of the rents and profits, use and occupation 
 of the said mortgaged premises since the day of , 
 
 eighteen hundred and ; and that your orator may have 
 
 such other or further relief in the premises as shall be agreeable 
 to equity, and as the nature and circumstances of his case may 
 justify and require. 
 
 May it please your Honor {insert prayer for gubpmna.) 
 
 {Signature of solicitor and counsel.) 
 
384 FORMS OF PLEADINGS. 
 
 Decree for redemption of mortgaged premises.(a) 
 
 CBtle of cause.) 
 
 As in form on page 179 to the end of first line on page 180, 
 according to the circumstances of the case, then add, "and the 
 said Chancellor doth, by virtue of the power and authority of 
 this court, hereby order, adjudge and decree, that the said (com- 
 plainant) is entitled to redeem the mortgage mentioned and 
 described in his bill of complaint in this cause ; and that he ia 
 chargeable with interest on said mortgage and the bond secured 
 thereby, from and including (daie,) until the amount due, as the 
 same shall be ascertained in this cause, shall be paid or tendered 
 to the said {defendant ;) and that said {defendant) is chargeable, 
 and should be charged with the rents and profits of the said 
 mortgaged premises, from and including {date,) until he shall 
 deliver full possession of said premises to the said {complainant,), 
 at the rate of dollars a year. 
 
 And it is further ordered, adjudged and decreed, that it be 
 referred to , one of the masters of this court, to take an 
 
 account, and report to this court, the amount due to the said 
 {defendant) on the principles of this decree, for principal and 
 interest on his said bond and mortgage ; and the said master is 
 to take an account of the rents and profits of the said mortgaged 
 premises ; and what shall be coming on the said account of rents 
 and profits, is to be deducted out of what shall be found due to 
 the said {defendant) for principal and interest on his said bond 
 and mortgage; and it is further ordered, adjudged and decreed, 
 that what, upon the balance of the said account, shall be certi- 
 fied by the said master to be due to the said {defendant) for his 
 
 (a) If the mortgagor is permitted to And it directs that, upon the corn- 
 redeem, the decree directs a reference plainant's default, the hill be dis- 
 to a master to ascertain and report the missed, with costs. The time allowed 
 amount due for principal and interest, for the redemption is not fixed and 
 and orders the complainant to pay that certain, but rests in the sound discre- 
 amount within a specified time after tion of the court, to be regulated by 
 confirmation of the master's report, circumstances. Ferine v. Dunn, 4 
 together with the costs, and that upon John. Oh. 140. In general, the time: 
 his doing so, the mortgagee shall con- allowed will not be afterwards en- 
 vey to him the mortgaged premises. larged. Ibid. 
 
REDEMPTION. 385 
 
 principal and interest, the said (aomplainani) do pay, less the 
 taxed costs of this suit, to the said {defendant, ) within 
 days after the said master's report shall have been confirmed by 
 the Chancellor, at such place as the said master shall appoint; 
 and that thereupon, the said (defendant) do forthwith remove 
 from the said mortgaged premises, and deliver full possession 
 thereof unto the said {complainant), or unto such person or per- 
 sons as he shall direct, free and discharged of all encumbrances, 
 done by him, the said {defendant,) or any person claiming by, 
 from or under him, and deliver unto the said {complainant) the 
 said bond and mortgage, and also all deeds and writings in his 
 custody or under his control, relating to the said mortgaged 
 premises; but in default of the said complainant's so paying 
 unto the said defendant what shall be so certified to be due to 
 him for principal and interest as aforesaid, after such deductions 
 made thereout as aforesaid, it is ordered that the said complain- 
 ant's bill do, from thenceforth, stand dismissed out of this court, 
 with costs to be taxed. 
 
 Order confirming report in suit to redeem. 
 
 {Title of cause.) 
 Upon reading a report upon file, made by , one of the 
 
 masters of this court, dated {date,) whereby it appears {redte the 
 substance of the report,) and no cause being shown or appearing 
 against confirming the said report : It is {date,) ordered, that the 
 said report, and all the matters and things therein contained, do 
 stand ratified and confirmed. 
 
 Order dismissing bill for redemption.(a) 
 
 {Title of cause.) 
 This matter being opened to the court by, &c., and it appear- 
 ing that , the master to whom it was referred to take an 
 account of what was due to the defendant in this cause on his 
 
 (a) Where a party fails to redeem a bar of the equity of redemption, 
 within the time allowed, it is usual Ferine v. Dunn, supra. 
 to dismiss the bill, which amounts to 
 
386 POEMS OP PLEADINGS. 
 
 mortgage in the bill of complaint mentioned, has made his 
 report, from which it is ascertained that there was due to the 
 said defendant, on his mortgage, at the date of said report, the 
 sum of dollars; and it further appearing that the said 
 
 report has been duly confirmed; and now, on reading and filing 
 the affidavit of the said defendant, showing that the amount 
 reported due to the said defendant as aforesaid, has not been 
 paid pursuant to the decree of this court, made on the 
 day of , and the said master's report, nor any part thereof, 
 
 but that the said sum of dollars, and every part thereof, 
 
 still remains due and owing from the complainant to the said 
 defendant : It is, on this, &c , on motion of , of counsel 
 
 for the defendant, no person appearing on behalf of the com- 
 plainant, [although due notice has been given him of this applica- 
 tion,] ordered and decreed that the complainant's bill in this 
 cause do stand dismissed out of this court, with costs to be taxed ; 
 and that the defendant have execution for such costs, according 
 to the practice of this court. 
 
 STRICT FORECLOSURE. 
 
 Bill for strict foreclosure, (a) The form of a bill for 
 strict foreclosure is nearly the same as that of a bill of foreclosure 
 and sale. The prayer, however, is different, and in the follovnng 
 form: 
 
 To the end, &c., and that the said may discover, and in 
 
 manner aforesaid set forth, whether there is or are any other, 
 and what encumbrance or encumbrances upon or affecting the 
 said mortgaged premises, and if so, in whom the same is or are 
 vested ; and whether the same is or are not subsequent to your 
 orator's said mortgage, or how otherwise; and that an account 
 may be taken by and under the direction of this honorable 
 
 (o) The parties to a bill for strict And the proceedings from the filing 
 foreclosure are, in general, the same of the bill to the decree are also the 
 as to a bill of foreclosure and sale. same. 2 Barb. Ch. Pr. 187, et seq. 
 
STRICT FOEECLOSUKE. 387 
 
 court, of what, is due and owing to your orator for principal and 
 interest on his said mortgage; and that the said may be 
 
 decreed to pay to your orator what may be found due to him on 
 taking the said account, together with his costs of this suit, by a 
 short day, to be appointed by this honorable court for that pur- 
 pose; or in default thereof, that the said , and all persons 
 claiming by, from or under him, may be absolutely debarred and 
 foreclosed of and from all right and equity of redemption in or 
 to the said mortgaged premises and every part thereof; and that 
 he may deliver up to your orator all deeds, papers or writings 
 in his custody or power relating to or concerning the said mort- 
 gaged premises or any part thereof. And that {prayer for 
 general relief.) 
 
 {Prayer for subpoena.) 
 
 Decree for strict foreclosure.(a) {Commencement as on 
 pages 178 and 179, and add, "that it be referred to , one 
 
 of the masters of this court, to compute and ascertain what is 
 due to the complainant for principal and interest upon his bond 
 and mortgage mentioned in the bill in this cause.") 
 
 {If the mortgagee is or has been at any time in possession, add, 
 ^'and that the said master take an account of the rents and profits 
 of the mortgaged premises received by the said complainant, or 
 any person or persons by his order or for his use, and deduct what 
 shall appear to be due on account of such rents and profits from 
 such sum which shall be found due to the complainant for 
 principal and interest upon his said bond and mortgage.") 
 
 And it is further ordered and decreed, that upon the defend- 
 ant's paying to the complainant the amount which shall be 
 
 (a) Upon a bill for strict foreclosure, the foreclosure, and for the best price, 
 
 the estate becomes the property of the it has been held that he may proceed 
 
 mortgagee, in the character of pur- against the mortgagor on the bond for 
 
 chaser. He cannot have recourse at the difference. Took v. Hartley, 2 
 
 law on the bond for the deficiency, so Bro. C. C 125 ; S. C, Dick. 785; byt 
 
 long as he keeps the estate, because see also, 4 Kent's Com. 182. The time 
 
 the value of it is not ascertained, and allowed for redemption upon a bill of 
 
 the mortgagee cannot say what pro- strict foreclosure, rests in the disere- 
 
 portion of the debt remains due ; but tion of the court, 
 if the mortgagee sells the estate after 
 
388 FORMS OF PLEADINGS. 
 
 reported due to him for principal and interest, together with his 
 taxed costs of this suit, within days after the said master's 
 
 report shall have been confirmed, at such time and place as the 
 said master shall appointj the said compliainant do deliver up 
 possession of the mortgaged premises to the said defendant, and 
 cancel and discharge said mortgage of record. And it is further 
 ordered and decreed, that in default of the said defendant's pay- 
 ing to the said complainant such principal, interest and costs as 
 aforesaid, by the time limited as aforesaid, the said defendant 
 stand absolutely debarred and foreclosed of and from all equity 
 of redemption of, in and to the said mortgaged premises. 
 {For order confirming master's report, see page 385.) 
 
 Final order for foreclosure upon default of defend- 
 ant, (a) 
 
 ( Title of cause.) 
 
 This matter being opened to the court by , of counsel 
 
 with the complainant, and it appearing that by the decree dated, 
 &c., it was ordered and decreed, that it be referred to , 
 
 one of the masters, &c,, to compute, &c., and to take an account, 
 &c. ; and it further appearing, that in pursuance of said decree 
 the said master, on the {date,) reported that there would be due 
 to the complainant, for principal and interest, on his said mort- 
 gage, on the (dafe,) the sum of dollars, which said sum, 
 together with the costs of this suit, the said defendant was 
 thereby required to pay to the complainant, on, &c., at, &c. j 
 that he attended on the said {date,) in order to receive from the 
 said defendant the said sum of dollars, together with the 
 said costs, but the said defendant did not, nor did any person on 
 
 (a) If the mortgage money is not decree of strict foreclosure, which 
 
 paid, upon an affidavit of having duly does not find the amount due, which 
 
 attended and of the non-payment of allows no time for payment of the 
 
 the money, the complainant is enti- debt and redemption of the estate, 
 
 tied to an order of course that the and which is final and conclusive in 
 
 defendant stand absolutely debarred the first instance, cannot, unless au- 
 
 and foreclosed of and from all right, thorized by some special statute, be 
 
 title, suit and equity of redemption of, sustained. Clark v. Seybum, 8 Wail, 
 
 in and to the mortgaged premises. 1 318. 
 Smith 406 ; 2 Barb. Ch. Pr. 189. A 
 
STRICT FOBECL08UBE. 389 
 
 his behalf, attend to pay said sum ; and that the said moneys 
 have not, nor has any part thereof since been paid to the com- 
 plainant, but that the whole thereof and the said costs still 
 remain due and owing to him: It is, therefore, on this, &c., 
 ordered and decreed, that the defendants do from henceforth 
 stand absolutely debarred and foreclosed of and from all equity 
 of redemption of, in and to the said mortgaged premises. 
 
 Bill for strict foreclosure against an infant.(a) 
 
 (Address.) 
 
 Commence as on pages 331 to 335, according to the facts, then 
 proceed as follows : And your orator further shows, that after- 
 wards, to wit, on or about the day of , A. D. eighteen 
 hundred and , the said filed his bill of complaint in 
 this honorable court for the foreclosure of the said mortgage, in a 
 certain suit between him, the said , as complainant, and 
 and , his wife, (and others,) as defendants ; and that in such 
 suit such proceedings were had that, afterwards, to wit, on or about 
 the day of , A. J>. eighteen hundred and , a final 
 decree was made, wherein and whereby it was ordered, adjudged 
 and decreed, that the said mortgaged lands and premises, with 
 the appurtenances and all the estate, right, title, interest, use, 
 
 (a) It appears that in a case of a to have suggested that a decree for 
 
 legal foreclosure it is still necessary to sale was the proper course as against 
 
 insert in the decree a clause allowing an infant defendant; but in the award 
 
 an infant time after he becomes of of such decree no day to show cause 
 
 age [usually six months) to show cause is given. Now, however, in all fore- 
 
 against the decree, but the only cause closure suits the court is empowered, 
 
 which can be shown is error in the if it thinks fit, to direct a sale instead 
 
 decree ; he may not unravel the ac- of a foreclosure, and where it is for 
 
 count, nor is he so much as entitled to the benefit of the infant it is the prac- 
 
 redeem the mortgage by paying what tice to do so. Where the value of the 
 
 is due. Booth v. Rich) X Vern. 295 ; mortgaged property was clearly less 
 
 Newbury v. Marten, 15 Jur. 166, V- C. than the amount due on the mortgage 
 
 Ld. C. ; MaUack v. Oorton, 3 P. Wms. the court, at the hearing, made an 
 
 352 ; see 2 Kent Com. 245 ; Coffin v. absolute decree for foreclosure against 
 
 Seath, 6 Met. 81; Mills v. Dennis, 3 an infant defendant upon the com- 
 
 Johns. Ch. 368. In Price v. Carver, 3 plainant paying the infant's costs. 
 
 M. & C. 157, Lord Cottenham seems Orozon v. Lever, 10 Jur. {N. S.) 87. 
 
390 FOKMS OF PLEADINGS. 
 
 property, claim and demand of the said defendants of, in, to and 
 out of the same, should be sold to pay and satisfy unto the said 
 complainant the sum of dollars and cents, for prin- 
 
 cipal and interest due upon the said mortgage, with lawful in- 
 terest thereon from and after the day of , in the 
 year last aforesaid, until the same be paid and satisfied, together 
 with the complainant's taxed costs of suit, and that for that pur- 
 pose a writ of jieri facias should issue, to be directed to the 
 sheriif of the said county of , commanding him to make 
 sale as aforesaid, and to make return into this honorable court 
 of any surplus money arising from such sale, and that the costs 
 of the said complainant were duly taxed at dollars and 
 
 cents ; and that afterwards, to wit, on or about the 
 day of last aforesaid, a writ ot fieri facias was duly issued 
 
 out of the £aid court, directed to the said sheriff, and command- 
 ing him to make sale as aforesaid ; and that said writ was duly 
 delivered to the said sheriff; and that afterwards, to wit, on or 
 about the day of , in the year last aforesaid, the 
 
 said sheriff, having duly advertised the same, duly offered and 
 exposed the said mortgaged lands and premises for sale, at 
 public vendue, and duly struck off and sold the same unto your 
 orator, he being then and there the highest bidder for the same, 
 for the sum of dollars ; and that afterwards, to wit, on or 
 
 about the day and year last aforesaid, the said sheriff duly 
 granted and conveyed the said land and premises, with the ap- 
 purtenances, unto your orator, for the consideration aforesaid, 
 in and by his certain deed of conveyance, bearing date on the 
 said day and year last aforesaid; and that said deed was duly 
 signed and executed, and was duly approved and ordered to be 
 recorded, and was duly recorded in Book of Deeds, for 
 
 the said county of , on page , &c. ; and your orator 
 
 prays leave to refer, not only to said deed and the said record 
 thereof, but also to the record of the said proceedings in said 
 suit, and the said writ of fieri facias and the sheriff's return 
 thereupon. 
 
 And your orator further shows that recently, and since the 
 purchase by him made as aforesaid of the said land and prem- 
 ises, and since his acceptance of the said deed of conveyance 
 
STEICT F0KECL08UBB. 391 
 
 therefor from the said sheriff, it hath been discovered that one 
 of the children and heirs of the said , begotten upon the 
 
 body of his said -wife, the said , to wit, his certain child 
 
 and heir known as , a minor, and being between the ages 
 
 of fourteen and twenty- one years, and unmarried, was accident- 
 ally omitted from the list of the defendants in the said proceed- 
 ings of foreclosure and sale; and that, as against her, the said 
 , the said proceedings are irregular, incomplete and incon- 
 clusive; and that her interest, (if any she have,) in the said land 
 and premises, remains as before the said proceedings were had 
 or taken; and that if she have any such interest, she is now 
 entitled, or may hereafter be entitled, to redeem said land and 
 premises upon the payment of said mortgage moneys, and 
 interest, and the taxed costs of said suit, and the execution fees 
 upon the said sale, and the costs of the present proceeding, and 
 in no other way or manner whatsoever. 
 
 And your orator expressly charges and insists, that he pur- 
 chased the said land and premises at the said sale by the said 
 sheriff, in good faith, and for an actual consideration ; and that 
 as the grantee of the said sheriff, under the said writ oi fieri 
 fadaa, he is subrogated to the rights of the said , as the 
 
 complainant in the said suit; and that the said deed of convey- 
 ance of said land and premites, by the said sheriff unto your 
 orator, operated as a voluntary assignment of the said deed of 
 mortgage, together with the accompanying bond, and all moneys 
 due and to grow due upon the same; and that your orator is 
 therefore entitled to receive all of the said moneys, with interest 
 and costs ; and that your orator is also entitled to the protection 
 and aid of this honorable court in the enforcement of such claim 
 against the said , or any other person or persons deriving 
 
 title from or through her to the said land and premises, or any 
 part of the same. 
 
 And your orator further shows, that dollars and 
 
 cents, for principal and interest money mentioned in the said 
 bond or obligation, and secured thereby and by the said deed of 
 mortgage, with large arrears of interest, to wit, with interest at 
 the rate of per cent, per annum, from and after the said 
 
392 FORMS OF PLEADINGS. 
 
 day of , A. D. eighteen hundred acd , (as 
 
 stated in the eaid final decree of foreclosure,) still remains due 
 and owing to your orator, no part thereof having been paid to 
 your orator, so that your orator is greatly delayed and disap- 
 pointed in the receipt of the said moneys, by means of which 
 said several premises the said deed of mortgage, and the estate 
 thereby mortgaged as aforesaid, have become absolute in your 
 orator and his heirs. 
 
 And your orator further shows and expressly charges, that 
 the said mortgaged premises are a slender and scanty security 
 for the payment of the said principal and interest moneys so due 
 to your orator as aforesaid, and that he or some other person or 
 persons for him hath frequently and in a friendly manner 
 applied to the said , and requested her to pay and dis- 
 
 charge the said principal and interest moneys so due to your 
 orator on the said bond or obligation and deed of mortgage 
 hereinbefore mentioned and set forth; and your orator well 
 hoped that she would have complied with such reasonable 
 requests of your orator, and would have paid to him the said 
 principal and interest moneys so as aforesaid due to your orator 
 on the said bond or obligation and deed of mortgage, as in equity 
 and good conscience she ought to have done. 
 
 In tender consideration whereof, and forasmuch as your 
 orator hath not a complete and safe remedy in the premises at 
 and by the strict rules of the common law, nor can foreclose the 
 equity of redemption of the said mortgaged premises, or safely 
 sell the same for the payment and satisfaction of the said prin- 
 cipal and interest moneys so as aforesaid due to your orator on 
 said bond and obligation and deed of mortgage, without the aid 
 and decree of this honorable court : To the end, therefore, that 
 the said may discover, and upon her corporal oath set 
 
 forth whether there is or are any other and what encumbrance 
 or encumbrances upon or affecting the said mortgaged land and 
 premises, and, if any, in whom the same is or are vested, and 
 whether the same is or are subsequent to your orator's said 
 mortgage, or how otherwise; and that an account may be taken, 
 by and under the direction of this honorable court, of what is 
 
STRICT FOEECLOSUEB. 393 
 
 due and owing to your orator for principal and interest on his 
 said mortgage; and that the said may be decreed to pay 
 
 to your orator what may be found to be due him on the taking 
 of the said account, together with the costs of this suit, by a 
 short day to be appointed by this honorable court for that pur- 
 pose; and in default thereof that the said defendants, and all 
 persons claiming or to claim under them, or any or either of 
 them, may be absolutely debarred and foreclosed of and from 
 all equity of redemption or claim of, in and to the said mort- 
 gaged premises, and every part and parcel thereof, with the 
 appurtenances, and may deliver over unto your orator all deeds, 
 demises, and writings whatever relating to or concerning the 
 same ; or that all and singular the said mortgaged premises, with 
 the appurtenances, may, by the order and decree of this honor- 
 able court, be sold, and out of the moneys arising from the sale 
 thereof, your orator may be paid the full amount of the said 
 principal sum of money so due to your orator on the said bond 
 or obligation and deed of mortgage as aforesaid, and all the 
 interest now due and to grow due thereon, together with all 
 your orator's costs and charges in this behalf sustained. 
 {Prayer Jor general relief and subpoena.) 
 
 Interlocutory decree. 
 
 ( IMle of cause.) 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that due notice of the 
 order of this court, made on the day of last past, 
 
 directing the said defendant (who resides out of the State of 
 New Jersey) to appear, plead, demur or answer the complain- 
 ant's bill of complaint on or before the day of 
 then next, and now instant, has been duly servtd personally 
 upon the said defendant in the manner and as in the said order 
 directed and prescribed ; and that , esquire, the clerk of 
 the said court, hath been duly assigned and appointed the 
 guardian of the said defendant, (who is an infant under the age 
 of fourteen years,) by whom she may appear and answer and 
 defend this suit ; and that an appearance in said suit hath been 
 
394 FOEMS OF PLEADINGS. 
 
 duly entered for said defendant by the said guardian ad litem, 
 and that the said defendant hath not filed any plea, demurrer 
 or answer to said bill within the time limited by law and the 
 said order, but hath wholly failed and neglected so to do : It is 
 thereupon, on this day of , A. D. eighteen hundred 
 
 and ., ordered, adjudged and decreed, that it be referred 
 
 to , esquire, one of the masters of this court, to ascer- 
 
 tain the truth of the allegations of the complainant's said bill, 
 and to compute and ascertain and report the amount due to 
 the complainant for principal and interest upon the certain 
 bond and mortgage mentioned in said bill, and that said mas- 
 ter take an account of the rents and profits of the mortgaged 
 premises received by the said complainant, or by any person or 
 persons by his order or for his use, and deduct what shall appear 
 to be due on account of such rents and profits from such sum 
 which shall be found to be due to the said complainant for prin- 
 cipal and interest upon said bond and mortgage, and to report 
 accordingly; and also to ascertain and report whether the mort- 
 gaged premises (if the same shall be sold under the order and 
 decree of this court) should be sold together or in parcels, and, 
 if in parcels, in what order, and any other special matter he may 
 deem proper or shall appear for the benefit of the said defendant; 
 and that the said special master do make his report thereon with 
 all convenient speed. 
 
 And it is further ordered and decreed, that, upon the said 
 defendant's paying to the complainant the amount which shall 
 so be reported due to him, for principal and interest, together 
 with his taxed costs of this suit, within thirty days after the said 
 master's report shall have been confirmed, at such time and place 
 as the said master shall appoint, the said complainant do deliver 
 up possession of the mortgaged premises to the said defendant, 
 and cancel and discharge said mortgage of record ; and that, in 
 default of such payment, in the manner and within the time 
 aforesaid, the said defendant stand absolutely debarred and fore- 
 closed of and from all equity of redemption of, in and to the 
 said mortgaged premises. 
 
STRICT FOKECLOSURE. 395 
 
 Order confirming master's report. 
 
 (Title of cause.) 
 This matter being opened to the court by , of couDsel 
 
 with the complainant, and it appearing that by the certain 
 decree of the court, made on the day of , A. D. 
 
 eighteen hundred and , it was ordered, adjudged and 
 
 decreed that it should be referred to , esquire, one of the 
 
 masters of the court, to ascertain the truth of the allega- 
 tions of the complainant's bill, and to compute and ascertain 
 and report the amount due to the complainant for principal and 
 interest upon the certain bond and mortgage mentioned in 
 said bill, and that said master should take an account of the 
 rents and profits of the mortgaged premises received by the 
 complainant, or by any per^n or persons by his order or for 
 his use, and deduct what shall appear to be due on account of 
 such rents and profits from such sum which shall be found to 
 be due to the said complainant for principal and interest upon 
 said bond and mortgage, and to report accordingly ; and also to 
 ascertain and report whethef the said mortgaged premises (if 
 the same shall be sold under and by the order and decree of this 
 court) should be sold together, or in parcels, and, if in parcels, 
 in what order; and any other special matter he might deem 
 proper, or which should appear for the benefit of the said 
 defendant ; and it further appearing, that in pursuance of said 
 decree, the said master, on the day of , a. d. 
 
 eighteen hundred and , reported that there would be 
 
 due to the complainant for principal and interest upon his said 
 bond and mortgage, on the date last aforesaid, (that being the 
 date of the said master's report,) the sum of dollars and 
 
 cents, and that he had taken an account of the rents and 
 profits of the mortgaged premises, received by the complainant, 
 or by any person or persons by his order or for his use, and that 
 said rents and profits amount to the sum of dollars, and 
 
 that he hath deducted the said last- mentioned sum from the said 
 amount so as aforesaid due for principal and interest upon the 
 said bond and mortgage, leaving the net sum of dollars 
 
 and cents, as being due to the said complainant, on the 
 
396 FOKMS OF PLEADINGS. 
 
 day of the date of said report, for principal and interest upon 
 the said bond and mortgage ; and that if the mortgaged premises 
 shall be sold under and by the order and decree of this court, 
 the same shall be sold together, and not in parcels ; and that he 
 hath appointed , the day of next, between 
 
 the hours of o'clock in the forenoon and o'clock in 
 
 the afternoon, and his office in the , on street, in 
 
 the city of , in the county of , as the time and place 
 
 when and where the said defendant shall pay to the complain- 
 ant the said sum of dollars and cents, as the amount 
 so reported as being due to him, the said complainant, for prin- 
 cipal and interest as aforesaid, together with his taxed costs of 
 this suit : It is, on this day of , A. D. eighteen 
 hundred and , by his Honor , Chancellor of the 
 said State of New Jersey, ordered that the said master's report, 
 and all matters and things therein contained, do stand ratified, 
 confirmed and approved, and that the said defendant do pay to 
 the said complainant the said sum of dollars and 
 cents, for principal and interest aforesaid, at the time and 
 place aforesaid, as so appointed by the said master, and that 
 thereupon the said complainant shall deliver up the possession 
 of the said mortgaged premises to the said defendant, and cancel 
 and discharge the said mortgage of record. 
 
 Master's report of defendant's failure to attend 
 and redeem, &c. 
 
 {Title of cause.) 
 
 To»his Honor , Chancellor of the State of New Jersey : 
 
 I, , one of the masters of the said Court of Chan- 
 
 cery, do hereby respectfully report that, pursuant to the ap- 
 pointment heretofore made by me, I duly attended, at my 
 office, in the , on street, in the city of , in 
 
 the county of , on , the day of instant, 
 
 between the hours of o'clock in the forenoon and 
 
 o'clock in the afternoon, and that I was then and there attended 
 by , esquire, one of the solicitors of the complainant, and 
 
 who was then acting for and in behalf of said complainant, and 
 
8TEICT FOKECLOSTJEB. 397 
 
 who then and there had in his possession, and exhibited to me, 
 the certain indenture of mortgage and the accompanying bond, 
 which were duly proved before me (as appears by my former 
 report, bearing date on the day of last past,) and upon 
 
 which I have reported as aforesaid that there was due to the 
 complainant, on the day of the date of such report, the net sum 
 of dollars and cents, for principal and interest 
 
 money; but that neither the said defendant nor her guardian 
 ad litem, (although he was duly notified of the time, place and 
 object of such appointment, as may appear by a copy of my 
 notice given to him, hereto annexed, with his written acknowledg- 
 ment of the service thereof upon him endorsed thereupon,) nor 
 any other person or persons acting in his, her or their behalf, 
 appeared before me at the time and place aforesaid, or at any 
 other time ; and that neither the said defendant nor her said 
 guardian ad litem, nor any other person or persons as aforesaid, 
 paid or offered to pay to the said complainant, or his said 
 solicitor, the said sum of money above mentioned, or the com- 
 plainant's taxed costs of suit, or any part thereof, at the time 
 and place aforesaid. {Signature of master.) 
 
 Dated ,18 . 
 
 New Jersey, ss. — maketh oath and saith — that he is 
 
 one of the solicitors of the complainant in the above-stated suit, 
 and the person actually having the charge and management of 
 the said suit, and that, being also thereunto specially authorized 
 by the said complainant, he attended^ at the office of , 
 
 esquire, one of the masters of the said court, in the , 
 
 on street, in the city of , in the county of , 
 
 on , the day of instant, between the hours 
 
 of o'clock in the forenoon and o'clock in the after- 
 
 noon, and that he then and there had in his possession the 
 certain indenture of mortgage mentioned in the complainant's 
 bill of complaint in the said cause, to wit, a certain indenture 
 of mortgage, made by one to one , dated , 
 
 A. D. eighteen hundred and , and registered in Book 
 
 of Mortgages for the said county of , on page , to- 
 
 gether with the certain bond or obligation accompanying the 
 
398 FORMS OF PLEADINGS. 
 
 same, and the two certain deeda of assignment thereof mentioned 
 and set forth in the said bill of complaint ; and that this depo- 
 nent was then and there fully authorized, empowered and pre- 
 pared, on the part of said complainant, to carry out and perform 
 all the orders and directions of the said court, as contained in its 
 certain order made on the day of last past ; but that 
 
 neither the said defendant, nor , esquire, her guardian ad 
 
 litem, nor any other person or persons in his, her or their behalf, 
 attended at the time and place aforesaid ; nor have or hath any 
 or either of them, at the time and place aforesaid, or at any time 
 afterward, paid, or offered to pay, unto this deponent, or unto 
 the said complainant, the certain sum of money, to wit, 
 dollars and cents, which was found and reported by the 
 
 said master to be due to the said complainant for principal and 
 interest upon the said bond and mortgage, on the date of said 
 report, with the complainant's taxed costs of suit, or any part 
 thereof; and further deponent saith not. 
 
 Sworn, &c. (Signature.) 
 
 Notice to guardian ad litem. 
 
 {Title of cause.) 
 To , guardian ad litem of , defendant : 
 
 Sir — Take notice that, in pursuance of an order in the above- 
 stated cause, made on the day of last past, I have 
 appointed , the day of next, between the 
 hours of o'clock in the forenoon and o'clock in the 
 afternoon, and my office in the , on street, in the city 
 of , in the county of , as the time and place when 
 and where the defendant shall pay to the complainant the sum 
 of dollars and cents, as and for the net amount of 
 principal and interest money found to be due to him, on the 
 day of instant, upon his certain bond and mort- 
 gage mentioned in his bill of complaint, together with the sum 
 of for his taxed costs in this suit, and when and where 
 (such payment being made) the said complainant shall deliver 
 
STRICT FOEECLOSUEE. 399 
 
 up to the said defendant the possession of the mortgaged prem- 
 ises, and cancel and discharge said mortgage of record. 
 
 {Signature of master.) 
 Dated ,18 . 
 
 Final decree. 
 
 {Title of cause.) 
 
 This cause coming on to be heard in the presence of , 
 
 solicitor for and of counsel with the complainant, the clerk of 
 this court having been duly appointed guardian ad litem of the 
 defendant, (who is an infant,) and having duly entered an 
 appearance for her; whereupon, and upon reading a report, 
 on file, made by , esquire, one of the masters of the 
 
 court, bearing date on the day of , A. D. eighteen 
 
 hundred and , from all which it appears that there was 
 
 due to the complainant, (as the purchaser of the mortgaged 
 premises, at a certain foreclosure sale thereof, under a certain 
 decree made in a certain suit in this court, wherein one 
 was complainant and one and , his wife, and others, 
 
 were defendants, the said being the assignee, under two 
 
 certain mesne assignments, of a certain mortgage, dated , 
 
 A. D. eighteen hundred and , made by said to one 
 
 , and registered in Book of Mortgages for the 
 
 county of , on page ,) on the day of the making of 
 
 the said report, for principal and interest, upon the said mort- 
 gage, the net sum of dollars and cents, after deduct- 
 iog the rents and profits received by the said complainant, or by 
 any person or persons by his order or for his use, of and from 
 the mortgaged premises described in said bill ; and that the said 
 master had appointed , the day of , A. D. 
 eighteen hundred and , between the hours of o'clock 
 in the forenoon and o'clock in the afternoon, and his office 
 in the , on street, in the city of , in said 
 county of , as the time and place when and where the 
 defendant should pay to the complainant the said net sum of 
 
 dollars and cents, together with his taxed costs of 
 
 this suit, and when and where the complainant should deliver 
 
400 FORMS OF PLEADINGS. 
 
 up the possession of the said mortgaged premises to the defend- 
 ant, and cancel and discharge his said mortgage of record, and 
 that (if the said premises should be sold under and by the order 
 and decree of this court) the same should be sold together 
 and not in parcels; and that he, the said master, knew of no 
 other special matter which he deemed proper, or which appeared 
 for the benefit of the said defendant ; which report was, on the 
 day of , in the year last aforesaid, duly confirmed 
 
 and ratified by the said court; and it also appearing that the 
 complainant's costs of suit, up to that stage in the proceed- 
 ings, had been duly taxed at ; whereupon, and upon 
 reading a certain other report, on file, made by the said master, 
 bearing date on the said day of aforesaid, and the 
 certain aflfidavit of , esquire, one of the said solicitors of 
 the complainant, attached to said report, by which it appears 
 that the said master and the said solicitor (he being thereunto 
 duly authorized and empowered by the complainant) duly 
 attended at the time and place so appointed as aforesaid, and 
 that neither the said defendant, nor her said guardian ad litem, 
 (although duly notified, as appears by his acknowledgment 
 thereof, in writing,) nor any other person or persons in his, her 
 or their behalf, appeared at the time and place aforesaid ; and 
 that neither the said defendant, nor her said guardian ad litem, 
 nor any other person or persons in his, her or their behalf, has 
 or have paid, or tendered or offered to pay, unto the said com- 
 plainant, or his said solicitors or either of them, the said sum of 
 money, to wit, dollars and cents, so found and 
 reported to be due to said complainant, upon his said mortgage, 
 with his said taxed costs of suit, either at the time and place 
 aforesaid, or at any other time and place : It is thereupon, on 
 this day of , A. D. eighteen hundred and , by 
 his Honor , Chancellor of the State of New Jersey, 
 ordered, adjudged and decreed, and the said Chancellor doth, 
 by virtue of the power and authority of this court, hereby order, 
 adjudge and decree, that the said complainant, as the said pur- 
 chaser of the said mortgaged premises, at the sale thereof upon 
 the foreclosure of the said mortgage, is subrogated to the rights 
 
STRICT FOEECLOSUEE. 401 
 
 of the said , the assignee of said mortgage and the com- 
 
 plainant in such former suit; and that the conveyance of said 
 mortgaged premises, in said foreclosure suit and sale unto the 
 complainant, operated as a voluntary assignment unto him, the 
 said complainant, of the said mortgage, and the accompanying 
 bond, and of all moneys due and to grow due upon the same; 
 and that the complainant is entitled, as such assignee, to the aid 
 and protection of this court; and the said Chancellor doth 
 further order, adjudge and decree, that the said last-mentioned 
 report of the said master, and all the matters and things 
 therein contained, do stand ratified and confirmed, and that the 
 said mortgaged premises be sold to raise and satisfy the said sum 
 of money so due to the said complainant, that is to say, the said 
 sum of dollars and cents, together with lawful 
 
 interest thereon, to be computed from the said day of 
 
 , A. D. eighteen hiindred and — that being the date 
 
 of the said master's first-mentioned report — with the complain- 
 ant's costs in this cause to be taxed, including a counsel fee of 
 
 dollars ; and that a writ of fieri facias do issue for that 
 purpose out of this court, directed to the sheriff of the county of 
 
 , commanding him to make sale, according to law, of the 
 said mortgaged premises, and that, out of the money arising 
 from such sale, he pay to the complainant, or to his solicitors, 
 his said debt, interest and costs; and in case more money should 
 be raised by the said sale than shall be sufficient to answer such 
 payment, that such surplus be brought into this court, to abide 
 the further order of the court, unless otherwise previously dis- 
 posed of by the order of this court ; and that the said sheriff 
 make return without delay of his proceedings by virtue of the 
 said writ. 
 
 And it is further ordered, adjudged and decreed, that the said 
 defendant, , stand absolutely debarred and foreclosed of 
 
 and from all equity of redemption of, in and to the said mort- 
 gaged premises, when sold as aforesaid by virtue of this decree. 
 
 2a 
 
402 
 
 FOKMS OF PLEADINGS. 
 
 PARTITION.(a) 
 
 Bill for partition. 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, shows unto your Honor your oratrix, , 
 
 of the township of , in the county of 
 
 (a) Jurisdiction. Concurrent jur- 
 isdiction is held by courts of law and 
 ■equity in matters of partition. Harts- 
 home V. Hartshorne, 1 Or. Oh. 349. 
 Partition is a matter of rigtt, and by 
 tlie ancient practice, both at law and 
 in equity, actual partition was made, 
 however prejudicial it might be to 
 the interests of the parties. Bentley 
 V. Lmg Dock Co., 1 McCart. 480, 2 
 McOari. 501. To remedy this evil, 
 the statute of 1816 {Rev., "Partition,'' 
 i 16,) was enacted, authorizing a sale 
 of the land when the commissioners 
 reported that a partition could not be 
 made without great prejudice ; and by 
 the act of 1846 {Bev., "Partition," I 
 39,) the same power was conferred 
 upon the Court of Chancery upon 
 bills filed for partiton Ibid. Any 
 person being a coparcener, joint ten- 
 ant or tenant in common in any tract 
 •of land within this state, may apply 
 for partition. Rev., "Partition,'' | 1. 
 As to coparceners, see 4 Ken^s Com. 
 *366, 367. An executor, &c., with 
 power of sale may also have partition. 
 Pamph. i., 1888, p. 8 1 . Such partition 
 may be made, notwithstanding the 
 ishare held by any coparcener, joint 
 tenant or tenant in common, may be 
 for a less estate than a fee, or may be 
 limited over after an estate for life, or 
 any estate therein ; and such partition 
 shall bind all tenants of such share, 
 in remainder, reversion or expect- 
 ancy, who shall be entitled only to 
 that part of the lands partitioned as 
 
 and 
 
 may be set off in severalty to the 
 share upon which such remainder 
 or expectancy is liinited. Rev., "Parti- 
 tion," § 25 ; Diament v. Lore, 2 Vr. 
 220. Upon a bill for partition among 
 remaindermen, the consent of the 
 owner of the particular estate in 
 possession is requisite, and if a sale 
 be ordered, it must be a sale of the 
 whole estate, as well that in posses- 
 sion as that in expectancy. Smith v. 
 Oaines, 12 Stew. Eq. 545. A part of the 
 lands included in the application may 
 be divided, and the remainder sold, 
 when it appears that the whole cannot 
 be divided without great prejudice. 
 Re.v., "Partition," | 37. "Where the 
 land may be divided, without great 
 prejudice, a sale will not be ordered. 
 Lacey v. Soiolby, April, 1825. Un- 
 der the statute, where a partition can- 
 not be made without prejudice, the 
 complainant is entitled as of course 
 to have a sale made of the premises. 
 Bentley v. Long Dock Co., 1 McOart. 
 480. There can be no division of 
 real estate, under the act of Novem- 
 ber 11th, 1789, where the ancestor has 
 given or advanced to his children in 
 his lifetime any part of his lands or 
 tenements. StaAe v. Rickey, 3 Hal. 
 50. A bill for partition will not lie 
 where the title is denied, or depends 
 on doubtful facts or questions of law. 
 Demtt V. Ackerman, 2 C. E. Or. 215 ; 
 Van Riper v. Berdan, 2 Gr. 140. 
 Where a bill prays for partition, and 
 the defendants deny complainant's 
 
PAETITION. 
 
 403 
 
 State of New Jersey, , wife of , that , late 
 
 of the township of aforesaid, deceased, the father of your 
 
 oratriz, was, at the time of his death, seized in fee simple 
 
 title, if the title in dispute is an 
 equitable one, it is the duty of the 
 court to settle it. If it is a legal title, 
 the court may dismiss the bill, or may 
 retain the cause, and afford the party 
 an opportunity of settling his title at 
 law. Lucas v. King, 2 Stock. 277 ; 
 Manners v. Manners, 1 Gi: Ch. 384 ; 
 Obert V. Obert, 1 Hal. Ch. 397 ; 2 
 Stock. 98 ; Hay v. Estell, 3 0. E. Qr. 
 251 ; Riveroiew Cemetery Co. v. Turner, 
 9 C. E. Or. 18 ; Slockbower v. Kanouse, 
 5 Dick. Ch. Hep. 48 1. The mere denial 
 of the complainant's title is no obstacle 
 to the proceedings. The defendant 
 must answer the bill, and if he sets up 
 a title adverse to the complainant, or 
 disputes the complainant's title, he 
 must discover his own. Lucas v. King, 
 supra. 
 
 In a suit for partition in chancery, 
 where a defendant sets up an equitable 
 title to the whole estate in the prem- 
 ises, or impeaches the complainant's 
 title on equitable grounds, the court 
 will not suspend the suit until the 
 title be settled, but will pass upon 
 such title and settle all disputes con- 
 •cerning it in the partition suit, and 
 grant relief accordingly. Bead v. 
 Huff, 13 Stew. Eq. 229. 
 
 In equity there is no necessity that 
 a partition should be so made as to 
 give each party a share in every part 
 of the property. Each party must 
 have his share in value, which is all 
 that is required. Brookfield v. Wil- 
 liams, 1 Or. Ch. 341. Equal partition 
 of each parcel among all the owners 
 is not required. A partition so made, 
 without necessity, and practically de- 
 structive of the value of the parcel 
 •divided, will be set aside. Haulen- 
 beck V. Cronkright, 11 C. E. Or. 159. 
 
 Parties. A suit in the Court of 
 Chancery for partition must be insti- 
 tuted by bill. By the English prac- 
 tice, a bill for partition might be filed 
 by an infant, through his next friend. 
 Lord Brook v. Lord Hertford, 2 P. 
 Wms. 519. In New York, a lunatic, 
 together with his committee, could 
 bring his bill for partition of lands. 
 Oorham v. Oorham, 3 Barb. Ch. 24; 
 see also Story's Eq. PL, ? 84; Willii^ 
 Eq. PL, p. 4. And such is the estab- 
 lished practice in New Jersey. 
 
 The complainant must take out and 
 serve a subpoena, as in ordinary suits, 
 directed to all parties (by name) who 
 are known, whether their interests are 
 known, or are uncertain, contingent 
 or unknown. If any parties are un- 
 known, or if either of the known 
 parties, whether minors or adults, re- 
 side out of this state, or conceal them- 
 selves, or cinnot be found therein, 
 and such facts are shown to the court 
 by affidavit, such unknown or absent 
 parties may be served by publication 
 and notice, in the manner provided by 
 law. See ante, "Absent defendants," 
 page 28. Where real estate is held by 
 coparceners, joint tenants or tenants in 
 common, any of whom shall be pre- 
 sumed to be dead, pursuant to Rev., 
 "Death," § 4, and it shall not be 
 known whether such owner is living 
 or not, or whether, if dead, he or she 
 has devised his or her interest in such 
 real estate, or who are his or her heirs- 
 at-law, the other coparceners, joint 
 tenants or tenants in common, or any 
 one of them, may commence a suit by 
 bill for partition in the Court of Chan- 
 cery, in the same manner as if all the 
 owners of such real estate were known, 
 making parties thereto as well such 
 
404 
 
 FOEMS OF PLEADINGS, 
 
 of a certain farm or tract of land, situate in the township 
 of , in the county of , bounded and described 
 
 as follows, to wit, {here insert description,) and being so seized 
 
 owner so presumed to be dead, by his 
 right name, as his heirs-at-law and 
 devisees, by the right name of such of 
 them (if any there be) as shall be 
 known to be his or her heirs-at-law, if 
 such owner were actually dead, and 
 by the name of the unknown heirs-at- 
 law and devisees of such owner, by 
 the service of a subpoena to answer, as 
 in other suits in the said court, or by 
 a publication, according to the law and 
 practice of said court in case of absent 
 defendants, and by such further pub- 
 lication as is provided for by Mev., 
 "Partition," § 31, and thereupon such 
 proceedings shall be had as are 
 directed by the act to which this is a 
 supplement ; and the Chancellor shall 
 have the power to make such decree 
 against the said owner so presumed to 
 be dead and against his heirs-at-law, 
 known or unknown, and his unknown 
 devisees, as if they were known to the 
 court, and their respective interests in 
 such real estate determined ; and shall 
 also have all such power and author- 
 ity, in respect to the cases herein pro- 
 vided for, as is granted to him by the 
 act to which this is a supplement in 
 respect to the cases therein provided 
 for ; and any deed or deeds for such 
 real estate made pursuant to the de- 
 cree and order of the Chancellor in 
 any such cases, shall convey all right, 
 title and estate of all the owners of 
 such real estate, ascertained and un- 
 ascertained, as completely and eflFectu- 
 ally as if all the owners were by name 
 made parties to said bill, and as such 
 brought before the court. Mev., "Par- 
 tition," p. 1375. Encumbrances upon 
 the property constitute no objection 
 to a partition. As regards real estate, 
 
 it is not necessary that the encum- 
 brancer should be a party to the 
 suit for partition. His rights are not 
 affected by it. Low v. Holmes, 2 C. E. 
 Or. 150; Speer v. i^eer, 1 MeOart. 
 240. If, by the defendant's answer, 
 or otherwise, in the progress of the 
 cause, the existence of an encum- 
 brance shall be established, the en- 
 cumbrancer may be made a party, and 
 his rights protected. Low v. Holmes, 
 ut sup. Neither the administrators 
 nor the creditors of an intestate have 
 any such interest in the land as 
 renders them necessary parties. jSjpeer 
 V. Speer, ut sup. A partition will not 
 affect any rights, legal or equitable, 
 which the creditor may have. If the 
 land is liable for debts before the par- 
 tition, it will remain so afterwards. 
 Should the lands be found incapable 
 of partition, and a decree for sale be- 
 come necessary, it may then become 
 a question how the rights of creditors 
 should be protected. The court is 
 inclined, on bills for partition, to 
 protect the interest of all parties hav- 
 ing legal or equitable claims upon 
 the lands Ibid. If there be, at 
 the time of making any partition, a, 
 lien upon the undivided estate of any 
 owner by judgment, decree, mortgage 
 or otherwise, such lien shall thereafter 
 be a lien only on the share allotted to 
 such owner ; and such share shall be 
 first charged with its proportion of 
 the costs of the partition, in preference 
 to any such lien. Mev., "Partition," 
 i 36 ; Kline v. MeOuchin, 9 C. E. Or. 
 411. A subsequent statute has altered 
 the law on this subject and has author^ 
 ized the court to decree a sale which 
 will give the purchaser a perfect title 
 
PARTITION. 
 
 405 
 
 thereof, he, on or about the day of , eighteen 
 
 hundred and , died intestate, leaving , his widow, 
 
 and also leaving , (your oratrix,) and and , 
 
 his only children and heirs-at-law ; and that by his death, intes- 
 tate as aforesaid, the said farm and premises descended to his 
 
 discharged from all liens and encum- 
 brances on an undivided share. Rev. 
 Sup., "Partition," p. 783. 
 
 If partition can be and is made, the 
 dowress is not a necessary patty to 
 the suit. Haulenbech y. Cronhright, 8 
 ■ C. E. Or. 407. But it is provided by 
 statute, that in proceedings for parti- 
 tion of lands, if it shall appear to the 
 court in which such proceedings are 
 pending, that any person is entitled to 
 an estate in dower, or by the curtesy 
 in the whole or any part or share of 
 the premises, it shall be lawful for the 
 court at the time of making the order 
 for the sale of such premises, to con- 
 sider and determine, under all the 
 circumstances of the case, having re- 
 gard to the interests of all persons in- 
 terested, whether such right or estate 
 in dower, or by the curtesy, should be 
 excepted from such sale, or whether 
 the same should be sold, and to order 
 and decree accordingly ; the purchaser 
 under such decree, his heirs and 
 assigns, will hold the premises free and 
 discharged from all claims by virtue 
 of such dower or curtesy. Rev., 
 "Sale of Lands," I 18. Therefore, 
 whenever there is a widow entitled to 
 dower, or a tenant by curtesy, it is 
 advisable to make them parties, 
 especially if a sale be necessary. And 
 the same remark may be applied to 
 married women having mere inchoate 
 rights of dower. It was held in New 
 York that in proceedings in partition, 
 the inchoate rights of dower of femes 
 covert, whether infants or adults, in the 
 undivided shares of their husbands in 
 the land, the wives being parties to 
 
 the proceedings, were divested by a, 
 sale under the decree of the court, so 
 as to protect the purchasers against 
 the dower of such femes covert, should 
 they survive their husbands. Jackson 
 V. Edwards, 7 Paige 386. This prac- 
 tice is now regulated by statute. Reo. 
 Sup., "Partition," ? 13. And it has 
 been held that a railroad corporation 
 is not a necessary or proper party to 
 partitidh proceedings, in consequence 
 merely of having laid out and con- 
 structed its road over lands owned by 
 tenants in common. Weston v. Foster, 
 7 Meic. 297. A party who has merely 
 a future contingent interest in an un- 
 divided share of real estate, cannot 
 sustain a suit for a partition of the 
 property. Striker v. MoU, 2 Paige 
 387. A mere reversioner, without the 
 concurrence of any of the owners of 
 the present interest in the premises, 
 has no right to file a bill for partition. 
 But a reversioner is a necessary party, 
 where a bill is filed by a person who 
 is owner of an undivided share of the 
 reversion as well as of an undivided 
 share of the present interest in the 
 property. The reversioner is also a 
 necessary party, where the suit is 
 brought by an owner of the undivided 
 share of the premises for life, or of 
 any other particular estate in the 
 same, and some of the other parties 
 own the residue of the premises in fee. 
 Ibid. As to whether a complainant 
 in a partition suit is bound to take 
 notice of the marriage of a male de- 
 fendant pendente lite, and practice 
 thereon, see Jackson v. Edwards, 7 
 Paige 386. 
 
406 
 
 FORMS OP PLEADINGS. 
 
 said children, who became seized thereof as tenants, in common 
 in fee simple, subject to the right of dower of his said widow in 
 the same. 
 
 And your oratrix further shows unto your Honor, that after 
 
 the death of the said , and on or about the day of 
 
 , eighteen hundred and , your oratrix was married 
 
 to her present husband ; and that she remained upon' the said 
 
 premises with her mother and family until the day of 
 
 , eighteen hundred and 
 
 And your oratrix further shows, that the defendant, , is 
 
 a married man, and that his wife's name is , and that she 
 
 claims an inchoate right of dower in the share of said lands of 
 which her husband is seized.(a) 
 
 And your oratrix further shows unto your Honor, that the 
 said and are infants under the age of twenty-one 
 
 years ; and that they reside with their mother, the said , 
 
 in part of the dwelling-house upon the said farm. 
 
 (a) All inchoate rights of dower in 
 lands ordered by the Chancellor to be 
 sold therein, may be sold by order of 
 the court, and in such case, the court 
 shall direct one-third of the net pro- 
 ceeds of the sale of the share which is 
 subject to such dower to be invested, 
 and the income thereof, during the 
 lifetime of the tenant in fee of such 
 share, to be paid to such tenant, or to 
 the lienors upon such share ; and 
 upon the death of such tenant, said 
 income shall be paid to the tenant in 
 dower during her life, and upon her 
 death, the court shall order the prin- 
 cipal of said fund to be paid to the 
 heirs-at-law of the tenant in fee or to 
 parties holding liens upon said share 
 at the time of the sale thereof and re- 
 maining unsatisfied at the death of 
 the tenant in dower, as equity may 
 require. Sev. Svip., "Partition," ? 14. 
 Provided, that if the person holding 
 such inchoate dower shall signify her 
 consent thereto in writing, acknowl- 
 edged as deeds are required to be 
 acknowledged by married women, the 
 
 proceeds of sale of such share as is 
 subject to such dower shall be paid 
 over as though no such estate existed. 
 Pamph. L., 1887, p. 139. 
 
 The Chancellor may direct release 
 or relinquishment of inchoate right 
 of dower of a person mentally inca- 
 pacitated, and direct an investment of 
 the proceeds of sale, on a petition for 
 the purpose. SeeiJei;. Sup., "Dower," §? 
 2, 3 ; also Pamph. L., 1892, Chap. OXV. 
 
 Instead of investing one-third of 
 the net proceeds of sale, it shall 
 be lawful for the officer making the 
 sale, on executing to him a full 
 release and discharge, duly acknowl- 
 edged according to law, from the 
 tenant in fee and his wife entitled to 
 such inchoate right of dower, to pay 
 to them the one-third of said net 
 proceeds. If the share of the tenant 
 in fee has been sold by judgment or 
 otherwise, or become subject to any 
 valid lien, then such payment shall 
 not be made without all parties in 
 interest shall join in such release and 
 discharge. Pamph. L., 1887, p. 155. 
 
PARTITION. 407 
 
 And your oratrix further shows unto your Honor, that the 
 defendant, , is in the possession of the whole of the said 
 
 farm and premises, (except that part of the dwelling-house 
 occupied by the said and her other children as aforesaid,) 
 
 and that the said claims to be entitled to the exclusive 
 
 possession and enjoyment of the said premises, under and by 
 virtue of a pretended lease from , the administrator of the 
 
 personal estate of the said , deceased. 
 
 And your oratrix further shows unto your Honor, that in and 
 by the said pretended lease made between the said , admin- 
 
 istrator, &c., of , deceased, of the one part, and the said 
 
 , of the other part, the said administrator pretended to 
 demise and lease the said premises to the said for the term 
 
 of one year, commencing on the day of , eighteen 
 
 hundred and , at the yearly rent of dollars. 
 
 And your oratrix further shows, that in and by the said pre- 
 tended lease, it was, among other things, provided that the said 
 should pay the tax on said premises, and also should 
 build, or cause to be built, a wagon or carriage-house upon the 
 said premises during the summer or fall of the present year, 
 the estate finding the materials and paying for the work ; and 
 that the said is now commencing to procure materials for 
 
 the erection of the said carriage-house, and threatens to expend 
 the whole or a large part of the rent reserved by the said pre- 
 tended lease in the erection and construction thereof, insisting 
 that, by the terms of the said pretended lease, he has right and 
 authority so to do, and to offset the cost of said building against 
 the rent of the said premises, or against any claim for the use 
 and occupation thereof. {If there be any liens on the undivided 
 interest or estate of any of the parties by mortgage, judgment, de- 
 cree, devise or otherwise, they should be set out in the same form 
 in which encumbrances of defendants are stated in a foreclosure 
 bill.){a) 
 
 And your oratrix further shows unto your Honor, that she 
 
 is seized of and entitled to the one equal undivided ninth part 
 
 of the said premises, subject to the right of dower of the said 
 
 in the same ; and that the said and are 
 
 (a) Reu. Sup., "Partition," H 1-12. 
 
408 FORMS OF PI/EADING8. 
 
 each severally seized of and entitled to one equal ninth part of 
 the said premises, subject to the right of dower of the said 
 therein as aforesaid ; and that , the wife of the 
 
 said , claims an inchoate right of dower in one equal 
 
 ninth part of the said premises to which he is entitled as afore- 
 said ; and that the undivided interest or estate of the defendant, 
 , in said lands is subject to a mortgage to secure the sum 
 of , or some other sum, made by the said to the de- 
 
 fendant, , (or stating the lien, as the ease may be, and so 
 
 as to any liens or encumbrances against undivided interests.) 
 
 And your oratrix further shows unto your Honor, that your 
 oratrix is entitled to receive from the said one equal ninth 
 
 part of such rent or compensation as may be due or become due 
 from him for the use and occupation of the said farm, or to the 
 one equal ninth part of the rents, issues and profits thereof, 
 while in the possession and occupation of the said 
 
 And your oratrix further shows, that the erection of a wagon 
 or carriage-house upon the said premises by the said , if 
 
 done at the expense of the estate of the said , or at the 
 
 expense of th6 parties interested in said premises, would deprive 
 your oratrix, and the infant children of the said , deceased, 
 
 of all the rents and profits of the said farm for the current year, 
 without any corresponding benefit received therefor, as the value 
 of said premises, if sold at public sale, would be but little if at 
 all increased by the erection of the said building. 
 
 And your oratrix further shows, that the said is con- 
 
 siderably in debt, and possessed of but little personal and no 
 real estate except his share of the said farm. 
 
 And your oratrix further shows, that the said had no 
 
 authority whatever, either as administrator of the said 
 or otherwise, to lease or demise the said premises ; and that he is 
 not entitled, as such administrator, or in any other capacity, to 
 receive the rents, issues and profits thereof; and that the said 
 lease hereinbefore mentioned is void as against your oratrix and 
 the other heirs of the said , deceased. 
 
 And your oratrix further shows, that she is desirous that a 
 partition or division of the said tract of land and premises 
 should be made among your oratrix and the several parties 
 seized of and entitled thereto, according to their several and 
 
PARTITION. 409 
 
 respective rights, estates and interests therein, or, in case (as your 
 orators believe and aver the fact to be) that the said tract of 
 land and premises cannot be divided among the owners thereof 
 without great prejudice to their interests, then that the same may 
 be sold, and the proceeds thereof divided among your oratrix 
 and the other parties entitled thereto as aforesaid, according to 
 their respective rights and interests. 
 
 But your oratrix is advised that no valid or effectual partition, 
 division or sale of the said premises can be effected without the 
 aid and interposition of some competent court; and that this 
 honorable court has full and complete jurisdiction in the premises. 
 
 In consideration whereof, and to the end that the said 
 (defendants) may, upon their several and respective oaths and 
 affirmations, full, true, direct and perfect answer make to all and 
 singular the charges and matters aforesaid, as fully and particu- 
 larly as if the same were here again repeated, and they thereunto 
 particularly interrogated ; and that a fair partition and division 
 of the above-described premises may be made, according to the 
 course and practice of this court, if the same be practicable and 
 consistent with the rights of all the parties interested therein, 
 among your oratrix and other persons entitled to shares of the 
 said premises, according to their respective rights and interests 
 therein; and that the liens, if any, on the undivided estate or 
 interest of any of the parties hereto be decreed to be a charge 
 only on the share assigned to such party, such share to be first 
 charged with its just proportion of the costs of these proceedings 
 in preference to any such lien ; and in case such partition and 
 division in fact of the said premises shall be found to be im- 
 practicable, or if it should appear that the same cannot be made 
 without great prejudice to the owners of the said premises, then . 
 that the said tract of land and premises may be decreed by this 
 honorable court to be sold, including the inchoate right of dower 
 of the defendant, , and the proceeds thereof, after paying 
 
 the costs and charges of this suit, divided among your oratrix 
 and the several parties interested therein, according to their 
 respective rights, shares and interests; and that the portion of 
 the moneys arising from said sale of the estate, share or interest 
 of any party against whom there are existing any liens or encum- 
 
410 FOEMS OF PLEADINGS. 
 
 brances held by any creditor of such party, who is a party 
 defendant to this suit, be brought into this court by the master 
 or commissioner, as the case may be, who shall make sale of said 
 premises, after deducting the costs, charges and expenses to which 
 it shall be liable, to the end that the Chancellor may make such 
 order therefor as the circumstances of the case may require; and 
 that in the meantime, one or more proper person or persons may 
 be appointed to receive the rents, issues and profits of the said 
 farm and premises, for the benefit of your oratrix and all other 
 persons interested therein ; and that such rents and profits may 
 be paid and divided among your oratrix and all other parties 
 entitled thereto, according to their respective shares and interests 
 in the same; and that an account may be taken of the rents, 
 issues and profits of the said premises while in the possession 
 and occupation of the said , or that the sum of 
 
 dollars, specified in said lease, may be decreed to be the amount 
 of said rents and profits ; and that the same may be paid to such 
 person or persons as may be appointed by this honorable court 
 as afotesaid to receive the same; and in case the said 
 shall not pay the said rents, issues and profits, according to the 
 order and decree of this court, then that the same may be 
 deducted from his share and portion of the proceeds of sale of 
 the eaid premises, for the benefit of your oratrix and all other 
 persons interested therein ; and that the said pretended lease now 
 in the possession of the said or of the said , may be 
 
 decreed to be null and void ; and that the said may be 
 
 restrained from paying the rent reserved by the said lease, or 
 the rents, issues and profits of the said premises, to the said 
 , or to any other person or persons whomsoever, except 
 by the order of this honorable court; and that he may be 
 further restrained from erecting a wagon or carriage-house upon 
 the said premises, or procuring materials therefor at the expense 
 of the estate, or of the heirs of the said , deceased; and 
 
 that your oratrix may have such further or other relief as the 
 nature and circumstances of the case may require, and as shall 
 be agreeable to equity. 
 
 May it please your Honor to grant unto your oratrix a writ 
 of injunction, issuing out of and under the seal of this honor- 
 able court, to be directed to the said , enjoining and restrain- 
 
PABTITION. ,411 
 
 ing him from paying the rent reserved by the saicl pretended 
 lease^ or the rents, issues and profits of the said farm and prem- 
 ises, or any part thereof, t9 the said , or to any other per- 
 son or persons, except by the order and decree of this honorable 
 court ; and also restraining him from erecting a wagon or car- 
 riage-house upon the said premises, or procuring materials 
 therefor pursuant to the terms of said pretended lease, or other- 
 wise, at the expense of the estate, or of the heirs of the said 
 , deceased ; and also the state's writ of subpoena, to be 
 directed to the said [defendants^ commanding them, and each 
 of them, at a certain day, and under a certain penalty therein 
 to be expressed, personally to be and appear before your Honor 
 in this honorable court, then and there to answer the premises, 
 and to stand to and abide and perform such decree therein as to 
 your Honor shall seem meet. 
 
 And your oratrix will ever pray, &c. 
 
 Affidavit to procure injunction. State of New Jersey, 
 8S. — , of the township of , in the county of , 
 
 and State of New Jersey, the complainant in the above bill, 
 being duly sworn according to law, upon her oath says — that 
 the matters and things set forth in the foregoing bill are true ; 
 and that the said has, to the personal knowledge of this 
 
 deponent, within a few days last past, commenced procuring 
 materials and lumber for the building of a wagon or carriage- 
 house upon the premises mentioned in said bill ) and that said 
 claims to be entitled to build the same at the expense of 
 the estate of , deceased, or at the expense of the heirs of 
 
 the said , deceased, pursuant to the terms of a pretended 
 
 lease of the said premises mentioned in said bill. 
 
 (Signature.) 
 Sworn, &c. 
 
 Notice of pendency of suit, (a) 
 
 Notice is hereby given, pursuant to the directions of the 
 statute in such case made and provided, to all whom it doth or 
 
 (a) Hev., "Chancery,'' ? 87, and Sup., "Chancery,'' I 10; Pamph. L., 
 notes; Bev. Sup., "Chancery," § 4. As 1888, p. 427. 
 to discharge of lis pendens, see Rev. 
 
412 FOEMS OF PLEAMKG8. 
 
 may concern, of the pendency of a suit in the Court of Chancery 
 of New Jersey, and that the title of said suit is as follows : 
 
 In Chancery of New Jersey. 
 Between "^ 
 
 complainant, I 
 and [ 
 
 defendants. J 
 And that the general object of said suit is to obtain a parti- 
 tion and division of all and singular the lands, tenements and 
 hereditaments whereof , late of , deceased, died 
 
 seized, between and among the above-named parties respectively, 
 as his heirs-at-law or as otherwise, being tenants in common of 
 the gaid lands, &o,, or any part or parts thereof, according to 
 the respective rights of the parties interested therein ; and if it 
 shall appear that a partition thereof cannot be made without 
 great prejudice to the owners thereof, then that the same may be 
 sold, and that the moneys to arise from such sale [after the pay- 
 ment and satisfaction of certain specific liens and encumbrances 
 in the bill of complaint in said cause mentioned] may be dis- 
 tributed and disposed of according to law ; and that a descrip- 
 tion of the said lands, &c., to be affected by said suit in chan- 
 cery is as follows {describe lands.) 
 
 {Signature of complainant or solicitor.) 
 Dated 
 
 Interlocutory decree in partition suit.(a) 
 
 {Title of cause.) 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that process of subpoena 
 
 (a) A bill for partition maybe taken tive parties in the premises, and to 
 as confessed in the same manner as ascertain and report whether, in his 
 other bills in chancery. A reference opinion, a partition of the land or 
 to a master is authorized only in case real estate can be made without great 
 of a decree pro confesto. Bentley v. prejudice to the owners of the same; 
 Long Dock Go., 1 McCart. 487. Where which report shall be made to the 
 a bill is filed for partition, and a de- Chancellor, at the time and place 
 cree pro confesso is taken, there shall named in the order of reference, at 
 be a reference to a special master to which time and place any party inter- 
 report as to the rights of the respec- ested may appear and make objections 
 
PARTITION. 
 
 413 
 
 for the defendants to appear and answer the complainant's bill 
 has been duly issued, and returned served on all the defendants 
 therein named ; but that the defendants and , his 
 
 wife, and have not, nor have any of them, appeared, 
 
 pleaded, answered or demurred to the complainant's bill of com- 
 plaint within the time limited by law and the rules of this court, 
 or at any other time, but that they have wholly failed and 
 neglected so to do. 
 
 And it further appearing that the defendants and , 
 
 infants under the age of twenty-one years, have, by , their 
 
 guardian ad litem, filed their answer, praying that their interest 
 in the premises mentioned in the complainant's bill may be 
 protected : 
 
 It is thereupon, on this day of , eighteen hundred 
 
 and , ordered, adjudged and decreed, that the complain- 
 
 ant's bill be and the same is hereby taken as confessed against 
 the defendant and , his wife, and ; 
 
 to the report; but no exceptions in 
 writing shall be filed to the same. If 
 the master report that a partition can- 
 not be made without great prejudice 
 to the owners of the property, and the 
 report is confirmed, then an order 
 shall be made directing a sale by a 
 master. If the master report that, in 
 his opinion, a partition can be made 
 without prejudice, &c,, then the Chan- 
 cellor shall appoint three persons aa 
 commissioners, to make partition 
 according to law ; and all further pro- 
 ceedings, as to such sale or partition, 
 shall be according to the practice of 
 the court in like cases heretofore. In 
 cases of sale, the master shall be 
 allowed the same fees that by law are 
 allowed a sheriff' on sale by execu- 
 tion. Sule 166. Where an answering 
 defendant to a bill for partition makes 
 no objection to an order of reference, 
 and takes part in the proceedings 
 thereunder, he waives the irregularity. 
 It was held in this case, that on the 
 day noticed for a motion to confirm 
 
 the master's report, he could be heard 
 on the merits of the report on excep- 
 tions thereto. Wain v. Meim, 12 C. 
 E. Or. 77. Where a, defendant ap- 
 peared on behalf of himself and his 
 wife, and filed a written consent for 
 both to the reference — held, that he 
 could not afterwards object to the 
 order of reference on the ground that 
 he had filed an answer, and therefore 
 the order was irregular. Smilh v. 
 Frenche, 1 Stew. Eg. 115. For the 
 practice in case of answer which does 
 not appear to set up any defence, or to 
 present any question except such as is 
 the appropriate subject of a reference 
 to a master, see rule 29. If the suit has 
 abated, by the death of some of the 
 parties, and their interests have vested 
 in other persons who are not parties to 
 the suit, but who are subsequently 
 brought before the court as parties, 
 there must be a new reference as to 
 the rights of the new parties,. before a 
 decree for sale can be made. Reynolds 
 V. Reynolds, 5 Paige 161. 
 
414 FORMS OP PLEADINGS. 
 
 and it is further ordered, that it be referred to , one of the 
 
 special masters of this court, to ascertain and report the right, 
 title and interest of the respective parties in the premises men- 
 tioned and described in the bill of complaint in this cause ; and 
 also whether, in his opinion, the said lands and real estate are 
 so situate that a partition thereof can be made without great 
 prejudice to the owners thereof; and that he state the facts upon 
 which his opinion is founded ; and in case such partition cannot 
 be made, then to ascertain and report whether, in case of a sale 
 of said premises, under all the circumstances of the case, having 
 regard to the interests of all the parties, the estate and interest 
 of , (widow of , deceased,) if any she have, as tenant 
 
 in dower in the said premises, ought to be excepted from the sale 
 thereof, or whether the same should be sold. {And if there be 
 any liens to be re-ported, add:) And it is further ordered, that 
 it be referred to said master to ascertain and report whether the 
 undivided interest or estate of any of the parties to this suit in 
 said lands and premises is subject to any lien by mortgage, judg- 
 ment, decree, devise or otherwise, and if so, to what liens or 
 encumbrances, and by whom they are held ; and to ascertain and 
 report the amount due to any party as aforesaid, who has such 
 lien on the said premises, (a) 
 
 And it is further ordered, that the said master make his report 
 to the Chancellor on the day of next, at 
 
 o'clock in the forenoon, at the state-house, in Trenton. 
 
 Order extending the time for filing master's 
 
 report. (6) 
 
 {Title of caused 
 
 It appearing to the court that the master to whom the above- 
 entitled cause was referred, was directed to make his report on 
 
 (a) Rev. Sup., "Partition," § 4. cree, application should be made to 
 
 (6) When the master has completed the Chancellor, before the time fixed 
 
 the inquiiies directed by the order of for the' filing of the report, for an 
 
 reference, he must make and file his order extending such time. In the 
 
 report at the time and as therein absence of such an order, where the 
 
 directed, together with the testimony report is filed after the time fixed by 
 
 taken before him. When it is impos- the decree, a rule nisi to confirm the 
 
 sible for the master to report on the report will be necessary, 
 day dii-ected by the interlocutory de- 
 
PAETITION. 
 
 415 
 
 the day of instant, and that he will be unable so to 
 
 do : It is, on this day of , &c., on good cause shown, 
 
 ordered, that the time for filing said report be and the same is 
 hereby extended to the day of next, at ten o'clock 
 
 in the forenoon, at the state-house, in Trenton. 
 
 Master's report in partition that sale is neces- 
 
 sary.(o) 
 
 {Title of cause.) 
 
 In pursuance of an order of this court, made in the above 
 cause, bearing date on the day of , eighteen hundred 
 
 and , whereby it was ordered that it be referred to the 
 
 subscriber, one of the special masters of this court, to ascertain 
 and report the right, title and interest of the respective parties 
 
 (a) In deciding whether a sale is 
 necessary in a partition suit, the true 
 question for the consideration of the 
 master is, whether the aggregate value 
 of the several parcels into which the 
 whole premises must be divided will, 
 when distributed among the different 
 parties in severalty, be materially less 
 than the value of the same property, 
 if owned by one person. Olason v. 
 Clason, 6 Paige 541. A decree of sale 
 of property held in common will not 
 be justified, where the aggregate 
 amount of the benefits to the parties 
 from a sale, instead of an actual par- 
 tition of the premises, will be small 
 in reference to the value of the prop- 
 erty of which a partition or sale is 
 sought. Smith v. Smith, 10 Paige 475. 
 "Prejudice" means a prejudice to all 
 the owners, and not to a part only. 
 Van Arsdale v. Drake, 2 Barb. 601. 
 The master having reported that the 
 lands could not be divided among the 
 heirs without great prejudice to their 
 interests, and the court being unable, 
 upon the evidence, to reach the same 
 conclusion, an order was made ap- 
 pointing commissioners to make par- 
 tition among the owners, according to 
 
 their respective interests, unless they 
 should be of opinion th,at such parti- 
 tion could not be made without great 
 prejudice, in which case they were to 
 report to the court accordingly. Wain 
 V. Meirs, 12 C. E. Or. 351. The proper 
 practice for the complainant in such 
 case, where the commissioners report 
 that partition cannot be made without 
 great prejudice, is, the report being 
 filed, to apply for a decree for sale. 
 Notice of this application will be 
 given, and the party feeling aggrieved 
 by the report may present his objec- 
 tions to the decree for sale. Bentley v. 
 Long Dock Co., 1 McCart. 480. 
 
 If a partition be prayed, and all the 
 parties (all being sui juris) agree as to 
 the divisibility of the premises, it 
 may be ordered, although the master 
 reports adversely. Lands not described 
 in the bill, must not be included in 
 the master's report. A survey of the 
 premises will not be ordered unless 
 shown to be clearly necessary. Where 
 the master was required to report a 
 description of the premises to be di- 
 vided, he must describe them speci- 
 fically. Barnes v. Taylor, 3 Stew. 
 Eq. 7. 
 
416 F0EM8 OF PLEADINGS. 
 
 in the premises mentioned and described in the bill of complaint 
 in this cause ; and also to report to this court whether the prem- 
 ises are so situated that a partition thereof can be made without 
 great prejudice to the owners ; and in case such partition thereof 
 cannot be made, then to ascertain whether, in case of a sale of 
 said premises, under the circumstances of the case, having regard 
 to the interest of all the parties, the estate and interest of , 
 
 widow of , deceased, (if any she have,) as tenant in dower 
 
 in the said premises, ought to be excepted from the sale thereof, 
 or whether the same should be sold, {add here any other di- 
 rection that may be necessary,) and that he make his report to 
 the Chancellor on the (date,) at ten o'clock in the forenoon, at 
 the State-house, in Trenton, I, , do hereby report to his 
 
 Honor the Chancellor, that I have been attended by the solicitor 
 of the complainants, and in his presence have examined the 
 matters referred to me by the said order, and I do find and 
 report that the rights and interests of the respective parties in 
 the premises whereof partition is sought by the said bill of 
 complaint, are as follows: 1. The said , widow of , 
 
 deceased, has an estate in dower in the whole of said premises. 
 2. That the complainant, , is seized in fee of one undivided 
 
 ninth part of said premises, subject to said estate in dower of the 
 said . 3, The defendants, , are each respectively 
 
 seized in fee of one equal undivided ninth part of said premises, 
 subject to said estate in dower, and that the share of the defend- 
 ant, , is subject also .to the inchoate right of dower of his 
 wife, , and that the said share of the defendant, , 
 is encumbered by a mortgage held by the defendant, , 
 upon which there is due for principal and interest at the date of 
 this report the sum of , {and further according to the r^ort.) 
 And I do further certify and report, that the said premises 
 are, in my opinion, so situate that a partition thereof cannot be 
 made between the parties interested therein without great preju- 
 dice to the owners thereof, and that my reasons for this opinion 
 are, that the premises in question are valuable solely for farming 
 purposes, and constitute, as a whole, a farm of convenient size, 
 with suitable farm buildings, but that, if divided into lots among 
 the parties interested therein, the several lots would be too small 
 for farming purposes, and would be of comparatively little value, 
 
PABTITION. 417 
 
 as appears from the depositions hereunto annexed (or as the ease 
 may be.) 
 
 And I do further certify and report, that under all the cir- 
 cumstances of the case, regard being had to the interest of all 
 the parties, the estate of , [widow of , deceased, 
 
 as tenant in dower] in the said premises, ought not to be excepted 
 from the sale thereof, but that, in case of a sale of said premises, 
 her said estate and interest should be sold. 
 
 All which, as further directed in and by the said order, I 
 report, on this day of , in the year aforesaid. 
 
 Notice to tenant in dower or by the curtesy of 
 application for sale of lands free from such estate.(a) 
 
 To 
 
 Take notice, that application will be made to the Court of 
 Chancery, at the state-house, in Trenton, on , the 
 
 day of , [next,] at ten o'clock in the forenoon, for a decree 
 
 in the cause pending in said court, wherein is complain- 
 
 ant, and and you and others are defendants, that the 
 
 lands and premises in question in said cause be sold, free and 
 discharged of your estate as tenant in dower [or, by the cur- 
 tesy] therein. [Signature of solicitor.) 
 
 (a) In proceedings for the partition newspapers printed and published in 
 of lands, * * * * if the county where such lands are situ- 
 it shall appear to the court that any ate. Sev., "Sale of land,'' | 18 ; see 
 person is entitled to an estate in rule 168. In all suits in the Court of 
 dower, or by the curtesy, in the Chancery for the partition or sale of 
 whole, or any part or share of the lands, where the personal estate of the 
 premises, it shall be lawful to decree ancestor from whom said lands de- 
 a sale thereof free and discharged scended is insufficient to pay his just 
 from all claims by virtue thereof; but debts, it shall be lawful for the Chan- 
 notice must be given to the party cellor to direct such lands to be sold, 
 entitled to the said estate in dower, free from the lien of such debts, and 
 or by the curtesy, of the intended ap- to make such order touching the dis- 
 plication for the sale of said lands free position of the proceeds of sale as may 
 and discharged of such estate, at lea^t be necessary for the ascertainment 
 twenty days prior to such application, and payment of such deficiency there- 
 or by publishing such notice, at least out, before the distribution of the 
 four weeks next preceding the time of fund. Bev , "Sale of land," § 20. 
 making such application, in one of the 
 
 2b 
 
418 FORMS OF PLEADINGS. 
 
 Decree for sale in partition suit, (a) 
 {Title of cause.) 
 
 This cause coming on to be heard in the presence of , 
 
 of counsel with the complainant, and ib appearing that in pur- 
 suance of the decretal order heretofore made in this cause, by 
 which it was amongst other things ordered that , one of the 
 
 special masters of this court should make his report, on the 
 day of , eighteen hundred and , at ten o'clock 
 
 A. M., at the state-house, in Trenton, of the matters referred to 
 him by said order; and said master having made a report 
 accordingly, by which it appears that the rights and interests of 
 the parties in the premises described in the complainant's bill 
 are as hereinafter declared ; and that the said lands and premises 
 are so situate that a partition thereof cannot be made without 
 great prejudice to the owners of the same; and that, in case of 
 a sale of said premises, under all the circumstances of the case, 
 regard being had to the interests of all the parties, the estate of 
 the defendant, , as tenant in dower of the said premises, 
 
 ought not to be excepted from the sale, but should be sold {if 
 the report has not been fled in due time, insert servioe of rule nisi, 
 as follows: "and it appearing that a copy of the rule nisi to con- 
 firm said report has been duly served upon the defendants;") 
 and no cause being shown or appearing against confirming the 
 said report: It is thereupon, on this day of , 
 
 eighteen hundred and , by his Honor , Chancellor 
 
 of the State of New Jersey, ordered, adjudged and decreed, and 
 the said Chancellor does, by virtue of the power and authority 
 of this court, hereby order, adjudge and decree, that the said 
 master's report, and the matters and things therein contained, 
 
 (a) In partition proceedings, where accomplished, and a sale of the part 
 
 an answer has been filed, the court of which an actual partition, without 
 
 usually determines on the hearing, on great prejudice, is impracticable. Sev., 
 
 the evidence, as to the divisibility of "Partition," | 37. In making sale, the 
 
 the property. In case of default, it property may be subdivided and sold 
 
 •determines the question on the evi- in separate parcels, if that manner of 
 
 •dence and the report of a master. proceeding be deemed best for the 
 
 Wain V. Meirs, 12 C. E. Or. 77. The interests of the parties. Wainwight 
 
 court may decree an actual partition, v. Mowland, 25 Mo. 53. 
 •so far as the same can be beneficially 
 
PARTITION. 419 
 
 sstand ratified and confirmed ; and that the parties to this suit, 
 hereinafter named, are seized of and entitled to the lands and 
 premises described in the complainant's bill, with the appurte- 
 nances; and that their respective rights and interests therein are, 
 and they are hereby ascertained, adjudged and declared to be as 
 follows, to wit : The complainant is seized in fee of and entitled 
 to the one undivided ninth part of the said premises, subject to 
 the right of dower of , (widow of , deceased,) in the 
 
 whole premises. The defendants, , are each respectively 
 
 seized of and entitled to one equal undivided ninth part of said 
 premises, subject to the right of dower of the said as 
 
 aforesaid ; the share of the defendant, , being also subject 
 
 to the inchoate right of dower of his wife, , and the de- 
 
 fendant, , widow as aforesaid, is entitled to dower in the 
 
 whole of said premises {or stating the shares and interests, and 
 -liens, if any, as they appear by the master's report.){a) 
 
 And it is further ordered, adjudged and decreed, that all and 
 singular the said premises mentioned in the said bill of com- 
 plaint, and therein described as follows, to wit, {here describe 
 the premises,) including the estate and interest in dower{6) of 
 
 (a) In partition suits where all or vested and kept invested in the name 
 any of the undivided sh&,reB of lands of the State of New Jersey, under the 
 is or are limited over in the manner order and direction of the Court of 
 specified in section twenty-five, a sale Chancery, for the use of the person or 
 thereof may be made upon an order persons owning such share, upon bond 
 or decree of the Court of Chancery, secured by mortgage to said state, 
 when such proceedings shall have been either upon the property so sold, or 
 commenced in that court ; but no such any part thereof, or the fee simple of 
 sale shall be ordered unless a division other unencumbered real estate in this 
 of said lands cannot be made without state, worth at least double the princi- 
 impairing their value to the extent of pal sum so secured thereon, two- 
 at least one-fourth part thereof, and thirds of which value shall be in the 
 shall be so reported or otherwise made land itself, independently of any build- 
 to appear to the satisfaction of the ing thereon. Id., ? 27. See also, as 
 Chancellor. Bev., "Partition," ? 26. to investment of proceeds of sale, 
 A sale made as aforesaid, and the deed Pamph. L., 1891, p. 423. 
 to the purchaser shall convey the title (6) The party entitled to an estate in 
 to said lands of all the tenants, either dower or by curtesy, may waive the 
 in possession, remainder, reversion or notice required by the 168th rule, by 
 expectancy; but the net proceeds of filing his or her consent, or the consent 
 the sale of any share not held in fee of his or her solicitor, to such sale ; the 
 simple or limited over shall be in- signature, if of the party, must be 
 
420 
 
 FORMS OF PLEADINGS. 
 
 the defendant, , widow of , deceased, in the said' 
 
 premises, and including also the inchoate right of dower of the- 
 defendant, , wife of said, , together with all and 
 
 singular the hereditaments and appurtenances to the said premises 
 belonging or in anywise appertaining, be sold(a) [at public^ 
 vendue, to the highest bidder,] in the presence and under the 
 direction of , one of the special masters of this court. 
 
 And it is further ordered, that the said master sell the same 
 in such portions as to him may seem most for the interest of the 
 parties; and that be [give public notice of the time and place of 
 such sale, and] in all respects conduct the same according to the 
 provisions of the statutes in such case provided; and that he 
 forthwith, after such sale, make report thereof to this court, and 
 after his report of sale shall have been confirmed by this court, 
 make and execute unto the purchaser or purchasers good and 
 sufficient conveyances in the law for the said real estate, upon 
 their complying with the conditions of such sale; (6) and that 
 
 verified by afiSdavit. Rule 169. In 
 Bleecker v. Hennion, 8 G. E. Or. 123, 
 it was decided upon the facts of that 
 case, that the premises should be sold 
 subject to the widow's dower. 
 
 (a) In all cases whatsoever, where 
 sale of any lands, tenements, heredita- 
 ments or real estate shall be ordered 
 by the Court of Chancery to be made, 
 (except sales for the payment and 
 satisfaction of mortgages,) the officer 
 or person authorized or directed by 
 said court to make such sale, may 
 make sale, * * * at public or 
 private sale, in his discretion, and on 
 such terms as such officer or person 
 may deem to be most advantageous to 
 the parties concerned therein ; pro- 
 vided, that no sale * * * made by 
 such officer or person at private- sale 
 shall be valid until such sale shall 
 have been confirmed by the Chan- 
 cellor, upon a report thereof by the 
 officer or person making the same. 
 Pamph. L., 1889, p. 217. If it be de- 
 
 sired to make a private sale, the de- 
 cree should provide for such sale and 
 the forms be modified accordingly. 
 It is also necessary to establish the' 
 propriety and advantage of a private 
 sale to the satisfaction of the Chan- 
 cellor, by affidavits annexed to the 
 report of sale. 
 
 (6) When the court determines upon 
 sale of the whole or some part of the 
 property, it appoints one of the special 
 masters of the court to make the sale. 
 The manner of conducting the sale, 
 the notice to be given thereof and the 
 powers and duties of the master are 
 governed generally by the statutory 
 regulations applicable to sales of land. 
 See Rev., "Sale of land." But the sale^ 
 must be reported to the court, when it 
 may be confirmed or set aside. The 
 master who may make the report 
 whether partition can be made with- 
 out great prejudice, will in no case be 
 appointed to make sale of the prem-- 
 ises. Bide 171. 
 
PARTITION. 421 
 
 ^such sale and conveyance or conveyances, duly executed as afpre- 
 -eaid, be valid and effectual forever, aid operate as an effectual 
 bar, both at law and in equity, against the said parties, com- 
 plainant and defendant, and all persons claiming by, from or 
 under them, or any of them. (If there are any liens on an un- 
 ■divided share, <feo., add, "and that he bring into court and pay 
 to the clerk thereof the portion of the moneys arising from the 
 sale of the estate, share and interest of the defendant, , 
 
 -which is subject to the [mortgage] aforesaid, after deducting the 
 portion of the costs, charges and expenses to which it shall be 
 liable, to the end that the same may be disposed of by the Chan- 
 cellor as he shall by order direct.") 
 
 And it is further ordered, that the said parties, or either of 
 them, be at liberty to apply to this court for further directions, 
 if occasion shall require. 
 
 Report of sale in partition suit.(a) 
 CnUe of oawse.) 
 
 In pursuance of a decree made by the Chancellor in the above 
 cause, bearing date on the day of , eighteen hundred 
 
 and , by which it was, among other things, ordered, 
 
 (a) The highest bidder acquires, to any court * * * having 
 when the property is struck off to jurisdiction in matters of partition, 
 him, and he is declared the purchaser, in which process has been served or 
 a right not complete, but inchoate, notice given in the manner required 
 -and that right is to have the court by law, and any sale of lands by vir- 
 approve the sale and to have a deed tue of an order therefor made in any 
 for the property, unless for good cause such proceeding for partition, shall be 
 the sale should be set aside. And a binding and conclusive upon all co- 
 purchaser may appeal from an order parceners, joint tenants or tenants in 
 setting the sale aside. Gonover v. Wal- common, and all persons claiming or 
 ling, 2 McCart. 167. The proceedings to claim any interest in any share in 
 iinay be discontinued by the complain- said lands, in reversion or remainder, 
 ant at any lime before the order ap- notwithstanding any error or illegality 
 proving the sale is made, by consent in such proceedings for partition or 
 of all the parties and upon making sale, unless such proceedings shall 
 indemnity to all concerned for costs have been reversed or set aside on 
 ..and expenses. Bellerjeau v. Ely, 3 Sal. * * * proceedings to review 
 573. Any partition of lands made on the same brought within three years 
 .application by any coparcener, joint after such partition or sale. ReVy, 
 ttenant or tenant in common therein "Partition," J 43. 
 
422 FOBM8 OF PLEADINGS. 
 
 adjudged and decreed, that all and singular the premises in the- 
 bill of complaint mentioned and described, with the appurte- 
 nances, be sold at public vendue, to the highest bidder, in the 
 presence and under the direction of the subscriber, one of the 
 special masters of this court ; and that the said master should 
 give public notice of the time and place of such sale, and in all 
 respects conduct the same according to the provisions of the 
 statutes in such case provided; and that after such sale, he 
 should make a report thereof to this court, I, , master as 
 
 aforesaid, do hereby report to his Honor the Chancellor, that 
 I did, by public advertisements, signed by myself, and set up at 
 five or more public places in the county of , one whereof 
 
 was in the township of , (or ward, if in a oity,) where said 
 
 real estate is situate, at least four weeks next before the time 
 appointed for selling the same, and also published in the 
 and , two of the newspapers printed and published in the 
 
 county of , in which said real estate is situate, of which 
 
 one was a newspaper printed and published at the county seat of 
 said county, in the German language, and designated to pub- 
 lish the laws of this state, and one of which was a newspaper 
 printed and published also at the county seat of said county, 
 (or according to the fact,) at least four weeks successively, once 
 a week, next preceding the time appointed for said sale, give 
 public notice that the said lands and premises would be exposed 
 to sale at public vendue, on , the day of , 
 
 eighteen hundred and , at o'clock in the noon, 
 
 upon the premises, {or as the case may be;) and at the time and 
 place so appointed and advertised, did publicly adjourn the said 
 sale until the day of , &c., at the hour of, &c., 
 
 at the place' aforesaid. {If the adjournment was for more than 
 one week, add, "which said adjournment was advertised in the 
 same two newspapers in which the notice of sale was published ;") 
 and at the time and place to which the said sale was adjourned 
 as aforesaid, did expose the said lands and premises to sale at 
 public vendue, to the highest bidder; and then and there 
 
 bidding therefor the sum of dollars, by the acre, (the tract 
 
 containing acres,) and no one bidding so much or more 
 
 for the same^ the said tract of land and premises was struck ofT 
 
PARTITION. 423 
 
 and sold to the said at the price aforesaid, amoanting for 
 
 the tract to the sam of dollars. 
 
 Bespectfully submitted, this day of , eighteen 
 
 hundred and 
 
 Verification.(a) , the above-named master in chan- 
 
 cery, being duly sworn, on his oath says that the property 
 referred to in the foregoing report was sold by him at the highest 
 and best price the same would then bring in cash. 
 
 {Jurat.) (Signature.) 
 
 Proof of advertisement of sale by posters. 
 
 State of , 1 ^_ 
 
 county of , ) 
 
 , of full age, being duly sworn according to law, on his 
 oath says — that on the day of , eighteen hundred 
 
 and , he set up, at five or more public places in the county 
 
 of , in said State of New Jersey, an advertisement of sale 
 
 in the cause wherein {stating title of cause,) of which the annexed 
 is a true copy, to wit, one at , in the township of , 
 
 in said county, (and so on, designating four of the places in the 
 county where the posters were set wp, and add, " and one at , 
 
 in the township of , in said county," or ward, if in a city,) 
 
 where the real estate described in said advertisement of sale is 
 situate. (Signature.) 
 
 Sworn, &c. 
 
 Proof of advertisement of sale in newspaper. 
 
 State of , 1 
 
 county of , ) 
 
 , of full age, being duly sworn according to law, on his 
 oath says — that he is the publisher (or as the case may be) of 
 
 , a newspaper printed and published at , in said 
 
 state; and that the notice of sale, of which the annexed is a 
 printed copy, was published in said newspaper on the day 
 
 of , &c., and continued to be published therein for at least 
 
 (o) -See Pamph. L., 1890, p. 138. 
 
424 FORMS OF PLEADINGS. 
 
 four weeks successively, at least once a week, the last publication 
 thereof being on the day of , &c. 
 
 Sworn, &c. {Signature.) 
 
 Order confirming sale in partition.(a) 
 
 {Title of cause.) 
 Upon reading and filing a report made in the above cause by 
 , one of the special masters of this court, bearing date on 
 the day of , eighteen hundred and , by which 
 
 it appears that, in pursuance of the decree made in this cause, 
 bearing date on the day of last, wherein it was 
 
 ordered and decreed, that the premises in the bill of complaint 
 in this cause described, with the appurtenances, be sold at public 
 vendue to the highest bidder, in the presence and under the 
 direction of the said , master as aforesaid, the said master 
 
 having given public notice, according to law and the directions 
 of the said decree, of the time and place when and where the 
 said lands and real estate would be exposed to sale, {state here 
 adjournment, if any, as in the report;) and at the time and 
 place so appointed, to wit, on , the day of , 
 
 eighteen hundred and , at o'clock in the 
 
 noon, upon the premises, did publicly adjourn said sale to, &c., 
 and at the time and place to which said sale was adjourned as 
 aforesaid, and between the hours of (two) and five o'clock in the 
 afternoon did expose the said lands and premises to sale at public 
 vendue, to the highest bidder, and bidding therefor the 
 
 sum of dollars, by the acre, and being the highest bidder 
 
 for the same, the said premises were then and there struck off 
 and sold to the said at the price aforesaid, amounting, for 
 
 the whole quantity of acres, to the sum of dollars; 
 
 and it appearing by affidavit that the property was sold at the 
 highest and best price the same would then bring in cash, and 
 no cause being shown or appearing against confirming the said 
 
 (a) Where the proceedings are ex papers, must be attached to the report. 
 
 parte, application for confirmation of For form of such proof, see page 423, 
 
 the sale may be made upon the com- &c., supra ; see also Bev., "Partition," 
 
 ing in of the master's report ; proofs § 40. For practice to cure defective 
 
 of advertisement by posters, and of advertisements of sale of real estate, 
 
 the statutory publication in the news- see Pamph. L., 1891, p. 24. 
 
PABTITION. 425 
 
 'report: It is, on this day of , eighteen hundred and 
 
 , on motion of , of counsel with the complainants, 
 
 -ordered and decreed, that the said master's report, and all the 
 matters and things therein contained, do stand ratified and con- 
 £rmed ; and that the said master do make, execute and deliver 
 to the said , in compliance with the aforesaid decree, [or 
 
 'to his assigns,] a good and sufficient conveyance in the law for 
 rthe said lands and real estate purchased by him as aforesaid, 
 vupon his complying with the conditions of said sale. 
 
 Master's deed after sale in partition. This indenture, 
 made this day of , eighteen hundred and , 
 
 between , one of the special masters in chancery of the 
 
 State of New Jersey, party of the first part, and , of the 
 
 ■city of , county of , and State of New Jersey, party 
 
 • of the second part: 
 
 Witnesseth, That whereas, by a certain decree of the Court 
 of Chancery of New Jersey, in a cause therein depending, 
 wherein is complainant, and and (others) are defend- 
 
 .^nts, bearing date the day of , eighteen hundred 
 
 and , it was, among other things, ordered, adjudged and 
 
 • decreed, that all and singular the premises in said decree particu- 
 larly set forth and described, (being the premises hereinafter 
 described, with the appurtenances,) should be sold at public 
 vendue, to the highest bidder, in the presence and under the 
 •direction of , one of the special masters of the said court, 
 in such portions as to him might seem most for the interest of 
 the parties; and that he should give public notice of the time 
 and place of such sale, and in all respects conduct the same 
 according to the provisions of the statute in such case made 
 and provided ; and that the said master should forthwith, after 
 such sale, make report to the said court, and after his report 
 should have been confirmed by the said court, should make, 
 execute and deliver to the purchaser or purchasers of said land 
 and premises, good and sufficient conveyances in the law there- 
 for, upon their complying with the conditions of such sale; and 
 'that such sale and conveyance or conveyances, duly executed 
 as aforesaid, should be valid and effectual forever, and should 
 ■operate as an effectual bar, both at law and iu equity, against 
 
426 FOEM8 OF PLEAPINGS. 
 
 the parties complainant and defendant in the said cause, and all' 
 persons claiming by, from or under them, or any of them. 
 
 And whereas, to the end that a sale of said lands and premises- 
 described in the said decree should be made pursuant to the 
 said decree, the said , master, by public advertisements,, 
 
 signed by himself, and set up at five or more public places in 
 the county of , one whereof was in the ward of the said* 
 
 city of , in said county of , in which said real 
 
 estate is situate, at least four weeks next before the time 
 appointed for selling the same, and also published in and 
 
 , two of the newspapers printed and published in the 
 said county of , (both of which are printed and published 
 
 at the county seat of said county,) at least four weeks succes- 
 sively, once in each week next preceding the said time, did give 
 public notice of the time and place when and where the said 
 lands and premises would be exposed to sale by public vendue ; 
 and the said master, at the time and place so appointed, that is 
 to say, on , the day of , eighteen hundred 
 
 and , at o'clock in the afternoon, at , in 
 
 the county of , and State of New Jersey, did adjourn the 
 
 sale of the said lands and premises to , the day of 
 
 , eighteen hundred and , at o'clock in the 
 
 afternoon, at ; at which last-mentioned time and place so 
 
 appointed, the said master did further adjourn the said sale to 
 
 , the day of , eighteen hundred and , 
 
 at o'clock in the afternoon of said day, at the same place ; 
 
 at which time and place so last appointed, the said master did 
 expose the said lands and premises to sale at public vendue, to 
 the highest bidder, and then and there bidding for the 
 
 said land and premises the sum of dollars, and no one 
 
 bidding so much for the same, the said land and premises, 
 hereinafter particularly described, were then and there struck off 
 and sold to the said at the price aforesaid, the highest 
 
 bidder for the same. 
 
 And whereas, the said , master as aforesaid, did make 
 
 his report of sale to the said Court of Chancery, which said 
 report was, by an order of that court, made on the day of 
 
 , eighteen hundred and , duly confirmed, and the 
 
 said master was thereby ordered to make, execute and deliver ta 
 
PARTITION. 427 
 
 the purchaser of said real estate, in comph'ance with the afore- 
 said decree, [or to his assigns,] a good and sufiScient conveyance in 
 the law for the said land and real estate purchased by him a» 
 aforesaid, upon his complying with the conditions of said sale. 
 
 And whereas, subsequent to the said sale the said , by 
 
 his deed of assignment, in writing, did assign and transfer unto 
 the aforesaid bid made by him at the said sale for the 
 said property hereinbefore mentioned, and all of his interest 
 therein, and did authorize and direct the deed for said property 
 to be executed and delivered to the said , upon his com- 
 
 plying with the conditions of said sale : 
 
 Now this indenture witnesseth, that the said , master as 
 
 aforesaid, by virtue of the premises, and for and in consideration 
 of dollars, lawful money of the United States of America, 
 
 to him in hand paid, the receipt whereof is hereby acknowledged, 
 has granted, bargained and sold, and' by these presents does 
 grant, bargain, sell and convey unto the said , his heirs 
 
 and assigns, all, &c., (describe premises,) together with all and 
 singular the hereditaments and appurtenances to the same 
 belonging : To have and to hold the said lands, hereditaments 
 and appurtenances to the said , his heirs and assigns, to 
 
 his and their only proper use, benefit and behoof forever, 
 according to the true intent and meaning of the said decree and 
 proceedings above mentioned, and the acts of the legislature of 
 the State of New Jersey in such case made and provided. 
 
 In witness whereof, the said , master as aforesaid, has 
 
 hereto set his hand and seal, the day and year first above written. 
 
 Signed, sealed and deliv- [l. s.J 
 
 ered in presence of — 
 
 Acknowledgment. 
 
 State of New Jersey, \ 
 
 county of , J 
 
 Be it remembered, that on this day of , eighteen 
 
 hundred and , before the subscriber, a master in chancery 
 
 of New Jersey, personally appeared , master in chancery,^ 
 
 who, I am satisfied, is the grantor in the foregoing deed of con- 
 veyance named, and I having first made known to him the con- 
 
428 FORMS OF PliEADINGS. 
 
 tents thereof, he thereupon acknowledged that he signed, sealed 
 ^nd delivered the same as his voluntary act and deed, for the 
 uses and purposes therein expressed. 
 
 The following certifieate and affidavit may be added: 
 
 ^Btate of New Jersey, "I 
 
 county of , J * 
 
 I, , master in chancery, do solemnly swear that the 
 
 real estate described in this deed, made by me to , was by 
 
 me sold by virtue of a good and subsisting decree, as is therein 
 recited ; that the time and place of the sale of the said land and 
 real estate were by me duly advertised, as required by law; and 
 that the same was cried off and sold to a bona fide purchaser, for 
 -the best price that could be obtained. 
 
 Sworn before me, , one of the masters in chancery of 
 
 New Jersey, on this day of , eighteen hundrad and 
 
 , and I having examined the deed above mentioned, do 
 approve the same, and order it to be recorded as a good and 
 sufficient conveyance of the land and real estate described 
 therein. 
 
 Order for distribution in partition suit.(a) 
 
 {Title of cause.) 
 This cause being opened to the court by , of counsel 
 
 with the complainants, and it appearing, by a report hereto- 
 
 (o) It is provided by statute that to every such party shall be put out 
 
 the moneys arising from every sale in at interest on sufficient security of 
 
 partition made by commissioners shall real property, or invested in public 
 
 be ordered by the court to be paid by stock, by order and under the direc- 
 
 the commissioners to the parties in- tion and control of the court, for the 
 
 terested in the real estate so sold, their benefit of the absent party. Beo., 
 
 guardians or legal representatives, in "Partition," § 22. The practice indi- 
 
 proportion to tlieir respective rights in cated by the foregoing section is ap- 
 
 the same, deducting from their respec- plicable to the case of sales by a mas- 
 
 tive shares the costs and charges which ter, under the jurisdiction of the Court 
 
 may be allowed and ordered to be re- of Chancery. 
 
 tained out of the same ; and if any of As- to payment to judgment credi- 
 
 the parties shall be absent from this tors of distributees and how ordered, 
 
 state, without such legal representa- see PampA. £., 1888, p. 298. 
 -tive, the proportion of the money due 
 
PARTITION. 429' 
 
 fore made by , one of the special masters of this court, 
 
 and now on file, that the gross proceeds of the sale of the real 
 estate and premises in the bill of complaint mentioned, as made 
 by the said master, amount to the sum of dollars. 
 
 And it further appearing that , (widow of , 
 
 deceased,) was entitled to an estate in dower in the whole of said 
 premises, which said estate was sold therewith by order of this 
 court, * (or after *, " and that she has consented, in a writing, 
 signed by her, and filed in this court, to accept a sum in gross 
 in lieu of her said dower : ") It is thereupon, on this 
 day of , eighteen hundred and , ordered, that the 
 
 sum of dollars, being such part of the moneys arising 
 
 from said sale as has been adjudged by the Chancellor to be just 
 and reasonable, f be put out at interest by the said master, under 
 the direction of the court, upon good real security, by bond and 
 mortgage to the Chancellor of this state, and in such manner 
 that the said interest may be paid by the mortgagor to the said 
 once in each year, and that, at the decease of the saidi 
 , the said sum of dollars, may be distributed among 
 
 the parties interested therein according to law, and that the said 
 bond and mortgage be endorsed approved by said master, and 
 after record of the said mortgage, be deposited by said master 
 with the clerk of this court, {or, if the widow has consented to 
 accept a sum in gross, after f add, " be paid to , widow of 
 
 , deceased, in satisfaction of her dower insaid premises.") 
 
 And it is further ordered, that out of the remainder of 
 the proceeds of said sale, the said , master as aforesaid, 
 
 do pay to the solicitor of the complainants their costs of this suit 
 to be taxed (and a counsel fee of dollars,) and retain his 
 
 fees and commissions on said sale, as allowed by law and the 
 practice of this court ; and that of the residue he do pay to the 
 complainant, , one part, [if there be an inchoate right 
 
 of dower, say, " upon his wife, , consenting thereto in 
 
 writing, acknowledged as deeds are required to be acknowledged" 
 by married women,") and to the defendant, , one 
 
 part, and to the guardians of each of the several infant defend- 
 ants, , one part, upon their severally executing 
 bonds to the Ordinary of this state, with sufficient sureties, in 
 double the amount of such part, which said bonds shall' 
 
^30 ■ FORMS OP PLEADIWGS. 
 
 be approved by said master, and shall be filed with the clerk of 
 this court. (If there are any liens or encumbraneea on a share 
 of amy of the parties, add, "and that said master bring into 
 court and pay to the clerk thereof the portion of the moneys 
 arising from said sale of the share and interest of the defendant, 
 , to the end that the same may be disposed of by the 
 Chancellor as he shall by his order direct,") 
 
 And it is further ordered, that the said master file with the 
 clerk of this court a statement of his fees, disbursements and 
 commissions under these proceedings, together with a statement 
 or report of the distribution, disposition (and investment) of the 
 moneys that have come to his hands as the proceeds of said sale, 
 and in case the said master shall be unable to comply with the 
 directions of this order in the payment of any of the distributive 
 shares, he shall deposit any moneys remaining in his hands pur- 
 suant to the two hundred and sixteenth rule of this court. 
 
 Guardian's bond for infant's share on sale in par- 
 tition.(a) Know all men by these presents, that we, 
 and , of , are held and firmly bound unto the 
 
 Ordinary of the State of New Jersey in the sum of 
 dollars, lawful money of the United States of America, to be 
 paid to the said Ordinary of the State of New Jersey, or his 
 successors, to which payment well and truly to be made, we bind 
 ourselves, our and each of our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with our 
 seals. Dated the day of , &c. 
 
 Whereas, the above-bounden , by an order of the sur- 
 
 rogate of the county of , made on or about the day of 
 
 , &c., was appointed guardian of the person and property 
 of , a minor under (or "over") the age of fourteen years. 
 
 And whereas, in a ceirtain suit in the Court of Chancery of 
 the State of New Jersey for partition, wherein is com- 
 
 (a) It is the duty of the court to of this state as the court shall judge 
 
 require of the guardian of any person to be sufficient, for the benefit of such 
 
 under the age of twenty-one years, minor, conditioned for the faithful 
 
 entitled to a proportion of the moneys discharge of the trust committed to 
 
 arising from any sale in partition, such guardian. Rev., "Partition," J 
 
 fiuch security by bond to the Ordinary 23. 
 
PABTITION. 431 
 
 {)laiDaiit, and and others are defendants, an order was 
 
 made, bearing date, &c., directing , one of the special 
 
 masters of said Court of Chancery, to make distribution of the 
 proceeds of sale of the real estate mentioned in said suit, and it 
 -was thereby, amongst other things, ordered, (here insert that part 
 of the order direoting payment to the guardian.) 
 
 And whereas, the part of the residue of the proceeds 
 
 of the said sale so ordered to be paid by the said master as afore- 
 said, is the sum of dollars ; which said sum of money has 
 been paid to the said {guardian,) as such guardian as aforesaid, 
 pursuant to said order : 
 
 Now, the condition of this obligation is such, that if the said 
 {guardian) shall faithfully discharge his trust as such guardian 
 in respect of said money so paid to him, and shall duly account, 
 according to law, for the same, then the above obligation to be 
 void, or else to be and remain in full force and virtue. 
 
 [L. S.] 
 
 Sealed and delivered [l. s.] 
 
 in the presence of — 
 
 Receipt taken by the master for distributive share. 
 
 (Title of cause.) 
 Received (place and date) of , one of the special masters 
 
 in chancery of New Jersey, directed by a decree of the Chan- 
 cellor to make sale of the lands and premises in the proceedings 
 in said cause mentioned, and who sold the said premises by virtue 
 of said decree, the sum of dollars, being * my proportion 
 
 of the net proceeds of the said sale, agreeably to my right and 
 title of, in and to the said premises. (Signed, witnessed, &c.) 
 ( Or, if a share be ordered to be paid to a general guardian of an 
 infant, after *, "the proportion of the net proceeds of said sale, 
 of and belonging to , an infant, to whom I have been 
 
 appointed the general guardian, according to the right and title 
 in and to the said premises so sold as aforesaid.") 
 
 Refunding bond for share of party absent or pre- 
 sumed to be dead in partition suit.(a) Know all men 
 
 (a) Where the residence of any per- or real estate sold by virtue of any 
 .son interested in the proceeds of lands proceedings in partition in this state, 
 
432 
 
 FORMS OF PLEADINGS. 
 
 by these presents, that we, (prindpal and sureties,) of, &c,, are 
 held and firmly bound unto , clerk of the Court of 
 
 Chancery of New Jersey, in the sum of dollars, to be 
 
 paid to the said , clerk as aforesaid, or his successors in 
 
 office, to which payment we bind ourselves, our and each oF 
 our heirs, executors and administrators, jointly and severally, 
 firmly by these presents. Sealed with our seals. Dated the 
 
 day of , eighteen hundred and 
 
 Whereas, by a decree of the said court, made in a certain 
 cause therein depending, wherein is complainant, and 
 
 and others are defendants, and bearing date on the, &o., 
 
 is unknown, or, where it is not known 
 whether a person who, if living, would 
 be interested in such proceeds of the 
 sale of lands or real estate, is living or 
 not, it shall be lawful for the court 
 having the power, by order or decree, 
 of distributing such proceeds to order 
 the share or interest of any such per- 
 son to be invested in bonds of this 
 state, or of any city or county of this 
 state authorized by law to issue bonds, 
 or bonds secured by mortgage on real 
 estate, or in such public or other secu- 
 rities as the court may approve, and 
 to direct and control the custody of 
 the securities which may be taken 
 from time to time, for any investment 
 ordered; and also, either before or 
 after an investment is ordered, at such 
 time as the court may determine, to 
 order or decree a distribution of the 
 share or interest which any such per- 
 son, if living, would be entitled to, 
 among and to the person or persons 
 interested in such proceeds, as are 
 known to be living, in proportion to 
 their interest therein respectively, or 
 to and among the person or persons 
 who are, if it shall appear such per- 
 son has died, entitled, by law, to re- 
 ceive the same as an heir or heirs ; 
 and the court may fix the time when 
 it shall be supposed or deemed such 
 
 person died, and may order refunding 
 bonds to be given, by or on behalf of 
 any of the persons to whom any part 
 of such share shall be distributed, to 
 the clerk of the court and his succes- 
 sors in office, in such sum and with 
 such condition, with or without secu- 
 rity, as the court may direct. Mev., 
 "Partition," ? 34. It shall be lawful 
 for said court to control the custody of 
 said refunding bonds, and on petition 
 of any person or persons who shall 
 make it appear, to the satisfaction of 
 said court, that the petitioner or peti- 
 tioners is or are entitled to the money 
 secured by said refunding bond or 
 bonds or any part thereof, to order 
 that the money secured thereby be 
 collected, for the benefit of such 
 person, by and in the name of the 
 clerk of the court, who is hereby 
 authorized to sue thereon, and in case 
 of his death pending a suit thereon, 
 the same may be continued in the 
 name of his successor, and said court 
 may dispose of the money collected 
 thereon, by order or decree, as to said 
 court may seem just and right; and 
 the said court may order and decree 
 the payment of such costs and ex- 
 penses out of said share or interest at 
 any time, as the court may deem 
 necessary and expedient. Id., § 35, 
 
PARTITION. 433 
 
 one was declared to be entitled to {state the share) of cer- 
 
 tain lands and premises therein described; and whereas, the 
 «hare of proceeds of the sale of said lands was paid into the said 
 court by the master who made sale of said lands by virtue of 
 said decree ; and whereas, and , parties to said suit, 
 
 filed their petition in said court praying the distribution to them 
 of said share of said ; and whereas, by an order of said 
 
 court, made on the day of , &c., it was adjudged, that 
 
 the said be deemed to have died in the month of , 
 
 eighteen hundred and , and that the clerk of the said 
 
 court, after deducting his lawful commissions upon the moneys 
 so deposited with him, as the share of as aforesaid, pay to 
 
 ,(<Ae petitioners, naming them,) each respectively, the part 
 
 of said moneys, with the interest thereon allowed by the rules of 
 said court, upon their severally giving to the said clerk, and 
 his successors in office, a refunding bond, [with security, to be 
 approved by , a special master of said court,] in the sum 
 
 of dollars, conditioned for the payment by the said 
 
 petitioner giving said bond to the said of the money so 
 
 received by him, with lawful interest, if he shall prove to be 
 alive, and return and demand the same; and whereas, the share 
 or portion of said moneys received by the said {the obligor,) 
 amounts to the sum of dollars : 
 
 Now, the condition of this obligation is such, that if the said 
 {the obligor,) his heirs, executors, administrators or assigns, shall 
 pay to the said {the absent or dead party,) if he be living, or to 
 his heirs or legal representatives, if he be dead, the sum of 
 -dollars, with lawful interest thereon from the date of these 
 presents, then the above obligation to be void, otherwise to 
 remain in full force and virtue. Tt s 1 
 
 Signed, sealed and delivered in presence of — [l. s.] 
 
 Release of distributee and wife to master. 
 
 Know all men by these presents, that whereas , by 
 
 virtue of a certain order of the Court of Chancery of the State 
 of New Jersey, made in the cause wherein is complainant, 
 
 and and others are defendants, filed on the day of 
 
 2c 
 
434 FORMS OF PLEADINGS. 
 
 , eighteen hundred and , was entitled to a certain 
 
 distributive share of the net proceeds of the sale of the lands^ 
 and real estate sold by , special master, under and by 
 
 virtue of the decree of the Chancellor entered in said cause ; and 
 whereas, such distributive share has been paid to : Now, 
 
 therefore, I do hereby acknowledge that I have received from 
 said , special master, the sum of dollars and 
 
 cents, in full for my distributive share as aforesaid ; and I, the 
 said , wife of said , do hereby signify my consent 
 
 to such payment to said , and thereof and therefrom by 
 
 these presents we do fully, clearly and absolutely acquit, release 
 and forever discharge the said , special master, his heirs, 
 
 executors and administrators. 
 
 Witness our hands and seals this day of , eighteen- 
 
 hundred and 
 
 Signed, sealed and delivered in presence of — 
 
 State of New Jersey, \ 
 
 county of , J 
 
 Be it remembered, that on this day of , eighteen 
 
 hundred and , before me, , personally appeared 
 
 and , who, I am satisfied, are the persons named in and who 
 
 have executed the foregoing release; and I, having first made 
 known to the contents thereof, acknowledged that 
 
 signed, sealed and delivered. the same as voluntary 
 
 act and deed, for the uses and purposes therein expressed. 
 
 And the said , wife of said , being by me pri- 
 
 vately examined separate and apart from her husband, did 
 further acknowledge that she signed, sealed and delivered the 
 same as her voluntary act and deed, freely, without any fear,, 
 threats or compulsion of or from her said husband. 
 
 Master's statement. 
 
 {Title of cause.) 
 
 In pursuance of an order of distribution made in the 
 above-entitled cause, bearing date on the day of , 
 
 eighteen hundred and , whereby it was ordered that the 
 
 said master file with the clerk of this court a statement of his 
 fees, disbursements and commissions under these proceedings,. 
 
PAETITION. 435 
 
 together with a statement or report of the distribution and dis- 
 position of the moneys that have come to his hands as the pro- 
 ceeds of said sale, I do hereby report and make statement of my 
 disbursements and of the distribution of said moneys as follows : 
 
 Paid , solicitor, taxed costs, including 
 
 counsel fee $ 
 
 Advertising sale 
 
 Copies of advertisement for printers 
 
 Paid printers' fees, advertising sale 
 
 Selling 
 
 Drawing deed 
 
 Master's report of sale and affidavit 
 
 Master's commissions on $ 
 
 Statement 
 
 ^ 
 
 Distribution of residue as follows {or as the case 
 
 may be) — 
 
 To F. L. M., G. A. M. and E. J. R., eleven-twelfths 
 thereof. 
 
 To F. L. M., G. A. M. and E. J. R., as grantees of 
 W. A. M., A. E. B. and E. P. M., of said prem- 
 ises three seventy- second parts 
 
 Deposited in court, as directed by said order of 
 distribution, in the names of the following parties — 
 
 For N. V. S $ 
 
 For L. M. S 
 
 For F. M. S 
 
 For A. L. S 
 
 For R. F. S 
 
 For F. W. M 
 
 For H. L, M 
 
 For F. G. M 
 
 For M. F. B 
 
 For A. M. B 
 
 Total disbursements $ 
 
 All which is respectfully submitted this day of 
 
 eighteen hundred and . {Signatv/re of master.) 
 
436 FOEMS OF PLEADINGS, 
 
 Master's report in partitioil suit that premises 
 can be partitioned. 
 
 {I^ile of cause.) 
 In pursuance of an order of this court, made in the above 
 cause, bearing date on the day of , eighteen hundred 
 
 and , whereby it was ordered, that it be referred to the 
 
 subscriber, one of the. special masters of this court, to ascertain 
 and report the right, title and interest of the respective parties 
 in the premises mentioned and described in the bill of com- 
 plaint in this cause; and also to report to this court whether the 
 said premises are so situate that a partition thereof can be made 
 without great prejudice to the owners; and in case such partition 
 cannot be made, then to ascertain and report whether, in case of 
 a sale of said premises, under all the circumstances of the case, 
 having regard to the interest of all the parties, the estate and 
 interest of , widow of , deceased, (if any she have,) 
 
 as tenant in dower in said premises, ought to be excepted from 
 the sale thereof, or whether the same should be sold, and that he 
 make his report to the Chancellor on the (date,) at ten o'clock in 
 the forenoon, at the state- house, in Trenton, I, , one of the 
 
 special masters of this court, do hereby report to his Honor the 
 Chancellor, that I have been attended by the solicitor of the 
 complainants, and that in his presence I have examined the 
 matters referred to me by the said order, and do find and report, 
 that the rights and interests of the respective parties in the 
 premises whereof partition is sought by the said bill of com- 
 plaint, are as follows, to wit : 
 
 1. The said , widow of , deceased, is entitled to 
 her dower in the whole of said premises. 
 
 2. The complainant, , is seized in fee of one undivided 
 
 part of said premises, subject to the aforesaid right of 
 dower of the said 
 
 3. The defendants, , are each respectively seized in fee 
 of one equal undivided part of said premises, subject to 
 the right of dower of the said as aforesaid. 
 
 And I do further certify and report, that the said premises 
 are, in my opinion, so situate that a partition or division thereof 
 can be made among the parties interested therein without great 
 
PARTITION, 437 
 
 prejudice to the owners thereof, and that my reasons for this 
 opinion are, that although consisting of a farm, and hitherto 
 used for agricultural purposes only, they are in the immediate 
 vicinity of a large and growing town, and are valuable now and 
 prospectively as town lots, and are fast increasing in value ; and 
 that when divided among the parties in interest, the shares will 
 be readily divisible into town lots of considerable present and 
 rapidly-increasing value, as appears from the depositions hereto 
 annexed. All which, as directed in and by the said order, I 
 hereby report to his Honor the Chancellor, at the state-house, 
 in Trenton, on this day of , in the year aforesaid. 
 
 Decree for partition and order appointing commis- 
 sioners. {Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, in the presence of , clerk of this 
 
 court, guardian ad litem of the infant defendants, , the 
 
 bill of complaint having been heretofore taken as confessed 
 against the other defendants in the cause, and upon reading a 
 report on file in the cause, bearing date on the day of 
 
 instant, made by , one of the special masters of 
 
 this court, from which, and from the testimony accompanying 
 it, it appears satisfactorily to the Chancellor that the premises in 
 the bill of complaint mentioned, are so situated that a partition 
 or division thereof can be made among the parties interested 
 therein without great prejudice to the owners thereof and that 
 the rights and interests of the said parties in the said premises 
 are as is hereinafter declared and set forth, and no cause having 
 been shown or appearing against confirming the said report : 
 It is thereupon, on this day of , eighteen hundred 
 
 and , by his Honor , Chancellor of the State of 
 
 New Jersey, ordered, adjudged and decreed, and the said Chan- 
 cellor does, by virtue of the power and authority of this court, 
 hereby order, adjudge and decree, that the said report of the 
 said special master do stand ratified and confirmed ; and that the 
 parties, complainant and defendants, in this suit, are seized of 
 and entitled to the lands and premises in the bill of complaint 
 described, and their respective rights and interests therein are 
 
438 FORMS OF PLEADINGS. 
 
 hereby adjudged and decreed to be as follows, to wit, the defend- 
 ant, , is entitled to her dower in the whole of said prem- 
 ises ; the complainant, , is seized in fee of and entitled to 
 the one undivided part of the said premises, subject to the 
 aforesaid right of dower ; and the several defendants, , are 
 each seized of and entitled to the one equal undivided 
 part of said premises, subject to the aforesaid right of dower. 
 
 And it is farther ordered, adjudged and decreed, that partition 
 be made of the said lands and premises among the said parties, 
 complainant and defendants, according to their respective rights 
 and interests therein, as the same were reported by the said 
 master, and have been hereby adjudged and declared by this 
 court; and that and and , of the county of 
 
 , be and they are hereby appointed commissioners for the 
 purpose of making such partition, and that a commission do 
 issue out of and under the seal of this court for that purpose, to 
 be directed to the said commissioners, commanding them to divide 
 the said lands and premises into equal parts or shares, each equal 
 in value to the other, quantity and quality being relatively con- 
 sidered, and that they allot one of the parts or shares unto the 
 said complainant, ; and that they allot one of the said 
 
 parts or shares to each of the said defendants, , to be held 
 
 and enjoyed by the said parties respectively in severalty, accord- 
 ing to their respective rights and interests therein, as adjudged 
 and declared by this decree, subject, however, to the estate of 
 dower of the said therein; and that they designate the 
 
 parts or shares so allotted to each of the said parties, and the 
 boundaries thereof, by sufficient descriptions and monuments. 
 
 And it is further ordered, adjudged and decreed, that in case 
 partition of said premises cannot be made with perfect equality 
 among the said parties according to their respective rights and 
 interests, unless compensation be made by one or more of said 
 parties to the other or others of them, for, and to secure equality 
 of partition, then, and in that case, the said commissioners may 
 ascertain and report to this court the proper compensation which 
 ought to be made for equality of partition, and by whom of the 
 parties the same should be paid, and to whom the same ought 
 
PARTITION. 439 
 
 io be allowed ;(a) and that the said commissioners be authorized 
 to employ a surveyor, and cause all necessary maps and surveys 
 to be made; and that all the parties in the cause do produce and 
 leave with the said commissioners, for such time as said commis- 
 sioners shall deem reasonable, all deeds, writings, surveys and 
 maps in their possession or control relating to the said premises ; 
 and that the said commissioners examine witnesses concerning 
 the matters entrusted to them, as they shall think fit. 
 
 And it is further ordered, adjudged and decreed, that each 
 share or part of said premises, when allotted as aforesaid, shall 
 be charged with a ratable proportion of the costs, charges and 
 expenses of this suit. 
 
 Commission in partition. New Jersey, to wit — The 
 State of New Jersey to and and , of the 
 
 county of , in said state — Greeting: 
 
 Whereas, on the day of , eighteen hundred 
 
 and , by a certain decree made in the Court of 
 
 £l. s.] Chancery of New Jersey, before the Chancellor, at Tren- 
 ton, in a certain cause therein depending, wherein 
 and , his wife, are complainants, and are defendants, 
 
 it was ordered, adjudged and decreed, that a partition be made 
 of a certain tract of land and premises in the bill of complaint 
 in the said cause particularly set forth and described, that is to 
 flay — {here set forth the description of said tract, as in the bill of 
 ■complaint) — into equal parts or shares, each equal in value 
 
 to the other, quantity and quality being relatively considered; 
 and that for that purpose a commission should issue out of and 
 under the seal of our said court, directed to the said and 
 
 and , as commissioners, commanding them to make 
 
 such partition or division as aforesaid ; and that they should allot 
 one of the said parts or shares unto the said complainant, ; 
 
 (a) Each party must have his share 1 P. Wms. 447 ; Brookfield v. Wil- 
 in value, which is all that is required. Hams, 1 Gr. Oh. Sib ; Wilson v. E. JR. 
 To make the value equal, one party JR. Co., 62 ife. 112; Freeman on Par- 
 may be required under, certain cir- tition, § 507. The owelty to be paid 
 cumstanoes, to pay money on his share by a party is necessarily quite limited 
 ito those who receive one of less in amount, 
 value. Earl of Clarendon v. Hornby, 
 
440 FOEMS OF PLEADINGS. 
 
 and allot one of said parts or shares to each of the defendants^ 
 , to be held and enjoyed by the said parties respectively 
 in severalty, according to their respective rights and interests 
 therein, as adjudged and declared by said decree, subject, how- 
 ever, to the right of dower of the said defendant, y 
 therein. 
 
 Therefore know ye, that we have, pursuant to the said decree, 
 fully authorized and empowered you to go to, enter upon, walk 
 over and survey the said tract of land and premises, and the 
 same to separate, divide and allot, according to the decree afore- 
 said ; and for the better making of such partition and allotment, 
 ■ we do hereby give unto you full power and authority to examine 
 separately and apart, upon their oaths or affirmations, upon 
 interrogatories or otherwise, as you shall think fit, such witnesses 
 as shall be produced to you by the said parties, or any of them. 
 And we do hereby command you that you do, at certain proper 
 and convenient days and hours, to be appointed by you for that 
 purpose, go to, enter upon, walk over and survey the said tract 
 of land, and cause the said witnesses to come before you, and. 
 examine each of them apart upon interrogatories to be exhibited 
 before you by the said parties, or any of them, or otherwise, as 
 you shall think fit, upon their respective oaths or affirmations 
 first taken before you, and to reduce such examinations to writ- 
 ing, together with the questions asked by you, other than the 
 interrogatories aforesaid; and that you do separate and divide 
 the said tract of land into equal parts, each equal in value 
 
 to the other, quantity and quality being relatively considered,, 
 and do allot one of the said parts unto the complainant, ;. 
 
 and allot one of the said parts unto each of the said defendants,. 
 , to be held and enjoyed by the said parties respectively 
 in severalty, according to their respective rights and interests 
 therein, as adjudged and declared by the said decree, subject, 
 however, to the right of dower of the said therein; and 
 
 that you designate the parts so allotted to each of the said parties, 
 and the boundaries thereof, by sufficient descriptions and monu- 
 ments, and employ a surveyor, and cause all necessary maps and 
 surveys to be made, and cause all the parties in the cause to 
 produce and leave with you, for such time as you may think 
 
PARTITION. 44r 
 
 reasonable, all deeds, writings, surveys or maps relating to the 
 said premises in their possession or control; and in case such 
 partition as aforesaid of said premises cannot be made with per- 
 fect equality among the said parties, according to their respective 
 rights and interests therein, unless compensation be made by one 
 or more of them to the other or others of them for equality of 
 partition, then that you do ascertain and report the proper com- 
 pensation which should be made to secure equality in the parti- 
 tion, and by whom of the said parties the same should be paid,, 
 and to whom of them the same ought to be allowed. 
 
 And when you shall have so done, you are to certify and 
 return into our Court of Chancery, at Trenton, without delay, 
 your acts and proceedings in the premises, by your certificate, 
 together with the said interrogatories, questions and examina- 
 tions, distinctly and plainly written, and the maps made by you,, 
 under your seals, together with this writ. 
 
 Witness , our Chancellor, at Trenton, the day of 
 
 , eighteen hundred and 
 
 Clerk. 
 Solicitor. 
 
 Commissioners' oaths in partition. New Jersey, sa. — 
 Be it known, that on the day of , eighteen hundred 
 
 and , before the subscriber, one of the masters of the 
 
 Court of Chancery of the State of New Jersey, personally 
 appeared and and , the commissioners named in 
 
 the within commission, and being by me duly sworn according to 
 law, they did each severally depose and say, that he will honestly, 
 faithfully and impartially make the partition in said commis- 
 sion directed, and execute the trust and perform the duties and 
 services required of him by the said commission, to the best of 
 his skill, knowledge and judgment. 
 
 Sworn and subscribed before me, 
 the day and year above written. 
 
-442 
 
 FORMS OF PLEADINGS. 
 
 Commissioners' return in partition.(a) 
 {Title of cause.) 
 To his Honor , Chancellor of the State of New Jersey : 
 
 In pursuance of a certain commission, issued out of and under 
 the seal of the Court of Chancery of the State of New Jersey, 
 dated the day of , eighteen hundred and , 
 
 in the above-stated cause, appointing us, the subscribers, com- 
 
 (a) Equal partition of each parcel 
 
 ■ among all the owners is not required. 
 And a partition so made without neces- 
 sity, and practically destructive of the 
 value of the parcel divided, will be set 
 
 ■ aside. Havienbeck v. Cronkright, 11 C. 
 E. Or. 159. In equity there is no 
 necessity that a partition should be so 
 made as to give each party a share in 
 
 ■ every part of the property. Each 
 party must have his share in value, 
 which is all that is required. Brook- 
 afield V. Williams, 1 Or. Ch. 341. Under 
 
 certain circumstances, to make the 
 value of the several shares equal, one 
 » party may be required to pay money 
 on his share to those who receive a 
 share of less value. Ibid. And an 
 equitable partition may be made so as 
 to assign that portion of the land on 
 which the improvements are placed to 
 the person who has made them. Ibid. 
 Hall V. Piddock, 6 O. E. Or. 311. A 
 share may be subdivided on partition, 
 and the costs thereof will be charged 
 on that share. Coles v. Coles, 2 Beas. 
 365. To justify the setting aside of a 
 partition of real estate, on the ground 
 of a mistake in judgment on the part 
 of the commissioners, the error must 
 be a serious one and the evidence of 
 it too plain to be mistaken. Thompson's 
 Case, 2 Or. Ch. 637 ; Bentley v. Long 
 Bock Co., 1 McCart. 480 ; see Hay v 
 Estell, 4 a E. Or. 133. If the evi- 
 dence be doubtful or contradictory, 
 
 the report will be sustained Ibid. 
 A report of commissioners in parti- 
 tion will not be disturbed, save for 
 causes which at law would allow of a 
 new trial. Livingston v. 'Olarkson, 4 
 Edw. Ch. 596. Exceptions will not 
 lie to the return of commissioners, in 
 a suit for partition. The correct 
 practice in such cases is by motion to 
 suppress the return. Hay v. Estell, 
 supra. On motion to quash the par- 
 tition, the question to be considered 
 by the court is, whether the inequality 
 amounts to more than what would 
 arise from differences in judgment 
 between men of discretion in valuing 
 the same property. Ibid. It was 
 held that where a share of premises 
 partitioned is set off to a lunatic or to 
 an habitual drunkard, the title is 
 vested in him and not in his com- 
 mittee. Underhill v. Jackson, 1 Barb. 
 Ch. 73. If there be, at the time of 
 making partition, a lien upon the 
 undivided estate of any owner, by 
 judgment, decree, mortgage or other- 
 wise, such lien shall thereafter be a 
 lien only on the share assigned or 
 allolted to such owner; and such share 
 shall be Srtt charged with its just pro- 
 portion of the costs of the partition in 
 preference to any such lien. Bet:, 
 "Partition," | 36. And a part of the 
 land may be divided and the residue 
 sold. Bev., "Partition," § 37. 
 
PAETITION, 443 
 
 missioners to separate, divide and allot a certain tract of land 
 and premises, in the said commission particularly set forth and 
 described, into equal parts, each equal in value to the other, 
 
 -quantity and quality relatively considered, and allot one of said 
 parts unto the said complainant, ; and allot one of said 
 
 parts to each of the defendants, , to be held and enjoyed 
 
 by the said parties respectively in severalty, according to their 
 respective rights and interesls therein, as adjudged and declared 
 by the decree in said cause, subject, however, to the right of 
 dower of therein ; and to designate the parts so allotted 
 
 to each of the said parties, and the boundaries thereof, by suffi- 
 cient descriptions and monuments: we do hereby report to the 
 said court, that having taken upon us the burthen of the said 
 commission and appointment, and having been duly sworn 
 according to law, we. did, after due notice to the said parties, 
 enter upon, walk over and survey the said tract of land, and 
 did separate and divide the same into equal shares, (with the 
 owelty hereinafter mentioned,) and did make division thereof 
 by metes and bounds, having regard to the relative quantity and 
 quality of the land in each share; and that, for the better 
 understanding of the shape and situation of said premises, and 
 ■ of the manner in which such partition has been made by us, we 
 have caused to be made a map thereof, which is hereto annexed, 
 and forms part of this report, and have marked the several 
 shares delineated on said map by numbers, from to , 
 
 inclusive; and we did allot one share of said tract, being the 
 share marked No. on said map, to the complainant, , 
 
 which said share No. is .bounded and described as follows, 
 
 to wit, (here describe the premises comprised in this share;) and 
 we did allot to the defendant, , one share of said tract of 
 
 land, being the share marked No. on said map, which said 
 
 share No. is bounded and described as follows, to wit, &c., 
 
 ^{allotting all the shares;) to be held and enjoyed by the said 
 respective parties in severalty, according to their respective rights 
 and interests therein, a9 adjudged and declared by the decree in 
 the cause, subject, however, to the right of dower therein of the 
 said 
 
444 POEMS OF PLEADINGS. 
 
 And we do further report, that in making the said partition,. 
 as the same could not otherwise be made equal among the said 
 parties, and for the purpose of equalizing the same, we did 
 ascertain the compensation which ought to be made in conse- 
 quence of the difference in the value of certain of the aforesaid 
 shares, and do allot and direct the same to be paid as follows, 
 that is to say, that the said complainant, , to whom the 
 
 share marked No. on said map was allotted, ought 
 
 to pay the sum of dollars, to equalize the said parti- 
 
 tion ; and we do allot and direct that the said sum of 
 dollars be paid accordingly by said complainant to the said 
 defendaht, , to whom the share marked No. on said 
 
 map was allotted. 
 
 And we do further report, thait we have annexed to this our 
 return the interrogatories propounded to, and the examinations- 
 of the witnesses ppoduced before us by the said parties. 
 
 And we do farther report, that the schedule hereunto annexed 
 contains a statement of the items of the various expenses attend- 
 ing the execution of the said commission. 
 
 In witness whereof, we have hereunto set our hands and 
 seals,(a) this day of , eighteen hundred and 
 
 [L. S.J 
 [L.S] 
 [L. 8.] 
 
 Schedule. 
 
 We certify the following to be the costs and expenses of exe- 
 cuting the foregoing commission: {Here JoUows the account of ' 
 expenses, to be signed by the commissioner s.){b) 
 
 (a) A report of commissioners must sion. See rule 166. The statute pro- 
 be signed by all the commissioners ; vides for the supplying of vacancies, 
 or if not so signed, it should state the Rev., "Partition," I 20; Brailhwaite's 
 reason of the omission. Underhill v. Pr. 235. 
 
 Jackson, 1 Barb. Ch. 73. There does (6) The court may make such fur- 
 not seem to be any authority in the ther reasonable allowances beyond the- 
 New Jersey statutes for a part of the statutory fees and expenses as may be 
 commissioners to act in the commis- judged proper. Rev., "Partition," § 45.- 
 
PAKTITION. 445 
 
 Decree confirming partition. 
 
 {Title of cause.) 
 This cause being opened to the court by , of counsel 
 
 with the complainant, in the presence of , clerk of this 
 
 court, and guardian ad litem of the infant defendants in the 
 cause, the only defendants who have appeared therein, and upon 
 reading a report on file in the cause, made by and and 
 
 , commissioners appointed by a decree of this court, made 
 in this cause, to make a partition and division of the tract of land 
 in the bill of complaint in the cause particularly set forth and 
 described, by which report it appears that the said commissioners, 
 having first been duly sworn according to law, and having 
 given due notice to the said several parties, did enter upon, walk 
 over and survey the said tract of land and premises, and did 
 proceed to, and did separate and divide the said tract into equal 
 parts or shares, with the owelty hereinafter directed to be paid, 
 quantity and quality relatively considered, and did allot one of 
 said shares, being the share marked No. on the map 
 
 annexed to their said report, and forming a part thereof, and now 
 on file in the office of the clerk of this court, to the complainant, 
 , which said share is bounded and described as follows, 
 to wit, (here describe the premises in this share;) and did allot 
 one of said shares, being the share marked No. on said 
 
 map, to the defendant, , which said share is bounded and 
 
 described as follows, to wit, &c., (allotting all the shares.) And 
 by said report it further appears, that in making the said parti- 
 tion, as the same could not otherwise be made equal between the 
 said parties, and for the purpose of equalizing the same, the said 
 commissioners did ascertain and report the compensation which 
 ought to be made in consequence of the difference in value of 
 -certain of said shares, and did allot and direct that the said com- 
 plainant, , to whom the said share marked No. on said 
 map was allotted, should pay the sum of dollars, to equalize 
 the said partition, and that the said sum should be paid to the 
 said defendant, , to whom the share marked No. on 
 said map was allotted ; and it appearing that a copy of the rule 
 -nisi to confirm the said report has been duly served upon the 
 
446 FOEMS OF PLEADINGS. 
 
 defendants, and no cause having been shown or appearing against 
 confirming the said report : It is thereupon, on this day of 
 
 , eighteen hundred and , by his Honor ,. 
 
 Chancellor of the State of New Jersey, ordered, adjudged and 
 decreed, that the said report of the said commissioners, and all 
 the matters and things therein contained, do stand ratified and 
 confirmed; and that the said complainant, , do have, hold,^ 
 
 use, occupy, possess and enjoy, in severalty, the hereinbefore 
 described share or allotment of the said lands and premises, dis- 
 tinguished as share No. 1 on the map accompanying said report,, 
 allotted and assigned as aforesaid to the said complainant;' and 
 that the said defendant, , do have, hold, use, occupy, 
 
 possess and enjoy, in severalty, the hereinbefore described share 
 or allotment of the said land and premises, distinguished as share 
 No. on the said map, allotted and assigned as aforesaid to 
 
 the said defendant, &c,, [making decree as to all the shares;) all 
 of said shares, however, to be held by the several parties subject 
 to the right of dower therein of the said ; and that the 
 
 said partition, so as aforesaid made, stand and be held firm, valid 
 and effectual forever. 
 
 And it is further ordered, adjudged and decreed, that the sev- 
 eral other parties to this suit among whom partition has been 
 made, do forthwith mutually release to each other by deed, in 
 fee simple, the parts or parcels hereby allotted and partitioned 
 to them respectively, and that in executing each of said deeds, 
 all the parties to this suit shall join except the party to whom 
 such deed shall be executed, and his or her wife or husband, (a) 
 
 And it is further ordered, adjudged and decreed, that the said 
 complainant, , do pay to the said defendant, , the 
 
 sum of dollars, in full of the compensation to be made to 
 
 (a) The form of the decree, so far cree thereon, in the clerk's o£Bce of 
 as respects the direction for the. exe- the county where the lands lie, as 
 outing of conveyances, is according to notice of the title of the parties to the 
 the English practice, by which the partition. From the opinion of Chan- 
 parties execute mutual conveyances cellor Kent, in Young v. Cooper, 3 
 settled, in case of disagreement as to John. Ch. 295, it will be seen that the 
 form by a master. The practice in English practice would have been fol- 
 New Jersey has been also to record lowed in that case in the absence of a 
 the commissioners' return, or the de- statute. See Rev , " Chancery," § 63.. 
 
DOWBK AND CUKTE8Y. 447 
 
 the said , in the premises aforesaid; which said sum of 
 
 dollars is hereby declared to be a specific lien upon the 
 share of the said , allotted to him as aforesaid. * 
 
 And it is further ordered, adjudged and decreed, that the 
 costs of the complainant and the defendants to be taxed be 
 apportioned between the complainant and the defendants, , 
 
 according to their respective interests in the premises, and that 
 the amount apportioned to each person be a lien on the share of 
 such person until paid, and that the person to whom the same 
 is payable have leave to apply to this court in this suit for aid 
 in collecting the same.(a) 
 
 Or, after *, "And the costs of the complainant are hereby 
 declared to be a lien upon the shares of the respective defendants 
 in the premises in favor of said complainant." 
 
 In the ease of infant defendants, in respect to costs, say, "And 
 it is further ordered, that the shares of the costs and expenses 
 due from the shares of the infant defendants respectively be and 
 they are hereby declared to be liens upon their respective shares 
 as aforesaid, and payable by the general guardians of said infant 
 defendants out of the rents and profits of such shares, or out of 
 any other moneys that may come to the hands of such guardians 
 belonging to the said infants respectively." 
 
 DOWER AND CURTESY. 
 
 Election between gross sum and interest of in- 
 vestment. (6) 
 
 (Title of cause.) 
 
 I, , being entitled to dower in the lands sold under the 
 
 proceedings in the above cause, and my said estate having been 
 
 (a) Rev', "Partition," § 33. Fees the Chancellor, in his discretion, to- 
 
 for searches may be included as part allow a counsel fee to the complain- 
 
 of the taxable costs. Rev.Su/p.,''Chan- ant, notwithstanding an appearance 
 
 eery," ^ 18. By this practice the or answer has been filed by a defend- 
 
 amount thereof must be established ant. Bev. Sup., " Chancery," § 19. 
 by the affidavit" of the complainant (6) Upon sale being made of the- 
 
 or his solicitor :, and it is lawful for real estate of a tenant in dower, or by 
 
448 
 
 rOEMS OF PLEADINGS. 
 
 sold and conveyed to the purchaser, do hereby consent and elect 
 to receive and accept, in lieu thereof, * such sum in gross, out of 
 the proceeds of the sale, as shall be approved by the Chancellor, 
 as a just and reasonable satisfaction for the same; (or, after *, 
 " the investment of such sum as the Chancellor shall deem rea- 
 sonable and approve, in such manner that the interest thereof be 
 paid to me during my life.") 
 
 Given under my hand this day of , eighteen 
 
 hundred and 
 
 {8ignatv/re,) 
 
 Signed in presence of — 
 
 {Add verification of signature.) 
 
 -the curtesy in lands, the court shall 
 •direct the payment of such sum in 
 gross out of the proceeds of the sale 
 of the premises to the person entitled 
 to such estate, as shall be deemed a 
 just and reasonable satisfaction for 
 such estate or interest, and which the 
 person so entitled shall consent, in 
 writing, to accept in lieu thereof; but 
 in case no such consent be given be- 
 fore the making of the order confirm- 
 ing such sale, or for the distribution 
 of the proceeds thereof, then the court 
 shall ascertain and determine what 
 proportion of such proceeds will be a 
 just and reasonable sum to be invested 
 for the benefit of the person entitled 
 to such estate in dower, or by the cur- 
 tesy, and shall order the same to be 
 put at interest on sufficient security of 
 real property, or invested in public 
 stock or deposited in some safe and 
 reliable savings institution, by order 
 and under the direction and control 
 of said court, for the benefit of the par- 
 ties entitled, and the interest thereon 
 to be paid to them as the same may 
 become due, as compensation for, and 
 
 in lieu of the said estate in dower, or 
 by the curtesy ; and at the decease of 
 the person entitled to the same, the 
 principal sum shall be paid to, or 
 distributed among, the parties entitled 
 thereto. Rev., "Sale of land," i 19. 
 In partition, where the widow con- 
 sents to take a gross sum in lieu of 
 dower, and then dies, the fact of her 
 death cannot affect the valuation to 
 be made of her interest in the lands. 
 It is her expectancy which is to be 
 valued, and not the actual value of 
 her life estate as it has turned out to 
 be. McLaughlin v. McLaughlin, 7 C. 
 E. Or. 505. When a sale is made un- 
 der proceedings in partition, the dow- 
 ress is entitled to a just and reasona- 
 ble satisfaction out of the estate. This 
 means full compensation for the loss 
 which she sustains by having her 
 estate taken from her by the decree of 
 the court. The value of her estate 
 must be computed from the use and 
 profits she was entitled to derive from 
 it if not Sold. Haidenbeck v. Oronlc- 
 right, 8 0. E. Or. 407. 
 
DOWBE AND CUETE8Y. 449 
 
 Order of reference as to dower. 
 
 (Title of cause.) 
 It appearing to the court that was entitled to an estate 
 
 of dower in the lands and premises sold in this cause, and that f 
 due notice of the sale of said lands, free and discharged from 
 such estate in dower, has been given to her, and that she has, by. 
 writing signed by her, and filed in this cause, consented to accept, 
 in lieu of her dower, * a gross sum to be approved by the Chan- 
 cellor J (or, after *, " the permanent investment of a reasonable 
 sum to be approved by the Chancellor, in such manner that the 
 interest thereof shall be payable to her during her life;" or, 
 after t, " she has giveh no consent in writing to accept a gross 
 sum in lieu of said estate : ") It is thereupon, on this day 
 
 of , ordered, &c., that it be referred to , one of the 
 
 special masters of this court, to ascertain and report what, in his 
 opinion, is a proper sum J in gross, under all the circumstances 
 of the case, to be paid out of the proceeds of said sale, to said 
 , as the value of her dower ; and to that end he is to 
 inquire into and is to report the condition of her health, and 
 whether she has an average expectancy of life (or, in case of 
 investment, after J, ''to be invested for the benefit of the said 
 , for the object aforesaid.") 
 
 Master's report on sum in gross.(a) 
 {Title of cause.) 
 To his Honor , Chancellor of the State of New Jersey: 
 
 I, the undersigned, , one of the special masters of this 
 
 court, do report that, in pursuance of an order made in the 
 
 (a) In ascertaining the proper sum the circumstances thereof, is a reason- 
 to be paid in gross to a tenant in able sum to be paid in commutation, 
 dower, the 184th and 185th rules of See ride 170; Oronkright v. Havlenbeck, 
 the Court of Chancery on the subject, 10 C. E. Or. 513. On the coming in 
 should not be taken as an absolute of the report, the allowance for dower 
 guide ; but irrespective of the result will be inserted in the order of distri- 
 of the application of the rule to the bution It is riot the practice to enter 
 casein hand, the court should deter- a special order confirming the master's 
 mine what, in the case in hand, under report as to dower. 
 
 2d 
 
450 FORMS OF PLEADINGS. 
 
 above-entitled cause, bearing date on the day of , 
 
 by which it is referred to me to ascertain and report what is a 
 proper sum in gross to be paid out of the proceeds of the sale in 
 this case, to , as the value of her dower, I have proceeded 
 
 to inquire into and ascertain the same. And I report, that the 
 clear yearly income which the said could realize from 
 
 said lands, if owner of the whole for life, above insurance, 
 repairs and taxes, is the sum of dollars, and in such cal- 
 
 culation I have made allowance for all repairs necessary to keep 
 the premises in as good condition as they were in at the time 
 of the sale, including the renewal of any part of the buildings 
 thereon that may, by ordinary wear and .tear, decay and require 
 renewal. 
 
 And I further report, that the age of said is 
 
 years; and that her health is good, and she has the average 
 expectancy of life at her age ; and that the value of such dower, 
 calculated upon the basis of the table contained in the rules of 
 this court, from one-third of said clear income, is the sum of 
 dollars. 
 
 And I further report, that the value of said dower, calculated 
 upon the basis of said table, from the net proceeds of sale, which 
 are dollars, is the sum of dollars. 
 
 And I further report that, in my opinion, the proper sum in 
 gross to be paid to the said , ascertained by adding to the 
 
 amount calculated from the clear yearly income one-half of the 
 excess of the amount calculated from the net proceeds of sale, 
 over the amount above ascertained from the clear yearly income, 
 is the sum of dollars. 
 
 And I further report, that under all the circumstances of the 
 case, and with due regard to the rights of all parties concerned, 
 such sum is a just and reasonable satisfaction for the said estate 
 in dower, irrespective of the application of the above rule to 
 the case. 
 
DOWEK AND CURTESY, 451 
 
 Master's report on amount to be invested. 
 
 {Title of cause.) 
 To his Honor , Chancellor of the State of New Jersey : 
 
 I, the undersigned, , one of the special masters of this 
 
 court, do report that, in pursuance of an order made in the 
 above- entitled cause, bearing date on the day of , 
 
 by which it is referred to me to ascertain and report what is 
 a proper sum to be permanently invested, in such manner that 
 the interest shall be payable to , , during her life, in lieu of 
 
 her dower in the lands sold in this cause, I have proceeded to 
 inquire into and ascertain the same in the manner directed by 
 said order. 
 
 And I report, that the clear yearly income which the said 
 could realize from the whole of said lands, if owner of 
 the whole for life, above insurance, repairs and taxes, is the sum 
 of dollars ; and in such calculation I have made allowance 
 
 for all repairs necessary to keep the premises in as good condi- 
 tion as they were in at the time of the sale, including the renewal 
 of any part of the buildings thereon that may, by ordinary wear 
 and tear, or from decay, require renewal. 
 
 And I further report, that the net amount of sales is 
 dollars; and that one- third of the interest thereon, at six per 
 cent., is dollars ; and that the proper income to be secured 
 
 to said , in lieu of her dower, is the sum of dollars 
 
 yearly, which sum I have ascertained by adding to the above 
 amount to which she would be entitled from the clear yearly 
 income, one-half of the excess of the interest of one-third of the 
 net proceeds above the same. 
 
 And I further report, that the proper sum to be invested out 
 of the proceeds of sale for the purpose of procuring the said 
 income for said , is the sum of dollars, which is 
 
 the amount that would produce said income. And I do here- 
 with transmit the depositions of witnesses taken by me, upon 
 "which this report, and the conclusions therein, are founded. 
 
 All which is respectfully submitted this, &o. 
 
452 
 
 FOEMS OP PLEADINGS. 
 
 DIVORCE.(a) 
 
 Bill for divorce for adultery. 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State bf New Jersey r 
 
 Complaining, shows unto your Honor your orator, , of 
 
 , in the county of , and State of New Jersey, that 
 
 (a) The Court of Chancery has jur- 
 isdiction of all causes of divorce and 
 of alimony or maintenance, directed 
 and allowed by the statute conferring 
 such jurisdiction, provided the parties 
 complainant or defendant, or either 
 of them, were, or shall be, inhabitants 
 of the state at the time of the injury, 
 desertion or neglect complained of, or 
 where the marriage shall have been 
 solemnized or taken place within the 
 state, and the complainant shall have 
 been an actual resident in the state at 
 the time of the injury, desertion or 
 neglect complained of, and at the time 
 of exhibiting the bill ; or, where the 
 adultery was committed in the state, 
 and the parties complainant and de- 
 fendant, or either of them, reside in 
 the state at the time of exhibiting the 
 bill ; or, where the complainant or 
 defendant shall be a resident of the 
 state at the time of filing the bill of 
 complaint, and the complainant or 
 defendant shall have been a resident 
 of the state for the term of two years 
 during which such desertion shall 
 have continued. An aflBdavit of non- 
 collusion must be annexed to the bill 
 of complaint. Sev., "Divorce," § 1 ; 
 amended, Pamph, L., 1890, p. 34. 
 
 The Court of Chancery shall have 
 jurisdiction of all cases of divorce in 
 case of adultery committed out of this 
 state, where the complainant or de- 
 fendant was or shall have been a resi- 
 dent of this state for three (now two) 
 years next preceding the time when 
 
 said bill was or shall hereafter be- 
 filed. Rev. Sup., "Divorce," § 3. 
 
 The residence required by the 
 statute above cited to give the court 
 jurisdiction, .means fixed domicil or 
 permanent home. Coddington v. Cod- 
 dington, 5 C. S. Or. 263 ; see Slede v. 
 Steele, 11 G. E. 6r. 85; Winship v. 
 Winship, 1 C. E. Gr. 107; FiHh v. 
 Firth, 5 Dick. Ch. Rep. 1 37. 
 
 Divorces from the bond of matri- 
 mony may be decreed where, at the 
 time of such marriage, either of the 
 parties had another husband or wife 
 living; where the parties are within 
 the degrees prohibited by law ; (see 
 Rev., "Marriages," ? 1 ;) in case of 
 adultery in either of the parties; in 
 case of willful, continued and obstinate 
 desertion for the term of two years ; 
 and where either of the parties is 
 physically and incurably impotent. 
 Rev., "Divorce," p. 315. It is the duty 
 of a wife who sues for divorce to cease 
 cohabitation with her husband pend- 
 ing the suit. Marsh v. Marsh, 1 Jlfc- 
 Cart. 315 ; Chapman v. Chapman, 10 
 C. E. Or. 394. And the voluntary 
 separation by a wife from her hus- 
 band, while proceedings, at his in- 
 stance, were pending against her for a 
 divorce, on a charge of adultery, does- 
 not constitute a, willful desertion in 
 contemplation of law. The presump- 
 tion must be, in such case, that the 
 separation is by his procurement or 
 with his assent. Marsh v. Manh, 
 supra. 
 
DIVOBCE. 
 
 453 
 
 your orator was lawfully joined in the bonds of matrimony to 
 bis present wife, , on the day of , eighteen 
 
 hundred and , from which time forward until the time of 
 
 the filing of this bill your orator has been an inhabitant of 
 aforesaid, and the said has been also an inhabitant 
 
 of the same place until on or about the day of , 
 
 eighteen hundred and , when she left the residence of 
 
 your orator, at aforesaid, and went to , where your 
 
 orator is informed and believes she now is. 
 
 And your orator further shows, that the said , since her 
 
 said marriage with your orator, and on different days of the 
 months of , eighteen hundred and , wickedly disre- 
 
 garding the solemnity of her vows and the sanctity of the mar- 
 riage state, committed adultery with one , at , in the 
 city of , in the State of , (or as the case may be).{a) 
 
 (a) A general allegation in a bill 
 for divorce, that the defendant, within 
 a specified time, has committed adul- 
 tery, is insufficient. The person with 
 whom the crime is believed to have 
 been committed must be named ; or, 
 if unknown, an averment to that eflfect 
 is necessary. Marsh v. Marsh, 1 C. E. 
 Or. 391. The time when, the place 
 where and the person with whom the 
 offence was committed should be 
 charged in the bill. It is not neces- 
 sary to state the day, but the month 
 and year should be stated. Ibid. 
 
 If the name of the person with 
 whom the adultery is alleged to have 
 been committed is unknown, the time, 
 •place and circumstances must be 
 -stated, so as to identify the offence, or 
 the person of the adulterer must be 
 described, and the fact that the name 
 of such person was unknown at the 
 time of filing the bill, must be proved. 
 If the name is known, it must be 
 stated in the bill. Miller v. Miller. 5 
 C E. Or. 216; rule 163; see Goodwin 
 <v. Goodwin, 8 O. E. Or. 210 ; Noel v. 
 
 Noel, 9 a E. Or. 137. "When the 
 name of the person with whom, and 
 the place at which, the offence is 
 alleged to have been committed are 
 set forth, an allegation that the offence 
 was committed on different days, in 
 specified months of specified years, 
 will be sufficient. Blade v. Black, 11 
 C. E. Or. 431. All suits in the Court 
 of Chancery for divorces may be com- 
 menced by filing a, petition with the 
 clerk of the court; which petition 
 shall plainly and fully state the cause 
 or causes of the application for such 
 divorce and the relief prayed. B,ev., 
 "Divorce," I 7. Where the marriage 
 is not one declared originally void by 
 the statute, and the case is one which 
 cannot be considered within its provi- 
 sions, as included in the term void, 
 the suit must be by bill. Selah v. 
 Selah, 8 O. E. Or. 185. A charge of 
 adultery and a charge of extreme, 
 cruelty cannot be united in the same 
 bill. Decamp v. Decamp, 1 Or. Oh. 
 294. Nor is it proper to blend in one 
 bill an application for a divorce with 
 
454 FORMS OP PLEADINGS. 
 
 And your orator further shows, that, by means of the premises,, 
 his domestic peace and happiness have been entirely destroyed. 
 In tender consideration whereof, and to the end that the eaid 
 may answer this bill; and that the marriage between 
 your orator and the said may be dissolved, according to 
 
 the statute in such case made and provided; and that your orator 
 may have such other or further relief in the premises as may be 
 agreeable to equity and good conscience. 
 
 May it please your Honor, the premises considered, to grant 
 to your orator the state's writ of subpoena, issuing out of and 
 under the seal of this honorable court, to be directed to the said. 
 , commanding her, on a certain day and under a certain 
 penalty therein to be expressed, personally to be and appear 
 before your Honor in this honorable court, then and there to 
 answer the premises, and to stand to, abide by and perform such 
 order, direction and decree as to your Honor shall seem meet 
 and as shall be according to the statute in such case made and 
 provided. 
 
 {Signature of solicitor and counsel.) 
 
 Affidavit of non-collusion. State of New Jersey, ss. — 
 , the complainant in the foregoing bill, being duly sworn, 
 says — that his complaint in said bill is not made by any collu- 
 sion between him and the defendant in said bill for the purpose 
 of dissolving their marriage, but in truth and good faith, for the 
 causes set forth in the bill of complaint. 
 
 {Signature.) 
 {Jurat.) 
 
 a prayer for independent relief, at his discretion, assign to any poor 
 grounded on charges which require person a solicitor and counsel to prose- 
 an answer under oath. Ibid. A bill cute a suit, who, together with all 
 for divorce may contain a prayer for other officers, shall perform their re- 
 alimony, and any charge made in the spective duties without fee or reward, 
 bill respecting property, which may Jlev., "Divorce,'' § 33 ; see also page 
 affect the question of alimony, will be 72, supra. 
 proper. Ibid. The Chancellor may, 
 
DIVOECE. 455 
 
 Answer to bill for divorce for adultery .(a) 
 
 The answer, of to the bill of complaint of , 
 
 complainant. 
 
 This defendant, for answer to said bill of complaint, or unto 
 so much and such parts thereof as she is advised is material and 
 necessary for her to make answer unto, answers and says, that it 
 is true, as stated in the said bill of complaint, that she was law- 
 fully married to the said complainant on the day of , 
 eighteen hundred and ; and that she and the said com- 
 plainant continued to reside at , in , from that time, 
 or shortly thereafter, until the day of , eighteen 
 hundred and , &c. 
 
 And this defendant, further answering, admits it to be true, 
 that, at the date last mentioned, she left the residence of said 
 complainant, and went to reside in the city of ; and says 
 
 that she was compelled to leave the residence of her husband, 
 by reason of his cruel conduct towards her ; that for about the 
 term of four months, the complainant behaved himself as became 
 a husband, and then, as a consequence of his intemperate habits 
 or his evil association, or both causes combined, he began to 
 manifest a very jealous and suspicious deportment towards this 
 defendant, and would often, in the grossest terms of abuse, accuse 
 this defendant of infidelity to her marriage vows, which accusa- 
 tion this defendant avers to be utterly without foundation in 
 truth. ■ 
 
 And this defendant, further answering, says, that the said 
 complainant continued this cruel course of conduct towards her 
 repeatedly and from time to time, until the said day of 
 
 (a) In suits for divorce, under the bill in chancery. In cases commenced 
 statute, the answer, although sworn by petition, the defendant must file his 
 to, cannot be considered as evidence or her answer within three days after 
 for any purpose. Miller v. Miller, the return-day of the citation ; if an 
 Sax. 386 ; Bev., "Divorce,'' | 6. It answer is filed, the cause is at issue 
 may be used as an affidavit on a mo- without a replication ; the time for the 
 tion for alimony pendente lite. Anthony petitioner to take his or her evidence 
 V. Anthony, 3 Stock. 70. Where the runs from the date of the filing of the 
 proceeding is by bill, and the defend- answer, and the taking of evidence is 
 ant answers, the complainant should governed by the eightieth and eighty- 
 put in the usual replication, and the first rules. Mev., "Divorce," ? 11. 
 cause proceeds as in other causes by 
 
456 FORMS OP PLEiDINGS. 
 
 before mentioned, when she, perceiving no hope of any 
 change in his treatment, and being very unhappy in living with 
 a husband whose only deportment towards her was that of cruel 
 suspicion and disgraceful crimination, left his residence, with his 
 full understanding and knowledge; that, after leaving the resi- 
 dence of the complainant, she endeavored again to pursue the 
 business of store-keeping, in which she was engaged when she 
 married the complainant, but soon found that her charaxiter had 
 been so much traduced by her said husband that she could not 
 make a living by the business, and she therefore, in the month 
 of , eighteen hundred and , relinquished it, and 
 
 went to live with her brother, under whose roof and protection 
 she still continues to reside. 
 
 And this defendant, further answering, denies that she ever 
 did, on different days or on any day or time in the month of 
 , eighteen hundred and • , or in either of those 
 
 months or any other month or time, commit adultery with the 
 said , in the said bill mentioned, or with any person or 
 
 persons whomsoever, either in the city of or elsewhere; 
 
 and she says' that the charge of adultery made in the said com- 
 plainant's bill against her is wholly untrue, and a most unfounded 
 and cruel imputation; and, on the contrary thereof, this defendant 
 avers the truth to be, that she has always, since her marriage 
 with the said complainant, faithfully regarded towards him her 
 marriage vows, and has been true and faithful to his bed and 
 her obligations as his wife. 
 
 And this defendant humbly prays to be hence dismissed, with 
 her reasonable costs and charges in this behalf most wrongfully 
 sustained. {Signature of solicitor of defendant.) 
 
 Petition for divorce for adultery, (a) The petition of 
 , of , in the State of New Jersey, respectfully 
 
 (o) A divorce cannot be had on the of her husband, or reason to believe 
 
 ground of adultery if the husband has it, continues voluntarily to live with 
 
 been reconciled to his wife after the her husband, except for imperative 
 
 adultery committed by her, or, know- reasons, she condones the offence, and 
 
 ing it, retained her after she has com- is not entitled to a divorce on that 
 
 milted adultery. Marsh v. Marsh, 2 ground. Stevens v. Stevens, 1 McOart. 
 
 £eas. 283. Or, if the wife having 374; see Jones v. Jones, 3 (7. ^. G?-. 33. 
 knowledge of the adultery on the part 
 
DIVOKCB. 457 
 
 «hows, that on or about the day of , eighteen 
 
 hundred and , your petitioner was married to , 
 
 her present husband, at , in the county of , and 
 
 state aforesaid; and that she continued to live with him as her 
 husband, until, &c., {stating time of separation;) and that from 
 the time of said marriage they have been, and now are, inhabi- 
 tants of this state; and that the said , since his marriage 
 with your petitioner, and on the {state the day, month and year,) 
 at {state the place,) wickedly disregarding the solemnity of his 
 vows and the sanctity of the marriage state, committed adultery 
 with one 
 
 And your petitioner further shows, that she has not volun- 
 tarily cohabited with her said husband since the discovery by 
 her of said act of adultery. 
 
 She therefore prays, that she may be divorced from her said 
 husband for the cause aforesaid, according to the statute in such 
 case made and provided; {insert prayer for support and for 
 custody of children if desired,) and may have such further or 
 other relief as may be equitable and just. 
 
 And she will ever pray, &o. 
 
 {Signature of counsel.) 
 
 {Annex affidavit of non- collusion, as in preceding form, substi- 
 tuting the word " petition" for " bill of complaint." ){a) 
 
 Petition for divorce for desertion.(6) 
 
 {Address.) 
 The petition of , of the county of , in the State 
 
 'Of New Jersey, respectfully shows, that your petitioner was 
 
 (a) The complainant or petitioner (6) If a husband, by his extreme 
 
 ;shall make his or her oath or aflSrma- cruelty to his wife, compels her, for 
 
 ;tion, to be annexed to the bill or peti- her own safety and protection, to seek 
 
 tion, that his or her complaint is not a home elsewhere than under herhus- 
 
 made by any collusion between him band's roof, she does not thereby de- 
 
 ■ or her and the defendant, for the pur- sert her husband, in the meaning of 
 
 .pose of dissolving their marriage, but the statute. Marker v. Marker, 3 Stock. 
 
 in truth and good faith for the cause 356 ; see Mitlenhov^e v. Mitlenhouse, 2 
 
 or causes set forth in the bill or peti- SUw. Eq. 274. To establish a case 
 
 tion. See Rev., "Divorce," ? 7. of desertion sufficient to authorize a 
 
458 FORMS OF PLEADINGS. 
 
 married, on the day of , eighteen hundred and 
 
 , at , in the county of , in the State of 
 
 New Jersey, to , her present husband; since which time 
 
 she has resided, and still resides at , in the county of 
 
 aforesaid. 
 
 And your petitioner further shows, that her said husband 
 lived with her, and supported her for about years after 
 
 their marriage, and until the month of , eighteen hun- 
 
 dred and , when he deserted her, and left the State of 
 
 New Jersey, as she has understood and believes; but he has 
 since returned to this state, and now resides at , in the 
 
 county of 
 
 And your petitioner further shows, that for more than two 
 years last past her said husband has willfully, continuedly and 
 obstinately deserted her, and during all that time has wholly 
 neglected to make any provision for her support. 
 
 And your petitioner further shows, that she has 
 children by her said husband, viz., (state children's names and 
 ages.) 
 
 And your petitioner further shows, that her maiden name was 
 ; and that she has no means of support except from her 
 own exertions; and that the parents of her said husband have 
 taken her said children, and now support them. 
 
 Your petitioner therefore respectfully prays, that she may be 
 divorced from her said husband ; and that he may be compelled, 
 by the order and decree of this honorable court, to provide for 
 and support her and her said children; and that she may have 
 such further or other relief as may be equitable and just. 
 
 And your petitioner will ever pray, &c. 
 
 (Signature of solicitor and counsel with petitioner.) 
 
 (Annex affidavit of non-collusion, in usual form.) 
 
 divorce, it should appear that the v. Jemivngs, 2 Beas. 38; Moores v.* 
 
 wife left her husband of her own Moores, 1 C E. Or. 275. The three 
 
 accord, without his consent and against years' residence requisite to give jur- 
 
 his will, or that without just cause isdiction in cases of divorce must be 
 
 she obstinately refused to return on continuous. Sanders v. Sanders, 2^. 
 
 the request of her husband. Jennings Slew. Eq. 410. 
 
DIVOKCE. 
 
 459- 
 
 Gitation in divorce.(a) {For fovm of citation on petition 
 for divorce, and practice thereon, see page 21, ante, and note.) 
 
 Order of reference in divorce when proceedings 
 
 are ex parte.(6) 
 
 {I'itle of cause.) 
 
 Upon opening this matter to the court, by , of counsel 
 
 with the petitioner, and it appearing that * process of citation 
 for the defendant to appear and answer the petitioner's petition 
 has been duly issued and returned served upon him, together 
 with a certified copy of said petition ; (or, in case of an absent 
 defendant, after *, " due notice of the order of this court, made 
 
 (a) Upon filing his petition, the 
 clerk, if lequired, makes out a certi- 
 fied copy of the petition, and issues a 
 citation under the seal of the court ; 
 it is the duty of the sheriff to serve 
 such citation and the copy of the peti- 
 tion. Such service is made either by 
 delivering copies thereof to the de- 
 fendant personally or by leaving them 
 at his or her dwelling-house or usual 
 place of abode, at least twenty entire 
 days before the return-day of the 
 citation. It is a sufficient return for 
 the sheriff to endorse the word 
 "served" or "cited," and the words 
 " together with a copy of the petition," 
 on the writ, over his official signature. 
 Sen., "Divorce," § 8, et seq. In case it 
 shall be made to appear, by affidavit 
 or otherwise, to the satisfaction of the 
 Chancellor, that such defendant is out" 
 of the state, the Chancellor may make 
 an order according to the form on 
 page 24, ante. Id., ? 13. It was held 
 in Pullen v. Pvllen, 2 Stew. Eq. 541, 
 that under the circumstances, the pe- 
 titioner should have made the affi- 
 davit of the defendant's non-residence ; 
 one taken by her brother-in-law, held 
 not sufficient. 
 
 (6) The like process and course of 
 
 practice and procedure shall be had 
 and pursued in all causes of divorce 
 mentioned in the statute, as are usu- 
 ally had and pursued in other causes 
 in the Court of Chancery, except that 
 the answer of the defendant shall not 
 be under oath. iJeu., "Divorce," ? 6. 
 In proceedings for divorce commenced 
 by petition, if the defendant shall not 
 file his or her answer to the petition 
 within three days after the sheriff 
 shall have returned the citation 
 "served" or "cited," or in case of an 
 absent defendant, within the time 
 limited by the order of publication, 
 (due proof having been first made, or 
 the service or publication of the 
 requisite notice thereunder,) the court 
 may make an order that the petitioner 
 proceed to take depositions and other 
 evidence to substantiate and prove the 
 allegations in the petition, and to 
 bring on the hearing of the cause 
 ex 'parte. Id., § 12. By the rules, all 
 references in divorce proceedings must 
 be to special masters. Rule 45. In 
 suits for divorce on account of adul- 
 tery, no reference can be ordered 
 where the offence is not designated in 
 the bin or petition in the manner 
 designated by the rule. Rule 1 63. 
 
460 FOBM8 OF PLEADINGS. 
 
 on the day of last past, directing the defendant to 
 
 appear and answer the said petition on or before the day 
 
 of then next, has been duly published and mailed, as in 
 
 said order, and by the rules of this court, directed and prescribed ; 
 and that the said defendant has not answered to the same within 
 the time limited by law and said order, but has wholly failed 
 and neglected so to do : ") It is thereupon, on this, &c., ordered, 
 that it be referred to , one of the special masters of this 
 
 court, to ascertain and report as to the truth of the allegations of 
 the petitioner's petition, and his opinion thereon ; and that the 
 petitioner proceed to take depositions and other evidence before 
 said special master, to substantiate and prove the allegations in 
 said petition, and to bring on the hearing of the cause ex parte; 
 and that the said master do return, together with his report, and 
 as part thereof, such depositions and other evidence as may be 
 taken before him in pursuance of this order. 
 
 Master's report on an order of reference in divorce 
 for the cause of desertion, (a) 
 
 {Tiile of cause.) 
 In pursuance of an order of this court, made in the above- 
 stated cause, bearing date on the day of , &c., 
 whereby it was referred to the subscriber, one of the special 
 
 (o) In a suit for divorce on the only must the fact of desertion be 
 
 ground of desertion, the master must sworn to, but the circumstances must 
 
 report the facts and circumstances be proved. Tate v. Tate, 11 C. E. Gr. 
 
 under which the desertion took place, 55. To make out a case of desertion, 
 
 and the reasons which caused and three things must be shown — cessa- 
 
 provoked it, if they can be ascer- tion of cohabitation, an intent in the 
 
 tained. Rule 164; Bdton v. Belion, mind of the defendant to desert, and 
 
 11 O. E. Or. 449 ; Stone v. Stone, 1 that the separation was against the 
 
 Stew. Eq. 409. The desertion must will of the complainant. Taylor v. 
 
 appear from the facts sworn to. Stone Taylor, 1 Stew. Eq. 207. More than 
 
 V. Stone, 10 C E. Or. 445. A decree the unsupported testimony of the 
 
 will not be granted where the only petitioner is necessary to prove the 
 
 evidence of the alleged desertion is desertion. Pullen v. Fallen, 2 Stew. 
 
 ■the oath of the witness that the de- Eq. 541 ; McShane v. McShane, 18 
 
 -fendant "deserted" the complainant. Stew. Eq. Z41. Eepeated refusals by. 
 
 Leaning v. Leaning, 10 C E. Gr. 211 ; a wife to live with her husband in 
 
 Pidlen V. Pullen, 2 Stew. Eq. 542. Not the place of his residence chosen by 
 
DIVOKOE. 461 
 
 masters of this court, to ascertain and report as to the truth of 
 the allegations of the petitioner's petition, [or, " complainant's 
 bill,") and his opinion thereon, &o., I do report that I have 
 been attended by , solicitor of said petitioner {or 
 
 "complainant;") and that in his presence I have taken the 
 depositions of witnesses produced before me, and have examined 
 into the matters thereby referred to me. * 
 
 And I find and report, that the said petitioner (or "com- 
 plainant") and the defendant were lawfully married {state' the 
 date,) in {state the place;) and that the petitioner {or "com- 
 plainant") has lived in , in this state, for the period of 
 years last past; that the petitioner {or "complainant") 
 and defendant lived together as husband and wife from the time 
 of their marriage as aforesaid until , at which time both 
 of said parties were residents of the said city of , {or as 
 the case may be.) 
 
 And I further report, that on the day of , eighteen 
 
 hundred and , the said defendant deserted the petitioner, 
 
 {or "complainant") and has never, since that time, returned to 
 her, and that, in my opinion, the said desertion was and is willful. 
 
 Mm, without a justifying cause, con- manner that it may appear whether 
 
 stitutes such desertion as entitles the facts sworn to are within the per- 
 
 him to a divorce. Hunt v. Hunt, 2 sonal knowledge of the witness, or 
 
 Stew. Eq. 96. A wife was held not to are from hearsay or reputation ; and 
 
 be guilty of desertion where she left the master shall not report any evi- 
 
 her home because of the threatening dence from hearsay and reputation 
 
 language and conduct of her husband, which shall appear to him to be 
 
 who thereupon, instead of asking illegal, unless the complainant or his 
 
 her to return, notified the public, by counsel insists that the same is legal ; 
 
 advertisement, not to give her credit. and such master shall report dis- 
 
 Mittenhouse v. Rittenhouse, 2 Stew. Eg. tinctly what facts alleged as the 
 
 274. Where a divorce suit is referred ground of divorce are proved to his 
 
 to a master, it is irregular to exam- satisfaction, and also what facts 
 
 ine a witness before another master. necessary to give jurisdiction are so 
 
 Cook V. Cook, 2 Beas. 263. A master proved ; and in suits based on deser- 
 
 must perform the duties, under an tion, shall examine into and report 
 
 order of reference, in person ; neither the facts and circumstances under 
 
 his authority nor his duty can be which the desertion took place, and 
 
 delegated. Stcme v. Stone, 1 Stew. Eq. the reasons which caused or pro- 
 
 409. The master shall take down voked it, if the same can be ascer- 
 
 and report the testimony in such tained. Rule 164. 
 
462 FORMS OF PLEADINGS. 
 
 continued and obstinate. All of which will more fully appear 
 by the testimony of the witnesses produced before me, whose 
 depositions are annexed to this my report. 
 
 And I further report, that I have endeavored to ascertain the 
 facts and circumstances under which the said desertion took 
 place, and the reasons which caused it, but have been unable so 
 to do, the petitioner {or "complainant") herself being unable to 
 account in any way for said desertion, unless that it was caused 
 by the dissipation of the said defendant, {or otherwise state what 
 caused or provoked the desertion, aeeording to the facts as ascer- 
 tained.) 
 
 And I further report, that I am of opinion that all the 
 material facts charged in the petitioner's petition (or "com- 
 plainant's bill") are true, and that a decree of divorce should be 
 made in this cause for desertion, pursuant to the prayer of said 
 petition {or "bill.") 
 
 Respectfully submitted this day of , eighteen 
 
 hundred and 
 
 {Signature of master.) 
 
 Master's report on an order of reference in divorce 
 for the cause of adultery.(a) 
 
 {Title of cause.) 
 As in preceding form to *, then, "And I do find and report, 
 that it is proved to my satisfaction that the petitioner and the 
 defendant, whose maiden name was , intermarried at 
 
 (o) Evidenoe in cases of adultery. counter-testimony of the person ac- 
 Tlie uncorroborated testimony of the cused and her particeps criminis. 
 ■ complainant as to the cause of divorce Berehmana v. Berckmwns, 1 C E. Or. 
 is insufficient to warrant a decree u. 122; and see Miller v. Miller, 5 O. E. 
 vinculo. Belton v. Belton, 11 C.E. Or. Or. 216. Admissions of a party on a 
 449. A charge of adultery pleaded charge of adultery, are competent 
 in recrimination as a bar to divorce, proof of the charge only when con- 
 must be sustained by other proof than nected with other evidence. Milkr 
 the unsupported evidence of the de- v. Miller, 1 Or. Oh. 139 ; see Jones v. 
 fendant pleading it. Beidv. Beid, 6 Jones, 2 C. E. Or. 351. Direct evi- 
 O. E. Or. 331. The testimony of one deuce is not required to sustain the 
 witness uncorroborated, unsupported charge of adultery. Day v. Day, 3 
 and, in its details, improbable, is not Or. Oh. 444. But it is necessary to 
 sufficient to establish the charge of show that adultery is the only neces- 
 . adultery against the full and explicit sary conclusion from the facts of the 
 
DIVOBCE. 463 
 
 , ia this state, on the day of , &c. ; that 
 
 both said parties then were and have since continued to be 
 inhabitants of this state. 
 
 And I further report, that it appears to my satisfaction, from 
 ihe said depositions, that the said defendant committed adultery 
 with one , at , in the State of , on the 
 
 day of , eighteen hundred and 
 
 And I further report, that I am of opinion that all the 
 material facts charged in the said petition are true, and that a 
 decree of divorce should be made in this cause for the crime of 
 adultery, pursuant to the prayer of the said petition. 
 
 Respectfully submitted this day of , eighteen 
 
 hundred and 
 
 {Signature of master.) 
 
 Final decree in divorce ex parte, on bill or peti- 
 
 tion.(a) 
 
 {Title of cause.) 
 
 This cause having been regularly set down for hearing at the 
 
 term, eighteen hundred and , of this court, 
 
 and now coming on to be heard in the presence of , of 
 
 counsel with the complainant (or "petitioner,") no one appearing 
 
 •case. Mount v. Mount, 2 MeCarl. 162. an answer to a petition for divorce 
 
 The same fullness and cogency of on account of adultery, are not, in 
 
 proof is not required to sustain an undefendedsuit, evidence sufficient 
 
 .adultery when pleaded in bar as to establish either the marriage, resi- 
 
 when alleged as the ground of dence or guilt of the parties. Schmidt 
 
 •divorce. Derby v. Derby, 6 C. E. Or. v. Schmidt, 2 Stew. Eq. 496. 
 58. Proof of adultery with A. will (a) If it appears to the court that 
 
 not sustain a charge of adultery with the adultery complained of shall 
 
 B.; nor will proof of adultery with have been occasioned by the collu- 
 
 .a person whose name was known to sion of the parties, and done with an 
 
 the complainant sustain a charge of intention to procure a divorce, or 
 
 adultery with a person whose name that the complainant was consenting 
 
 is alleged to be unknown. Miller v. thereto, or that both parties have 
 
 Miller, 5 C- E. Or. 216. The precise been guilty of adultery, then no 
 
 time of the adultery stated in the divorce shall be decreed. Sen,, 
 
 .bill is not necessary to be proved, "Divorce," § 30. No decree in an 
 
 provided the variance is not so great ex parte divorce case shall be signed 
 
 .as to mislead the defendant. Ibid. until after the master's report shall 
 
 But a variance as to time, place and have been on file thirty days. Bule 
 
 person is fatal. Prince v. Prince, 10 165. 
 <C. E. Or. 310. The admissions of 
 
464 F0KM8 OF PLEADINGS. 
 
 for the defendant : Whereupon, and upon reading the pleadings 
 and proofs in the cause, and the report of , one of the 
 
 special masters of this court, to whom, by a previous order 
 herein, it was referred to take the depositions and other proofs 
 offered by the said complainant {or "petitioner") in support of 
 the allegations of the bill of complaint {or "petition") and to 
 report the same, together with his opinion thereon; from all 
 which it now appears satisfactorily to the Chancellor that the 
 marriage between the complainant {or "petitioner,") , 
 
 and the defendant, , was solemnized and took place in the 
 
 State of ; and that the said complainant {or "petitioner,") 
 
 was an actual resident of, and inhabitant in, this state at the 
 time of the injury complained of, and at the time of exhibiting 
 the said bill of complaint {or " petition ; ") {or state the facts 
 according to the proof,) and that the said defendant has been 
 guilty of * {in case of desertion) willful, continued and obsti- 
 nate desertion of the complainant {or "petitioner") during 
 the term of two years next before the exhibiting of the said 
 bill of complaint {or "petition;") (or, in case of adultery, 
 after *, "the crime of adultery charged against him in the 
 said bill of complaint or 'petition:'") It is thereupon, on 
 this day of , eighteen hundred and , by his 
 
 Honor, , Chancellor of the State of New Jersey, by virtue 
 
 of the power and authority of this court, and of the acts of the 
 legislature in such case made and provided, ordered, adjudged 
 and decreed, that the said complainant {or " petitioner,") , 
 
 and the said defendant, , be divorced(a) from the bond of 
 
 matrimony for the cause aforesaid, and the marriage between 
 them is hereby dissolved accordingly, and the said parties, and 
 
 (a) For desertion, adultery or ex- ing for a divorce from the bond of 
 treme cruelty, in either of the parties, matrimony. Where such proof has 
 * * * the Court of Chancery may been made, the court, in case it shall 
 decree a divorce from the bed and deem it just so to do, may also decree 
 board forever thereafter, or, in the that the guilty party shall forfeit aU 
 case of extreme cruelty, for a limited right of dower, curtesy and adminis- 
 time, as shall seem just and reason- tration or participation in the prop- 
 able ; but in every such case, except erty or estate of the party in whose- 
 for extreme cruelty, the party apply- favor the decree is entered. Pamph.. 
 ing shall prove that he or she has L., 1890, p. 76. 
 conscientious scruples against apply- 
 
DIVOBCB. 465 
 
 each of them, are and is hereby freed and discharged from the 
 obligations thereof. {If the decree he against the hUsbamd, add 
 dause jor custody of children, if desired, as follows: "And it is 
 further ordered and decreed, that the petitioner have the care 
 and custody of , the child of the said marriage, until the 
 
 further order of this court.") 
 
 And it is further ordered, adjudged and decreed, that the 
 defendant pay to the complainant (or "petitioner") her costs of 
 this suit to be taxed; and that the complainant {or "petitioner") 
 have execution therefor, according to the practice of this court. 
 
 TEMPOKAEY ALIMONY. 
 
 Petition |or alimony, &c., pendente lite.(a) 
 {Title of cause.) 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , the above-named defendant, respect- 
 
 fully shows, that her husband, the said , has recently filed 
 
 a petition against her in this cause for divorce for the cause of 
 
 (o) In a suit for divorce the court 389, where a hnsband filed his hill 
 
 will, at its discretion, make an allow- against his wife for divorce for deser- 
 
 ance to the wife for her maintenance tion, and the wife answered and peti- 
 
 pendente lite, and also for counsel fees, tioned for aXiraony pendente lite, it was 
 
 whether she he complainant or de- held that under the circumstances the 
 
 fendant. Amos v. Amos, 3 Or. Ch. case must be taken most strongly 
 
 171 ; Puterson v. Paterson, 1 Sal. Ch. against the petitioner, and that the 
 
 389; Vreeland v. Vreeland,3 C. E. Gr. burthen of proof was on her. 
 43. The court regards the institution On a bill for alimony and main- 
 
 of a suit for divorce by the husband tenance, a motion for alimony pen- 
 
 against the wife as a sufficient cause dente lite and counsel fee to a com- 
 
 for allowing a separate maintenance, plainant's counsel, may be denied if 
 
 and the allowance is made upon the the case, as it appears at the time of 
 
 principle that it would be improper the making of the motion, shows that 
 
 for the parties to cohabit pending there is no foundation for the bill, 
 
 such suit. Marsh v. Marsh, 1 McCart. Dougherty v. Dougherty, 4 HaX. Ch. 
 
 315. A wife is entitled to alimony 540. On a, motion for alimony pen- 
 
 pendente Hie on a bill filed by her dente lite, on bill by the wife for 
 
 husband to annul their marriage on divorce from bed and board on the, 
 
 the ground of duress, which the wife alleged ground of cruel treatment, 
 
 denies. Vroom v. Marsh, 2 Stew. Eg. and answer filed and aflidavits taken 
 
 15. In Walling v. Waliing, 1 C. E. Or. on both sides, it is proper for the 
 
 2e 
 
466 F0EM8 OF PLEADINGS. 
 
 adultery {or otherwise state the facts of the case.) That your 
 petitioner being served with a citation for that purpose, has 
 caused her appearance to be entered in this suit, {and if the fad 
 be so, add, "and has put in her answer to said petition, denying 
 the allegations of said petition.") 
 
 And your petitioner further shows, that the charge of adul- 
 tery made by her said husband in his said petition is wholly 
 untrue. And she denies that she ever did, &c., {repeai the 
 charges and allegations of the petition for divorce.) And on the 
 contrary thereof, this petitioner avers the truth to be, that she 
 has always, since her marriage with the said , faithfully 
 
 regarded towards him her marriage vows, and was true and 
 faithful to his bed and her obligations as his lawful wife. All 
 which matters and things your petitioner is ready to aver, main- 
 tain and prove, as this honorable court shall direct. 
 
 And your petitioner further shows, that she is wholly destitute 
 of the means of supporting herself pending this suit, or of carry- 
 ing on her defence and defraying the costs and expenses attending 
 the same. That your petitioner has been informed and verily 
 believes that her husband has real estate and personal property 
 to a large amount, and amply sufficient to enable him to advance 
 to your petitioner such sums as may be necessary for the above- 
 mentioned purposes. 
 
 She therefore prays, that an order of this court may be made 
 requiring the said to pay to her a proper allowance for 
 
 her support and maintenance until the termination of this suit; 
 and also to pay forthwith a proper sum for counsel fees in 
 defending this suit until its termination. And she will ever 
 pray, &c. 
 
 {Signature of solicitor and counsel.) 
 
 court to look into the merits of the that it is by no means probable that 
 
 case as thus far disclosed. Beghie v. the petitioner will succeed in her 
 
 Begbie, 3 Hal. Oh. 98 ; Olasser v. suit. Such denial, however, will not 
 
 Olasser, 1 Stew. Eq. 22. In a suit for prejudice any future application on 
 
 divorce a mensa et thoro, an applica- her part, either as to the time or 
 
 tion for alimony pendente lite will be amount of allowance, in case she 
 
 denied where the answer and affidav- should be ultimately successful, 
 
 its of the defendant clearly outweigh Olasser v. Olasser, supra. 
 those of the petitioner, and indicate 
 
ALIMONY. 467 
 
 Affidavit of verification of foregoing petition, (a) 
 
 ( Venue.) > 
 
 , the above-named petitioner, being duly sworn accord- 
 ing to law, on her oath saith — that the matters and things set 
 forth in the foregoing petition are true, to the best of her knowl- 
 edge and belief. 
 
 Sworn, &c. {Signature.) 
 
 Order of reference as to alimony.(6) 
 
 {Title of cause.) 
 This matter being opened to the court, &c., and on reading 
 and filing the petition of the said defendant, and the affidavit 
 thereto annexed, it appearing that due notice of motion has been 
 ^iven to the said , {or, "and on hearing the arguments of 
 
 the counsel of the respective parties : ") It is, on this, &c., on 
 motion, &c., ordered, that it be referred to , one of the 
 
 special masters of this court, to inquire and report what is a 
 reasonable sum to be allowed to the said defendant for her sup- 
 port and maintenance pending this suit; and also what is a 
 reasonable sum to be allowed to her for counsel fees to defray 
 the necessary costs and expenses of her defence in this suit; and 
 .that said master report to this court with all convenient speed. 
 
 Order for alimony, &e.(e) 
 
 ( Title of cause, and mentioning petition.) 
 This matter being opened to the court by , of counsel 
 
 with the above-named defendant, in the presence of , of 
 
 (a) The answer of the wife should settled by the court, without a refer- 
 he put in without oath, and the denial ence, whenever the facts are suffi- 
 ,of the adultery should be introduced ciently before it. Hammond v. Sam- 
 in the petition for alimony, and the mond, Olarlce 151. The court, on the 
 petition be under oath. Bray v. coming in of the report as to the 
 Bray, 2 Hal. Ch. 27. amount of alimony, may order a 
 
 (b) The court may make the allow- larger sum to be allowed than is 
 ance either with or without a refer- reported. Odlinger v. Galinger, 4 
 .ence to a master. Amos v. Amos, 3 Lans, 473; S. C, 61 Barb. 31. 
 
 Or. Ch. 171 ; Walling v. Walling, 1 (c) The allowance to the wife will 
 
 ..C E. Ch. 389. The amount may be be moderate. No inducement should 
 
468 FORMS OP PLEADINGS. 
 
 counsel with the said , {or as the case may be,) and the 
 
 petition of the said defendant and the affidavits taken for the 
 purposes of this application having been read, and the argu- 
 ments of the respective counsel having been heard and consid- 
 ered, and it appearing to the Chancellor that the prayer of the 
 said petition should be granted: It is, on this day of 
 
 , &c., on motion, &c., ordered, that the said pay 
 
 to the said the sum of dollars per week, at the 
 
 termination of each and every week, from the date of this order, 
 for her maintenance and support, until the further order of this 
 court in the premises ; and also that he pay to her solicitor and 
 counsel the sum of dollars as a counsel fee for defending 
 
 the suit above mentioned, together with the costs of this order, 
 to be taxed. 
 
 Bill for alimony under the statute.(a) 
 
 {Address^ 
 Complaining, shows unto your Honor your oratriz, , of 
 
 , in the township of , in the county of , 
 
 in this state, that on the day of , eighteen hundred 
 
 be held out for the oppression of the may decree and order such suitable 
 husband. Amos v. Amos, 3 Gr. Oh. support and maintenance to be paid 
 171. Such allowance for temporary and provided by the husband for the 
 alimony pending the suit will be wife and her children, or any of them 
 limited to the actual wants of the wife, by that marriage, or out of his prop- 
 until the result of the suit in her favor erty, and for such time as the nature 
 establishes her right to a more liberal of the case and the circumstances of 
 allowance. Oermond v. Qermond, 4 the parties render suitable and proper, 
 Paige 643. In Purcell v. Purcell, 3 in the opinion of the court, and to 
 Edw. Oh. 194, it was held that when compel the defendant to give reason- 
 the husband is complainant his poverty able security for such maintenance 
 will not protect him from supplying and allowance, and from time to time 
 money for temporary support, and to to make such further orders touching 
 enable the wife to make a defence; the same as shall be just and equitable, 
 that he must conform to the general and to enforce such decree and orders 
 rule or abandon his suit. by the sequestration of the defendant's- 
 {aj In case a husband, without any personal estate and the rents and profits 
 justifiable cause, shall abandon his of his real estate, and to appoint a 
 wife or separate himself from her and receiver thereof, or by such other law- 
 refuse or neglect to maintain and pro- ful means as is usual according to the 
 vide for her, the Court of Chancery practice of the court ; but during the 
 
ALIMONY. 469 
 
 and , she was married to her present husband, , 
 
 ihen a widower with three children, two of whom resided at 
 liome with their father. 
 
 That prior to said marriage, which took place in , in 
 
 the county of , in this state, your oratrix was a dress- 
 
 maker, and followed her trade in aforesaid for several 
 
 years, to wit, twenty years next preceding her marriage, whereby 
 she earned a comfortable living. 
 
 That soon after her marriage with her said husband, , 
 
 he took your oratrix to his house in aforesaid, where she 
 
 lived with him, except for a few months in the year eighteen 
 hundred and , until the day of eighteen 
 
 hundred and , when he deserted her under the circum- 
 
 stances hereinafter mentioned. 
 
 That when she entered the house of her said husband as his 
 wife, she relinquished the pursuit of her trade as a dressmaker 
 and' gave her faithful attention to his children and her domestic 
 duties. 
 
 That your oratrix found the house of her said husband 
 scantily supplied with furniture and almost destitute of linen 
 :and bed- clothing, and in order to make his home and the home 
 
 time such maintenance shall be allowed C. JE. Or. 162. A mere allegation 
 by the decree or sentence of the court, that the husband does not " provide 
 the husband shall not be chargeable his wife with support,'' will not entitle 
 with her debts. Rev., " Divorce," ? 20. her to relief. Davis v. Davis, 4 C. E. 
 The allowance may be declared to be Or. 180. On a bill for alimony and 
 a lien on the husband's real estate in maintenance, a motion for alimony 
 this state, and he may also be required pendente lite and counsel fees for com- 
 to give security for its punctual pay- plainant's counsel may be denied, if 
 ment. Snover v. Snover, 2 Beas. 261. the case, as it appears at the time of 
 The Court of Chancery has no power the making of the motion, shows that 
 to decree alimony, except as incident there is no foundation for the bill, 
 to divorce, except in the single case Dougherty v. Dougherty, 4 Hal. Oh. 
 provided for by the twentieth section 540 ; see Kirrigan v. Kirrigan, 2 Mo- 
 ot the statute concerning " Divorces." Cart. 146. See Miller v. Miller, Sax. 
 Tule V. Yule, 2 Stock. 138. The 386, where it is said that on a bill filed 
 :abandonment or separation on the for divorce and alimony the court has 
 part of the husband, as well as the jurisdiction to decree alimony, although 
 refusal to support the wife, must be the evidence does not warrant a decree 
 •charged in the bill and be sustained of divorce. 
 hj the proof. Anshuiz v. Anshutz, 1 
 
470 FORMS OP PLEADINGS. 
 
 of his children and your oratrix comfortable, your oratri^ 
 removed thereto the furniture, carpets, beds and bedding which 
 she had acquired for herself while keeping house prior to her 
 said marriage. 
 
 That your oratrix and her husband lived together very har- 
 moniously for a few months, when he began to treat her unkindly 
 and with indignity, and in several instances with great want of 
 feeling and with harshness, and neglected to provide for her. 
 
 That during the winter of eighteen hundred and , his 
 
 conduct in these particulars became so intolerable to your oratrix^ , 
 that on or about the day of , eighteen hundred and 
 
 , she was compelled to leave her said husband and resume 
 her trade for a living; and that she continued to live apart from 
 her said husband until the day of , eighteen hundred 
 
 and , when she was induced by her said husband to return 
 
 to his home, and that she continued to live with him until the 
 said day of , eighteen hundred and 
 
 That soon after her return to her said husband, he fell again 
 into his habits of ill-treatment of your oratrix, and failed tor 
 make proper provision for her wants, rendering it impossible for 
 her to enjoy any domestic happiness or to make proper provision 
 for herself. 
 
 And your oratrix further shows, that on or about the 
 day of , eighteen hundred and , her said husband, 
 
 after he and your oratrix had retired to bed, got out of bed and 
 left the room and went into another room and slept by himself ;- 
 and that since that time he has continued to occupy a separate' 
 apartment, leaving your oratrix, who is frequently in delicater 
 health and is timid, to sleep alone in another part of the house. 
 
 And your oratrix further shows unto your Honor, that on or 
 about the day of , eighteen hundred and , 
 
 she asked her said husband to get some potatoes and coffee, and 
 that he replied, " Get them yourself; I never intend to do any- 
 thing more for you; you are a dirty, low-lived loafer;" and he 
 ordered your oratrix to get out of the house; and that since that 
 date he has never spoken to her, except on the night of the 
 day of , eighteen hundred and y when h» 
 
ALIMONY. 471 
 
 ordered out of your oratrix's bed and out of the house a young 
 lady who had come in to keep your oratrix company through 
 the night. 
 
 And your oratrix further shows unto your Honor, that since 
 the said day of , eighteen hundred and , her 
 
 said husband and bis daughter (the only child living at home 
 with her father) have taken all their meals out of the house and 
 at the house of a neighbor ; and that since that date he has made 
 no provision for the wants of your oratrix ; but, on the contrary, 
 he has removed from the house all the provisions therein con- 
 tained on the said day of , and since that date he 
 has removed all the dishes and cooking utensils therefrom, leav- 
 ing your oratrix without the means of properly preparing such 
 food as she might be able to purchase with her scanty means. 
 
 And your oratrix further shows unto your Honor, that she 
 has been informed and believes it to be true, and therefore 
 charges, that her said husband has rented the house (wherein 
 your oratrix now occupies a sleeping apartment,) to two families, 
 who propose to move into it on the day of next, 
 
 and that from the course pursued by her said husband, she 
 really believes that, at that time, he will drive your oratrix from 
 the said house. 
 
 And your oratrix further shows, that she is now sleeping 
 alone with her infant children in the house of her said husband, 
 or staying with friends ; and that she is now depending on what 
 she can earn by dressmaking, which is very little, for the reason 
 that she does not enjoy good health, and has lost her custom by 
 reason of her marriage with her f aid husband. By reason of all 
 of which facts your oratrix charges that her said husband has, 
 without any justifiable cause, abandoned and separated himself 
 from your oratrix, his wife, and has refused and neglected to 
 provide for her. 
 
 That there are now living, as the issue of the marriage of 
 your oratrix with the said defendant, the following- named 
 children, to wit, (name them,) all of whom are under the age of 
 seven years, and reside with, and are maintained by, your 
 oratrix. 
 
472 FOEMS OF PLEADINGS. 
 
 And your oratrix further shows unto your Honor, that said 
 is the owner of a house and lot and carpenter shop, 
 which, together, are worth twenty-five hundred dollars, and 
 which are mortgaged for only seven hundred dollars, besides 
 personal property owned by him, the amount of which your 
 oratrix has no means of ascertaining ; and that he has a monthly 
 income, as your oratrix has been informed and verily believes to 
 be true, of dollars from the , in whose employ as 
 
 master- carpenter he is, besides an income from the manufacture 
 of water-tanks, tubs and buckets, in which he engages at odd 
 times, and the annual interest arising from a legacy of one 
 thousand dollars left him by his half-brother, as your oratrix 
 has been informed and believes, so that he is abundantly able to 
 make ample provision for the support of your oratrix in a 
 manner suited to her position. 
 
 And your oratrix further shows unto your Honor, that she 
 has frequently applied to the said and requested him to 
 
 provide for her support in a manner suited to his means and her 
 condition in life, but he has wholly refused so to do. 
 
 In consideration whereof, and forasmuch as your oratrix can 
 only be relieved in this court: To the end, therefore, that the 
 said may answer the premises, but without oath, and that 
 
 he may be ordered and decreed to provide such suitable support 
 and maintenance, to be paid by him for your oratrix out of his 
 property, for such time as the nature of the case and the circum- 
 stances of the parties render suitable and proper in the opinion 
 of the court; and that the said defendant may be compelled to 
 give reasonable security for such maintenance and allowance, and 
 to pay the same from time to time under the compulsory orders 
 of this honorable court, as provided by the statute ; and that he 
 may be required to pay to her a reasonable weekly allowance 
 and a proper amount for counsel fees during this suit; and that 
 she may have such other or further relief in the premises as to 
 your Honor shall seem meet. 
 
 May it please your Honor, the premises considered, to grant 
 
 unto your oratrix a writ of subpoena, to be directed to the said 
 
 , therein and thereby requiring him, on a certain day 
 
 and under a certain penalty therein to be expressed, to be and 
 
ALIMONY. 473 
 
 -appear before your Honor in this honorable court, then and 
 there to answer the premises, and to stand to and abide and per- 
 form such order and decree therein as to your Honor may seem 
 
 .meet. 
 
 [Signature of solicitor and counsel with complainant.) 
 
 Order for security for costs on bill for alimony. (a) 
 
 {Title of cause.) 
 
 It appearing to the court that no answer has been as yet filed 
 -io the bill of complaint in this cause, and upon good cause shown 
 therefor: It is, on this, &c., on motion of , of counsel 
 
 with the defendant, ordered, that the said complainant give a 
 "bond to the defendant in the sum of one hundred dollars, by one 
 or more sufficient freeholders, with condition to pay such costs 
 as shall or may be awarded by the court to be paid to the said 
 defendant. 
 
 And it is further ordered, that until such bond, (which is to 
 be approved by one of the special masters of this court), shall be 
 .given and filed, all further proceedings in this cause to be stayed. 
 
 Decree for alimony on proceedings ex parte.(6) 
 {Title of cause.) 
 
 This cause coming on to be heard in the presence of, &c., 
 '{as in usual form:) It is, on this, &c., by his Honor, , 
 
 Chancellor, &c,, by virtue of the power and authority of this 
 court and of the statute in such case made and provided, 
 
 (a) It shall and may be lawful, ia estate of the husband. Oalame v. Ox- 
 suits for alimony under the twentieth lame, 9 O. E. Or. 440 ; 10 O. E. Ch: 
 section, for the Chancellor, if applied 548. Either party may apply by 
 for before answer filed, to order a bond petition for an alteration in the allow- 
 to be given in one hundred dollars, ance. Miller v. Miller, Sax. 387; 
 by one or more sufficient freeholders, Snover v. Snover, 2 Beas. 261. There 
 with condition to pay such costs as is no fixed general rule by which to 
 may be awarded by the court to be graduate the allowance for alimony, 
 paid by the defendant. JRev., "Di- but every case must depend on its 
 vorce," I 21. own peculiar circumstances. Rich- 
 
 (b) Under the statute of New Jer- mond v. Richmond, 1 Or. Ch. 90. See 
 sey, alimony cannot be given in a Bauere v. Bauere, 4 John. Ch. 188, 
 jgross sum, nor in a portion of the real 198. 
 
474 F0EM8 OF PLEADINGS. 
 
 hereby ordered, adjudged and decreed, that [if there be a 
 prayer tlwrefor in the bill) the said complainant and defendant 
 be divorced from bed and board forever, {or for a limited time, 
 as the case may be;) provided, however, that the said parties 
 may, at any time hereafter, by their joint petition, apply to this 
 court to have this decree modified or discharged. 
 
 And it is further ordered and decreed, that the defendant pay 
 to the complainant the sum of dollars per week, at the 
 
 termination of each and every week, from the date of this decree, 
 for the support and maintenance of the complainant and the 
 children of the marriage named in the said bill of complaint ;. 
 and that he give bond to the complainant in the sum of 
 dollars,(a) to be approved as to form and the security therein by 
 , one of the special masters of this court, for the payment 
 thereof. 
 
 And it is further ordered and decreed, that the said complain- 
 ant have the care and custody of the said children of the mar- 
 riage, until the further order of this court. 
 
 And it is further ordered and decreed, that the defendant pay 
 to the said complainant or her solicitor the costs of this suit to 
 be taxed, and a counsel fee of dollars ; and that execution, 
 
 issue therefor, according to the practice of this court. 
 
 Bill to annul a marriage.(6) 
 
 (Address.) 
 Complaining, shows unto your Honor your oratrix, ^ 
 
 an infant under the age of eighteen years, by , her next 
 
 friend, of, &o,, (residence.) 
 
 (a) Q-enerally in a sum equal in the cohabitation. Selah v. Sdah, 8 O. E. 
 
 aggregate to two years' alimony. Qr. 185. Or a marriage performed in 
 
 (6) The Court of Chancery will, jest, although the ceremony be legal. 
 
 outside of its statutory jurisdiction, McOlurg v. Terry, 6 C. E. Or. 225. 
 
 annul a contract of marriage only Fraud practiced upon the husband by 
 
 where the contract is void, not where the wife, under certain circumstances, 
 
 it is voidable merely. Anon., 9 O. E. will entitle him to a decree of nullity 
 
 Gr. 19. It will declare void a mar- of marriage, where he has not acqui- 
 
 riage on the ground of the party's in- esced, but left his wife as soon as the- 
 
 toxication at the time of the ceremony, fraud was discovered. Carris v. Oar 
 
 and that it was not consummated by ris, 9 O. E. Or. 516. A court of 
 
DIVORCE, 47&' 
 
 That your oratriz resides in , and has so resided for 
 
 years last past. That in the month of , &c., she 
 
 became acquainted with one , also a resident of 
 
 And your oratrix further shows, that, &c., (here insert all the 
 material facts and drcumstances necessary to be proved.) 
 
 And your oratrix further shows, that she did not, on said 
 {date of pretended marriage,) nor has she at any time since, 
 cohabited with said {defendant) as his wife, nor in any manner 
 consummated said pretended or mock-marriage. 
 
 And your oratrix further shows, that she is desirous of having 
 said marriage declared null and void by the decree of this court. 
 
 In consideration whereof, and forasmuch as your oratrix is 
 only relievable in this court : To the end, therefore, that the 
 said ^^7) upon his oath, make full and perfect answer to 
 
 all and singular the premises, and that the said pretended or 
 mock-marriage may be declared null and void. {If an injvMO- 
 tion be necessary to prevent the record of such marriage, make 
 the person who performed the marriage ceremony a party, and 
 add, " and that said may be restrained by the order of 
 
 this court from making said ceremony a matter of record in {the 
 proper office) or elsewhere. And that your oratrix may have 
 such further or other relief as the nature of her case requires 
 and as shall be agreeable to equity.") 
 
 May it please your Honor, {prayer for 8ubpcena.){a) 
 
 equity will not annul a marriage con- contract and the character of the re- 
 tract as having been fraudulent, upon lief sought, there is abundant reason 
 the mere admission by the defendant for requiring in such cases that it 
 of the facts charged in the bill. Mont- should appear to the satisfaction of 
 gomery \. Montgomery, 3 Barb. Ch. the court that the proceeding is not the 
 132. As to a marriage procured by result of collusion. In all such cases 
 force or fraud, see 2 Kent's Com. 77. it must appear to the satisfaction of 
 (a) In Sickles Y. Carson, 11 C. E. Or. the court that the complaint is not 
 442, which was a suit brought to an- made by collusion, for the purpose of 
 nul a marriage contract, the Chancel- annulling the marriage, but in truth 
 lor says : " Though the bill is not filed and good faith for the cause alleged^ 
 for divorce, and is not within the stat- in the bill." 
 ute, yet in view of the nature of the 
 
-476 
 
 FOBMS OF PLEADINGS. 
 
 Decree for nullity of marriage. 
 
 {Title of cause.) 
 This cause coming on to be heard, &c., (proceed as inform on 
 jpage 180, and add, ajter first line on that page,) " and the said 
 Chancellor does, by virtue of the power and authority of this 
 court, hereby order, adjudge and decree accordingly; and it is 
 further ordered, adjudged and decreed, that the said ceremony 
 of marriage between the said and said be deemed 
 
 and taken in all courts of law and equity and in all places to be 
 null and void ; that the said complainant and defendant did not 
 thereby consent in marriage, and that they are now each unmar- 
 ried." {Add injunction according to prayer of bill, if necessary.) 
 
 HABEAS CORPUS. 
 
 Petition for habeas corpus ad subjiciendum.(a) 
 
 {Address.) 
 The petition of , of the city of , in the State of 
 
 , respectfully showeth, that your petitioner is in the forty- 
 
 (a) The proceeding by habeas corpus 
 is regulated by the statute known as 
 the " Habeas Corpus Act," which pre- 
 scribes at length and with much detail 
 the persons who are entitled to prose- 
 cute the remedy, the officers who may 
 entertain it, the mode of proceeding 
 upon it, the extent of relief which 
 may be granted, &c, For these pro- 
 visions the statute itself should be 
 consulted. See Rev., "Habeas Corpus," 
 p. 468, et seq. But the powers of the 
 Chancellor are neither taken away nor 
 abridged nor affected by this statute. 
 Rev. Sup., "Habeas Corpus," § 2. 
 When any husband and wife shall 
 live in a state of separation, without 
 being divorced, and shall have any 
 minor child or children of the mar- 
 riage, the Chancellor, or the Supreme 
 •Court, or any justice thereof, upon the 
 
 said child or children being brought 
 before them upon habeas corpus, shall 
 make an order for the access of the 
 mother to her infant child or child- 
 ren, at such times and under such cir- 
 cumstances as they may direct; and 
 if the said child or children be within 
 the age of seven years, shall make an 
 order that the said child or children 
 be delivered to and remain in the 
 custody of the mother until said child 
 or children .shall attain such age, un- 
 less said mother shall be of such 
 character and habits as to render her 
 an improper guardian for said child 
 or children. Rev., "Infants," ? 21. 
 This act is held to take away the 
 discretion of the Chancellor as to the 
 custody of infants under seven years 
 of age. Bennet v. JBennet, 2 Beas. 114. 
 
HABEAS COKPUS. 477 
 
 first year of his age, is a minister of the Gospel in connection 
 with the Presbyterian Church, and was married to , 
 
 daughter of , of , in the county of , in the 
 
 State of , on the day of , eighteen hundred 
 
 and ; that the said marriage was duly solemnized on the 
 
 day aforesaid by , at , in this state ; and, at the 
 
 time of said marriage, your petitioner was a resident of this 
 state; that after said marriage, up to, on or about the 
 day of , eighteen hundred and , your petitioner and 
 
 said lived together as husband and wife, and had born to 
 
 them, as the fruit of said marriage, the following children, now 
 living, to wit, , now in the thirteenth year of her age ; 
 
 , now in the eleventh year of her age ; , now in 
 
 the ninth year of his age ; , now in the seventh year of 
 
 his age, and , now in the fifth year of his age ; and that 
 
 since the day and year last aforesaid, said has also borne, 
 
 as your petitioner has been credibly informed and believes, 
 another child, now in the second year of his age, who is still 
 living, but his exact age and his name are unknown to your 
 petitioner. 
 
 And your petitioner further shows, that on the said 
 day of , eighteen hundred and , the said ,. 
 
 without any reasonable or just cause, deserted your petitioner, 
 and left his residence in the said city of , and took with 
 
 her, without the knowledge or consent of your petitioner, the 
 five children first above mentioned, and went with them to the 
 residence of her said father, at the said village of , and 
 
 has there lived with said children ever since, in a state of sepa- 
 ration from your petitioner, without his being permitted to see 
 or visit her, although he on one occasion since said separation, 
 went to for the purpose of visiting his said wife and 
 
 children, on which occasion, however, he was not permitted to- 
 see her, but was allowed to see and converse with the first five 
 of said children ; and that that is the only occasion since said 
 separation that your petitioner has seen any of said children. 
 
 And your petitioner farther shows, that he is credibly 
 informed and believes that the said children are now in the 
 custody of the said and your petitioner's said wife, and 
 
.478 FORMS OF PLEADINGS. 
 
 ^re kept away and detained from the lawful custody and care 
 of your petitioner, who is now, and since said separation has 
 , been, denied access to them. 
 
 And your petitioner further shows, that he is advised and 
 believes, that by the law of this state he is entitled to have the 
 absolute care and custody of the three elder of said six children, 
 who are above the age of seven years, and to have reasonable 
 access, at proper and convenient times, to the others, until they 
 shall, respectively, attain the age of seven years, and their care 
 and custody also, after having arrived at that age. Your peti- 
 tioner therefore prays, that a writ of habeas corpus may be 
 issued out of this honorable court, directed to the said 
 and , requiring them to have the bodies of the said six 
 
 children before your Honor in this honorable court, at a certain 
 day and place to be expressed therein, with the cause of their 
 taking and detention ; and to do, submit to and receive whatso- 
 ever this honorable court shall then and there consider of them 
 in this behalf. 
 
 And your petitioner will ever pray, &c. 
 
 (Signature.) 
 
 Affidavit of verification. 
 
 :}'•■ 
 
 .State of 
 county of 
 
 , the petitioner mentioned in the above petition, makes 
 
 oath and says — that the matters and things set forth in said 
 
 .petition, so far as they relate to his own acts and deeds, are true; 
 
 and that so far as they relate to the acts and deeds of others, he, 
 
 the deponent, believes them to be true. 
 
 {Jurat.) (Signature.) 
 
 Writ of habeas corpus ad subjiciendum. New Jersey, 
 
 SB. — The State of New Jersey to and — Greeting: 
 
 We command you that you have the bodies of , by you 
 
 restrained of their liberty and detained in your custody, 
 
 ^£l,. S.J as is said, by whatsoever names they may be called and 
 
 known, together with the day and cause of their being 
 
 taken and detained by you, or either of you, before our Chan- 
 
 ,cellor, at the state-house, in the city of Trenton, on the 
 
HABEAS COKPUS. 479 
 
 day of instant, at ten o'clock in the forenoon of said day ; 
 
 then and there to do, submit to and receive whatsoever our 
 said Chancellor shall then and there consider in that behalf. 
 
 Witness , Chancellor of the State of New Jersey, at 
 
 Trenton, the day of , eighteen hundred and 
 
 Clerle. 
 Solicitor. 
 
 Endorsement. 
 
 By the statute. I allow this writ. Let it be sealed. 
 
 Chancellor. 
 Proof of service of writ. 
 
 State of , 1 
 
 county of . , J * 
 
 , sheriff of said county, being duly sworn according 
 to law, on his oath saith — that on the day of , 
 
 •eighteen hundred and , he served an original writ, of 
 
 which the within is a copy, on and , by reading 
 
 the same to them, and by giving to and leaving with each of 
 them an original thereof. 
 
 (Jurat.) (Signature of sheriff.) 
 
 Order for custody of infant. 
 
 (Title of cause.) 
 
 The body of , an infant of the age of , years, in 
 
 the writ of habeas corpus above mentioned, having been brought 
 before this court, at the time and place in said writ directed, 
 and the return to said writ having been read and considered, 
 and it appearing to the Chancellor that said return does not set 
 forth sufficient cause for the detention of the said by the 
 
 respondents, and that the said petitioner is entitled to the 
 custody of the said : It is, on this, &c., ordered, that the 
 
 said do forthwith surrender the said unto the said 
 
 ■{the petitioner.) 
 
480 
 
 FOEMS OP PLEADINGS, 
 
 INTERPLEADER, (ffl) 
 
 Bill of interpleader. 
 
 In Chancery of New Jersey. 
 
 To His Honor , Chancellor of the State of New Jersey r 
 
 Complaining, show unto your Honor your orators, , a 
 
 body corporate under and by virtue of the laws of the State of 
 
 (a) Where two or more persons 
 claim the same thing, by different or 
 separate interests, and another person, 
 not knowing to which of the claimants 
 he ought of right to render a debt or 
 duty, or to deliver property in his 
 custody, fears he may be hurt by 
 some of them, he may exhibit a bill 
 of interpleader against them. Dan. 
 Ch. Pr. 1560. The bill of inter- 
 pleader is not a proper remedy where 
 the complainant has any personal in- 
 terest in the question to be settled. 
 Lazier v. Van Saun, 2 Gr. Ch. 325; 
 Story's Eq. PL, | 252. A bill of in- 
 terpleader is only proper when there 
 is a claim by different parties to the 
 same fund or assets in the hands of a 
 third party, for which he has a right 
 to ask to be discharged. Leddd's En^r 
 V. Slair, 5 C. E. Or. 274. It is proper 
 only where the complainant is doubt- 
 ful to which of the complainants the 
 debt or duty is due. It cannot be 
 sustained where the complainant is 
 obliged to admit that as to either of 
 the defendants, he is a wrong-doer. 
 Mount Holly Co. v. Ferree, 2 0. E. 
 Or. 117. Nor unless there is a well- 
 founded apprehension of danger from 
 claims to the fund in dispute. Blair 
 V. Porter, 2 Seas. 267. It is essential 
 in every bill of interpleader, that the 
 complainant show that each of the 
 defendants claims such a right as he 
 may interplead for. The complainant 
 must at least show that there is some 
 doubt to which claimant the debt or 
 duty belongs. If he states a case in 
 
 his bill, which shows that one defend- 
 ant is entitled to the debt and the 
 other is not, both defendants may de- 
 mur. Briant v. Beed, 1 McOart. 271. 
 It is not necessary or proper for the 
 complainant to set out the case of the 
 claimants ; he is only to state the claim- 
 made to him. It is enough for him to 
 satisfy the court that there are oppos- 
 ing claims against which he is in 
 equity entitled to protection until they 
 are settled, so that he can pay with 
 safety. Ibid. The bill should also 
 show that there are proper persons in 
 esse capable of interpleading and of 
 setting up opposite claims. Story's Eq.. 
 PL, I 295. A bill of interpleader 
 ought to be filed before or immedi- 
 ately after the commencement of pro- 
 ceedings at law, and should not be 
 delayed until after a verdict or judg- 
 ment has been obtained. Cornish v. 
 Tanner, 1 Y.& J. 333. But it is not a 
 cause of demurrer, that it is filed after 
 judgment at law, no defence having- 
 been made against the recovery of the 
 judgment, where the who!e or a part 
 of the defence is equitable only. Lozier 
 V. Van Saun, 2 Or. Ch. 325. The 
 complainant in a bill of interpleader 
 ought by his bill to offer to pay into 
 court any money and interest which 
 are due from him. The omission of 
 such offer does not render the bill 
 demurrable; but the fund must be 
 brought into court before any order 
 will be made in the cause. 2 Dan^ 
 Ch. Pr. 1563. 
 
INTEEPLEADEE. 481 
 
 New Jersey, that one , of the city of , in the county 
 
 of . , and State of New Jersey, on the day of , 
 
 eighteen hundred and , opened an account with your 
 
 orators, at their savings institution, situate in said city, and did 
 then and there deposit with them to his credit the sum of 
 dollars; and they did, on that day in accordance with 
 their charter, regulations and by-laws, issue and deliver to said 
 
 a deposit-book, No. , with said sum of 
 
 dollars credited therein to said , subject, however, to the 
 
 stipulations and agreements governing payment of money, in 
 accordance with the regulations and by-laws and under and 
 with full knowledge of said restrictions, said deposited 
 
 said money. 
 
 That afterwards, to wit, on or about the day of , 
 
 eighteen hundred and , the said , by writing, under 
 
 his hand, in said deposit-book, requested your orators to pay the 
 said sum of money, or so much or such part thereof as then 
 remained standing to his credit with your orators, to his wife, 
 , whenever she should present said deposit-book to your 
 orators; and that between said day of , eighteen 
 
 hundred and , the said did, at divers and sundry 
 
 times, produce said book of deposit to your orators, and receive 
 thereon from them part of said sum of dollars, deposited 
 
 in manner and form as stated in section of this bill. 
 
 That in and by article of said by-laws, (a copy of 
 
 which said by-laws is in all instances appended to and forms 
 part of the deposit-book,) it is declared that no person shall 
 have the right to demand any part of the principal or interest 
 without producing the original deposit-book, in order that such 
 payment may be entered therein. 
 
 That in and by article of said by-laws, it is declared 
 
 that "all deposits shall be entered in the book of the institution, 
 and a duplicate or pass-book shall be given to each depositor, 
 in which the deposit shall be entered, and which shall be the 
 voucher for the depositor ; and possession of such duplicate or 
 pass-book may be treated by the institution as authority to pay 
 the amount due thereby to the person producing the same ; and 
 
 2f 
 
482 FOEMS OF PLEADINGS. 
 
 all payments so made shall be deemed good and valid payments 
 to the depositors respectively." 
 
 That the said , on the day of , eighteen 
 
 hundred and , departed this life, and his last will and 
 
 testament was afterwards duly proved by , the executor 
 
 therein named, before , the surrogate of county, 
 
 who took upon himself the burthen of the execution thereof. 
 That on the said day of , eighteen hundred and 
 
 , there was due and owing on said deposit-book and the 
 books of account of your orators, the sum of dollars, said 
 
 balance, with accrued interest, amounting to the sum of 
 dollars. That since the decease of the said , and probate 
 
 of his said last will and testament, to wit, on or about the 
 
 day of , eighteen hundred and , the said 
 
 , executor of said last will and testament, demanded of 
 your orators payment of said sum of dollars, with accrued 
 
 interest, but did not produce said deposit-book, as required by 
 said by-laws ; that said payment was refused ; and that after- 
 wards, to wit, on the day of , eighteen hundred 
 and , the said executor commenced a suit at law in the 
 
 Circuit Court against your orators for the recovery of 
 said last-mentioned sum, with interest and costs of suit. That 
 said has never produced said deposit-book to your 
 
 orators when demanding payment of said moneys, although often 
 requested so to do by them ; nor has he made any legal or suffi- 
 cient offer of security or indemnity in case said payment should 
 be made to him without the production and delivery to your 
 orators of said deposit-book, in case payment should be made. 
 
 That on or about the day of , eighteen hundred 
 
 and , and at divers and sundry times since that date, the 
 
 said has demanded of your orators payment of said sum 
 
 of dollars, and accrued interest; and has produced to 
 
 your orators the said deposit-book, and claimed and still claims 
 that, by virtue of the possession thereof and said order therein 
 contained, signed by said , of the tenor and effect, as 
 
 claimed by her, that said money was assigned and passed over to 
 her, and that she was entitled to draw and use it, and that it is 
 not subject to any claim or demand of "the executor of said 
 
INTERPLEADER. 483 
 
 That your orators have refused to pay said money to said 
 , and have been notified by her not to pay the same to 
 finy other person or persons, at their peril. 
 
 That your orators have been unable to determine to whom of 
 right said balance belongs. The said , on the one hand, 
 
 claiming that she holds an assignment of said pass-book, and 
 ■the balance remaining due thereon, by virtue of said writing 
 contained therein, arid to which your orators have no access. 
 And the said executor on the other hand claiming that she only 
 held a power of attorney to draw, from time to time, such sums 
 as she or her husband might deem necessary; and that by the 
 death of said said power of attorney became null and 
 
 void; and that said, balance due on said pass-book of right 
 •belongs to, and makes a part of, the assets of said estate of 
 , deceased. 
 
 And your orators further show, that they have always been 
 willing to pay the balance of such money to such person or per- 
 sons as should be lawfully entitled to receive the same, and to 
 whom they could pay it with safety. And they hereby offer to 
 pay the same into this court. 
 
 And your orators further show, that they do not in any 
 respect collude with either the said , executor, &c., or said 
 
 , touching the matters in this cause ; and that they have 
 not been indemnified by such defendants, or any or either of 
 them, but bring this suit of their own free will and to avoid 
 being molested and injured touching the matters contained in 
 this bill. 
 
 Wherefore, and as your orators can only have adequate relief 
 in this court : To the end that the said defendants may answer 
 this bill and interplead and settle their right to the said sum of 
 money ; [and that your orators may be at liberty to pay the same 
 into this court ;] and that the said may be enjoined and 
 
 restrained from further proceeding in the suit at law so as afore- 
 said commenced by him against your orators; and that your 
 orators, upon payment into court of such amount, and procuring 
 said defendants to interplead according to the course of this 
 court, may be decreed to be discharged from all liability to such 
 defendants in the premises, and may have all their costs therein : 
 
484 FOKMS OF PLEADINGS. 
 
 May it please your Honor to grant unto your orators not only 
 the state's writ of injunction, issuing out of and under the seal 
 of this honorable court, to restrain the said , executor, 
 
 &c., from proceeding at law against your orators touching the 
 matters aforesaid, but also a writ or writs of subpoena, also 
 issuing out of and under said seal, to be directed to the said 
 , executor of , deceased, and said , therein^ 
 
 and thereby commanding them and each of them, on a»certain 
 day and under * certain penalty therein to be inserted, to be and 
 appear before your Honor in this honorable court, and then and 
 there to answer all and singular the premises aforesaid, and to 
 stand to, perform and abide such order, direction and decree 
 therein as to your Honor shall seem meet. 
 
 And your orators will ever pray. 
 
 {Signature of solicitor and counsel with complainants.) 
 
 Affidavit of non-collusion to be annexed to bill 
 of interpleader, (a) New Jersey, ss. — , of full age, 
 
 being duly sworn according to law, says — that he is the presi- 
 dent (or as the case may be) of the complainants, and that the 
 complainants have exhibited their bill of interpleader against 
 the defendants in the above-stated cause without any fraud or 
 collusion between them and the said defendants, but merely of 
 their own accord, for relief in this court; and that said 
 bill is not exhibited at the request of the said defendants, or of 
 any or of either of them; and that the complainants are not 
 indemnified by the said defendants, or by any or either of them. 
 And he further says that the complainants have exhibited said 
 bill with no other intent but to avoid being sued or molested by 
 the said defendants touching the matters contained in said bill. 
 
 (a) With a bill of interpleader the affidavit must show satisfactorily why 
 complainant must file an affidavit that the other complainants do not join, 
 there is no collusion between him and JBraiihwaite's Pr. 27. The affidavit of 
 any of the defendants. Mit. PL 39. the complainant's solicitor is not, in 
 The want of the affidavit denying col- general, sufficient. Wood v. Lyne, 4 
 lusion constitutes a ground of demur- De O. & S. 16 For exceptions to this 
 rer, but it also may be taken advan- rule, see Ban. Oh. Pr. 1563. An oh- 
 tage of at the hearing. Mount Solly jection to the form of the affidavit- 
 Co. V. Ferree, 2 C E. Gr. 117. Where should, be made by demurrer. Sam- 
 there are several complainants, they ilton v. Marks, 6 De Q. & S. 638. 
 must all join in the affidavit, or the 
 
INTEKPLEADBK. 
 
 485 
 
 Order for injunction on bill of interpleader.(a) 
 
 (^TUle of cause.) 
 
 On reading and filing the bill of complaint in the above- 
 stated cause, and the affidavit thereto annexed : It is, on motion, 
 Ac, ordered, that upon the complainant depositing in this court 
 the sum of dollars mentioned in said bill, an injunction 
 
 issue pursuant to the prayer of said bill. 
 
 Interlocutory decree on bill of interpleader. (6) 
 
 {Title of cause.) 
 
 This cause coming on to be heard at the present term 
 
 of this court, in the presence of , of counsel with the 
 
 complainants, no person appearing for the answering defendants, 
 
 (a) Whenever the bill contains. a 
 prayer for an injunction, the money 
 must be brought into court before the 
 court will ordinarily act upon this 
 jart of the prayer. Story's Eq. PI, | 
 297. Generally, the complainant must 
 l)ring the money into court before he 
 takes any step in the cause. Meux v. 
 Bell, 6 Sim. 175. The common order 
 ifor an inj unction on a bill of this nature 
 is that it issue upon the complainant 
 paying the money into court. This 
 is a condition precedent, and an order 
 for an injunction not containing it 
 "snll be discharged. If the money 
 cannot be paid in in time to stay a 
 trial, application should be made to 
 vary the order on the special grounds. 
 Sieveking v. Behrens, 2 Mylne & O. 
 581 ; see Warrington v. Wheatstcae, 
 Jae. 205. 
 
 If the complainant in a bill of in- 
 terpleader has paid over the money to 
 one of the defendants under a claim 
 of right to which he was bound to 
 Bubmit, this will not preclude him 
 from sustaining the bill. Nash v. 
 Smith, 6 Conn. 421. 
 
 If the defendants, or either of 
 them, deny the allegations in a bill of 
 this nature, or set up distinct facts in 
 bar of the suit, the complainant must 
 reply to the answer and close the 
 proofs in the usual manner, before he 
 can bring the cause to a hearing. 
 City Bank v. Bangs, 2 Paige 570. 
 But where the defendant admits the 
 facts stated in the bill, and on which 
 the right to file such a bill rests and 
 sets up no new facts as against the 
 complainant or in bar of his suit, it 
 seems to be sufficient for him to file a 
 replication and to set the cause down 
 for a decree to interplead, without 
 waiting until the proofs are taken as 
 between the defendants. Ibid. 
 
 (5) On a bill of interpleader the 
 first decree is that such bill is properly 
 filed and that the defendants inter- 
 plead, and the case then becomes a 
 case between the defendants as be- 
 tween a complainant and defendant. 
 Rowe V. Matle-ion, 3 Hal. Ch. 131 ; 
 Atkinson v. Manks, 1 Cowen 691. And 
 where a decretal order for interpleader 
 has been made on motion, a direction 
 
486 FOBMS OF PLKADINGS, 
 
 although the cause was regularly set down for hearing ; and the 
 arguments of counsel for the complainants having been heard ;. 
 and it appearing to the court upon consideration thereof that 
 the complainants held the funds in their bill mentioned for the 
 true owner without having or claiming any right or interest 
 therein; and that the said funds have been deposited in this 
 court to be delivered over to whomsoever may have right 
 thereto : It is thereupon, on this day of , eighteen 
 
 hundred and , by his Honor , Chancellor of the 
 
 State of New Jersey, ordered, adjudged and decreed, and the 
 said Chancellor does, by virtue of the power and authority of 
 this court, hereby order, adjudge and decree, that the said bill 
 of interpleader is properly brought by the complainants in this 
 cause, and that they are entitled to relief in this court. 
 
 And it is further ordered, adjudged and decreed, that said 
 complainants be dismissed from the further prosecution of this^ 
 suit, with their costs to be taxed and a counsel fee of 
 dollars,(a) and paid by the clerk of this court out of the fund,, 
 and that they be released, acquitted and discharged from all 
 claims or liability to either of the defendants in this suit, for, 
 upon or by reason of said fund. 
 
 And it is further ordered, adjudged and decreed, that the said 
 defendants do interplead, settle and adjust their several claims, 
 demands and matters in controversy in this suit as between 
 themselves. 
 
 If reference is to be made to a Vice Chancellor, add, And it 
 is further ordered, that said cause be referred to , Vice 
 
 for payment of the complainant's costs pleader suit may, after decree, file a 
 will then be given or made on a subse- supplemental bill to bring a new party 
 quent application for that purpose by before the court without making other 
 motion. Aldridge v. Mesaner, 6 Fes. parties to the suit parties to it. I/yne v. 
 418; Jones v. Qilham, 1 Coop. C. O. 49. PenneU, 1 Sim. [N. S.) 113. If a trial 
 But where the right to compel the at law is directed between the defend- 
 defendants to interplead is disputed, ants the suit is thereby ended as to 
 costs will not be given to the com- the complainant, so that if the com- 
 plainant before the hearing. Jones v. plainant dies the defendants may pro- 
 Oilham, supra. Where the decree at ceed without reviving the cause, 
 the hearing has terminated the suit as Anon., 1 Vern. 351. 
 to the complainant, it will not abate (a) Pamph. L., 1893, p. 251. The 
 by his death. Ld. Bed. 60. It was usual counsel fee is the same in 
 held that a defendant in an inter- amount as in foreclosure cases. 
 
INTEEPLEADEB. 487 
 
 Chancellor, to hear the same for the Chancellor, and to report 
 thereon to him and advise him what order or decree to n^ake 
 therein. 
 
 Or a reference to a master as follows : And for that purpose 
 it is ordered that it be referred to , one of the special 
 
 masters of this court, to inquire and report which of the said 
 defendants is entitled to the fiind in controversy, and which 
 has been deposited with the clerk of this court. And if the 
 said master shall be of opinion that any two or more of the said 
 defendants are equitably entitled to share in the same, that he 
 also ascertain and report what portion of the fund belongs to 
 each. And that upon such reference either party is to be at 
 liberty to proceed before said master in such manner as said 
 master may direct ; and that the solicitor of each defendant have 
 notice of all proceedings before the said master of which notice 
 is required to be given by the practice of this court, and the 
 consideration of all questions of costs as between the said de- 
 fendants and all other questions and directions are reserved until 
 the coming in of the master's report ; but with liberty to either 
 party to apply for such other instructions or directions to the 
 master as may be necessary or proper pending the reference. 
 
 Final decree in interpleader suit on argument, (a) 
 
 {Ittle of cause.) 
 This cause coming on to be heard before the court, in the 
 presence of , solicitor for and of counsel with the defend- 
 
 (a) The court disposes of the ques- may be best suited to the nature of the 
 tions arising upon bills of interpleader case. Oondict's Ex'rs v. King, 2 Beas. 
 in various modes, according to the na- 383. If the bill is dismissed, there can 
 ture of the question and the manner in be no further proceedings by consent, 
 which it is brought before the court. as between the defendants, to adjust 
 If, at the hearing, the question be- their rights, for the court has no juris- 
 tween the defendants is ripe for decl- diction. Jennings v. Nugent, 1 Moll. 
 sion, the court decides it and pro- 134. Abillof interpleader, necessarily 
 nou'nces a final decree. SeeHendrick- admits the indebtednefs of the corn- 
 son V. Decow, Sax. 593 ; Rowe v. Hoag- plainant, and if one of two parties de- 
 land's Adm'rs, 3 Hal. Gh. 189. If, at fendant withdraws all claim to the 
 the hearing, the case is not ripe for funds, a decree that they be paid to 
 decision, the court directs an action or the other is a matter of course. Knight 
 an issue or a reference to a master, as v. Yarbarough, 7 S. & M. 179. 
 
488 FOKMS OF PLEADINGS, 
 
 ant, , executor of the last will and testament of , 
 
 deceased, and of , solicitor for and of counsel with the de- 
 
 fendant, ; and the several answers of said defendants being 
 
 read, depositions of witnesses taken and the arguments of the 
 respective counsel heard ; and it appearing that , in his 
 
 lifetime, had deposited with the said complainants the sum of 
 
 dollars to his account; that a deposit-book, with said 
 sum therein credited to the said , had been issued and 
 
 delivered to him ; that at the time of his decease there remained 
 a balance of said sum of dollars to the credit of the said 
 
 ; that said last-mentioned sum, as appears by the state- 
 ment of the complainants, was held by them for such person or 
 persons as were lawfully entitled to receive the same ; that the 
 said was the executor of the last will and testament of 
 
 said , deceased, and as such executor was lawfully entitled 
 
 to receive the same, and that the said defendant, , was not 
 
 so entitled. 
 
 And it further appearing to the court that said last- mentioned 
 sum, being the balance due on said deposit at the time of the 
 decease of the said , together with accumulated interest 
 
 thereon since accrued, making in all the sum of dollars, 
 
 was, at the time of filing of the bill of complaint in this cause, 
 paid by the complainants into this court, and that the same, less 
 the costs of said complainants, still remains deposited in this 
 court, and is subject to the order and direction thereof: It is 
 thereupon, on this day of , eighteen hundred and 
 
 , by , Chancellor of the State of New Jersey, 
 
 ordered, adjudged and decreed, and the said Chancellor, by 
 virtue of the power and authority of this court, does hereby 
 order, adjudge and decree that the said sum of dollars 
 
 remaining in the hands of the complainants at the time of the 
 death of the said was the property of the said , and 
 
 that upon his decease and the probate of his last will and testa- 
 ment, the said defendant, , who was therein appointed 
 the executor thereof, and who has duly qualified as such executor, 
 became, was and now is entitled to said sum, together with all 
 accumulations of interest thereon, as assets of the estate of the 
 eaid , deceased ; and that the balance (after deducting said 
 
PBRPBTUATING TESTIMONY. 489 
 
 •costs) of said sum paid into this court as aforesaid, and now 
 remaining deposited therein, together with all interest accumu- 
 lated thereon, be paid to the said defendant, , executor as 
 aforesaid, or to his solicitor. 
 
 And it is further ordered, adjudged and decreed, that the said 
 defendant, , do pay to the said his costs in this 
 
 cause to be taxed, and also the taxed costs of the said complain- 
 ants heretofore ordered paid the said complainants out of the 
 said fund deposited in this court. 
 
 PERPETUATING TESTIMONY. 
 
 Bill to perpetuate testimony.(a) 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jereey : 
 
 Complaining, shows unto your Honor your orator, , 
 
 of the township of , in the county of , and State 
 
 of New Jersey, that , now deceased, late of said township 
 
 (a) When a person interested in which the complainant is desirous to 
 
 any property is in danger of losing give evidence; that the complainant 
 
 the evidence of his right before it has an interest in the subject, and the 
 
 <;an be judicially investigated, he nature of that interest, and the interest 
 
 may file a bill against the persons of the defendant to contest the com-- 
 
 -wh.0 will be benefited by the loss, to plainant's title. MU. PI. 41. The 
 
 examine the witnesses and perpetuate matter touching which the eomplain- 
 
 their testimony. 2 Barb. Oh. Pr. ant is desirous to acquire evidence 
 
 137. It must also show that the facts, should be parlicularly stated in the 
 
 •to which the testimony of the wit- bill, so that the interrogatories on 
 
 nesses proposed to be examined is both sides may be directed to the 
 
 conceived to relate, cannot be imme- true merits of the controversy. Barl- 
 
 diately investigated in a court of law hit v. Hawker, Mad. Oh. 157. The 
 
 or equity, or that, before the facts can prayer of the bill should be for 
 
 be adjudicated upon, the evidence of leave to examine witnesses touching 
 
 a material witness is likely to be lost matters stated, to the end that their 
 
 by his death or departure from the testimony may be preserved and per- 
 
 state. Mil PL 42; Story's Eg. PL 2i5; petuated. MU. PL 41. It should 
 
 Oann v. Oann, 1 P. Wms. 568; Lord also pray the proper process of sub- 
 
 North V. Lord Oray, 1 Dick. 14, The poena, but it should not priy that the 
 
 bill must show the matter touching defendant may abide such order and 
 
490 FOEMS OF PLEADINGS. 
 
 of , in and by his last ■will and testament by him duly 
 
 made and executed according to the provisions of the statutes of 
 this state in such case made and provided, to pass by devise the 
 title to real estate in New Jersey, and dated the day of 
 
 , eighteen hundred and , which last will and testa- 
 
 ment was, after the death of the said , which took place 
 
 on the day of , eighteen hundred and , duly 
 
 proved in the Orphans' Court of the county of , in this 
 
 state, in which county said , at the time of his death,, 
 
 resided, did give and devise to his wife the use of his, the 
 
 said 's, farm in township aforesaid, being the same 
 
 which he purchased from the executors of , deceased, to- 
 
 gether with acres of the wood and meadow land which he 
 
 purchased of said executors, and adjoining lands of the late 
 , deceased, together with the use of his house and all the 
 buildings on the farm, and the household goods and horses, car- 
 riages a,nd farming utensils, cows and hogs and poultry ; and it 
 was thereby declared to be understood that said farm and all the 
 wagons and carriages were to remain with the farm for the use 
 and occupancy of his said wife during her natural life ; and in 
 and by said last will and testament said did give and de- 
 
 vise, at the decease of his said wife, the said farm and lands to 
 your orator during your orator's natural life, and then to descend 
 to his (your orator's) children, should he have any. And it was 
 thereby declared to be the will of said testator, that in case your 
 orator should die childless, the property should be sold and be 
 given to the brothers and sisters of your orator, and their de- 
 scendants. As in and by said last will and testament may and 
 will more fully and at large appear, and to which, or to the record 
 thereof, your orator, for greater certainty, prays leave to refer. 
 
 And your orator further shows, that said testator in nowise 
 revoked, canceled or annulled said last will and testament, or 
 any part thereof, or any of the provisions or other things therein 
 contained, and did not in anywise revoke, annul or modify said 
 
 decree as the court shall think proper 439. Nor can such a bill, by amend- 
 to make, for that will turn it into a ment, be converted into a bill of dis- 
 bill for relief, which is inconsistent covery in aid of the same claim.- 
 with the nature of a bill to perpetuate Ellice v. Boupell, 32 Beav. 299. 
 testimony. Hose v. Qannell, 3 Atk. 
 
PERPETUATING TESTIMONY. 491 
 
 provisions hereinbefore stated in favor of his wife and your 
 orator respectively. 
 
 And your orator farther shows, that the said , the 
 
 widow of said testator, has departed this life, and that your 
 orator is in possesBion,(a) under and by virtue of said devise to- 
 him, of the said farm and lands, whereof the use, for her natural 
 life, was in and by said last will and testament given to the said 
 , wife and widow of the said testator. 
 
 And your orator further shows, that on or about the 
 day of , eighteen hundred and , your orator was 
 
 lawfully joined in marriage to his present wife, , then of 
 
 township aforesaid, by the Kev. , then and still 
 
 being a duly ordained minister of the Gospel of the Methodist 
 Episcopal Church, and then being a duly stationed pastor or 
 preacher in charge of the Methodist Episcopal Church in the 
 village of , in said township of ; that your orator 
 
 has had born to him by his said wife , a lawful child, a 
 
 girl, born alive after said marriage, on the day of , 
 
 eighteen hundred and , which child was lawfully begotten 
 
 by your orator, which child died on or about the day or 
 
 , eighteen hundred and 
 
 And your orator further shows, (and he is so advised by his 
 counsel,) that by the birth of said child the condition on the ful- 
 fillment whereof he was to have the fee simple in said farm and 
 lands, whereof the use is in said will given to said testator's 
 wife, was fulfilled ; and he further shows (and he is so advised 
 by his counsel,) that by the said birth of the said child he be- 
 came, and was and is entitled to the fee simple in said farm and 
 lands ; and your orator claims by reason of the premises to be,, 
 and he shows to your Honor that he is, by reason of the prem- 
 ises, the true, lawful and right owner in fee simple of said farm 
 and lands, whereof the use, as aforesaid, is, in and by said last 
 will and testament of said , deceased, given to his, said 
 
 's, wife.(6) 
 
 (a) A bill to perpetuate testimony (6) The interest of the complain- 
 as to lands of which the complainant ant, to enable him to file such a bill,, 
 was out of possession was dismissed must be a present interest. Smith's 
 on demurrer. Smith v. Ballard, 2 Ch. 485. 
 Hayw. 289. 
 
492 FORMS OF PLEADINGS, 
 
 And your orator further shows, that , (wife of ,) 
 
 of said township of , and , (wife of ,) of the 
 
 city of , in the county of , and State of , are 
 
 witnesses to the birth of your orator's said child ; and that their 
 testimony on any trial wherein your orator's right in the prem- 
 ises to the fee simple of and in said farm and lands may be 
 brought in question, or wherein it might be to the interest of 
 your orator to set up and substantiate, by proof, his title in fee 
 simple, in and by virtue of the premises, to the said farm and 
 land, would be very material and of very great importance to 
 your orator. 
 
 And your orator further shows, that said is a woman of 
 
 the age of years, or thereabouts, and not in good health ; 
 
 and that said is of the age of years, or thereabouts, 
 
 and is also not in good health. 
 
 And your orator further shows, that he has had the following 
 brothers and sisters, and no other or others, viz , ; that 
 
 said are all now living ; and that said is dead, and 
 
 left her surviving one child, her heir-at-law, named , who 
 
 is still living, residing at , and is an infant under the age 
 
 of year's; that said is also deceased; that he left 
 
 him surviving his widow , who resides in , in the 
 
 county of , in this state, and his children, , his 
 
 heirs-at-law. 
 
 And your orator further shows, that he is informed and 
 believes that said claim that your orator is not, notwith- 
 
 standing the birth of his said child, entitled in fee simple to the 
 said farm and lands whereof the use is, in and by said last will 
 and testament of said , deceased, given to the said testa- 
 
 tor's wife as aforesaid, but only to a life estate therein, 
 
 and they threaten that after the death of your orator they will, 
 if he die not having sold or conveyed away the said farm and 
 land, proceed by legal proceedings to take the same away from 
 your orator's devisee or devisees thereof, if he shall devise the 
 same, or his heirs-at-law, if he shsiU die intestate as to the same ; 
 and that if your orator shall at his death have disposed of the 
 said farm and land by conveying away the same in fee simple, 
 they will proceed to take the said faripa and land from your 
 orator's grantee or grantees thereof. 
 
PBEPETUATING TESTIMONY. 493 
 
 And your orator further shows, that he is obviously unable, 
 by reason of the premises, to bring the question as to his right 
 in fee simple to the said farm and land before any court. 
 
 And he well hoped that he and his heirs and assigns would 
 have been permitted to enjoy said farm and land quietly and 
 without any interruption from any person or persons whomso- 
 ever. 
 
 In consideration whereof, and forasmuch as your orator cannot 
 perpetuate the testimony of said witnesses without the aid of a 
 court of equity : 
 
 To the end, therefore, that the said may set forth, if 
 
 they can, why your orator should not have said witnesses exam- 
 ined, and that your orator may have liberty to examine his said 
 witnesses with respect to the said birth of his said child, to the 
 end that their testimony may be perpetuated and preserved : 
 
 May it please your Honor, the premises considered, to grant 
 unto your orator the state's writ of subpoena, issuing out of and 
 under the seal of this honorable court, to be directed to said 
 and , therein and thereby commanding them, on a 
 
 certain day and under a certain penalty therein to be inserted,, 
 personally to be and appear before your Honor in this honorable 
 court, then and there to answer all and singular the premises. 
 
 And your orator will ever pray, &c. 
 
 {Signature of solicitor and counsel with complainant.) 
 
 AflBdavit to be annexed to foregoing bill.(a) 
 
 State of New Jersey, 1 
 county of , J. 
 
 , the above-named complainant, being duly swornr 
 according to law, on his oath saith — that , now deceased, 
 
 (a) An affidavit of the circum- In practice, there are neither proofs,- 
 
 stances by which the evidence in- nor hearing, nor decree ; yet the plead- 
 
 tended to be perpetuated is in danger ings take place just as if everything 
 
 of being lost, must be filed with the else was to follow. But as soon as the 
 
 bill. Mit. PL 41. The defence to a case is at issue, the plaintiff proceeds 
 
 bill to perpetuate testimony is the to take the testimony which he is 
 
 same as in other cases — by demurrer, seeking to perpetuate. If the bill 
 
 plea or answer, according to the na- does not show a right upon its face to- 
 
 ture of the cas6. Welf. Eq. PI. 146. perpetuate testimony, the defendant 
 
494 FOKMS OF PLEADINGS. 
 
 mentioned and referred to in this cause, made his last will and 
 testament, as in said bill stated ; that after the same was so 
 made the said departed this life as in said bill set forth ; 
 
 •that in and by the said will, which, at the time of the death of 
 said , was in full force and effect, and had been so exe- 
 
 cuted as to pass thereby by devise land in the State of New 
 Jersey, the said devised to his wife the use of his, 
 
 the said testator's, farm in , in said county, being 
 
 the same which he purchased from the executors of , 
 
 together with acres of wood and meadow land, which he 
 
 purchased of said executors, and adjoining lands of said , 
 
 ■deceased, together with the use of his house and of the buildings 
 on the farm, and the household goods, horses, carriages, farming 
 utensils, his cows and hogs and poultry, and thereby it was 
 declared to be understood that said farm and all the wagons and 
 carriages were to remain with the farm for the use and occu- 
 pancy of his said wife during her natural life ; and said testator 
 4id thereby give and devise, at the decease of his said wife, the 
 said farm and lands to this deponent during this deponent's 
 natural life, and then to descend to his (this deponent's) children, 
 should he have any. And thereby it was declared to be the will 
 of said testator, that in case this deponent should die childless 
 the property should be sold and be given to the brothers and 
 sisters of this deponent, and their descendants; that the said 
 has departed this life, and this deponent is in possession 
 
 may demur to it ; but if it does show within a limUed time or pay the costs 
 
 a right upon its face, the defendant is of the suit. Wright v. Tatham, 2 Sim. 
 
 helpless. He has to answer the bill, 459. If the defendant neglects to take 
 
 but his answer is an idle form; the the steps proper to be taken by him 
 
 plaintiff is not required to prove the within the prescribed time, the court 
 
 bill, nor has the defendant any oppor- will, it seems, order the examination 
 
 tunity of proving a defence. The of witnesses to proceed. Ooveny v. 
 
 plaintiff's assertions not under oath, Athill, 6 Sim. 439. The defendant, as 
 
 are not only taken as true, but as well as the complainant, is entitled to 
 
 being the whole truth. LangdeU's examine witnesses under the order. 
 
 Summary Eq. PI. 104; 1 Smith 365. And as to the manner of taking evi- 
 
 If the complainant neglects to pro- dence, see Dan. Oh. Pr. 1574. When 
 
 ceed with the suit, the defendant can- the witnesses have been examined, 
 
 not move to dismiss for want of prose- the cause is at an end. Morrison v. 
 
 cution, but may move that the plain- Arnold, 19 Ves. 670 ; Vaiigh<m v. Fite- 
 
 tiff be ordered to take the next step gerald, 1 Sch. & Lef. 316. 
 
PERPETUATING TESTIMONY. 495 
 
 under and by virtue of said devise to him of said farm and 
 lands, whereof the use for her natural life was in and by said 
 last will and testament given as aforesaid to the said 
 wife and widow of the said testator; that this deponent was 
 lawfully married to his present wife, , on or about the 
 
 day of , eighteen hundred and , in said 
 
 township of ; that he has had born to him by said wife 
 
 a lawfal child, a girl, born alive after said marriage, and on the 
 day of , eighteen hundred and , which child 
 
 was lawfully begotten by this deponent, which child died on or 
 about the day of , eighteen hundred and ; 
 
 that he is advised by his counsel that by the birth of said child 
 the condition on the fulfillment whereof he was to have the fee 
 simple in said farm and lands whereof the use is in said will 
 given to said testator's wife, , was fulfilled, and that by 
 
 the birth of said child he became and was and is entitled to the 
 fee simple of said farm and lands, and he claims that by reason 
 of the premises he is the true and lawful and right owner in fee 
 simple of said farm and lands whereof the use as aforesaid is in 
 and by said last will and testament given to said testator's wife 
 ; that , wife of , of , and , wife 
 
 of , of , are witnesses to the birth of said child ; 
 
 that their testimony on any trial wherein this deponent's right 
 in the premises to the fee simple of and in said farm and lands 
 might be brought in question, or wherein it might be to the in- 
 terest of this deponent to set up and substantiate by proof his 
 title in fee simple of, in and to the premises to said farm and 
 lands, would be very material and of very great importance to 
 this deponent ; that said is a woman of the age of 
 
 years, or thereabouts, and is not in good health ; that said 
 is of the age of years, or thereabouts, and is also not in 
 
 good health ; that by reason of the fact that this deponent is in 
 possession of said land and premises, he is unable to bring before 
 any court the question as to his title to the fee simple of said 
 land and premises under the said last will and testament ; and 
 that this deponent has had , the following brothers and sisters, 
 and no other or others, to wit, 
 
 {Jurat.) (Signature of -complainant.) 
 
496 
 
 FOKMS OF PLEADINGS. 
 
 DISCOVERY, (a) 
 
 Bill for discovery under the statute.(6) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey/: 
 
 Commencement in usual form, then "that on the day of" 
 
 , eighteen hundred and , your orator recovered a 
 
 judgment in the Supreme Court of the State of New Jersey 
 
 (a) Every bill may be regarded as 
 a bill of discovery; but the species 
 of bill usually distinguished by that 
 title is a bill for the discovery of facts 
 resting in (he knowledge of the de- 
 fendant, or of deeds or writings or 
 other things in his custody or power, 
 and seeking no relief in consequence 
 of the discovery ; though it may pray 
 the stay of proceedings in another 
 court till the discovery is made. 2 
 Dan. Oh. Pr. 1556. A bill of discov- 
 ery must state the matter touching 
 which discovery is sought, the interest 
 of the plaintiff and defendant in the 
 subject, and the facts and circum- 
 stances upon which the right of the 
 plaintiff to require the discovery 
 from the defendant is founded. Ld. 
 Bed. 64. The bill should pray that 
 the defendant make a full discovery 
 of the matters therein stated. But it 
 is not necessary to allege that the 
 facts, a discovery of which is sought, 
 are within the exclusive knowledge 
 of the defendant Metier v. Metier, 4 
 O. E. Or. 457. Nor that the discovery 
 is absolutely necessary or indispensa- 
 ble to the defence. It will be suffi- 
 cient to show that it is material evi- 
 dence. Howell V. Ashmore, 1 Stock. 82. 
 It may also pray any equitable assist- 
 ance of the court, which is merely 
 consequential upon the prayer for 
 discovery, but it should not pray 
 
 general relief, for then it is a bill for 
 relief; nor pray that the defendant 
 may abide such order or decree as the 
 court may think proper, though if 
 the word decree be omitted it is not a 
 hill for relief. 2 Dan. Ch. Pr. 11,57 ; 
 see Little v. Cooper, 2 Stock. 273 If 
 the answer to a bill for discovery 
 merely, and for injunction against pro- 
 ceedings at law denies the matters of 
 which discovery is sought, and there 
 is no other ground of equity jurisdic- 
 tion in the case, the injunction will 
 be dissolved and the bill dismissed. 
 Jones V. Sherwood, 2 Sal. Ch. 210; 
 Fowler v Soe, 3 Stock. 367. 
 
 (6) Whenever an execution against 
 the property of a defendant shall have 
 been issued on a judgment at law, and 
 sha'l have been returned unsatisfied, 
 in whole or in part, leaving an amount 
 or balance remaining due exceeding 
 one hundred dollars, exclusive of 
 costs, the party suing out such execu- 
 tion may file a bill in chancery to 
 compel the discovery of any property 
 or thing in action belonging to the 
 defendant in such judgment, and of 
 any property, money, or thing in 
 action, due to him or held in trust for 
 him, except such property as is now 
 reserved by law, and to prevent the 
 transfer of any such property, money 
 or thing in action, or the payment or 
 delivery thereof to the defendant, ex-- 
 
DISCOVERY. 
 
 497 
 
 against the defendant, , for the sum of dollars damages, 
 
 and dollars costs of suit, as by the record of the said judg- 
 
 ment, or an exemplified copy thereof, when produced, will more 
 
 cept when such trust has been created 
 by, or the fund so held in trust has 
 proceeded from, some person other 
 than the debtor himself. Reo., "Chan- 
 cery," i 88. The court shall have 
 power to compel such discovery, and 
 to prevent such transfer, payment or 
 delivery, and to decree satisfaction of 
 the sum remaining due on such judg- 
 ment, out of any personal property, 
 money or things in action belonging 
 to the defendant, or held in trust for 
 him, with the exception above stated, 
 which shall be discovered by the pro- 
 ceedings in chancery; provided, that 
 if the personal property, money or 
 thing in action, which shall be dis- 
 covered as aforesaid, does not amount 
 to the sum of one hundred dollars, no 
 costs shall be recovered by the plain- 
 tiff against the defendant in such pro- 
 ceeding. Id., I 89. It was provided 
 by statute in New York (2 B. S.JVIZ, 
 I 37, Ed. 1829,) that the Court of 
 Chancery should dismiss every suit 
 concerning property where the matter 
 in dispute, exclusive of costs, did not 
 exceed the value of one hundred dol- 
 lars, and it was held that the words 
 " exclusive of costs ' refer to the costs 
 in the Court of Chancery merely ; and 
 that a judgment creditor who had re- 
 covered a judgment in a court of law, 
 and upon which judgment there was 
 due for debt and costs more than one 
 hundred dollars, might file his bill, 
 although the amount due upon such 
 judgment, exclusive of the costs in- 
 cluded therein, was less than one hun- 
 dred dollars at the time of filing such 
 bill. Spear v. Oioen, 9 Paige 362. 
 A suit brought by a creditor under 
 
 the statute must be brought for him^ 
 self alone, and not for himself and 
 such other creditors as may join 
 therein. The relief given is for the 
 creditor who pursues the statute; no 
 others are entitled to share with him 
 the benefits of the proceedings till he 
 is satisfied. Whitney v. Mobbins, 2 C. 
 E. Or. 360. The only relief provided 
 for by the statute is the discovery of 
 property, preventing its payment t& 
 the defendant or transfer to a stranger, 
 having a receiver to collect and sell it, 
 to whom the court can compel the de- 
 fendant to convey it, and the applica- 
 tion of it to pay the debt of the com- 
 plainant. But the fact that other 
 speci6c relief is prayed than can 
 properly be granted under the statute,, 
 does not render the bill multifarious. 
 Id. 364. A receiver appointed under 
 the act providing for discovery on the 
 return of an unsatisfied execution may 
 file a bill in his own name to have the 
 property discovered freed from claims- 
 and liens put upon it in fraud of credi- 
 tors. Miller v. MaoKenzie, 2 Stew. Eq. 
 291, 071 appeal. When a bill shall be 
 filed under the statute for discovery,, 
 duly verified by the oath of the com- 
 plainant therein, or his solicitor or 
 agent, that he believes the contents- 
 thereof are true, it shall be lawful for 
 the Chancellor, in term time or vaca- 
 tion, forthwith to make an order re- 
 quiring the judgment debtor to appear, 
 and make discovery on oath concern- 
 ing his property and things in action 
 before a master of said court, to be 
 designated in said order, at a time and 
 pla(?e in said order to be specified. 
 Rev., "Chancery," ? 90. An answer 
 
 2g 
 
498 
 
 FORMS OF PLEADINGS. 
 
 fully appear ; that on the day of , eighteen hundred 
 
 and , your orator caused to be issued and delivered to the 
 
 sheriff of the county of 
 
 of a defendant to such bill by an exe- 
 cution creditor, that he has no prop- 
 erty of any kind, will not prevent the 
 appointment of a receiver, and the 
 transfer by the defendant to such 
 receiver of his property and effects. 
 Fuller v. Taylor, 2 Hal. Oh. 301; see 
 Bloodgood v. Clark, 4 Paige 575 ; New 
 V. Bame, 10 Paige 502. If it shall 
 appear by the bill, or by one supple- 
 mental thereto, and by proof by the 
 oath of the complainant or that of any 
 other person, that any person owes the 
 said judgment debtor, otherwise than 
 for his labor or personal services, or 
 for the labor or services of any mem- 
 ber of his family, or holds money or 
 property in possession or action, in 
 trust for him or for his use, except 
 such property as is' now reserved by 
 law, or when such trust has been 
 created by, or the fund so held in 
 trust has proceeded from some person 
 other than the debtor himself, it shall 
 be lawful for the Chancellor to make 
 an order forbidding the payment of 
 such debt, or the transfer of said 
 property or money by or to the said 
 debtor or any third person until further 
 order to be by him made. Sev., 
 " Chancery," § 91. Witnesses may be 
 required to appear and testify concern- 
 ing said matters, by either party, by 
 subpoena ad testificandum, issued out of 
 said Court of Chancery, and the said 
 master may adjourn the said examina- 
 tion from time to time, at the instance 
 of either party. Id., § 92. The ex- 
 amination of the debtor and witnesses 
 shall be certified by said master to the 
 Court of Chancery, and thereupon it 
 shall be lawful for the Chancellor to 
 appoint a receiver, pendente lite, of the 
 property and things in action belong- 
 
 where the said defendant then 
 
 ing or due to or held in trust for said 
 debtor as aforesaid, who thereby shall 
 receive authority to possess, receive, 
 and in his own name as such receiver, 
 sue for such property or things in 
 action, and the Chancellor may order 
 the judgment debtor to convey and 
 deliver to such receiver all such prop- 
 erty and rights in action and the evi- 
 dence thereof; and said receiver shall 
 in all respects be subject to the author- 
 ity of the Chancellor, in accordance 
 with the practice of the court, and 
 shall and may dispose of the said 
 property and things in action in con- 
 formity with the final decree in the 
 cause. Id., § 93. It was held in New 
 York that upon a creditor's bill for the 
 purpose of reaching the property of 
 the defendant after the return of an 
 execution unsatisfied, it is a matter of 
 course to appoint a receiver of the 
 defendant's property, if the equity of 
 the bill is not denied upon the hear- 
 ing of the application. Bloodgood v. 
 Clark, 4 Paige 574. Either party on 
 the final hearing of the cause may use 
 his own deposition, and that of the 
 opposite party, or either of them, and 
 the deposition or depositions of any 
 other witness or witnesses taken under 
 this act; provided, said party so in- 
 tending to use the same shall file with 
 the clerk of the court, within twenty 
 days after the filing of said deposition 
 in the clerk's office, a written notice 
 of said intention ; and provided further, 
 that the said deposition so designated 
 would have been legal evidence in said 
 suit, if the same had been taken after 
 issue joined, according to the practice 
 of the court. Be/v., " Chancery," | 94 ; 
 Howell V. Ashmore, 1 Stock. 82. 
 
DISCOVERY. 499 
 
 had a place of businees, and then resided and still resides, an 
 execution in the usual form, directed to said sheriff, thereby com- 
 manding him to satisfy the said judgnient out of the goods and 
 chattels of the said , in his county, and if sufficient goods 
 
 and chattels of the said could not be found, then out of 
 
 the lands and tenements of the said , whereof he was 
 
 seized on the day of , eighteen hundred and , 
 
 the day of the entering of the said judgment; and that said 
 execution was, before the delivery thereof, recorded and was duly 
 endorsed with a direction to said sheriff to levy for dollars 
 
 damages and costs, with interest thereon from, &c., besides 
 sheriff's fees ; that said sheriff has duly made return of said 
 execution, that said defendant had no goods or chattels, lands, 
 tenements or real estate within his county whereon to levy the 
 said execution, or any part thereof. And your orator shows that 
 said judgment so recovered as aforesaid still remains in full force 
 and effect, not satisfied or in any manner vacated, and that there 
 is now due and unpaid upon the said judgment the sum of 
 dollars, and interest thereon from, &c., besides the sum of 
 dollars of costs ; that at the time of the recovery of the judgment 
 above mentioned against the said , he, the said , 
 
 was, and for several years previous thereto had been, engaged in 
 mercantile business at , and that the complainant is in- 
 
 formed and believes that in the course of his said business divers 
 persons became indebted to the said , and that the said 
 
 has, at the time of the filing of this bill of complaint, 
 debts due to him from solvent and responsible persons, and for 
 which he holds divers securities and evidences to a large amount, 
 and has divers goods, wares and merchandise or other articles of 
 personal property which belong to him, or in which he is in 
 some way or manner beneficially interested; and that he has 
 equitable interests and things in action of some nature or kind 
 which might and ought to be applied to the payment of the said 
 judgment of your orator against him ; that the said defendant 
 has property, debts and equitable interests, things in action or 
 effects of the value of more than one hundred dollars, exclusive 
 of all prior just claims thereon, which your orator has been 
 •unable to reach by execution on his said judgment ; and that 
 
600 FORMS OP PLEADINGS. 
 
 this suit is not brought by collusion with the said defendant, or 
 with any other person, or for the purpose of protecting the 
 property or effects of the said defendant against the claims of 
 his other creditors. 
 
 In consideration of the premises and to the end that the said 
 defendant may full, true and perfect answer make to all and 
 singular the matters aforesaid, and may be decreed to make a full 
 and true discovery and disclosure of and concerning them and 
 to pay the amount of said judgment, with interest thereon, and 
 the costs of this suit, and to apply for that purpose any money 
 or property, or debts, choses in action and equitable interests be- 
 longing to or held in trust for him ; and that he be restrained 
 from transferring any property, money or thing in action be- 
 longing to him, or any property, money or thing in action due 
 to him or held in trust for him, except when such trust has been 
 created by, or the fund so held in trust has proceeded from, 
 some person other than the said defendant, and except such 
 property aa is now reserved by law ; and also forbidding the pay- 
 ment or delivery to the said , by any person or persons,, 
 of any such property, money or thing in action except as afore- 
 said ; and that he pay to your orator the amounts due on the 
 said judgment out of such property, money or things in action,, 
 with the exceptions hereinabove stated, that may be discovered 
 by these proceedings, and that an order may be made by your 
 Honor requiring the said defendant to appear and make dis- 
 covery concerning his property and things in action as aforesaid 
 before a master of this court, and that a receiver be appointed 
 with the usual powers and duties of receivers in like cases of all 
 said property and things in action of said defendant, and that 
 your Honor make such further or other order in the premises 
 as the nature of the case may require. 
 
 New Jersey, ss. — , the above-named complainant, 
 
 being duly sworn according to law, on his oath saith — that he 
 has read the foregoing bill, and that he believes the contents 
 thereof are true. 
 
 (Jurat) {Signature.) 
 
SUPPLEMENTAL BILL. 501 
 
 Order for discovery, &c., under section 90, Rev., 
 
 " Chancery." 
 
 {Title of cause.) 
 
 It appearing to the court that the said complainant has Jiled 
 his bill of complaint herein, setting forth that he is the owner 
 ■of a judgment recovered against the defendant, , in the 
 
 Supreme Court of this state, and that an execution against the 
 property of the said defendant has been issued thereon and 
 returned wholly unsatisfied, leaving an amount remaining due 
 exceeding dollars, exclusive of costs, and praying the aid 
 
 of this court in the premises ; and upon reading the said bill, 
 verified according to law : It is, on this, &c., ordered, that the 
 said defendant appear and make discovery on oath concerning 
 his property and things in action, before , one of the 
 
 masters of this court, on the, &c., at the hour of o'clock 
 
 in the noon ; and the said is hereby restrained from 
 
 transferring any property, money or thing in action belonging 
 to him, or due to him or held in trust for him, except where 
 such trust has proceeded from some person other than the said 
 defendant, and except such property as is now reserved by law ; 
 .and|the said defendant, , is hereby restrained from paying 
 
 or delivering to the said (the judgment debtor) any such prop- 
 erty, money or thing in action, except as aforesaid, until the 
 further order of this court in the premises. 
 
 SUPPLEMENTAL BILL. 
 
 Order for leave to file- supplemental bill.(a) 
 {Title of cause.) 
 This matter being opened to the court by , of counsel 
 
 with the complainant, and it appearing that {state shortly the 
 
 (a) It is irregular to file a supple- court, in a case of doubt, shall direct 
 
 mental bill without leave first obtained it to be given. Where no objection 
 
 -of the court. An application for such has been taken to the regularity of 
 
 leave should always be made. No the proceedings on this ground, it will 
 
 jiotice thereof is necessary, unless the be considered as waived by a voluntary 
 
602 
 
 FOEMS OF PLEADINGS. 
 
 object of the supplemental bill,) and that it is necessary to bring^ 
 before this court as a party defendant in this suit : It i& 
 
 thereupon, on this day of , eighteen hundred and * 
 
 J ordered, that the said complainant have leave to file his- 
 
 supplemental bill in this suit. 
 
 Supplemental bill to introduce new niatter,(a) 
 (Address.) 
 
 Complaining, shows unto your Honor your orator, , of 
 
 &c., that on or about the day of , eighteen hundred 
 
 and , your orator exhibited his original bill of complaint 
 
 in this honorable court against , the defendant hereinafter 
 
 named as defendant, thereby stating {here state the substance of 
 the allegations of the original bill, and the prayer thereof.) 
 
 And your orator further shows, that the said , being 
 
 duly served with process of subpoena, appeared to your orator's 
 
 appearance and demurrer by the de- 
 fendants. Allen V. Taylor, 2 Or. Oh. 
 435; Eager v. Price, 2 Paige 333; 
 Buckingham v. Oorning, 2 Stew. Eg. 
 288. 
 
 Under the circumstances stated in 
 rule 210 it is now unnecessary in 
 practice to file a bill of revivor or 
 supplemental bill, but the application 
 should be made in the form of a peti- 
 tion ; the course of practice is indi- 
 cated by the rule. 
 
 (a) A strictly supplemental bill is 
 always founded on facts that have 
 occurred since the filing of the origi- 
 nal bill. These may be necessary 
 either to aid the complainant in 
 obtaining the relief sought, or in 
 obtaining new or additional relief. 
 Allen V. Taylor, 2 Or. Oh. 435. A 
 Supplemental bill should be used in 
 preference to an original bill, when- 
 ever it can equally subserve the pur- 
 poses of justice. Ibid. Matters which 
 are known to complainant before the 
 decree in the original suit, will not 
 support a supplemental bill ; nor will 
 matters which have arisen since, if 
 
 they are merely cumulative evidence 
 of the charges in the original bill. 
 Barriclo v. Trenton Ins. Oo., 2 Sens. 
 ■164. After the taking of testimony, 
 if there be an imperfection in the- 
 frame of the bill, if the case as stated 
 is sufficient to warrant the relief 
 prayed for or to ground a complete 
 decree, if some other point seems 
 necessary to be made, or some addi- 
 tional discovery requisite, the com- 
 plainant must resort to a supplemental 
 bill. Seymour v. Long 'Bock Co., 2 C 
 E. Or. 169. It is not the practice to- 
 reiterate substantively in a supple- 
 mental bill all the charges of the 
 original bill, but to set them out by 
 way of reference, and charge the new 
 and additional facts by way of supple- 
 ment. Edgar v. Clevenger, 2 Or. Oh. 
 464. Where leave is given to file a 
 supplemental bill, the court will per- 
 mit other matters to be introduced 
 therein, which might have been incor- 
 porated in the original bill, by way of 
 amendment. Stafford v. Howlett,. L 
 Paige 200. 
 
SUPPLEMENTAL BILL. 503 
 
 said bill, and put in his answer thereto, whereby he alleged, &c., 
 [state here shortly the substance of the defendant's answer.) 
 
 And your orator further shows, that the said answer has been 
 replied unto by your orator, and witnesses have been examined 
 on both sides, but the proofs have not yet been closed, as by 
 the said bill and proceedings now remaining as of record in this 
 honorable court, reference being thereunto l\^d will more fully 
 appear. * 
 
 And your orator further shows, by way of supplement, that 
 your orator has lately and since the examination of witnesses in 
 the said cause, discovered, as the fact is, that, &c., {state the sup- 
 plemental matter.) 
 
 And your orator charges that, &c., (insert here the special alle- 
 gations necessary to the complainant's case.) To the end, there- 
 fore, that the said defendants may, if they can, show why your 
 orator should not have the relief hereby prayed, and may, upon 
 their oaths, answer the premises as fully as if the same were 
 here again repeated, and they particularly interrogated thereto ; 
 and more especially that, &c., (the special interrogatories may be 
 inserted here.) 
 
 And that your orator may have the same relief against the 
 said as he might have had if the facts hereinbefore stated 
 
 and charged by way of supplement had been stated in your 
 orator's said original bill ; and that (here insert special prayer 
 for relief;) and that your orator may have such other or further 
 relief in the premises as the circumstances of his case may 
 require and to your Honor shall seem meet. 
 
 May it please your Honor, &c., (insert prayer for process of 
 subpcena.)(a) 
 
 Supplemental bill against new parties who should 
 have been defendants in the original bill. 
 
 (Address.) 
 Proceed as in preceding form to *, then, And your orator 
 further shows, by way of supplement, that your orator has lately 
 
 (a) The subpoena is in the same filed. Process on the original bill 
 
 form as a subpoena to answer an origi- should be served before a supple- 
 
 nal bill, except that it specifies the mental bill is filed. Outwater v. Berry, 
 
 nature of the bill which has been 2 Hal. Ch. 63. 
 
504 POKMS OF PLEADINGS. 
 
 discovered, as the fact is [insert mji/pplemenial matter.) And your 
 orator charges that the said {the new defendants) are, by the 
 means aforesaid, interested in {the subject of the suit,) and are 
 necessary parties to this suit ; and that your orator is entitled to 
 have the same relief from his said original bill, as if they had 
 been made parties thereto. 
 
 To the end, therefore, that the said defendants may, if they 
 can, show why your orator should not have the same relief hereby 
 and by his said, original bil](o) prayed, and may, upon their 
 several oaths, &c. ; and that your orator may have the same 
 relief from his said original bill, as if the said defendants had 
 been made parties thereto, &c., [prayer for special and general 
 relief and for subpoena.) 
 
 Bill in the nature of a bill of revivor and supple- 
 ment. 
 
 [Address.) 
 
 Complaining, show unto your Honor your orators, , 
 
 that on the day of , eighteen hundred and , 
 
 your orators, other than the above-named executors of , 
 
 deceased, and the said , then living, exhibited their original 
 
 bill in this honorable court against the above-named defend- 
 ants other than the said , who has since been appointed 
 trustee ; which said bill, after setting forth that , then of 
 , had died in eighteen hundred and , leaving a 
 will, in and by which he created certain trusts for the complain- 
 ants, , and appointed certain trustees of said trust, of 
 
 (a) A supplemental bill generally the supplemental bill have arrived at 
 
 calls upon the defendant to answer the same point at which the original 
 
 the supplemental matter only. If, bill stood, they then proceed, pari 
 
 however, it is occasioned by the trans- passu, together. Lube's Eg. PI. 138. 
 
 mission of the interest of a defendant A separate replication in a supple- 
 
 -who lias not answered the original mental suit is only necessary when 
 
 bill, and it is necessary to have a dis- there has been a replication in the 
 
 covery from the new defendant of the original suit. "When there has been 
 
 matters in the original bill, it may no replication in the original suit, a 
 
 pray that the defendant may answer general replication will apply to the 
 
 the original bill. Vigers v. Ld. And- whole record, and not merely to the 
 
 ley, 9 Sim. 72. After the answer has original bill. Cotton v. Marl Carlisle, 
 
 been put in, and the proceedings on 5 Mad. 4:27. 
 
SUPPLEMENTAL BILL. 505 
 
 ^hom , then deceased, had been the surviving trustee, and 
 
 that the said surviving trustee had filed no account of his trust, 
 prayed that said , administrator of the said , might 
 
 be compelled to render an account of said trust estates, and make 
 good out of the estate of the said any part thereof which 
 
 might be found to have been lost, wasted or misapplied ; that a 
 new trustee might be appointed in the place of the said , 
 
 and that said administrator might be compelled to pay, transfer, 
 assign and deliver to him all moneys, securities and assets of the 
 estate; that to this bill the defendants appeared and filed 
 answers substantially admitting the averments therein made; 
 whereupon this court appointed one receiver of the said 
 
 trust estate, and referred the case to , as master, to ascer- 
 
 tain and take an account of the funds and securities of the trust 
 fond or estate in question in said cause, and how invested and 
 held by the deceased trustee, , , and for whose use, and 
 
 whether for the separate use of any and which of the parties, 
 and what were the respective rights of the parties, and how 
 much was due and owing from the estate of said to said 
 
 trust; and the said master subsequently made report to said 
 court dividing the funds remaining of the said trust estate, and 
 certain funds received during the progress of the cause from the 
 private estate of said deceased trustee, to make good his ascer- 
 tained devastavit into five parts or classes, and as and for one of 
 said parts or classes said master did order that said defendant, 
 , who had theretofore been appointed trustee in the place 
 of said , deceased, should set aside and retain, as trustee 
 
 under the will of said , of the fund or estate set apart by 
 
 sa\d will to secure the annuity of dollars, payable to his 
 
 widow, the said , during her life, certain specified cash 
 
 and securities ; which report of said master, after the hearing of 
 exceptions thereto by said parties and certain modifications of 
 the same, was confirmed, and a decree based upon said report 
 made by this honorable court, by and under which said decree 
 certain specified cash and securities were allotted as the fund to 
 secure said annuity, all of which, in and by the bill, answers, 
 proceedings, orders and decree, now on the record of this honor- 
 able court, will appear. 
 
506 FOEMS OP PLEADINGS, 
 
 And your orators further show, by way of supplement to 
 said original bill, that after the said report of said master so 
 setting apart certain specified cash and securities to secure said 
 annuity fund, said died, having in and by her last will 
 
 and testament appointed the said her executors; that by 
 
 and under the provisions of the will of the said , the 
 
 share or portion of his said estate set apart to secure said annuity 
 was, at the death of his said widow, to be equally divided between 
 his children, the said , the shares of the said , 
 
 being of age, to be paid to them directly, and the shares of said 
 and to be held upon the trusts declared of and 
 
 concerning their shares of the residuary estate of the said , 
 
 of which the said is now trustee as aforesaid; that neither 
 
 by the said report of said master nor by the said decree there- 
 upon, is any division made of said annuity fund to take effect 
 after the death of said widow, but the said fund is and remains 
 undivided; that of said fund, as your orators believe and aver, 
 a portion belongs to the estate of the said as and for 
 
 arrears of her said annuity, and the residue is to be divided 
 among the children as aforesaid. 
 
 To the end, therefore, that said defendants may answer the 
 premises, and that an account may be taken of said annuity 
 fund, and that the same may be divided and allotted to and 
 among the parties to whom it belongs according to their several 
 and respective interests, the debt due by the said and 
 
 forming part of said annuity fund being allotted to them 
 as a portion of their share, and that your orators may have such 
 further or other relief as may be or become necessary : 
 
 May it please your Honor to grant unto your orators a writ 
 or writs of subpoena, directed to the said , trustee appointed 
 
 under the will of , deceased, and , command- 
 
 ing them and each of them, on a certain day and under a certain 
 penalty therein to be expressed, to be and appear before your 
 Honor to answer the premises and to stand to and abide such 
 order and decree therein as to your Honor shall seem meet. 
 
 And your orators will ever pray, &c. 
 
 {Signature of solicitor and counsel with complainants.) 
 
BILL OP KEVIEW, 507 
 
 Petition for leave to file a bill of review.(a) 
 {Title and address.) 
 
 The petition of , the above-named defendant, respect- 
 
 fully shows, that on or about the day of , eighteen 
 
 hundred and , filed his bill of complaint in this^ 
 
 honorable court against your petitioner for the purpose of (state 
 the object of the original bill generally,) and praying (recite the 
 prayer.) 
 
 And your petitioner further shows, that being served with 
 process of subpoena, he appeared to the said bill and put in hi& 
 answer thereto, to which replication was filed. And the said 
 cause being at issue, witnesses were thereupon examined on both 
 sides and the proofs closed. And that the said cause was brought 
 to a hearing in this court, whereupon a decree was made to the 
 effect following, viz.: (set forth the substance of the decree.) * 
 
 And your petitioner further shows, that said decree has been 
 duly enrolled; and he is advised that the said decree is erroneous, 
 and ought to be reviewed and reversed and set aside (if for errorsr 
 of law, add here,) for many apparent errors and imperfections, 
 among which are the following : for that (set forth the errors 
 
 (a) A bill of review is in the nature and see as to the form of such petition, 
 of a writ of error, and its object is to Dexter v. Arnold, 5 Mason 303. By 
 procure an examination and alteration the English practice, a bill of review 
 or reversal of a final decree made upon brought upon new matter may, it 
 a former bill, which decree has been seems, be permitted even after the 
 signed and enrolled. Story's Eq. PI., decree has been affirmed by the House 
 I 403. There are but two cases in of Lords. Barhrni v. Searle, 1 Vern. 
 which a bill of review is permitted to 416 ; Story's Eq. PL, § 418. But not 
 be brought, and they are for errors of where it is brought upon error in the- 
 law and upon discovery of new matter. decree. Story's Eq. PL, ^^ 408,410. 
 Id. 401. According to the English The finding of facts by the court on 
 practice, leave must first be obtained a petition for leave to file a bill of 
 before a bill of review can be filed review, is not conclusive at the hear- 
 upon a, discovery of new matter. 2 ing on the bill. Elliott v. Palcom, 11 
 Dan. Ch. Pr. 1577. A bill of review Oray 286. The distinction between 
 may be brought without leave, to cor- bills of review and bills in the nature 
 rect errors apparent on the face of the of bills of review consists in the en- 
 record. Buckingham v. Corning, 2 Stew. rollment or non-enrollment of the 
 Eq. 238 ; Webh v. Pell, 1 Paige 564. decree. The first is brought when the- 
 The application for leave to file a bill decree in the cause hag been enrolled. 
 of review is usually made by petition ; Story's Eq. PL, I 421. 
 
508 FOKMS OF PLEADINGS. 
 
 complained of.) For all whicli errors and imperfections in the 
 said decree appearing on the face thereof, your petitioner is 
 desirous of bringing his bill of review to be relieved in the 
 premises. 
 
 If the petition be for leave to file bill of review for discovery of 
 new matter, add after *, And your petitioner further shows, that 
 since the pronouncing of the said decree, your petitioner has 
 discovered new matter of consequence in the said cause; partic- 
 ularly (state new matter;) which new matter your petitioner 
 did not know, and could not, by reasonable diligence, . have 
 known, so as to make use thereof in the said cause, previously 
 to and at the time of pronouncing the said decree. {Conclude 
 as follows, as to either petition :) 
 
 Your petitioner therefore prays, that he may be at liberty to 
 ifile a bill of review for the purpose of having the said decree 
 reviewed, reversed and set aside; and that no further proceedings 
 may be had under the same. 
 
 And your petitioner, &c. 
 
 Order for leave to file bill of review on discovery 
 of new matter.(a) 
 
 (Title of cause.) 
 
 On reading and filing the petition of , the defendant, 
 
 praying for leave to file a bill of review in this cause, and on 
 hearing , of counsel with the petitioner, and , of 
 
 counsel with : It is, on this day of , eighteen 
 
 hundred and , on motion on behalf of the said petitioner, 
 
 ordered, that the said , on depositing the sum of one hun- 
 
 (a) The rule is that the matter bill of review. Dan. Ch. Pr. 1582; 
 
 must not only be new, but it must be see Webb v. Pell, ante. By custom in 
 
 such as the party, by the use of rea- New Jersey, the amount of the de- 
 
 sonable diligence, could not have posit is the same as that required on 
 
 known. Perkins v. Partridge, 3 Stew. appeals. 
 
 Bq. 559 ; see Putnam v. Clark, 9 Stew. Filing a bill of review does not stay 
 
 Eq. 33, 647. the execution ofthe decree complained 
 
 If a bill of review is filed with- of. Williams v. 3Idlish, 1 Vern. 117. 
 
 •out leave, or is inconsistent witli the After a defendant has demurred to a 
 
 leave granted, it will be ordered to be bill of review, he cannot object to the 
 
 taken from the file. BiKkingham v. right to file it. Griggs v. Gear, 3 
 
 Coming, supra. By the English prac- Oilman 2. 
 tice, a deposit is necessary on filing a 
 
BILL OF REVIEW. 50&- 
 
 dred dollars, as security for costs, be at liberty to file a bill of 
 review touching the several matters in the said petition men- 
 tioned, and for relief in the premises, as he may be advised. 
 
 Bill of review for errors of law. 
 
 {Address ) 
 
 Complaining, shows unto your Honor your orator, , of, 
 
 &c., that on or about the, &c., , of , the defendant 
 
 hereinafter named, exhibited his bill of complaint in this honor- 
 able court against your orator, and thereby set forth that {set 
 out the substance of the original bill,) and praying {set out prayer 
 verbatim.) And your orator being served with a subpoena for 
 that purpose, appeared and put in his answer to said bill, setting 
 forth {here insert substance of answer.) And said replied 
 
 to said answer, and issue having been joined, and witnesses 
 examined and the proofs closed, the said cause was brought to a 
 hearing before your Honor, and on the {date) a decree was pro- 
 nounced and entered, whereby it was ordered, adjudged and 
 decreed, that {set out the decree,) as by the said decree and other 
 proceedings now remaining of record in this honorable court, 
 reference being thereunto had, will appear. * 
 
 And your orator further shows, that said decree has been since 
 duly enrolled ; which said decree your orator insists is erroneous, 
 and ought to be reviewed, reversed and set aside for many appar- 
 ent errors and imperfections, inasmuch as it appears {here set out 
 apparent errors.) For all which errors and imperfections in the 
 said decree, appearing on the face thereof, your orator has brought 
 this his bill of review, to be relieved in the premises. 
 
 In consideration whereof, and inasmuch as such errors and 
 imperfections appear in the body of the said decree, your orator 
 hopes that the said decree will be reversed and set aside, and no 
 further proceedings had thereon. 
 
 To the end, therefore, that the said may, upon his 
 
 oath, {interrogatories in usual form;) and that for the reasons 
 and under the circumstances aforesaid, the said decree may be 
 reviewed, reversed and set aside, and no further proceedings 
 taken thereon. 
 
 {Conclude with prayer for subpoena in usual form.) 
 
510 
 
 F0HM8 OF PLEADINGS. 
 
 Bill of review on discovery of new matter. As in 
 
 last form to *, then add, And your orator further shows, {here 
 Mate the newly-discovered matter.) 
 
 And your orator is advised and insists, that under the circum- 
 stances aforesaid, the said decree, in consequence of the discovery 
 of such new matter as aforesaid, ought to be reviewed and 
 reversed, and {add other special relief desired.) To the end, 
 therefore, &c., {as in preceding form.) And that {here insert 
 prayer for relief.) 
 
 May it please, &c., {prayer for subpoena.) 
 
 CROSS-BILIj.(a) 
 
 It is unnecessary to set forth a form of this bill. It differs in 
 no respect from the common form of an original bill, but must state 
 the injury sought to be redressed; in which is generally included 
 
 (a) If a defendant has any relief to 
 pray or discovery to seek, he must do 
 so by a cross-bill. Miller v. Qregory, 
 1 a E. Gr. 274; Onderdonk v. Gray, 
 4 a E. Gr. 65 ; LeddeU v. Starr, 4 C. 
 E. Gr. 159; Scott v. Lalor, Z C. E 
 Or. 301 ; Hoff v. Burd, 2 C. E. Gr. 
 301. There should be as little delay 
 as possible in filing a cross-bill. When 
 such a bill is necessary, the proper time 
 for filing it is at the time of putting 
 in the answer to the original suit and 
 before the issue is joined by filing the 
 replication. Stevens v. Stevens, 9 O. E. 
 Gr. 77. A cross-bill against a com- 
 plainant should, in general, be filed 
 at the time of filing the answer, and 
 in all cases before closing the testi- 
 mony. But the first rule does not 
 apply to a cross-bill by one defendant 
 against another, nor does the last to 
 cases in which no testimony has been 
 taken. Vanderveer v. Holcomb, 6 C. E. 
 Or. 105. After the filing of a repli- 
 
 cation a cross-bill cannot be filed 
 without leave of the court. Leave to 
 file a cross-bill was granted on petition 
 after the time limited in the rule to 
 close testimony, in Jackson v. Grant, 
 3 C E. Gr. 147. New parties cannot 
 be introduced into a cause by a cross- 
 bill. Curtis, J., in Shields v. Barrow, 
 17 How. 145. Nor can a defendant in 
 a cross-bill set up a case inconsistent 
 with the case made in his answer to 
 the original bill. Jackson v. Grant, 
 supra. Whenever a cross-bill is 
 brought against a, co-defendant in a 
 suit, the complainant in such suit must 
 be named as a defendant together with 
 them. Coop. Eg. £1. 85. The defend- 
 ant to the original bill must answer 
 thereto before the defendant to the 
 cross-bill can be compelled to answer 
 such cross-bill. Bev., "Chancery,'' 
 ? 39. The answer of the defendant 
 to the cross-bill may be considered 
 as substantially and for all practical 
 
CK0S8BILL. 511 
 
 the reference to the former bill; pretences and charges, when neces- 
 sary — being for the most part pretences of some of the allegations 
 in the original bill, and charges to the contrary — and lastly, the 
 prayer for svhpcena, to the end that the defendant may answer the 
 premises; and the court may decree such relief as the nature of 
 the case may require. Lube's Eq. PI. 229. 
 
 Order to stay proceedings in original suit.(a) 
 {Title of cause.) 
 
 On reading and filing the cross-bill of to the bill of 
 
 complaint of , and the affidavit thereto annexed : It is, 
 
 &c., on motion, &c., ordered, that all further proceedings in the 
 original suit commenced by the said against the said 
 
 be stayed until the said shall have put in his answer to 
 
 the said cross-bill. 
 
 Order that original and cross-bill be heard to- 
 gether.(6) 
 
 {Titles of original cause and cross-bill.) 
 
 It appearing to the court that both the above-stated causes are 
 at issue: It is, on this, &c., on motion of , of counsel 
 
 purposes a replication to the defend- in the original suit, the cross-bill must 
 ant's answer to the original bill. be verified on knowledge and not on 
 
 ite V. Arthur, 2 C. E. Or. 521. mere information and belief. Taimage 
 
 When a defendant desires such relief v. Fdl, 9 Paige 410. The filing of a 
 
 as by the existing practice can Only be cross-bill does not, as a matter of 
 
 obtained by means of a cross-bill, it course, stay the proceedings in the 
 
 shall not be necessary to file such bill original suit. If the party filing the 
 
 to obtain it ; but he may set up in his cross-bill wishes to stay the cause upon 
 
 answer matter which would now be the original pleadings, he should give 
 
 the proper subject of a cross-bill and notice and apply to the court for an 
 
 obtain relief thereon. Rule 205. The order to that efiect. Williams v. Garle, 
 
 practice to be pursued in such case is 2 Stock. 543. 
 
 detailed in that rule. If no answer (6) An original and cross-cause are 
 
 is filed to the answer by way of cross- considered as one suit, and ordinarily 
 
 bill, a decree pro confesso may be heard together, and the rights of all 
 
 entered and the complainant in the the parties in respect to the matters 
 
 cross-bill may proceed ex parte as in litigated are settled by one decree, 
 
 ordinary cases. Whyte v. Arthur, 2 C. E. Or. 521 ; 
 
 (a) If the complainant in a cross- Field v. Schieffelin, 7 John. Ch. 252. 
 bill wishes an order to stay proceedings 
 
612 
 
 FOBMS OP PLEADINGS. 
 
 •with , the complainant in the cross-bill, ordered, that the- 
 
 said causes be brought on for hearing together, provided that 
 the hearing upon the original bill shall not be delayed by any 
 delay or neglect to proceed on the part of the complainant in the 
 said cross- bill. 
 
 CREDITOR'S BILL. 
 
 Bill by a creditor to set aside a conveyance as 
 fraudulent, and to establish the lien of his judg- 
 ment, (ra) 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, shows unto your Honor your orator, , of 
 
 the city of , in the county of , and State of , 
 
 that on and before the day of , eighteen hundred 
 
 (a) A court of equity has the power 
 to aid a judgment creditor to reach 
 the property of his debtor, either by 
 removing fraudulent judgments or 
 conveyances which obstruct the plain- 
 tiff's remedy under the judgment, or 
 by appropriating in satisfaction thereof 
 rights or equitable interests of the de- 
 fendant which are not the subject of 
 legal execution. Rdberl v. Hodges, 1 
 0. E. Or. 299. An assignee, under an 
 assignment for the benefit of the cred- 
 itors of the assignor pursuant to the act 
 (iJei)., p. 36) may file a bill to set aside 
 a prior conveyance of lands made by 
 the assignor for the purpose of defraud- 
 ing his creditors, if the properly so 
 conveyed is required for the payment 
 of the claims of creditors, and credi- 
 itors who were intended to be hindered, 
 delayed and defrauded by such con- 
 veyance have presented their claims 
 to the assignee for allowance. Pills- 
 bury V. Kivgon, 6 Stew. Eg. 287. 
 
 Assignees under the Assignment act, 
 and executors and administrators of 
 insolvent estates, are the representa- 
 tives of creditors, and, as such, may, 
 for the benefit of creditors, set aside 
 conveyances by the assignor or the 
 decedent, in fraud of creditors, to the 
 extent that such property is needed 
 for the payment of debts. Ihid. 
 
 AVhen a party comes into the Court 
 of Chancery to obtain satisfaction of a 
 judgment, he must present himself 
 under some head of equity jurisdic- 
 tion; lie must show that the debtor 
 has made some fraudulent disposition 
 of his property, or that the case stands 
 affected with some trust, collusion or 
 injustice against which it is the prov- 
 ince of the court to give relief. Dis- 
 borough v. Outcall, Sax. 298. The 
 principle is familiar and well estab- 
 lished that in order to enable a cred- 
 itor to question the conveyance of his 
 debtor on account of fraud, he must 
 
creditok's bill. 513 
 
 ;S,nd , , of the city of , in the county of 
 
 , and State of , was seized and possessed in fee 
 
 simple of all those tracts or parcels of land hereinafter men- 
 tioned and described, situate in said city of , in the county 
 of , and State of , that is to say: {desoribe the 
 premises.) 
 
 And your orator further shows, that on or about the 
 day of , in the year eighteen hundred and , the 
 
 said being justly indebted to your orator in the sum of 
 
 dollars and upwards, your orator then commenced an 
 action upon contract against the said , for the recovery of 
 
 the said debt and interest thereon, in the Supreme Court of New 
 Jersey; and such proceedings were thereupon had in the said 
 ^uit, that afterwards, to wit, on the day of , in the 
 
 year last aforesaid, your orator recovered a judgment against the 
 said , in the said Supreme Court, for the sum of 
 
 dollars, damages, including costs, as by the record of the said 
 judgment now remaining in the oifice of the clerk of the said 
 Supreme Court, at Trenton, reference being thereunto had, will 
 more fully and at large appear. 
 
 And your orator further shows, that for the purpose of 
 obtaining satisfaction of said judgment, he caused to be issued 
 
 have some lien on the property. and chattels. Robert v. Hodges, supra. 
 
 iSwayze v. Swayze, 1 Stoch. 273 ; Davis For it is by the execution and not by 
 
 T. Dean, 11 C. E. Or. 436. If a cred- the judgment that he acquires a lien 
 
 itor seeks the aid of the Court of upon the personal property. Dunham 
 
 Chancery against the real estate of v. Cox, supra. The return of the 
 
 his debtor, he must show a judgment sheriff to the execution that the de- 
 
 -at law creating a lien on such estate. fendants are not seized or possessed of 
 
 Robert v Hodges, supra; Bigelow v. any estate, real or personal, on which 
 
 ,Magee, 12 C. E. Or. 392. It is not he could levy, is sufficient to give 
 
 necessary for him to take out exeeu- complainants a standing. Randolph 
 
 -tion upon his judgment; it is, perhaps, v. Daly, 1 0. E. Or. 313. The execu- 
 
 most advisable for him to do so ; it tion must be actually returned and 
 
 ■may avoid a contest with a subsequent filed before the bill is filed. Pardee 
 
 execution creditor. Dunham v. Cox, 2 v. De Cala, 7 Paige 132. If several 
 
 Stoek. 437 ; Vanderveer v. Stryker, 4 creditors' suits are pending , at the 
 
 Hal. Ch. 175. If a creditor seeks aid same time, a decree may bs made in 
 
 in regard to the personal estate, he the one first ready for hearing, though 
 
 must show an execution giving him it be not the suit first brought. Slephen- 
 
 a legal preference or lien on the goods son v. Taverners, 9 Qratt. 398. 
 
 2h 
 
514 POEMS OF PLEADINGS, 
 
 thereon out of said Supreme Court a writ of fieri facias de bonis 
 et terris, tested on the day of , and returnable on 
 
 the day of , in the year last aforesaid, which writ, 
 
 having been first duly recorded, was delivered to the sheriff of 
 the said county of , to whom it was directed, and thereby 
 
 he was commanded that of the goods and chattels of the said 
 , in his county, he should cause to be made the said 
 sum of dollars so as aforesaid adjudged to your orator; 
 
 and that if sufficient goods and chattels of said in his 
 
 county he could not find whereof to make said moneys, he should 
 cause the whole or the residue, as the case might require, of the 
 said moneys to be made of the lands, tenements, hereditaments 
 and real estate whereof the said was seized on the said 
 
 day of , in the year last aforesaid, or at any time 
 
 afterwards, in whose hands soever the same might be; and that 
 the said sheriff should have those moneys before said Supreme 
 Court, on the return-day of said writ, to render to your orator 
 in satisfaction of his said judgment, and that he should have 
 then and there the said writ. 
 
 And your orator further shows, that , sheriff of said 
 
 county of , to whom the said writ of execution was 
 
 directed and delivered, being unable to find any goods and 
 chattels of the said whereon to levy and make the said 
 
 judgment, levied upon the lands and premises hereinbefore 
 described as the property of the said , as by the writ of 
 
 execution or the record thereof, and the return to said writ thereon 
 endorsed, in the office of the clerk of the said Supreme Court, at 
 Trenton aforesaid, reference being thereto had, will more fully 
 and at large appear. 
 
 And your orator further shows, that the said , being so 
 
 seized and possessed of said tracts of lands and premises as afore- 
 said, which are of the value of dollars and upwards, after- 
 wards, at or about the dates or times and by the pretended deeds 
 hereinafter mentioned, and after the said debt so due to your 
 orator had accrued and become due and payable, and in order to 
 secure the said property for his own use and benefit, and protect 
 it from the said claim of your orator, and prevent your orator 
 
ceeditob's bill, 515 
 
 from coUeotiDg his said debt, contriviDg to defraud your orator, 
 did, by deed dated on , the day of , eighteen 
 
 hundred and , and recorded in Book of Deeds 
 
 for county, page , pretend to convey the tract of 
 
 land first above described, to one , who, by deed bearing 
 
 date the same day and year last aforesaid, pretended to convey 
 the same tract to , for the nominal consideration of one 
 
 dollar, which last-mentioned deed was recorded in Book 
 of Deeds for said county of , page ; and by another 
 
 deed dated the day of , in the year last aforesaid, 
 
 and recorded in Book of Deeds for the said county of 
 
 , page , pretended to convey the tracts secondly 
 
 and thirdly above described to the said , who, by deed 
 
 bearing date the same day and year last aforesaid, and recorded 
 in Book of Deeds for said county of , page , 
 
 pretended to convey the last- mentioned tract to ; and 
 
 that the said and , in further execution of said 
 
 fraudulent design, by deeds dated the day of , in 
 
 the year eighteen hundred and , pretended to convey all 
 
 the said lands above described to one , which deeds last 
 
 mentioned were recorded in Book of Deeds for said 
 
 county of , pages ; and that the said , by 
 
 deed dated on the day of , in the year last afore- 
 
 said, and recorded in Book of Deeds for said county of 
 
 , page , pretended to convey the said three above- 
 
 described tracts to said 
 
 And your orator further shows, that he has been informed 
 and believes it to be true, and therefore expressly charges, that 
 no consideration whatever was paid for any of the said convey- 
 ances; and that the said has always held, occupied, 
 possessed and enjoyed and received the rents and profits of said 
 lands as fully to all intents and purposes as before the execution 
 of said pretended conveyances. 
 
 And your orator further shows, that he has frequently and in 
 a friendly manner applied to the said and , to pay 
 
 the said judgment, or to cancel and surrender the said fraudulent 
 conveyances, or to reconvey or cause to be reconveyed the said 
 
,516 FOBMS OF PLEADINGS. 
 
 premises to the said , so that they may be sold under the 
 
 said execution for the satisfaction of the said judgment, and a 
 good and clear title given therefor to the purchaser thereof, as in 
 equity and good conscience they ought to have done, and as your 
 orator well hoped they would have done, but which they wholly 
 refuse to do. 
 
 In consideration whereof, and forasmuch as your orator is 
 remediless in the premises at the common law, and cannot have 
 adequate relief except by the aid of this honorable court: 
 
 To the end, therefore, that the said and , his wife, 
 
 and , defendants hereto, may, [without oath,] full, true 
 
 and perfect answer make to all and singular the premises accord- 
 ing to the best of their knowledge, information, remembrance 
 and belief, and that they may set forth and discover the real 
 estate belonging to the said , and conveyed as hereinbefore 
 
 mentioned, and what disposition has been made of, or encum- 
 brance put upon, the same, fully and particularly, and in whose 
 possession said real estate has been since the day of , 
 
 eighteen hundred and , and whether the same is encum- 
 
 bered, and if so, in what manner, in whose favor, by whom, and 
 to what amount, and whether such conveyances as before men- 
 tioned were made of the said real estate, and if so, for or upon 
 what consideration, and to whom, when and by whom, the same 
 was paid, and who has possessed and occupied said premises, and 
 received the rents, issues and profits thereof since the said alleged 
 or pretended conveyances thereof; and that the said defendants, 
 or some or one of them, may be decreed to play to your orator 
 the full amount due and owing to him on the said judgment, 
 with the interest, costs and execution fees accrued thereon ; and 
 that the said fraudulent conveyances, and all other fraudulent 
 conveyances and encumbrances, made, created or suffered between 
 the said defendants and affecting the said lands, may be set aside 
 and declared null and void ; and that the said lands may be sold 
 free, clear and discharged of and from the said fraudulent deeds 
 and all other fraudulent deeds and encumbrances under the said 
 writ of execution or otherwise, and the proceeds thereof, or such 
 part of the same as may be necessary, may be applied to the pay- 
 
cebditok's bill. 517 
 
 ment of your orator's said judgment; and that your orator may 
 have such other or further relief in the premises as the nature of 
 the case may require, and as may be agreeable to equity and good 
 conscience. 
 
 May it please your Honor, the premises considered, to grant 
 to your orator the state's writ of subpoena, issuing out of and 
 under the seal of this honorable court, directed to the said 
 and , and , therein and thereby commanding them 
 
 and each of them, at a certain day and under a certain penalty 
 to be therein expressed, personally to be and appear before your 
 Honor in this honorable court, then and there to answer the 
 premises, and to stand to, abide by and perform such order and 
 decree therein as to your Honor shall seem meet, and as shall be 
 agreeable to equity and good conscience. 
 
 And your orator will ever pray, &c. 
 
 {Signature of solicitor and ooimsel with oomplainamt.) 
 
 Notice of lis pendens.(a) 
 
 {TUle of cause.) \ OnhUl&o. 
 
 ) Lis pendens. 
 
 Take notice, that a suit entitled as above set forth has been 
 commenced and is pending in the Court of Chancery of the 
 
 (a) Neither the issuing of a sub- notice of (he pendency of such suit^ 
 poena or other process, nor the filing setting forth the title of the cause and 
 of a bill in Chancery afiecting the the general object thereof, together 
 possession of or title to lands or real with a description of the lands or 
 estate, nor any proceedings had or to real estate to be afiected thereby ; 
 be had thereon before a final decree, nothing in this section contained shall 
 shall be deemed or taken to be con- be construed or taken to apply to any 
 structive notice to any bona fide pur- bill filed for the satisfaction or fore- 
 chaser or mortgagee of any lands or closure of any duly registered mort- 
 real estate to be afiected thereby, gage. Rev. ^Sup., "Ids Pendens,'' § 1. 
 until the complainant in such bill or In case the complainant named in 
 his solicitor shall have first filed in such bill does not take steps to prose- 
 the office of the clerk of Ihe Court of cute the suit diligently within three 
 Common Pleas of the county (or in years after the filing of such written 
 the office of the register of deeds a,nd notice of the pendency of such suit,, 
 mortgages, where such office exists,) then the Chancellor may, upon appli- 
 in which such lauds lie, a written cation to him by any interested party. 
 
518 
 
 FOKMS OF PLEADINGS. 
 
 State of New Jersey. That the general object of the said suit is 
 (state generally the object, according to the prayer of the bill.) 
 
 That the lands and real estate to be affected by said suit are 
 described as follows, to wit, (set forth the description as contained 
 
 in the bill.) 
 
 (Signature of complainant or his solicitor.) 
 (DaU.) 
 
 and upon notice to the complainant 
 or his solicitor, declare the filing of 
 Buoh notice to be null and void and of 
 no effect. Pamph. L., 1888, p. 427. 
 Whenever a final decree shall be 
 made in favor of the defendants in 
 any cause relating to or affecting the 
 possession of or title to any lands and 
 real estate, notice of the pendency of 
 which has been filed in the ofiice of 
 any county clerk or register, it shall 
 be the duty of the said clerk or 
 register to enter upon the margin of 
 the record of such notice, a statement 
 of the substance of such decree, upon 
 a copy thereof, certified under the seal 
 of the Court of Chancery, being filed 
 in his ofiice, and thereafter the lands 
 and real estate mentioned in the said 
 notice shall be and remain discharged 
 of all equities set up in the bill of 
 complaint in said suit, notwithstand- 
 ing the said suit be thereafter re- 
 vived. JRev. Sup., "Lis Pendens," § 
 4. In all suits instituted in the 
 Court of Chancery for the enforce- 
 ment of any claim for the payment of 
 money upon the lands and real estate, 
 (except for the foreclosure of a mort- 
 gage,) and notice of the pendency of 
 which shall be filed in the ofiice of 
 any county clerk or register, it shall 
 be lawful for the Chancellor to make 
 an order discharging the said lands 
 and real estate from such claim, upon 
 the defendant's giving sufficient and 
 satisfactory security, in such sum and 
 manner as the Chancellor may direct, 
 for the payment of such sum of money 
 
 as may by the final determination of 
 the said cause be chargeable upon the 
 said lands and real estate, and upon 
 filing a copy of said order, certified 
 under the seal of the Court of Chan- 
 cery, with the county clerk or register, 
 he shall make entry of said discharge, 
 by reason of said order, on the margin 
 of the record of said notice, and the 
 said lands and real estate shall be 
 thereafter discharged from any claim 
 which may be made in the said suit, 
 except such as may be covered by the 
 security given for the payment of such 
 claim. Id., § 5. When any decree 
 made in the Court of Chancery in 
 any suit of the pendency of which 
 notice shall be filed in the offices of 
 the clerk of the Court of Common 
 Pleas or the register of deeds, shall be 
 paid, satisfied or performed, or when, 
 pending such suit, the matters in dif- 
 ference between the parties thereto 
 shall be settled by the parties, or 
 such suit shall be abandoned by the 
 complainant, a statement of such pay- 
 ment, performance, satisfaction, settle- 
 ment or abandonment of such suit 
 may be entered by the solicitor of the 
 party ; * * * the lauds and real 
 estate affected by said suit and men- 
 tioned in such notice shall be dis- 
 charged of all equities set up in the 
 bill of complaint in said suit, by the 
 entry on the margin of the record of 
 the notice of the pendency of such 
 suit of satisfaction and discharge, 
 which satisfaction and discharge shall 
 be entered by the party receiving 
 
519 
 
 Notice of motion for receiver in creditor's suit. 
 
 (^Title of cause.) 
 The defendant will take notice, that upon the papers on file in 
 ihis cause, we shall apply to the Chancellor, at the state-house, 
 in Trenton, {or as the case may be,) on the day of , 
 
 A. D. eighteen hundred and , at ten o'clock A. M., 
 
 or as soon thereafter as counsel can be heard, for the appoint- 
 ment of a receiver of the effects of said defendant, as prayed 
 for in the bill on file, and for an order requiring said defendant 
 to appear before one of the masters in chancery of said court, 
 and execute an assignment of his property and effects to such 
 receiver, and to submit to an examination on oath as to his 
 property and effects for the information of such receiver. 
 
 {Signature of complainant's solicitor.) 
 
 Decree on creditor's bill to set aside a fraudulent 
 •conveyance, &c. 
 
 {Title of cause.) 
 
 This cause coming on to be heard ex parte on the bill in this 
 cajise, on the day of , eighteen hundred and , 
 
 before his Honor the Chancellor, at [the state-house, in the city of 
 ,] in the presence of , of counsel for the complainant, 
 
 (no one appearing on behalf of the defendants, the said bill hav- 
 ing been heretofore taken as confessed against them,) whereupon 
 and upon reading the said bill and the proofs in the cause, and 
 it appearing to the Chancellor that the several deeds of convey- 
 ance in the said bill mentioned and described, for the lands and 
 premises therein set forth, were made and executed with the 
 
 -satisfaction or his solicitor, or by the subpoena. Haughwout v. Murphy, 6 
 
 clerk or register of deeds of the G. E. Gr. 118 ; T C. E. Gr. 531. Lis 
 
 proper county, upon receiving and pendens filed without any bill having 
 
 filing a warrant or authority for the been filed as constructive notice, is a 
 
 purpose, executed by the party or his nullity. Walker v. Hill's Ex'rs, 7 O. 
 
 solicitor in the manner provided by E. Or. 514. A conveyance by the 
 
 law in respect to the satisfaction of defendant after the filing of the notice 
 
 judgments. Hev. Sup., "Chancery," ? cannot afiect complainant's rights. 
 
 10 ; JRev. Sup., "Lis Pendens," I 7. Beeckman v. Montgomery, 1 MeOart. 
 
 The notice of lis pendens only takes 107. 
 -efiect from the time of serving the 
 
520 FOEMS OF PLEADINGS. 
 
 intent to defraud the complainant as a creditor of the defendant, 
 
 , and that the said complainant is entitled to the relief 
 prayed for in his said bill of complaint : It is thereupon, on thi& 
 
 day of , eighteen hundred and , on motion 
 
 of , of counsel with the complainant, ordered, adjudged 
 
 and decreed, and the said Chancellor, by virtue of the power 
 and authority of this court, does hereby order, adjudge and 
 decree, that the said deeds of conveyance in said bill mentioned 
 and described, for the tracts of land respectively therein set forth,, 
 that is to say, the deed of conveyance made by the defendant, 
 
 and , his wife, to the defendant, , bearing^ 
 
 date the day of , eighteen hundred and , and 
 
 recorded in Book of Deeds for said county, page 
 
 ; also the deed of conveyance made by the said to 
 
 the said , bearing date the same day and year last afore- 
 
 said, and recorded in Book of Deeds for said county, page 
 
 , be set aside, annulled and made void as against the 
 judgment "and execution" of the said complainant in said bill 
 set forth and described; and that the defendants do pay the 
 costs of the complainant in this cause to be taxed, and that the 
 complainant have execution therefor according to the course dnd 
 practice of this court. 
 
 And it is further ordered, that unless the defendants shall, 
 within ten days after service upon them of a copy of this decree 
 and of the taxed bill of costs, pay to the complainant or to his 
 solicitor the amount due to him upon his judgment in this cause 
 referred to, and the taxed costs of this suit, the sheriff of the 
 said county of , to whom was directed and delivered the 
 
 writ of fieri facias de bonis et terris, issued out of the Supreme 
 Court of New Jersey,(a) at the suit of the said complainant 
 against the said , and in said bill mentioned and set forth, 
 
 do proceed to sell the said tracts of land and premises, free, clear 
 and discharged of and from the said deeds of conveyance, and 
 of and from all claims of the said thereunder or by virtue 
 
 thereof. 
 
 (a) Where, as sometimes happens, was not in the defendant, an execution, 
 there has been no levy on the land may be issued out of this court, 
 under the execution because the title 
 
creditor's bill. 
 
 521 
 
 Bill by an attaching creditor for his own benefit 
 and that of others who shall come in, &c.(a) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, shows unto your Honor, your orator, , of 
 
 , in the State of , that your orator is a creditor of 
 
 (o) The principle is familiar and 
 well established that in order to enable 
 a creditor to question the conveyance 
 of his debtor on account of fraud, he 
 must have some lien on the property. 
 Swayse v. Swayze, 1 Stock. 273 ; Davis 
 V. Dean, 11 C. E. Or. 436, and cases 
 cited. The real ground for hot sus- 
 taining the bill of a general creditor 
 against the fraudulent . disposition of 
 his debtor's property is, that the debt 
 is no charge or lien upon the prop- 
 erty of the debtor. Oakley v. Pound, 
 1 McCart. 178. There can be no ex- 
 ception to the rule. Young v. Trier, 
 1 Stock. 465, overruling Blackwell v. 
 Rankin, ^3 Hal. Oh. 153 ; see Seese 
 Siver Mining Go. v. Atwdl, L. R., 7 
 Eq. 347. 
 
 An attaching creditor has, even 
 before judgment in the attachment, 
 such lien on the property of the de- 
 fendant in attachment as will enable 
 him to maintain a suit in chancery to 
 set aside a fraudulent conveyance, or 
 judgments under which the property 
 attached is claimed. Hunt v. Field, 
 1 Stock. 36 ; Williams v. Michenor, 3 
 Stock. 520 ; Robert v. Hodges, 1 0. E. 
 Or. 299 ; Ourry v. Glass, 10 0. E. Gr. 
 108. In such case the bill should be 
 for the benefit of the complainant and 
 such others of the creditors as shall 
 come in and seek relief by, and con- 
 tribute to the expenses of, the suit, 
 and should allege for what amount 
 the attachment was issued, that it 
 was executed, and what property was 
 
 attached, and should make the de- 
 fendant in attachment a party. Hunt 
 V. Field, supra. Mortgage and judg- 
 ment creditors are necessary parties^ 
 but creditors who have been admitted 
 under the attachment are not. Wil- 
 liams V. Michenor, supra. A creditor 
 admitted as such by rule under an 
 attachment, has a lien on the prop- 
 erty attached, which entitles him to 
 maintain such a bill. Curry v. Glass, 
 supra. In such case it is not neces- 
 sary that the consideration of the 
 debt should be stated in the bill. 
 The claim of the creditor appearing 
 in the bill, verified by affidavit, as 
 required by the statute, is a subsisting 
 debt for the purpose of creating the 
 lien. Ourry v. Glass, supra. A gen- 
 eral creditor cannot unite with a 
 creditor at large in such a bill. 
 Fleischman v. Young, 1 Stock. 622 ; 
 Haggerty v. Nixon, 11 O. E. Gr. 42. 
 In Edgar v. Olevenger, 1 Gr. Oh. 258,. 
 the complainant was permitted, after 
 a decree pro confesso against the de- 
 fendant, and an ex parte hearing upon 
 the evidence, to file a supplemental 
 bill, in order to incorporate in the 
 record the facts that after the com- 
 mencement of his suit in chancery 
 the complainant obtained a judgment 
 and sued out execution at law. 
 
 A judgment creditor cannot lose 
 his lien or priority by being omitted. 
 as a defendant. Voorhess v. Reford, 1 
 McOart. 155. 
 
522 FOBMS OF PLEADINGS. 
 
 one , a resident of the State of , and he exhibits 
 
 this his bill of complaint for his own benefit and the benefit of 
 such other creditors of the said as shall come in under 
 
 this bill and contribute to the expenses of this suit. 
 
 That on the day of , eighteen hundred and 
 
 , the said was and still is indebted to your orator 
 
 in about the sum of , dollars, being for principal and 
 
 interest due to your orator from the said on the judgments 
 
 following, that is to say : (describe judgments.) 
 
 And your orator further shows, that the said , being so 
 
 indebted to your orator in the said sum of dollars, and 
 
 then being a resident of the State of , your orator, 
 
 on or about the day of , eighteen hundred and 
 
 , then made oath, before , a master in chancery of 
 
 the State of New Jersey, that the said was indebted to 
 
 your orator in the sum of dollars, as nearly as your orator 
 
 could specify the same; and that the said resided in the 
 
 State of , and was not, to the knowledge or belief of your 
 
 orator, resident at that time in the State of New Jersey; that 
 the said oath was delivered to the clerk of the Circuit Court 
 holden at , in and for the county of , in the State 
 
 of New Jersey, on the day of , eighteen hundred 
 
 and , and by him filed in his office on the day last men- 
 
 tioned; and thereupon the said clerk sealed a writ of attach- 
 ment, and issued the same out of the said Circuit Court, directed 
 to the sheriff of the county of aforesaid, tested on the said 
 
 day last mentioned, and returnable on the day of , 
 
 eighteen hundred and , whereby the said sheriff was com- 
 
 manded to attach the rights and credits, moneys and effects,- 
 goods and chattels, lauds and tenements of the said , 
 
 wheresoever they might be found, so that the said might 
 
 be and appear before the said court on the said day last men- 
 tioned, to answer your orator of a plea that he render to your 
 orator the sum of dollars, which to him he owed and from 
 
 him unjustly detained; and said clerk also forthwith entered, in 
 a book provided and kept for that purpose, the names of your 
 orator as plaintiff, and of the said as defendant in the said 
 
 «uit, the sum or amount therein specified, and at the time of 
 
523 
 
 issuing or sealing the same; that the said writ of attachment 
 was, on the said day of , eighteen hundred and 
 
 , delivered to the said sheriff of the said county of ; 
 
 and the said sheriff, on the day of , eighteen hun- 
 
 dred and , went to the house of said on the land of 
 
 the said , in the inventory of said sheriff hereinafter men- 
 
 tioned, and then and there declared, in the presence of one cred- 
 ible person, that he attached the rights and credits, moneys and 
 effects, •goods and chattels, lands and tenements hereinafter 
 described of the said at the suit of your orator, and the 
 
 said sheriff did then and there, with the assistance of a discreet 
 and impartial freeholder, make a just and true inventory and 
 appraisement of all the property and estate of the said , 
 
 that is to say : (describe premises,) so by him attached ; and such 
 inventory and appraisement, dated and signed by himself and 
 the said freeholder, said sheriff annexed to and returned with the 
 said writ, which has been returned, and the said sheriff also 
 endorsed on the said writ the true time of executing the same, 
 and signed his name thereto, to which said afiBdavit, writ, inven- 
 tory, return and appraisement your orator, for greater certainty, 
 prays leave to refer. 
 
 And your orator further shows, that the said is the 
 
 owner of the said lands so by said sheriff attached; but your 
 orator is unable effectually to obtain the benefit of the said 
 attachment, or to enforce the same upon and against the said 
 lands of the said , inasmuch as the truth is, and your 
 
 orator charges, that although the said , on or about the 
 
 day of , eighteen hundred and , by deed of 
 
 conveyance thereof from the owners of said lands, became the 
 purchaser thereof and seized of an estate in fee simple therein, 
 he did not record the said deed until the day of , 
 
 eighteen hundred and , and although the said has 
 
 remained in possession of said lands so far as any possession has 
 been had thereof by any one up to the time of filing this bill; 
 yet your orator charges that he, on or about the day of 
 
 , eighteen hundred and , for the purpose of 
 
 defrauding his creditors, and your orator in particular, and 
 delaying them and him in the collection of their and his debts, 
 
624 FORMS OF PLEADINGS. 
 
 and to embarrass them and him in enforcing their and his claims 
 against him, and to conceal his properiy, by a deed bearing date 
 on the day and year last aforesaid, and recorded days 
 
 afterwards, executed by him and his wife, , granted, bar- 
 
 gained and sold and conveyed unto one , an attorney-at- 
 
 law at , in the State of , and to his heirs and assigns 
 
 forever, the said lots of land so attached as aforesaid ; that 
 
 said conveyance to said was made without any valuable or 
 
 lawful consideration paid whatever, although the deed for said 
 lands states a consideration of dollars; that at the time of 
 
 the conveyance by said to said of said lands, the 
 
 said executed to the said a mortgage for 
 
 dollars, which, together with a mortgage originally given by 
 to his grantors, for dollars, would make up the 
 
 consideration mentioned in said deed to said ; that said 
 
 mortgage by said was canceled on the day of 
 
 , eighteen hundred and , although the said 
 
 has never paid it, or any part thereof, or the interest thereon;, 
 and the interest on said mortgage by said to his grantors 
 
 has been paid by said , or out of his funds, or may 
 
 have been in some cases advanced or loaned by said ,. 
 
 although the interest may have been recently paid in the name 
 of said 
 
 And your orator charges, that many of the receipts for interest 
 on said mortgage so given by said are, since his convey- 
 
 ance to said , in the name of said ; that the said 
 
 lands are held by the said merely to oblige the said 
 
 and in trust for him, or are held by him for the purpose of aid- 
 ing and abetting the said in concealing the said land» 
 from his creditors, and delaying and defrauding his creditors;, 
 that the said has stated to several persons, and among the 
 rest to one , that the said lands were conveyed by him to 
 the said to protect the same from his, the said 's,. 
 creditors; and that the said conveyance was a confidential matter 
 between him and the said , and in reference to the mort- 
 gage given by to him for dollars, as part of the 
 pretended purchase money; said farther stated, that said 
 had behaved magnificently in covering himself with a 
 
cbeditoe's bill. 525 
 
 lieavy obligation, which was never designed to be enforced, and 
 subjecting himself thereby, in case of the death or bad faith of 
 «aid , to great hazard of loss and inconvenience. 
 
 And your orator charges, that said statements of said , 
 
 above mentioned, are true, and that said is reputed to be 
 
 insolvent and unable to pay his debts. 
 
 And your orator is advised by counsel and insists, that the 
 said lands so attached under the said writ of attachment are, in 
 equity, subject to the lien and operation of the said attachment, 
 and the levy and inventory made under the 8ame.(a) 
 
 And your orator further shows, that he fears that unless 
 restrained by the writ of injunction of this honorable court, the 
 said and will transfer and convey said lands to 
 
 «ome bona fide purchaser, whereby your orator may be deprived 
 of realizing the said money due him from said out of said 
 
 lands. 
 
 And your orator further shows, that he has applied to the 
 said and , or one of them, to satisfy his said claim, 
 
 but the said defendants refuse to comply with his request. 
 
 All which actings are contrary to equity, and tend to the 
 manifest wrong and injury of your orator in the premises. 
 
 In consideration whereof, and forasmuch as your orator has no 
 adequate remedy in the premises, except in this honorable court : 
 
 To the end, therefore, that the said and may 
 
 answer the premises according to law, and may, in particular, 
 set forth and show whether there was any consideration paid by 
 the said for the said conveyance to him of said lands by 
 
 said and his wife, and if so, what the same was in partic- 
 
 ular, and when it was paid, and where and who were present ; 
 and whether the whole consideration was not the said mortgage 
 so given by said , and if not, what other or further con- 
 
 sideration ; and whether said has ever paid anything, and 
 
 what and with whose moneys or property on account of said 
 mortgage so given by him to said , or any interest thereon, 
 
 (a) Moneys in the hands of a are liable to seizure by virtue of a 
 sheriff, raised by him in pursuance of writ of attachment. Conover v. Ruek- 
 XI decree of the Court of Chancery, man, 6 Slew. Eq. 303. 
 
626 FOEMS OF PLEADINGS. 
 
 and to whom, and when and where, and who were present, and 
 of what said payment consisted, and who has, in fact, attended 
 to and paid the interest on the said mortgage given by , 
 
 and where and when, and how much, and who, at the time of 
 filing this bill, has the receipts for interest on said last-mentioned 
 mortgage, and where he has the same, and what said receipts are 
 or were, and to whom they are or were given ; and whether the 
 said does not now, or did not at some time heretofore,, 
 
 hold said lands in trust for said or some other person, and 
 
 whom, and how such trust was created or is manifested at the 
 time of filing this bill, and when it was created or reduced ta 
 writing, if it ever has been so reduced ; and under what agree- 
 ment, arrangement or understanding, express or implied, the 
 said conveyance of said lands was made to said , and with 
 
 what intention, and what reasons said gave to said 
 
 for desiring him to take said conveyance; and whether said 
 is not insolvent, and has not for that reason held all his 
 visible property of any considerable value in his wife's name, or 
 the name or names of some other person or persons; and whether 
 the statements set forth in this bill, as having been made by 
 him, are not substantially true, and if not wholly true, what 
 part of said statements is true, and may show what the real fact 
 is or was; and how the said came to take the title of 6r 
 
 purchase said lands in New Jersey, and if he has ever seen said 
 lands ; and whether he had of his own sufficient means to pay 
 off the said mortgage so by him given to said ; and what 
 
 is the business occupation or profession of said ; and 
 
 whether said is not, in fact and in truth, the real owner 
 
 of said lands, subject to the legal encumbrances, and what are 
 the terms of said bond and mortgage so given by said to 
 
 said , and why the same was paid off before it was due, 
 
 if it was paid off; and that said attachment may be declared to 
 be a lien on said lands; and that the said deed of conveyance so 
 made by said and , his wife, to the said , 
 
 may be declared and decreed to have been given with the intent 
 to delay, hinder and defraud the creditors of the said , 
 
 and to be fraudulent and void as against your orator and all 
 other creditors who shall come in under said attachment and 
 
creditor's bill. 527 
 
 contribute to the expenses of this suit, and that the same may be 
 delivered up to be canceled, or if it be more equitable, that the 
 said may be declared and be decreed to be a trustee for 
 
 your orator and such creditors ; or that the said lands may be 
 sold under the said attachment or by the decree of this honorable 
 court, and out of the proceeds of such sale, your orator and such 
 other creditors may be paid their debts ; and that the said 
 and may join in the conveyances to the purchasers of 
 
 said lands, if it be necessary so to do; and that in the meantime 
 the said and may, by the injunction of this honor- 
 
 able court, be restrained from conveying or encumbering the 
 said lands; and that your orator may have such further or other 
 relief as to your Honor shall seem meet, or as shall be required 
 by the circumstances of the case. 
 
 May it please your Honor, the premises considered, to grant 
 unto your orator not only the state's writ of injunction, issuing 
 out of and under the seal of this honorable court, directed to 
 the said • and , requiring and commanding them 
 
 absolutely to desist and refrain from conveying or encumbering 
 said lands, until the further order of this honorable court, but 
 also the state's writ of subpoena, &c. 
 
 And your orator will ever pray, &c. 
 • {Signature of solicitor and counsel with complainant.) 
 
 Petition by creditor to be admitted as a party 
 complainant in a case under the general equity 
 jurisdiction of the court, filed by a creditor on 
 behalf of himself and others.(a) 
 
 {Title of cause and address.) 
 The petition of respectfully shows, that the bill in this 
 
 cause is a creditor's bill, filed by the complainant, , a 
 
 judgment creditor of , for the benefit of himself and all 
 
 (a) Where a creditor files a bill in decree, and be joined as parties com- 
 
 behalf of himself and all others who plainant. No notice of such an ap- 
 
 may come in and participate in the plication is required. The Bank v. 
 
 burthens and the benefits, the others Dugan, 2 Bland 254 ; Strike v. Mc- 
 
 are allowed to come in on petition at Donald, 2 Har. & Gill 191 ; WiUiam- 
 
 any time, either before or after the son v. Wilson, 1 Bland 434. After the 
 
628 FORMS OP PLEADINGS. 
 
 the other creditors of said who shall in due time come in 
 
 and contribute to the expenses of this suit ; that the bill was 
 
 filed for the purpose of subjecting certain real estate which has 
 
 been conveyed to the defendant, , to the payment of the 
 
 debts of the said ; that your petitioner is a creditor of 
 
 the said ; that his debt consists of a judgment recovered 
 
 against said by , in the New Jersey Supreme 
 
 dourt, on the day of , eighteen hundred and 
 
 , for dollars, together with lawful interest on said 
 
 sum from the date of the recovery of said judgment, which 
 
 judgment was assigned by the said to your petitioner. 
 
 And your petitioner now holds said judgment wholly unpaid 
 
 and uncanceled of record, and is willing to contribute to the 
 
 expenses of this suit, and prays that he may be admitted as a 
 
 complainant herein. 
 
 {Signatwre oj solicitor of petitioner.) 
 
 {Add affidavit of verification.) 
 
 Order admitting creditor on foregoing petition.(a) 
 
 {Title of cause.) 
 
 Upon reading and filing the petition of , duly verified, 
 
 praying that he may be admitted as a party complainant in the 
 
 ■'Bling of the master's report, a creditor under the decree already made. Innes 
 who has neglected to come in in time, v. Lansing, 7 Paige 584. 
 cannot have an ex parte order permit- (o) A defendant to a creditor's bill, 
 ting him to go before the master and after having been admitted as a co- 
 prove his debt; but he must give complainant, may have the conduct 
 notice of his application to the solici- of the cause committed to himself on 
 tors of the creditors who have already the ground of great delay on com- 
 proved their claims, and to the origi- plainant's part, and on terms as to in- 
 nal parties to the suit. Wilder v. demnifying complainant against future 
 Keder, 3 Paige 164. Where several costs in the cause. Thompson v. jPis- . 
 creditors' bills are filed against the ler, 6 Siew. Eq. 480. 
 same defendant, as soon as a decree is In case of creditors' bills of this 
 obtained in either suit for the benefit character, all creditors may claim a 
 of all the creditors, the proceedings share in the distribution of the assets 
 in all the other suits may be stayed, at any time before they, have been 
 if no other relief can be obtained in dispensed by the court. Jones v, 
 such other suits than could be had Fayerweather, 1 Dick. Oh. JRep. 237. 
 
INSOLVENT COEPOKATIONS. 
 
 529 
 
 :above-entitIed suit, and it appearing that the said petitioner is a 
 -creditor by judgment of the said , and that he is willing 
 
 to contribute to the expenses of this suit : 
 
 It is, on this, &c., ordered, that the said be and he is 
 
 hereby admitted as a party complainant in this suit. 
 
 PROCEEDINGS AGAINST INSOLVENT CORPORA- 
 TIONS. 
 
 Bill against an insolvent corporation for injunc- 
 tion and receiver.(a) 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, show unto your Honor your orators, , all 
 
 of the city of , in the State of New Jersey, stockholders 
 
 and creditors of the , for and on behalf of themselves and 
 
 (a) Whenever any incorporated 
 -company shall have become insolvent, 
 or shall suspend its ordinary business 
 fo# want of funds to carry on the 
 same, it shall and may be lawful fOr 
 any creditor or stockholder of the said 
 company to apply, by petition or bill 
 -of complaint, to the Chancellor, set- 
 ting forth the facts and circumstances 
 of the case, for a writ of injunction, 
 and the appointment of a receiver or 
 receivers, or trustees ; whereupon the 
 Chancellor, being satisfied of the suffi- 
 ciency of said application, and also of 
 the truth of the facts and allegations 
 
 . -contained in the said petition or bill, 
 by affidavit or otherwise, and upon 
 giving, when bo ordered, such reason- 
 able notice, to be served or published 
 as he in an order to be made for that 
 purpose shall direct, may proceed in a 
 summary way, to hear the afiBdavits, 
 
 . proofs and allegations which may be 
 
 offered by or on behalf of the parties ; 
 and if upon such inquiry into the 
 matters or cause of complaint, it shall 
 be made to appear to him that the 
 company has become insolvent, and 
 shall not be about to resume its busi- 
 ness in a short time thereafter with 
 safety to the public and advantage to 
 the stockholders, it shall and may be 
 lawful for him to issue an injunction 
 to restrain the company and its oflBcers 
 and agents from exercising any of the 
 privileges or franchises granted by 
 the act incorporating the company, 
 and from collecting or receiving any 
 debts, or from paying out, selling, 
 assigning or transferring any of the 
 estate, moneys, funds, lands, tene- 
 ments or effects of the company, until 
 the court shall otherwise order. Mev., 
 "Corporations," ? 70. The act par- 
 takes largely of the character of a 
 bankrupt law, and it is proper to 
 
 2l 
 
530 
 
 FORMS OF PLEADINGS. 
 
 all other creditors and stockholders of said company who shall 
 come in and contribute to the expense of this suit,(a) that on or 
 about the day of , eighteen hundred and ^ 
 
 the legislature of this state passed a certain act, entitled , 
 
 wherein and whereby, among other things, certain persons 
 therein named and their associates were created a body politic 
 and corporate, in fact and in law, by the name and style of the 
 
 , for the purpose of manufacturing and selling , 
 
 and carrying on the business incident thereto, and for such pur- 
 pose the said company was authorized to raise by subscription 
 a capital stock of dollars, to be divided into shares of 
 
 dollars each, with the privilege of increasing the same 
 to dollars; and said company was also authorized to issue 
 
 certificates of stock, and to purchase, use, hold, possess and enjoy 
 such real estate as should be necessary and expedient for the uses 
 of such corporation, and to sell, mortgage, lease or otherwise dis- 
 
 apply the general rules which govern 
 that system, where it is in use. State 
 Bank v. Receivers, &c., 2 Gr. Oh. 266. 
 The object of the seventieth section 
 was to prevent companies actually in- 
 solvent, Of whose embarrassments were 
 such as must inevitably lead to in- 
 solvency, from doing what is lawful 
 for an individual debtor to do — make 
 a preference in favor of any creditor. 
 Coryell v. Bridge Co., 1 Stock. 457 ; 
 see Wilkinson v. Bauerle, 14 Stew. Eq. 
 635 ; Vail v. Jameson, Id. 649. The 
 bill must set forth the facts and cir- 
 cumstances of the case. Affidavits 
 and proofs may be read, but for no 
 purpose except to sustain the case 
 made by the bill and by the opposite 
 party in its disproof and denial. It 
 will not do simply to charge that the 
 company is insolvent, and then take 
 affidavits to show facts and circum- 
 stances not alluded to in the bill to 
 make out such insolvency. Rawnsley 
 V. Ins. Co., 1 Stock. 95, 347; New- 
 foundland By. Construction Co. v. 
 Shack, 13 Stew. Eq. 222. In judging 
 
 of the solvency or insolvency of a 
 company, its property should be esti- 
 mated at its fair value, and not at the 
 depreciated price which it might com- 
 mand at a forced sale. Parsons v. 
 Monroe Mfg. Co., 3 Gr. Ch. 187. In 
 proceedings under this act the solici- 
 tor on record of the complainants is- 
 the common solicitor of all the apply- 
 ing creditors, and regularly all orders 
 and proceedings should be in his 
 name. If any one of the creditors 
 is so situated as to render it necessary 
 that he should be represented sep- 
 arately before the court, application 
 for that purpose should be made. 
 Mechanics' Bank v. Bank of N. B., 2 
 Gr. Ch. 438. 
 
 (a) Whenever there are creditors 
 or other persons having demands 
 (cognizable in equity and of equal 
 standing) upon a common fund or 
 estate, and out of which they claim to 
 be paid, the proper course for them is 
 to unite in one bill, or for one or 
 more to file a bill in behalf of allr 
 See Innes v. Lansing, 7 Paige 583. 
 
INSOLVENT COEPORATION8. 531 
 
 pose of the same at pleasure, to borrow money and issue bonds 
 therefor, and were to possess the powers and be subject to the 
 general restrictions set forth in an act entitled , so far as 
 
 the same were applicable thereto. 
 
 And your orators further show, that after the passage of the 
 said act, books of subscription to the capital stock of the said 
 company were duly opened, and the whole of said capital stock 
 was subscribed ; and that your orator, , is the owner and 
 
 possessor of shares of the said capital stock, of the par 
 
 value of dollars; and that the said company is indebted 
 
 to your orator, , for money loaned and for endorsements, 
 
 in the sum of dollars; and that your orators, and 
 
 , are the owners and possessors of shares of said 
 
 capital stock, and that the said company is also indebted to 
 them in the sum of dollars, being the amount of money 
 
 loaned to said company by them, and in the further sum of 
 dollars, being the amount due to them from said com- 
 pany for premiums for insurance obtained by them for said 
 company upon its works. 
 
 And your orators further show, that after its organization 
 the said company purchased certain real estate in the county of 
 , in this state, and erected thereon buildings and put 
 therein machinery suitable for the manufacture of ; and 
 
 has continued to carry on the manufacture of until the 
 
 day of , eighteen hundred and , when 
 
 said company stopped business. 
 
 And your orators further show, that on the day of 
 
 , eighteen hundred and , certain commercial paper, 
 
 made by the said company for the sum of dollars, or there- 
 
 abouts, was protested for non-payment; and that on the 
 day of , in the same year, the holders and owners of said 
 
 paper commenced an action at law against the said company in 
 the Supreme Court of this state to enforce the collection thereof. 
 
 And your orators further show, that said paper was not met 
 or paid by said company, because it had no funds wherewith 
 to pay it. 
 
 And your orators further show, that on the day of 
 
 , eighteen hundred and , other commercial paper 
 
 of the said company, in all amounting to the sum of 
 
532 FORMS OF PLEADINGS. 
 
 dollars, fell due and would have been protested for non-payment 
 had not your orator, , who is endorser upon it, provided 
 
 for the payment thereof out of his individual funds. 
 
 And your orators further show, that they are informed and 
 believe it to be true that the liabilities of the said company 
 amount to over dollars, of which amount dollars 
 
 are represented by promissory notes made by the said company, 
 some of which are past due and others falling due daily, and 
 which said company has no funds to meet; that the total 
 amount of all its resources, inventoried at full value, over and 
 above their real estate, was, on the day of , eighteen 
 
 hundred and , less than dollars, of which 
 
 dollars, or thereabouts, was in stock and materials used in the 
 business of the company, and which has since been largely 
 decreased. 
 
 And your orators further show, that the real estate of said 
 company would not produce, in the judgment of those who are 
 acquainted with the value of real estate in the locality where the 
 same is situated, the sum of dollars, at private sale; and 
 
 that it is encumbered by mortgages to the amount of 
 dollars. 
 
 And your orators further show and charge the fact to be, that 
 the said company is insolvent; and that it has not the funds 
 to carry on the ordinary business of said organization; and that 
 it has been carrying on said business at great pecuniary loss 
 to the stockholders of said company; and that owing to the great 
 depression in business and general uncertainty as to the future, 
 the business of said corporation cannot be conducted so as to 
 enable the said corporation to pay its just debts or carry on its 
 operations with profit to its stockholders ; and that the further 
 prosecution by the said company of its said business would 
 necessarily tend to the sacrifice, injury and depreciation of the 
 rights of its stockholders and creditors. 
 
 In consideration whereof, and forasmuch as your orators are 
 without adequate remedy without the assistance of this honor- 
 able court, where matters of this nature are particularly cogniz- 
 able and relievable: 
 
 To the end, therefore, that the said company may full, true 
 and perfect answer make to all and singular the matters and 
 
INSOLVENT COKPOEATIONS. 533 
 
 things hereinbefore stated ; and that it may set forth and discover 
 the goods and chattels, rights and credits, moneys and effects, 
 and real estate of every kind and description belonging to said 
 corporation ; and that your orators and other creditors and stock- 
 holders of the said company may be paid what is justly due 
 them; and that the said company may be enjoined from exercis- 
 ing any of its franchises and from receiving any debts due to it, 
 and from paying and transferring any of its moneys or effects, 
 and from continuing its said business; and that it may be decreed 
 to be insolvent; and that a receiver may be appointed, according 
 to the form of the statute in such case made and provided ; and 
 that your orators may have such further or other relief in the 
 premises as the nature of the case may require, and as may be 
 agreeable to equity and good conscience : 
 
 May it please your Honor, the premises considered, to grant 
 unto your orators the state's writ of injunction, issuing out of 
 and under the seal of this honorable court, directed to the said 
 the , its officers, servants and agents, enjoining and 
 
 restraining them and each of them from exercising any of the 
 privileges or franchises granted by the act incorporating said 
 company, and from collecting or receiving any debts due to said 
 corporation, and from paying out, selling, assigning or trans- 
 ferring any of the estate, money, funds, lands, tenements or 
 effects of said corporation ; and also the state's writ of subpoena, 
 likewise issuing out of and under the seal of this honorable 
 court, to be directed to the said the (a), therein and thereby 
 
 commanding the said corporation to appear before your Honor, 
 according to law and the course of this court, at a certain day 
 and under a certain penalty therein to be expressed, then and 
 there to answer the premises, and to stand to, abide and per- 
 form such decree as to your Honor shall seem meet. 
 
 And your orators will ever pray, &c. 
 
 {Signature of solicitor and oovmsel.) 
 
 {Add verification of necessary facts.) 
 
 (a) When a change occurs in the answer must be filed by the persons 
 
 officers of a corporation between the who are officers at the time of the 
 
 time it is brought into court and the filing. Mech. Nat. Sank v. Burnet 
 
 time when its answer is filed, the Mfg. Co., 5 Stew. Eq. 236. 
 
S34 POEMS OF PLEADINGS. 
 
 Order to show cause why an injunction should 
 not issue and receiver be appointed with ad interim 
 injunction. 
 
 {Title of cause.) 
 
 This matter coming on to be beard, &c., and the court being 
 satisfied of the sufficiency of the application made in this cause, 
 and of the truth of the facts and allegations contained in the 
 bill exhibited herein : It is, on this, &c., ordered, that the de- 
 fendants, the said , show cause before the Chancellor, at the 
 state-house, in Trenton, {or " at the chancery chambers in the city 
 of ,") on , the day of next, at 
 o'clock in the noon, why an injunction should not issue, 
 pursuant to the prayer of said bill, and a receiver be appointed 
 to take charge of all the property and estate, books and papers 
 of said defendants, pursuant to the statute in such case made and 
 provided. 
 
 And it is also ordered, that until this order shall be made 
 absolute or be discharged, the said defendants, their officers, 
 servants and agents, absolutely desist and refrain from contract- 
 ing any debt or debts ; and also from collecting or receiving any 
 money owing to said defendants; and also from paying out any 
 money, or selling, assigning or transferring any of their prop- 
 erty, estate or effects of any kind. 
 
 And it is also ordered, that a copy of this order, " together 
 with a copy of said bill and the affidavits thereto annexed," be 
 served, within days from the date hereof personally on 
 
 the president of said defendant corporation, if he can be found 
 in this state, or if he cannot, then on any one of the directors of 
 said corporation resident in this state. 
 
 Notice of application for receiver, (a) 
 {Title of cause.) 
 
 Take notice, that an application will be made to the Chan- 
 cellor, on , the day of next, at o'clock 
 A. M., at the state-house in Trenton, {cr, " at the chancery cham- 
 
 (o) When the application for a day, and must be served as provided 
 receiver is made upon notice, the in the standing rules of the court, 
 notice must be for a regular motion- See page 273, ante. 
 
INSOLVENT COBPOKATIONS. 
 
 535 
 
 bers in ,") for the appointment of a receiver to take charge 
 
 of the effects and property of the {naming corporation,) and for 
 an injunction, &c. 
 
 Your obedient servant, 
 
 {Solicitor of complainants.) 
 Dated, &c. 
 
 Affidavit of service of foregoing notice. New 
 
 Jersey, ss. — , of full age, being duly sworn, on his oath 
 
 saith — that he served a notice, of which the foregoing is a true 
 copy, upon , president of {naming corporation,) personally, 
 
 on the day of 
 
 Sworn, &c. 
 
 Order appointing receiver on bill against an 
 insolvent corporation.(a) 
 
 {Title of cause.) 
 Upon opening the matter this day to the court, by , of 
 
 counsel with the complainants, [in the presence of , of 
 
 counsel with the defendants,] &c., and due proof being made 
 
 (a) It shall and may be lawful for 
 the Court of Chancery, if the circum- 
 stances of the case and the ends of 
 justice require it, at the time of order- 
 ing the said injunction, or at any 
 other time afterwards during the con- 
 tinuance of the said injunction, to 
 appoint a receiver or receivers, or 
 trustee or trustees, with full power 
 and authority to demand, sue for, 
 collect, receive and take into their 
 possession all the goods and chattels, 
 rights and credits, moneys and eiFects, 
 lands and tenements, books, papers, 
 -choses in action, bills, notes and prop- 
 erty of every description belonging to 
 the said company at the time of their 
 insolvency or suspension of business 
 as aforesaid; and to sell, convey or 
 assign all the said real or personal 
 €Btate ; and to pay into the Court of 
 -Chancery all the moneys and securi- 
 ties for money arising from such 
 
 sales, or which the said receiver or 
 receivers, or trustee or trustees, shall 
 collect or receive by virtue of the 
 authority vested in them, to be dis- 
 posed of by the said receiver or 
 receivers, or trustee or trustees, from 
 time to time, under the order of the 
 said court, among the creditors of the 
 said company, first making to the 
 receiver or receivers, or trustee or 
 trustees, such reasonable compensation 
 as the Chancellor may deem just and 
 proper, and also deducting the costs 
 of the proceedings in the said court. 
 Mev., "Gorporations," | 72. Before the 
 said receiver or receivers, or trustee 
 or trustees, shall be capable of acting, 
 he or they shall comply with such 
 terms as the Chancellor in his order 
 appointing him or them may pre- 
 scribe, and he or they shall respec- 
 tively take and subscribe the follow- 
 ing oath or affirmation, before one of 
 
536 POEMS OF PLEADINGS. 
 
 of the service * of notice of this application on the defendants, 
 (or after *, "of the order to show cause heretofore granted 
 herein,") and it appearing to the court that the said defendants 
 have suspended their ordinary business, and are insolvent : It is, 
 on this day of , eighteen hundred and , ordered, 
 
 that " the said order to show cause be made absolute," and that 
 , of , be and he is hereby appointed receiver, with 
 
 full power to demand, sue for, collect and receive and take into 
 his possession all the goods and chattels, rights and credits,, 
 moneys and effects, lands and tenements, books, papers, choses 
 in action, bills, notes and property of any and every description^ 
 belonging to the said the (corporation,) at the time of their sus- 
 pension of business, and to sell, convey or assign all the said 
 real or personal estate, and to pay into the Court of Chancery 
 all the moneys and securities for money arising from such sales,, 
 or which he shall collect or receive by virtue of his said office,, 
 and to do and perform all the duties imposed upon him and 
 required by law, and especially by an act entitled "An act con- 
 cerning corporations," approved April seventh, eighteen hun- 
 dred and seventy-five. And it is further ordered, that said ,. 
 before entering upon his duties, take the oath prescribed by law, 
 and give a bond to the Chancellor of the State of New Jersey 
 
 the masters of the Court of Chancery, and complete inventory of all the 
 or before the Chancellor : " I, , estate, property and effects of the said 
 do swear {or affirm) that I will faith- company, their nature and probable 
 fully, honestly and impartially ese- value, and an account of all the debts 
 cute the powers and trusts reposed in due from the said company and of 
 me, as receiver or trustee (as the case the debts due to it, as near as the said, 
 may be,) for the creditors and stock- receiver or receivers, or trustee or 
 holders of the , and that with- trustees, can ascertain the same at 
 out favor or affection ; " which oath that time ; and also to make a report 
 or affirmation shall be filed in the of their proceedings to the said court 
 office of the clerk in chancery, within every six months thereafter, until the 
 ten days after the taking thereof, said trust shall be completed. Id., § 
 Id,, § 73. It shall be the duty of the 76. In proceedings against an in- 
 receiver or receivers, or trustee or solvent corporation, a person con- 
 trustees, so to be appointed, as soon as neoted with the management will not 
 they conveniently can, after taking be appointed receiver. 3Iiddlesex 
 possession of the estate and effects of Freeholders v. State Bank, 1 Stew. Eq. 
 the company for which he or they 166 ; McOullough v. Merchant^ Loan- 
 shall be appointed as aforesaid, to lay Co., 2 Stew. Eq. 217. 
 before the Court of Chancery a full 
 
INSOLVENT COBPOBATIONS. 537 
 
 in the sum of dollars, conditioned for the faithful per- 
 
 formance of his duties, to be approved as to the form and security 
 thereof by , one of the special masters of this court. 
 
 Soud of receiver. Know all men by these presents, that 
 we, {principal,) and and (sureties,) of, &c., 
 
 are held and firmly bound unto the Chancellor of the State of 
 New Jersey in the sum of dollars, lawful money of the 
 
 United States of America, to be paid to the said the Chancellor 
 of the State of New Jersey, and his successors in office. To 
 which payment well and truly to be made, we bind ourselves, 
 our and each of our heirs, executors and administrators, jointly 
 and severally, firmly by these presents. Sealed with our seals. 
 Dated the day of , &c. 
 
 Whereas, by an order of the Court of Chancery of the State 
 
 of New Jersey, made in a cause pending in said court, wherein 
 
 are complainants, and are defendants, it was 
 
 ordered that be appointed a receiver for the creditors and 
 
 stockholders of said company : 
 
 Now, therefore, the condition of the above obligation is such 
 that if the said shall and do, as required by law and 
 
 the rules and practice of said court, duly file an inventory, 
 and half yearly or oftener, if required, duly account for what 
 he shall receive or have in charge as such receiver; and pay 
 and apply what he shall so receive or have in charge, as he may 
 from time to time be directed by said court, and obey such 
 orders as said court may from time to time make in relation to 
 said trust, and in all things well and truly fulfill and discharge 
 the duties of his said office of receiver, then the above obligation 
 to be void, otherwise to remain in full force and virtue. 
 
 Order for injunction in suit against corporation. 
 
 [Title of cause.) 
 Upon opening the matter this day to the court, by , of 
 
 counsel with the complainants, and upon reading the bill of 
 complaint in this cause, and the affidavits thereto annexed, and 
 on duly considering the same : It is, on this, &o., ordered that an 
 injunction issue against the said defendants, according to the 
 prayer of the said bill. 
 
538 FORMS OF PLEADINGS, 
 
 Affidavit to be annexed to inventory. 
 
 ( Venue.) > 
 
 , being duly sworn (or affirmed,) [on his oath] saith — 
 ihat he is the receiver in the above- entitled cause {or Ihatter,) 
 and the person who subscribed the foregoing inventory, and that 
 he verily believes the same to be a true and correct statement of 
 all the estate, property, effects and liabilities of said (corporation,) 
 
 {or as the case may be.) 
 
 (Signatv/re.) 
 (Jurat.) 
 
 Prayer for receiver over partnership. That a proper 
 person may be appointed receiver to collect and get in all the 
 outstanding debts and moneys due to or on account of the said 
 partnership business, and also to take possession of the stock in 
 trade, effects and property of every nature and kind of or be- 
 longing to the said partnership; that the defendant may be 
 ordered to deliver up to such person all the stock in trade, 
 effects and property of every nature and kind of or belonging to 
 said partnership in his possession or under his control, and also 
 all money, notes, drafts, bills of exchange, checks or other evi- 
 dences of indebtedness due and owing to said partnership, to- 
 gether with all books of account, accounts, receipts, vouchers 
 and papers of every nature belonging or pertaining to said part- 
 nership ; and that the said stock in trade, effects and property of 
 or belonging to the said partnership may be sold and converted 
 into money by said receiver, by and under the direction of this 
 oourt, and that such other or further relief may be had in the 
 premises as equity may require, and as the court may deem just. 
 
 Order appointing receiver over partnership. 
 
 (Title of cause and introduction.) 
 After formal commencement, it is (date) ordered, that A. B., 
 of , be and he is hereby appointed receiver to collect, get 
 
 in and receive the outstanding debts and moneys due to or on 
 account of said partnership business of , at , and 
 
 also to receive and take possession of all the stock in trade, 
 
INSOLVENT COKPORATIONS. 539 
 
 ■efiFects and property of every nature and kind of or belonging to 
 the said partnership, upon his filing a bond with the clerk of 
 this court in the penal sum of dollars, with sufficient 
 
 surety, to be approved by , one of the special masters of 
 
 this court, conditioned for the faithful performance of his duties 
 as such receiver ; and let plaintiff and defendant deliver over to 
 such receiver all the stock in trade, effects and property of every 
 nature and kind of or belonging to said partnership, in their 
 possession or subject to their control, and also all moneys, notes, 
 drafts, bills of exchange, checks, or other evidences of indebted- 
 ness due to said partnership, together with all books of account, 
 accounts, receipts, vouchers and papers of every nature belong- 
 ing or appertaining to said partnership business, {Add such 
 directions as are desired as to the management and winding up of 
 the business, the sale of the stock in trade, effects and good-will of 
 ihe partnership, and the payment of debts by the receiver.) 
 
 And it is further ordered, that said receiver, from time to 
 time, make report to the court of his doings in this behalf; and 
 that either of the parties to said cause, or said receiver, shall be 
 at liberty to apply to this court from time to time for such 
 further order or directions as may be necessary. 
 
 Prayer for receiver of real and personal estate of 
 testator, in behalf of heir-at-law, pending litigation 
 as to his title. 
 
 The complainant therefore prays — 
 
 1. That a proper person may be appointed to receive the rents 
 and profits of the real estate of the said (testator,) hereinbefore 
 described, until such time as the plaintiff's title shall be deter- 
 mined in the said action ; and also to receive the rents and profits 
 of the leasehold estates of the said (testator,) and to let and man- 
 age the same, and to receive, collect and get in the personal estate 
 of the said (testator,) pending the aforesaid action. 
 
 2. That all deeds, books and documents now in possession of 
 the defendants, and belonging or relating to the real and personal 
 estate of the said (testator,) may be delivered over to the receiver 
 ^0 appointed, or that the same may be deposited in this court, for 
 
540 FORMS OF PLEADINGS, 
 
 the purpose of enabling such person or persons to refer to and 
 use the same, as may be necessary, 
 
 3, That for the purpose aforesaid, all usual and necessary 
 directions may be given and inquiries directed. 
 
 Notice to tenant to attorn to receiver. 
 
 {Title and reference to the record.) 
 I, A. B., of {residence^ the receiver appointed in this cause 
 of the rents and profits of the real estate of C. D., the testator 
 in the bill in this cause named [or as the case may be,) hereby 
 give you notice and require you to attorn and become tenant to 
 me for (describe the property,) now occupied by you, and for such 
 other part or parts of the said real estate as is or are in your 
 occupation ; and to pay to me your rent in arrear, and growing 
 rent, for the said premises. 
 
 Dated this day of , eighteen hundred and 
 
 [Signature of receiver.) 
 To C. D., of (residence.) 
 
 Attornment by tenant to receiver. 
 
 (Title and reference to the record.) 
 I, C. D., of (residence,) attorn and become tenant to A. B,, 
 the receiver appointed in this cause, for (describe the property,} 
 as the same are now in my occupation, to hold the same at and 
 under the same rent, and subject to the same covenants and con- 
 ditions as I now hold the same. And I have this day paid to 
 the said A. B. the sum of dollars, for and on account and 
 
 in part payment of the said rent. 
 
 Dated this day of , eighteen hundred and 
 
 Witness — (Signature of tenant.) 
 
 E. F., of (residence.) 
 
 Receiver's affidavit to his account. 
 
 (Title of cause.) 
 State of , \ 
 
 county of , J * 
 
 I, A. B., the receiver heretofore appointed in this cause, being 
 duly sworn, say — that the foregoing account, containing 
 
INSOLVENT CORPORATIONS. 541 
 
 pages, and purporting to be my account of all the rents and 
 profits of the real estate, and of outstanding personal estate, of 
 {or as the case may be,) in this cause, from the day of 
 
 , eighteen hundred and , to the day of 
 
 , eighteen hundred and , both inclusive, contains 
 
 a true account of all and every sum and sums of money received 
 by me, or by any person or persons by my order, or to my 
 knowledge or belief, for my use, on account or in respect of the 
 said rents and profits accrued due on or before the day of 
 
 , eighteen hundred and , or on account or in 
 
 respect of the said personal estate, other than and except what 
 is included as received in my former account {or, " accounts ") 
 sworn to by me. And I do further state, that the several sums 
 of money mentioned in the foregoing account as having been 
 paid or allowed by me, were actually and truly so paid and 
 allowed for the several purposes respectively in said account 
 mentioned; and that said account is just and true in all and 
 every the items and particulars therein contained, according to 
 the best of my knowledge and belief. 
 
 (Signatwre.) 
 (Jurat.) 
 
 Order appointing receiver over railway on bill for 
 foreclosure by mortgage bondholder. 
 
 {Title of cosMse.) 
 Commencement in usual form, then, and now, on this day, the 
 court being sufficiently advised upon the motion of the com- 
 plainant for the appointment of a receiver heretofore submitted 
 to the court upon the bill, exhibits, amended bill, supplemental 
 bill, exhibits thereto and affidavits, filed both by the said com- 
 plainant and the said defendant, and the court having heard 
 argument thereon : It is {date,) ordered and decreed, that 
 be appointed, upon giving security in the sum of dol- 
 
 lars, receiver herein, to take possession of the money and assets, 
 real and personal, road-bed, road, iron, ties, lands, right of way, 
 mines, rolling stock, leases, franchises, and all other rights and 
 property whatsoever, of said railroad company, wherever 
 
 the same may be found, with power to manage, control and exer- 
 
542 FORMS OP PLEADINGS. 
 
 cise all the franchises whatsoever, of said railroad company, and, 
 if need be, under the direction of the court, to sell, transfer and 
 convey the whole or any part of the property of said railroad 
 company, and with power to prosecute, defend and continue all 
 suits brought by or against the said railroad company, whether 
 heretofore or hereafter commenced, and whether in the name of 
 said railroad company or otherwise ; to defend all suits brought 
 against him as such receiver, or affecting his receivership, and to 
 bring such suits in the name of said railroad company as he may 
 be advised by counsel to be necessary and proper in the discharge 
 of the duties of his office, and for acquiring, securing and pro- 
 tecting the assets, franchises, property and rights of the said 
 railroad company. 
 
 And it is further ordered, that the said defendants, the 
 railroad company, , , or whoever may have posses- 
 
 sion thereof, assign, transfer and deliver over to such receiver 
 on oath, under direction of , a master of this court, all 
 
 the property, real and personal, wheresoever found, and all con- 
 tracts for the purchase of land and all other equitable interests, 
 things in action, and other effects which belong to, or were held 
 in trust for, said defendants' railroad company, or in which it 
 had any beneficial interest, in the same condition they were at 
 the time of exhibiting the said bill of complaint in this cause, 
 except so far as necessarily changed in the proper management 
 of said road, or in which it now has any such interest j and that 
 said defendants deliver over, in like manner, all books, vouchers 
 and other evidence relating thereto. 
 
 And it is further ordered, that the said receiver have full 
 power and authority to inquire after, receive and take possession 
 of such property, debts, equitable interests, things in action and 
 other effects, and for that purpose to examine said defendants, 
 their officers, and such other persons as he may deem proper, on 
 oath, before the said master, from time to time, as he may deem 
 necessary. 
 
 And it is further ordered, that the said is hereby di- 
 
 rected and required as such receiver to keep a full and accurate 
 account of all his acts and doings as such receiver, and to report 
 the same to this court from time to time, as he may be hereafter 
 
INSOLVENT COEPOEATIONS. 543 
 
 directed by the order of this court, and in the meantime, and 
 until another order of this court, to run, operate and manage the 
 railroad of the said defendant railroad company, and to manage 
 and control all the said property and affairs of said defendant 
 railroad company ; and the said receiver is hereby empowered 
 and authorized to employ such counsel and attorneys as he may 
 deem necessary to manage in his behalf such suits and other 
 affairs as have arisen or may arise, and to advise such receiver in 
 relation to the performance of his duties therein. 
 
 And it is further ordered, adjudged and decreed, that said 
 receiver may use the moneys of the said defendant railroad 
 company for any and all the purposes stated in the foregoing 
 provisions. 
 
 Order limiting creditors. 
 
 {Title of cause.) 
 Upon opening this matter to the court by , of counsel 
 
 with the complainants jn the above cause, it is, on this, &c., 
 ordered that the creditors of the said do present to the 
 
 receiver appointed in this cause, and pro\;e before him, under 
 oath or affirmation, or otherwise, as the said receiver shall 
 direct, to the satisfaction of the said receiver, their several claims 
 and demands against the said corporation, within months 
 
 from the date of this order, or that they be excluded from the 
 benefit of such dividends as may thereafter he made and de- 
 clared by this court upon the proceeds of the effects of said cor- 
 poration; and for the better ascertaining the creditors of said 
 corporation, and what is due to them, respectively, the said 
 creditors are to be examined as the said receiver shall direct or 
 may deem necessary and expedient, and produce books and 
 papers before him, on oath or affirmation, (which oath or affir- 
 mation the said receiver is hereby authorized to administer,) as 
 well as to examine, under oath or .affirmation, all such witnesses 
 as shall be produced before him touching the demands of said 
 creditors. And it is further ordered that the said receiver do 
 cause proper advertisements to be published in at least two 
 newspapers published in this state, and such newspapers pub- 
 
544 F0BM8 OP PLEADINGS. 
 
 lished in the cities of New York and Philadelphia as he shall 
 deem proper and advisable, {or such other direction as the Charts 
 <iellor shall deem advisable,) for the creditors of said corporation 
 to come in before him and prove their claims and demands, as 
 in this order is directed ; and that such publication be made 
 within days from the date hereof, and be continued in 
 
 such papers as aforesaid for the space of months. And it 
 
 is further ordered, that said receiver also mail a notice of this 
 order to the post-ofQce address of each of the said creditors, if 
 the same can be ascertained. 
 
 Order to show cause why a claim should not be 
 
 admitted.(a) 
 
 ( Title of cause.) 
 
 Upon reading and filing the petition of and , 
 
 alleging that they have a claim of dollars, which they 
 
 have omitted to present to the receiver within the time pre- 
 scribed by the order of this court made in this cause on the 
 day of , eighteen hundred and , in conse- 
 
 quence of having failed to receive information of such order in 
 time to present such claim {or as the case may be :) 
 
 It is, on this day of , eighteen hundred and , 
 
 ordered, that the said , receiver, show cause on the 
 
 day of , instant, at o'clock in the noon, at 
 
 the State-house, in Trenton, {or, " at the chancery chambers, in 
 the city of ,") why the said petitioners should not be 
 
 allowed to present their claim to the said receiver, and receive 
 their proper dividend thereon; and that in the meantime the 
 said receiver retain in his hands enough money of the estate of 
 said defendant to pay to the said petitioners a dividend equal 
 to that paid or to be paid to the creditors who have duly pre- 
 sented their claims. 
 
 (o) It is usual in practice, on an expired, to order that the time for all 
 
 application of a creditor for leave to creditors generally to come in and 
 
 present his claim to the receiver, after prove their claims be enlarged, 
 the time limited for that purpose has 
 
INSOLVENT COBPOBATIONS. 545 
 
 Order absolute admitting claim of creditor, (a) 
 
 {Title of cause.) 
 It appearing to the court that the order made on the 
 day of , instant, that the receiver in this suit show cause^ 
 
 on, &c., why and should not be allowed to present 
 
 their claim to the said receiver, has been duly served upon the 
 said receiver, and no cause being shown or appearing to the con- 
 trary : It is, on this, &c., ordered that the said order to show 
 cause be made absolute, and that and be allowed 
 
 to present their claim mentioned in their petition, to the receiver, 
 notwithstanding the same waa not presented within the time 
 limited in the order of this court made on the day of 
 
 last ; and that such claim be disposed of by said receiver 
 in the same manner as if it had been presented within the time 
 limited by said order. 
 
 Order confirming receiver's sale of property of 
 insolvent corporation. 
 
 (Title of cause.) 
 This matter being opened to the court by , of counsel 
 
 with the said complainant, and it appearing by his report on file 
 in the office of the clerk of this court, that the receiver has made 
 sale of the real and personal property of the said defendant : It 
 is, on this day of , eighteen hundred and , 
 
 ordered, that the said sale be in all things confirmed ; and that 
 the said receiver do proceed to make conveyance of the said real 
 estate, and give possession of the said personal property accord- 
 ing to the conditions of the said sale; and that he hold the 
 moneys derived therefrom to abide the further order of this 
 court. 
 
 (a) If a reasonable excuse for de- ceiver, so as not to Interfere with pay- 
 laying to make an earlier claim is ments already made. The bias of the 
 shown, the creditor will be admitted court, on application to be let in ta 
 at any time before actual distribution, prove, is in favor of the creditor, 
 orevenafterpartialpayments, if there Orinnell v. Ins. Co., 1 C E. Or. 283. 
 be a surplus in the hands of the re- 
 
 2k 
 
546 FORMS OP PLEADINGS. 
 
 Receiver's deed of real estate to purchaser. 
 
 This indenture, made this day of , A. D. eighteen 
 
 hundred and , by and between A. B., a receiver appointed 
 
 by the Chancellor of the State of New Jersey, party of the first 
 part, and L. M., of , party of the second part, witnesseth : 
 
 That whereas in and by an order of the said court, made on 
 the day of , A. D. eighteen hundred and , in 
 
 a certain cause in said court pending, in which G. H. is com- 
 plainant, and the company, a corporation heretofore 
 organized and doing business under the laws of the State of 
 , is defendant, it was ordered (among other things,) 
 that the said A. B. be appointed receiver of the said 
 company, with the usual powers of receivers in equity, upon his 
 taking the oath required by law and giving bond in the penal 
 sum of dollars, with sufficient sureties, to be approved by 
 (the c<mrt, or otherwise, as the case may be,) and that upon the 
 approval and filing of such bond the said A. B. should be vested 
 with all his rights and powers as such receiver. 
 
 And whereas, on the day of , A. ». eighteen 
 
 hundred and , said receiver duly qualified as such, in 
 
 accordance with said order. 
 
 And whereas, by a certain other order of said court, made and 
 entered in the cause aforesaid, on the day of A. d. 
 
 eighteen hundred and , it was ordered that said receiver 
 
 should advertise the real estate of said company, being 
 
 the premises hereinafter described, for sale according to law, {or 
 recite order, as the case may be.) 
 
 And whereas, said receiver, in accordance with said last-named 
 order, did advertise (here redte the particulars of the advertise- 
 ment according to the facts.) 
 
 And whereas, the said party of the second part has bid for 
 fiaid real estate, being the premises hereinafter described, the 
 sum of dollars, which is the highest and best bid received 
 
 therefor. 
 
 And whereas, by another order of said court, made and entered 
 in the cause aforesaid, on the day of , A. D. eighteen 
 
 hundred and , it was ordered, that said bid be approved 
 
INSOLVENT COBPORATIONS. 547 
 
 -and accepted and the sale confirmed, and that said receiver 
 should sell, assign, transfer and set over unto said party of the 
 second part said real estate, being the premises hereinafter 
 described, for said sum of dollars, being the amount bid 
 
 therefor by the party of the second part as aforesaid : 
 
 Now, therefore, in consideration of the premises, and in obedi- 
 ence to said last-mentioned order, and for the purpose of giving 
 effect to the same, and in consideration of the sum of 
 dollars in hand, paid by the said party of the second part, to 
 the said party of the first part, the receipt whereof is hereby 
 acknowledged, the said party of the first part has granted, bar- 
 gained and sold, and by these presents does grant, bargain, sell 
 and convey unto the said party of the second part, his heirs and 
 assigns forever, all that certain lot, piece or parcel of land situate, 
 lying and being in , and known and described as follows, 
 
 to wit : {deseription of premises conveyed;) with all and singular 
 the hereditaments and appurtenances thereunto belonging, or in 
 :anywise appertaining, and all reversions, remainders, rents, issues 
 ^nd profits thereof, and all the estate, right, title, interest, claim 
 and demand whatsoever, either in law or in equity, of the party 
 of the first part as such receiver aforesaid, or of the said 
 oompany, of, in and to the above-described premises, with the 
 hereditaments and appurtenances : To have and hold the same 
 unto the said party of the second part, his heirs and assigns, to 
 tis and their only proper use and benefit forever. 
 
 In witness whereof, the party of the first part, as such receiver 
 ^aforesaid, has hereunto set his hand and seal the day and year 
 first above written. 
 
 [L.8.J 
 
 Signed, sealed and deliv- 
 ered in presence of — 
 
 {Add usual acknowledgment.) 
 
 Order of reference to state receiver's accounts, &c. 
 
 {Title of caiise.) 
 This matter being opened to the court by , of counsel 
 
 with the complainant, and it appearing that the receiver 
 
548 FOKMS OF PLEADINGS, 
 
 appointed in this cause is ready to make a dividend of a part of 
 the assets and funds in his hands among the creditors of {naming' 
 corporation ;) It is, on this, &c., on motion, &c., ordered, that it 
 be referred to , esquire, one of the special masters of this 
 
 court, to take and state an account of the several sums of money 
 which have come to the hands of the said receiver from the 
 debts due to said corporation, and from the sale of property 
 belonging to said corporation ; and also of the sums paid, laid 
 out and expended by the said receiver relating to or concerning 
 his duties and business as such receiver; and that the said 
 master report what upon such accounting remains in the hands 
 of said receiver for distribution, and he is to have power to 
 examine the said receiver upon oath or otherwise, and also other 
 witnesses, in relation to said account. And it is further ordered,, 
 that he report what sum should be allowed to said receiver for 
 his services in the management of his trust. And Jie is to make 
 his report touching the matters hereby referred to him with alt 
 convenient speed; and if in taking said account any special 
 matter shall arise, he is to be at liberty to state the same to the- 
 court. 
 
 Master's report on accounts of receiver.(a) 
 
 {Title of cause.) 
 In pursuance of an order of this court in the above-stated 
 cause, made on the day of , by which it was ordered 
 
 that it be referred, &c., {recite order,) I, , do respectfully 
 
 (a) It was held in New York, in taking a receiver's accounts. Brower- 
 conformity to the English practice, v. Brower, 2 Edw. Oh. 621 ; see Sheuidl 
 that a master's report upon a receiver's v. Jones, 2 S. & 8. 170 ; affirmed on 
 accounts need not be confirmed, and appeal, 3 Bmss. 522. In this state, in 
 cannot be excepted to. That where a Mechanics' Bank v. Bank of N. B., 2 ' 
 party thinks liimself aggrieved the Gr. Oh. 437, it was -said that the 
 proper application is to the court to English practice of taking exceptions- 
 review the account as to such parts as to the accounts before the master, 
 are objectionable, and then the court while the account is in his possession, 
 will enter into the consideration of and before he makes his report, had ■ 
 objections as to the general principles been generally acted on in New Jer- 
 on which the master has proceeded in sey. But leave was given to a.cred-^ 
 
INSOLVENT C0KP0RATI0N8. 549 
 
 report that, having first duly notified the receiver aforesaid, I 
 was attended, at , by the said receiver and by , 
 
 esquire, of counsel with the complainants, on the day 
 
 of , &c., and have considered of the matters referred to 
 
 me. I have taken the accounts directed by the said order to be 
 stated, and have stated the same in schedules hereunto annexed, 
 which I pray may be considered as part of this my report ; and 
 I find that there has been received by the said receiver for debts 
 due to {corporation,) and from the sale of property belonging to 
 said corporation, the sum of , as will appear by Schedule 
 
 A hereunto annexed, and that the said receiver has laid out and 
 expended for (state the character of the expenditures,) relating to 
 or concerning his business and duties as receiver for the creditors 
 and stockholders of said corporation, the sum of , as will 
 
 appear by Schedule B to this my report annexed, which sum, 
 being deducted from the aforesaid charges, leaves a balance of 
 remaining in the hands of the receiver, as will also 
 appear at the foot of Schedule B, I have also taken the deposi- 
 tion of said receiver as to the truth of the said accounts, which 
 are hereto annexed ; and in the taking of said accounts the said 
 receiver produced before me his book of entries for incidental 
 expenses and other charges, and also his receipts and other 
 vouchers, which are marked as Exhibits , whereby it 
 
 satisfactorily appears that the several payments hereinbefore 
 referred to are correct in sums and dates. And I further report, 
 that the sum of dollars should be allowed the said receiver 
 
 and retained by him out of the funds in his hands for his ser- 
 vices in the management of his trust. 
 
 Respectfully submitted this, &c. 
 
 {Signature of master.) 
 
 itor, for substantial reasons, to bring tions filed, and the report should be 
 
 his objections to the accounts of the confirmed: The cases sefem to go to 
 
 receiver before the court, and to ap- this extent — that while exceptions 
 
 pear by his own solicitor for that pur- may be filed to the master's report on 
 
 -pose. In the later case of Rkharck v. the receiver's accounts, such reports 
 
 Morris Canal Co., 3 Or. Ch. 431, how- do not come within the rule requiring 
 
 -ever, the Chancellor expressed the notice to be given of their confirma- 
 
 opinion that it is proper to review the tion. 
 "proceedings of the master upon excep- 
 
550 FOBMS OP PLEADINGS. 
 
 Exceptions to foregoing report. 
 
 {Title of cause.) 
 
 Exceptions taken by , one of the creditors of the said 
 
 , whose claim against said corporation has been allowed 
 
 by the receiver, to the report of , esquire, one of th& 
 
 special masters of this court, made in this cause, and dated, &c. 
 
 First exception. For that it appears in and by the said report, 
 and the schedule thereto annexed, that the said master, in taking 
 and stating the said accounts contained in said schedule, has stated 
 and allowed, as part of the expenditures and disbursements of 
 said receiver, the following sums, viz., {state items excepted to.) 
 
 Whereas, if said sums have been paid by said receiver, they 
 are excessive, and were paid without authority, and not in the 
 discharge of the duties of his office ; and said sums ought not 
 to have been paid by said receiver, nor allowed by said master,. 
 as part of his regular and proper disbursements and expenses. 
 
 Second exception. For that {state the exception.) 
 
 In all which respects the said exceptant excepts to the said 
 master's report, and respectfully appeals therefrom to the judg- 
 ment of this honorable court. 
 
 Appeal to Chancellor from determination of re- 
 
 ceiver.(a) 
 
 {Title of cause and address.) 
 
 The petition of respectfully shows, that your petitioner, 
 
 being a creditor of the said corporation to a large amount, did 
 
 (a) In case any sucli company, or the execution of the powers and 
 person or persons whatever, shall authority under this act, is hereby 
 think themselves or himself aggrieved vested with all the jurisdiction and 
 by the proceedings or determination power which it is lawful for the Ckjurt 
 of the said receiver or receivers, or of Chancery to exercise in suits de- 
 trustee or trustees, in the discharge of pending in that court, and may prO" 
 their duty, it shall be lawful for the ceed according to the rules, principles 
 party aggrieved to appeal to the and practice of that court, except. 
 Chancellor, who shall, in a summary when otherwise directed by this act ;. 
 way, hear and determine the matter and all cases brought before the Chan- 
 complained of, and make such order cellor, under this act, shall be con- 
 touching the same as shall be equit- sidered as depending in the Court of 
 able and just ; and the Chancellor, in Chancery, and the orders and deci- 
 
INSOLVENT COEPOEATIONS. 651 
 
 heretofore and within due time present his claims to the receiver 
 appointed in this cause, for allowance ; that the same were pre- 
 sented in due form, properly proved and substantiated by evi- 
 dence, and submitted to said receiver, and that said receiver 
 admitted and allowed a part of the same, but as to a certain 
 other part he refuses to allow the same. And your petitioner 
 conceives that he is aggrieved by said refusal of said receiver, 
 and insists that, &c. And your petitioner respectfully appeals 
 from said determination of said receiver refusing as aforesaid, 
 to this honorable court, and prays that the same may be reversed, 
 and such order made in the premises as shall be agreeable to 
 equity and good conscience. And your petitioner, &c. 
 
 Order confirming sale of claims due an insolvent 
 
 corporation. 
 
 {!n,tle of cause.) 
 
 It appearing to the court by the report, in writing, of , 
 
 receiver of the said the , that said receiver has, in pur- 
 
 suance of an order of the Chancellor dated the day of 
 
 , eighteen hundred and , sold in the manner in 
 
 said order mentioned and thereby directed, certain claims in said 
 order referred to ; and it appearing that notice was duly, and 
 according to said order, given of the time and place of such 
 sale, and the court approving of said sale : It is, on this 
 
 day of , eighteen hundred and , on motion 
 
 of , counsel of said receiver, ordered, that said sale be and 
 
 the same is hereby confirmed ; and that said receiver execute 
 and deliver to the purchaser a good and sufficient bill of sale 
 and transfer of said claims to pass the right, title and interest of 
 the said receiver and said corporation therein. 
 
 And it is further ordered, that said receiver pay out of any 
 moneys in his hands the expenses attending the said sale, and 
 to his solicitor the costs on the petition in this matter to be taxed. 
 
 sions carried into effect the same as By the answer of the receiver, the 
 
 in other causes of equity jurisdiction, issue will be formally made between 
 
 Bev., "Corporations," § 82. The ap- the parties. If the facts are contro- 
 
 pellant, in his petition of appeal, verted, proof can be taken in the 
 
 should state his case fully, and the ordinary way. Jackson v. Beceivers, 1 
 
 particulars in which he is aggrieved. Stock. 205. 
 
552 FORMS OP PLEADINGS. 
 
 Order for final dividend and discharge of receiver. 
 
 (Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 for the receiver, and it appearing that by an order of this court 
 made on the day of last past, whereby it was 
 
 referred to , one of the masters of this court, to state 
 
 and report the accounts of said receiver, and also what would be 
 a reasonable compensation to said receiver for his services as 
 such, said master has made his report, bearing date the 
 day of last past, whereby it appears that the total receipts 
 
 of the said receiver from all sources are dollars, and the 
 
 total disbursements are dollars ; and that the said receiver 
 
 should be allowed for his compensation as such the sum of 
 dollars. And it appearing that there was in the hands of 
 said receiver, at the date of his last report, the sum of 
 dollars, and that since that date he has received for interest on 
 moneys on deposit dollars, and on account of debts due 
 
 said company, dollars ; and that since the date of said last 
 
 report there has been paid by said receiver for taxes due and 
 now allowed, the sum of dollars, and to , for 
 
 master's fees, dollars, and for postagfe stamps, 
 
 dollars. And it further appearing that by an order of this 
 oourt made on the day of last a dividend of 
 
 per centum was ordered to be paid upon the whole amount 
 of claims of creditors of said defendant company; and that 
 in pursuance of said order said receiver has paid said divi- 
 dend, amounting in the aggregate to dollars. And it 
 further appearing that there is at the date of this order in the 
 hands of the receiver, in cash, the sum of dollars ; and 
 that there is on deposit with the clerk of this court the sum of 
 dollars, proceeds of the sale of certain real and personal 
 property sold by an order of this court, dated day of : 
 
 It is, on this day of , eighteen hundred and 
 
 , ordered, that said master's report above referred to be 
 
 and the same is hereby confirmed and approved; and it is 
 
 further ordered, that said receiver retain out of the moneys in 
 
 his hands the sum of dollars, in full for his services and 
 
INSOLVENT CORPORATIONS. 553 
 
 commissions as such receiver ; and that he pay to the solicitor 
 of the complainants their costs of this suit to be taxed. And it 
 is further ordered, that the sum of dollars be allowed and 
 
 paid to , the counsel of said receiver assigned by the court, 
 
 as compensation for his services ; and it is further ordered, that 
 the clerk of this court do pay to the said receiver the moneys 
 deposited in this court as aforesaid, together with all interest 
 accrued thereon, after deducting his lawful commissions. And 
 it appearing that the whole amount of creditors' claims on 
 which dividends are now to be made is dollars, and that 
 
 a final dividend of per centum should now be made on 
 
 that sum, it is further ordered, that said receiver^ after deducting 
 from the moneys in his hands, and the money by this order 
 directed to be paid over to him, the amounts herein directed to 
 be paid for complainants' costs, counsel fee and receiver's com- 
 missions, do pay to the creditors of said defendant company, 
 upon their claims before mentioned entitled to a dividend, a final 
 dividend of per centum, and that he give notice, by mail, 
 
 at least ten days before the day of payment, to every creditor 
 entitled to said dividend. 
 
 And it is furt^jer ordered, that he be discharged from his 
 office of receiver and from all liabilities on account thereof, 
 except so far forth as respects the payment of said dividend and 
 any money or assets that may hereafter come to his hands 
 belonging to the defendant company. 
 
 Petition by complainant for receiver's discharge. 
 
 {Title and address.) 
 
 The humble petition of , the complainant, showeth as 
 
 follows : 
 
 1. {Redte decree or order appointing receiver, svbject to his 
 giving security, and the certificate of such security having been 
 given. Or the decree or order directing a proper person to be 
 appointed receiver, and the subsequent order appointing such 
 person.) 
 
654 FOEMS OF PLEADINGS. 
 
 2. (StcUe to what time the receiver has passed his aeeovmts, and 
 ttceountedfor his balances, as thus:) Pursuant to the said decree, 
 &c., the said A. B. has passed his accounts as such receiver to 
 the day of , eighteen hundred and ; and has 
 paid, in the manner thereby directed, the balances from time to 
 time certified to be due from him on his said accounts. 
 
 3. {State why a receiver has ceased to be necessary, as thus :} 
 By an order dated the day of , eighteen hundred 
 and , C. D. and E. F. have been appointed trustees of 
 the real estate of the testator, G. H., and such estate has been 
 conveyed to and vested in them, upon the trusts of his will. 
 By reason thereof it is expedient that the ' appointment of a 
 receiver of the said estate should be discontinued. 
 
 Your petitioner therefore prays, that the said A. B. may be 
 discharged from being receiver as aforesaid ; and that he may 
 be ordered to pass his final account as such receiver, and pay the 
 balance certified to be due from him thereon into the bank, to 
 the credit of this cause (or as the case may be.) 
 
 Petition of receiver for his discharge. 
 
 {Title of cau:se and address.) 
 
 The petition of respectfully represents, that he is the 
 
 receiver duly appointed by this court in the above-stated cause ;. 
 that as such receiver he has fully accounted for the estate in his 
 hands as such ; that such accounts have been approved by this 
 court ; that he has made distribution of all of the estate of said 
 corporation in his hands as such receiver, pursuant to the order 
 of this court herein, as appears by the receipts hereto annexed ;. 
 that one of the creditors of said corporation, to wit, , has 
 
 neglected to apply for the dividend payable to him herein, 
 amounting to the sum of dollars, and the same still 
 
 remains in the possession of your petitioner. Wherefore, your 
 petitioner prays that he may be permitted to pay said sum of 
 dollars remaining in his hands as such receiver into this- 
 court ; and that he may thereupon be discharged from his said 
 trust, and that his bond be vacated. 
 
INSOLVENT COBPOBATIONS. 555- 
 
 Order discharging receiver. 
 
 {Title of cause.) 
 On reading and filing the petition of the receiver herein, 
 dated the day of instant, and the receipts annexed 
 
 thereto, whereby it appears that said receiver has duly accounted 
 as such, and has made distribution of the estate in his hands in 
 this cause pursuant to the order of this court, except the sum of 
 dollars, which still remains in his hands, and on motion 
 of , of counsel for the receiver herein : It is, on this 
 
 day of , eighteen hundred and , ordered, 
 
 that said receiver do pay the said sum of dollars remaining 
 
 in his hands, to the clerk of this court, to the credit of the above- 
 entitled cause ; and that upon making such payment he be there- 
 upon released and discharged from his trust as such receiver. 
 
 Form of receiver's certificate for loan of moneys^ 
 
 This is to certify, that there will become due on the 
 day of next, to , or order, from , as receiver 
 
 (but not personally) of , under appointment by the Court 
 
 of Chancery of the State of New Jersey, the sum of 
 dollars, with interest thereon from this date, at the rate of 
 per cent, per annum, for money this day loaned to the 
 said receiver. This certificate is issued under and by virtue of 
 the provisions of an order made on , eighteen hundred 
 
 and , by the Court of Chancery of New Jersey, in a cause 
 
 therein depending, wherein is complainant and is 
 
 defendant, and is one of a series of receiver's certificates author- 
 ized to be issued by such order, and by virtue thereof the said 
 certificates are made a first and paramount lien upon (1) all ther 
 tools, machinery and fixtures, and other property used for manu- 
 facturing purposes in the iron works and wood works of the 
 said company, located in the city of , in this state, the 
 
 same being particularly set forth and described in the receiver's^ 
 inventory, subject to the lien of a chattel mortgage thereon held 
 by , provided the same is valid, on which there is owing,, 
 
 as it is claimed, the sum of dollars of principal, and sub- 
 
 ject also to any and all valid unpaid claims for labor, which by 
 
556 FOBM8 OF PLEADINGS. 
 
 the statutes of New Jersey are made a first lien thereon ; (2) 
 upon all the materials unmanufactured and partly manufactured, 
 which were in said wood works and iron works belonging to 
 said corporation defendant, at the time of the appointment of 
 the said receiver, the same being also described in said inventory ; 
 (3) upon all the machines which shall be manufactured 
 
 by the said receiver, in pursuance of the provisions of the above- 
 mentioned order. 
 
 This certificate is payable at , New Jersey. 
 
 {Signatwre of receiver.) 
 
 ( To be endorsed on back of certificate :) 
 
 The following are the provisions of the order of the Court of 
 Chancery above referred to, relating to the issue of certificates of 
 indebtedness : (here insert provisions of order.) 
 
 Another form of receiver's certificate. 
 
 {Title of cause.) 
 
 I, , receiver of the railway company, appointed 
 
 by the Court of Chancery of New Jersey, hereby certify and 
 make known, that I have, as receiver as aforesaid, received from 
 the sum of dollars, to be used in the administration 
 
 of my trust as said receiver, under the direction of the court, and 
 which, as such receiver, I hereby promise to pay with interest 
 thereon, at the rate of per centum per annum, from the 
 
 date hereof, to said or order, out of the property of said 
 
 railway company, or the proceeds thereof, prior to any other debt 
 or demand of any kind or character whatsoever, whether such 
 debt or demand be secured or claimed so to be, by way of lien, 
 pledge, preference, mortgage or encumbrance ; such payment to 
 be made as aforesaid, at the close of said receivership, or at such 
 other time, antecedently thereto, as said Court of Chancery may 
 direct. Interest thereon shall cease in ten days after an order of 
 this court for the payment; and upon a notice being mailed 
 within the ten days, by the receiver, to the holder of the certifi- 
 cates, if the address of such holder be known. 
 
INSOLVENT COKPOBATIONS. 657 
 
 And I do hereby further certify, that this certificate is issued 
 under the authority of and pursuant to an order of the Court of 
 Chancery of New Jersey, dated , eighteen hundred and 
 
 , made in the causes aforesaid. 
 
 And I do further certify, that the amount named in this cer- 
 tificate is, by the terms of said order of said court, together with 
 other certificates for a like sum and of like tenor with 
 this, amounting in all to the sum of dollars, made a lien 
 
 upon, and a first charge against, the entire property of said 
 defendant corporation, or the proceeds thereof, prior to any other 
 lien, charge, preference, encumbrance or mortgage thereon or 
 thereof. [Signature of receiver.) 
 
 Another form of receiver's certificate. 
 
 Railroad Company, 
 
 eeceivek's certificate. 
 
 This is to certify, that the undersigned, and , as 
 
 receivers of the railroad company, and not individually, 
 
 are, for value received, indebted to bearer in the sum of 
 dollars, payable in gold coin of the United States of America of 
 the present standard, at the city of , one year from the 
 
 date hereof, or sooner, as hereinafter provided, with interest 
 thereon from the date hereof in like gold coin, at the rate of 
 per cent, per annum, payable semi-annually on the first 
 days of and in each year. This certificate is part 
 
 of an issue of certificates of like tenor and date, not exceeding 
 in the aggregate dollars, and numbered consecutively 
 
 from one upwards, authorized by the order of the (cotwi) in the 
 suit in equity pending in said court, wherein and 
 
 are complainants and the railroad company is defendant ; 
 
 which said order bears date (date,) and declared in and by said 
 order to be a debt of the undersigned as such receivers, incurred 
 for the benefit and protection of the property of said railroad' 
 company by the redemption of securities, and primarily secured 
 by the special pledge in trust of the securities, or the proceeds 
 thereof, redeemed by means of such certificates, as provided for 
 in said order; and, secondly, by a lien on the income of the 
 
558 POEMS OP PLKADINGS. 
 
 railroad and property of said railroad company, as pro- 
 
 vided in said order ; and, lastly, by a lien upon the corpus of 
 said railroad and property prior to the lien of the several mort- 
 gages or deeds of trust upon the railroad property of said com- 
 pany, save and except only as provided in said order. This 
 certificate may be paid before maturity under the direction of 
 said court. This certificate and all rights and liens thereunder 
 shall be transferable by delivery. 
 
 In witness whereof, the said undersigned receivers have, pur- 
 suant to the order of the court hereinbefore recited, hereunto set 
 .their hands and seals the day of , eighteen hundred 
 
 and . {Signatures of receivers.) 
 
 BILLS FOR EELIEF, &c. 
 
 Bill for relief against a judgment at law.(a) 
 
 (Address.) 
 
 Complaining, showeth unto your Honor your orator, , 
 of the county of , and State of New Jersey, that on or 
 
 (a) The Court of Chancery exer- The court will relieve against the 
 
 cises a jurisdiction of looking into the fraudulent use of a bona fide jndg- 
 
 judgments of other courts and reliev- ment, against awards fraudulently 
 
 ing against them for fraud. Tomkins obtained, against verdicts and pro- 
 
 V. Tomkins, 3 Stock. 512. bates of wills, and even against pri- 
 
 Where the judgment has been pro- vate actSe of legislative bodies ob- 
 
 cured by artifice or concealment on tained by fraud. Ihid. 
 
 the part of the plaintifiF, and the The usual ground upon which a 
 
 court where the fraud has been per- court of equity refuses to interfere 
 
 petrated is not able to give relief, with a judgment is because the de- 
 
 i;hen this court will take hold of the fendant should have protected him- 
 
 ^arty who has committed the fraud, self in the court where the judgment 
 
 and prevent his using his judgment is obtained. The objection can have 
 
 to the injury of his adversary; or, if no weight when the judgment is in 
 
 he has enforced his judgment, the attachment and the proceedings have 
 
 court will hold him a trustee, and been wholly ex parte. Ibid. 
 
 compel him to account for the fruits But even in the case where a judg- 
 
 of his iniquity. Ibid. ment has been obtained in the absence 
 
 The court will decree a party to of a party, and upon a hearing entirely 
 
 cancel a judgment obtained against ex parte, this court will not try the 
 
 conscience. Ibid. merits of the case over again, where 
 
BHiLS FOR RELIEF, ETC. 
 
 569 
 
 about the day of , eighteen hundred and , 
 
 your orator's father, , of the township of , county 
 
 of and State of New Jersey, departed this life seized in 
 
 fee of a certain farm containing about acres, situate in the 
 
 township of , in the county and State aforesaid. 
 
 That the said , previous to his death, made, published 
 
 and declared his last will and testament, duly executed, to pass 
 real estate, then being likewise seized of the farm aforesaid on 
 which he lived, which said last will was as aforesaid published, 
 and bore date on the day of , in the year aforesaid, 
 
 and was never by him in anywise revoked or altered, and which 
 was after his decease duly proven before the surrogate of said 
 county of , on or about the day of , eighteen 
 
 hundred and , and probate thereof was then duly granted 
 
 unto and , the executors therein named, as by the 
 
 they have been properly submitted 
 to the tribunal established by law to 
 hear and adjudicate upon them. Ibid. 
 
 In the case of attachment where 
 the plaintiff imposes a fictitious claim 
 upon the auditors, or a claim which 
 has been satisfied, if he conceals from 
 -the auditors any fact which tends to 
 show that his claim is not a valid 
 one, he commits a fraud against which 
 this court will grant relief, either by 
 enjoining the enforcement of the 
 claim or ordering such restitution as 
 the circumstances of the case will 
 justify. Ibid. 
 
 The fact that a party has set up 
 in a suit at law matters which are 
 grounds of equitable relief only, will 
 be no bar to his right to relief in a 
 court of equity. Hughes v. Nebon, 
 2 Stew. Eg. 547. 
 
 Where a party is complainant in 
 equity and defendant (upon the same 
 matter) at law, he cannot be com- 
 pelled to make his election — it is not 
 as if he were complainant in both 
 courts. Soits v. Cozine, 2 Edw. Oh. 
 583. See page 117, ante. 
 
 The Court of Chancery may, upon 
 a sufficient case being made, under an 
 original bill, give relief against the 
 judgment of any judicial tribunal. 
 Jewett V. Dringer, 4 Stew. Eg. 586. 
 
 Objections which relate to the regu- 
 larity of a judgment at law, or to the 
 validity of the instrument upon which 
 it is founded, are not relievable in 
 equity. Mech. Nat. Bank v. Burnet 
 Mfg. Co., 6 Stew. Eg. 486. See as to 
 relief from a judgment founded in 
 fraud. Doughty v. Doughty, 12 C E. 
 Gr. 315. 
 
 The mere non-residence of a plain- 
 tiff in a judgment at law, and the 
 consequent inability of the defendant 
 therein to serve process on him in 
 other proceedings at law, is, of itself, 
 no ground for staying the enforcement 
 of such judgment. Jackson v. BeU, 
 4 Stew. Eg. 514 ; S. C, 5 Stew. Eq. 411. 
 
 Equity only interferes with an action 
 at law where there are equitable cir- 
 cumstances which render it unjust as 
 against the defendant at law that the 
 suit should proceed. Long Dock Co. 
 V. Bmtley, 10 Stew. Eq. 15. 
 
660 FORMS OP PLEADINGS. 
 
 letters of probate so granted by said surrogate and the said last 
 ■will and testament of record in the office of said surrogate will 
 more fully and at large appear, reference being thereunto had if 
 it be needful so to do. 
 
 And your orator further showeth unto your Honor, that the 
 said did, in and by his said last will and testament, devise 
 
 as follows, among other things, in substance, to wit, {insert pro- 
 visions of will,) as in and by said last will, to which your orator 
 prays leave to refer if it be necessary so to do, will more fully 
 and at large appear. 
 
 And your orator further showeth, that after the decease of the 
 said dower was duly assigned unto your orator's mother, 
 
 widow of the said , of and in the said real estate of which 
 
 he died seized as aforesaid, and that the said , your 
 
 orator's said mother, had, held, possessed and enjoyed as of her 
 said dower the lands and premises following, that is to say : 
 {here describe premises.) 
 
 And your orator further showeth to your Honor, that the said 
 , mother of your orator and widow of the said , 
 
 departed this life on or about the day of , eighteen 
 
 hundred and , and that on or about the day of 
 
 , eighteen hundred and , she made and published 
 
 a certain will, which was after her decease, and on the 
 day of , eighteen hundred and , proven by , 
 
 one of the executors therein named, by the oath of , one of 
 
 the two subscribing witnesses thereto, and letters of probate 
 were thereupon granted by , then surrogate of 
 
 county, before whom the said will was proven, unto the said 
 , as executor thereof, as by the said will and letters of 
 probate on record in the office of the surrogate of county, 
 
 will more fully and at large appear. 
 
 And your orator further showeth to your Honor, that after 
 the decease of your orator's said father, and during the lifetime 
 of your orator's said mother, your orator had become unfortur 
 nate in his worldly affairs ; that your orator had a family con- 
 sisting of children, whom he was unable, through sickness 
 and divers misfortunes, adequately to support ; that your orator, 
 with the hope of doing better in worldly matters, removed from 
 
561 
 
 ihe State of New Jersey and resided at different times in different 
 western states of the United States ; and that your orator, at the 
 -time aforesaid of proving said will, and until on or about the 
 day of , eighteen hundred and , riesided out 
 
 of the State of New Jersey. 
 
 And your orator further showeth, that among your orator's 
 said children was one, a girl named , whom your 
 
 orator's said mother in her declining years, partly, as your orator 
 •believes, out of affection and kindness to your orator, her son, 
 and in order to help him in the suppo rt of his family, and partly 
 from affection for her and a desire that she should have one of 
 her granddaughters with her to cheer and comfort her old age, 
 invited and took to live with her ; that the child was so taken 
 by her grandmother while living with her mother in this state, 
 your orator being at the time away and knowing nothing about 
 it, at the age of about years ; that the said , your 
 
 orator's mother, adopted the said child as her daughter, fed, 
 clothed, supported and, to some degree, educated her, whilst the 
 said girl on her part served her said grandmother dutifully, and 
 affectionately attended to her wants, and was unto her as a 
 daughter; and your orator charges that neither your orator's 
 .«aid mother, nor his said daughter, nor your orator, ever deemed 
 or treated the relation subsisting between the said grandmother 
 and her said granddaughter as one calling for pecuniary remuner- 
 ation on either side, nor was there ever any bargain or contract 
 between your orator and his mother, either express or implied, 
 •by which any debt or demand whatever was created or existed 
 in favor of your orator's said mother against your orator, for the 
 board or nurture, support or education, of your orator's said 
 daughter. 
 
 And your orator further showeth unto your Honor, that your 
 orator's said brother, , of the county of , the executor 
 
 named as aforesaid in the said will of , was well acquainted 
 
 with the terms and relation on which your orator's daughter 
 aforesaid lived with her grandmother; that he knew of the 
 affection and kindness which subsisted between them, and could 
 not have supposed or believed, and your orator charges that he 
 
 2l 
 
662 FOBMS OF PLEADINGS. 
 
 did not suppose or believe, that his said mother ever thought or 
 expected that a pecuniary debt had been incurred by your orator 
 to his said mother by reason of the kindness, affection and good- 
 will she had exhibited to your orator's daughter in manner afore- 
 said. 
 
 And your orator further showeth to your Honor, that two 
 days after receiving probate of the will of , deceased, as 
 
 her executor, the said , desirous to defraud your orator 
 
 out of the little heritage belonging to him, and by abuse of the 
 process of the courts of this state to acquire a title to your orator's 
 share of the premises, part of his father's estate, of which your 
 orator's mother had been endowed as aforesaid, made his affidavit 
 before , then one of the justices of the peace of the county 
 
 of , that he was the executor of the last will and testa- 
 
 ment of , deceased ; that your orator, , was indebted 
 
 to the estate of said in the sum of dollars, and that 
 
 your orator was not, to ,the knowledge or belief of the said 
 , then resident in the State of New Jersey, and having 
 caused the same to be affiled in the office of the clerk of the 
 Circuit Court of the county of , procured a writ of foreign 
 
 attachment in an action of trespass on the case upon promises 
 to be issued from said Circuit Court in favor of him, the said 
 , as executor of said , against the said your orator 
 
 as a non-resident debtor, and thereupon caused the sheriff of the 
 county of to attach the share of your orator in the said 
 
 above-described lands and premises occupied by his said mother 
 as of her said dower, being an undivided fifth part thereof,, 
 under and by virtue of the said writ of attachment ; and the 
 said sheriff of said county did so attach the same accordingly, to 
 wit, on the day of , in the year eighteen hundred 
 
 and , and in obedience to the said writ, return the same, 
 
 with an inventory and appraisement annexed, unto the said 
 court, at the term of , eighteen hundred and , said 
 
 property so attached being appraised at dollars. 
 
 And your orator further showeth, that he was then residing 
 in the state of , as his brother, the said , then well 
 
 knew J that he heard nothing whatever of the issuing of the said 
 attachment, or of the proceedings of the action thereon founded^ 
 
BILLS FOE BELIEF, ETC. 563 
 
 till long after the same was concluded, to wit, until on or about 
 the day of , eighteen hundred and ; that after 
 
 his return he was never informed of the matter by any of hi» 
 brothers, and fully supposed himself the owner of said property 
 until nearly a year after .his return; that it appears by the 
 records of said court, that said action proceeded at the term of 
 , eighteen hundred and , to judgment on the report 
 
 of auditors by the said court appointed ; that your orator 
 
 is informed and believes, and it so appears by the written claim 
 filed in the cause, that the report made in said cause by said 
 auditors was founded on a claim made by said , as executor 
 
 as aforesaid, against your orator for the maintenance by her 
 grandmother aforesaid of your orator's daughter, the said , 
 
 from , eighteen hundred and , to , eighteen hun- 
 
 dred and ; that the said claim does not in anywise allege 
 
 that said maintenance was furnished by request of your orator -^ 
 that your orator has no knowledge^ upon what testimony said 
 report was founded, but your orator states that the said auditors 
 reported that there was due to the said , as such executor, 
 
 from your orator, and the said Circuit Court, at their said 
 term, thereupon gave judgment. that he should recover as such 
 executor against your orator the sum of dollars and 
 
 cents, besides dollars and cents costs, and for proof 
 
 of the facts aforesaid your orator prays leave to refer, if it be 
 needful so to do, unto the record of said judgment in attachment 
 still remaining in the said Circuit Court, or a duly certified copy" 
 thereof and the papers therein filed. 
 
 And your orator further showeth, that the said , after 
 
 the recovery of said judgment in attachment, caused and pro- 
 cured the auditors appointed in said suit to expose for sale at 
 public vendue the interest and estate aforesaid of your orator in 
 the lands and premises aforesaid ; that the same was sold at the 
 public house of , in , on the day of , 
 
 eighteen hundred and , unto the said , for the sum 
 
 of dollars, and a deed therefor, on the day of the 
 
 same month of , sealed and delivered by the said auditors 
 
 appointed in said suit unto said , conveying unto him, his 
 
564 FOBM8 OP PLEADINGS. 
 
 heirs and assigns, your orator's said interest in said premises, as 
 in and by said deed, recorded in the office of the clerk of 
 county, in Liber of Deeds, pages , will fully appear. 
 
 And further, your orator shows unto your Honor, that 
 immediately after the execution and delivery of said deed to 
 him, the said , and on or about the day of , in 
 
 the year last aforesaid, the said and , his wife, jointly 
 
 with and , his wife, late , , and , his 
 
 wife, late , and , his wife, and and , 
 
 his wife, your orator's brothers, brothers-in-law and sisters, 
 stating themselves therein to be children and heirs-at-law and 
 devisees of , deceased, your orator's father, did, by deed 
 
 under their hands and seals duly made and executed, bearing 
 date the said day of , in the year last aforesaid, with 
 
 full covenants of warranty, bargain, sell, give, grant and convey 
 unto one , of the city of , county of and 
 
 State of , the said tract of land and premises, containing, 
 
 as therein expressed, acres and of an acre of land, 
 
 lor the consideration therein expressed to be paid by the said 
 
 to them, of dollars, under which the said 
 
 took possession of said premises, and he, his heirs or assigns, 
 have hitherto enjoyed and do now use, occupy and enjoy the 
 same. 
 
 And your orator shows and charges, that by means of the 
 premises your orator has been greatly defrauded and injured by 
 the said ; that the whole transaction was a scheme for 
 
 acquiring and making title to said land, and defrauding your 
 orator of his rightful share therein, concocted and carried out by 
 the said : that your orator is informed, believes and 
 
 charges, that the sale of said premises as aforesaid was deter- 
 mined upon previous to the issuing of said attachment, if not 
 actually effected and agreed upon between the said and 
 
 the purchaser; that your orator is informed and charges that 
 dollars more than what is stated in said deed was paid 
 for said land to the said , making in all dollars as 
 
 the consideration thereof ; that the said land was sold, which- 
 ever price was realized therefor, for an inadequate price less than 
 its value ; that your orator considers his share in said land as 
 
BILLS FOE EELIEP, ETC. 565 
 
 worth dollars, and that by reason of the fraud so prac- 
 
 ticed as aforesaid your orator hath been reduced to great poverty 
 and distress, and is now an inmate of the alms-house of the city 
 of 
 
 And your orator shows that he is unable to adduce any proof 
 at this time sufficient to charge the said purchaser of said land 
 with knowledge of the fraud practiced as aforesaid in regard to 
 said land, and he insists and charges that the said ought, 
 
 by the rules of this court and according to equity and good con- 
 science, to be holden and decreed to have become and to be 
 chargeable as trustee for your orator of a sum of money equal 
 to the value of your orator's share in the said land and premises. 
 
 And your orator further showeth to your Honor, that he hath 
 frequently and in a friendly manner applied to the said , 
 
 represented to him the necessities of your orator and the fraud 
 as aforesaid practiced upon him, and demanded of him to pay to 
 your orator a sum of money equal to the value of your orator's 
 interest in said land, or at least equal to the share of the pur- 
 chase-money by him received to which your orator in fairness 
 would be entitled, and to cancel and make void the said judg- 
 ment ; and your orator well hoped that the said would 
 have complied with such reasonable request of your orator ; but 
 now, so it is, may it please your Honor, that the said 
 refuses to comply with such reasonable requests of your orator, • 
 or to pay him any money whatsoever on account of the prem- 
 ises, but makes divers false and fraudulent pretences in regard 
 to his conduct in the premises, all of which are contrary to 
 equity and good conscience, and tend to the manifest wrong and 
 injury of your orator. 
 
 In tender consideration whereof, and forasmuch as your orator 
 hath no adequate remedy in the premises according to the strict 
 rules of the common law, and can only have relief in a court of 
 equity, where matters of this sort are properly cognizable and 
 relievable : To the end, therefore, that the said may, upon 
 
 corporal oath, full, true, direct and perfect answer make to 
 all and singular theonatters hereinbefore stated and charged as 
 fully and particularly as if the same were hereinafter repeated 
 and thereto distinctly interrogated, and that not only as to 
 
566 FORMS OF PLEADINGS. 
 
 the best of several and respective knowledge and remem- 
 
 brance, but also as to the best of several and respective in- 
 
 formation, hearsay and belief, and that the said may be 
 
 decreed to have sued forth the said attachment and obtained the 
 said judgment therein fraudulently as against your orator, and 
 that an account be taken of the value of your orator's interest as 
 heir of his said father in the said land and premises so conveyed 
 as aforesaid to the said , and that said may be 
 
 declared to have been trustee of the said estate of your orator in 
 said lands for the use of your orator and be decreed as such 
 trustee to account to your orator for such value thereof, or at 
 least for such proportion of said purchase- money paid by said 
 therefor as your orator, if he had joined in said deed, 
 would have been entitled to, and that your orator may have 
 such other and further relief in the premises as to your Honor 
 shall seem meet and agreeable to equity and good conscience. 
 
 May it please your Honor, the premises considered, to grant 
 unto your orator the state's writ of subpoena, &c. 
 
 And, your orator will ever pray, &o. 
 
 {Signature of solicitor and counsel^ 
 
 Bill praying the cancellation of a bond and mort- 
 gage and for injunction, &c.(a) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, showeth unto your Honor your orator, , 
 
 of the city of , in the county of and State of , 
 
 that on or about the day of , in the year of our 
 
 Lord eighteen hundred and , your orator was seized of an 
 
 estate of inheritance in fee simple of and in the following- de- 
 scribed lot of land and premises, situate in the township of 
 
 (a) The court has the power to fence at law against the writing, 
 
 order a bond or other instrument to Cornish v. Bryan, 2 Stock. 146 ; il/on- 
 
 be delivered up to be canceled and mouth Ins. Co. v. Hutchinson, 6 C. E. 
 
 the court may properly exercise the Or. 107. An assignee of a bond takes 
 
 power, although the grounds upon it subject to all the equities which 
 
 which the jurisdiction of the court is existed at the time of the assignment 
 
 invoked may constitute a valid de- between the obligor and obligee. Ibid. 
 
BILLS FOR EELIEP, ETC. 567 
 
 , in the county of and State of New Jersey, 
 
 f)Ounded as follows, to wit, {describe lands and make proffert of 
 -deed,) granted and conveyed to the said (your orator), as 
 
 in and by the said deed of conveyance, duly executed, acknowl- 
 edged and recorded, and now in the custody and possession of 
 your orator, and ready to be produced and proven when and 
 where this honorable court may direct, will, upon reference being 
 thereunto had, more fully and at large appear, and to which, 
 when produced, your orator for greater certainty prays leave to 
 refer, if it shall be necessary so to do. 
 
 And your orator further shows unto your Honor, that on or 
 about the said day of , in the year of our Lord last 
 
 aforesaid, one , then of the city of , in the State of 
 
 aforesaid, was engaged in the business of vending tickets 
 entitling, or purporting to entitle, the holders thereof to carriage, 
 passage and conveyance from the city of , in the State of 
 
 , to the city of , in the State of , represent- 
 
 ing and holding himself out to be the duly accredited and 
 authorized agent of the owners and proprietors of certain lines 
 of steamships and other conveyances for the conveyance of pas- 
 sengers between the cities of and aforesaid. 
 
 And your orator further showeth unto your Honor, that oh 
 the same day and year last aforesaid, your orator was desirous 
 to secure a passage upon one of the lines of steamships and other 
 conveyances from the city of to the city of afore- 
 
 said, and fully intended and was desirous of going in person 
 from said city of to the said city of . ; and to that 
 
 end and with that intention your orator applied to the said 
 , for the purpose of purchasing a ticket of passage from 
 the said , to entitle your orator, as the holder thereof, to 
 
 -carriage, passage and conveyance, by one of the lines of steam- 
 ships and other conveyances, from the city of to the city 
 of aforesaid, by one of the lines whereof said claimed 
 to be an agent. 
 
 And your orator further shows unto your Honor, that the 
 -said demanded of your orator as the price, purchase- 
 
 money and consideration of the ticket of passage aforesaid in the 
 lines aforesaid, for your orator's proposed conveyance or passage 
 
568 FORMS OP PLEADINGS. 
 
 as aforesaid, the sum of dollars; and that your orator,, 
 
 being unprovided with money or cash to that amount, proposed 
 to the said to execute and deliver to him, the said , 
 
 a bond of your orator, conditioned for the payment of 
 dollars, to be secured by a mortgage from your orator and wife 
 to the said upon the premises aforesaid. 
 
 And your orator further showeth unto your Honor, that on 
 the same day and year last aforesaid, the said refused to 
 
 accept from your orator the bond and mortgage to secure the 
 sum aforesaid of dollars, but proposed to your orator that 
 
 he, the said , would sell to your orator a ticket of passage,, 
 
 for the carriage, passage and conveyance of your orator by the 
 lines of steamships and other conveyances aforesaid from the city 
 of to the city of aforesaid, at the price and of the 
 
 value of dollars, and to give to your orator the sum of 
 
 dollars in money, and an acknowledgment of the receipt 
 by him, the said , from your orator of the further sum of 
 
 dollars, and that your orator should execute and deliver 
 in turn to the said your orator's bond in the penal sum of 
 
 dollars, conditioned for the payment of dollars,, 
 
 viz., dollars in one year from the date thereof, with inter- 
 
 est, and dollars in two years from the date thereof, with 
 
 the interest; and an indenture of mortgage from your orator 
 and his wife upon the lot of land and premises hereinbefore set 
 forth and described, to him, the said , to secure the pay- 
 
 ment of the said sum of money mentioned in the condition of 
 the said bond ; and the said represented to your orator, 
 
 that in case your orator executed and delivered to him, the said 
 
 , the bond and mortgage aforesaid, that the said lot of 
 land and premises would only be encumbered for the amount of 
 
 dollars by reason of the mortgage aforesaid, and that 
 your orator would only be held and bound for the payment of 
 
 dollars by reason of the bond aforesaid, and that the 
 receipt of him, the said , to your orator would be a suffi- 
 
 cient receipt and discharge for the remaining sum of dol- 
 
 lars ; and that he, the said , wished the Nominal amount 
 
 of said bond and mortgage to be dollars, for the conveni- 
 
569- 
 
 ence of his business arrangetuents, and would not furnish your 
 orator said passage ticket on any other conditions. 
 
 And your orator further shows unto your Honor, that, con- 
 fiding in the representations of the said , and fully be- 
 lieving them to be true, your orator did, on the said day 
 of , in the year of our Lord eighteen hundred and , 
 execute and deliver unto the said his certain bond or 
 obligation, bearing date the day and year last aforesaid, in th& 
 penal sum of dollars, conditioned for the payment to the 
 said , his certain attorney, executors, administrators or 
 assigns, by your orator, his heirs, executors or administrators, of 
 the sum of dollars, dollars in one year from the 
 date thereof and dollars in two years from the date 
 thereof, together with lawful interest ; and to secure the pay- 
 ment of the principal sum of money mentioned in the condition 
 of said bond, together with the lawful interest, according to the 
 condition of said bond, your orator did, together with , 
 his wife, execute and deliver to the said , his heirs and 
 assigns, a certain deed or indenture of mortgage upon and cov- 
 ering the lot of land and premises hereinbefore described ; and 
 your orator received, from the said , on the same day and 
 year last aforesaid, as the sole and only consideration for the 
 execution and delivery of said bond and mortgage, the sum of 
 
 dollars in money, together with a receipt signed by the 
 said for the sum of dollars, and a memorandum in 
 
 writing that he would furnish to your orator in the city of 
 a passage ticket for the passage, carriage and conveyance of your 
 orator from the city of to the city of > by a steam- 
 
 ship to sail or steam from the city of aforesaid on thfr 
 
 day of , in the year of our Lord eighteen hundred 
 
 and 
 
 And your orator further shows unto your Honor, that the 
 said indenture of mortgage was afterwards, to wit, on the 
 day of , in the year of our Lord eighteen hundred and 
 
 , received and recorded in the office of the clerk of the 
 county of , oy , then clerk of said county of 
 
 And your orator further shows unto your Honor, that in 
 pursuance of the arrangement made between your orator and the^ 
 
^70 F0KM8 OF PLBAMNOS. 
 
 said , on the said day of , in the year last 
 
 aforesaid, your orator did proceed to the city of prior to 
 
 the said day of aforesaid, the day on which your 
 
 orator was to take passage by the steamship aforesaid, in the full 
 faith, confidence and belief that the said would provide 
 
 and furnish to your orator, in accordance with his agreement 
 aforesaid, a passage ticket, for the carriage, passage and convey- 
 ance of your orator as aforesaid, from the city of to the 
 <jity of ; but, although your orator remained in the city 
 of long after the said day of aforesaid, and 
 made frequent demand upon the said to be furnished with 
 the passage ticket to entitle your orator to the passage, carriage 
 and conveyance aforesaid, yet neither the said , nor any 
 other person or persons in his behalf, at that time or before or 
 since that time, would furnish, provide or deliver to your orator 
 such passage ticket as aforesaid, but wholly failed, neglected and 
 refused so to do. 
 
 And your orator further showeth unto your Honor, that 
 afterward, to wit, on the day of , in the year of our 
 
 Lord eighteen hundred and , your orator called upon the 
 
 said , and your orator paid back to the said , at the 
 
 said request, the said sum of dollars, so as aforesaid 
 
 received from the said by your orator, and upon like 
 
 request your orator surrendered and delivered up to the said 
 the memorandum agreeing, on the part of said , to 
 
 furnish your orator the passage ticket aforesaid in manner afore- 
 said, as hereinbefore in that behalf set forth, and upon like 
 request your orator surrendered and delivered up to said 
 the receipt signed by the said and by him theretofore de- 
 
 livered to your orator, which said money, memorandum and 
 receipt constituted and were the sole, only and whole consider- 
 ation which your orator had received from the said , or 
 any other person, for the bond and mortgage so as aforesaid 
 executed and delivered by your orator to the said . And 
 the said received from your orator the said sum of 
 dollars and the memorandum and receipt aforesaid, and your 
 orator demanded of the said that he should surrender and 
 
BILLS FOB RELIEF, ETC. 571 
 
 deliver up to your orator the bond and^ortgage so as aforesaid 
 executed and delivered from your orator to the said , and 
 
 that he would cancel and make void the same. 
 
 And your orator further shows unto your Honor, that the 
 said agreed and consented with and to your orator that 
 
 he, the said , would surrender and deliver up to your 
 
 orator, and would cancel and make void the said bond and 
 mortgage so as aforesaid executed and delivered to him by your 
 orator, but represented and alleged to your orator that the said 
 bond and mortgage were not then conveniently at hand or in the 
 actual possession of him, the said ; and he, the said , 
 
 thereupon executed and delivered to your orator, and persuaded 
 and prevailed on your orator to accept as temporary security for 
 the surrender and delivery of said bond and mortgage, a bond 
 executed by the said to your orator in the penal sum of 
 
 dollars, conditioned for the payment of the installments 
 and interest mentioned in the condition of the aforesaid bond 
 executed by your orator, and acknowledging the receipt of the 
 money thereby secured to said , and covenanting to make 
 
 good all payments on account thereof and to take up and release 
 to your orator the said bond and mortgage as soon as possible ; 
 and at the same time the said delivered to your orator a 
 
 receipt for said sum of dollars, and an undertaking to pay 
 
 off said installments on your orator's said bond as they came 
 due, as in and by said bond and receipt when produced will 
 appear ; and your orator, reposing confidence in the allegation 
 and representation . of the said that he would speedily 
 
 surrender to your orator your orator's said bond and mortgage, 
 accepted the said bond and receipt from said as tempo- 
 
 rary security for the surrender of your orator's said bond and 
 mortgage. 
 
 And your orator further showeth unto your Honor, that in 
 the said month of , in the year of our Lord eighteen hun- 
 
 dred and , and between the day of said month of 
 
 , the daygof the date of the said bond and mortgage, and 
 the day of said month of , the day of the date of 
 
 the registry thereof, as your orator has been informed and verily 
 believes to be true, the said assigned and transferred the 
 
572 FOKM8 OF PLEADINGS. 
 
 said bond and mortgage so as aforesaid executed and delivered 
 by your orator to the said to one , of the city of 
 
 , in the county of and State of New Jersey, who 
 
 now holds, and claims to be the owner and possessor of the 
 same, and entitled, as such assignee, to all the moneys due and 
 to grow due thereon, and to all the benefits to be derived there- 
 from; but whether said assignment and transfer were bonafidey 
 or whether any and what consideration passed therefor, your 
 orator is unable to state, and therefore leaves the said to 
 
 make such statement and proof thereof as this honorable court 
 may direct. 
 
 And your orator further shows unto your Honor, that he has 
 lately discovered that the said never was a duly authorized 
 
 and accredited agent of any lines of steamships or other convey- 
 ances for the carriage of passengers from the city of to the 
 city of , and that he had no authority to sell or dispose of 
 passage tickets by any such lines or conveyances, from the 
 owners thereof or from any other person authorized therefor ;. 
 and that by artifice and fraud, and by the false and fraudulent 
 representations of the said , your orator was induced to 
 execute and deliver unto the said the bond and mortgage 
 aforesaid, and that your orator has received from said 
 no consideration therefor. 
 
 And your orator further showeth unto your Honor, that hav- 
 ing discovered such fraud and imposition as aforesaid, your 
 orator, by himself and his agents, has frequently and in a 
 friendly manner applied to the said and , and 
 
 requested them to deliver up to your orator the said bond and 
 mortgage so as aforesaid executed and delivered by your orator 
 to the said , that the same might be canceled and made 
 
 void. 
 
 And your orator further showeth unto your Honor, that your 
 orator was, at the time of the transactions hereinbefore set forth ^ 
 unskilled in and unacquainted with the forms of ordinary busi- 
 ness, and was especially ignorant of the effect and nature of the 
 bond and mortgage so as aforesaid executed and delivered to the 
 said by your orator ; and that your orator verily believed 
 
 that the said bond and mortgage would constitute a legal claim 
 
BILLS FOB BELIEE, ETC. 573 
 
 and demand upon your orator and a legal encumbrance upon the 
 premises in said mortgage described to the amount of dol- 
 
 lars onlyj and that said receipt was a sufficient release and 
 
 discharge for the remaining sum of dollars ; and that your 
 
 orator verily believed that upon his surrendering to said 
 the said sum of dollars, and the memorandum agreement 
 
 for the passage ticket and the receipt as hereinbefore set forth, 
 that he, the said , would speedily surrender to your orator 
 
 your orator's said indenture of mortgage, and that until such 
 surrender the bond, covenants and receipt so as aforesaid given 
 by the said to your orator would be a sufficient bar and 
 
 release as against your orator's said bond and indenture of mort- 
 gage ; and that your orator, being imposed upon by the appear- 
 ance and manners of the said , did not at all suppose that 
 said would injure or deceive your orator, but placed im- 
 plicit confidence in him, the said ; and that during all the 
 transactions aforesaid, your orator was entirely without the aid, 
 advice or assistance of counsel, or of any person or persons skilled 
 in the conduct of business, and was accompanied and advised 
 only by persons of color equally ignorant and unskilled in busi- 
 ness with your orator. 
 
 And your orator further showeth unto your Honor, that he is 
 advised by his counsel that the said bond or obligation so as 
 aforesaid executed by your orator, and the said indenture of 
 mortgage so as aforesaid executed by your orator and wife, and 
 delivered to the said and by him assigned to the said 
 
 as aforesaid, are fraudulent and null and void, and ought to be 
 delivered up to your orator to be canceled and vacated, no con- 
 sideration having been paid therefor by the said to your 
 orator, or received by your orator from any other person or per- 
 sons ; and that such consideration, if any, was received by your 
 orator under the influence of the false and fraudulent representa- 
 tions of the said , and that such consideration was paid 
 and the said bond and mortgage executed in pursuance and ful- 
 fillment of a usurious and fraudulent contract between your 
 orator and the said 
 
 And your orator well hoped that the said and 
 
 would have complied with such reasonable requests of your 
 
574 FOBM8 OF PLEADINGS. 
 
 orator, and would have surrendered up and delivei-ed to your 
 orator for cancellation the bond and mortgage aforesaid; but 
 now so it is, may it please your Honor, that the said and 
 
 not only refuse to surrender up to your orator the said 
 securities for cancellation, but the said insists upon all the 
 
 benefits of the aforesaid bond and mortgage, and threatens that 
 in case the installments, or either of them, named in the condi- 
 tion of the said bond are not paid by your orator on the day and 
 in the manner in said condition specified, he will file a bill in 
 this honorable court for the foreclosure of said mortgage ; and 
 the said defendants sometimes pretend and give out in speeches, 
 that the said paid to your orator the sum of dollars 
 
 as full consideration for the execution and delivery of the bond 
 and mortgage aforesaid ; and that the receipt for dollars 
 
 and memorandum agreement for passage ticket hereinbefore set 
 forth formed no part of the consideration money or other con- 
 sideration for said bond and mortgage ; and that the said 
 did deliver to your orator a passage ticket entitling your orator 
 to passage, conveyance and carriage from to , in 
 
 fulfillment of his engagement to that effect j.and that the said 
 never did receive from your orator -the said sum of 
 dollars, and the memorandum and receipt hereinbefore 
 stated, and execute and deliver to your orator the aforesaid bond 
 and covenants and receipt ; and never did agree to surrender to 
 your orator for cancellation your orator's bond and mortgage 
 aforesaid ; and that your orator, in person or by agent, never did 
 demand of the said the surrender of your orator's said 
 
 bond and mortgage for the purpose of cancellation, whereas your 
 orator expressly charges the contrary thereof to be true; all 
 which actings and pretences of the said defendants are contrary 
 to equity and good conscience, and tend to the manifest wrong 
 and injury of your orator. 
 
 In tender consideration whereof, and forasmuch as your orator 
 is without adequate remedy in the premises by the strict rules of 
 the common law, and without the aid and intervention of this 
 honorable court, where matters of this nature are properly cog- 
 nizable and relievable : To the end, therefore, that the said de- 
 fendants, and , may, upon their several and respec- 
 
BILLS FOR RELIEF, ETC. 575 
 
 tive corporal oaths or aflSrmations, full, true, perfect and 
 distinct answer make to all and every the matters aforesaid, and 
 that as fully and particularly as if the same were here again 
 repeated and they thereto particularly interrogated, paragraph 
 by paragraph; and that they may answer and declare to this 
 honorable court whether any and what consideration was paid 
 by the said to your orator at and before or subsequent to 
 
 the execution and delivery of your orator's said bond and in- 
 denture of mortgage, as a consideration therefor. And if any 
 consideration was paid by the said , or by any other per- 
 
 son in his behalf, in what the said consideration consisted, 
 whether in money, cash, notes, bonds, receipts, mortgages, tickets 
 for passage from to , lands, securities or any other 
 
 valuable matter or thing whatsoever. And whether the con- 
 tract or agreement entered into between your orator and the 
 said , and in pursuance of which the said bond and mort- 
 
 gage were executed and delivered by your orator to the said 
 
 , was not fraudulent and usurious on the part of the said 
 
 , and what was the contract or agreement entered into 
 between them. .And that the said bond or obligation so as 
 aforesaid executed and delivered by your orator to the said 
 
 , and the indenture of mortgage so as aforesaid executed 
 and delivered, by your orator and , his wife, to the said 
 
 , may be declared null and void, and that the same may 
 be delivered up to be canceled ; and that in the meantime the 
 said defendant, , may be restrained by the order and in- 
 
 junction of this honorable court from commencing or prosecuting 
 any action at law against your orator upon the said securities or 
 either of them, or from filing a bill for the foreclosure of said 
 indenture of mortgage in this honorable court, or from com- 
 mencing any other proceedings thereon, or from assigning and 
 transferring the said securities or either of them to any other 
 person or persons, or from in any other manner in anywise part- 
 ing with the custody and possession of the same ; and that your 
 orator may have such further or other relief in the premises as 
 the nature and circumstances of the case may require, and to 
 your Honor shall seem meet and agreeable to equity and good' 
 conscience. 
 
576 FORMS OP PLEADINGS. 
 
 May it please your Honor, the premises cousidered, to grant 
 unto your orator, not only the state's writ of injunction issuing 
 out of and under the seal of this honorable court, to be directed 
 to the said , restraining and enjoining him from com- 
 
 mencing or prosecuting any action at law against your orator 
 upon the said bond or obligation and indenture of mortgage 
 executed by your orator and , his wife, to the said , 
 
 on the day of , in the year of our Lord eighteen 
 
 hundred and , or from filing a bill for the foreclosure of 
 
 said indenture of mortgage, or from commencing any other pro- 
 ceedings thereon, or from assigning and transferring said bond 
 and indenture of mortgage to any other person or persons, or 
 from in any other manner in anywise parting with the custody 
 and possession of the same, but also the state's writ of subpoena, 
 issuing out of and under the seal of this honorable court, to be 
 directed to the said and , therein and thereby com- 
 
 manding them, on a certain day and under a certain penalty 
 therein to be expressed, personally to be any appear before your 
 Honor in this honorable court, then and there to answer the 
 premises, and to stand to, abide and perform such decree therein 
 as to your Honor shall seem meet, &c. 
 
 And your orator, as in duty bound, will ever pray, &c. 
 
 {Signature of solicitor and cownsd.) 
 
 Bill to compel payment of the excess of the mort- 
 gage debt above the net proceeds of sale.(a) 
 
 (Address.) 
 Set forth the bond and mortgage as in an ordinary foreclosure 
 nil and proceed, And your orator further shows, that after- 
 wards, on or about the day of , eighteen hundred 
 and , the said and , his wife, did execute a 
 deed of conveyance, under their hands and seals, to one , 
 
 (a) A suit by bill to compel pur- eery. Equity had jurisdiction in 
 
 cbasers who, by their conveyances, such cases before the passage of the 
 
 have assumed payment of a mortgage, act {Bev., "Chancery," g 76,) on the 
 
 to pay the deficiency of the proceeds principle of subrogation. Pruden v. 
 
 of sale to pay the mortgage debt, is Williams, 11 C. E. 6r. 210. 
 maintainable against them in chan- 
 
BILLS FOR RELIEF, ETC. 577 
 
 in and by which deed of conveyance it was among other things 
 witnessed, that the said and wife did, in consideration of 
 
 ihe sum of dollars, sell and convey the said mortgaged 
 
 premises unto the said , his heirs and assigns ; and it was 
 
 further witnessed and stipulated, in and by said deed of convey- 
 ance, that said lands were conveyed subject to the lien and en- 
 cumbrance of the said mortgage so given by said and wife 
 to your orator, the said , and that the said assumed 
 ihe payment of the said mortgage and agreed to pay ofP and dis- 
 charge the same in part payment of the consideration money in 
 ihe said deed of conveyance mentioned ; whicn deed of convey- 
 ance was, on the day of , eighteen hundred and 
 , delivered to and accepted by the said , by virtue 
 of which stipulation and agreement so contained in said deed of 
 <;onveyance, and the acceptance thereof by said , he, the 
 flaid , became liable to pay to the said and to your 
 orator the amount of the principal and interest due and to grow 
 due on his mortgage as aforesaid, when the same should become 
 due, as in and by the said deed of conveyance from the said 
 and wife to the said , or the record thereof now in 
 the possession of your orator, and ready to be produced and 
 proven, as this court shall direct, reference being thereunto had, 
 will more fully appear {and in same manner set forth the several 
 oonveyanoes.) 
 
 And your orator further shows, that on or about the 
 < day of , eighteen hundred and , your orator filed 
 
 his bill of complaint in this honorable court for the foreclosure 
 and sale of said premises under his said mortgage, setting out 
 his said mortgage upon said land and premises, and the bond 
 which the same was given to secure. 
 
 And your orator further shows, that such proceedings were 
 had on his said bill of complaint that afterwards, on or about 
 the day of , eighteen hundred and ^ , a decree 
 
 of foreclosure was made by your Honor in this court, by which 
 it was ordered and decreed that your orator was entitled to have 
 the Sum of dollars and cents, together with lawful 
 
 interest thereon from the said r day of , eighteen 
 
 hundred and , being the amount then found to be due on 
 
 2m 
 
578 FOEMS OP PLEADINGS. 
 
 his said mortgage, together with the further sum of dollar* 
 
 and cents of costs, with lawful interest thereon from the 
 
 day of , eighteen hundred and , to be paid 
 
 and satisfied out of the proceeds of the sale of the said mortgaged 
 premises ; and that the said mortgaged premises should be sold 
 to pay and satisfy the said several amounts, and that a writ of 
 fieri facias should for that purpose issue out of this honorable 
 court, directed to the sheriff of the county of , commanding 
 
 him to make sale of said premises to pay and satisfy the said 
 several sums accordingly. 
 
 And your orator further shows, that afterwards, on or about 
 the day of , eighteen hundred and , a writ 
 
 of execution on said decree was duly issued out of this court,^ 
 directed and delivered to the sheriff of the county of ^ 
 
 commanding him to make sale according to law of said mort- 
 gaged premises, to pay and satisfy the said several sums of 
 money in accordance with the terms of said decree. 
 
 And your orator further shows, that the said sheriff of the 
 county of duly advertised the said mortgaged premises, 
 
 by virtue of the said writ of execution, for sale at the court- 
 house, in the city of , on , the day of ^ 
 at o'clock in the afternoon of that day, which sale was 
 adjourned from time to time to the day of , 
 eighteen hundred and , at the court-house in the said 
 city of , on which said last-mentioned day the said sheriff 
 struck off and sold the said mortgaged premises to one , 
 he being the highest bidder for the same, for the sum of 
 dollars ; and that the said sheriff has made and executed a deed 
 of conveyance of said land and premises to the said , 
 under and by virtue of said sale, for the said consideration of 
 dollars, which said deed has been delivered to and 
 accepted by the said , and is duly recorded in the office of 
 the clerk of said county of , in Book of Deeds for 
 said county, on page , &c. 
 
 And your orator further shows, that it appears by the official 
 statement of said sheriff, filed in this court, that he sold said 
 premises to said , for the said sum of dollars, and 
 
 that he retained the sum of dollars for his execution fees. 
 
BILLS FOR EELIEF, ETC. 579 
 
 and that he paid to the solicitors of your or9,tor the sum of 
 dollars and cents, and that the solicitors of your 
 
 orator retained from the last-mentioned sum of dollars 
 
 and cents the taxed costs of your orator in said cause, 
 
 together with interest thereon, amounting to the sum of 
 dollars and cents, leaving the sum of dollars and 
 
 cents to be credited upon and deducted from the sum 
 decreed to be due to your orator in said foreclosure suit. 
 
 And your orator charges that, by virtue of the covenants to 
 pay your orator's said mortgage, contained in the several deeds 
 of conveyance above mentioned and set forth, to wit,(a) the deed 
 from {here set forth the several deeds ;) the said and 
 
 are severally liable in equity to pay the amount of principal 
 and interest due on your orator's said mortgage, and thait your 
 orator has applied to the said and and requested 
 
 them and each of them to pay to your orator the amount of the 
 principal and interest so remaining due as aforesaid to your 
 orator on his said bond and mortgage, and that they have 
 wholly refused so to do. 
 
 Wherefore your orator prays the aid of this • court in the 
 premises : To the end, therefore, that the said and 
 
 may be decreed and declared to be severally liable to pay to 
 your orator the principal and interest moneys so dup to him on 
 his said bond and mortgage, by reason of their having severally 
 accepted the said several deeds of conveyance of the said mort- 
 gaged premises, so made to them successively, as aforesaid, and 
 so containing, as aforesaid, clauses in and by which they did 
 severally assume the payment of said bond and mortgage, and 
 
 (a) The right of the mortgagee to doctrine of courts of equity that a 
 
 a personal decree for deficiency against creditor may have the benefit of all 
 
 a subsequent purchaser, whose deed collateral obligations for the payment 
 
 contains such a stipulation, does not of the debt which a person standing 
 
 result from any fixed or vested right in the situation of surety for others 
 
 in the mortgagee, arising either from holds for his indeimity, and that he 
 
 the acceptance of the conveyance of may proceed directly against the per- 
 
 the mortgaged premises by the grantee son ultimately liable, in order to avoid 
 
 or from his obligation to pay the circuity of action. Orowell v. Hospital 
 
 mortgage debt as between himself and of St. Barnabas, 12 C E. Or. 650. 
 his grantor. It rests merely on the 
 
580 FORMS OF PLEADINGS. 
 
 did agree to pay the same, and that such liability may be 
 enforced by the decree of this court, by ordering and decreeing 
 the said and , severally and in such order of 
 
 priority as between themselves as may be equitable and just, to 
 pay unto your orator the principal and interest moneys due and 
 to grow due, unto your orator on his said bond and mortgage, 
 together with his costs of suit, and that your orator may have 
 such other or further relief in the premises as may be agree- 
 able to equity and good conscience. 
 {Prayer Jor subpoena.) 
 
 (Signature of solicitor and cov/nsel.) 
 
 Bill to enforce the personal liability of the direct- 
 ors of a corporation for their misfeasance as such 
 directors.(a) 
 
 (Address.) 
 
 Complaining, showeth unto your Honor, your orator, the 
 , of the city of ; that your orator is a corpora- 
 
 tion duly organized and incorporated under the provisions of 
 the act entitled "An act to encourage the establishment of 
 mutual loan and building associations," approved , 
 
 eighteen hundred and , and of the several supplements 
 
 thereto; that the association of your orator was created for 
 the purpose of assisting those who were at the time of the 
 beginning of your orator's said association members thereof, or 
 who might thereafter become members thereof, in the purchase 
 of lots and building thereon dwelling-houses; and that your 
 orator became so organized and incorporated on or about the 
 day of , eighteen hundred and , having, in 
 
 all things, complied with the requirements and provisions of the 
 said act and of the several supplements thereto. 
 
 And your orator further showeth unto your Honor, that by 
 virtue of the action of your orator under the said act, and the 
 
 (a) The waste or misapplication of though it were conceded that an 
 
 the funds of a corporation by its adequate remedy at law exists. The 
 
 ofiScers or agents authorizes the com- existence of such remedy at law would 
 
 pany to resort to equity in order to not oust this court of its jurisdiction, 
 
 compel such officers to account for Gitizens' Loan Asso., &c., v. Jjyon, 2 
 
 such waste or breach of trust, even Stm. Eq. 110 ; S. C, 3 Slew. Eq. 732. 
 
581 
 
 several supplements thereto, your orator became and was a body 
 politic and corporate in law, with all the powers mentioned in 
 the first section of the act of the legislature of New Jersey, enti- 
 tled "An act concerning corporations," approved , A. d. 
 eighteen hundred and 
 
 And your orator further showeth unto your Honor, that the 
 object, intent and purpose of the organization of your orator 
 was the accumulation of funds by the payment of monthly 
 installments by the members of the said organization of your 
 orator, into the treasury of your orator, and the loaning or 
 advancing of such funds to the said members of your orator's 
 said association, to enable them to purchase lots of land and 
 premises or dwelling-houses, and to aid said members in the 
 erection of dwelling-houses on lots so purchased ; and that by 
 section of the said act entitled "An act to encourage the 
 
 establishment of mutual loan and building associations," 
 approved , eighteen hundred and , it was enacted, 
 
 that the investments of associations established under said last- 
 named act should be made either in loans to, or in redemption 
 of the shares of, or in purchasing lots and erecting dwellings for 
 the members, or in all of said modes, as the constitution of the 
 particular association should provide; and by section of 
 
 said last-named act it was provided that all matters not provided 
 for by said last-named act should be regulated by the constitu- 
 tion and by-laws of said associations, respectively. 
 
 And your orator further showeth unto your Honor, that in 
 and by the said last-named act it was also enacted that every 
 association created by the said act might adopt such form of 
 constitution as to them should seem right and proper. 
 
 And your orator further showeth unto your Honor, that in 
 pursuance and by virtue of the provisions of the said last-named 
 act, under and by virtue of which your orator was organized as 
 aforesaid, the members of the association of your orator adopted, 
 immediately after the organization of your orator as aforesaid, 
 a constitution for the government of said association, which 
 constitution contained nothing repugnant to the constitution of 
 New Jersey, or of the United States ; and that by article 
 of said constitution it was provided that the object of said 
 
682 FOEMS OF PLEADINGS. 
 
 association was to provide a means for the regular, safe and 
 profitable investment of the savings of its members, and by 
 these savings accumulate a fund for the purpose of making loans 
 to stockholders whereby they might be enabled to build or pro- 
 vide for themselves dwelling-houses or to purchase building lots 
 or other real property. 
 
 And your orator further showeth unto your Honor, that by- 
 laws were also adopted by the members of said association of 
 your orator, immediately upon the organization of said associa- 
 tion of your orator, and that said by-laws contained nothing 
 repugnant to the constitution of the State of New Jersey, or of 
 the United States ; and that by said constitution and by-laws it 
 was provided that the officers of the said association should be a 
 president, treasurer and secretary and twelve directors, and that 
 all of said officers should be shareholders of said association ; 
 that the president and treasurer should be ex-offieio directors of 
 said association; that the president and directors should be 
 elected annually by the shareholders, and the treasurer and sec- 
 retary should be elected by the directors ; that by section 
 of article of said constitution of your orator's said asso- 
 
 ciation and by-laws, it was further provided that the board of 
 directors should meet statedly on the in each and every 
 
 month, at such place, as they, or a majority of them, should 
 appoint, for the purpose of receiving from the shareholders of 
 said association their monthly dues, interest and fines, and pay 
 the same into the treasury, and loan out the funds and see to 
 their safe investment, and attend to the financial concerns of the 
 association generally ; and that by article of said consti- 
 
 tution, and section of said last-named article — which 
 
 article directed, restricted and secured the loans of said associa- 
 tion — it was further provided that each and every shareholder 
 of said association should be entitled to receive a loan of 
 dollars on each and every share held by such shareholder ; and 
 by section of said article it was further provided 
 
 and declared that whenever the funds of the said association in 
 the treasury should warrant, one or more loans should be dis- 
 posed of to the highest bidder in such manner as the directors 
 might determine, provided the same should not be loaned out 
 
BILLS FOB BELIEF, ETC. 583 
 
 under par ; and that by the said last-named section it was further 
 provided and declared that in event of the funds of the said 
 association lying unproductive for the space of one month, the 
 directors should be empowered to loan them to others than 
 shareholders, on undoubted security, to be repaid on or before the 
 expiration of one year from the time of making such last-named 
 loan ; and that by section of the said last-named article it 
 
 was further provided and declared that no shareholder should 
 receive any loan to which he or she might be entitled until he 
 oi she should secure the payment thereof to the association by a 
 bond and mortgage for the full amount of the sum loaned, and 
 for the payment of such fines as might be imposed for the failure 
 of paying installments and interest when due, and by the deposit 
 of the policy of fire insurance ; and for every loan of dollars 
 
 made to a shareholder, at least one share of stock should be 
 assigned as collateral security to said bond and mortgage, and 
 that no money should be loaned on any property already encum- 
 bered ; and that by section of said last-named article it 
 was also further provided that shareholders in the said associa- 
 tion should be entitled to borrow the amount of their dues 
 ^ictually paid in by them by giving their bond, with interest for 
 the same, and transferring their stock to the association as 
 ^security. 
 
 And your orator further showeth unto your Honor, that the 
 said constitution and by-laws, containing the several articles and 
 sections hereinbefore mentioned and in part recited, were in full 
 force and virtue on the day of , eighteen hundred 
 
 ^nd , and had been legally and in all respects properly 
 
 and lawfully adopted by said association of your orator, and 
 were on the said day of , eighteen hundred 
 
 and , in full force and effect, and binding to all intents 
 
 And purposes upon the said association, its members and oflScers, 
 and that each and every one of the officers of said association 
 who were in office in said association on the said day of 
 
 , eighteen hundred and , well knew the full force 
 
 and binding operation of said constitution and by-laws, and that 
 they, as such officers, in the discharge of their duties as such 
 officers, were bound by and subject to all the provisions, restric- 
 
684, POKMS OP PLEADINGS. : 
 
 tions and requirements of said constitution and by-laws, and 
 when they and each and every of them accepted their respective 
 offices to which they were elected and appointed, and entered 
 upon the performance of the duties of such offices, and that they, 
 and each and every of them agreed with your orator well, faith- 
 fully and impartially to do, execute and perform the duties of 
 their said offices, to manage the financial concerns of your orator,, 
 and to make no loan nor investment of the funds of your orator 
 except in accordance with and in pursuance of the said provis- 
 ions, restrictions and requirements of said constitution, and in 
 the manner and upon the security particularly specified by ther 
 same. 
 
 And your orator further showeth unto your Honor, that on 
 the said day of , eighteen hundred and ,, 
 
 was the president of the said association of your orator, 
 and was the treasurer of said association, and the foUoW- 
 
 ing-named persons were severally the directors of said associa- 
 tion, to wit, {name directors ;) that the said had been duly 
 and legally elected at the regular time appointed by the said 
 constitution and by-laws of said association, president of said 
 association, and the said several persons named hereinbefore, as^ 
 directors of said association, had also been duly and legally 
 elected at such regular time for such election as aforesaid, pro- 
 vided for by said constitution and by-laws, such directors of 
 said association ; and that said had then been duly and 
 legally appointed such treasurer of said association by said 
 directors, and that said and said were ex-officno 
 directors of said association ; that they had severally accepted 
 the said offices of president, treasurer and directors, and had 
 severally entered upon the discharge of the duties thereof, and 
 that the several persons above named as directors of said associa- 
 tion had also severally accepted the said office of directors, and 
 had severally entered upon the discharge of the duties of said 
 offices, and were then, that is to say, on the said day of 
 , eighteen hundred and , in full possession of their 
 said offices, acting therein, controlling and managing the financial 
 and other affiiirs of your orator, and that your orator and its- 
 members and shareholders fully entrusted them with such man-> 
 
BILLS FOE BELIEF, ETC. 585'' 
 
 agement, under and in pursuance of and in accordance with the 
 said constitution and by-laws, and the said several provisions, 
 restrictions and requirements thereof, and that your orator and 
 its members and shareholders had a legal right to expect, and 
 did expect, that the said , as such president, and the said 
 
 , as such treasurer, and the said (set out names of. 
 directors,) as such directors, would in all things have conducted 
 the financial and other affairs of your orator and made loans and 
 investments of the funds of your orator according to the said 
 constitution and by-laws, and the several provisions, restrictions 
 and requirements thereof, and would have performed the several 
 duties of their respective offices in a careful and prudent man- 
 ner, without negligence and according to said constitution and 
 by-laws, and the several provisions, restrictions and require- 
 ments thereof, as in equity and good conscience they ought to 
 have done. 
 
 And your orator further showeth unto your Honor, that on 
 the said day of , eighteen hundred and , the 
 
 said several persons hereinbefore named, being such president 
 and treasurer and directors of your orator's said association,^: 
 notwithstanding the premises and the directions in said consti- 
 tution contained, that no loans of any money belonging to your 
 orator should be made by the directors of the same to other than 
 shareholders, except upon undoubted security, and notwithstand- 
 ing the undertaking and agreement of the said directors herein- 
 before mentioned, well and faithfully and impartially to do, 
 execute and perform their duties as such directors, according ta 
 and in pursuance of the said constitution and by-laws, and the 
 several provisions, restrictions and requirements thereof, and 
 notwithstanding their duty in the premises, and in violation of 
 the trust reposed in them, and contrary to the said constitution 
 and by-laws of your orator, and the said several provisions, 
 restrictions and requirements, did loan and pay over to the said 
 , then being the treasurer of your orator's said associa- 
 tion, and ex-offlcio one of its directors, the sum of dollars,, 
 moneys then belonging to your orator and then in its treasury, 
 without taking or receiving from the said , or from any 
 person or persons on his behalf, any security whatever therefor,. 
 
586 F0BM8 OF PLEADINGS. 
 
 fiv for the repayment of said moneys by the said to your 
 
 orator, and that said loan was made to the said not as a 
 
 shareholder, as he was not then entitled to receive any loan 
 whatever upon any shares in said association of your orator 
 which might have been or were then held by him. 
 
 And your orator further showeth unto your Honor, that no 
 part whatever, either of principal or interest, of or upon the said 
 loan of dollars so made to the said as aforesaid has 
 
 ever been repaid by said , or by any person or persons on 
 
 his behalf, but that the same and every part or parcel thereof 
 fltill remains unpaid, due and owing to your orator ; neither has 
 ■the same, nor any part thereof, or of the interest which has 
 fallen and become due and payable thereon, been paid to your 
 orator, or to any person or persons duly qualified to receive the 
 same. And that in consequence of all which and on account of 
 and by reason of the violation of the constitution and by-laws 
 of your orator's said association by the said several directors in 
 not taking from the said , at the time of the loan so as 
 
 aforesaid made to him by the said directors, security for the 
 repayment of the same as required by the said constitution and 
 by-laws, said sum of dollars, and the interest which has 
 
 accrued thereon, have been totally lost to your orator, its members 
 and shareholders, and your orator has been prevented from 
 closing up the affairs of the said association, and the object and 
 purpose of said association have failed. 
 
 And your orator further showeth unto your Honor, that the 
 said is now dead ; that he died about one year ago ; that 
 
 has been duly appointed his administrator by the surro- 
 gate of the county of , and that said has taken 
 upon himself and assumed the burthen of the execution of such 
 administration. 
 
 And your orator further showeth unto your Honor, that it, 
 through its proper officers, has frequently and in a friendly 
 manner applied to the said several persons named above as 
 president and treasurer, who were ex-offieio directors of your 
 orator's said association as aforesaid, and to the said several 
 other persons who were directors of your orator's said association 
 as aforesaid, or one or some of them, and requested them, or one 
 
BILLS FOR RELIEF, ETC, 687 
 
 or some of them, to pay to your orator the said sum of 
 dollars and the interest thereon, and your orator well hoped 
 that they, or one of them, would have complied with such rea- 
 sonable request of your orator. But now, so it is, that the said 
 and , contriving how to injure and aggrieve your 
 
 orator in the premises, sometimes give out and pretend that 
 in making such loan to said of the said sum of 
 
 dollars they acted within the scope and meaning of the said 
 constitution and by-laws, and in all things performed their duty 
 as such directors according to and in pursuance of said constitu- 
 tion and by-laws, and that in making such loan to the said 
 they acted in a careful and prudent manner and without 
 negligence, and took such security from him for the repayment 
 of the said loan as was required by the said constitution and by- 
 laws; all which actings, doings and pretences of the said 
 and are contrary to equity and good conscience, and tend 
 
 to the manifest wrong, injury and oppression of your orator, 
 your orator hereby expressly charging that the contrary of the 
 said pretences is true. 
 
 In tender consideration whereof, and forasmuch as your orator 
 'has not a complete and safe remedy in the premises at and by 
 <the strict rules of the common law, and can only obtain relief in 
 a court of competent jurisdiction, where matters of this nature 
 are cognizable and the parties relievable : To the end, therefore, 
 that the said and ^^Jj without oath, full, true, 
 
 direct, perfect and distinct answers make to all and singular the 
 said matters, and that as fully and particularly as if they were 
 herein again repeated and they thereto particularly interrogated, 
 paragraph by paragraph, and that the said and , or 
 
 one or more of them, may be decreed by this honorable court to 
 pay to your orator the said sum of dollars, with all 
 
 interest thereon from the said day of , eighteen 
 
 'hundred and , or from the time when the said sum of 
 
 dollars was loaned to the said , and that your 
 
 orator may have such further or other relief in the premises as 
 to your Honor shall seem meet and shall be agreeable to equity 
 ^nd good conscience. 
 
 {Prayer for subpoena.) 
 
 {Signaiwre of solicitor and counsel.) 
 
588 yOEMS OF PLEADINGS. 
 
 Bill by a surety to compel the payment of a debt 
 by the principal.(a) 
 
 (Address.) 
 
 Complaining, showeth unto your Honor your orator, , 
 
 of the township of , in the county of and State of 
 
 New Jersey, that on or about the day of , in the 
 
 year of our Lord eighteen hundred and , one , of 
 
 the township of , in the said county of , having 
 
 occasion for the use of a large sum of money, made application 
 to one , a counselor-at-law residing in , to procure 
 
 him a loan, and the said , having then in his possession 
 
 the sum of dollars, money belonging to and ^ 
 
 agreed with the said to loan him, the said ' , the 
 
 sum of money so belonging to the said and , pro- 
 
 vided the said would give such security for the payment 
 
 of the said money as would be satisfactory to the said as 
 
 their attorney. 
 
 And your orator further shows, that the said , on or 
 
 about the day of the same month of , applied to 
 
 your orator and besought him to become surety for him, the 
 
 (a) A surety who has paid the debt amount due, all he can recover is- 
 
 of the principal is at once subrogated what he paid. D., L. & W. R. M. Co. 
 
 to all the rights, remedies and securi- v. Oxford Iron Co., 11 Stew. Eq. 151. 
 
 ties of the creditor. Where: the debt Until a surety pays, his principal- is- 
 
 has become payable, the surety may, under no liability to him, and his- 
 
 file a bill to compel payment of the only remedy is a suit in equity to 
 
 principal, in order that he may be compel the priuci]pal to pay his debt 
 
 relieved fronl responsibility. He to their common creditor. Ibid. 
 may, in special cases, compel the The fact that the rules of evidence 
 
 creditor to resort to securities in his will not permit a surety to avail him- 
 
 hands before coming upon the surety. self, at law, of the only existing proof 
 
 If the court is asked to interfere on of his defence, will not entitle him to 
 
 behalf of the surety before judgment relief in equity. Linn v. Nddon, 8 C. 
 
 is recorded against him, he must pre- E. Or. 169. 
 
 sent some special ground of equitable Where one is surety for several iu' 
 
 relief. Irick v. Black, 2 C. E. Or. 189; the same instrument, he may recover 
 
 see Coe v. iV. /. Midland My. Co., 12 from all or either of his principals 
 
 C. E. Or. 110. the amount which he may have been 
 
 All that a surety is entitled to compelled to pay by reason of his 
 
 against the principal debtor is indem- suretyship. Apgar v. Hiler, 4 2o6.. 
 
 nity. If he pays less than the full 812. 
 
BILLS FOB BELIEF, ET^. 589 
 
 said , to the said and for the ultimate pay- 
 
 ment of the said sum of dollars, and your orator, after 
 
 much solicitation of the said , consented to become the 
 
 surety for the said for the said sum of money. 
 
 And your orator further shows, that on the same day 
 
 of , in the year of our Lord eighteen hundred and , 
 
 the said and your orator made, executed and delivered to 
 
 the said and their joint bond or writing obligatory, ' 
 
 bearing date the said day of , in the year of our 
 
 Lord eighteen hundred and , in the penal sum of 
 
 dollars, lawful money of the United States of America, condi- 
 tioned for the payment of dollars, like lawful money, in 
 one year from the date thereof, with lawful interest of the State 
 of New Jersey from the date thereof till paid. 
 
 And your orator further shows, that although the said bond 
 was and is on its f^ce a joint and several bond, yet the said sum 
 of dollars was borrowed by the said upon his own 
 
 individual account for his own benefit and behoof, and not for 
 ihe benefit of your orator, and was only signed by your orator 
 as surety, and at the special instance and request of the said 
 , your orator having no interest therein. 
 
 And your orator further shows, that the said , from 
 
 iime to time, as the interest became due and payable on the said 
 bond or writing obligatory, paid and satisfied the same until the 
 interest accruing and becoming due on the day of , 
 
 eighteen hundred and , when the said , as your 
 
 orator is informed and believes to be true, utterly and entirely 
 refused to pay the said interest due on the said bond or writing 
 obligatory, or any part thereof. 
 
 And your orator further shows, that afterwards, to wit, on 
 the day of , in the year of our Lord eighteen hun- 
 
 dred and , the said having refused the payment of 
 
 said interest, as your orator has understood and verily believes, 
 the said and caused a judgment to be entered on 
 
 the said bond by virtue of the warrant of attorney thereto an- 
 nexed, in. the County Circuit Court against the said 
 and your orator for the sum of dollars debt and 
 dollars costs of suit. And on the same day of 
 
690 ^FOKMS OF PLEADINGS. 
 
 caused a writ of execution commonly called & fieri facias de bonis 
 el terria to be issued out of said court on the said judgment, di- 
 rected to the sheriff of the county of , commanding him, by 
 endorsement thereon, to levy and make of the goods and chat- 
 tels of the said and your orator the sum of dollars 
 as the real debt, besides interest and costs of suit. And if suffi- 
 cient goods and chattels of the said and your orator could 
 not be found in his county whereof to make the said debt 
 and costs, that then he should cause the whole or the residue 
 thereof, as the case might require, to be made of the lands, tene- 
 ments and hereditaments and real estate whereof the said 
 and your orator were seized on the day of , in the 
 year of our Lord eighteen hundred and , in whose hands 
 soever the same might then be^ and that he should have those 
 moneys before the said Circuit Court on the Tuesday of 
 then next, to render to the said and for 
 their debt and costs aforesaid, as by a certified copy of said 
 judgment and execution thereon issued, now in the possession of 
 your orator and ready to be produced, may and will more fully 
 appear. 
 
 And your orator further shows, that afterwards, on the same 
 day of , the said writ of fixri facias, after having 
 
 been first duly recorded, was delivered to , sheriff of the 
 
 county of aforesaid, to be executed, and that the said 
 
 sheriff proceeded to make a levy and inventory thereon as 
 therein directed, and did levy and inventory the goods and 
 chattels of the said as follows, viz. : {describe ohaitels.) 
 
 And your orator further shows, that he has understood and 
 believes it to be true that the said goods and chattels, lands and 
 tenements of the said so levied on and inventoried are not 
 
 subject to any prior encumbrances whatever, and are abundantly 
 sufficient t» pay and satisfy the amount of the said execution 
 and costs. 
 
 And your orator further shows, that on or about the 
 
 day of , in the year of our Lord eighteen hundred and 
 
 , the said sheriff being about to proceed to make the 
 
 money due on said execution from the goods and chattels of the 
 
 said , , the father of , having become apprised 
 
BILLS FOR RELIEF, ET<i 591 
 
 of the entering up the said judgment by the said and 
 
 against the said and your orator, and the proceedings of 
 
 the said sheriff to iaake the money from the goods and chattels 
 of the said , applied to the said to know the con- 
 
 sideration for which the said bond was given, and your orator 
 has understood and believes it to be true, and therefore alleges,, 
 that the said was informed by the said that the said 
 
 sum of dollars mentioned in the condition of the said 
 
 bond or writing obligatory was lent and advanced to the said 
 
 on his own individual account, and that your orator was 
 joined with the said in the said bond or writing obligatory 
 
 only as a surety for him, the said , and that the said debt 
 
 was the debt of the said alone. 
 
 And your orator further shows, that the said , father of 
 
 the said , afterwards, to wit, on or about the day of 
 
 , in the year of our Lord eighteen hundred and ^ 
 
 with full knowledge so as aforesaid obtained, that the said bond 
 or writing obligatory was given for a loan made to the said 
 
 , and that the said judgment entered thereon was for the 
 sole and individual debt of the said , applied to the said 
 
 and , through their attorney, the said , to 
 
 purchase the hereinbefore-recited judgment. 
 
 And your orator further shows, that the said and , 
 
 by their certain deed of assignment, executed in due form of law, 
 bearing date the said day of in the year aforesaid, 
 
 did grant, bargain, sell, assign, transfer and set over to the said 
 
 , his executors, administrators and assigns, the said judg- 
 ment and all moneys due and to become due thereon, and all 
 benefit of proceedings by execution or otherwise had or to be 
 had thereon. And that the said and have no fur- 
 
 ther interest in the said judgment and the execution issued 
 therepu. • 
 
 And your orator further shows that the said having, 
 
 by virtue of the said assignment, the entire and sole control over 
 the said judgment, now seeks to cause the money due thereon to 
 be made from the goods and chattels, lands and tenements of 
 your orator, and without first resorting to the goods and chat- 
 tels, lands and tenements of the said , and hath ordered 
 
^92 ^FOEMS OF PLEADINGS. 
 
 and directed the said , sheriff of the county of 
 
 aforesaid, to advertise and sell the goods and chattels of your 
 orator, and riot the goods and chattels of the said , to 
 
 raise and pay the said sum of money due on said judgment, to- 
 gether with the costs. And the said now threatens, in 
 pursuance of the orders of the said , to advertise and sell 
 the goods and chattels of your orator to make the said moneys 
 due on the said execution solely out of the property of your 
 orator, unless your orator shall otherwise pay and satisfy the 
 same. 
 
 And your orator further shows, that he is ready and willing 
 to pay and satisfy whatever balance may remain due and unpaid 
 on said judgment and execution after the goods and chattels, 
 lands and tenements of the said , the real debtor, shall be 
 
 sold and applied to the payment thereof, as the said in 
 
 justice and equity ought to cause to be done, but refuses so to 
 do, and not only refuses to cause the goods and chattels, lands 
 and tenements of the said to be first sold and applied 
 
 in payment of the said execution, but sometimes pretends and 
 ^ives out in speeches that the said never did borrow of 
 
 the said and the said sum of dollars, or any 
 
 other sum of money, and other times he pretends that the said 
 sum of money was borrowed by the said and your orator 
 
 jointly, whereas your orator expressly charges the contrary 
 thereof to be true; and that the said surii of money was bor- 
 rowed by the said on his own individual account, and that 
 your orator simply signed the said bond as his surety; all which 
 actings and pretences of the said are contrary to equity 
 and good conscience, and tend to the manifest wrong and injury 
 of your orator. 
 
 In tender consideration whereof, and forasmuch as your orator 
 is without adequate remedy in the premises by the strict rules of 
 the common law and without the aid of this honorable court, 
 where matters of this nature are properly cognizable and reliev- 
 able : To the end, therefore, that the said defendants may, upon 
 their several and respective oaths, (or affirmations, if conscien- 
 tiously scrupulous of taking an oath,) full, true, perfect and dis- 
 tinct answers make to all and every the matters aforesaid^ and 
 
BILLS FOB BELIEF, ETC. 593 
 
 that as fully as if the same were here again repeated and they 
 thereunto interrogated, paragraph by paragraph. And that the 
 said and also the said , sheriff as aforesaid, be 
 
 restrained — that is, that the said sheriff shall be restrained — from 
 making sale of the goods and chattels of your orator under and 
 by virtue of said writ of execution until after a sale of the goods 
 and chattels, lands and tenements of the said shall have 
 
 been made and the proceeds applied to the satisfaction of the 
 said judgment, and that the said be also restrained from 
 
 conveying, assigning or in anywise disposing of the said judg- 
 ment assigned by the said and to him as aforesaid, 
 and from issuing or causing to be issued any alias or other exe- 
 cution thereon until after the goods and chattels, lands and tene- 
 ments of the said shall be sold to raise and pay the amount 
 due on said execution, and that your orator may have such 
 further or other relief in the premises as the nature of the case 
 may require, and as may be agreeable to equity and good con- 
 science. 
 
 May it please your Honor, the premises considered, to grant 
 unto your orator, not only the state's most gracious writ of in- 
 junction, issuing out of and under the seal of this honorable 
 court, to be directed to the said , sheriff of the county of 
 
 , his deputies and all other persons acting under him or 
 by his directions, strictly enjoining and commanding him and 
 them to refrain from making sale of any property of your 
 orator, , under and by virtue of said writ of execution, or 
 
 otherwise proceeding thereon until after the sale of the goods 
 and chattels, lands and tenements of the said , and one 
 
 other like writ of injunction to be directed to the said , 
 
 strictly enjoining and commanding him, his agents and attorneys, 
 from making sale, conveying, assigning or otherwise disposing 
 -of the said judgment so as aforesaid assigned to him by the said 
 
 and , or the execution issued thereon, and from 
 
 issuing, or causing to be issued, any alias or other execution on 
 the said judgment, but also the state's writ of subpoena, &c. 
 {Signature of solicitor of complainant.) 
 2n 
 
694 FORMS OF PLEADINGS. 
 
 Bill by next of kin for distributive share of an 
 estate in the hands of an administrator.(a) 
 
 (Address.) 
 
 Humbly complaining, showeth unto your Honor your oratrix^ 
 , of the city and county and State of , that , 
 
 late of the county of and State of New Jersey, was in his 
 
 lifetime and at the time of his death possessed of and well enti- 
 tled to a considerable personal estate, consisting of moneys in the 
 funds and debts due to him, household goods, wearing apparel 
 and divers other effects of some amount and value, and was also 
 owner in fee simple and seized of about acres of land in 
 
 the neighborhood of , in the county of , adjoining 
 
 lands then of and others, of considerable value. 
 
 And your oratrix further shows, that the said , on or 
 
 about the day of , in the year of our Lord eighteen 
 
 hundred and , departed this life intestate, leaving his 
 
 wife, , and your oratrix, his daughter and only next of 
 
 kin, him surviving. 
 
 And your oratrix further shows, that since the death of the 
 said intestate his said wife, , and one , have ob- 
 
 tained letters of administration of the goods and chattels, rights 
 and credits of the said intestate to be granted to them by the 
 surrogate of the county of , and have, by virtue thereof, 
 
 possessed themselves of the personal estate and effects of the said 
 intestate to a considerable amount and value and with the pro- 
 
 (a) A bill in equity by the next of ceased persona. Frei/ v. Demarest, 1 
 kin for distributive share of an estate C. E. Or. 236 ; Dorsheimer v. Horback, 
 in the hands of an administrator will 8 C E. Or. 46. Unless for some 
 be sustained where no decree for dis- special cause, the Court of Chancery 
 tributiou has been made. The statu- will not interfere with the ordinary 
 tory remedy by suit at law for the jurisdiction of the Orphans' Court in 
 recovery of a legacy or a distributive the settlement of the accounts of exec- 
 share of an estate is cumulative, and utors and administrators. Nor will it 
 was not designed to limit or qualify attempt to look behind such settle- 
 the ancient jurisdiction of the court of ment unless on the ground of fraud 
 equity over the subject. The Court or mistake. Frey v. Demarest, 1 C. 
 of Chancery has concurrent jurisdic- E. Or. 236 ; Matthews v. Hoagland, S 
 tion with the Prerogative Court over Dick. Ch. Bep. 491. 
 the administration of the assets of de- 
 
BILLS FOB RELIEF, ETC. 595 
 
 ceeds of said real estate, much more than sufficient to pay and 
 satisfy his just debts and funeral expenses and all legal charges 
 against the said estate. 
 
 And your oratrix farther shows, that the said , the 
 
 wife of the said intestate, after the obtaining of the said letters of 
 administration, intermarried with , then of city, in 
 
 the county of and State of , who departed this life 
 
 on or about the day of , a. d. eighteen hundred 
 
 and , leaving the said again a widow, as she has 
 
 remained hitherto and still remains. 
 
 And your oratrix further shows, that the said administratrix 
 and administrator, after they had entered upon the discharge of 
 their duties as such, represented to the Orphans' Court of the 
 county of that the personal estate of the said decedent was 
 
 insufficient to pay his debts, and praying the aid of the said 
 court in the premises, obtained a rule of said court for all per- 
 sons interested to show cause why so much of the land and real 
 estate of the said deceased in the county of should not be 
 
 sold as would be sufficient to pay his debts, which rule was ob- 
 tained on or about the day of , A. d. eighteen hun- 
 dred and , whereupon such proceedings were afterwards 
 had, that on or about the day of , A. d. eighteen 
 hundred and , the said Orphans' Court ordered the said 
 administrator and administratrix to sell the whole of the lands, 
 tenements, hereditaments and real estate of the said deceased 
 situate in the county of for the payment of the debts of 
 said deceased J whereupon, and on or about the day of 
 , A. B. eighteen hundred and , the said adminis- 
 trator and administratrix did sell the said lands and premises of 
 the said , deceased, hereinbefore described, at public vendue 
 for a large sum of money to one , which sum of money 
 was paid, as your oratrix expressly chargep, to the said , 
 who held and still holds the same, or some part thereof, in his 
 possession, or has disposed of or invested the same for his own 
 use and benefit. 
 
 And your oratrix further shows, that the said reduced 
 
 the said personal estate of the said intestate into money by pub- 
 lic sale or otherwise, realizing thereon a considerable amount of 
 
696 F0BM8 OF PLEADINGS. 
 
 money, and took the same into his own personal possession and 
 custody and mingled the same with the said proceeds of said 
 real estate, and held and still holds the same, or some part 
 thereof, in his possession, or has disposed of or invested the same 
 for his own use and benefit. 
 
 And your oratrix further charges, that the said has had 
 
 the charge and possession and custody of the whole of the pro- 
 ceeds of said personal and real estate, and that the said , 
 now , has not had any custody or control thereof what- 
 ever, but has committed and entrusted the whole thereof to the 
 said 
 
 And your oratrix further shows, that the said letters of ad- 
 ministration were so granted to the said , now , and 
 , on or about the day of , a. d. eighteen 
 hundred and , on which day the said letters bear date. 
 And your oratrix further shows, that she was born on the 
 day of , A. D. eighteen hundred and , and is 
 consequently at the present time between and years 
 of age ; that no guardian was ever appointed of her person or 
 estate, and that she has always resided and still resides with her 
 mother; that she resided for about months in the said 
 county of after the death of her said father, and then 
 removed with her said mother to the city of , where she 
 has ever since resided, and for more than years has resided 
 at No. street; and that the said , her mother's 
 second husband, maintained and supported your oratrix until 
 about the day of , A. D. eighteen hundred and 
 , when he departed this life intestate. 
 And your oratrix further shows, that the said , as such 
 administrator, presented, on or about the day of , 
 A. D. eighteen hundred and , to the Orphans' Court of the 
 county of , his separate account as administrator of the 
 said , then late of the township of , in the county 
 of , deceased, purporting to be an account as well of and 
 for such and so much of the personal estate of the said deceased, 
 and of the proceeds of the sale of his real estate as had come to 
 the hands of that accountant as of and concerning his payments 
 and disbursements out of the same, in and by which account the 
 
BILLS FOE BELIEF, ETC. 597 
 
 said charged himself with the sum of dollars, and 
 
 cents as the proceeds of said personal estate and the sale 
 of said lands, and prayed allowance for the sum of dollars 
 
 and cents, for moneys paid on account of said estate, in- 
 
 cluding the sum of dollars and cents retained by 
 
 said accountant as due to him for principal and interest on a 
 bond and mortgage of the said intestate, and including also the 
 sum of dollars and cents for the commissions of said 
 
 accountant, being, as charged, per cent, upon the said 
 
 sum of dollars and cents, leaving a balance, as stated 
 
 in said account in the hands of the said accountant, on the said 
 day of , A. D. eighteen hundred and , of 
 
 dollars and cents, which said account was in all 
 
 things allowed by the said Orphans' Court on the day and year 
 last aforesaid. 
 
 And your oratrix further shows, that the said balance or sur- 
 plus of the said decedent's estate remaining in the hands of the 
 said became distributable upon the allowing of said 
 
 account between your oratrix, being the only child and next of 
 kin of the said , deceased, and the said , now , 
 
 who was entitled to her dower therein, or in some part thereof, 
 according to the statute in such case made and provided ; and 
 your oratrix, as the only child of said , deceased, was 
 
 entitled to the whole of said residue, subject to the dower of her 
 said mother therein ; and your oratrix charges that the dower of 
 her said mother was confined to the personal part of said residue, 
 being the part which represented the personal estate, if any such 
 remained. 
 
 And your oratrix further shows, that the said balance or 
 residue was the balance of the consideration or price of the real 
 estate remaining after the payment of said debts, and stood in 
 the place of and represented said estate, and descended to your 
 oratrix as the only lawful child of said , deceased, in the 
 
 same manner as real estates descend by law, and as provided by 
 the law of descents of this state. 
 
 And your oratrix further shows, that whatever interest the 
 said , late , may have had in the said surplus or 
 
 residue in the hands* of the said , has been given, trans- 
 
598 FORMS OF PLEADINGS. 
 
 ferred, set over and assigned by the said to yoar oratrix, 
 
 and belongs to your oratrix, who is entitled to receive the same ; 
 that the said consented, about the time of the sale of said 
 
 lands, that your oratrix should have the whole of said surplus, 
 and with the approbation and consent of the said , directed 
 
 that he should pay the same to your oratrix without regard to 
 the dower of said ; that the said always considered 
 
 the same to belong to your oratrix, and had the more surely to 
 secure the same to your oratrix by an instrument in writing, 
 under her hand and seal, bearing date a certain day and year 
 therein mentioned, that is to say, the day of , A. D. 
 
 eighteen hundred and , for and in consideration of natural 
 
 love and affection, and of one dollar to her in hand paid for 
 and by her daughter, your oratrix, sold, granted, assigned, trans- 
 ferred and set over, and by those presents did sell, assign, trans- 
 fer and set over unto your oratrix all her right, title and interest 
 whatsoever in and to the estate of , deceased, remaining in 
 
 the hands of ,*or whatever may be due from said 
 
 to said estate, or held by him for said estate, fully transferring 
 the same and all her interest therein to her said daughter, your 
 oratrix, for her own proper use, benefit and behoof forever ; 
 and she thereby fully authorized and empowered your oratrix to 
 use all proper ways and means for the collection and obtaining 
 possession thereof in her name or otherwise, and either at law or 
 otherwise, as might be proper or necessary, thereby fully ratify- 
 ing and confirming all that your oratrix might do or cause to be 
 done in the premises, to which paper, now in the possession of 
 your oratrix, for greater certainty reference is made. 
 
 And your oratrix further shows, that the said has had 
 
 notice and has been fully aware that your oratrix was entitled 
 to receive the whole of said money, from the time that said 
 account was filed by him in said Orphans' Court. 
 
 And your oratrix further shows, that the said ' has never 
 
 paid the said balance so reported by him to be in his hands, nor 
 any part thereof, either to the said before or after her 
 
 second marriage, nor to any person for her or on her account, 
 nor to her second husband, nor to your oratrix, nor to any 
 person for or on account of your oratrix, -but on the contrary 
 
BILLS FOB BELIEF, ETC. 599 
 
 thereof has used and applied the said money in his own affairs 
 and business, and has mingled and associated the same with his 
 own funds, and has transacted business therewith for his own 
 private benefit during, as your oratrix is informed and believes, 
 more than years last past, and so continues to use the 
 
 same, and has refused to give or render any account thereof, 
 either to your oratrix or to any person for her or on her account. 
 
 And your oratrix further shows, that the said has 
 
 neglected and refused to obtain any decree of distribution, as he 
 ought to have done, in the said Orphans' Court of the county of 
 , directing the distribution of said estate according to 
 law, and has neglected and refused to obtain the appointment of 
 a guardian for your oratrix, although he well knew the infancy 
 of your oratrix, and knew that your oratrix had no guardian or 
 SLuy other person authorized to receive her said moneys due to 
 her as aforesaid ; and the said , well knowing the facts 
 
 aforesaid, neglected and refused to obtain an order of the said 
 «ourt to invest the said moneys for the benefit of your oratrix, 
 as he ought to have done. 
 
 And your oratrix further shows and expressly charges, that 
 she is not only entitled to receive the whole of the said balance 
 of said sale of said real estate, and of said personal estate so 
 remaining in the hands of said , but is also entitled to 
 
 receive from him the interest thereon for more than 
 years last past, that is to say, from the day of , 
 
 A. D. eighteen hundred and , to be computed at the rate 
 
 of per cent, per annum. 
 
 And your oratrix further shows, that being so entitled as 
 aforesaid, your oratrix hath frequently, by herself and her 
 agents, applied to \he said and requested him to come to 
 
 an account with your oratrix for the personal estate and said real 
 estate of her said father, deceased, and for said balance so reported 
 ,by said administrator to be in his hands belonging to said estate, 
 and for the interest thereon as aforesaid, and to pay to your 
 oratrix her part or share of the clear residue thereof, or the 
 whole thereof; and your oratrix hoped that the said 
 would have complied with such request, as in justice and equity 
 lie ought. 
 
600 F0EM8 OF PLEADINGS. 
 
 And your oratrix further shows, that the said , some 
 
 time in the month of , A. d. eighteen hundred and y 
 
 promised the solicitor of your oratrix that he would settle the 
 said account with your oratrix by paying her the said balance 
 so reported by him to be due to her, with the interest thereon at 
 per cent, for years and months, making 
 
 together the sum of dollars, and that he would make said 
 
 settlement during the week then next following ; but instead of 
 carrying out said settlement the said sent to your oratrix's 
 
 solicitor his counsel, , esquire, who declined to carry out 
 
 the said agreement, contending that the said could not be 
 
 compelled to pay so much interest, but expressing himself will- 
 ing, in behalf of said , to pay said balance so reported in 
 said account, with years' interest thereon, to your oratrix,- 
 which your oratrix declined to accept. 
 
 And your oratrix further shows, that the said , since 
 
 this case was given to the solicitor of your oratrix, has called 
 more than once 'upon your oratrix and her said mother in refer- 
 ence to a settlement of this case, and on one occasion he said, in 
 the presence of your oratrix, that he did not mingle the money 
 of your oratrix with his own, or did not use the same for 
 years after he received the same ; on another occasion he said he 
 had not used the same for more than years, and was not 
 
 liable to pay more than years' interest thereon, at which 
 
 time he made a tender to your oratrix of some money which he 
 said was the amount so reported by him to be due to your oratrix, 
 with interest for years thereon, which your oratrix declined ■ 
 
 to receive in full settlement of her claim and demand against the 
 said , your oratrix insisting, as she does now insist, that 
 
 she was and is entitled to the full sum of said balance so reported 
 to be held by said , with the interest thereon from the date 
 
 of the order of said Orphans' Court allowing said report, and 
 insisting that the said should pay the same to your oratrix,. 
 
 as in justice and equity he ought. 
 
 But now so it is, may it please your Honor, that the said 
 absolutely refuses to comply with such requests, and he- 
 at times pretends that he is not called upon to pay any interest 
 on said balance so reported by him to be in his hands ; that h& 
 
BILLS FOB RELIEF, ETC. 601 
 
 has used said money for not more than years, and ought 
 
 not to pay more than years' interest thereon ; and that he 
 
 has tendered the whole amount due to your oratrix to your 
 oratrix or her solicitor ; whereas, your oratrix charges the con- 
 trary thereof to be the truth, and so it would appear if the said 
 would set forth, as he ought to do, a full and true account 
 of all and every the personal estate and proceeds of said real 
 estate of the said intestate, and of his application thereof. 
 
 And your oratrix further charges, that the said ought 
 
 also to set forth a true and full account of the rents, profits and 
 interest of the said real estate or the proceeds thereof which 
 have been possessed or received by him, or by his order or to 
 his use; all which actings, doings, pretences and refusals are 
 contrary to equity and good conscience, and tend to the manifest 
 wrong and injury of your oratrix in the premises. 
 
 In consideration whereof, and forasmuch as your oratrix can 
 only have adequate relief in the premises in a court of equity^ 
 where matters of this nature are properly cognizable and reliev- 
 able : To the end, therefore, that the said and 
 
 may, upon their several and respective corporal oaths, to the 
 best and utmost of their several and respective knowledge,. 
 remembrance, information and belief, full, true, direct and per- 
 fect answer make to all and singular the matters aforesaid, and 
 that as fully and particularly as if the same were here repeated,, 
 and they and each of them distinctly interrogated thereto, and 
 that the said defendants may answer the premises; and that an 
 account may be taken, by and under the direction of this honor- 
 able court, of the personal estate and effects of the said intestate, 
 , possessed by or come to the hands of the said and 
 
 , late , administrator and administratrix of the 
 
 said , deceased, or either of them, or to the hands of any 
 
 other person or persons by the order of them, or either of them, 
 or for the use of them or either of them, and also an account of 
 the said intestate's funeral expenses and just debts; and that an 
 account may also be taken of the rents and profits and proceeds 
 of the said intestate's real estate which have been received by 
 the said defendants, or either of them, or by any other person 
 or persons, or their or either of their order, or to their or either 
 
€02 FORMS OF PLEADINGS. 
 
 of their use, and of the application and disposition thereof, and 
 of the use thereof, and interest and profits thereof which have 
 been received by said defendants or either of them, or by any 
 other person or persons by their or either of their order, or to 
 their or either of their use ; and that the said intestate's personal 
 estate, and so much of the proceeds and profits of his said real 
 estate as may be necessary, may be applied in the payment of his 
 funeral expenses and just debts in a due course of administra- 
 iion ; and that a clear residue of said personal estate, and of the 
 proceeds and profits of said real estate, may be ascertained, and 
 that it may be clearly ascertained what amount is now due from 
 the said administrator and administratrix, or either of them, for 
 and on account of said estate, real and personal; and what 
 amount of interest is due from said defendants, or either of 
 them. Upon any balance of said estate, real and personal, held 
 by them or either of them ; and that the exact amount of said 
 residue and interest to which your oratrix is entitled, as the sole 
 heir and child of the said intestate, may be distinctly ascertained ; 
 and that the amount to which the said would be entitled 
 
 for her dower, so granted and assigned to your oratrix as afore- 
 said, may be distinctly ascertained ; and that your oratrix may 
 be paid the whole of such clear residue and interest thereon as 
 such next of kin and grantee or assignee of such dower, together 
 with all your oratrix's costs and charges in this behalf sustained ; 
 and that your oratrix may have such further or other relief in 
 the premises as to your Honor may seem meet and shall be 
 agreeable to equity and good conscience. 
 {Prayer for subpoena.) 
 
 {Signature of solicitor and counsel.) 
 
 Bill for the establishment of a destroyed will.(a) 
 
 {Address.) 
 
 Complaining, show unto your Honor your orators, > 
 
 ^ith her husband, , and , with her husband, , 
 
 (o) In order to establish a will in of the court, must be examined. But 
 the Court of Chancery, all the wit- if either of the witnesses be dead or 
 nesses to the will, if within the power insane, or without the jurisdiction of 
 
BILLS FOE RELIEF, ETC. 603 
 
 of the county of , that heretofore, to wit, on or about the 
 
 day of , eighteen hundred and , , then 
 
 of , county of aforesaid, made in due form of law 
 
 his last will and testament, and having duly executed the same 
 died subsequently, leaving the same unaltered and unrevoked ; 
 that in and by the said last will and testament the said testator 
 did [stcUe substance of will.) i 
 
 And your orators further show, that , one of the executors 
 
 of said will, after the death of said testator, died, leaving , 
 
 another of said executors, him surviving ; said executors having 
 made a partial settlement of said estate, a further settlement 
 thereof was subsequently made by and , as the 
 
 executors of said , so far as such settlement could be made 
 
 agreeably to the provisions of said last will and testament, as by 
 reference to said settlements will more fully appear if such refer- 
 ence be necessary. 
 
 And your orators further show, that aforesaid received 
 
 here share and proportion of the chattels bequeathed to her and 
 her sister by said will, and also a share of the proceeds of 
 
 the sale of the lands directed to be sold and of the rights and 
 -credits of said testator, but whether in part or in full your 
 orators have never been informed or ascertained ; that said 
 never married, and died in the month of , eighteen hun- 
 
 dred and , without leaving lawful issue, and leaving her 
 
 surviving her brother only of her brothers and sisters. 
 
 And your orators further show, that on or about the 
 
 day of , eighteen hundred and , , 
 
 father of your oratrix, , received from the said , or 
 
 on her behalf, securities amounting to the sum of dollars 
 
 and cents, which sum of money he continued to hold and 
 
 to manage and to dispose of to the benefit of said and 
 
 the court, the will may be established clear, satisfactory and convincing, 
 ■without the evidence of such wit- Wyckoff v. Wyckoff, 1 G. E. Or. 401. 
 nesees. Bailey v. Stiles, 1 Or. Ch. 220. The mere proof of the loss or destruc- 
 The true rule is that the will may be tion of an instrument does not, as a 
 established upon satisfactory proof of matter of course, let in the party to 
 its destruction, and of its contents or give secondary evidence of its con- 
 substance. Whether the proof be by tents. Ibid. 
 •one witness or by many, it must be 
 
604 FORMS OF PLEADINGS. 
 
 under her direction during the lifetime of the said , and 
 
 under such use and disposition said fund, or the balance thereof, 
 on the day of , eighteen hundred and , 
 
 amounted to the sum of dollars and cents or there- 
 
 abouts, as they are informed and believe. 
 
 And your orators further show, that shortly after the decease 
 of said , as your orators are informed and believe, lettera 
 
 of administration of her estate were applied for and obtained by 
 , of said county of , but your orators charge that 
 
 such letters of administration were obtained and issued improvi- 
 dently and under the erroneous impression that said had 
 
 died intestate, whereas in truth and in fact your orators charge 
 that said in her lifetime duly made and executed a last 
 
 will and testament, in writing and under her seal, and being at 
 the time of sound and disposing mind and memory, bearing date 
 in the month of , eighteen hundred and , in the 
 
 presence of three subscribing witnesses thereto, and whereof the 
 said was made the sole executor, and in the words and to 
 
 the effect following, that is to say, {here insert will.) 
 
 And your orators further show, that upon the decease of said 
 , said and , executors as aforesaid of ^ 
 
 deceased, who was the surviving executor as aforesaid of the 
 will of said , under the terms aforesaid of the said will of 
 
 , claimed that, inasmuch as the said died without 
 
 leaving lawful issue, the legacy given to said by said will 
 
 reverted to the estate of said and became subject to the 
 
 limitation over thereof for the use and benefit of such persons as 
 under the terms of said will of the said might be entitled 
 
 thereto. 
 
 And your orators further show, that the said legacy, or the 
 unexpended balance thereof, constituted the entire estate of said 
 , and the said , believing that such claim was well 
 
 founded, and reposing especial confidence in the opinion and judg- 
 ment of said , one of said executors, as they are informed 
 and believe, and that the last will and testament of said was 
 and became of no practical use or benefit to the persons thereia 
 named, inconsiderately and incautiously destroyed the same. 
 
605 
 
 And your orators further show, that they have recently been 
 informed that the claim so as aforesaid made in behalf of the 
 estate of the said was not valid in law and therefore was 
 
 erroneous, and that in truth and in fact said legacy given to said 
 was not subject to any limitation over in said will con- 
 tained, but became absolute in the said' and subject to dis- 
 position by will or otherwise of the said , and that your 
 orators are directly interested in the establishnlient of said will 
 of , being two of the legatees in said will. 
 
 And your orators further show, that who survived as 
 
 aforesaid the said after her death, was the only surviving 
 
 child of said , the testator, and recently died, as your 
 
 orators are informed and believe, intestate, leaving a large num- 
 ber of persons who claim to be his next of kin, and as such 
 entitled to the legacies aforesaid left to the said , or to the 
 
 unexpended balance thereof, as part of the estate of said ; 
 
 and at their instance , one of the said next of kin, has ob- 
 
 tained letters of administration of the estate of said of the 
 
 surrogate of the county of aforesaid, and thereupon claim 
 
 the amount of said legacy, or the unexpended balance thereof, 
 under the limitation over thereof made by the will of the said 
 , and your orators insist that such claim is invalid in 
 law and tends to the manifest injury of your orators. And your 
 orators well hoped that the said , administrators as afore- 
 
 said, and , administratrix as aforesaid, would have de- 
 
 listed from and disclaimed such claims and pretences as afore- 
 said, and would have established or suffered without delay or 
 denial the establishment of said last will and testament of said 
 , they well knowing that in equity and good conscience 
 that should be done. 
 
 But now so it is, may it please your Honor, said defendants 
 hereto sometimes pretend that no such last will and testament 
 was made as charged by said , or that the same was inad- 
 
 vertently and with erroneous impressions destroyed as aforesaid, 
 the contrary whereof the complainants charge and humbly pray 
 the aid and decree of this honorable court in the proof and 
 establishment of said last will and testament of said , and 
 
 that the same being proved may be in all respects ratified and 
 
606 FOEM8 OF PLEADINGS. 
 
 confirmed, to the end that letters testamentary may be thereupoa 
 issued and the rights of the complainants and others named and 
 interested in said will recognized and enforced as in equity 
 ought to be done, and in this honorable court, where matters of 
 this sort are properly cognizable and relievable, and that said 
 letters of administrationr granted as aforesaid to said may 
 
 be annulled and for nothing holden if need be, and that your 
 orators may have such further or other relief in the premises 
 as the nature of the case may require and as may be agreeable to 
 equity and good conscience. 
 
 May it please your Honor, the premises considered, to grant 
 unto your orators a writ or writs of subpoena, &c. 
 
 {Signature of solicitor and cov/nsel.) 
 
 Bill to set aside a conveyance of real estate on 
 the ground of its fraudulent procurement.(a) 
 
 (Address.) 
 
 Complaining, show unto your Honor your orators, ^ 
 
 of the county of , and , of the county of , 
 
 (a) An ejectment bill, teelinically action of ejectment he has no remedy 
 
 so termed, is one brought simply for in this court. The principle is too 
 
 the recovery of real property, together broad and the practice of the court 
 
 with an account of rents and profits, against it. There are many cases in 
 
 without setting out any distinct and which the jurisdiction of courts of 
 
 substantive ground of equity jurisdic- law and equity are concurrent, and 
 
 tion, which would be demurrable the party is at liberty to seek relief 
 
 where there is no proper ground of in either. Ibid. 
 
 equity. Orane v. Conklin, Sax. 346. It is a well-settled principle that 
 
 But a bill to set aside a fraudulent relief is to be obtained in this court 
 
 conveyance, filed by those who, with- not only against writings, deeds and 
 
 out the encumbrance of such convey- the most solemn assurances, but 
 
 ance, are undoubtedly entitled, is alto- against judgments and decrees, if ob- 
 
 gether different from an ejectment tained by fraud and imposition, 
 
 bill, and comes within the ordinary If there has been the suppression 
 
 powers of this court. Ibid. of a truth, or the suggestion of a false- 
 
 In this case an ejectment might hood, whereby a party is circum- 
 
 have been brought. The title of the vented or deceived, equity will relieve 
 
 heirs is strictly a legal title, and against it. Ibid. 
 
 might have been asserted in a court Where undue advantage has been 
 
 of law. But it does not follow that ' taken of the weakness or necessity of 
 
 because a party may resort to an the party, or of any situation in which 
 
BILLS FOB BELIEF, ETC. 607 
 
 in this state, that , late of , in the county of 
 
 aforesaid, died intestate and without issue, leaving your orators 
 and oratrices aforesaid his heirs-at-law ; that your orators^ 
 
 and , are surviving brothers of the said , 
 
 deceased; your oratrices, and , are sisters of the 
 
 said , deceased, and your orators and oratrices, and 
 
 , are nieces and nephews of the said , deceased, 
 
 representing their father, , who was a brother of the 
 
 said , deceased, and who died in his lifetime, that is to 
 
 say, that the said , deceased, was seized and possessed 
 
 in his lifetime of considerable real and personal estate, in the 
 county of aforesaid, in this state, the personal estate con- 
 
 sisting of furniture and other property to a considerable value, 
 the items and particulars of which your orators and oratrices 
 cannot now specify ; that the real estate of the said con- 
 
 sisted of a dwelling-house and several lots and parcels of land 
 hereinafter mentioned, and which, at the time of making the deed 
 and conveyance thereof, hereinafter mentioned, as your orators 
 charge and believe, were worth the sum of dollars or 
 
 upwards. 
 
 And your orators and oratrices further show, that the said 
 
 died a widower on or about the day of , in 
 
 the year of our Lord one thousand eight hundred and , 
 
 aged about years ; his wife , at the time of making 
 
 the deed hereinafter mentioned, and for a long time before, was 
 
 he is placed, rendering him peculiarly misrepresentation, but this is only 
 
 liable to imposition, this court will where the party is able to contract, 
 
 interfere. It proceeds on the safe Where the party was intoxicated, in- 
 
 principle of protecting those who are adequacy of price is direct evidence 
 
 not able to protect themselves. Ihid. of fraud. Ihid. 
 
 It has become the settled rule of The fact of the price not being 
 
 this court that it will not interfere to paid, is no ground to set aside a deed, 
 
 assist a person on the ground of in- The fraud must be in the original 
 
 toxication merely, but if any unfair transaction, and not in the nou-ful- 
 
 advantage has been taken of his situ- Ailment of the contract. ' But though 
 
 ation it will render all proper aid. it does not change the nature of the 
 
 IMd. transaction, it may, if proved, be 
 
 Inadequacy of price can never be strong testimony to show its real 
 
 the ground of setting aside a deed character. lUd. 
 unless accompanied with fraud or 
 
608 FORMS OP PLEADINGS. 
 
 in a weak and feeble state of health and not expected long to 
 live, and having died soon after the making of the deed herein- 
 after mentioned ; that the said , for the last or 
 years of his life, had become habitually addicted to 
 intemperance, and at times drank to such excess as to be bereft 
 of all reason ; that during the months of and of 
 the year preceding his death he was almost uninterruptedly and 
 incessantly under the influence of liquor, to such a degree as to 
 be wholly incapable of business, or of making any contract, 
 bargain or disposition of his property with discretion or under- 
 standing ; that his habits of intemperance were, and had for a 
 long time been, such that when for a few days he refrained from 
 drinking immoderately a general debility both of body and mind 
 would take place, and render him incompetent to the rational 
 transaction of any business. 
 
 And your orators and oratrices further show, that on or about 
 the day of , in the year of our Lord one thousand 
 
 eight hundred and , and at a period when the said 
 
 was either in a state of actual intoxication, or so enfeebled and 
 debilitated in mind from the indirect influence of a long fit of 
 intoxication from which he was then just recovering, and while 
 he was, as your orators and oratrices charge, legally incompetent 
 to make any contract or disposition of his property, one , 
 
 of the city of , a brother of the wife of the said , 
 
 and one , whom your orators and oratrices believe was a 
 
 cousin of, or otherwise related to, the wife of the said , 
 
 availing themselves of the wretched condition of the said 
 , fraudulently and most unconscientiously, and without 
 any, or if any, a totally inadequate and mere colorable consider- 
 ation, procured from him a deed or conveyance, in fee simple, 
 for all his lands and real estate, which deed bears date the 
 day of , in the year of our Lord one thousand eight hun- 
 
 dred and , and purports to be made between the said 
 
 and , his wife, as parties of the first part, and the 
 
 aaid and , of the second part, and is expressed to be 
 
 made " for and in consideration of divers good causes and con- 
 siderations the said party of the first part thereunto moving, 
 and for and in consideration of the sum of dollars, money 
 
BILLS FOR BELIEF, ETC. 609 
 
 of the United States of America, to them in hand well and truly 
 paid by the said party of the second part, at and before the seal- 
 ing and delivery of those presents : " Whereupon your orators 
 charge that no such sum of money was paid by the said 
 and , or either of them, to the said , at the time of 
 
 making the said pretended deed, or at any time before or after 
 the making thereof; nor were there any such good causes and 
 considerations as are mentioned in the said deed then existing or 
 moving from the said and to the said , nor 
 
 any other considerations than the pretended inadequate and 
 colorable ones hereinafter mentioned. 
 
 And your orators further show, that the lands and real estate, 
 a conveyance whereof was obtained from the said in 
 
 manner aforesaid, are described in the said deed as follows: 
 (describe lands.) 
 
 And your orators further show, that the execution of the said 
 deed by the said , by making her mark thereto, appears, 
 
 by a copy of the said deed now in your orators' possession, to 
 have been witnessed by one , and that afterwards 
 
 subscribed his name as a witness to the execution thereof by 
 both of the grantors therein named. 
 
 And your orators farther show, that the said and 
 
 , in farther prosecution of their aforesaid fraudulent and 
 unjust designs, and to give color to the same, made and executed 
 a certain instrument of writing and delivered the same to the 
 said , or to his wife, who was then living, in the words 
 
 following, to wit : {describe agreement.) 
 
 And your orators further show, that although by the said 
 agreement the said and bound themselves to pay 
 
 oS all the debts which the said then owed, they well 
 
 knew, and your orators charge the truth to be, that the said 
 then owed no debts, or if any, very small and trifling 
 ones, amounting in the whole to a few, say or 
 
 dollars, and that what he did owe was wholly or principally for 
 rum or other intoxicating liquor ; and your orators charge that 
 the said and have paid no debts that were then 
 
 due and owing from the said , or if any, to a very small 
 
 2o 
 
610 FOEMS OP PliBADINGfi. 
 
 amount ; nor did the said and , or either of them, 
 
 pay to or for the said , during the rest of his miserable 
 
 life, even the small pittance of dollars a week, or if they 
 
 have paid anything for him since the making of the said deed, 
 it has been for rum or spirituous liquors of the poorest and 
 most pernicious kind, whereby the said was kept, from 
 
 the time of their getting the aforesaid deed to the time of his 
 death, almost continually in a state of intozication. 
 
 And your orators further show, that after the death of the 
 said , the wife of the said , which happened soon 
 
 after the making of the said deed, and from that time to 
 the day of his death the said was left by the said 
 
 and to suffering and want, many days going without 
 
 food, or having none but what charity administered to him; 
 that application was made by him, or by some of his neighbors 
 and acquaintances, to the overseers of the poor of the township 
 of for his relief; and your orators have been informed 
 
 and believe that he was, during the latter part of his life, 
 assisted or relieved in some measure by the said overseers of 
 the poor, such of your orators as lived near him, and heard 
 of his suffering and destitute situation, being themselves poor 
 and unable to contribute to his relief, and others of them resid- 
 ing in the State of , and being at the time ignorant of the 
 facts and circumstances hereinbefore stated. 
 
 And your orators further show, that the said repeatedly, 
 
 after the aforesaid deed had been obtained from him, in his 
 soberer moments complained of the manner in which the same 
 had been procured, and made application to his friends and to 
 counsel to assist him in getting back his property; but such 
 were his habits of intemperance and shattered state of his mind 
 that he was unable to institote and carry on any suit for the 
 recovery of his property. 
 
 And your orators further show, that soon after the said 
 
 and obtained the said deed, they took possession 
 
 of all the personal property, and also of all the said real 
 
 estate of the said ; they sold the furniture and personal 
 
 property, or otherwise disposed of the same for their own use 
 
611 
 
 And benefit, leaving the said only an old bed to lie upon ; 
 
 they rented out the dwelling-house and the lot whereon the same 
 stands, and other lands in the said deed mentioned, and have 
 ever since received the rents and profits thereof, amounting, as 
 your orators believe and charge, to several hundred dollars; 
 and the said and , having lately, as your orators 
 
 believe and charge, sold and conveyed the lot of land secondly 
 •described in the aforesaid deed, and containing between 
 and acres, to , of , in the county of 
 
 aforesaid, but for how much money is to your orators unknown ; 
 but they expressly state and charge that the said pur- 
 
 chased the said premises with notice of the fraudulent and 
 unlawful manner in which the said and obtained 
 
 the said deed, and of the insufficiency of their title, and that the 
 .said land belonged to your orators as the heirs-at-Iaw of the 
 said , and therefore the said required a warranty 
 
 ■deed for the same from the said and 
 
 And your orators well hoped that the said and 
 
 would have given up and yielded to your orators the said lands 
 and premises and every part thereof so by them, the said 
 and , respectively held and enjoyed, and that they would 
 
 have released to your orators all pretence of right or title to the 
 .same, and that the said and would have accounted 
 
 for the proceeds of, or would have given up to your orators 
 the personal property and effects of the said , deceased ; 
 
 and for that purpose your orators, or some of them, have in a 
 friendly manner applied to the said and and re- 
 
 quested them so to do ; and your orators have offered and ten- 
 dered themselves ready and willing to pay and refund to the 
 said and any and all such sum and sums of money 
 
 as they may have actually paid, either in satisfaction of debts 
 due from the said or on account of the dollars a 
 
 week so as aforesaid agreed by them to be paid to him. 
 
 But now so it is, may it please your Honor, that the said 
 
 and , contriving and intending to injure and 
 
 .aggrieve your orators in the premises, and to defraud them out 
 
 ,of the said lands and premises, which of right belong to your 
 
612 . FORMS OF PLEADINGS. 
 
 orators by descent to them as the heirs-at-law of the said ^ 
 
 deceased, wholly refuse to comply with such reasonable request 
 of your orators, as in justice and equity they ought to have 
 done; and to justify such their fraudulent and inequitable 
 conduct, the said and severally set up and insist 
 
 upon various untrue and unjust allegations and pretensions, 
 sometimes giving out in speeches that they have paid a full 
 and valuable consideration to the said in his lifetime for 
 
 the said lands and premises, whereas your orators expressly 
 charge the contrary to be the fact, and that the consideration 
 actually paid or stipulated to be paid was merely colorable, and 
 so utterly disproportionate and inadequate as must carry convic- 
 tion to every mind of fraud and circumvention on the part of 
 the said and , and of a total imbecility of mind and 
 
 incapacity for business on the part of the said at the time 
 
 of the said transaction ; and at other tinges pretend, that how- 
 ever inadequate the consideration given or agreed to be given 
 by them, yet that the said had a right to do with his prop- 
 
 erty as he pleased, and that he having executed such deed as 
 aforesaid in his lifetime, the title in fee simple is vested in them, 
 and that your orators, as his heirs-at-law, have no right or 
 title thereto; whereas your orators expressly charge, that the 
 said deed was obtained by the said and from 
 
 the said by fraud and circumvention or undue influence, 
 
 or while he was in a state of intoxication to such a degree 
 that he had not his senses, or if not then under the direct influ- 
 ence of liquor, was so debilitated in mind and his reason so 
 shattered by a long course of intemperance as not to know what 
 he was about, and as to render him wholly incompetent to make 
 any sale or disposition of his property ; and they make various 
 other false and unfounded allegations, all which actings and 
 doings of the said and are contrary to equity and 
 
 good conscience and tend to the manifest injury and oppression 
 of your orators. 
 
 In tender consideration whereof, and for that your orators 
 are remediless in the premises by the strict rules of the common 
 law, and can only be adequately relieved in this honorable 
 court, where matters of this nature are properly cognizable, and 
 
BILLS FOB BELIEF, ETC. 613 
 
 ■where deeds and other writings obtained by fraud ior circum- 
 vention may be set aside and decreed to be given up and can- 
 'Celed : To the end, therefore, that the said and 
 
 may, upon their several and respective corporal oaths, true, 
 full, direct and perfect answer make, according to their knowl- 
 edge, information or belief respectively, to all and singular the 
 matters and things hereinbefore stated, and that as fully and 
 particularly as if the same were here repeated and they and 
 €ach of them thereunto interrogated, paragraph by paragraph, 
 with dates, sums an^ all attendant circumstances, and the said 
 
 and ', and each of them, may answer and set 
 
 forth whether they did not obtain such deed, as hereinbefore 
 described, from the said , or some other, and what deed, 
 
 and when, and the date thereof, for the aforesaid lands and 
 premises, and what consideration they paid or agreed to pay 
 therefor, and the value of the said lands and real estate at the 
 time of getting such deed, and who was present when they bar- 
 :gained for the same, and to whom and in whose presence they 
 paid therefor, if anything they did pay to the said , or to 
 
 any person for him, and what were the divers good causes and 
 considerations in the said deed mentioned, and upon which the 
 same is stated to have been made, and may discover and set forth 
 the particulars and value of the personal estate of the said 
 
 , and may set forth what debts the said owed at 
 
 the time of making the said deed, and to whom, and the amount 
 thereof, and whether they have paid the same, and how much, 
 and to whom, and whether they did not execute such covenant 
 or agreement with the said as is hereinbefore set forth, 
 
 and some other and what agreement, and whether they paid him 
 
 dollars a week during his life, after the making of the 
 said deed, or any part thereof, and how much, and when, and in 
 whose presence ; and whether the same was paid in money to 
 him, or how otherwise, and whether they have rented, sold, or 
 otherwise disposed of the said real estate, or any part thereof, 
 and to whom, and for how much, and that they may account for 
 the rents, issues and profits thereof, and that an account may 
 aIso be had and stated of the moneys, if any, that have been by 
 4hem actually paid and advanced to or for the said at the 
 
614 FOEMS OF PLEADINGS. 
 
 time of and since the making of the said deed ; and that the said 
 may answer and set forth what land, and how much, if 
 any, he has purchased of the said and that did 
 
 belong to the said in his lifetime, and how much he has 
 
 paid or agreed to pay therefor, and whether he had not heard 
 and did not know the facts and circumstances hereinbefore stated, 
 or some and which of them, and whether in consequence of his 
 knowledge or belief of the doubtful nature of the title of the 
 said and , and of the manner in which they 
 
 acquired the same, and that your orators intended to call the- 
 same in question, he did not require and take a warranty deed 
 from the said and ; and that as well the deed 
 
 or conveyance from the said and his wife to the said 
 
 and , as the deed from the latter to the said 
 
 , may be decreed to be fraudulent or unduly obtained, 
 and therefore void and inoperative as against your orators, and 
 that the same may be set aside and decreed to be given up 
 and canceled, and that said and may be decreed 
 
 or compelled to convey or release to your orators all the 
 said lands and real estate now by them respectively held as 
 aforesaid, or that the said lands and premises may be sold under 
 the decree and direction of this court, and that the said 
 and may be paid out of the proceeds thereof what may 
 
 be found due to them (if anything shall be found due to them)' 
 upon the foot of such account as aforesaid, and that the residue 
 of the said moneys may be distributed among your orators in 
 proportion to 'their respective rights and interests in the said' 
 estate of the said , deceased, and that the said 
 
 and , or some or one of them, may be decreed to pay to 
 
 your orators their costs and charges to be taxed in this suit, and 
 that your orators may have such further or other relief in the^ 
 premises as the nature and circumstances of their case may re- 
 quire, and as may be agreeable to equity and good conscience. 
 {Prayer for subpoena.) 
 
 {Signature of solicitor and counsel.)' 
 
TO QUIET TITLE. 
 
 615 
 
 BILL TO QUIET TITLE.(a) 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, shows unto your Honor your orator, , of 
 
 , in the county of , and State of New Jersey, that 
 
 on or about the day of , eighteen hundred and 
 
 , your orator purchased of , for a full valuable 
 
 consideration, and said and his wife conveyed, by a deed 
 
 containing full covenants of warranty and seisin, to your orator, 
 
 (a) When any person is in peace- 
 able possession of lands in this state, 
 claiming to own the same, and his 
 title thereto or to any part thereof is 
 denied or disputed, or any other per- 
 son claims, or is claimed to own the 
 same or any part thereof, or any in- 
 terest therein, or to hold any lien or 
 encumbrance thereon, and no suit 
 shall be pending to enforce or test the 
 validity of such tit'e, claim or encum- 
 brance, it shall be lawful for such 
 person so in possession to bring and 
 maintain a suit in chancery to settle 
 the title of said lands, and to clear up 
 all doubts and disputes concerning 
 the same. The bill of complaint in 
 such suit shall describe the lands 
 with certainty, and shall name the 
 person who claims, or is claimed or 
 reputed to have such title or interest 
 in or encumbrance on said lands, and 
 shall call upon such person to set 
 forth and specify his title, claim or 
 encumbrance, and how and by what 
 instrument the same is derived or 
 created. Bev., "Titles,'' § 1. Before 
 this statute the Court of Chancery 
 assumed jurisdiction to quiet the pos- 
 session of a party to prevent litigation 
 at law, only in case the complainant 
 had satisfactorily established his right 
 at law, or where the persons who 
 
 controverted the right were so numer- 
 ous as to render an issue under the 
 direction of the court necessary to 
 bring in all the parties concerned, 
 and to prevent a multiplicity of suits. 
 Pateraon B. B. Co. v. Jersey City, 1 
 Stock. 434; Jackson v. Darcy, Sax. 
 194 ; De Oroot v. Beceivers, 2 Or. Oh: 
 198; Thompson v. Engle, 3 Or. Ch. 
 271 ; Black v. Shreve, 3 Hal. Ch. 440. 
 Quiet occupation under claim of title 
 gives the complainant standing in 
 court under the act. The act does 
 not require that he have title by pos- 
 session, or the right to possession, or 
 even adverse possession. And that 
 the adverse claimant is a tenant in 
 common does not qualify the posses- 
 sion or affect the»right to an issue. 
 Powell V. Mayo, 9 C E. Or. 178; 
 Beale v. Blake, 18 Slew. Eq. 668. 
 Possession in fact, as distinguished 
 from that constructive possession 
 which arises by virtue of the legal 
 title, is essential to a proceeding under 
 this statute. Sheppard v. Nixon, 16 
 Stew. Eq. 627. Under this statute 
 there is no authority to settle the 
 title to an incorporeal hereditament 
 claimed by the complainant to exist 
 in lands held in possession by the de- 
 fendant. Whitlock V. Greacen, 3 Dick, 
 Ch. Bep. 359. 
 
616 P0BM8 OF PLEADINGS. 
 
 in fee simple, the following-described tracts and parcels of land 
 and premises in the city of , in the county of , and 
 
 State of New Jersey, which were distinguished and numbered 
 in said deed as lots numbered , which were therein 
 
 described aud bounded as follows : {deaeribe the primisea.) 
 
 That on or about the day of , eighteen hundred 
 
 and , your orator purchased of , and , her 
 
 husband, for a full valuable consideration, and said and 
 
 her said husband conveyed, by a deed containing full covenants 
 of warranty and seisin, to your orator in fee simple, another 
 tract of land and premises in said city of , described as 
 
 follows : {describe the premises.) 
 
 That the said deeds are in your orator's possession and ready 
 to be produced and proved as may be directed ; and that your 
 orator has, ever since the recording of said deeds respectively, 
 been in the peaceable possession of the lands therein and above 
 described ; and that at the time of purchasing said lands and 
 taking said deeds, he believed and yet believes he bought and 
 acquired a good title to said lands in fee simple, and he has 
 always claimed and does now claim to own the same accordingly. 
 
 That your orator's title to said lands, or some part thereof, is 
 denied and disputed by , who are the defendants in this 
 
 suit; and they, said defendants, claim, and are claimed and 
 reputed to own said lands, or some part thereof, or some interest 
 therein ; and no suit or action of any kind whatever is pending 
 to enforce or test the validity of such title or claim; and your 
 orator charges that such claims so made by defendants are utterly 
 without foundation, unjust and vexatious. 
 
 That by reason of such claim your orator's property in said 
 land^ is greatly affected, and the same cannot be sold as they 
 otherwise could. 
 
 That your orator, on or about the day of , eighteen 
 
 hundred and , agreed with one to exchange a part 
 
 of said lands for certain lands of said ; and although said 
 
 and your orator both desired to carry out said agreement 
 said refused and declined to do so, on account of the claim 
 
 made by the said defendants, and Jiis apprehension that he 
 
TO QUIET TITLE. 617 
 
 -might have difficulty in disposing of the lots he, said , 
 
 was to bay from your orator, on account of said defendants' 
 said claim. 
 
 That your orator has applied to said defendants, or some of 
 them, to release and relinquish their said claim or to bring in 
 some court of law a suit which would test the validity thereof, 
 and the said defendants refuse to do either. And your orator 
 hoped that said defendants would have complied with such 
 reasonable request, as in justice and equity they ought to have 
 done. 
 
 In consideration whereof, and forasmuch as your orator is 
 relievable only in a court of equity, where matters of this sort 
 are properly, and according to the statutes of this state in such 
 case made and provided, cognizable and relievable : 
 
 To the end, therefore, that said defendants, and every of them, 
 may, upon their several and respective oaths or affirmations, to 
 the best of their respective knowledge, information and belief, 
 full, true, direct and perfect answer make to all and singular 
 the matters aforesaid ; and more particularly that they, and 
 every of them, may, in manner aforesaid, answer and set forth 
 specifically what title pr claim to said lands, or any part thereof, 
 or any interest therein, they, or either of them, make or claim, 
 and to what part or what interest ; and further, how and by 
 what instrument such title or claim is derived or was created ; 
 and that by the determination and final decree of this court, the 
 rights of all the parties to this suit in and to the lands herein- 
 before set fortli, and every part thereof, may be fixed and settled ; 
 and that your orator may be decreed to have a perfect title 
 thereto, and the defendants to have no estate, interest in, or 
 encumbrance on, said lands, or any part thereof; and that their 
 claims to the same are unjust, vexatious and void ; and that your 
 orator may have such other or further relief in the premises as 
 the nature of the case may require and as he shall be entitled to, 
 pursuant to the statutes in such case made and provided, (ce) 
 
 (a) For proceedings against defend- devisees or personal representatives 
 
 ants when it is unknown whether are unknown, &c., {Pamph. L., 1893, 
 
 parties are alive or dead, or if»they ch. CXLII ,) and for forms of order 
 
 are known or believed to be dead, the of publication, see title "Absent De- 
 
 jiames and residences of their heirs, fendants,'' ante. 
 
618 FOEMS OF PLEADINGS. 
 
 May it please your Honor, the premises considered, to grant 
 to your orator a writ of subpoena, issuing out of and under the 
 seal of this honorable court, to be directed to the said defendants^ 
 commanding them and each of them at a certain day and under 
 a c^tain penalty therein to be specified, personally to be and 
 appear before your Honor in this honorable court, then and 
 there full, true, direct and perfect answer make to all and singu- 
 lar the premises, and further to stand to, abide by and perform 
 such order, direction and decree as to your Honor shall seem 
 meet and as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, &c. 
 
 (Signature of aolioUor and cowmd with eomplainant.) 
 
 Ticket to be issued -with subpoena on bill to quiet 
 
 title.(a) 
 
 {!ntle of oatise.) 
 
 Sir — The bill of complaint in the above-stated cause is filed 
 
 to settle the title of in and to all that, &c., (deserihe land 
 
 in question with precision,) whereof the said claims to be 
 
 the owner ; and you are made a defendant thereto, and if you 
 
 claim any title to or interest in or encumbrance upon said lands, 
 
 you are required to answer said bill, but not otherwise. 
 
 {Signature of solicitor.) 
 To 
 
 Feigned issue under the statute to try title.(6) Com- 
 meneement as on page 246, ante, and add, for that whereas, on 
 the day of , eighteen hundred and , at , 
 
 in the county of , in the State of New Jersey, a certain dis- 
 
 course was moved and had by and between the said and 
 
 (a) With the subposna there shall must be established, if contes'ed, be- 
 be issued a ticket to each defendant, fore the court can proceed to try the 
 describing the lands with precision, question of title by an issue. Whit- 
 stating the object of the suit, and that lock v. Greacen, 3 Dick. Ck Rep. 369. 
 if the defendant claims any title to or The issue may be tried in a county 
 interest in or encumbrance upon said otherthan that in which the lands in 
 lands, he is required to answer said dispute are situated whenever it is so 
 bill, but not otherwise. Rev., "Tides!' ordered by the Chancellor. Rev. Sup.y 
 i 2. '•TitHs," I 1. 
 
 (6) The fact of peaceable possession 
 
TO QUIET TITLE. Qld" 
 
 others and , of and concerning a certain suit depending in the 
 Court of Chancery of the State of New Jersey, wherein the said 
 
 is complainant and the said and others are defend- 
 
 ants ; and upon that discourse a quiestion then and there arose 
 and was debated between the said and the said ,. 
 
 whether, on the day of , eighteen hundred and 
 
 , the said , the said plaintiffs, or either or which of 
 
 them, had any estate or interest in the following-described lands, 
 situate, &c., (describe land,) and what such interest was. 
 
 And the said plaintiffs then and there asserted and a£Srmed, 
 that they, the said plaintiffs, were the owners among themselves 
 of interests amounting to undivided parts of the said land 
 
 and premises, the whole into equal parts to be divided ;- 
 
 which said assertion the said then and there wholly denied, 
 
 and asserted the contrary thereof. And thereupon, afterwards,, 
 to wit, on the day and year last aforesaid, at aforesaid, in 
 
 consideration that the said plaintiffs, at the special instance and 
 request of the said , had then and there paid to the said 
 
 the sum of dollars, lawful money of the United 
 
 States, the said then and there undertook and faithfully 
 
 promised the said plaintiffs to pay them the sum of 
 dollars, like lawful money as aforesaid, in case the said plaintiffs, 
 or either of them, were the owners of undivided parts of 
 
 the said land and premises, or any part thereof, the whole into 
 equal parts to be divided ; and the said plaintiffs in fact 
 say, that they were the owners of the said equal undivided 
 
 parts of the land and premises aforesaid, on the said day 
 
 of , eighteen hundred and , and still own the same,, 
 
 whereof the said had notice. 
 
 Nevertheless, the said , not regarding his said promises 
 
 and undertakings by him in form aforesaid ihade, has not as yet 
 paid the said plaintiffs the said sum of dollars, nor any 
 
 part thereof, although so to do the said , afterwards, to 
 
 wit, on the day aforesaid and often afterwards, at afore- 
 
 said, was by the said plaintiffs requested, but the same to them 
 to pay he has hitherto altogether refused and since does refuse, 
 to the damage of the said .plaintiffs dollars, and therefore 
 
 they bring this suit. (Conclude as m form on page 248, ante.)' 
 
620 
 
 F0BM8 OF PliBADINGS. 
 
 Becree to quiet title under the statute.(a) 
 
 (IHtle of caM«e.) 
 This cause coming on to be heard in the presence of 
 and , of counsel with the complainant, [and , of 
 
 counsel with the defendants, , and the bill, answer, repli- 
 
 cation, proofs and exhibits, and the verdict and report on the 
 
 (a) No decree for costs shall be 
 had in a suit to quiet title under the 
 statute against any defendant who 
 suffers a decree pro confesso against 
 him, or who shall answer, disclaim- 
 ing all title to, interest in or encum- 
 brance on said lands ; but this court 
 fihall, in such cases, without further 
 proof, decree that such defendant has 
 no estate or interest in or encum- 
 brance on said lands, or any part 
 thereof; and any defendant who shall 
 by answer, duly verified by oath, deny 
 that he claims or ever has claimed, or 
 pretended to have any estate, interest 
 or encumbrance in or upon said lands, 
 or any part thereof, shall be entitled 
 to his costs in said suit. Mev., "Titles," 
 ? 3. If any defendant shall answer, 
 claiming any estate, or interest in or 
 incumbrance on said lands, or any 
 part thereof, he shall in such answer 
 specify and set forth the estate, inter- 
 est or encumbrance so claimed, and 
 if not claimed in or upon the whole 
 of said lands, he shall specify and de- 
 scribe the part in or upon which the 
 same is claimed, and shall set out the 
 manner in which and the sources 
 ihrough which such title or encum- 
 brance i^claimed to be derived. Id., 
 I 4. Upon application of either party 
 an isbue at law shall be directed to 
 try the validity of such claim, or to 
 settle the facts, or any specified por- 
 tion of the facts upon which the same 
 -depends, and the Court of Chancery 
 shall be bound 'by the result of such 
 
 issue, but may, for sufficient reasons, 
 order a new trial thereof, according 
 to the practice in such cases ; and 
 when such issue is not requested, or 
 as to the facts for which the same is 
 not requested, the Court of Chancery 
 shall proceed to inquire into and de- 
 termine such claims, interest and 
 estate, according to the course and 
 practice of that court, and shall, upon 
 the finding of such issue, or upon such 
 inquiry and determination, finally 
 settle and adjudge whether the de- 
 fendant has any estate, interest or 
 right in, or encumbrance upon said 
 lands, or any part thereof, and what 
 such interest, estate, right or encum- 
 brance is, and in or upon what part 
 of said lands the same exists. Id., 
 I 5. The final determination and 
 decree in such suit shall fix and 
 settle the rights of the parties in 
 said lands, and the same shall be 
 binding and conclusive on all parties 
 to the suit : but if any defendant 
 to such suit shall, either at the time 
 of the decree pro confesso against 
 him or at the final decree, be an in- 
 fant or non compos mentis, such party, 
 his heirs or assigns, at any time 
 within two years after the termina- 
 tion of such disability, may appear 
 in said suit, and apply for a rehear- 
 ing, and thereupon such decree shall 
 be opened as against such party,' 
 and the cause may proceed as if no 
 decree had been made in the same 
 against him. Id., 2 6. 
 
TO QTIIBT TITLE. 621 
 
 feigned issue heretofore ordered in this cause having been opened^ 
 read and considered, and the arguments of the respective counsel 
 having been heard, and the Chancellor having considered the 
 same, and it appearing to his satisfaction that the defendants,^ 
 
 , who appeared and who filed the answer in this cause, 
 have by their said answer set up and relied on certain claims to, 
 and estates and interests in, part of the lands and premises in 
 the bill of complaint in this cause described as theirs and belong- 
 ing of right to them, and have, in respect to the remainder of 
 said lands and premises, disclaimed any claim to, or estate, right 
 or interest in, the same. And it further appearing that the said 
 defendants' said claim to that part of said lands and premises 
 which they claimed and insisted on as aforesaid, is not valid, 
 and that they have not, nor have any or either of them, any 
 such estate or interest therein as was so by them claimed or 
 set up in this cause, and no further claim being set up by said 
 answers, or otherwise, or now appearing, and the complainant 
 appearing to be entitled to the relief prayed in his bill :] {If the 
 decree be ex parte, omit the clause above in brackets and follow the 
 forms substantially of a decree pro oonfesso, on page 34.) It is, 
 on this day of , eighteen hundred and , by 
 
 , Chancellor of the State of New Jersey, ordered, adjudged 
 and decreed, and the said Chancellor, by virtue of the power and 
 authority of this court, does hereby order, adjudge and decree, 
 [that as to those portions of the lands and premises in said bill 
 described, to which the said defendants disclaimed by their 
 answers any claim, that is to say, (describe premises,) the said 
 defendants, and each of them, have no estate, interest in, or 
 encumbrance upon, the same, or any part thereof.] 
 
 It is not necessary that there should appeal shall be made within three 
 
 be proof to warrant a decree against months after making such decree, 
 
 an infant defendant. The statute "Where the person entitled «to appeal 
 
 saves the rights of an infant. Sunyov, shall be an infant, feme covert or in- 
 
 C, 1884. sane, he or she shall have three 
 
 AU persons aggrieved by a final months to bring such appeal after 
 
 decree made upon bill filed to quiet such disability shall be removed, 
 
 title to lands may appeal from the Pamph. L., 1888, p. 381. 
 same or any part thereof, but such 
 
^22 FORMS OF PLEADINGS. 
 
 [And further,] that as to [that portion of] the lands and 
 premises aforesaid to which said defendants made claim as afore- 
 said, to wit, {describe premises,) the said defendants, and each 
 and every of them, have no estate, interest in, or encumbrance 
 upon, the same, or any part thereof. 
 
 And that in respect to all said lands and premises, so far as 
 relates to any claim thereon by or on behalf of any of the herein- 
 before-mentioned defendants, the title of the complainant in and 
 to the same, and every part thereof, is hereby determined, fixed 
 and settled, and declared to be good; [and that the defendants 
 -do pay to the complainant his costs of suit to be taxed, and that 
 he have execution therefor, according to the rules and practice of 
 this court.] {If the decree be ex parte, omit the parts above in 
 irackets.) 
 
 DOWER.(a) 
 
 Bill for dower. 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 Complaining, shows unto your Honor your orator, , 
 
 of the city of , county of , and State of New 
 
 Jersey, that your oratrix was married on the day of 
 
 (a) Whatever difference of opinion 'E. Or. 204 ; Ocean Beach Ass'n v. 
 
 on the subject might at one time have Brinley, 7 Stew. Eq. 439 ; 4 Kenfs 
 
 -existed, the jurisdiction of chancery Com. 71 ; 1 Story's Eq. Jur., ? 624, ch. 
 
 over the claim of dower is now defi- 12. It is indispensable in many cases 
 
 nitely established. It is a jurisdiction for the sake of discovery by the oath 
 
 concurrent with that at law ; and of the defendant as to the property, 
 
 when the legal title to dower is in its nature and the encumbrances upon 
 
 •controversy, it must be settled at law ; it, and sometimes for an account of 
 
 yet where the title is admitted, but the rents and profits, that the juris- 
 
 impediments are thrown in the way diction of chancery should be main- 
 
 of the widow proceeding at law, chan- tained. Hartshome v. Hartshome, 
 
 eery can assume jui'isdiction and give swpra. One advantage resulting to 
 
 her relief for lier dower. Sartshome the widow by proceeding in equity is 
 
 V. Hartshome, 1 Or. Ch. 349, and that she is thereby enabled to bring 
 
 •cases died; JRockwell v. Morgan, 2 before the court all the parties inter- 
 
 £eas, 384 ; Palmer v. Casperson, 2 C. ested in the subject-matter of her 
 
DOWEE. 
 
 623 
 
 , eighteen handred and , to , of , in 
 
 the State of New Jersey, and resided with her husband in 
 until his death. 
 That he died in on the day of , eighteen 
 
 hundred and , intestate and without issue ; administration 
 
 on his estate was granted to our oratrix ^nd by the 
 
 surrogate of the county of , in this state; and said 
 
 administrators have taken upon themselves the burthen of such 
 administration. 
 
 That at the time of his death, and for a number of years prior 
 thereto, he was engaged in trade as a member of the firm of 
 & , dealers in ; the members of said firm 
 
 were and ; is the surviving partner, and all 
 
 the assets, real as well as personal, of said firm, are in the hands 
 iind possession of said surviving partner. 
 
 That in addition to real estate belonging to said firm, said 
 
 was seized in severalty of the tracts of land hereinafter 
 
 described ; his heirs are his brothers, , (who is married, 
 
 -and whose wife's name is ,) and , (unmarried,) and 
 
 ■claim, and to have their conflicting 
 rights fully settled. 2 Scribner on 
 DouSer 146. A widow who has dower 
 by the judgment of a court which 
 cannot award her damages or com- 
 pensation for mesne profits may 
 maintain a suit in equity for their 
 recovery. Shields v. Hunt, 12 Stew. 
 Eq. 485. Where there are no con- 
 flicting claims to or interests in the 
 property, the present owner is the 
 only necessary party defendant, even 
 though the lands have come to him 
 through several intermediate convey- 
 ances. Blair v. Thompson, 11 Oratt. 
 441. If the right of the widow.be 
 admitted by the answer, the court 
 will proceed at once to assign the 
 •dower and to take an account of the 
 arrears, if the case be a proper one 
 for an account. Mandy v. Mundy, 2 
 Ves., Jr., 129. As equitable estates 
 .are not recognized in the courts of 
 Jaw, it results that courts of equity 
 
 have exclusive jurisdiction of claims 
 for dower in this species of estates. 
 McMahon v. Kimball, 3 Black/. 1. 
 The right of dower being established, 
 and the estate out of which the wife 
 is dowable ascertained, the next step 
 is to assign the dower. This may be 
 done either by reference to a master 
 or by directing a commission to issue. 
 2 Dan. Oh. Pr. 1166 ; Goodenough v. 
 Ooodenough,^2 Diclc. 795. Where the 
 husband, though seized, did not die 
 seized of the estate, the widow is enti- 
 tled to dower, and the alienee of the 
 husband is liable for mesne profits 
 only from the time of demand, or if 
 no demand be made, from the time of 
 filing the bill. Chiswell y. Morris,!. 
 McCart, 101. A commission to assign 
 dower is nearly in the same form and 
 is made out, executed and returned in 
 the same manner as a commission in 
 partition. 2 Dan. Ch. Pr. 1166. ' 
 
624 F0BM8 OF PLEADINGS. 
 
 his sister, , (who is married, and whose husband's name is ■ 
 
 ,) to whom those lands descended on his death, and by 
 whom they are now held as tenants in common. The said heirs 
 are now in possession of said lands, and receive the rents thereof. 
 
 That at the time of his death, said was seized in fee in 
 
 severalty of the following lands in the county of , being 
 
 all his real estate except his interest in the real assets of said 
 partnership : {describe the premises.) 
 
 That all of the said real estate of said firm was taken in pay- 
 ment of debts due to the said firm in course of the partnership 
 business. 
 
 That the said administrators of , deceased, claim that 
 
 all of said real estate of said firm is personal assets ; and that 
 they are entitled to said 's interest therein, or in the pro- 
 
 ceeds of sale thereof; and that your oratrix is not entitled to 
 any dower therein or in any part thereof. 
 
 That the heirs of said deceased refuse to assign and set apart 
 the dower of your oratrix, and do not properly account for the 
 rents, issues and profits of the said lands. 
 
 Your oratrix is advised that she can only have adequate relief 
 in the premises in this court. 
 
 To the end, therefore, that the defendants hereinafter named 
 may [without oath] answer all and singular the premises ; and 
 that the defendants, heirs of , deceased, may answer and 
 
 discover what real estate belonged to him at the time of his 
 death, and what estate or interest he had therein, and the value 
 thereof, and the rental value, and what encumbrances existed 
 thereon ; and that said heirs may also discover what rents, issues 
 and profits they have received from said real estate, and may 
 account therefor, and may be decreed by this court to pay to 
 your oratrix so much thereof as she may be entitled to for her 
 dower ; and that said may set forth and discover what 
 
 lands were the property of said firm of & , at the 
 
 time of said 's death, and the value thereof, and the rental 
 
 value and the encumbrances thereon, and the rents collected 
 since his death ; and that it may be settled and declared by the 
 decree of this court in what lands your oratrix has dower, and 
 whether she has dower in the real estate of said firm of 
 
DOWEB. 625 . 
 
 And that her dower may be set apart and assignedXto her 
 under the direction of this court ; and that your oratrix may 
 have such further or other relief as the nature of the case may 
 require. 
 
 May it please your Honor, &c., {add prayer f(yr aufypoRna.) 
 (JSignatwe of solicitor and eoumsel with complainant.) 
 
 Decree for dower and reference to a master.(a) 
 (Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, * no person appearing on behalf of the 
 defendant, the bill of complaint herein having been heretofore 
 taken as confessed against him, [or after*, "and it appearing 
 that the defendant has filed his answer admitting the right of 
 the complainant to dower in the lands mentioned and described 
 in the bill of complaint herein : ") It is, on this, &o,, ordered and 
 decreed that the complainant is entitled to dower in the lands 
 whereof her husband, the said , died seized; and it is 
 
 further ordered, that * it be referred to , one of the mas- 
 
 ters of this court, to ascertain and report of what lands the saidx 
 died seized wherein the said complainant is dowable, and 
 the said master is to assign to the complainant her dower in such 
 lands and tenements, and is to assign and set out particular lands 
 and tenements for that purpose.(6) 
 
 Jff a commission is to be issued to assign the dower, after the * 
 say, and and , of the county of , be 
 
 and they are hereby appointed commissioners to assign and set 
 out dower for the said complainant out of all and singular the 
 
 (a) A widow who remains in and band. McLaughlin v. McLwughlin, 7 
 
 holds and enjoys the mansion-house C. E. Or. 505. Interest was not 
 
 of her husband before her dower is allowed on arrears of dower. lAnd- 
 
 assigned to her by the statute is not say v. Oibbon, 3 Bro. 495 ; Wakefield 
 
 bound to pay taxes, interest or encum- v. Ohilds, 1 Fonbl. 23. 
 brances or for repairs. Spinning v. (6) The practice is to decree the 
 
 Spinning, 16 Slew. Eq. 215. Nor can dower to be set out by the master or 
 
 she be required to account for the to grant a commission to assign 
 
 rent of such house in case she claims dower. See Swaine v. Ferine, 5 Johns. 
 
 damages for the detention of her Oh. 487. 
 dower in the other lands of her hus- 
 
 2p 
 
626 FORMS OF PLEADINGS. 
 
 lands being lately the estate of , deceased, described as fol- 
 
 lows, to wit, {describe premises,) according to law and the course 
 of this court. 
 
 And it is further ordered, that after the said lands, &c,, shall 
 have been so set out and ascertained, and the report thereof shall 
 have been approved by this court, the said defendant do deliver 
 possession to the complainant of the lands and tenements that 
 shall be so set out and assigned for the said dower, and the ten- 
 ants thereof are to attorn and pay their rents to the said (com- 
 plainant^ 
 
 The following may be added to the reference to the master when 
 appropriate: And it is further ordered, that the said master take 
 an account of the rents and profits of the said lands whereof the 
 said died seized, accrued since the death of the said , 
 
 which have been received by the said defendant, or by any other 
 person, by his order or for his use ; and that one-third part of 
 what shall be coming on said account of the rents and profits of 
 said lands, be ^paid to the complainant by the said defendant in 
 respect of her dower out of such lands, (a) 
 
 And for the better taking the said account and discovery of 
 the matters aforesaid, the said defendant is to produce before the 
 aaid master, upon oath, all deeds, writings, papers and books of 
 account in his custody or power, relating to the matters in ques- 
 tion, and both sides are to be examined upon interrogatories as 
 the said master shall direct, and the said master is to make unto 
 both sides all just allowances. 
 
 And it is further ordered, that the said defendant pay to the 
 complainant her costs of this suit to this time to be taxed, and 
 the consideration of subsequent costs is reserved until the master 
 shall have made his report.(6) 
 
 (a) In equity, if the widow dies representative cannot recover mesne 
 
 pending her bill for dower, her death profits. Pollitt v. Kerr, 4 Dick. Oh. 
 
 does not deprive her personal repre- Rep. 65. She is entitled in equity to 
 
 sentative of the arrears of dower, but an account of rents and profits, not- 
 
 he may revive the suit and recover withstanding the death of the heir 
 
 mesne profits. But if no suit be pending the suit. Curiis v. Gwrlis, 2 
 
 pending in ' equity when the widow Bro. 620. 
 
 dies her right to damages dies with (b) For costs on bills for dower, see 
 
 her, and in that case her personal Beames on Costs 35. 
 
DECEEE8 AND ORDERS. 627 
 
 Commission to assign and set out dower (a) The 
 nState of New Jersey to (three commissioners) — Greeting: Know 
 ye, that we, in confidence of your prudence and fidelity, 
 Jl. s.] have appointed you, and by these presents do give unto 
 you, full power and authority, in pursuance of a decree 
 of our Court of Chancery, made in a certain cause therein 
 •depending, wherein is complainant and is defendant, 
 
 bearing date, &c., to assign and set out dower for the said com- 
 plainant out of all and singular the lands being lately the estate 
 -of , deceased, in the said decree mentioned, described as 
 
 follows, to wit, (describe premises.) 
 
 Therefore, we command you, that you meet at certain times 
 iind places to be appointed by you for that purpose, and to come 
 unto, inspect and view the aforesaid lands and premises where- 
 soever they shall be found to be situate, lying or being, and 
 according to the best of your skill and judgment to assign and 
 «et oat, by metes and bounds, dower for the said complainant 
 out of the aforesaid land and premises, and doing in all and 
 singular the premises according to the true intent and meaning 
 of these presents and of the said decree. 
 
 And when you shall have so done, you are to certify and 
 return into our Court of Chancery, at Trenton, without delay, 
 ^our acts and proceedings in the premises, by your certificate, 
 -distinctly and plainly written, under your seals, together with 
 this writ. 
 
 Witness, &c. 
 
 SPECIAL DECREES AND DECRETAL ORDERS. 
 
 Interlocutory decree on a bill for an account be- 
 tween partners. 
 
 {Title of cause.) 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and it appearing that the bill of com- 
 
 (o) Where a commission issues to proceedings, thereon, are similar to 
 sassign dower, the practice as to the those on commissions for partition, 
 execution thereof, and all further 
 
628 FOBM8 OF PLEADINGS. 
 
 plaint herein was heretofore taken as confessed against the 
 defendant :(a) 
 
 It is thereupon, on this day of , eighteen hundred 
 
 and , ordered and decreed, that it be referred to ,. 
 
 one of the special masters of this court, to take a mutual account 
 of all dealings and transactions between the complainant and 
 defendant as partners in said bill mentioned; for the better 
 clearing of which account the parties are to produce before the 
 said master, upon oath or affirmation, if required, and leave 
 with him, all books and writings in their custody or power 
 relating thereto, and are to be examined upon interrogatories, 
 as the said master shall direct ; and said master is also to have 
 power to examine other witnesses in relation to said account f 
 and in taking of said account, he is to make to both parties all 
 just allowances; and is to report what, upon such accounting, 
 appears to be due from each party to the other ; and also th& 
 balance which, upon the said account, shall appear to be due 
 from either party to the other. 
 
 And the said master is to make his report touching the mat- 
 ters hereby referred to him, with all convenient speed. And if 
 in taking the said account, any special matter shall arise, he is 
 at liberty to state the same to the court. 
 
 Interlocutory decree on bill by first mortgagee 
 (and purchaser under foreclosure) to compel second, 
 mortgagee to redeem.(6) 
 
 {Title of cause.) 
 This cause coming on to be heard before the Chancellor upon 
 bill, answer, replication and proofs, in the presence of , of 
 
 counsel with the complainant, and of , of counsel with 
 
 (a) A defendant who has permitted (6) A purchaser (first mortgagee) 
 a hill for account against himself and at a sale under a foreclosure suit upoi» 
 his partner to be taken as confessed, his mortgage, to which suit a second 
 cannot question his liability to ac- mortgagee was by oversight not made- 
 count by excepting to a master's a party, is entitled to require the 
 report which, pursuing the order of second mortgagee to redeem in a rea- 
 reference, holds him liable to account. sonable time or be foreclosed. Parker 
 Miller V. Howard, H O. E. Or. 166. v. Ghild, 10 G. E. Or. 41. The Chan- 
 
DECREES AND OBDEBS. 629 
 
 the defendant, , and the pleadings and proofs having been 
 
 xead, and the arguments of counsel heard and considered, and 
 the Chancellor being of the opinion that the complainant is 
 entitled to relief, and to be redeemed in the premises by the 
 defendant, : It is thereupon, on this day of , 
 
 eighteen hundred and , by his Honor , Chancellor 
 
 of the State of New Jersey, ordered, adjudged and decreed, that 
 the mortgage of the complainant set forth in his said bill, dated 
 the day of , eighteen hundred and , and 
 
 made by to him to secure the sum of dollars, with 
 
 lawful interest from date, is a valid and subsisting encumbrance 
 as against the said defendant, , upon the lands and premises 
 
 therein and in said bill described, prior to the lien thereon of the 
 mortgage of the said ; and that the judgment recovered 
 
 by against the said , set forth in said bill, is a valid 
 
 and subsisting encumbrance upon the said mortgaged premises 
 as against said , prior to the lien thereon of the mortgage 
 
 of the said * and that the said complainant is entitled to 
 
 be and he is hereby subrogated to all the rights of in the 
 
 .said judgment, and by virtue of such subrogation is an equitable 
 encumbrancer upon said lands and premises to the amount of 
 the principal, interest and costs of said judgment, prior to the 
 lien thereon of the said mortgage of said ; and that the 
 
 .«aid complainant having foreclosed the equity of redemption of 
 the said and , his wife, in the said mortgaged lands 
 
 and premises, and being now in possession of said lands under 
 said mortgage and judgment, and a decree of foreclosure thereon, 
 is entitled to be redeemed by the said defendant, , by pay- 
 
 ment of the amounts of principal and interest severally due to 
 the said complainant, and secured by the mortgage and judg- 
 ment aforesaid, or in default of such redemption, to a decree of 
 strict foreclosure against the said defendant, ; and that 
 
 the said defendant, , if he elects to, and do so redeem tlie 
 
 «aid complainant, is entitled to an account against the said com- 
 
 •cellor, after an appeal from an inter- being set aside if the interlocutory 
 
 locutory order, may proceed to final order shall be reversed by the higher 
 
 hearing according to the rule of this court. Barton v. Long, 18 Stew. Eq. 
 
 court; but the party taking such 160. 
 £nal decree will run the risk of its 
 
630 FORMS OF PLEADINR8. 
 
 plainant, and to payment from him of all the net rents, issues- 
 and profits, after deducting taxes and ordinary repairs, which 
 said complainant has received from said lands and premises 
 since he took possession thereof as purchaser under his said 
 decree of foreclosure. 
 
 And it is further ordered, adjudged and decreed, that the said 
 complainant do forthwith serve upon the defendant, , or 
 
 his solicitor, a copy of this decree ; and that within thirty days 
 after such service, the said defendant do serve upon the solicitor 
 of the complainant his election to redeem the said complainant in 
 the premises upon the terms of this decree ; and in the event that 
 the said defendant shall so serve notice of such election, that upon 
 such service the complainant be at liberty to apply ex parte to 
 this court, for such order of reference and for an account in the 
 premises, as he may be advised ; and that in the event that the 
 said defendant shall fail so to serve notice of his election to 
 redeem as aforesaid, the said complainant shall be entitled to, 
 and shall be at liberty to apply ex parte fof a decree of strict 
 foreclosure against him. 
 
 Decree for specific performance against adminis- 
 trators and heirs-at-law. 
 
 {Title of cause.) 
 This cause coming on to be heard, &c., and it satisfactorily 
 appearing to the court that by virtue of an agreement in writ- 
 ing, duly made and executed, between , the complainant,, 
 and , now deceased, in his lifetime, on the day 
 of , in the year one thousand eight hundred and , 
 the said agreed to purchase of the said complainant a 
 certain farm and tract of land, in the said bill mentioned and 
 described as follows, to wit, {insert description of premises biz- 
 metes and bounds,) and to pay him therefor the sum of 
 dollars, in two equal payments, one payment of dollars to 
 be made on the day of , in the year one thousand 
 eight hundred and , when the said complainant was to 
 execute and deliver to him, his heirs and assigns, a good and 
 sufficient deed for the said premises, and also possession of the- 
 said premises ; the remaining sum of dollars to be paid 
 
DECBEES AND 0KDEB8. 631 
 
 on the day of , one thousand eight hundred and 
 
 ; and it further appearing that the said departed 
 
 this life on the day of , eighteen hundred and 
 
 , intestate, and that the said defendants are his adminis- 
 trators and heirs-at-law, and that the said , the complain- 
 ant, has always been, and still is, ready and willing, in all things, 
 to comply with the stipulations of the said articles of agreement 
 on his part, and has prayed the order or decree of this court 
 directing the defendants to comply with and fulfill the same in 
 all things on their part, in the place and stead of the said ; 
 and the Chancellor being of opinion that the complainant is 
 entitled to the specific performance of the said article of agree- 
 ment on the part of the said administrators and heirs-at-law of 
 the said , deceased, aa in his said bill he has prayed : It 
 is, on this, &c., ordered, adjudged and decreed, that the said 
 articles of agreement be in all things specifically performed by 
 the said defendant and the said administrators and heirs-at-law 
 of , deceased, respectively, and that the said defendant do, 
 within days from the date of this decree, make, execute 
 and acknowledge, in due form of law, and deliver to the heirs- 
 at-law of the said , deceased, a good and sufficient war- 
 ranty deed for the said premises, and that he deliver, at the same 
 time, to the said heirs-at-law possession of the said premises, and 
 account to them for the rents, issues and profits of the same since 
 the first day of last, and that thereupon the said adminis- 
 trators and heirs-at-law, defendants in this cause, do pay, or 
 cause to be paid, out of the estate of the said , deceased, 
 the said sum of dollars, with interest thereon from the 
 
 day of last past, and that the rest of the said sum 
 
 of dollars, to wit, the sum of dollflrs, be and 
 
 remain a specific lien upon the said premises, payable on the 
 
 day of next ensuing, and until the same shall be 
 
 paid and satisfied. And it is further ordered, that the costs of 
 the complainant and of the said administrators, defendants in 
 this suit, be paid out of the estate of the said ; and the 
 
 complainant is to serve a copy of this decree upon the defend- 
 ants, or their solicitor, within ten days from the date hereof, and 
 either party is to be at liberty to apply to this court for further 
 directions or relief in the premises, if occasion shall require. 
 
632 FORMS OF PLEADINGS. 
 
 Decree establishing a wilLCa) 
 {!n,tle of cause.) 
 
 This cause coming on to be heard, «fec., and it appearing that 
 , deceased, in the pleadings in the cause mentioned, on or 
 about the day of , in the year, &c., duly made, 
 
 executed and published his last will and testament in writing, 
 in due form of Jaw, to pass real and personal estate, and after- 
 wards departed this life, leaving the said last will and testament 
 unrevoked and in full force ; that the said last will and testa- 
 ment was afterwards taken away or destroyed by some person 
 or persons unknown ; and that the contents thereof have been 
 fully and satisfactorily proved by the evidence in this cause; 
 and that the said will ought to be established in all its parts, by 
 the order and decree of this court. And it further appearing, 
 to the satisfaction of the court, that in and by the said last will 
 and testament, so made and executed as aforesaid, the said testa- 
 tor devised and bequeathed as follows, to wit : to his son {here 
 insert the devises and bequests as proved,) and that the said testa- 
 tor, in and by his said last will and testament, appointed 
 and executors thereof; and no cause being shown or 
 
 appearing why the said last will and testament should not be in 
 all things fully established : It is, &c,, ordered, adjudged and 
 decreed that the said last will and testament, so made, executed 
 and published as aforesaid by the said , and all the devises, 
 
 bequests and appointments therein contained, as herein above 
 particularly set forth, be and the same are hereby established in 
 all things and in all parts ; and that the said several devisees 
 and legatees aforesaid take, hold, occupy, possess and enjoy their 
 several and respective devises and legacies, as fully and effect- 
 ually, to all intents and purposes whatsoever, as they might, 
 could or would have taken, held, occupied, possessed and enjeyed 
 the same, if the said last will and testament had not been taken 
 or destroyed, and had been duly proved according to law. 
 
 And it is further ordered, that a transcript of the record of 
 these proceedings be transmitted to the surrogate of the county 
 
 (a) Probate of the will may be had the surrogate, who will file and record 
 upon the production of a certified the same in his office and thereupon 
 copy of the record of the decree to grant probate thereof. 
 
DECBEES AND OKDEBS. 633 
 
 ■of , to the end that letters testamentary to the executors 
 
 named in said will may be issued to them if they do not renounce 
 the execution of the trusts therein contained. . 
 
 And it is further ordered, that the costs of the complainants 
 and defendants in this cause be and the same are hereby ordered 
 to be paid by the said executors out of the testator's estate. 
 
 Decree annulling a deed, &c. 
 
 (^Title of cause.) 
 Proceed as in common form to the end of first line on page 180, 
 ■and add, that the said deed, so as aforesaid made by the said 
 to the said , bearing date the day of , in the year 
 
 one thousand eight hundred and , for the premises in the 
 
 said pleadings and proofs mentioned, is and was, from the time 
 of the execution and delivery of the same, null and void and of 
 no force or effect whatsoever, in law or equity, and that the said 
 do, on service of a copy of this decree, deliver up the 
 said deed to the complainant to be canceled, and that he do also 
 deliver up to the said complainant the possession of the said 
 premises now held by him, together with all deeds, muniments 
 of title and writings in his custody or power relating to the said 
 premises, and that the said defendant, , do also reconvey 
 
 the said premises to the said complainant, free and clear of and 
 from all encumbrances done by him, or any claiming by, from 
 or under him. And it is further ordered, adjudged and decreed, 
 that the said defendant, , do pay to the said complainant 
 
 her costs in this cause to be taxed. And it appearing to the court 
 that the said defendant, , has fairly and bona fide paid the 
 
 whole of the consideration money expressed in the deed made by 
 the said to the said , bearing date the day of 
 
 , in the year one thousand eight hundred and , for 
 
 a part of the said premises in the said pleadings and proofs 
 mentioned, without notice of the said fraud, and that the said 
 consideration money went to the use of the creditors of the said 
 {the grarUor,) and that the conduct of the said , in respect 
 
 thereof, was fair and bona fide: It is further ordered, adjudged 
 ^nd decreed, that the said complainant do release unto the said 
 
 , his heirs and assigns, all right and title of, in and to the 
 
634 F0BM8 OF PLEADINGS. 
 
 said premises mentioned and described in the said deed from the 
 said to the said , And it is further ordered, adjudged 
 
 and decreed, that the complainant may be at liberty to apply to 
 this court for execution and further directions, as she may be 
 advised. 
 
 Decree on bill to cancel a mortgage. 
 
 {Title of cause.) 
 This cause being opened to the court by , of counsel 
 
 with the complainant, and upon reading the pleadings and 
 proofs taken in said cause, whereby it appears that the mortgage 
 made and executed by the said and , his wife, to 
 
 said , in his lifetime, referred to in the bill filed in this 
 
 cause, bearing date the day of , eighteen hundred 
 
 and , and recorded in county clerk's office, in Book 
 
 of Mortgages, page , to secure the sum of 
 
 dollars, in years from the date thereof, with interest, still 
 
 appears to be a subsisting lien upon the premises in the said bill 
 of complaint particularly described; and it further appearing 
 that the sum intended to be secured by the said mortgage has 
 been paid and satisfied to the said , in his lifetime, but 
 
 that the said mortgage has never been canceled of record ; and 
 it further appearing, that the complainant is entitled to the 
 relief prayed for by him in his said bill ; and upon reading and 
 filing the consent in writing of the defendant, , adminis- 
 
 trator of said , deceased, that the complainant take a 
 
 decree in this cause, without costs, against the said defendant ^ 
 It is thereupon, on this day of , eighteen hundred 
 
 and , by his Honor , Chancellor of the State of 
 
 New Jersey, ordered, adjudged and decreed, that the said mort- 
 gage hereinbefore referred to and described has been fully paid 
 and satisfied ; and it is further ordered, that the same be can- 
 celed of record, and be no longer a lien upon the said premises 
 therein described against the said complainant, or any person or 
 persons claiming by, from or under him, and that the said 
 defendant and all persons claiming by, from or under him be 
 debarred and perpetually enjoined from collecting money upon 
 
DECREES AND OBDEES. 635- 
 
 the said deed of mortgage and from setting up the same against 
 the premises therein described. 
 
 Decree to reform a mortgage, so as to convey an 
 estate in fee simple.(a) 
 
 {Title of cause.) 
 
 This cause coming on to be heard, upon the bill of complaint 
 and answer thereto filed, and it appearing to the court that the 
 mortgages in said bill of complaint set forth, and each of them, 
 were, as the defendants admit, drawn, by inadvertence, ignorance 
 and mistake, in such a manner as that although it was intended 
 by the parties that the same should convey an estate in fee simple 
 in the real property therein described, no greater estate was 
 thereby conveyed, by the strict rules of the common law, than 
 an estate for the lives of the grantees : It is, &c., on motion, &c., 
 ordered, that the said mortgages, and each of them, be reformed 
 by the substitution of the word "heirs" for the word "succes- 
 sors," wherever the same occurs in either of the said mortgages,, 
 in the statement or description of the estate thereby mortgaged, 
 as well in the habendum clause therein as elsewhere ; and that 
 the said mortgages shall be held, construed and regarded as hav- 
 ing conveyed an estate in fee simple in the said real property 
 therein described respectively, any want of apt words therefor 
 in the said mortgages, and each of them, as originally drawn, to 
 the contrary notwithstanding. 
 
 And it is further ordered, that the said defendants do pay the 
 costs of this suit. 
 
 (a) Where an instrument is exe- V. Donnelly, 7 Vr. 432 ; McMillan v. 
 cuted which is intended to carry into N. Y. Waterproof Paper Co., 2 Stew. 
 execution an agreement previously Eq. 610. Mortgage reformed by sub- 
 entered into, but, by mistake of the stituting "heirs'' for "successors." 
 draughtsman, either as to fact or law, Fish v. N. Y. Waterproof Paper Co., 2 
 it does not fulfill that intention, or Stew. Eq. 16; S. C, 2 Stew. Eq. 610^ 
 violates it, equity will correct the Randolph v. N. J. West Jjine R. R., 
 mistake. Wintermute v. Snyder, 2 Or. 1 Stew. Eq. 49. The reformation was 
 Ch. 489. Where the intention is made under a bill to foreclose by sub- 
 manifest, a court of equity will con- stituting "heirs" for "successors," in 
 strue the deed so as to give effect to Fish v. N. Y. Waterproof Paper Co., 2- 
 the intention of the parties. Siaaon Stew. Eq. 16. 
 
•636 FORMS OF PLEADINGS. 
 
 Decree to reform a trust deed, so as to confer a 
 power of mortgage.(a) 
 
 (2Y<fe of cause.) 
 This cause coming on to be heard and debated, in the presence 
 of , of counsel with the complainants, in term of , 
 
 in the year one thousand eight hundred and , before his 
 
 Honor the Chancellor, whereupon and upon reading the plead- 
 ings and proofs and the Chancellor having duly considered the 
 ^ame, and the arguments of counsel thereon, and it appearing 
 that the said deed of trust or settlement, in the pleadings and 
 proofs in this cause mentioned, made and executed by the com- 
 plainant, , to , was made under mistake and misap- 
 prehension of its legal effect; that the agreement between the 
 parties to the said deed was that said deed should contain a 
 power of mortgage, and also an absolute power of sale with the 
 written consent of the said , and that in these respects said 
 deed was not drawn according to the intention and agreement of 
 the parties to it, and that through said omission and mistake the 
 said trust deed does not contain a power of mortgage or sale ; 
 and the Chancellor being of opinion that it ought to contain a 
 power of mortgage, and also a power of sale, in accordance with 
 the intention and agreement of the parties to it : It is, on this, 
 
 (a) Equity will correct a mistake Morris, 2 Stew. Eq. 222 ; S. C, 3 Stew. 
 
 in a deed so as to make it conform to JEq. 285. A mortgage sought to be 
 
 the agreement of the parties. Hen- reformed by a defendant can only be 
 
 ^rickson v. Ivins, Sax. 562 ; Hoyt v. done by cross-bill. French v. Oriffin, 
 
 Hoyt, 12 C. E. Or. 399 ; see Loss v. 3 O. E. Or. 279. A mortgage will 
 
 Obry, 7 C E. Or. 52. Whether made not be corrected as against a snbse- 
 
 by the scrivener or inadvertence of quent bona fide purchaser without 
 
 the parties. Ibid.; Wintermute v. notice. Mutgers v. KingslamI, 3 Sal. 
 
 , 2 Or. Oh. 489. The mistake Ch. 178, 658 ; Wheeler v. Kirtland, 8 
 
 must be clearly proved. Oraham v. C. E. Or. 13 ; S. C, on appeal, 9 G. E. 
 
 Berryman, 4 O. E. Or. 29 ; Burgin v. Or. 552. A .voluntary deed of trust 
 
 Oiberson, 11 O. E. Or. 72. Parol executed under the supposition that 
 
 -evidence is sufficient. Ghetwood v. it was revocable and intended so to be, 
 
 Briltan, 1 Or. Gh. 438 ; McKelway v. but reserving no power of revocation 
 
 Armour, 2 Stock. 115; but see Dwant and otherwise unadvised, improvident 
 
 v. Bacot, 2 McGart. 413. As to the and contrary to the intention of the 
 
 .effect of notice from the registry or grantor, was set aside in Gainsey v. 
 
 record of the mortgage, see Wilson v. Mmidy, 9 G. E. Or. 243. 
 Xing, 12 G. E. Or. 374; Gale v. 
 
DECBEES AND OBDEBS. 637 
 
 &c., on motion, &g., ordered and decreed, that the said deed of 
 trust be and it is hereby so corrected and reformed as that the 
 trustees of the said complainant, , or the survivor of them, 
 
 their, his or her heirs or assigns, shall have power, at their, his- 
 or her discretion, with the written consent of the said , to 
 
 mortgage the said trust estate, or any part thereof, (the mort- 
 gagee not to be liable to see to the application of the moneya 
 raised upon such mortgage,) and, at their, his or her discretion,, 
 with the like written consent of the said , to sell and con- 
 
 vey said trust estate, or any part or parts thereof, at any time or 
 times, (the purchaser or purchasers not to be bound to see to the 
 application of the purchase money,) and to apply so much of the 
 moneys raised by mortgage, or by the sale or sales of the said- 
 trust property, as may be necessary for the purpose, to the pay- 
 ment of the taxes, assessments and necessary expenses upon and 
 in the improvement and development of the said estate ; the bal- 
 ance thereof to be held upon the trust declared in said deed. 
 
 Final decree on a mortgage declared to be usuri- 
 
 This cause being opened to the court by , of counsel 
 
 with the complainant, the same having been submitted to the 
 Chancellor for his opinion thereon upon the pleadings and proofs, 
 and the Chancellor having taken time to advise thereon, and 
 being of opinion that the complainant is entitled to receive from 
 the defendants, on his mortgage, the sum of dollars, but 
 
 without interest thereon, except from the date of this decree, and' 
 without costs : It is, on this, &c., ordered and decreed, that the 
 complainant is entitled to have said sum of dollars, with 
 
 interest thereon, as aforesaid, raised and paid out of the mort- 
 gaged premises. 
 
 And it is accordingly further ordered and decreed, that so- 
 much of the estate and premises in the said mortgage and bill 
 of complainant in this cause contained as will be sufficient to 
 raise and satisfy the said debt and interest, be sold, and that a 
 writ of fieri faoias do issue for that purpose out of this courty 
 directed to the sheriff of the county of , commanding himi 
 
 (a) See Bev., "Interest," § 2, and notes. 
 
-638 FORMS OF PLEADINGS. 
 
 to make sale, according to law, of so much of the said mort- 
 gaged premises as will be sufficient to satisfy the said debt, with 
 interest from the date of this decree ; and that he pay the same 
 to the complainant or his solicitor ; and that in case more money 
 should be raised by the said sale than shall be sufficient to answer 
 such payment, such surplus money be brought into this court, 
 and deposited with the clerk, to abide its further order, unless 
 otherwise previously disposed of by the order of this court ; and 
 that the said sheriff make return according to law to this court 
 -of his proceedings by virtue of the said writ. 
 
 And it is further ordered and decreed, that the defendants 
 stand absolutely debarred and foreclosed of and from all equity 
 of redemption of, in and to so much of the said mortgaged 
 premises as shall be sold as aforesaid, by virtue of this decree. 
 
 PROCEEDINGS RESPECTING LUNATICS, IDIOTS 
 AND HABITUAL DRUNKARDS.(a) 
 
 Petition for commission of lunacy. 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , of the township of , in the 
 
 -county of , and State of New Jersey, respectfully shows, 
 
 that , of the township of , in the county of , 
 
 (a) An idiot is a person who has land, it was held that the court had 
 been without understanding from his jurisdiction in oases where the mind 
 nativity, and whonsi the law, there- had become umownd from old age, 
 fore, presumes never likely to attain infirmity or any other cause of a per- 
 nio any. A lunatic is one who has manent nature. To constitute a case 
 had understanding, which he has lost of unsoundness of mind which will 
 hj disease, grief or other accident, justify the court in taking the person 
 He is properly one who has had lucid and property of a man into its posses- 
 intervals, sometimes enjoying his sion, and committing them to the 
 .senses and sometimes not. Shelf, on custody of another, his mind must 
 Lim. 2, 4. It was formerly doubted be unsound, so that he is mentally 
 whether the court could proceed upon incapable of governing himself or 
 .a commission which did not find the managing his afiSurs. In re Morgan, 
 party either a lunatic or an idiot. 7 Paige 236 ; gee Matter of Baker, 2 
 £ut at a more recent period, in Eng- Johns. Oh. 232 ; Matter of Sarah Ool- 
 
PROCEEDINGS EESPECTING LUNATICS, ETC. 
 
 639 
 
 and state aforesaid, who is the father (or as the case may be,) of 
 your petitioner, is now, and for the space of years last 
 
 past and upwards, has been, so far deprived of his reason and 
 understanding that he is rendered altogether unfit and unable 
 to govern himself or to manage his affairs, as by the affidavits 
 hereto annexed appears, (a) Your petitioner therefore prays, that 
 
 lins, 3 C. E. Or. 253 ; Lindsley's Case, 
 17 Stew. Eg. 564. A mere failure of 
 memory and decay and feebleness of 
 the intellectual faculties are not evi- 
 dences of that unsoundness of mind 
 which will justify a jury in finding a 
 man a lunatic. In re Vanauken, 2 
 Stock. 187. 
 
 By a recent statute, whenever any 
 person has been adjudged insane by a 
 j udge of the Court of Common Pleas as 
 provided by law, and has been duly 
 committed to a lunatic asylum of this 
 state at the expense of any county 
 therein, and it shall appear that such 
 person is entitled to any estate not 
 exceeding one thousand dollars, it 
 shall be lawful for the Orphans' Court 
 of the county at whose expense the 
 lunatic is maintained to appoint a 
 guardian for him without an inquest. 
 Pamph. L., 1890, p. 182. 
 
 (o) The first step to be taken to- 
 wards the appointment of a guardian 
 of a lunatic, idiot or habitual drunk- 
 ard, is to apply for a commission in 
 the nature of a writ de lunatieo in- 
 quirendo. This application should 
 be made by petition, signed by the 
 party preferring it, and attested by 
 his solicitor, and stating the residence 
 and degree of relationship or other 
 connection which the petitioner bears 
 towards the subject of the commis- 
 sion, that he is now of unsound mind, 
 and the period for which he has been 
 so, and praying that a commission of 
 lunacy may issue. Shdf. on Imn. 
 *624. The. petition is usually pre- 
 sented by a near relative of the sup- 
 
 posed lunatic. It may be presented 
 by a husband for a commission against 
 his wife, and vice versa ; or by a father 
 or mother against a child, and vice 
 versa; by brothers, sisters, uncles, 
 aunts, nephews, nieces and cousins 
 against each other. An executor 
 under a will may prefer a petition 
 for a commission against a legatee 
 under the same will. A trustee under 
 a deed may prefer a petition against 
 his cestui que trust. Creditors mS,y 
 prefer a petition for a commission 
 against their debtor. A commission 
 has also been issued on the petition 
 of the tenant of the party, and by 
 strangers, when the lunacy seemed 
 indisputable. Shelf, on Lun. 93. As 
 to strangers, it was held in New Jer- 
 sey that they have no right to inter- 
 fere in a proceeding of this nature. 
 Covenhoven's Case, Sax. 19. This rule 
 has been found inconvenient in some 
 cases, and now it is held not to be 
 of universal application. Applica- 
 tions in matters of this nature by 
 strangers are not encouraged, yet they 
 will be listened to and granted when 
 the necessity arises, and actual and 
 bona fide interests or rights are en- 
 dangered. See 3 Moulton's Oh. Pr, 
 496. 
 
 A commission of lunacy may issue 
 where the alleged lunatic is an infant. 
 In re Ghattin, 1 O. E. Gr. 496. 
 
 There is a limitation by statute in 
 the case of habitual drunkenness, 
 which provides that no petition for 
 an inquisition in such case by a wife 
 against her husband, or a child 
 
640 FORMS OP PLEADINGS. 
 
 a commission, in the nature of a writ de limatieo inquirendo,. 
 may issue out of this honorable court, to inquire of the lunacy 
 of the said , directed to such persons as your Honor shall 
 
 think fit. 
 
 And your petitioner will ever pray, &c. 
 
 (Signature of petitioner and of solicitor and eou/nsel.) 
 
 Verification of petition. 
 
 State of New Jersey, \ 
 County of , / " 
 
 , being duly sworn, says — that he is the petitioner 
 named in the foregoing petition ; and that the matters and things 
 therein set forth are true ; and further, that, &c., (stating some of 
 the evidences of vnsowndness, dec, if the petitioner has knowledge 
 thereof.) 
 , {Affidavits annexed.) 
 
 Form of affidavits to be annexed to petition of 
 liinacy.(o) New Jersey, ss. — and , of the town- 
 
 ship of , in the county of , and State of New 
 
 against his or her parent, shall be wields Case, 2 Ves., Sr., 401. In that 
 
 received or acted on. Bev., "Drunk- case it was held that a commissiott 
 
 ards," § 5. It was held in New York might issue to inquire of the lunacy 
 
 that where a petition is presented by of a subject of Great Britain though 
 
 the wife of the alleged lunatic, it domiciled abroad, and it was directed- 
 
 must be in the name of her next that the commission be executed in 
 
 friend, who will be answerable for the place where the lunatic's mansiou- 
 
 the costs of the application in case house was. See Reo., "Lunatics," ^ 1. 
 
 the court should think proper to im- The statute provides for the case of 
 
 pose them upon the petitioner. 2 a non-resident lunatic. Id., J 2; 
 
 Sarb. Ch Pr. 229. Pamph. L., 1893, p. 507 . And there- 
 
 A commission may issue where the fore it seems unnecessary that the jur- 
 
 alleged lunatic is a non-resident or isdiction of chancery should be in- 
 
 . temporarily absent from the state. voked And the requirement of the 
 
 In re Child, 1 C. E. Or. 498. The statute that thecopy of theproceedings 
 
 syllabus of this case is not sup- shall be transmitted to the Orphans' 
 
 ported by the opinion. The question Court of the county where the lunatic 
 
 there seems to have been whether a resides would seem to be conclusive, 
 
 commission could be directed into a (a) The petition must be supported 
 
 county where the alleged lunatic did by the affidavits of at least two persons 
 
 not reside. The case cited in the showing the insanity or unsound state 
 
 opinion to sustain the text is South- of the mind of the party against whom^ 
 
PR0CEBDIKG8 RESPECTING LUNATICS, ETC. 641 
 
 Jersey, both being of full age, and being duly sworn according 
 to law, on their oaths say — that for the space of years 
 
 and upwards they have known and been well acquainted, and 
 frequently discoursed with , of said township of ; 
 
 and these deponents further severally say, that within the space 
 of years last past they have, by frequently observing the 
 
 behavior, words and actions of the said , looked upon him 
 
 to be a person deprived of his reason and understanding in a 
 very great degree. 
 
 And this deponent, , for himself, saith, {h&re state facia 
 
 showing insanity.) 
 
 And these deponents further severally say, that they believe 
 that the said is no way capable of governing himself or 
 
 his estate. 
 
 (Jurat.) {Signatv/res.) 
 
 Petition for a commission of idiocy.(a) 
 {Address.) 
 
 The petition of , of, &c., respectfully shows, that , 
 
 of, &c., who is a brother of your petitioner, has been from the 
 time of his birth, and still is, wholly deficient in reason and 
 understanding, and is an idiot, as by the affidavits annexed 
 appears. 
 
 Your petitioner therefore prays, that a commission in the 
 nature of a writ de idiota imquirendo may issue out of this hon- 
 orable court, to inquire of the idiocy of the said , directed 
 to such persons as your Honor shall think fit. 
 
 And your petitioner will ever pray, &c. 
 
 {Signaiwe of petitioner and of solicitor and counsel.) 
 
 {Annex verification by petitioner.) 
 
 the commission is desired to be ob- ble physician who is acquainted with 
 
 tained, by setting forth such instances the lunatic and knows the state of 
 
 of irrational conduct as afford strong his mind. For forms of affidavits in 
 
 proof that he is insane, and incapable support of commissions in lunacy, see 
 
 of managing his own concerns. Shelf. Shelf, on Lun. *640. 
 on Lun. 624; Rule 172; Cmenhoven's (a) The observations in the notes 
 
 Gase, Sax. 19. It is the practice to on the preceding pages apply as well 
 
 annex the affidavit of some respecta- to a case of idiocy as to that of lunacy. 
 
 2q 
 
642 ' FORMS OP PLEADINGS. 
 
 Petition for a commission against an habitual 
 
 drunkard.(a) 
 
 {Address.) 
 
 The petition of , of the township of , in the 
 
 county of , and State of New Jersey, respectfully shows 
 
 unto your Honor, that , the brother of your petitioner, 
 
 {or as the ease may be,) of the township of , in the said 
 
 county of , is now, and for the space of years last 
 
 past has been, an habitual drunkard, by reason of which said 
 habitual drunkenness he has become incapable of managing his 
 estate, and is wasting the same; and that the said is 
 
 possessed of considerable real and personal estate in this state, as 
 appears by the affidavits hereto annexed. 
 
 Your petitioner therefore prays, that your Honor will be 
 pleased to order that a commission in the nature of a writ de 
 lunatioO inquirendo may issue out of this honorable court, to 
 inquire into the habitual drunkenness of the said , directed 
 
 to such persons as your Honor shall think fit. 
 
 And your petitioner will ever pray, &c. 
 
 {Signatures of petitioner and ooumsel.) 
 
 Order for commission of lunacy, idiocy or habit- 
 ual drunkenness. (6) 
 , In the matter of , of, &c., \ 
 
 alleged to be a lunatic, {or "idiot," V 
 
 or "habitual drunkard.") J 
 
 Upon opening the matter this day to the Chancellor by , 
 
 solicitor and of counsel with the petitioner, and upon reading 
 
 (a) No petition for an inquisition makes it lawful for the Chancellor to 
 
 under the act relative to habitual issue a commission, &c, to inquire 
 
 drunkards by a wife against her hus- into the habitual drunkenness of any 
 
 band, or by a child against his or her person in this state having real or 
 
 parent shall be received or acted on. personal estate therein ; it would 
 
 Rev., "Drunhards,'' ? 5. The statute seem, therefore, to be necessary to 
 indicates, and the reason of the thing . allege in the petition not only that 
 
 requires, that the practice in cases of he is incapable of managing his estate, 
 
 habitual drunkenness should be sub- or is wasting the same, but also the 
 
 stantially the same as in cases of fact that he is possessed of such real 
 
 lunacy. Matter of Weis, 1 C. E. Qr. or personal estate. Ste Rev , "Drunk- 
 
 318 ; 'Ro!., "Drunkards," §§ 1, 8 ; Rev. ards," ? 1. 
 Sup., "Drunkards," J 1. The statute (6) The petition is ex parte. If it 
 
PB0CBEDING8 KESPBCTING LUNATICS, ETC. 
 
 643 
 
 -the petition of , and the affidavits of and 
 
 thereto annexed : It is, on this, &o., ordered, that upon filing 
 the said petition and affidavits, a commission in the nature of 
 a writ de lunatioo {or " idiota ") inquirendo do issue out of, and 
 under the seal of this court, agreeably to the prayer of the said 
 petition, to inquire of the lunacy, {or "idiocy," or "habitual 
 drunkenness,") of the said , to be directed to {a master in 
 
 chancery,) and and , of the county of , who, 
 
 or any two of them, of whom {the master) shall be one, 
 
 are hereby appointed commissioners for the purpose aforesaid. 
 
 Commission to inquire of lunacy or idiocy.(a) 
 
 New Jersey, ss. — The State of New Jersey to , 
 
 presents a prima facie case of lunacy, 
 idiocy or habitual drunkenness, the 
 court will, in general, grant the order, 
 though it is not bound to do so. Ux 
 parte Tomlinson, 1 V. & B. 58. The 
 issuing of a commission rests in dis- 
 cretion. In re Ohattin, 1 C. E. Or. 
 '496. It is the duty of the solicitor for 
 the petitioner to suggest the names of 
 commissioncrd who will be competent 
 to execute the commission, and to 
 give the proper instructions to the 
 jury without the aid of counsel to per- 
 form that duty for them. Matter of 
 Moot, 8 Paige 627. By the practice in 
 New Jersey, at least one of the com- 
 missioners named must be a master 
 in chancery who is a solicitor of the 
 ■ court, and he is to act in executing 
 the commission, and it is the practice 
 also to appoint a9 a commissioner a 
 physician. 
 
 (a) When the Chancellor has made 
 .an order for the issuing of the com- 
 mission, the petition and order are 
 filed with the clerk, who will seal the 
 commisuon and deliver it to the 
 solicitor of the petitioner. In all 
 •cases where a commission of idiocy, 
 lunacy or habitual drunkenness shall 
 issue, it shall be executed, and the 
 
 inquisition returned to the Chan- 
 cellor, in two months after making 
 the order for issuing of the commis- 
 sion, or the commission shall be con- 
 sidered as superseded, and no pro- 
 ceedings shall take place thereon 
 without the further order of the 
 court ; and no decree shall be entered 
 upon any inquisition and signed until 
 the expiration of ten days after the 
 inquisition shall be returned into the 
 office. Mule 174. Where the alleged 
 lunatic is in an asylum, the commis- 
 sion should be executed in the county 
 where his mansion and estate are, or 
 where he last resided before being 
 sent to the asylum. In re Child, 1 O. 
 E. Or. 498. But it seems, from one 
 or two modern cases, that where the 
 estate of the lunatic is small, the 
 court will, in order to avoid the in- 
 convenience and expense, order the 
 commission to issue to a different 
 county from that in which the lunatic 
 resides. Ibid. In case of the death 
 or indapacity of the commissioners 
 before whom the commission has been 
 executed, it will be suspended and a 
 new one directed to issue. Shelf, on 
 Imn. 83. 
 
644 FOKMS OP PLEADINGS. 
 
 and , of the county of , and State of New Jersey — 
 
 Greeting : 
 
 Know ye, that we have assigned you, and any two of you, of 
 
 whom you, the said (master), shall be one, and you are 
 [l. S.J hereby assigned to inquire, by the oaths or affirmations 
 
 of good and lawful men of the said county of , 
 
 by whom the truth of the matter may be the better known^ 
 whether , of the township of , in the county of 
 
 , and state aforesaid, is * a lunatic or of unsound mind, 
 (or, " is an idiot,") so that he is not fit for the government of 
 himself, his lands and tenements, goods and chattels, or, in the 
 case of an habitual drunhard, after *, an habitual drunkard, by 
 reason whereof he has becpme incapable of controlling or man- 
 aging himself or his estate, {or, " is wasting his- estate,") and if 
 so, from what time, after what manner, and how ; and if the 
 said , being in that condition, has alienated any lands and 
 
 tenements or not, and if so, * what lands and what tenements, to 
 what person or persons, where, when and after what manner, and 
 how; and what lands and tenements, goods and chattels, yet 
 remain to him, and of what value the lands and tenements by 
 him alienated, as well as those by him retained, are ; and of what 
 person or persons, as well the lands and tenements so alienated 
 as the lands and tenements by him retained, are held, and after 
 what manner, and how much the issues and profits thereof are 
 worth by the year ; and what is the value of his goods and chat- 
 tels and personal estate ; and who are his nearer heirs, and or 
 what age. And therefore we command you, or any two of you 
 as aforesaid, that at certain days and places, which you, or any 
 two of you as aforesaid, shall for that purpose appoint, you 
 diligently make inquisition in the premises ; and that you cause 
 ten days' notice of the time and place by you appointed for that 
 purpose to be given to the said ; and that you send the 
 
 inquisition which you shall thereupon make, under your seals, 
 or the seals of any two of you as aforesaid, and the seals of 
 those persons by whom it shall be made, distinctly and plainly, 
 and without delay, to our Chancellor, in our Court of Chancery, 
 together with this our writ. And we command, by the tenor of 
 these presents, the sheriflF of the county of aforesaid, that 
 
645 
 
 At certain days and places which you, or any two of you as 
 aforesaid, shall make known to him, he cause to come before 
 you, or any two of you, so many and such good and lawful men 
 -of said county of , each of whom is a citizen of this state 
 
 resident in said county of , above the age of twenty-one 
 
 years and under the age of sixty-five years, as you shall direct, 
 by whom the truth of the matters aforesaid may be the better 
 Jinown and inquired into. 
 
 Witness , Chancellor, at Trenton, the day of 
 
 , eighteen hundred and 
 
 Solieitor. Clerk. 
 
 Eeturn to commission. The execution of this commis- 
 sion appears by the return hereto annexed. 
 
 (Signatures of commissioners.) 
 
 Precept to the sheriff to summon a jury. (a) 
 
 By virtue of a commission in the nature of a writ de Ivmatieo 
 dnquirendO) under the seal of the Court of Chancery of the State 
 of New Jersey, bearing date at Trenton, the day of , 
 
 (o) Upon receiving the commission, If twelve concur in the verdict it will 
 JLhe commissioners, or the one first be suflScient, although others refuse 
 jamed, or the solicitor of the peti- to join. Shelf, on Lun. 95 ; Ex parte 
 tioner for them, will prepare a pre- Wragg, 5 Ves. 450. By statute, now 
 cept to the sheriff of the county in the sheriff may in all cases summon 
 which the commission is to be exe- twelve jurors instead of twenty-four, 
 .cuted, which the commissioners, Or and their verdict (which must be 
 the major part of them, will issue unanimous) will be as legal and bind- 
 under their hands and seals, directing ing as if found by twenty-four jurors. 
 «aid sheriff to cause a jury of twenty- When a jury of twelve is summoned, 
 four good and lawful men of his they are entitled to two dollars each 
 county 10 come before Ihem at a cer- per diem, and the commissioners may 
 tain time and in a certain place, to in- be allowed such compensation as is 
 .quire, upon their oaths, of the matters reasonable and proper, to be paid out 
 and things which shall be given them of the estate of the subject of the in- 
 in charge by virtue of the commission. quisition. Pamph. L., 1887, p. 48. 
 Shelf, on Lun. 95. By virtue of this See In re Farrell, Oct. T., 1893. The 
 precept, the sheriff summons the commissioners are authorized to de- 
 jurors, whose names are written in a cide upon the validity of challenges 
 panel annexed to the precept, to to jurors. But they have no right to 
 which panel he refers in making his dictate to the sheriff what persons 
 ietuin. No inquest can betaken upon should be summoned as jurors. Mat- 
 (the oaths of less than twelve jurors. ter of Wager, 6 Paige 11. 
 
646 FOBMS OF PLEADINGS. 
 
 eighteen hundred and , to us whose names are hereunder 
 
 written directed, to inquire whether , of the township of 
 
 , in the county of , and state aforesaid, be a lunatic 
 
 (or "an idiot") or not; these are therefore to will and require 
 you to cause to come and appear before us, twenty-four {or 
 " twelve," as the case may be,) good and lawful men of the said 
 county of , above the age of twenty-one years and under 
 
 the age of sixty-five years, on , the day of > 
 
 instant, at o'clock, in the noon of the same day, at 
 
 , then and there, upon their oaths and affirmations, to 
 inquire of the lunacy (or "idiocy") of the said , and of 
 
 all such other matters and things as shall be given them in charge 
 by virtue of the said commission ; and thereof fail not, at your 
 peril. Given under our hands and seals the day of , 
 
 eighteen hundred and 
 
 (Signatures and seals of commissioners.) 
 
 To the sheriff of the county of 
 
 Return of sheriflf annexed to precept. The execution 
 of the within precept appears by the panel annexed. 
 
 (Signature of sheriff.) 
 
 (County), ss. — Names of the jurors to inquire according to 
 the tenor of the precept annexed : (here follow the names of the 
 jurors.) 
 
 Commission to inquire of habitual drunkenness. 
 
 New Jersey, ss. — The State of New Jersey to , of the 
 
 county of , and State of New Jersey — Greeting : 
 
 Know ye, that we have assigned you, and any two of you, of 
 whom shall be one, and you are hereby assigned to inquire, 
 by the oaths and affirmations of good and lawful men of th& 
 county of , by whom the matter may be the better known, 
 
 whether , of , in the county of , is incapable 
 
 of managing his estate (or, "is wasting his estate,") in conse- 
 quence of habitual drunkenness, and if so, from what time he 
 has been * so incapable, (or after *, "wasting his estate,") in 
 consequence of such habitual drunkenness. And if the said 
 , being so incapable, has alienated any lands or tenements^ 
 and if so, &o., (continue as in preceding form from *.) 
 
PROCEEDINGS EE8PECTING LUNATICS, ETC. 647 
 
 Notice to lunatic or idiot, &c., of executing com- 
 niission.(a) 
 
 (Title of matter.) 
 
 Take notice, that a commission to inquire as to your alleged 
 lunacy, (or "idiocy," or "habitual drunkenness,") issued out of, 
 and under the seal of the Court of Chancery of the State of 
 New Jersey, and to us directed as commissioners, will be exe- 
 cuted at (designate particularly the place of holding the inquisition,) 
 on the day of next, (or " instant,") at o'clock 
 
 in the noon. 
 
 Dated, &c. (Signatures of commissioners.) 
 
 To 
 
 Warrant to produce alleged lunatic.(6) . 
 
 By virtue of a commission in the nature of a writ de lunatico 
 inquirendo, under the seal of this court, bearing date, &c., (date 
 of commission,) to us whose names are hereunder written directed, 
 to inquire whether , of (place,) be a lunatic or not, these 
 
 are to will and require you to produce before us the said , 
 
 at the execution of the said commission, on the, &c., at, &c. 
 
 Given under our hands and seals this, &c. 
 
 (a) Ten days' notice of the taking parte Whitenack, 2 Gr. Oh. 252. In 
 
 of the inquisition shall be given to cases of confirmed and dangerous 
 
 the person who is the subject thereof; madness, notice may be dispensed 
 
 the Chancellor, however, may, for with, but then only by the express 
 
 good reasons, allow shorter notice, or order of the court. In re Vanauken, 
 
 dispense with notice altogether. Proof 2 Slock. 186. Before entering upon 
 
 of the giving of the notice shall be the examination, the commissioners 
 
 filed with the inquisition, and in case should require due proof of the ser- 
 
 less than ten days' notice has been vice of notice on the lunatic, 
 given, or no notice at all, the reasons (6) At a, personal examination of 
 
 therefor shall appear by affidavit, to an alleged lunatic by the commis- 
 
 be filed with the inquisition. Mule sioners and jurors, all other persons, 
 
 173. The want or defect of notice is including counsel, may be excluded, 
 
 not aided by the alleged lunatic ap- so that the commissioners and jurors 
 
 pearing before the jury and attempt- may be at liberty to exercise their, 
 
 ing a defence. An inquisition taken own observations. Lindsley's Case, 1 
 
 without due notice will be set aside Dick. Ch. Sep. 358. 
 and a new commission awarded. JUx 
 
648 FOEMS OF PLEADINGS. 
 
 Oath to juror on execution of conimission.(a) You 
 shall well and truly try and inquire touching the lunacy, {or 
 " idiocy," or " habitual drunkenness,") of , and of all such 
 
 matters and things as shall be given you in charge by virtue of 
 a commission issued out of, and under the seal of the Court of 
 Chancery, to inquire into his said lunacy, {or " idiocy," &c.,) 
 and now here to be executed, and a true inquisition make accord- 
 ing to the evidence. So help you God. Shelf, on Lun. 625. 
 
 Oath to witnesses on an inquisition.(6) The evidence 
 you shall give touching the lunacy {or " idiocy," or " habitual 
 drunkenness,") of , and all such matters and things as 
 
 shall be required of you, by virtue of a commission issued out 
 of, and under the seal of the Court of Chancery of New Jersey, 
 now here to be executed, shall be the truth, the whole truth and 
 nothing but the truth, So help you God. 
 
 Subpoena for witnesses on execution of commis- 
 sion, (c) By virtue of a commission in the nature of a writ de 
 Iv/natieo {or " idiota ") inquirendo, issuing out of, and under the 
 seal of the Court of Chancery of the State of New Jersey, 
 bearing date the day of , eighteen hundred and 
 
 , to us whose names are hereunder written directed, to 
 inquire whether , of , be a lunatic {or " an idiot," 
 
 or "an habitual drunkard,") or not, this is to require that 
 you, " and each of you," personally be and appear before us at 
 the execution of the said commission, at , in , on 
 
 the day of , instant, at o'clock in the 
 
 (a) The commissioner named in the missions of lunacy, have power to 
 
 commission who is a master in chan- summon witnesses, and issue subpoenas, 
 
 eery usually administers the oath to as incident to their office. Shdf. on 
 
 the jurors. There is no statute or Lun. 103. If the witnesses fail to 
 
 rule of court requiring the commis- attend in obedience to this summons, 
 
 sioners to be sworn. it will be necessary to get an order of 
 
 (6) The chief commissioner (being the court to compel their attendance. 
 
 a master in chancery) must swear the It is the usual practice, therefore, in 
 
 witnesses previous to their being ex- New Jersey, to issue a subposna ad 
 
 amined. testificandum, under the seal of the 
 
 (c) The commissioners, under com- court, in the first instance. 
 
PBOCEEDINGS EESPECTING LUNATICS, ETC. 
 
 649 
 
 'Doon, upon your several and respective oaths to testify the truth, 
 according to your knowledge, touching the lunacy (or " idiocy," 
 or " habitual drunkenness,") of the said , and of all such 
 
 matters as shall be demanded of you by virtue of the said 
 commission. Hereof fail not, at your peril. Given under our 
 hands and seals this day of , eighteen hundred 
 
 .and 
 
 {Signatwes and seals of commissioners,) 
 
 Inquisition of lunacy or idiocy, (a) 
 
 (Title of matter.) 
 New Jersey, county, to wit — An inquisition taken at 
 
 , in the township of , county of , and State 
 
 of New Jersey, on the day of , eighteen hundred 
 
 (a) The commissioners and jury 
 having assembled to execute the com- 
 mission, and the jury having been 
 ■duly sworn, and due proof of service 
 of notice upon the lunatic produced, 
 the commission will be read to the 
 jury, and the chief commissioner in 
 attendance will explain to them the 
 nature of the inquiry they are to 
 snake and their duties. The counsel 
 for the petitioner states the case to the 
 jury, with such observations as may 
 be necessary to explain it. The wit- 
 nesses are then examined, both as to 
 the fact of the lunacy and as to who 
 are his nearer heirs, and the nature 
 ;and extent of his real and personal 
 .estate, as directed in the commission. 
 The object of the inquiry as to the 
 •value of the estate is for the purpose 
 of fixing the amount of the bond of 
 the guardian when appointed. If 
 ■the lunatic be represented by counsel, 
 Tie may cross-examine the witnesses 
 as in other cases in the court. If the 
 lunatic be present, he ought also to 
 be examined by the commissioners or 
 jury, all other parties being absent ; 
 he has also a right to insist on such 
 
 examination, and to be present at the 
 execution of the commission. Shelf, 
 on Imu. 625 ; see also In re Vanauken, 
 2 Stock. 186. The commissioners and 
 jury have a right to examine the sub- 
 ject of the inquisition in person before 
 them without a special order for that 
 purpose. Rule 172. It is not neces- 
 sary that the evidence taken before 
 the jury should be reduced to writing 
 and returned with the inquisition. 
 Covenhoven's Chse, Sax. 19. After the 
 testimony is closed the commissioners 
 should submit the question to the 
 jury in the form of a charge, stating 
 the law applicable to the case, and 
 recapitulating the facts if necessary, 
 and after argument of counsel, if de- 
 sired. Sev. Sup., "Lunatics," § 1. 
 And the jury are to be instructed, if 
 twelve or more of them find that the 
 party is not incompetent, they are to 
 deliver their verdict accordingly ; or 
 if the same number decide against 
 his competency, that they then find 
 and determine the other facts directed 
 to be inquired of; and that if twelve 
 of them cannot agree either way, they 
 report the fact to the commissioners. 
 
650 
 
 FORMS OF PLEADINGS. 
 
 and , before , and , commissioners, by 
 
 virtue of a commission in the nature of a writ de lunatieo, (or 
 "idiota") inquirendo, issuing out of, and under the seal of the 
 Court of Chancery of the State of New Jersey, bearing date at 
 Trenton, the day of , eighteen hundred and , 
 
 to inquire of the lunacy (or "idiocy") of , of the township 
 
 of , in the county of aforesaid, in the said commis- 
 
 sion named, upon the oaths and solemn affirmations of good and 
 lawful men of the said county, that is to say, upon the oaths 
 of , {set forth the names of the jv/rora; if any of the jv/rors, 
 
 affirm, say,) [and upon the solemn affirmation of , they 
 
 having severally alleged themselves conscientiously scrupulous 
 of taking an oath, and being solemnly affirmed,] who, being 
 duly summoned and charged, upon their respective oaths [and 
 
 that their return may* be made accord- 
 ingly. In case there be twelve jurors 
 the instructions will be accordingly.. 
 In relation to every legal question 
 arising in the execution of the com- 
 mission, a majority of the commis- 
 sioners must decide. Matter of Arn- 
 hout, 1 Paige 498. It is improper for 
 the sheriff who summoned 'the jury 
 to be in the room or to converse on 
 the subject with the jury while they 
 are deliberating on their verdict. 
 The extent of his duty is, if directed 
 to do so by the commissioners, to guard 
 the passage to the room occupied by 
 the jury and prevent them from being 
 intruded on by others. Ibid. The 
 solicitor of the petitioner should have 
 an inqnisilion ready prepared in 
 blank. The jury having deliberated 
 on the matter of inquiry, and agreed 
 upon a verdict, are to return the same 
 to the commissioners. The blanks in 
 the inquisition are then filled up, and 
 the inquisition is then signed and 
 sealed by the commissioners and jury, 
 (the commissioners signing on the 
 left-hand side and the jurors on the 
 right-hand side of the page,) after 
 
 having been previously read over. 
 The inquisition is then annexed ta 
 the commission, which is endorsed 
 by the commissioners, and delivered 
 to the solicitor of the petitioner, to be 
 retained in his possession for the com- 
 mission on behalf of the jury. The 
 fit and usual return is "idiot," or 
 "lunatic" with or without lucid in- 
 tervals, and incapable of the govern- 
 ment of himself, his lands, tenements, 
 goods and chattels, or "of unsound 
 mind and incapable of the govern- 
 ment of himself, his lands, tenements, 
 goods and chattels." For proper form 
 of return see Lindsleifs Case, 17 Stew. 
 Eg. 564. If the inquisition finds the 
 party to be a lunatic, but omits to 
 state whether lucid intervals exist or 
 not,, it is not, therefore, bad. Stock's 
 Law of Non Comp. 104. In the case 
 of an idiot the inquisition is sufficient 
 if it finds the party to be so, without 
 the addition of any other words. The 
 jury should find whether the party is 
 of unsound mind or not, although they 
 may not find that he is a lunatic in 
 the popular sense of the word. Mat- 
 ter of Conover, 1 Stew. Eq. 330. 
 
651 
 
 solemn affirmations,] say, that the said , at the time of 
 
 taking this inquisition, * [if the party be found not a lunatic, insert 
 here, " is of sound mind, memory and understanding, and is 
 capable of the government of himself, his lands, tenements, 
 goods and chattels. In testimony," &c., and conclude. If he 
 be found a Ivmatio, add after *, " is a lunatic and of ud sound 
 mind, and does," or "does not," as the case may be, "enjoy lucid 
 intervals," or, "is an idiot,") so that he is not capable of the 
 government of himself, his lands, tenements, goods and chattels; 
 and that he has been in the same state of t(«) lunacy for the 
 space of years last past and upward, (or in ease of idiocy,- 
 
 after f, "idiocy from his nativity.") And the jurors aforesaid, 
 upon their respective oaths [and affirmations] aforesaid, further 
 say, that they find that the said , at the time of taking 
 
 this inquisition, is seized of, and entitled to, all that certain tract 
 of land and premises, situate, lying and being in the township 
 of aforesaid, bounded, &c., (describe premises shortly;) 
 
 and that the issues and profits of the said tract of land and 
 premises are of the yearly value of dollars ; and also that 
 
 the said * has not alienated any lands or tenements during 
 
 his lunacy aforesaid, to the knowledge of the said jurors, (or after 
 *, "being in a state of lunacy, did, on or about the day 
 
 of , eighteen hundred aijd , by a deed of warranty, 
 
 alien, sell and convey unto , of, &c., a certain house and 
 
 tract of land, situate, &c., (briefly describing premises and stating 
 transaction generally.) And the said jurors, upon their respec- 
 tive oaths [and affirmations] aforesaid, further say, that the said 
 is, at the time of taking this inquisition, also possessed of,, 
 or entitled unto, goods, chattels and personal estate consisting of, 
 &c., of the value of dollars or thereabouts. And lastly, 
 
 that , aged years or thereabouts, (and naming nearer 
 
 heirs and their ages,) are the only [children] and nearer heirs of 
 the said 
 
 (a) It is usual, when it appears quisitions having been quashed on 
 
 that the lunacy has been of some the ground that the commencement 
 
 duration, to inquire from what period of the lunacy was not carried back so- 
 
 it commenced. Ex parte Feme, 5 far as was warranted by the evidence. ' 
 
 Ves. 450. There are instances of in- Shelf, on Lun. 97. 
 
^52 POEMS OF PLEADINGS. 
 
 In testimony whereof, as well the said commissioners as the 
 furors aforesaid, have to this inquisition set their hands and seals 
 the day and year first above written.(o) 
 
 {Names and seals of jurors.) 
 
 {Names and seals of commissioners.) 
 
 Order setting aside inquisition and for a new 
 commission in lunacy. 
 
 {Title of matter.) 
 
 On reading the petition filed in the above-stated matter, on 
 the day of last, praying that the inquisition thereto- 
 
 fore returned in said matter might be set aside, and that an order 
 for a new commission might be granted, and on reading the affi- 
 davits attached to said petition, and the alleged lunatic having 
 been personally examined by the Chancellor, and it appearing to 
 the court that the prayer of the said petition should be granted : 
 It is, on this day of , eighteen hundred and , 
 
 on motion of , of counsel with the petitioner, ordered, that 
 
 the inquisition now on file in the above-stated matter be and the 
 same is hereby set aside. 
 
 And it is further ordered, that a new commission do issue 
 out of, and under the seal of this court, agreeably to the prayer 
 of the original petition herein, to inquire of the lunacy of the 
 said , to be directed to , and , of the 
 
 city of , "who, or any two of them, {the master being one,) 
 
 are hereby appointed commissioners for the purpose aforesaid. 
 
 Notice of motion for leave to traverse inquisition 
 jor that an issue be awarded.(6) 
 
 {IH,tle of matter.) 
 As on page 148 to *, then, for an order that have leave 
 
 to traverse the inquisition in this matter, or that an issue may 
 
 (a) The commission must be exe- and no proceeding shall take place 
 
 <;uted and the inquisition returned to thereon without the further order of 
 
 the Chancellor within two months the court. Rule 174. 
 
 after making the order for issuing of (6) A lunatic may appear and tra- 
 
 the commission or the commission verse the inquisition by attorney, but 
 
 .shall be considered as superseded, an idiot must appear before the court 
 
PROCEEDINGS RESPECTING LUNATICS, ETC. 653^ 
 
 be awarded to try the fact of the lunacy of the said , and' 
 
 whether he is capable of the government of himself, his lands, 
 tenements, goods and chattels, and for such other relief as the 
 court may deem proper, which motion will be founded upon the 
 inquisition in this matter and upon the petition and afiSdavits, 
 with copies of which you are herewith served ; and that said 
 be allowed out of his estate a reasonable sum to defray 
 the costs and expenses of trying said issue and the costs of this 
 application. 
 
 Form of a traverse. 
 
 And the said , in his proper person complaining that 
 
 he, under color of the premises, is grievously vexed and dis- 
 quieted, and this not justly, because protesting that the inquisi- 
 tion aforesaid and the matter in the same contained are not 
 sufficient in law, to which he hath no necessity, neither is he 
 bound by the law of the land to answer in any manner, for plea, 
 nevertheless, the said saith that he, the said , at the 
 
 said time of the taking of the inquisition aforesaid, and also 
 always before and continually afterwards, hitherto, was and yet 
 is of sound mind, good understanding and sane memory, and 
 sufficiently capable of the government of himself and his estate 
 aforesaid without this ; that he, the said , at the said time 
 
 of the taking of the inquisition aforesaid, or at any time before 
 or afterwards, was or now is a lunatic, so that he is not capable 
 of the government of himself and his estate aforesaid, and this 
 the said is ready tb verify as the court here shall consider, 
 
 wherefore he prays judgment and that the inquisition aforesaid 
 may be quashed, made void and entirely held for naught, and 
 that he to all things which he hath lost by occasion or color of 
 the inquisition aforesaid may be restored, and that he by occa- 
 sion or color of the inquisition aforesaid may not be any further 
 disturbed, but of the premises by the court here may be entirely 
 discharged. 
 
 in person. Cmmhmen'sCase,Sax.\Q. only upon the exercise of a sound' 
 
 A traverse of an inquisition by an judicial discretion by the coiirt.- 
 
 alleged lunatic cannot be demanded Lindaley's Oase, 1 Dick. Ch. Bep. 358. 
 as a right in this state^^but can be had 
 
654 FOKM8 OF PLEADINGS. 
 
 Order directing an issue in fact. 
 
 {Title of matter.) 
 
 On reading and filing the petition of the above-named , 
 
 praying {or notice of motion) for an order directing an issue to 
 try the question whether the said is a lunatic and incapa- 
 
 ble of governing himself, his lands, &c., and on reading and 
 filing the affidavits of in support of said {petition or 
 
 -motion :) It is, &c., [after hearing in opposition thereto,] 
 
 ordered, that an issue be made up and settled to try the ques- 
 tion whether the said be a lunatic and incapable, &c,, and 
 that the said issue be tried at, &c. 
 
 And it is further ordered, that the solicitor of the said , 
 
 in the first instance, prepare the issue and submit it to the 
 solicitor of , and that if they cannot agree as to its form, 
 
 -&c., application be made to this court; and that if the solicitor 
 for the said shall omit to prepare such issue and to serve 
 
 the same on the solicitor for within days after ser- 
 
 vice of a copy of this order, then the order for the issue shall be 
 deemed discharged. 
 
 And it is further ordered, that {the guardian, if appointed, or 
 otherwise,) pay to the solicitor of the said the sum of 
 
 dollars, to defray the costs and expenses of trying said issue and 
 the costs of this application. 
 
 Decree in case of lunacy.(a) 
 
 {Title of matter.) 
 Upon opening the matter to the Chancellor this day by , 
 
 solicitor for and of counsel with the petitioner, and it appear- 
 ing that the commission awarded in this matter has been duly 
 executed, and returned into this court, with an inquisition 
 
 (a) The decree will not be dated of the petitioner, a transcript of the 
 
 ^nd filed until the expiration of ten proceedings. Whereupon application 
 
 days after the inquisition shall be should be made to the Orphans' Court 
 
 returned into the office. Mule 174. of the county where the idiot, lunatic 
 
 Upon the filing of the decree the or habitual drunkard resides for the 
 
 clerk will tax the costs of the proceed- appointment of a guardian of his 
 
 ings and prepare, under the seal of person and estate. JRev., "LunaMcs," 
 
 the court, and transmit to the solicitor § 1 ; Bev. Sup., "Drunkards," § 1. 
 
PEOCEBDINGS EESPECTING LTJNATICS, ETC. 655 
 
 thereto annexed, taken before , and , com- 
 
 missioners in the said commission named, and bearing date the 
 day of , eighteen hundred and , by which 
 
 the jurors who passed upon that inquiry have found that the 
 said , of , in the township of , in the county 
 
 of , was, at the time of taking tha!t inquisition, a lunatic 
 
 and of unsound mind, and does not enjoy lucid intervals, so that 
 he is not capable of the government of himself, his lands, tene- 
 ments, goods and chattels; and that he has been in the same state 
 of lunacy for the space of years last past and upward ; and 
 
 that at the time of taking said inquisition he was seized of, or 
 «ntitled to, real and personal estate, as is mentioned in the said 
 inquisition : It is thereupon, on this, &c., ordered and decreed 
 by the Chancellor, that the said proceedings be in all things con- 
 £rmed ; and that the clerk of this court transmit to the Orphans' 
 Court of the county of , a certified copy of all the proceed- 
 
 ings in the case, agreeably to the statute in such case made and 
 provided. 
 
 Rule when inquisition is returned not finding a 
 
 lunatic.(a) 
 
 (Title of matter and date.) 
 
 Upon filing the inquisition returned in this matter, by which 
 it appears that the jury of inquest, summoned, charged and 
 sworn to inquire, &c., find that the said , at the time of 
 
 taking said inquisition, was not a lunatic, but was of sound 
 mind, &c, : It is ordered, that the said verdict and return, and 
 all the matters and things therein contained, do stand confirmed, 
 according to the tenor and true meaning thereof, unless the peti- 
 tioner shall, within eight days after service upon him of a copy 
 of this rule, show unto this court good cause to the contrary. 
 
 Entered by , solicitor of the said 
 
 By the court. Clerk. 
 
 (a) It is not the practice to enter of this rule with proof of service 
 an order absolute upon the return thereof. 
 
656 POKMS OF PLEADINGS. 
 
 Petition to set aside inquisition in case of a 
 lunatic, (a) 
 
 (Address.) 
 
 The petition of , of the township of , in the county 
 
 of , in this state, respectfully shows, that in the month of 
 
 , in the year, &c., he having been deprived of his reason 
 by the providence of God, an application was made to the Chan- 
 cellor on the day of , of the ensuing year, for a com- 
 mission in the nature of a writ de Iwnatioo inquirendo, to issue out 
 of the Court of Chancery of this state, to inquire of the lunacy of 
 your petitioner, which commission was duly ordered and directed 
 to , and , commissioners, before whom, after- 
 wards, to wit, on the day of , in the year aforesaid,, 
 at , in the township of aforesaid, an inquest was 
 had and taken, by which it was found, among other things, that 
 your petitioner at the time thereof was a lunatic not enjoying 
 lucid intervals, so that he was not capable of the government of 
 himself, his lands and tenements, goods and chattels ; and further,, 
 that he was seized and possessed of considerable real and personal 
 estate in said county; that that inquisition was duly returned into 
 the said court and a decree entered thereon, on the day of 
 
 , eighteen hundred and ; that a copy of said pro- 
 
 ceedings having been transmitted to the Orphans' Court of the 
 said county of , was by the said Orphans' Court 
 
 appointed guardian of the person and property of your peti- 
 tioner, pursuant to the direction of the statutes in such case made^ 
 and provided ; that said guardian, as your petitioner is informed, 
 in all things complied with the requirements of law, and took 
 upon himself the burthen of said appointment ; that shortly after 
 the taking of the said inquisition your petitioner was restored to 
 his reason and understanding ; that he has had, and still has, the 
 management and oversight of his farm and all his affairs, and 
 that he transacts all his own business ; that some portions of his 
 
 (a) A petition to set aside an in- who has been found a lunatic, andi 
 
 quisition of lunacy on return of a not in the names of his nearest rela- 
 
 lunatic to a sound state of mind and tions. Shelf, on Lan. 204 ; In re Price,. 
 
 capacity to manage his own affairs, 4 Hal. Ch. 533. 
 should be in the name of the person 
 
PB0CEEDING8 BE8PECTING LUNATICS, ETC. 657 
 
 property, such as bonds, notes and mortgages, are in the hands' 
 and possession of his guardian at this time, {or stating the facta, 
 as the case may be.) Your petitioner therefore prays, that said 
 guardian may be discharged from any further or other duties in 
 relation to the care of the person and property of your petitioner; 
 that he be authorized and directed to restore to your petitioner 
 the property he now has in his hands, and that the said inquisi- 
 tion and proceedings thereon may be suspended and determined ; 
 and that your petitioner may have such further or other relief 
 as in justice and equity he is entitled to. 
 
 (Signature of petitioner.) 
 {Signature of counsel with petitioner.) 
 
 Affidavit in support of petition to set aside inqui- 
 sition. Commence as in general form on page 278, and continue, 
 stating facts showing a restoration to a sound state of mind. 
 
 Petition to set aside inquisition in case of an 
 habitual drunkard. (a) 
 
 In the matter of , of, &c., 1 
 
 alleged to be an habitual drunkard, j 
 
 The petition of , of the township of , in the 
 
 county of , and State of New Jersey, respectfully shows, 
 
 that by an inquisition taken on the day of , eighteen 
 
 hundred and , your petitioner was found to be an habitual 
 
 drunkard, so that he was not capable of managing his estate, 
 (or, "was wasting his estate;") that on the day of , 
 
 eighteen hundred and , the said finding and inquisition 
 
 (a) On a petition by an habitual taken thereon and proceedings relat- 
 
 drunkard, setting forth that he is re- ing thereto he altogether superseded 
 
 formed, and has become haibitually .and determined. Rev., "Drunkards," 
 
 sober, and has continued so for one § 7. The practice in proceedings to 
 
 year next preceding, it shall be law- supersede a commission in cases of 
 
 ful for the Chancellor to lake proof habitual drunkenness should be sub- 
 
 of the fact, and if he shall be satisfied stantially the, same as in cases of 
 
 of the truth of the allegation in such lunacy. Matter of Weis, 1 C. E. Or. 
 
 petition, to make an order that the 318. 
 commission issued and inquisition 
 
 2r 
 
658 FORMS OF PLEADINGS. 
 
 were in all things confirmed by the decree of this court ; and 
 that subsequently, in the month of , eighteen hundred 
 
 and , the Orphans' Court of said county of appointed 
 
 guardian of the person and estate of your petitioner, and 
 that thereupon the said guardian took charge of the estate of 
 your petitioner. 
 
 And your petitioner further shows unto your Honor, that he 
 is reformed and has become and is now habitually sober, and 
 has been and continued so for more than one year next preced- 
 ing this time. 
 
 Your petitioner therefore prays, that an order may be made 
 by your Honor, that the commission issued to inquire whether 
 your petitioner was an habitual drunkard, and the inquisition 
 tpken thereon, and all proceedings relating thereto, be altogether 
 superseded and determined; and that the estate belonging to 
 your petitioner now in the possession or under the control of 
 the said , guardian as aforesaid, be restored forthwith to 
 
 your petitioner. {8ignaiure of petitioner.) 
 
 {Annex affidavit of verification of petition, also affidavits of other 
 persons, showing reformation, &o.) 
 
 Order of reference to a master on petition to set 
 aside inquisition.(a) 
 
 {Title of matter.) 
 
 This matter being opened to the court by , of counsel 
 
 with the petitioner, and upon reading and filing the petition 
 
 (a) In New Jersey it is the practice ex parte affidavits, even with the 
 to refer the matter in the first instance assent of the guardian. Ibid. The 
 to a master, who will appoint a time usual course is to refer the petition 
 and place for hearing, upon service to a master to take proofs as to the 
 upon him of a copy of this order, and state of mind of the petitioner, and 
 summon the guardian and all persons to report the proofs and his opinion 
 interested to appear before him at thereon. But though the master re- 
 the time ; and upon investigation ports the proofs and his opinion 
 and examination, he will report as to thereon that the petitioner is re- 
 the truth of the facts alleged in the stored, the Chancellor, in his discre- 
 petition, to the Chancellor. Matter tion, may direct the petitioner to 
 of Weis, 1 O. E. Gr. 318. A com- appear before him for inspection and 
 mission will not be superseded upon examination. In re Rogers, 1 Hal. 
 a hearing without notice, nor upon Ch. 46 ; Matter of Weis, supra. 
 
PROCEEDINGS RESPECTING LUNATICS, ETC. 669 
 
 and the affidavits thereto annexed : It is, on this, &c., ordered, 
 that it be referred to , one of the special masters of this 
 
 -court, to inquire whether the said * is restored to his 
 
 reason and understanding, and is of sound mind ; {or in case of 
 habitual drunkenness, after * " is reformed and has become habit- 
 ually sober, and has continued so for one year next preceding 
 the presentation of his petition ; "(a) and that he make report 
 thereof with all convenient speed to this court. 
 
 And it is further ordered, that due notice of the time and 
 place of such inquiry be given by the said petitioner, or his 
 solicitor, to the said guardian. 
 
 Master's report on petition to set aside inquisi- 
 
 tion.(i) 
 
 {Title of matter.) 
 
 In pursuance of an order of this court entered in this cause, 
 bearing date on the day of , eighteen hundred and 
 
 , I have been attended by the solicitor of the petitioner, 
 and by said petitioner himself, and also by , the guardian 
 
 of said petitioner, and in the presence of the parties attending 
 me I have considered of the matters thereby referred to me, and 
 have inquired thereof as well by the examination of witnesses 
 produced before me on the part and behalf of the said as 
 
 by the personal examination of the said himself; and I 
 
 do hereby certify and report that the said * is now restored 
 
 to his reason and understanding, and is of sound mind, {or in 
 case of habitual drunkenness, insert after *, "is reformed and has 
 become habitually sober, and has continued so for one year next 
 preceding the presentation of his said petition.") And I here- 
 with transmit to the court the depositions of the witnesses exam- 
 ined before me in the above matter. 
 
 Respectfully submitted, this day of , &c, 
 
 {Signature of master.) 
 
 (a) JRev., "Drunkards,'' ? 7. party at whose instance the commis- 
 
 (b) The master may, if it should sion was sued out, or other person in- 
 appear necessary or expedient, re- terested, should have an opportunity 
 quire the evidence of physicians or of appearing before the master. Mai- 
 the personal attendance of the peti- ter of Weis, 1 C. E. (Jr. 320. 
 tioner. The guardian as well as the 
 
660 POEMS OF PLEADINGS. 
 
 Final order on petition to set aside inquisition in. 
 case of a lunatic.(a) 
 
 {Title of matter.) 
 
 Upon opening the matter this day to the Chancellor, by 
 
 , of counsel with said applicant, and it appearing to the 
 
 court, as well by the report of , the master to whom this 
 
 matter was referred by an order of this court, bearing date on 
 
 the day of last, as also by the testimony taken by 
 
 the said master, annexed to and accompanying the said report,. 
 
 that the said is restored to his reason and understanding, 
 
 and is of sound mind : It is, on this, &c., by , Chancellor 
 
 of the State of New Jersey, ordered, that the said master's report 
 
 be in all things confirmed, and that the said inquisition of lunacy,^ 
 
 taken before , and , commissioners, the 
 
 day of , by which, among other things, the said 
 
 was found to be a lunatic, be forthwith superseded and 
 
 determined. 
 
 And it is further ordered, that , the guardian appointed 
 
 by the Orphans' Court of the said county of to take the 
 
 charge and care of the person and estate of the said , da 
 
 deliver, pay over and restore unto the said all the estate, 
 
 real and personal, by him, the said guardian, received, belonging 
 to the said , after deducting thereout his necessary costs,- 
 
 charges and commissions in the ezecutiou of his trust. 
 
 Order to set aside inquisition, &c., in case of an 
 habitual drunkard. 
 
 {Title of matter.) 
 
 having presented a petition to the Chancellor setting 
 
 forth that he is reformed and has become habitually sober, and 
 
 has continued so for one year next preceding the presentation of 
 
 such petition, and the matter having been referred to , one 
 
 (a) Upon obtaining the order, get The Chancellor, in his discretion,.. 
 
 a certified copy of the proceedings may. discharge the guardianship on 
 
 and file them in the Orphans' Court, the ground of restored sanity, or direct 
 
 and proceed to a settlement with the an issue to try the question. In re 
 
 guardian. Rogers, 1 Hal. Ck 46. 
 
661 
 
 •of the special masters of this court, to ezamine into the condi- 
 tion of the sai'd , take proof of the truth of the allegations 
 •contained in said petition, and report the evidence by him taken 
 and his opinion thereon to this court, and the said master having 
 made report that the said is reformed and has become 
 habitually sober, and has continued so for one year next preced- 
 ing the presentation of said petition, and the said report appear- 
 ing to the court to be sustained by the proof taken before said 
 master : It is, on this, &c., ordered, that the commission issued 
 on the day of , eighteen hundred and , to 
 inquire whether said was an habitual drunkard, and the 
 inquisition taken thereon on the day of , eighteen 
 hundred and , finding him an habitual drunkard, and all 
 proceedings relating thereto, be and the same are hereby alto- 
 gether superseded and determined, and , the guardian of 
 the said , is hereby ordered and directed to restore to the 
 said the whole of the estate in his hands or under his 
 control belonging to the said , after deducting the neces- 
 sary costs, charges and commissions of executing his trust. 
 
 Petition by guardian for sale of land of lunatic, 
 or idiot, or habitual drunkard.(a) 
 
 [Address.) 
 The petition of , of, &c., respectfully shows, that on 
 
 the day of , &c., one , then and now a resi- 
 
 dent of, &c,, was, by a decree of this honorable court, declared 
 
 (a) Whenever any idiot, lunatic or application ; and whenever and as 
 
 iabitual drunkard shall be . seized of often as it shall satisfactorily appear 
 
 .any lands or real estate, and it shall to the court that the interest of such 
 
 be represented to the Chancellor on idiot, lunatic or habitual drunkard 
 
 behalf of such idiot, lunatic or habit- requires, or will be substantially pro- 
 
 lUal drunkard, by his or her guardian moted by a sale of his or her lands or 
 
 or guardians, duly appointed in the real estate, or of any part or parts 
 
 manner prescribed in this act, that his thereof, the Chancellor may order 
 
 .or her interest requires that the said and direct the guardian or guardians 
 
 lands should be sold or disposed of, of such idiot, lunatic or habitual 
 
 the Chancellor may proceed in a sum- drunkard to sell or dispose of the 
 
 anary manner, by reference to a mas- whole or any part or parts of such 
 
 ier, to inquire into the merits of such lands or real estate in such way and 
 
662 FOBM8 OF PLEADINGS. 
 
 to be a lunatic {or " an idiot ") upon on inquisition of lunacy {or 
 " idiocy ") returned into this court, as by the proceedings thereon 
 now of record in this court will appear. 
 
 And your petitioner further shows, that on, &c., your peti- 
 tioner was appointed by the Orphans' Court of the county or 
 , guardian of the person and estate of said ; that 
 
 he duly qualified, and is now acting as such guardian. 
 
 And your petitioner further shows, that the said lunatic {or 
 " idiot ") is seized of a certain farm or tract of land situate, &c.,. 
 {describe land.) 
 
 And your petitioner further shows, that the interest of the 
 said lunatic {or " idiot ") requires that the said lands be sold {or 
 "disposed of;") that, &c., {state here the particular reasons that' 
 render a sale necessary and proper.) 
 
 Your petitioner therefore prays, that the merits of this appli- 
 cation may be inquired into, and that a sale of the said premises 
 may be ordered, in such manner and with such restrictions a? 
 the interest of the said lunatic {or "idiot") may require, and as 
 to your Honor shall seem expedient. 
 
 {Signatwrea of petitioner and counsel.) 
 
 State of New Jersey, "> 
 county of , j ' 
 
 , the above-named petitioner, being duly sworn, on his 
 oath saith, that the matters and things set forth in the above 
 petition are true. 
 
 Sworn and subscribed before me, 
 the day of , &c. 
 
 manner and with such restrictions as ard. Rev , "Lunatics," | 7 ; amended 
 
 shall be deemed expedient; provided, hy Rev. Sup., "Imnatics," ? 2. The- 
 
 however, that nothing in this act con- amendment does not in terms au- 
 
 tained shall authorize the sale of any thorize the sale of lands of an habitual 
 
 lands or real estate contrary to the drunkard at private sale, but by a- 
 
 provisions of any last will and testa- recent statute all sales may be pri- 
 
 ment, or of any conveyance, by which vate. See page 420, ante, note (a). 
 
 the same were devised or granted to Rule 175 ; Rev., '-Drunkards,'' § 8^ 
 
 such idiot, lunatic or habitual drunk- See also Pamph. L., 1888, p. 540. 
 
PE0CEEDING8 BE8PECTING IvUNATICS, ETC. 663 
 
 Order to refer merits on application for sale of 
 land of lunatic or idiot.(«) 
 
 [Title of matter,) 
 
 Application, by petition, having been made to the Chancellor, 
 by , guardian of , a lunatic (or "idiot") residing 
 
 in, &e., representing that said lunatic {or "idiot") is seized in 
 fee simple of certain lands and real estate situate in, &c., particu- 
 larly mentioned and described in the said petition ; and repre- 
 senting further, that the interest of the said lunatic (or "idiot") 
 requires that the said lands and real estate should be sold (or 
 " disposed of," ) with his reasons therefor : It is, on, &c., ordered 
 by the Chancellor, that it be referred to , one of the 
 
 special masters, of this court, to inquire into the merits of said 
 application, and to ascertain and report the actual value of the 
 said real estate; and whether the interest of said lunatic {or 
 "idiot") requires and will be substantially promoted by a sale 
 of said lands, or any part thereof, and if so, in what manner 
 and with what restrictions such sale ought to be made; and 
 also in what amount the guardian should be required to give 
 security, and whether the sureties offered by him are sufficient ; 
 and that said master report to this court with all convenient 
 speed. 
 
 (a) Upon the petition being pre- the requisite value according to the 
 sented to the court, if it satisfactorily 176th rule ; and what should be the 
 appear that there is reasonable ground penalty of the guardian's bond in con- 
 fer the application, there shall be a formity to that rule, and also to ascer- 
 reference to a special master to ascer- tain the truth of the facts stated in 
 tain and report what is the actual the petition, and whether the interest 
 value of the real estate proposed to be of the idiot, lunatic or drunkard re- 
 sold or disposed of, and of each sepa- quires that said real estate or any 
 rate lot or parcel thereof; the suffi- partthereof should be sold or disposed 
 ciency of the sureties offered by the of, and the particular reasons upon 
 guardian, and whether each is worth which his opinion is founded, and the 
 double the value of the real estate terms and conditions upon which it 
 proposed to be sold; or whether the should be sold or disposed of, and 
 land proposed to be mortgaged by way fixing a price below which it should 
 of security is unencumbered, and of not be sold. Rule 177. 
 
664 FORMS OF PLEADINGS. 
 
 Report of master in piirsuance of foregoing order. 
 
 The report is in general in the form of that on page 672, 
 embracing the subjects of inquiry directed by the order of reference. 
 
 Order to guardian to sell land of lunatic or 
 
 idiot, (a) 
 
 (Title of matter.) 
 
 On reading and filing the report of , one of the special 
 
 masters of this court, made in the above matter, and bearing 
 date the day of , eighteen hundred and , from 
 
 which it appears satisfactorily to the Chancellor that the interest 
 of the said lunatic {or "idiot") requires and will be substantially 
 promoted by a sale of his real estate, mentioned in the petition 
 in this matter, for reasons stated in said report : It is now, on 
 this day of , eighteen hundred and , on motion 
 
 of , of counsel with the applicant, ordered by the Chan- 
 
 cellor, that the said guardian do sell the said lands in the said 
 petition particularly described, [at public auction,(6) to the 
 highest bidder,] (or, " in such way and manner,") and upon 
 such terms as to credit and security as said guardian shall deem 
 safe and most expedient for the interest of the said lunatic 
 {(w "idiot;") [and that he give public notice of the time and 
 place of such sale,] and in all respects conduct the same accord- 
 ing to the provisions of the statutes in such case made and 
 provided ; and that before any deed is executed, the said sale 
 and the terms thereof shall be reported to the Chancellor by 
 the said guardian, in writing, and upon his oath or affirmation, 
 to the end that the same may be passed upon by the Chancellor 
 before the sale is confirmed, and that he may make such order 
 as he shall deem fit touching the investment of the proceeds. 
 
 (a) No sale of any real estate, made considered, relative to the statutes of 
 
 pursuant to or by virtue of the pro- descents and distribution, and for 
 
 visions of this act, shall give to any every other purpose, as real estate of 
 
 person any other or greater interest the same nature as the property sold, 
 
 in the proceeds of such sale than he Reo., "Limatics" ? 9. The sale may 
 
 or she had, or would have had, in the be private. Reo. Sup., "Lunatics," 
 
 lands, provided the same had not been J 2. 
 
 sold ; but the said proceeds shall be (6) Id., ^ 7. 
 
PK0CBEDING8 KE8PECTING LUNATICS, ETC. 665 
 
 Report of sale of land of lunatic or idiot, (a) 
 
 ( Title of matter.) 
 
 In pursuance of an order made in the above matter by the 
 •Chancellor, on the day of , eighteen hundred and 
 
 , directing the subscriber, , the guardian of the 
 
 ■said lunatic, {or " idiot,") to sell the lands of the said lunatic 
 {or "idiot") particularly designated in the petition in this 
 matter, and referred to in the report of , one of the special 
 
 masters of this court, bearing date on the day of , 
 
 eighteen hundred and , I do hereby report, that I did, 
 
 '{by public advertisements, signed by myself, and set up at five 
 or more public places in the county of , one whereof 
 
 was in the township (or " ward," if in a city,) where said real 
 estate is situate, at least four weeks next before the time 
 appointed for said sale] (continue as in form on page 422, to the 
 end of that form, and add, "And I do further report, that said 
 sale was upon the following terms, to wit, {here state particularly 
 the terms of sale.) 
 
 Respectfully submitted, this day of , &c. 
 
 Bond of guardian on sale of land of lunatic. (6) 
 Know all men by these presents, that we, {principal and sureties,) 
 of, &c., are held and firmly bound unto the Ordinary of the 
 
 (a) The guardian or guardians who estate in the premises so sold as the 
 
 may he ordered to sell any lands or said idiot or lunatic shall be seized of 
 
 real estate as aforesaid, shall, after or entitled to at the time of making 
 
 making such sale, report the same in said order by the Chancellor. Sev., 
 
 writing, under oath or aflirmation, to "Lunatics," § 8. 
 
 the Chancellor, either in term or (6) Every guardian who may be 
 
 vacation ; and if the Chancellor shall ordered to sell any lands or real estate 
 
 approve such sale, he shall confirm as aforesaid, shall, before or at the 
 
 the same as valid and effectual in law, time of making the report of such 
 
 and shall direct the said guardian or sale, enter into bond to the Ordinary 
 
 guardians to execute good and suffi- of this state and his successors, with 
 
 cient conveyances in the law to the such security as the Chancellor shall 
 
 purchaser or purchasers for the lands deem to be sufiBcient, and shall so 
 
 and real estate so sold; which said adjudge and approve, in the order 
 
 conveyances, duly executed as afore- confirming said sale, conditioned for 
 
 .said, shall vest in the purchaser or the faithful discharge of the trust 
 
 purchasers as good and perfect an committed to such guardian, which 
 
666 FORMS OF PliEADINGS. 
 
 State of New Jersey in the sum of dollars, lawful money 
 
 of the United States of America, to be paid to the said the 
 Ordinary of the State of New Jersey, and his suciiessors, to 
 which payment well and truly to be made we do hereby bind 
 ourselves, and our and each of our heirs, executors and adminis- 
 trators, jointly and severally, firmly by these presents. Sealed 
 with our seals. Dated, &c. 
 
 Whereas, the above-named , as guardian of , 
 
 a lunatic, upon application to the Court of Chancery of New 
 Jersey for the sale of lands of said lunatic, has, by virtue of 
 an order of said court, bearing date, &c., made sale of said 
 lands, and has applied to the said Court of Chancery, upon 
 report of said sale, for confirmation thereof: 
 
 Now the condition of the above obligation is such, that if the 
 said {guardian) shall faithfully discharge the trust committed to 
 him as guardian of said , a lunatic, then this obligation 
 
 to be void, otherwise to remain in full force and virtue. 
 
 Decree confirming sale of land of lunatic or 
 
 idiot.(a) 
 
 {'Btle of matter.) 
 
 On reading and filing the report of , the guardian of 
 
 the said lunatic, (or " idiot,") whereby it appears that, in pur- 
 suance of an order made in this matter, bearing date, &c., the 
 
 bond shall be filed in the office of the or of this state, and in no other way 
 clerk in chancery; and in case the whatever. Bev., "Lunatics," § 11. It 
 same shall become forfeited, it shall shall be the duty of every such guar- 
 and may be lawful for the Chancellor dian to render to the Orphans' Court 
 to order the same to be prosecuted in from whom he received his appoint- 
 any court of record, at the request of ment as guardian, a true account of 
 any person aggrieved by such for- the administration of the proceeds of 
 feiture. Ren., "Lunatics," ^ 10 ; RtUes the sale of any real estate ordered to 
 176-178. be sold as aforesaid, at the times and 
 (a) The moneys arising from any in the manner such guardians are 
 sale made in pursuance of this act, directed to account in and by the 
 after payment of the costs and ex- nineteenth section of this act. Bev.,. 
 penses incident thereto, shall be put "Lunatics," ? 12. For the proceed- 
 out at interest on good and sufficient ings and practice to obtain an order 
 security of unencumbered real estate, to turn over the proceeds of the sale- 
 or, if the Chancellor shall so direct, of the real estate of a lunatic or au' 
 in public stock of the United States idiot, or any property in this state to 
 
PBOCEBDINGS EESPECTING LUNATICS, ETC. 667 
 
 said guardian [having given public notice, according to law 
 and the directions of said order, of the time and place when 
 and where the same would be sold, at the time and place so 
 appointed] did sell the lands in the petition in this matter 
 described, [at public auction,] to • , for the sum of 
 dollars, [he being the highest bidder therefor,] upon the terms 
 mentioned in said report, as made and agreed to by and between 
 the said guardian and said {the pv/rchaser :) It is, on this 
 day of , eighteen hundred and , ordered, that the 
 
 said sale be and the same is hereby approved and confirmed as 
 valid and effectual in law, and that the said agreement be and 
 the same is hereby also confirmed according to the terms and 
 conditions in the said report mentioned. 
 
 And it is further ordered, that he do make, execute and deliver 
 to the said (purchaser) a good and sufficient conveyance in the 
 law for the lands and premises so purchased as aforesaid, upon 
 his complying with the terms and conditions of said sale. 
 
 And it is further ordered, that so much of the proceeds of the 
 sale as shall remain after payment of the costs and expenses 
 thereof, and of this application, be put out at interest, by the 
 said guardian, on good and sufficient security of unencumbered 
 real estate, (or, " in public stock of the United States," or, " in 
 the bonds of this state,") for the benefit of the said lunatic (or 
 "idiot;") and that the said guardian, at the time and in the 
 manner as directed by the statute authorizing such sales, render 
 to the Orphans' Court of the county of , a true account 
 
 of the administration of the proceeds of said sale. 
 
 which such lunatic, &c., may be enti- "Married Women," § 6. Pamph. L., 
 
 tied, to a non-resident guardian, see 1890, p. 41 ; Pamph. L., 1891, p. 301. 
 
 Pel}., "Lunatics," ^ 14, 15; Pamph. As to release of an inchoate right of 
 
 L., 1887, p. 177. Any married dower of a person mentally incapaci- 
 
 woman whose husband may be an tated, see Pev. Sup., "Power," ? 2. 
 
 idiot, lunatic or of unsound mind, Or of an estate in dower, Pamph. L., 
 
 * * * may, at any time dur- 1892, p. 201. On a sale of the same 
 
 ing the continuance of such disa- the Chancellor may direct a release 
 
 bility, sell, release, transfer and con- to be made by a master in chancery, 
 
 vey any interest, estate or right she barring the dower, and a bond to be 
 
 may have in any real property in the given to the guardian of the dowress 
 
 same manner and yiiih like effect as to secure one-third of the whole pro- 
 
 if she were sole and unmarried. iJei' , ceeds of sale. Ibid, 
 
'668 FOEMS OF PLEADINGS. 
 
 And it is further ordered, that the bond of said guardian to 
 the Ordinary of the State of New Jersey, in the sum of 
 dollars, with and as sureties, presented by said 
 
 guardian in this matter, be and the same is hereby approved, 
 and that it be filed in the office of the clerk of this court. 
 
 Guardian's deed for land of lunatic, &c., sold. 
 This indenture, made the day of , eighteen hundred 
 
 and , between , of, &c., guardian of , a 
 
 lunatic (or as the case may be,) of {residence,) of the first part, 
 and , of, &c., of the second part : Whereas, by a certain 
 
 order of the Court of Chancery of the State of New Jersey, 
 made in the matter of the application for the sale of the lands 
 of said , a lunatic (or as the case may be,) bearing date, 
 
 -&c., it was ordered and adjudged {set forth the substance of the 
 order to sell;) and whereas, the said guardian, having [duly 
 advertised and] sold the said lands pursuant to said order and to 
 the statutes in such case made and provided, reported the same to 
 the Chancellor; and thereupon the said Chancellor approved 
 the said sale, and ordered and directed as follows: {insert the 
 order of confirmation.) 
 
 Now, this indenture witnesseth, that in consideration of the 
 said sum of dollars to him in hand paid by the said , 
 
 the receipt whereof is hereby acknowledged, and of {here insert 
 the further consideration, if any, according to the terms of sale,) 
 the said , guardian as aforesaid, does grant, bargain, sell 
 
 and convey unto the said , his heirs and assigns, all that 
 
 'certain tract of land so as aforesaid purchased by him as afore- 
 said, situate, &c., {describe the premises,) with the appurtenances : 
 to have and to hold unto the said , his heirs and assigns, 
 
 to his and their only proper use, benefit and behoof forever, as 
 i'uUy as the said {the lunatic, &c.,) was seized of or entitled to 
 the same at the time of the making of the order first above 
 mentioned. 
 
 In witness whereof, the said , guardian as aforesaid, has 
 
 hereto set his hand and seal, the day and year first above written. 
 
 {Add acknowledgment, &e.) 
 
SALE OF infants' LANDS. 66^' 
 
 SALE OF INFANTS' LANDS. 
 
 Petition for order for sale of lands of infants.(a) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey r 
 
 The petition of , of, &c., (resiiifinoe,) respectfully shows, 
 
 that he is the general guardian (or as the case may be) of 
 and , of, &c., (residence,) infants aged and 
 
 years respectively ; and that each of said infants is seized of (or 
 as the case may be) an undivided [third] part (subject to the 
 dower of , their mother,) of all that tract of land situate, 
 
 &c., (describe land;) that the said tract of land is worth the 
 sum of dollars; and that the interest of said infants 
 
 requires that their estate therein should be sold. 
 
 And your petitioner further shows, that (state here the situation 
 of the property and the particular reasons why it should be sold.}' 
 
 And your petitioner further shows, that the said is 
 
 willing to unite in the sale of said land, and to release her dower 
 
 (a) Whenever an infant shall he cellor stating the age and residence of 
 
 seized of any lands or tenements, or the infant, the situation and value of 
 
 be entitled to any term to come in the real estate proposed to be sold, 
 
 any lands (this includes — Sev., p. with a description of the same, and 
 
 484 — rent charges and rents reserved the particular reasons which render 
 
 on a conveyance.in fee, and any and a sale of the premises necessary or 
 
 every rent granted out of land) in this proper, and praying that a guardian 
 
 state, and it shall be represented to may be appointed to sell the same ; . 
 
 the Chancellor, on behalf of said in- the petition shall also state the name 
 
 fant by his or her guardian or next and residence of the person proposed 
 
 friend, that his or her interest re- as such guardian, the relationship, if ' 
 
 quires that the said lands or term any, which he bears to the infant, and 
 
 should be sold or disposed of, the the security proposed to be given. 
 
 Chancellor may, in a summary man- Rule 179. 
 
 ner, proceed to inquire into the The Chancellor is also authorized 
 
 merits of the application ; and from by statute to order the real eslate of a 
 
 such time, the infant, so far forth as minor to be sold, converted or applied 
 
 relates to such property, its proceeds for the purpose of reducing or dis— 
 
 and income, shall be considered as a charging liens and encumbrances 
 
 ward of the Court of Chancery. Rev., which are likely to disadvantage, im- 
 
 "Infantf," I 1. The general guardian peril or sacrifice his lands, and the 
 
 of the infant, if he have any, and if lands may be mortgaged to discharge 
 
 there be none, some relative or friend, such encumbrances. Pamph. L., 1893,. 
 
 may present a petition to the Chan- p. 498. 
 
i')'V 
 
 '670 FOKMS OF PLEADINGS. 
 
 in the same, upon the condition that * the interest of such part 
 of the purchase-money as the Chancellor shall deem reasonable, 
 be secured to her for life, {or after *, " such sum in gross as the 
 Chancellor shall deem reasonable, be paid to her in commutation 
 thereof.") 
 
 And your petitioner further shows, that , of {residence^ 
 
 who is the mother {or ag the ease may be, or, "who is in no way 
 related to the said infants,") is willing to become the special 
 guardian of said infants in this matter, to sell the said lands, and 
 that and , of {residence^ who are sufficient for the 
 
 purpose, according to the rules of this court, are offered as her 
 sureties for the just performance of her trust as such guardian. 
 
 Your petitioner therefore prays, that the merits of this appli- 
 cation may be inquired into, and that may be appointed 
 the special guardian of said infants to sell said lands, in such 
 way and manner and with such restrictions as shall be deemed 
 expedient. 
 
 And your petitioner, &c. 
 
 {Signatures of petitioner and counsel ) 
 
 Affidavit of verification. 
 
 State of New Jersey, 1 
 
 county of /'' ^ , j 
 
 ' f '■" , the above-named petitioner, being duly sworn, on his 
 oath saith, that the matters and things set forth in the said peti- 
 tion are true. 
 
 {Jural) {Signature.) 
 
 Order of reference as to the merits and the ap- 
 pointment of a guardian, (a) 
 
 In the matter of the application on "j 
 
 behalf of and , in- > 
 
 fants, for sale of lands. J 
 
 Application having been made, by petition, to the Chancellor 
 on behalf of and , infants aged and 
 
 (a) UpoQ the petition being pre- reference to a special master to ascer- 
 
 sented to the court, if it satisfactorily tain the truth of the facts stated in the 
 
 appear that there is reasonable ground petition, and whether the interest of 
 
 for the application, there shall be a the infant requires that said real 
 
671 
 
 years respectively, representing that said infants are seized [in fee 
 simple] each of one equal undivided part of the lands and 
 
 premises particularly mentioned and described in the said peti- 
 tion [as tenants in common] and praying a sale thereof, and that 
 said petitioner be appointed guardian of said infants for that 
 purpose : It is, on this day of , eighteen hundred 
 
 and , ordered by the Chancellor, that it be referred to 
 
 , one of the special masters of this court, to inquire into 
 and ascertain the truth of the facts stated in said petition ; and 
 whether the interest of said infants requires, and will be sub- 
 stantially promoted by a sale of said lands, or any part thereof, 
 and what part; and to ascertain also the value of the said 
 premises, and in what way or manner, and with what restric- 
 tions as to price, and with what other restrictions, if any, such 
 sale ought to be ; and whether, in his opinion, said premises will 
 increase in value during the minority of said infants, and if yea, 
 to what extent. " And if he shall ascertain that the interest of 
 the said infants requires that the said real estate, or any part 
 thereof, should be sold, then it is further ordered, that he ascer- 
 tain and report whether the said {the person named as special{a) 
 
 ■estate, or any part thereof, should be posed to be sold, the sufficiency of the 
 
 sold, and what part, and the particu- sureties o'fFered by the guardian, and 
 
 lar reasons upon which his opinion is whether each is worth double the 
 
 founded; and to ascertain also the value of the infant's interest in the 
 
 value of the property proposed to be real estate proposed to be sold, over 
 
 sold, and of each separate lot or parcel and above all debts ; or whether the 
 
 thereof, and the terms and conditions land proposed to be mortgaged by 
 
 upon which it should be sold, and way of security is unencumbered, and 
 
 fixing a price below which it should of the requisite value, according to 
 
 not be sold, and whether, in his the 180th rule ; and what should be 
 
 opinion, said premises will increase in the penalty of the guardian's bond, 
 
 value during the minority of said in conformity with the provisions of 
 
 infant, and to what extent; and if he that rule, to be given to each infant, 
 
 shall ascertain that the interest of the And if the master is not satisfied with 
 
 infant requires that the said real the person nominated as guardian, or 
 
 estate, or any part thereof, should be with the security proposed, he may 
 
 sold, then to ascertain and report name a suitable person as guardian, 
 
 whether the person proposed as and state what further or other secur- 
 
 guardian is a suitable and proper per- ity should be given. EnJe 181. 
 son for that purpose, what is the age (a) Usually, a non-resident will not 
 
 ■of the infant, the actual value of the be appointed such guardian, 
 infant's interest in the real estate pro- 
 
672 FORMS OF PLEADINGS. 
 
 guardian) is a suitable and proper person to be appointed 
 guardian of said infants, to sell said real estate ; what are the 
 ages of said infants, the actual value of their interests in the said 
 real estate, and in what amount the guardian should be required 
 to give security, and whether * the sureties offered are sufficient, 
 (If the security offered by the petitioner as guardian is a mortgage, 
 add ajter *, "the land proposed to be mortgaged by way of 
 security is unencumbered and of the requisite value, according 
 to the one hundred and eightieth rule of this court, and what 
 should be the penalty of the guardian's bond, in conformity to 
 said rule, to be given to each of said infants; and that said 
 master report to this court with all convenient speed.") 
 
 Master's report pursuant to foregoing order.(a) 
 {Title of matter.') 
 
 I, the undersigned, one of the special masters of this court, 
 do respectfully report to the Chancellor, that pursuant to an 
 order of reference in the above matter, bearing date the 
 day of , eighteen hundred and , I have been attended 
 
 by , solicitor for and of counsel with the petitioner, and 
 
 have taken the depositions of witnesses hereto annexed, and have 
 considered the matters referred to me by said order. 
 
 And I further report, that all the material facts stated in the 
 petition in this matter are true, and that the interest of the said 
 infants requires and will be substantially promoted by a sale of 
 
 (a) Upon a reference to examine cause there may be great advantage 
 
 and report whether the interest of ia- in such sale to the tenant for life, 
 
 fants requires and will be promoted when the benefit to the infant is 
 
 by a sale of their lands, the master doubtful or inappreciable. Inre Steele, 
 
 must report his own opinion formed 4 C. E. Or. 120. In such case the 
 
 from facts, not that of others, nor an only question is, will the property 
 
 opinion formed upon that of others bring as much now as it will at the 
 
 without facts. Mere opinion of wit- death of the life tenant? The testi- 
 
 nesses is not evidence. In re Heaton, mony of the parent life tenant, the 
 
 6 (T. E. Or. 221. A sale will not be child being remainderman, that the 
 
 ordered upon the unsupported testi- interest of the latter would be pro- 
 
 mony of those who would be clearly moted by sale, should not be acted 
 
 benefited by a sale at the expense of upon, and hardly received. In re 
 
 the infant. Ibid. The reversionary Heaton, supra. 
 estate of an infant will not be sold be- 
 
SALE OF infants' LANDS. 673 
 
 the whole of the lands described in the said petition ; that my 
 reasons for this opinion are, that said lands and premises are 
 productive of little or no revenue; that, &o., {here give other 
 reasons, and why a sale is advisable.) 
 
 And I do further report, that in mj opinion the said lands 
 will not increase in value during the minority of said infants, to 
 an extent equal to the advantage to be derived from a sale. 
 
 And I do further report, that in my opinion it will be for the 
 interest of the said infants to have the said lands sold upon the 
 following terms and conditions : (here state the conditions.) 
 
 And I do further report, that is the (describing the 
 
 relationship of the person named for special guardian, if any, or 
 any other particulars that may appear proper;) that he is a 
 resident of the county of , in this state,(a) and is a suit- 
 
 able and responsible person to be appointed special guardian of 
 the said infants to sell the said lauds. 
 
 And I further report, that the persons proposed as his sure- 
 ties, viz,, and , reside in the said county of , 
 and are each of them, in property and estate, sufficient sureties 
 under the rules of this court, (or, " that the real estate offered as 
 security is (describing it briefly,) and is unencumbered, and worth 
 the sum of . dollars," (double the value of the premises to be 
 sold, not estimating the improvements thereon.) 
 
 And I further report, that the said is of the ^ge of 
 
 years, and the said of the age of years ; that 
 
 the value of the said premises, according to the evidence before 
 me, and which is hereto annexed, is the sum of dollars ; 
 
 and that the said should give bond to each of said infants, 
 
 in the sum of dollars, * with the said and as 
 
 sureties, (or after *, " secured by mortgage of said real estate 
 offered as security." ) 
 
 And I further report, that the said is willing to release 
 
 her dower in the said premises upon condition that * a gross 
 sum to be fixed by this court be paid to her in lieu thereof, (or 
 after * " the interest of a reasonable sum, to be fixed by the 
 
 (a) A. non-resident will not usually will non-resident sureties usually be 
 be appointed such guardian, nor accepted. 
 
 28 
 
674 FORMS OF PLEADINGS. 
 
 court, and to be permanently invested for that purpose, be paid 
 to her for her life, in lieu thereof.") 
 
 And I further report, that it should be left to the sound 
 discretion of the said guardian whether the said lands should be 
 sold at public or private sale ;(a) but that the same should not 
 be sold below the sum of dollars, for the interest of the 
 
 infants in the same, {or, "the prices stated in Schedule A, hereto 
 annexed, for the interest of the infants in the several parcels 
 thereof therein specified." ) 
 
 Eespectfully submitted, this day of , &c. 
 
 {Signature of master.) 
 
 Order to appoint guardian and for sale of infants' 
 lands. (6) 
 
 {Title of matter.) 
 
 Upon reading and filing the report of , one of the 
 
 special masters of this court, bearing date the day of , 
 
 eighteen hundred and , made in pursuance of an order of 
 
 reference in this matter, dated the day of , eighteen 
 
 hundred and , by which it appears that is a proper 
 
 person to be appointed guardian of the infants in this matter ; 
 that the value of their estate for the sale of which application is 
 made is dollars, and that and , of the county 
 
 of * , who are offered by the said for that purpose, 
 
 are sufficient sureties, and that said should give security 
 
 (a) The mode of sale is entirely in cellor may appoint another guardian 
 the discretion of the Chancellor ; all in the place of such deceased guar- 
 sales, dispositions and conveyances, dian, who shall give bond according 
 made in good faith in pursuance of to the provisions of this act, and shall 
 and in conformity with the direction then have power, by the order of the 
 of the court, when confirmed, are valid Chancellor, to perform and shall be 
 and effectual as if made by the infant liable to all the duties, requirements 
 when of full age ; but not as against and provisions of this act, and all pro- 
 the provisions of any last will or con- ceedings now pending or to be com- 
 veyance by which the property was menced may be continued and con- 
 devised or granted to the infant. Mev., ducted by said newly-appointed guar- 
 "Infants," § 3. dian, who shall be invested with the 
 
 (6) In case of the death of any same power and authority as fully as 
 
 special guardian appointed by the if he had been originally appointed. 
 
 Chancellor under this act, the Chan- Mtv j "Infants," § 11. 
 
SALE OF infants' LANDS. 675 
 
 -to each of said infants in the sum of dollars, and that the 
 
 interest of the said infants requires and will be substantially 
 promoted by a sale of their lands mentioned in the petition for 
 reasons stated in said report : 
 
 It is thereupon, on this day of , eighteen hundred 
 
 and , ordered, by , Chancellor of the State of New 
 
 Jersey, that the said be and he hereby is appointed 
 
 guardian in this matter for said infants j and that said guardian 
 give bond to each of the said infants, in the penal sum of 
 dollars, with and as his sureties, conditioned for the 
 
 just and faithful performance of the trust reposed in him, and 
 for the observance of such orders and directions as the Chan- 
 cellor shall from time to time make in«the premises in relation 
 to such trust ; the said bonds to be approved by the said master, 
 and filed with the clerk of this court. 
 
 And it is further ordered, that the said guardian sell all and 
 singular the right and title of the said infants to the said lands 
 in the said petition particularly described. And such sale may 
 be public or private, as the guardian shall deem most advan- 
 tageous for the infants, but not below the sum of dollars, 
 as provided in the master's report, and upon such terms, aa to 
 credit and security, as he shall deem safe and best for the interest 
 of the infants ; and that, before executing any deeds of said lands 
 to the purchaser or purchasers thereof, the guardian report to the 
 Chancellor the sale and the terms thereof, in writing, upon his 
 oath, to the end that the same may be passed upon by the Chan- 
 cellor, and that he may make such order as he shall deem fit 
 touching the investment and disposition of the proceeds, if the 
 sale be confirmed. 
 
 And if the said {the widow) shall be willing to join in 
 
 the sale and release her dower, and shall, before the sale, agree 
 by writing, with said guardian, so to do, she shall be entitled, 
 in lieu of her dower, at her election, either to the payment of 
 such sum in gross, arising from the sale, as the Chancellor 
 shall judge reasonable, or to the annual interest, during her 
 life, of such part of the sum for which the lands in which she 
 has an estate in dower shall be sold, as shall seem reasonable to, 
 the Chancellor. 
 
676 FOEMS OF PLEADINGS. 
 
 Bond of guardian to sell infants' lands.(«) Know 
 all men by these presents, that we {principal and sureties,) all of 
 the township of , in the county of , and State of 
 
 Jersey, are held and firmly bound unto {the infant) in the sum 
 of dollars, lawful money of the United States of America, 
 
 to be paid to the said , his executors, administrators or 
 
 assigns ; for which payment, well and truly to be made, we bind 
 ourselves, and each of us, by himself, our and each of our heirs,- 
 executors and administrators, firmly by these presents. Sealed 
 with our seals. Dated the day of , eighteen hun- 
 
 dred and 
 
 The condition of the above obligation is such, that if the 
 above-bounden , who was appointed by the Chancellor of 
 
 the State of New Jersey guardian of the said , on certain 
 
 proceedings before him for the sale of real estate, under the 
 provisions of the act entitled "An act relative to the sale and 
 disposition of the real estates of infants," by an order dated on 
 the day of , eighteen hundred and , shall j ustly 
 
 and faithfully perform the trust reposed in him as such guardian^ 
 and shall observe such orders and directions as the Chancellor 
 shall, from time to time, make in the premises in relation to such 
 trust, then the above obligation to be void, otherwise to remain 
 in full force and virtue. [l,. s.J 
 
 [l. s.] 
 
 Signed, sealed and deliv- [l. s.] 
 
 ered in the presence of — 
 
 (a) The bond of the guardian to the 3Iuir v. Wilson, Hopk. 512. See as to 
 
 infant to be in such penalty and with the piactice on the application of a 
 
 such surety as the Chancellor shall married female for the payment of 
 
 direct, conditioned for the just and the proceeds, of the sale of infants' 
 
 faithful performance of the trust re- lands to her husband, In re Finch, 
 
 posed in such guardian, and for the Clarkt's Oh. Hep. *533. The amount 
 
 observance of such orders and direc- and character of the security are 
 
 tions as the Chancellor shall from fixed by a standing rule of the court, 
 
 time to time ma'ie in the premises in See rule 180. The bond must be ap- 
 
 relation to such trust Eev , "InfanU," proved as to its form and the manner 
 
 ? 2; see Ferris v. Brmh, I Edw. Oh. of execution by the master who re- 
 
 572. The ordinary bond of the gen- ported on the merits of the applica- 
 
 eral guardian does not embrace the tion, and his certificate of approval 
 
 receipt and disposition of the moneys endorsed thereon. Rule 182. 
 arising from the sale of the lands. 
 
SALE OF infants' LANDS. 677 
 
 Endorsement of approval of bond by master.(a) 
 I approve the within bond, as to its form and manner of 
 execution. 
 
 Guardian's report of sale of infants' lands.(6) 
 
 {Title of matter.) 
 
 In pursuance of an order made in the above matter, by the 
 Chancellor, on the day of , eighteen hundred and 
 
 , directing the subscriber, , the special guardian 
 
 appointed in this matter, to sell the right and title of the said 
 infants to the lands particularly designated in the [schedule 
 annexed to the] report of , one of the special masters 
 
 of this court, bearing date the day of , eighteen 
 
 •bundred and , I do hereby report, that 1 have sold the 
 
 right and title of the said infants in the said lands, at private 
 sale, to , of the city of , upon the following terms, to 
 
 wit : The said has agreed to pay the sum of 
 
 dollars for the interest of the said infants in the said lands and 
 premises, whereof the sum of dollars is to be paid in cash 
 
 on the delivery of a deed for the premises, and the remaining 
 dollars of the consideration money are to be secured by 
 the said by his bond, payable at the expiration of one 
 
 year from the date of the said deed, with lawful interest thereon, 
 payable semi-annually, {or as the case may be,) and a mortgage 
 upon the same premises, to secure the payment of the said bond. 
 
 And I further report, that the said consideration money, when 
 received by me, will be chargeable with the value of the dower 
 of , she having agreed, by writing delivered to me prior to 
 
 said sale, to join in the same, and to release her dower, and said 
 lands being sold free from her said dower. 
 
 And I further report, that the sum of dollars is the 
 
 greatest sum that can now be procured for the property, and is 
 not below the price fixed in the report of the master. 
 
 {Signature.) 
 
 (a) See rule 182. Chancellor, to be approved by him 
 
 (6) The guardian must report the before a conveyance is executed, 
 asale, on his oath or affirmation, to the Itev , "Infants" ^ 4. 
 
678 FOEMS OP PLEADINGS. 
 
 State of New Jersey, ss. — , being duly sworn according 
 
 to law, on his oath says, that the matters and things set forth in- 
 the above report of sale are true. 
 
 {Jurat.) (Signature.) 
 
 Consent of widow to join in sale and release her 
 dower.(a) 
 
 (Title of matter.) 
 
 I, , being entitled to dower in the lands ordered to be 
 
 sold by the Chancellor in the above matter, do hereby consent 
 and agree with , the special guardian, that he may sell 
 
 my estate in said premises, and that I will join in the sale, and 
 release my said estate to the purchaser ; and that I will accept, 
 in lieu thereof, * a gross sum, to be approved by the Chancellor,. 
 (or after *, " the investment of a reasonable sum, to be approved 
 by the Chancellor, in such manner that the interest thereof shall 
 be made payable to me during my life.") 
 
 Dated 
 
 Release of dower to purchaser on sale of infants' 
 lands.(&) Whereas, the special guardian of , infants 
 
 hereinafter named, has been ordered by the Chancellor of the 
 
 (a) The execution of this consent Chancellor, or the investment of a 
 
 is to be duly verified, and the paper reasonable sum with like approval, in 
 
 is to be filed in the office of the clerk such manner as that the interest 
 
 in chancery. Bev., ''Infants," ^ 6. thereof be made payable to the person 
 
 (6) The rule of the court seems to entitled to such estate by the cuitesy, 
 contemplate that the widow, or dow- in dower or for life or years, during 
 ress, should join in the guardian's the period for which such estate would^ 
 sale to the purchaser. Rule 183. The by its own limitation, continue, the 
 practice is to endorse the release of Chancellor may, after such consent ia 
 dower on the guardian's deed. If the writing has been filed in the office of 
 lands of any infantjOr any part thereof, the clerk in chancery, direct the pay- 
 shall be subject to an estate by the ment of such sum in gross or the in- 
 curtesy or in dower, or to an estate for vestment of such sum, as he shall 
 life or years, devised to any woman deem reasonable and shall be accept- 
 in lieu of dower, and the person en able to the person entitled to such 
 titled to such estate shall consent in estate, in manner aforesaid ; which 
 writing to accept in lieu of his or her sum so paid or invested shall be taken 
 right or estate in such lands, either a out of the proceeds of the sale of the 
 gross sum, to be approved by the real estate of such infant so sifbject 
 
SALE OF infants' LANDS. 679 
 
 State of New Jersey, in a certain matter entitled, &c., to sell the 
 interest of the said infants in the lands hereinafter described; 
 and whereas, I, o'f, &c., have consented, in writing, to 
 
 unite in said sale, and to accept in lieu of my estate in dower 
 in said lands, out of the proceeds thereof, a gross sum, to be 
 approved by the Chancellor, (or, "the investment of a reasonable 
 sum, to be approved by the Chancellor, in such manner that the 
 interest thereof shall be made payable to me for life : " ) 
 
 Therefore, know all men by these presents, that in considera- 
 tion of the premises and for and in consideration of the sum of 
 one dollar to me in hand paid by {the purchaser,) I have and by 
 these presents do remise, release and forever quit claim unto the 
 said {purchaser) and to his heirs and assigns all manner of dower 
 and right or action of dower, which I now have or might have 
 or claim of, in and to all that certain, &c., {describe land by metes 
 and bounds,) to have and to hold unto the said {purchaser,) his 
 heirs and assigns forever. 
 
 In witness whereof, &c. 
 
 {Add acknowledgment.) 
 
 Order confirming sale of infants' lands.(a) 
 
 {Title of matter.) > 
 
 On reading and filing the report of , special guardian 
 
 of the said infants, of the sale of the lands of said infants, for 
 the sum of dollars, and the terms thereof therein men- 
 
 to such estate as aforesaid ; provided, to be executed, he shall then make 
 that before any such sum shall be order for the application and disposi- 
 paid, or such investment made, the tion of the proceeds o^the same, and 
 Chancellor shall be satisfied that an for the investment of the surplus be- 
 effectual release of such estate or right longing to such infant so as to secure 
 has been executed. Rev., "Infants," it to the infant in such way and man- 
 I 6; rule 183. If any woman entitled ner as may seem most for his or lier 
 to -dower, &c., in the real estate of any benefit and advantage. Mev., ''/re- 
 infant sold under the provisions of fants," I 4. In the order approving 
 the statute shall be a married woman, the sale and directing a conveyance 
 she may execute a deed of release of to be executed, may be embraced the 
 such dower, &c;, without her husband directions and order of the Chancellor 
 joining in or executing the deed. for the application and disposition of 
 Id., 11. • the proceeds of the sale, and for the 
 (a) If the sale is confirmed by the inveblment of the surplus thereof. 
 Chancellor, and a conveyance directed Mule 186. For special guardians' com- 
 
680 FORMS OF PLEADIKGS. 
 
 tioned, a^ made and agreed to by and between the said guardian 
 and , under and by virtue of an order of this court : It 
 
 is, on this, &c., ordered, that the said sstle and agreement be and 
 the same are hereby confirmed, according to the terms and con- 
 ditions in the said report mentioned. 
 
 And it is further ordered, that the said guardian execute a 
 deed to .the said for the premises in the said report set 
 
 forth, on his complying with the terms upon which the deed was 
 to be delivered. 
 
 {In case the land agreed to be sold be subje<^t to dower, and. the 
 person entitled thereto has agreed to join in the sale, and release 
 her right of dower, which facts should be set forth in the report of 
 sale, and her consent thereto has been filed in the office of the clerk 
 in chancery, and in case the terms of sale were agreed to with the 
 understanding that the dower was to be released, then add to the 
 above order the following : "And it appearing that , who 
 
 was entitled to an estate in dower in said lands, has, by writing 
 signed by her, consented to join in said sale and to release her 
 said dower to the purchaser, which said consent has been filed in 
 the office of the clerk of this court, it is further ordered, that 
 such part of the purchase-money as the Chancellor shall deem 
 reasonable be put at interest on good real security as aforesaid, 
 in the name of the Chancellor, for her benefit, and that the 
 interest only of such part be, from time to time, as it may be 
 refceived, paid over to the said , (the widow,) during her 
 
 natural life, unless she shall elect to receive a reasonable sum in 
 gross, to be approved by the Chancellor, in lieu of dower, in 
 which latter case she must apply to this court, by petition, for 
 relief before such investment.") ( Where the land is subject to a 
 tenancy by the curtesy, instead of dower, the last clause must be 
 varied to meet the case.) 
 
 missions on gales of infants' lands, see duly confirmed) convey the land sold 
 
 rule 187. If the purchaser die after to the heir of the purchaser, if lie 
 
 the sale has been made, and the con- died intestate, or to his devisee or 
 
 didons subscribed and agreed to, and devisees, who, by his will, would be 
 
 before the confirmation of the sale by emit ed thereto, upon' their perform- 
 
 the court, or after such confirmation ing the conditions of sale. S,m., 
 
 and before the delivery of the deed. '-Suh of Land," ? 21. 
 the guardian may (such sale being 
 
LANDS. 681 
 
 And it is further ordered, that so much of the proceeds of the 
 -sale as shall remain after payment of the expenses thereof, and 
 of this application, and after deducting the provisions as afore- 
 said for said widow, be put at interest by the said guardian, 
 under the direction of the Chancellor, on good security by bond 
 and mortgage, for the benefit of the said infants, and that the 
 said guardian, as directed by the statute authorizing such sales, 
 make a report, as soon as conveniently may be, to the Chancellor 
 in writing, and upon her oath, to be taken before a master, of 
 the investment and disposition of the proceeds of said sale. 
 
 Report by special guardian of investment and 
 •disposition of proceeds of sale.(a) 
 
 {Title of matter.) 
 In pursuance of the order of this court, made on the 
 day of , eighteen hundred and ,1, , the 
 
 special guardian therein mentioned of the infants, and 
 
 , do report, that pursuant to the directions of the said 
 order, I have invested the sum of dollars, at interest, on 
 
 good first bond and mortgage, on a farm of acres, situate in 
 
 the county of , for the benefit of the said infants, which 
 
 sum was the whole amount of the proceeds of the sale of said 
 premises, after the payment of the expenses thereof, and of the 
 application to this court, and the money invested for the widow 
 as hereinafter mentioned ; and that , the mother of said 
 
 infants, has joined in the sale and conveyance of the said prem- 
 ises, and has released her dower in the same; and that I have 
 also invested, on good real security as aforesaid, in the name of 
 the Chancellor, dollars, part of the purchase-money, as 
 
 an equivalent for her dower in the said premises, to the end that 
 ithe interest thereof may be received by her during her natural 
 life. (6) {8ignatv/re.) 
 
 (a) A report of the investment or (6) The proceeds of the sale, after 
 -disposition of the proceeds of sale deducting such commissions and ex- 
 must be made to the Chancellor by penses as shall be allowed by the 
 thespecial guardian, on oath or aflSr- Chancellor, may, by order of the 
 niation, as soon as conveniently may Chancellor, be paid to the general 
 be, and filed in the office of the clerk guardian of the infant ; and upon 
 An chancery. Rtv,, "Infants," ? 4. such payment of the amount ascer- 
 
682 
 
 FORMS OF PLEADINGS. 
 
 State of New Jersey, "1 
 county of , i ' 
 
 , the guardian above named, being duly sworn, on her 
 oath says, that the matters and things stated and set forth in the 
 
 foregoing report are true. 
 
 (Signature.) 
 Sworn, &c. 
 
 APPLICATION FOR SALE OF LANDS LIMITED 
 OVER, &c.(a) 
 
 Petition for an order to sell land limited over. 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey ; 
 
 The petition of , of the township of , in the 
 
 county of , and State of New Jersey, respectfully shows. 
 
 tained by the Chancellor to be due to 
 the infant in the hands of the special 
 guardian, and the assignment of the 
 securities held by him, the special 
 guardian may be discharged by order 
 of the Chancellor. Bev., "Infants," J 
 9. Before any order directing the 
 special guardian to pay or transfer 
 the proceeds of sale to the general 
 guardian shall be made, the general 
 guardian shall give bond with sureties 
 in a sum sufficient to secure the 
 amount of such proceeds, which bond 
 shall be approved by the Orphans' 
 Court of the county in which the 
 general guardian was appointed, and 
 filed with the surrogate of said 
 county ; and a certificate from such 
 Orphans' Court, signed by at least 
 two judges thereof, and attested by 
 the surrogate under his official seal, 
 certifying that a good and sufficient 
 bond has been filed in the surrogate's 
 office sufficient to cover the amount 
 
 (naming it) to come into the hands of 
 the general guardian, shall be filed 
 with the clerk of the Court of Chan- 
 cery. Seo., "Ivfantf," I 10. 
 
 The special guardian is liable t» 
 account under the order of the Court 
 of Chancery before a master ; and the 
 report of the master is liable to ex- 
 ceptions, as in other cases of masters' 
 reports re<iuiring confirmation. Rev., 
 "Infants," I 8. 
 
 (a) In all cases when any future or 
 contingent estate in lands, or the pro- 
 ceeds arising from the sale thereof, 
 now is or hereafter may be wholly or 
 in part limited over to infants, or per- 
 sons not in esse, or in such manner 
 that the vesting or duration of such 
 estate may be contingent, and the in- 
 terest of the owners of the particular 
 and future estates in such lands re- 
 quire, and would be promoted by a 
 sale thereof, it shall be lawful for the 
 Chancellor, upon the application of 
 
SALE OF LANDS LIMITED OVER. 
 
 683^ 
 
 that your petitioner has a vested estate for life in all that certain 
 farm sitaate in the said township of , county and state 
 
 aforesaid, bounded and described as follows: (des&ribe prem- 
 ise8.){a) 
 
 That the said farm was devised to your petitioner and her 
 sister, , now , for life, by their father, , in 
 
 and by his last will and testament, (which was duly admitted to 
 probate on or about the day of , eighteen hundred 
 
 and ,) as follows, to wit : {insert the devise.) 
 
 That your petitioner intermarried with, &c., {stating the facts, 
 so as to show the estates under the devise, and who are and who 
 may be entitled thereto.) 
 
 That the limitations of the real estate devised as aforesaid 
 are as follows : 
 
 any person owning a vested estate 
 therein, to direct said lands to be sold 
 in fee, and for that purpose to inquire 
 into the situation of such land, and 
 the merits of such application; and 
 if, upon such inquiry, it appears that 
 the situation and prospective value of 
 said lands are such that it virould be 
 to the interest of any person who 
 might own the same in fee to sell the 
 same, then the Chancellor shall direct 
 such sale. Sev., "Sale of Lands," H 
 41, 51. A sale of lands made by 
 order of the Chancellor under this 
 statute, only conveys the estates of 
 persons having vested or contingent 
 estates in such lands, and who, by the 
 statute, are required to have notice 
 of the proceedings. The rights or 
 liens of encurnbraneers who are not 
 required to have notice, or who do 
 not have notice of the proceedings, 
 are not affected by the sale. Cool's 
 Ei^rs V. Higgins, 8 G. E. Or. 308. 
 
 The Chancellor may order lands to 
 be sold free and clear from all encum- 
 brances and order encumbrances paid 
 
 out of the proceeds of sale. Rev. Sap.,. 
 "Sale of Land," § 25. And taxes, 
 water rents and assessments may be 
 ordered paid out of a portion of the 
 lands sold when the lauds consist of 
 different parcels. Id., § 27. When 
 a widow holds a life estate or a vested 
 estate of any nature, created by her' 
 husband for her support, and such 
 estate is unproductive, the life estate 
 will not be liable for taxes. &c , but 
 the taxes, &c., are to be paid out of 
 the fund arising from the sale of the 
 lands. Id., ? 26. 
 
 (a) The proceedings in cases men- 
 tioned in section 41 shall be in the 
 Court of Chancery, in vacation or 
 term time, and shall be commenced 
 by petition of some person owning a 
 vested estate in said premises, which 
 petition shall describe the lands to be 
 sold, and the limitations of the same,- 
 and shall state the persons who may 
 be entitled to vested or prospective 
 estates therein. Itev., "Sale of Lund," 
 H2. 
 
■684 POBM8 OF PLEADINGS. 
 
 The persons who 'are entitled to vested rights in said lands 
 
 are your petitioner and her sister, , and the persons who 
 
 may be entitled to prospective estates therein are and 
 
 and such other children as may be born of the bodies of 
 
 jour petitioner and her sister, , in lawful wedlock begotten. 
 
 And your petitioner farther shows, that the interests of the 
 owners of the particular and future estates in the said lands 
 require and would be promoted by a sale thereof; and that the 
 prospective value thereof is such, that it would be to the interest 
 of any person who might own the same in fee simple to sell the 
 same. 
 
 Your petitioner therefore prays, that your Honor will inquire 
 into the situation of said lands and the merits of this application, 
 and order a sale of the lands in fee. 
 
 And your petitioner, as in duty bound, will ever pray, &c. 
 {Signature of solicitor and counsel with petitioner.) 
 
 {Add verification.) 
 
 Notice to owners of vested or prospective es- 
 
 tates.(a) Take notice, that the subscriber, one of the children 
 and legatees of , late of the township of , in the 
 
 (a) Twenty days' notice of the pre- the dwelling-house of such person ; 
 
 senting the petition mentioned in this and in case such person be an infant 
 
 section shall be given to each of the under fourteen years of age, the same 
 
 persons entitled to vested or prospeo- shall also be served on his or her 
 
 live estates, if Ihey reside within this father, mother or guardian, if any 
 
 state ; and if any reside without this reside within this state ; and in case 
 
 state, such notice may he given by of any .limitation to persons not in 
 
 twenty days' service, or by advertis- being, such notice shall he served 
 
 ing the same in a newspaper pub- upon the ancestor of such person in 
 
 lished in the county where the lands manner aforesaid. Mev., "Sale of 
 
 lie, or in case none be published in Land," § 42. Whenever it shall ap- 
 
 , said county, then in a newspaper of pear to the satisfaction of the Chan- 
 
 this state published nearest to said cellor that it is impossible, after due 
 
 lands, and also by mailing such inquiry, to ascertain the names of the 
 
 notice, directed to such person, at the owners of any particular or future 
 
 post-office nearest to his residence, estate in lands limited in the manner 
 
 provided his residence be known; mentioned in this act, or to ascertain 
 
 and such notices may be served either whether some of such owners are liv- 
 
 personally or by leaving the same at ing or dead, the Chancellor may order 
 
SALE OF LANDS LIMITED OVEE. 685 
 
 county of , and State of New Jersey, will present a 
 
 petition to the Chancellor of the State of New Jersey, on , 
 
 the day of next, at o'clock in the forenoon of 
 
 said day, or as soon thereafter as the Chancellor can hear the 
 same, at the state-house, in the city of Trenton, for an order 
 that the following- described land and premises, situate, &c., 
 (describe premises,) may, under the act "to authorize the sale of 
 land limited over to infants, or in contingency, in cases where 
 such sale would be beneficial," be sold in fee, and the proceeds 
 of sale invested according to law, under the direction of the 
 Court of Chancery. Said land and premises were devised, by 
 the said , in and by his last will and testament, to the 
 
 subscriber and her sister, , now , for life, and after 
 
 their decease to their lawful issue, in fee simple, the children of 
 each to take their parent's share ; provided, that if one should 
 die without issue, and the other die leaving issue, then all to go 
 to such issue ; and in case both daughters should die without 
 issue, then the same was devised to the testator's brother, , 
 
 and his sisters, and , and the survivor or survivors 
 
 of them. 
 Dated, &c. 
 
 that the proceedings under this act for six. weeks successively, at least 
 
 be continued as if all such owners once in every week, and also in any 
 
 or their legal representatives were other manner the Chancellor may see 
 
 known, making such absent or un- proper to direct ; and upon proof of 
 
 known owner or owners of said real such application, and of the peirforni- 
 
 estate a party or parties thereto by ance of the directions contained in 
 
 such description as the Chancellor said order, the Chancellor shall make 
 
 may in such order prescribe. Such such order against said unknown 
 
 order shall briefly relate the facts set owner or owners as if they were 
 
 forth in said petition, and call upon known to the court, and as may be 
 
 such party or parties to appear within equitable and just ; and shall have 
 
 such time as the Chancellor shall power to make like orders and 
 
 direct, not less than two months from decrees in the premises, as fully in 
 
 the date of such order, which order all respects, a9 he is empowered to 
 
 shall be published in one or niore make upon proof of service of the 
 
 public newspapers printed in this notice of presenting such petition as 
 
 state, and designated in such order, prescribed in this act. Id., I 52. 
 
•686 FORMS OP PLEADINGS. 
 
 Order of reference on petition for the sale of lands 
 limited over.(a) 
 In the matter of the application "j 
 
 on behalf of for sale of > 
 
 lands limited over, i&c. J 
 
 Application being made to the Chancellor, by , by her 
 
 petition, duly verified and filed, wherein it is alleged she has a 
 vested estate for life in a certain farm, situate in the township 
 ^f , county of , and State of New Jersey, particularly 
 
 described in said petition, which is limited over to infants, and 
 stating the persons who are or may be entitled to vested or pros- 
 pective estates therein, and alleging that the interests of the 
 owners of the particular and future estates in such lands 
 jrequire and would be promoted by a sale thereof, and that the 
 prospective value of said lands is such that it would be to the 
 interest of any person who might own the same in fee to sell the 
 ^ame ; and it appearing that due notice of this application has 
 'been given to the persons interested in said lands for the time 
 and in the manner required by law : It is, on this day of 
 
 , eighteen hundred and , on motion of , of 
 
 Kjounsel with the petitioner, ordered by the Chancellor, that it be 
 referred to , one of the special masters of this court, to 
 
 inquire into the situation of said lands and the merits of said 
 application, and in what manner and by what limitations said 
 lands are held ; and whether the interests of the owners of the 
 .particular and future estates in said lands require and would be 
 promoted by a sale thereof; and whether the situation and pros- 
 pective value of said lands are such that it would be to the interest 
 of any person who might own the same in fee- to sell the same, 
 and also any other special matter which the said master may 
 
 (a) Upon proof of notice, the Chan- tion, have entered their appearance 
 
 cellor shall refer such petition to a with the clerk, or who shall, ten days 
 
 ^master to inquire into the merits of before such hearing, give notice of 
 
 ihe application, who shall proceed to such appearance to the petitioner, or 
 
 hear the applicant, and other parties, to his or her solicitor ; and said mas- 
 
 itouching the same, giving eight days' ter shall have power to adjourn such 
 
 notice of the time and place of such hearing from time to time. Rev., 
 
 iiearing to all parties who shall, on or "Sale of Land," § 43. 
 .before the day of presenting such peti- 
 
SALE OP LANDS LIMITED OVER. 687 
 
 deem proper or shall appear for the benefit of the present and 
 prospective owners of said land. 
 
 Notice of application for the appointment of guar- 
 dian. 
 
 rp {Title of matter.) 
 
 Take notice, that I shall apply to the Chancellor of the State 
 of New Jersey, at the state-house, in the city of Trenton, on 
 , the day of next, at o'clock in the 
 
 forenoon, or as soon thereafter as counsel can be heard thereon, 
 to assign and appoint a guardian ad litem for , an infant 
 
 respondent in the above- stated matter, who is under the age of 
 fourteeu years, (or as the case may be.) 
 Dated, &c. 
 
 {Signature of solicitor of petitioner.) 
 
 Certificate that no guardian has been appointed 
 hy Orphans' Court or surrogate. 
 
 {Title of matter.) 
 State of New Jersey, 1 
 
 county of , J " 
 
 I, , surrogate of said county, hereby certify that I have 
 
 just examined the records of my office to ascertain whether either 
 the Orphans' Court or the surrogate of said county has appointed 
 a guardian for , an infant daughter of , of said 
 
 county, or for , an infant son of , and that no 
 
 guardian has been appointed by said court or surrogate for either 
 of said infants. In witness, &c. 
 
 [l. s.] {Swrrogate.) 
 
 Order appointing guardian for infant respondents. 
 
 {Title of matter.) 
 On motion made this day by , of counsel with peti- 
 
 tioner, it was alleged that and , two of the 
 
 respondents in the above-stated matter, are infants under the 
 age of fourteen years, {or as the case may be,) and it appearing 
 that notice of the presentation of the petition in the above- stated 
 
688 FOEMS OF PLEADINGS. 
 
 matter has been given to said infants, pursuant to the statute iu' 
 such case made and provided, and that they have failed and 
 neglected to apply for the appointment of a guardian in this 
 proceeding, and it appearing that due and legal notice of this 
 application has been given to , the father of the said , 
 
 and to , the mother of the said , (his father being 
 
 dead,) and that no guardian has been appointed for either of 
 said infants by the Orphans' Court or the surrogate of the 
 county of , that being the county in which said infants 
 
 reside : 
 
 It is thereupon, on this day of , eighteen hundred 
 
 and , ordered by the Chancellor that , clerk of this 
 
 court, be assigned and appointed, and he is hereby assigned and 
 appointed guardian of the said and , by whom they 
 
 may appear and answer the said petition. 
 
 Infants' appearance. 
 
 (Title of matter.) 
 Appearance entered for and , infant respondents 
 
 in above matter, by 
 
 ( Cfuardian ad litem.) 
 
 Xotice of taking testimony. 
 
 {Title of matter.) 
 
 Take notice, that testimony will be taken in the above-stated 
 matter, before , one of the special masters of the Court of 
 
 Chancery, on , the day of , instant, at 
 
 o'clock in the noon, at his office, in the city of , 
 
 under an order of reference made in the above- stated matter, 
 whereby the said master is directed to inquire, among other 
 things, whether the interests of the owners of the particular and 
 future estates in certain lands, described in the petition filed in 
 above-stated matter, require and would be promoted by a sale 
 thereof. You have an interest in the lands described in said 
 petition, and may attend accordingly at the time and place afore- 
 said, if you desire. • 
 
 Dated, &c. (Signature of solicitor of petitioner.) 
 
 To 
 
SALE OF LANDS LIMITED OVER. 689 
 
 Master's report.(«) 
 
 {Title of matter.) 
 
 I, the undersigned, one of the special masters of this court, 
 respectfully report to the Chancellor, that in pursuance of an 
 order of reference in the above matter, bearing date the 
 day of , eighteen hundred and , directing me to 
 
 inquire into the merits of the said application of , and 
 
 into the situation of the lands therein mentioned, and by what 
 limitation said lands are held, and whether the interests of the 
 owners of the particular and future estates in said lands require 
 and would be promoted by a sale thereof, and whether the situa- 
 tion and prospective value of said lands are such that it would 
 be to the interest of any person who might own the same in fee to 
 sell the same, and also any special matter which the said master 
 may deem proper or shall appear for the benefit of the present 
 and prospective owners of said lands, I have been attended by 
 , solicitor and of counsel with the petitioner, no one 
 appearing for either of the respondents, although they were 
 severally served with due and legal notice to appear before me, 
 as appears by due proof annexed to and making part of this my 
 report ; and that I have taken the depositions of witnesses, and 
 have considered the matters referred to me. 
 
 And I further report, that the said lands consist of a farm 
 containing (insert dimensions and present and prospective condi- 
 tion of property.) 
 
 And I further report, that the said lands are held in the man- 
 ner and by the limitations following, to wit : That, &c., {state 
 how lands are held.) 
 
 And I further report, that the said last will and testament of 
 said , deceased, contains the following provisions with 
 
 reference to said real estate, to wit, {insert provisions,) as by 
 
 (a) The master shall reduce to and situation of said property, and 
 
 writing all evidence taken before him, whether the interests of the owners 
 
 and return the same with his report ; thereof require and would be pro- 
 
 and shall report in what manner and moted by a sale of the same, and the 
 
 by what limitations such lands are reasons upon which such opinion is 
 
 held, and the nature, circumstances founded. Rev., "Sale of Land," ? 43. 
 
 2t 
 
690 FOKMS OF PLEADINGS. 
 
 reference to the said will, a copy whereof was produced before 
 me, and marked Exhibit , will more fully appear. 
 
 And I further report, that the said departed this life 
 
 on the day of , eighteen hundred and , 
 
 leaving children, and , and his widow, 
 
 , surviving him; that on the day of , 
 
 eighteen hundred and , the said intermarried with 
 
 ; that on the day of , eighteen hundred and 
 
 , , one of the said testator's daughters, intermarried 
 
 with , by whom she has one child, named ; that 
 
 , the husband of , died on the day of , 
 
 eighteen hundred and ; that on the day of , 
 
 eighteen hundred and , , the other daughter of said 
 
 testator, intermarried with , by whom she has one child, 
 
 named ; that , the testator, left one brother, , 
 
 and two sisters, and ; that died, without 
 
 issue, the day of , eighteen hundred and ; 
 
 and are still living ; is in her year ; 
 
 is in her year ; is in her year ; and 
 
 , wife of , is in her year. 
 
 And I further report, that the owners of the life estate in 
 said lands are both females ; the petitioner, , is a widow, 
 
 with one child ; her sister, , is the wife of ; that 
 
 neither of them is acquainted with the business of farming, and 
 that they do not intend to devote themselves to that business ; 
 that the husband of died insolvent, and that she has no 
 
 means whatever of supporting herself and her infant child, 
 except what she derives from the farm in which she has a life 
 estate ; and that she is in delicate health, and the income of the 
 farm affords her only a slender support ; that the owners of the 
 life estate will be compelled to have the farm worked by tenants ; 
 and that it is quite certain that if worked by tenants it will 
 depreciate in value even if the buildings and fences are kept in 
 repair ; that the farm is now in a good state of cultivation and 
 will, according to the opinion of the witnesses produced before 
 me, produce more if sold now than at the termination of the 
 life estate, and that for this opinion the witnesses so produced 
 give reasons which are satisfactory to me, and to which I refer. 
 
SALE OF LANDS LIMITED OVER. 691 
 
 And I further report, that the personal property which was 
 bequeathed by the will of said to his widow and children, 
 
 'to enable them to carry on the farming business, was sold by the 
 executor of the said testator to pay his debts, and thereby the 
 views which the testator had when he made his will were 
 defeated, and his daughters were not left in a condition to carry 
 on the farming, if they had been competent to do so. 
 
 And I further report, that in my opinion, from the evidence 
 adduced before me, the interests of the owners of the particular 
 and future estates in said lands require and will be promoted by 
 a sale thereof, and that the situation and prospective value of 
 said lands are such that it would be for the interest of any person 
 who might own the same in fee, to sell the same. 
 
 And I further report, that I know of no other special matter 
 which I deem necessary or proper to report for the bpnefit of the 
 present and prospective owners of said lands. 
 
 Respectfully submitted, &o. 
 
 {Signature of master.) 
 
 Order to sell lands limited over, &e.(a) 
 
 {Title of matter.) 
 
 On reading and filing the report of , one of the special 
 
 masters of this court, made in the above-stated matter, bearing 
 ^ate the day of , eighteen hundred and , 
 
 whereby it satisfactorily appears to the Chancellor that the said 
 real estate is held and limited over as stated and set forth in the 
 petition, and that the interests of the owners of the particulair 
 and future estates in said real estate require and would be pro- 
 moted by a sale thereof: It is now, on this day of , 
 eighteen hundred and , on motion of , of counsel 
 
 (a) Upon such report, if it appear this court, either at public or private 
 to the satisfaction of the Chancellor, sale, and with such limitations of 
 -that said lands are held or limited price, and as to credit for purchase- 
 over as aforesaid, and that the in- money, as he may deem proper to 
 terests of the owners require and direct, which sale shall be reported 
 -would be promoted by such sale, the to the Chancellor. R&)., "Sale of 
 Chancellor may order such lands to Land," ? 44. 
 be sold in fee by one of the masters of 
 
692 FORMS OF PLEADINGS. 
 
 with the petitioner, ordered by the Chancellor, that , one 
 
 of the special masters of this court, do sell the said real estate 
 situate, &c., bounded and described as follows, {describe land,} 
 mentioned and described in the petition in this case, [at public 
 vendue,] or (at private sale) in fee, [giving notice of the time 
 and place of sale, pursuant to the statutes in such case made 
 and provided] ; and that said master make report of such sale 
 to the Chancellor, for approval and confirmation. 
 
 Report of public sale. 
 
 ( Title of matter.) 
 In pursuance of an order made by the Chancellor in the 
 above-stated matter, dated the day of , eighteen 
 
 hundred and , by which it was, among other things^ 
 
 ordered, that the subscriber, one of the special masters of thia 
 court, sell the real estate mentioned and described in the petition 
 in this matter, at public vendue, in fee, giving notice of the time 
 and place of sale, pursuant to the statutes in such case made and 
 provided, and that the subscriber make report of such sale to the 
 Chancellor, for approval and confirmation : I do hereby report 
 to his Honor the Chancellor, that I did, by public advertise- 
 ments, signed by myself, and set up at five or more public places 
 in the county of , one whereof was in the township of 
 
 , where said real estate is situate, at least two months 
 next before the time appointed for selling the same, and also 
 published in and , two of the newspapers printed 
 
 and published in the eaid county of , in which the 
 
 said lands are situated, one whereof is a newspaper printed and 
 published at the county seat of said county, at least four weeks 
 successively, once a week next preceding the time so appointed, 
 give public notice that the said lands and real estate would be 
 exposed to sale at public vendue on , the day of 
 
 , eighteen hundred and , at o'clock in the 
 
 afternoon of said day, upon the premises, (or as the case may 
 be';) at which time and place so appointed, I did expose the said 
 lands and real estate to sale at public vendue to the highest bid- 
 der, and then and there bidding therefor the sum of 
 
SALE OP LANDS LIMITED OVER. 693 
 
 dollars, by the acre, for the said tract of land containing 
 acres of land, and no one bidding so much or more for the same, 
 the said tract of land and premises were struck off and sold to 
 the said at the price aforesaid, amounting for the whole 
 
 tract to the sum of dollars, he being the highest bidder for 
 
 the same. {If the lands are sold at private sale the report should 
 ■be made accordingly.) 
 
 Respectfully submitted, &c. 
 
 (Signature of master.) 
 
 Order confirming sale.(cc) 
 
 {!n,tle of matter.) 
 
 Upon reading and filing a report made in the above matter, 
 by , one of the special masters of this court, dated the 
 
 day of , eighteen hundred and , by which it 
 
 appears that in pursuance of an order made by the Chancellor 
 in this matter, dated the day of , last past, wherein, 
 
 among other things, it was ordered, that the said , one of 
 
 the special masters of this court, do sell the land mentioned and 
 described in said order, [at public vendue,] in fee, [giving notice 
 of the time and place of sale,] pursuant to the statute in such 
 <!ase made and provided, [the said master having given public 
 notice, according to law and the direction of said order, of the 
 time and place when and where the said lands would be exposed 
 to sale, at the time and place so appointed, to wit, on , the 
 
 day of , eighteen hundred and , at 
 
 o'clock in the afternoon, upon the premises, did expose the said 
 
 (a) When the sale is approved and taxed and paid out of the proceeds of 
 ■confirmed by the Chancellor, the such sale, the master to be allowed 
 master shall execute a deed thereof such percentage on * the purchase- 
 to the purchaser, which deed, when money as the Chancellor, in the order 
 given pursuant to such order, shall of sale, shall direct, not to exceed, in 
 convey to such purchaser all the any case, one-half the amount allowed 
 estate in said lands, held or limited by law in sheriff's sales of lands ; and 
 over as described in the petition, or all costs and expenses incurred after 
 held by or limited over to any of the such sale in investing money, and re- 
 persons named or designated therein investing such money, and touching 
 as present or prospective owners in the payment of the interest, shall be 
 being or not in being. Sev., "Sale of paid out of the interest accruing on 
 Land," J 44. The costs and expenses the same, and not out of the principal 
 of the proceedings and sale shall be sum. Id., ? 47. 
 
694, E"OEM8 OF PLEADINGS. 
 
 lands to sale at public vendue to the highest bidder, and > 
 
 bidding therefor the sum of dollars, by the acre, and he; 
 
 being the highest bidder for the same, the said lands were then 
 and there struck off and sold to the said ,] at the price 
 
 aforesaid, amounting, for the whole quantity of acres, to 
 
 the sum of dollars ; and no cause being shown or appear- 
 
 ing against confirming the said report : It is, on this day 
 
 of , eighteen hundred and , on motion of , of 
 
 counsel with the petitioner, ordered, that the said master's report, 
 and all the matters and things therein contained, do stand ratified 
 and confirmed, and that the sale made by said master of said 
 lands be and the same is hereby approved and confirmed. 
 
 And it is further ordered, that the said master do make, exe- 
 cute and deliver to the said a good and sufficient convey- 
 ance in the law for the said lands purchased by him as aforesaid, 
 upon his complying with the conditions of said sale ; and that 
 such conveyance, when made in pursuance of this order, shall 
 convey to the said all the estate in said lands held or 
 limited over as described in the petition in this matter, or held 
 by or limited over to any of the persons named or designated 
 therein as present or prospective owners in being or not in being ;, 
 and that such conveyance be valid and effectual forever, and do 
 operate as an effectual bar, both at law and in equity, against all 
 the parties in this matter, and all persons claiming by, from or 
 under them, or any of them. 
 
 Master's report as to how money may be in- 
 vested. 
 
 {Title of matter.) 
 
 I, , one of the special masters of the Court of Chancery,, 
 
 do respectfully report to. his Honor the Chancellor, that the 
 moneys realized by me from the sale of the real estate described 
 in the petition in this matter, can be safely invested in accordance 
 with the rules of said court, and the requirements of the statute 
 in such case made and provided, in the following securities, to 
 wit : {describe securities.) 
 
 Which several proposed investments I respectfully submit to- 
 your HoBor for (5rder in reference thereto. 
 
 Dated, &c. {Signature of master.) 
 
SALE OF LANDS LIMITEP OVER. 
 
 695 
 
 one 
 
 Order for investment.(a) 
 
 {Title of matter.) 
 
 It appeariDg to the Chancellor, by the report of 
 of the special masters of this court, bearing date on the 
 day of , eighteen hundred and , that dollars 
 
 of the proceeds of sale can be invested upon the bond of , 
 
 secured by a first mortgage upon the land and premises sold 
 under the order of this court in this matter ; and that said land 
 and premises, with the improvements thereon, are worth double 
 the amount to be so invested ; that dollars of said proceeds 
 
 can be invested upon the bond of , secured by a first mort- 
 
 gage upon acres of land lying in the township of , 
 
 in the county of , in this state, adjoining lands of 
 
 (a) The moneys arising from the 
 sale under this act shall be paid into 
 the Court of Chancery, and the securi- 
 ties and mortgages for any part un- 
 paid shall be deposited with the 
 clerk of the court; and all such 
 moneys shall be kept at interest, on 
 security by bond and mortgage on 
 real estate within this state, worth, 
 with the improvements thereon, 
 double the amount invested, or may 
 be invested in the public securities of 
 the United States, or of the State of 
 New Jersey, and the interest thereof, 
 or such part of the interest as the 
 Chancellor may direct, shall be paid 
 to the person or persons who would 
 for the time being, according to the 
 limitations of said land, have been 
 entitled to the particular estate 
 therein, in proportion to their respec- 
 tive shares therein ; and such securi- 
 ties shall be taken in the name of the 
 Chancellor of New Jersey, and the 
 interest shall be paid on the same, 
 half yearly or otherwise, directly to 
 the persons entitled to the same, un- 
 less otherwise directed by the Chan- 
 cellor, who shall from time to. time 
 
 make such order for the investing of 
 said money and the payment of the 
 interest thereon, as equity and justice 
 may require. Mev,, "Sale of Land," 
 ?? 45, 50. In any case where justice 
 and equity may so require, the Chan- 
 cellor may direct part of said interest 
 money only to be paid to the tenant 
 of any particular estate, and the resi- 
 due of such interest to be accumulated 
 for the tenant in remainder in fee; 
 and when by the limitation of such 
 lands, the absolute fee of the same, or 
 any share therein, would have vested 
 in any person, then the whole, or the 
 proper share of such person, of the 
 principal of the purchase-money, and 
 the accumulated interest, shall be 
 paid by order of the Chancellor to 
 such person. Id., | 46. The Chan- 
 cellor has no power to order mort- 
 gages or other encumbrances to be 
 paid out of the proceeds of such sale. 
 The act requires that the whole pro- 
 ceeds shall be invested, and directs 
 specifically to whom the interest there- 
 from shall be paid. Cool's Ex'rs v. 
 Higgins, 8 O. E. Gr. 308 ; bui see S. 
 a, 10 a E. Gr. 117. 
 
696 FOBMS OP PLEADINGS. 
 
 and others ; and that said land and premises are worth the sum 
 of dollars ; that the sum of dollars of said proceeds 
 
 can be invested upon the bond of , secui'ed by a first mort- 
 
 gage upon a tract of land lying in the township of , in 
 
 the said county of , containing acres of land, being 
 
 the same tract of land conveyed to the said by and 
 
 , his wife, by deed dated the day of , eighteen 
 
 hundred and , and recorded in County Record of 
 
 Deeds, Volume , page ; and that said land and 
 
 premises are worth the sum of dollars ; that the remainder 
 
 of said proceeds, after deducting the costs and expenses of the 
 proceedings and sale, can be invested upon the bond of , 
 
 secured by a first mortgage upon the farm now owned and 
 occupied by said , situate, &c., containing about 
 
 acres of land ; and that the said land and premises are worth 
 [more than] double the sum proposed to be loaned upon them ; 
 and that the investment is a proper one for trust money : It is 
 thereupon, on this, &c., ordered by the Chancellor, that the said 
 master do pay out of the proceeds of the sale the costs and 
 expenses of the proceedings to be taxed, and the costs and 
 expenses of the sale, including dollars for recording 
 
 mortgages, and retain, as his percentage on the purchase-money, 
 the sum of dollars, and that the said master, after satisfy- 
 
 ing himself that the title to the lands hereafter mentioned is 
 good and clear of encumbrance, and said lands are worth, with 
 the improvements thereon, at least double the sum to be invested, 
 and the investment is a proper one for trust money, shall invest 
 the remainder of the proceeds of sale in the name of the Chan- 
 cellor of the State of New Jersey, as follows, to wit: {desanhe 
 investment.) 
 
 And it is further ordered, that the said master shall immedi- 
 ately deposit said bonds, and also said mortgages,(a) when 
 recorded, with the clerk of this court ; and that out of the first 
 interest moneys received on said bonds, there shall be paid to 
 the solicitor of the petitioner a counsel fee of dollars. 
 
 (a) Forms of bonds and mortgages be furnished by the clerk of the 
 approved of by the Chancellor will court. 
 
SALE OP LANDS LIMITED OVEE. 697 
 
 And it is further ordered, that the said master shall file with 
 the clerk of this court a statement of the costs, fees and expenses 
 under these proceedings, together with a report of the disposi- 
 tion and investment of said proceeds of sale. 
 
 Master's account and report of investments. 
 
 [Title of matter.) 
 I, , one of the special masters of this court, respectfully 
 
 report, that I have disbursed and invested the proceeds of the 
 sale of the real estate, made by me in pursuance of the order of 
 this court, as follows : [describe disbursements and investments.) 
 Respectfully submitted, &c. 
 
 [Signatwre of master.) 
 
 Order of reference as to allowance to owners of 
 particular estates. 
 
 [Title of matter.) 
 The real estate mentioned and described in the petition in this 
 matter having been sold under the order of this court, and an 
 order having been made for the investment of the proceeds of 
 sale : It is, on this, &c., on motion of , of counsel with 
 
 petitioner, ordered by the Chancellor, that it be referred to 
 , one of the special masters of this court, to ascertain 
 and report whether the said real estate was productive or not to 
 the owners of the particular estate at the time of and before the 
 sale thereof, and what was the clear yearly income of the same, 
 above repairs and taxes, to the owners of the particular estate ; 
 and whether, in his opinion, the whole of the interest of the pro- 
 ceeds of sale, or only a part thereof, should be paid to the owners 
 of the particular estate, and if part only, what part ; and that the 
 said master return with his report to this court the evidence taken 
 by him under this order. 
 
 Master's report on foregoing order. 
 
 [Title of matter.) 
 I, , one of the special masters of this court, respectfully 
 
 report to the Chancellor, in pursuance of an order of reference 
 in the above matter, dated the day of last past, 
 
698 FOEM8 OF PLEADINGS. 
 
 directing me, as such master, to ascertain and report whether the 
 said real estate in the petition mentioned and described was pro- 
 ductive or not to the owners of the particular estate at the time 
 of and before the sale thereof, and what was the clear yearly 
 income of the same, above repairs and taxes, to the owners of the 
 particular estate ; and whether, in my opinion, the whole or only a 
 part of the interest of the proceeds of the sale of said lands should 
 be paid to the owners of the particular estate, and if part only, 
 what part ; that I have been attended by , solicitor and 
 
 of counsel with the petitioner, and have taken the depositions 
 of witnesses, and have considered of the matters referred to me. 
 
 And I further report, that the real estate sold was productive 
 at and before the sale thereof, and that the clear yearly income 
 of the same, above taxes and repairs, for the year beginning 
 
 , eighteen hundred and , was the sum of 
 
 dollars; and that, in my opinion, that sum could have been 
 realized out of the premises, from year to year, if the owner of 
 the particular estate had been a competent farmer, and had occu- 
 pied and carried on the farming operations for himself; but 
 that in this case one of the owners of the particular estate being 
 a widow, and the other married to a gentleman who has no 
 acquaintance with the business of farming, and no disposition 
 to engage in it, my opinion is that they could not realize a 
 clear yearly income out of the premises sold of more than 
 dollars, and probably not so much as that, as the income would 
 depend entirely upon skill and management in the farming 
 operations. 
 
 And I further report, that by the last will and testament of 
 the said , deceased, , his widow, who has, since his- 
 
 decease, married one , is entitled to an annuity of 
 
 dollars out of the interest of the proceeds of said sale, for the 
 term of years from and after her marriage with said y. 
 
 which annuity has been paid to her up to , eighteen hun- 
 
 dred and 
 
 And I further report, that, in my opinion, the whole of the 
 interest of the proceeds of said sale, less the annuity to said 
 , should be paid to the owners of the particular estate. 
 
 Respectfully submitted, &c. 
 
 {Signature of master.) 
 
SALE OF LANDS LIMITED OVBB. 699 
 
 Order fixing allowance to owners of particular 
 estate. 
 
 (Title of matter.) 
 
 An order of reference having been made in this matter, on the 
 day of , eighteen hundred and , to , 
 
 one of the special masters of this court, directing him, among 
 other things, to ascertain and report whether the whole of the 
 interest of the proceeds of the sale of the real estate sold under 
 an order made in this cause, or only a part thereof, should be 
 paid to the owners of the particular estate, and the said master 
 having made report, dated on the day of , instant ; . 
 
 and now, upon reading the report and the depositions, and the 
 exhibit accompanying the same, and other papers in this matter, 
 it appearing that the whole amount of proceeds of sale invested 
 on bond and mortgage, under the order of this court, is the sum 
 of dollars, the annual interest of which is the sum of 
 
 dollars; and it further appearing that there was an annual pay- 
 ment of dollars charged upon the real estate sold, in favor 
 of , widow of , deceased, for years from and 
 after her marriage, provided she lived so long, and that she 
 intermarried with one , on the day of , 
 eighteen hundred and , and that all of said annual pay- 
 ments, falling due up to this time, have been made, except the 
 one falling due on the day of . eighteen hundred 
 and ; and it further appearing by the order of investment 
 made in this matter on the day of , eighteen 
 hundred and , that it was ordered that a counsel fee of 
 dollars be paid to the counsel of the petitioner out of the 
 first interest moneys received: It is, on this, &c,j on motion of 
 , of counsel with the petitioner, ordered, that out of the 
 interest money now due, the counsel of the petitioner be paid the 
 sum of dollars, and also the taxed costs on the order of 
 reference made on the day of last past, and on all 
 the proceedings in this matter since that order, and that the said 
 be paid the sum of dollars out of the interest moneys 
 now due, and that she be paid, out of the interest money accru- 
 ing hereafter on said proceeds of sale, the sum of dollars, 
 on the day of of each and every year hereafter, up 
 
700 .POEMS OF PLEADINGS. 
 
 to and including the day of , eighteen hundred and 
 
 , provided she lives so long, but said payments shall 
 cease on her death; and that the balance of the interest for the 
 year ending the day of , eighteen hundred and 
 
 , shall be paid to the said and , wife of • > 
 
 the owners of the particular estate, in equal portions ; and that 
 the interest accruing on the investment of the proceeds of sale 
 after the day of , eighteen hundred and , 
 
 or the death of said widow of the testator, if that event shall 
 happen before that time, shall be paid annually, as said interest 
 is received, to the said and , in equal portions, 
 
 during their joint lives. 
 
 Petition of non-resident guardian for property of 
 Ms ward in New Jersey.(a) 
 
 {Address.) 
 The petition of , guardian of , a minor, respect- 
 
 fully shows, that he is a resident of the city of , in the 
 
 State of , and was appointed guardian of , a minor, 
 
 (a) In case any guardian and his cellor shall be made hj certificate 
 
 ward are both residents of another according to the act of congress, in 
 
 . state or of a foreign country, and such case the guardian and ward reside in 
 
 ward is entitled to funds or property another state, or by attestation under 
 
 of any description deposited in the the seal of the court wherein or officer 
 
 Court of Chancery or under the con- before whom the proceedings were 
 
 trol and direction of the Chancellor, had, if their residence be in a foreign 
 
 arising from the sale of the property country, of the appointment of such 
 
 of such ward in this state or other- guardian, and that he has given ade- 
 
 wise, it shall be lawful for the Chan- quate security as such guardian in 
 
 cellor to make an order that such double the amount in value of such 
 
 guardian may receive and remove the property, over and above the value 
 
 same to the residence of himself and of the property of such ward in the 
 
 ward ; and the delivery, transfer or place of his residence ; and in case 
 
 payment of such funds or property to the Chancellor shall not be satisfied 
 
 such guardian, after the making of with the sufficiency of such security, 
 
 such order, shall be a legal discharge additional security, to be given in 
 
 and acquittance for the same. Rev. this state, may be required in such 
 
 .Sup, "Ouardians,'' ? 1. Before any form as the Chancellor may direct, 
 
 such order as is mentioned in the Id., I 2. 
 
 first section of this act shall be made. On proceedings under this act it is 
 
 proof to the satisfaction of the Chan- not incumbent on the court to settle 
 
SALE OF LANDS LIMITED OVEB. 701 
 
 by the surrogate of county, {or other proper officer,) in 
 
 said State of , on the day of , eighteen hun- 
 
 dred and ; the said is years of age, and is 
 
 also a resident of ; the said minor is entitled to real and 
 
 personal property in the county of , in the State of New 
 
 Jersey, as follows, (here describe the real property^ valued at 
 dollars, and having a rental value of dollars per year ; 
 
 also dollars on deposit in this court derived from [stating 
 
 the source, &c., or otherwise stating natwe of property ;) your 
 petitioner has given adequate security as such guardian in double 
 the value of said property over and above the value of the prop- 
 erty of said minor, in the place of his residence, which security 
 has been approved by the surrogate [or other proper officer) of 
 said county, and filed in his office. 
 
 Your petitioner prays that he may receive the rents, issues and 
 profits of said real estate, collect and receive the said moneys, 
 &o., and remove the same to the place of residence of your 
 petitioner and of his said ward. 
 
 Dated, &c. (Signature.) 
 
 county, ss. — ' , being duly sworn, on his oath says, 
 that the matters and things above stated are true, to the best of 
 his knowledge, information and belief. 
 
 (Jurat.) (Signature.) 
 
 the question whether a debt is due or p. 177. The Chancellor may, upon 
 not (property which it is sought to petition of a guardian of a minor or 
 remove), except so far as may be lunatic or insane or feeble-minded 
 necessary to satisfy it that there is person, order and direct that the 
 property to be removed, and what it guardian remove dilapidated build- 
 is and the amount of it ; that is, so far ings and contract for the erection of 
 as may be necessary to enable the nfew buildings, and borrow money, 
 court to adjudicate upon the matters secured by bond and mortgage on the 
 submitted to it in the proceedings, lands of the infant, for the erection 
 and which are mentioned in the and completion of said new buildings; 
 eighth section of the act. Mahnken's and provision is made to secure any 
 Case, 9 Stew. Eq. 520. estate in dower in said lands ; and 
 Provision is also made for the de- under this act an exchange of a por- 
 livery of the proceeds of a sale of the tion of the infant's lands may be made 
 property of a lunatic or idiot, or any for other lands adjoining upon con- 
 property belonging to him, to a non- sent of . the owner of the adjoining 
 resident guardian. Pamph. L., 1887, land. Rev. Sup., "Guardians,'' H 2-9.- 
 
"702 F0EM8 OF PLEADINGS. 
 
 Notice of application on foregoing petition. 
 
 To , executor of the will of , deceased : Take 
 
 notice, that on the (date,) at ten o'clock A. M,, I shall apply to 
 the Chancellor of the State of New Jersey, at the state-house, in 
 the city of Trenton, for an order authorizing me (here state sub- 
 stance of application.) 
 
 Dated, &c. (Signature of guardian.) 
 
 Order for removal of property of minor out of 
 
 this state. 
 
 (Title of matter.) 
 
 Application having been made to this court by , guardian 
 
 of , both of the city of •, in the State of , for 
 
 the delivery of certain property and money in this state of said 
 ward to said guardian, in his petition in this matter described, 
 and it appearing to the satisfaction of the court that the said 
 is a minor, resident in the State of , and that , 
 
 his said guardian appointed by the (Swrrogate's) Court of the 
 county of , State of , (or as the case may be,) [has 
 
 given adequate security as such guardian in double the amount 
 in value of the property mentioned in his said application, over 
 -and above the value of the ward's property in the State of 
 
 ,J and that the said minor is entitled to real property in 
 the county of , in this state, consisting of (here insert 
 
 description of real property,) having an annual rental value of 
 
 dollars, and also dollars on deposit in this court, 
 
 derived, &c., (or otherwise describe the property^ and due notice 
 of this application having been given : It is, on this (date,) on 
 motion, &c., ordered that said guardian may receive the rents, 
 issues and profits of said real estate, and collect and receive said 
 moneys, which the clerk of this court is hereby directed to pay, 
 and remove the same to the place of residence of himself and 
 ward. (In case satisfactory security has not been given at the 
 place of residence, omit the above clause in brackets and insert 
 here, "upon giving bond in the sum of dollars, with 
 
 sureties, to be approved by , one of the special masters of 
 
 this court, conditioned for the faithful execution of his office as 
 such guardian." 
 
SALE OF LANDS. 
 
 703 
 
 APPLICATION FOR SALE OF LANDS OF A 
 PERSON PRESUMED TO BE DEAD.(a) 
 
 Petition by the devisee of a person presumed to 
 be dead, for the sale of his lands.(6) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , widow of , deceased, 
 
 and , children of said , all of the county of , 
 
 State of New Jersey, respectfully shows, that the said , 
 
 (a) Any person wlio sliall remain 
 beyond sea, or absent himself or her- 
 self from this state, or conceal himself 
 or herself in this state, for seven years 
 successively, shall be presumed to be 
 dead, in any case wherein his or her 
 death shall come in question, unless 
 proof be made that he or she were 
 alive within that time ; but an estate 
 recovered in any such case, if in a 
 subsequent action or suit the person 
 so presumed to be dead shall be 
 proved to be living, shall be restored 
 to him or her who shall have been 
 evicted ; and he or she may also de- 
 mand and recover the rents and 
 profits of the estate, during such 
 time as he or she shall have been 
 deprived thereof, with costs of suit. 
 Bev., "Death," § 4. 
 
 (6) In case the heirs or devisees of 
 any person who is or may be pre- 
 sumed to be dead, pursuant to the 
 provisions of the foregoing section, 
 shall desire to sell any land or real 
 estate to which said person would be 
 ■entitled, if living, it shall be lawful 
 for said heirs or devisees to present a 
 petition to the Court of Chancery ; 
 and thereupon the said court, upon 
 being satisfied of the truth of the facts, 
 that it will be just and equitable, and 
 
 upon proper security being given, by 
 bond, to the State of New Jersey, for 
 double the value of said land or real 
 estate, that the proceeds of the sale 
 shall be paid on demand, with in- 
 terest, to the said person presumed to 
 be dead, or to his or her lawful issue, 
 in case he, she or they shall appear 
 and claim the same, to order the said 
 land or real estate to be sold, as the 
 court may deem advisable ; and that 
 the said person so presumed to be 
 dead, and his or her lawful issue, if he, 
 she or they shall prove to be living, 
 shall be forever thereafter barred from 
 any claim or title to said land or real 
 estate, and entitled only to the pro- 
 ceeds thereof; and in such case the 
 purchaser shall hold and be seized of 
 as good and perfect estate in the said 
 land or real estate as if the said person 
 presumed to be dead had conveyed 
 the same. Id., ^ 5. 
 
 That the proceeds of such sale, 
 after the payment therefrom of the 
 costs and expenses of the proceedings, 
 as allowed by the Chancellor, shall be 
 paid into the Court of Chancery, and 
 shall be distributed, upon the order 
 of the Chancellor, to such person or 
 persons as he may adjudge to be enti- 
 tled thereto as heirs or devisees of the 
 
704 FORMS OF PliBADINGS. 
 
 deceased, on (date,) eighteen hundred and , left his residence 
 
 at , in said county and state, with the intention of going to- 
 
 the west on account of his ill- health ; that prior to his leaving 
 his home, he had had several severe attacks of ; that it 
 
 was the opinion then of his physician that he would not survive 
 another attack ; that shortly after he left his home, , one 
 
 of the above-named petitioners, received from him a letter, dated 
 , in which he writes, &c. ; that since then your petitioners 
 have not, nor has either of them, been able to hear anything from 
 him, directly or indirectly, although inquiry concerning him has 
 been from time to time made. 
 
 And your petitioners further show, that prior to the said 
 leaving his home as aforesaid, he made, in writing, and duly 
 executed his last will and testament, of which the following is a 
 true copy : (recite devises in mil.) 
 
 And your petitioners further show, that satisfactory proof of 
 the presumed death of said having been submitted to the 
 
 surrogate of the said county of , the said will was duly 
 
 admitted to probate on the day of , eighteen hundred 
 
 and ; and the executors in said will named having filed 
 
 with the surrogate of said county their written renuncia- 
 
 tion to act as such executors, letters of administration, with the 
 
 decedent, upon such person or persons to the benefit thereof. The Chan- 
 entering into bond to the State of New cellor may order any estate of dower 
 Jersey, with surety or sureties to be or by the curtesy in such lands and 
 approved by the Chancellor, in double real estate to be sold, and said lands 
 the amount of the share or shares re- and real estate discharged therefrom, 
 ceived by such person or persons, and that a certain sum of money be 
 conditioned for the payment, on de- paid in lieu thereof to the person or 
 mand, of the amount of such share or persons entitled to such estate ; or a 
 shares to the person presumed to be certain share of the proceeds of the 
 dead, if he or she prove to be living, sale of said lands and real estate be 
 or to his or her heirs or devisees, if invested for the benefit of the person 
 he or she shall prove to have lived to or persons entitled to such estate, in 
 be seized of or entitled to said lands the same manner as now provided for 
 and real estate, which said bond shall in the partition in chancery of lands 
 be filed with the clerk of the Court of held in common. Pamph. L., 1889, 
 Chancery, and be assigned for prose- ch. XVII. 
 
 cution by the order of the Chancellor, As to presumption of death and 
 
 in the name of the State of New Jer- proof thereof, see Hoyt v. Newbold, 16 
 
 sey, to the person or persons entitled Vr. 219. 
 
SALE OF LANDS. 705 
 
 will annexed, were granted, on the day of , eighteen 
 
 hundred and , to , one of the above-mentioned 
 
 petitioners. 
 
 That on the said last-mentioned date the said was also 
 
 appointed by the Orphans' Court of said county guardian of 
 and , aged and years, respectively 
 
 minor children of the said 
 
 And your petitioners show, that the said died possessed 
 
 of the following-described real estate in the township of 
 aforesaid : {describe premises.) 
 
 That the whole of said real estate, with the buildings thereon, 
 is worth about dollars ; that the dwelling-house thereon, 
 
 which has been and still is occupied by the widow and family 
 of said , is in a dilapidated condition and greatly needs 
 
 repairs ; that the said left no personal estate except his 
 
 household furniture, worth about dollars, which is still 
 
 used by his family ; and that there is no income whatever from 
 said estate. 
 
 And your petitioners show, that it is necessary that a portion 
 of said real estate be sold, as well to provide means by which 
 necessary repairs may be made, as for the support and education 
 of said minor children, who have no income whatever, or interest 
 in any other property, real or personal, excepting the interest 
 they have in their said father's estate. 
 
 Your petitioners therefore pray, that the following-described 
 portion of said real estate whereof said died seized, viz,, 
 
 all those tracts or parcels of land and premises situate, lying and 
 being in said township of , (describe premises,) valued at 
 
 dollars, may be by this honorable court ordered to be 
 sold, in such manner as this court may deem advisable, upon 
 your petitioners giving such security, by bond, to the State of 
 New Jersey, as the law requires. 
 
 And your petitioners will ever pray. 
 
 (Add verification in usual form. 
 
 2u 
 
706 FORMS OP PLEADINGS. 
 
 Order of reference on foregoing petition. 
 
 {Title of matter.) 
 Upon reading the petition of and , setting forth, 
 
 among other things, the presumed death of , the execu- 
 
 tion of the last will and testament of said , the admission 
 
 thereof to probate by the surrogate of the county of , the 
 
 renunciation of the execution thereof by the executors therein 
 named, and the appointment of an administrator with the will 
 annexed, and praying for a sale of a part of the lands whereof 
 said was seized : It is thereupon, on this day of 
 
 , eighteen hundred and , on motion of , of 
 
 counsel with the petitioners, ordered by the Chancellor, that it 
 be referred to , one of the special masters of this court, 
 
 to ascertain, by due proof, and report to this court as to the 
 truth of the allegations of the said petition, and who are the 
 heirs or devisees of the said , and whether it is just and 
 
 equitable, having due regard to the interests of the infant heirs 
 or devisees, if any, that the part of the said lands in the said 
 petition particularly described should be sold, and if so, the value 
 of the said part of said lands, and in what amount the said peti- 
 tioners should be required to give bond according to law, and 
 what sureties are offered by them, and whether such sureties are 
 sufficient for the purpose. 
 
 Master's report pursuant to foregoing order. 
 
 {Title of matter.) 
 In pursuance of an order in the above-stated matter, made by 
 the Chancellor, bearing date the day of , eighteen 
 
 hundred and , whereby it was referred to the subscriber, 
 
 one of the special masters of said court, to ascertain, by due 
 proof, and report to said court as to the truth or falsity of the 
 allegations of the said petition, and who are the heirs or devisees 
 of the said , and whether it is just and equitable, having 
 
 due regard to the interests of the infant heirs or devisees, if any, 
 that the part of the said lands in the said petition particularly 
 described should be sold, &c., I, , hereby report that I 
 
 have attended to the matters referred to me by the said order, 
 
SALE OP LANDS. 707 
 
 and have taken the examination of witnesses and other evidence 
 in the matter, and thereupon am of the opinion that the truth 
 <i{ the allegations of the said petition has been fully established ; 
 that the said has been absent from this state for seven 
 
 years, successively, prior to the exhibiting of said petition, and 
 that his death is reasonably presumable ; that is his widow, 
 
 and and are his only heirs or devisees j that under 
 
 the circumstances of the case, it is just and equitable, having due 
 regard to the interests of the infant heirs or devisees, that the 
 portion of land described in the petition, and sought to be sold, 
 should be sold, and that the interests of the infants would be 
 substantially promoted thereby ; that said lands are valued at 
 dollars ; that the said petitioners should be required to 
 give bond in the sum of dollars. 
 
 And I further report that the following-named persons have 
 been proposed to me as sureties, viz., and , who 
 
 ■both reside in the county of , and are each of them, in 
 
 property and estate, sufficient sureties under the law and the 
 -rule of this court. 
 
 EespectfuUy submitted, &c. 
 
 {Add depositions of witnesses.) 
 
 Order to sell lands of person presumed to be dead. 
 
 ( Title of matter.) 
 
 This matter being opened to the court by , of counsel 
 
 with the petitioners, and upon reading a report on file therein, 
 made by , one of the special masters of this court, bearing 
 
 date the day of , from which it appears satisfactorily 
 
 to the Chancellor that , the testator in the petition named, 
 
 has absented himself from this state for seven years last past 
 -successively ; and that there is no evidence of his being alive 
 within that time ; and that is his widow, and and 
 
 are his children ; and that the said and are 
 
 infants under the age of twenty- one years; and that it is just 
 and equitable, having due regard to the interests of said infants, 
 that the portion of land described in the said petition in that 
 •behalf should be sold ; and that the value of said land is 
 
708 FOEMS OF PLEADINGS. 
 
 dollars. And it also appearing to the Chancellor by the exhi- 
 bition of the letters of administration issued by the surrogate of 
 the county of , with the will annexed, to , on the 
 
 day of , eighteen hundred and , that the- 
 
 executors named in the will of the said have renounced- 
 
 the execution thereof ; and that the said surrogate has appointed' 
 the said , administrator with the will annexed of the estate 
 
 of the said . And it also appearing in and by the said 
 
 will that the testator disposed of his property in favor of his said 
 widow and children, as particularly provided in said will, and 
 therein authorized his executors to sell and convey his real estate : 
 It is thereupon, on this day of , eighteen hundred' 
 
 and , ordered by the Chancellor, that the said be 
 
 presumed to be dead, pursuant to the statute in such case made 
 and provided; and that it is just and equitable that the land 
 particularly set forth and described in the petition in this matter,, 
 to wit, {describe premises,) be sold ; and that for the purposes or 
 such sale, and pursuant to the provisions of the statute in such 
 case made and provided, the said do give bond to the- 
 
 State of New Jersey in the sum of dollars, with 
 
 and as his sureties, conditioned for the payment, on demand^ 
 
 of the proceeds of the sale of the lands hereinbefore set forth,, 
 with interest, to the said , or to his lawful issue, in case 
 
 he or they shall appear and claim the same ; which bond shall 
 be approved by the special master aforesaid, and shall then be 
 filed with the clerk of this court. 
 
 And it is further ordered, that upon filing the said bond the- 
 said , administrator as aforesaid, do sell the lands herein- 
 
 before described, at public vendue, to the highest bidder, in such 
 parcels as may seem to him most for the interest of the parties ;. 
 and that he do give public notice of the time and place of such 
 sale, and in all respects conduct the same as required by law y 
 and that before any deeds are executed conveying said lands 
 pursuant to the terms of said sale, the sale and the terms thereof 
 shall be reported to the Chancellor by the said administrator,, 
 under his' oath, to the end that the Chancellor may confirm or 
 disallow the same ; and that he may make such order as he shall 
 deem fit, touching the disposition of the proceeds. 
 
SALE OF LA.NDS. 709 
 
 Bond of administrator to secure proceeds of sale 
 "Of land of a person presumed to be dead. Know all 
 men by these presents, that we, and and , all 
 
 of the township of , county of , and State of New 
 
 Jersey, are held and firmly bound unto the State of New Jersey 
 in the sum of dollars, lawful money of the United States 
 
 of America, to be paid to the said the State of New Jersey, for 
 which payment well and truly to be made, we bind ourselves, 
 our and each of our heirs, executors and administrators, firmly 
 by these presents. Sealed with our seals and dated the 
 day of , eighteen hundred and 
 
 Whereas, by a certain order of the Court of Chancery of the 
 State of New Jersey, made on the day of , eighteen 
 
 hundred and , the above-bounden was authorized 
 
 and directed, as administrator with the will annexed of the 
 €state of , to sell certain land and premises of the said 
 
 , presumed to be dead, said land and premises being par- 
 ticularly described in said order : Now, therefore, the condition 
 -of the above obligation is such that if the above-bounden 
 shall pay, on demand, the amount of the proceeds of the sale of 
 said lands, with interest, to the said , or her lawful issue, 
 
 in case he or they shall hereafter at any time appear and claim 
 the same, then the above obligation to be void, otherwise to be 
 And remain in full force and virtue. 
 
 Administrator's report of sale. 
 
 {Title of matter.) 
 In pursuance of a decree made by the Chancellor in the above 
 matter, bearing date on the day of , eighteen hundred 
 
 and , by which it was, among other things, ordered, that 
 
 all and singular the premises in the petition mentioned and 
 described, with the appurtenances, be sold at public vendue, to 
 the highest bidder, by the subscriber, administrator, with the 
 will annexed, of , deceased, in such parcels as might seem 
 
 to him most for the interest of the parties ; and that I should 
 give public notice of the time and place of such sale, and in all 
 respects conduct the same as required by law, and that before 
 any deeds were executed, conveying said land pursuant to the 
 
710; FORMS OF PLEADINGS, 
 
 terms of said sale, the said sale and the terms thereof should be 
 reported to the Chancellor my me, under my oath : I hereby 
 report to his Honor the Chancellor, that I did, by public adver- 
 tisements, signed by myself, and set up at five or more public 
 places in the county of , one whereof was in the town- 
 
 ship of , where said real estate is situate, at least 
 
 next before the time appointed for selling the same, and also 
 published in and , two newspapers printed and 
 
 published in the county where said lands are situate, and at the : 
 county seat of said county, at least four weeks successively, once 
 a week, next preceding the time so appointed, give public notice 
 that the said lands and real estate would be exposed for sale at 
 public vendue on the day of , eighteen hundred 
 
 and , at the hour of in the afternoon, upon the 
 
 premises, at which time and place so appointed, I did expose 
 the said lands and real estate to sale at public auction, to the 
 highest bidder, and then and there bidding the sum of 
 
 dollars for the tract described as follows, {describe lands,)- 
 and no one bidding so much for the same, the said tract of land 
 and premises was struck oflF and sold to the said for the 
 
 said sum of dollars, he being the highest bidder therefor. 
 
 And I further report, that the terms of said sale were casb 
 upon the delivery of the deed for the same, which was to be 
 without unnecessary delay. 
 
 Respectfully submitted, &c. 
 
 {Add affidavit) {Signature of administrator.) 
 
 Order confirming sale. 
 
 {Title of matter.) 
 Upon reading and filing a report made in the above matter 
 by , administrator with the will annexed of , deceased 
 
 bearing date the day of last past, by which it 
 
 appears that in pursuance of an order made by the Chancellor in 
 this matter, and dated the day of last past, wherein, 
 
 among other things, it was ordered, that certain lands and 
 premises in the said order pairticularly described, should be sold 
 at public vendue, to the highest bidder, by the said ,, 
 
 administrator as aforesaid, the said administrator having given 
 
 '*-.. 
 
SALE OF LANDS. 711 
 
 public notice, according to law and the direction of said order, 
 of the time and place when and where the said landa and 
 premises would be exposed to sale, did, at the time and place so 
 appointed, to wit, on , the day of , eighteen 
 
 hundred and , at o'clock in the afternoon, upon the 
 
 premises, expose the said land and premises to sale at public 
 vendue to the highest bidder, and then and there bidding 
 
 for the first tract mentioned and set forth in the said report, the 
 sum of dollars, and being the highest bidder for the same, 
 
 the said premises were then and there struck off and sold to him 
 at the price aforesaid, and it appearing by affidavit that said 
 lands were sold for the highest and best price the same could 
 then bring in cash, and no cause being shown or appearing 
 against confirming the said report : It is, on this day of 
 
 , eighteen hundred and , on motion of , of 
 
 counsel with the petitioners, ordered, that the said report, and 
 the matters and things therein contained, do stand ratified and 
 confirmed, and that the said administrator do make, execute and 
 deliver to the said good and sufficient conveyance in the 
 
 law for the said tract of land and premises purchased by him as 
 aforesaid, upon his complying with the conditions of said sale. 
 
 Petition by administrator for payment of dece- 
 dent's debts, &e. 
 
 (Address.) 
 
 The petition of , administrator with the will annexed 
 
 of , deceased, of the township of , county of , 
 
 and State of New Jersey, respectfully shows, that by an order 
 made by your Honor in the above- stated matter, on the 
 day of , eighteen hundred and , your petitioner was 
 
 ordered to make sale of certain lands and premises of said 
 , deceased, in said order particularly described, and to 
 report such sale, and the terms thereof, to the end that the same 
 might be confirmed or disallowed, and that your Honor might 
 make such order as he should deem fit touching the disposition 
 of the proceeds. 
 
 And your petitioner further shows, that your petitioner duly 
 sold the said tracts of land and premises, realizing from the sale 
 
712 FORMS OP PLEADINGS. 
 
 thereof the sum of dollars, and did report the said sales 
 
 as directed by the said order, which sales were confirmed by 
 your Honor on the day of , eighteen hundred 
 
 and 
 
 And your petitioner further shows, that there were and are 
 debts due and owing from the estate of said , deceased, 
 
 and contracted by the said , widow of the said , 
 
 deceased, for the support of herself and her infant children 
 within the past three years, which, together with the costs and 
 expenses of proceedings in this court in the above matter paid 
 by your petitioner, amount to the sum of dollars; and 
 
 that the said , and the infant children of said , 
 
 deceased, being without a suitable house or home, are desirous 
 that the balance of the said sum in the hands of your petitioner 
 should be appropriated for the purpose of building a suitable 
 dwelling-house for them upon the remaining portions of the real 
 estate of said , deceased. 
 
 Your petitioner therefore prays, that an order may be made 
 directing your petitioner to pay all debts so contracted as afore- 
 said still remaining due and owing, and confirming all the pay- 
 ments already made by your petitioner for the satisfaction of the 
 said debts, and to dispose of the remainder of said sum, being 
 dollars, or so much thereof as may be necessary for the 
 purpose of building and furnishing a suitable dwelling-house 
 for the widow and family of said , deceased. 
 
 And your petitioner will ever pray, &c. 
 
 Order of reference on foregoing petition. 
 
 {Title of matter.) 
 Upon reading and filing the petition of , administrator 
 
 with the will annexed of , deceased, setting forth, among 
 
 other things, that , widow of said , has, within the 
 
 past three years, expended for the support of herself and her 
 infant children, and that he has expended for the costs and 
 expenses of the proceedings in this court in this matter, the sum 
 of dollars, and praying that an order be made directing 
 
 him to pay such debts, as above mentioned, as remain unpaid, 
 and confirming such payments of said debts as have already 
 
DI8TBIBUTI0N OF PEE80NAL PROPERTY. 713 
 
 %een made by him : It is, on this day of , eighteen 
 
 hundred and , ordered, that it be referred to , one 
 
 of the special masters of this court, to ascertain and report what 
 amount the said has expended within three years past for 
 
 the support and maintenance of herself and the children of her- 
 self and the said , and what amount has been paid and 
 incurred for the costs and expenses of the proceedings in this 
 court in this matter; and that the said master make his report 
 with all convenient speed. 
 
 APPLICATION FOR PAYMENT OR DELIVERY TO 
 LEGATEE IN REMAINDER OF PERSONAL 
 PROPERTY BEQUEATHED FOR LIFE TO A 
 PERSON PRESUMED TO BE DEAD, (a) 
 
 Petition. 
 
 In Chancery of New Jersey. 
 
 To his Honor , Chancellor of the State of New Jersey : 
 
 The petition of , of the county of , in the State 
 
 of New Jersey, respectfully shows, that he is a son of , 
 
 deceased, late of the township of , in the county of , 
 
 (a) Whenever any personal prop- after due proof of such absence or 
 
 ■ erty or any interest therein has been concealment, to order, adjudge and 
 
 or shall be given or bequeathed, in decree that the executor or executors 
 
 and by any last will and testament, of said will and testament, or the ad- 
 
 either to or for the use of any person ministrator or administrators, cum tes- 
 
 or persons for life, or for a term of iamento annexo or otherwise, or the 
 
 years, or for any other limited period, trustee or trustees having the charge 
 
 or in remainder, after the death of or control of said personal property, 
 
 any other person or persons who shall shall pay and deliver such property, 
 
 have remained beyond the sea, or or such interest therein, with any 
 
 have been absent from or concealed accumulations thereof, unto or for the 
 
 in this state for seven years after the use of the said person or persons so 
 
 death of the testator or testatrix, it entitled to receive the same after the 
 
 shall be lawful for the Chancellor, in death of such other person or persons 
 
 any proceeding to be had in the Court so absent or concealed, upon his, her 
 
 ■of Chancery, upon the petition of any or their giving to said executor or 
 
 ■one interested in the matter, and executors, administrator or adminis- 
 
714 FORMS OF PLEADINGS. 
 
 in the State of New Jersey, and that he is one of the legatees 
 mentioned in his father's last will and testament, of which the 
 following is a true copy : {recite will and probate thereof.) 
 
 And your petitioner further showp, that the said , men- 
 
 tioned in his father's last will and testament, was a brother to 
 your petitioner ; that in the month of , eighteen hundred 
 
 and , the said , left the city of , in the State 
 
 of New Jersey, and went into the State of 
 
 And your petitioner further shows, that he has not seen nor 
 beard from his said brother since the month of , eighteen 
 
 hundred and , directly or indirectly, and though he has 
 
 used every available means to ascertain the whereabouts of his 
 said brother, has failed entirely to hear anything from him, and 
 he believes his said brother is dead. 
 
 And your petitioner further shows, that and , 
 
 and your petitioner are the legal representatives of , here- 
 
 inbefore mentioned. 
 
 And your petitioner further shows, that his said brother, 
 , was married to one , and had no issue by her ; 
 
 and that the said , since his said brother's absence, has 
 
 married another person. 
 
 Your petitioner therefore prays, that your Honor will order, 
 that and , executors of the last will and testament 
 
 of , deceased, pay and deliver such property bequeathed 
 
 to the said executors in trust for the said , with all accu- 
 
 mulations thereon, unto your petitioner and , the legal 
 
 representatives of said 
 
 And your petitioner will ever pray, &c. 
 
 {Add usual affidavit of verification.) 
 
 trators, trustee or trustees, a refunding shall be a full and complete protec- 
 
 bond or bonds, without any sureties tion to said executor or executors, 
 
 whatever, but otherwise in the form administrator or administrators, trus- 
 
 or to the effect mentioned or pre- tee or trustees, in case said person or 
 
 scribed in and by the seventeenth persons so absent or concealed, or hL=, 
 
 section of the act entitled "An act her or their legal representatives 
 
 concerning executors, and the admin- shall at any time afterwards appear 
 
 istration and distribution of intestates' and claim said property, or interest 
 
 estate?," approved April sixteenth, therein, and said accumulations, or 
 
 oae thousand eight hundred and any part thereof. Rev., "Death," \ 6 ; 
 
 forty-six ; and such bond or bonds Rev. Sup., "Death," p. 216. 
 
DISTEIBUTION OF PERSONAL PROPERTY. 715-" 
 
 Order of reference on foregoing petition. 
 
 {Title of matter.) 
 Upon reading and filing the petition of in the above 
 
 matter, setting forth that he is the eon of , deceased, 
 
 whose last will and testament was duly proved before the sur- 
 rogate of the county of , and stating, among other things, 
 the presumed death of , one of the legatees under the said 
 will, and a brother of the petitioner, and praying that the execu- 
 tors of said last will and testament pay to the said petitioner^ 
 and his brothers and sisters, in the said petition named, the legal 
 representatives of the said , the property bequeathed to 
 the said executors by said will in trust for the said , with 
 all accumulations thereon : It is,- on this day of , 
 eighteen hundred and , on motion of , of counsel 
 with the petitioner, ordered, that it be referred to , one of 
 the special masters of this court, to inquire into and report the 
 truth of the allegations of the said petition, and who are the 
 heirs or devisees of , the testator in said petition named,^ 
 and the heirs or legal representatives of said ; and what 
 proportion of the moneys held in trust for by the said 
 executors is payable to the said heirs or devisees, or legal repre- 
 sentatives, or any of them; and if the said , late the 
 widow of the said , is entitled to any part thereof; and if 
 any, what part thereof; and in what amount the said petitioner, 
 and the other persons entitled to said moneys, should be required 
 to give bond according to law ; and the said master is to report 
 thereon with all convenient speed. 
 
 Master's report. 
 
 {Title of matter.) 
 
 In pursuance of an order made in the above matter, dated 
 the day of , eighteen hundred and , directing 
 
 me, one of the special masters of this court, to inquire into and 
 report the truth of the allegations of the petition filed in this 
 matter, and to inquire who are the heirs or devisees of ,, 
 
 the testator in said petition named, and who are the heirs or 
 legal representatives of ; and what proportion of the 
 
'716 FORMS OF PLEADINGS. 
 
 moneys held in trust for by the executors of the said 
 
 , deceased, is payable to the said legal representatives, 
 heirs and devisees, or any of them ; and if the said , late 
 
 the wife of the said , is entitled to any part thereof, and 
 
 if any, what part thereof; and in what amount the said peti- 
 tioner, and other persons entitled to said moneys, should be 
 required to give bond according to law : I respectfully report to 
 his Honor the Chancellor, that I have been attended by the 
 solicitor of said petitioner, and by and , executors 
 
 of the said , deceased, and that I have taken testimony in 
 
 the said matter, which is hereto annexed, making part of this 
 my report. 
 
 And I further certify and report, that from the evidence taken 
 in said matter, it satisfactorily Appears that the said made 
 
 iiis last will and testament in due form of law, bearing date the 
 day of , eighteen hundred and , and did 
 
 thereby, among other things, order and direct as follows : (recite 
 ■bequest and probate of will.) 
 
 And I further report, that it appears from the evidence before 
 me, that the executors named in said will made a settlement of 
 said accounts of the estate of said , deceased, before the 
 
 Orphans' Court of the county of , at the term of 
 
 said court, eighteen hundred and , and there was ascer- 
 
 tained and declared to be in their hands as the residue of said 
 estate, the sum of dollars, for distribution in accordance 
 
 with the provisions of said will; the said executors having 
 retained dollars in their hands from said estate, the interest 
 
 thereon to be paid to the widow of said , deceased, during 
 
 her life, and after her death to be distributed according to the 
 provisions of said will. 
 
 And I further report, that each of the said residuary legatees 
 was entitled to receive and be paid the equal undivided 
 part of the aforesaid sum of dollars, except the said , 
 
 who was entitled to receive the interest on his share of said sum, 
 yearly, during his life, and after his death the principal to be 
 ,paid to his children or legal representatives. 
 
 And I further report, that it appears that the whole of the 
 said 's share of said money still remains in the hands 
 
DISTRIBUTION OF PEESONAL PROPERTY. 717 
 
 of said executors, and that it satisfactorily appears from the 
 evidence taken before me, that the said left the State of 
 
 New Jersey sometime in the month of , eighteen hundred 
 
 and , with the declared intention of going to [describe 
 
 destination;) that his family and friends, after he left this state, 
 received letters from him, from time to time, in the year eighteen ■ 
 hundred and , at which time he was living in the State 
 
 of , and in his last letter stated that he was going to return 
 
 home in a few days ; and since that time his family or friends 
 have never received any letters or communications from him ; . 
 and though they have made diligent inquiry to ascertain if he 
 was living, they have never been able to learn what became of 
 him. 
 
 And I further report, that the said was, at the time he ■ 
 
 left the State of New Jersey, a married man ; that he and his 
 wife kept house together in the city of , within a 
 
 very short perod of time before his leaving for ; that they 
 
 had no children by their marriage ; and that his wife , 
 
 since he left, has been married to another man by the name 
 of , and is still living. 
 
 And I further report, that it satisfactorily appears from the 
 testimony taken in this matter that the said has absented' 
 
 himself from the State of New Jersey for seven years last past 
 successively and upwards, and that during that time his relatives 
 and friends have had no tidings of him. 
 
 And I further report, that the said residuary funds of said 
 estate in the hands of said executors arose from the sale of lands 
 belonging to said at the time of his death, as appears by 
 
 Exhibit No. on part of petitioner. 
 
 And I further report, that the said [names of distributees) are 
 the legal representatives of , deceased, and entitled to 
 
 demand and receive from the said executors of the said , 
 
 deceased, the share and interest by them held in trust for the 
 said in the estate of the said , deceased. 
 
 And I find and report, that the principal and interest of said' 
 trust money in the hands of the said executors, and held by them 
 for the benefit of the said , on this day amounts to the^ 
 
 sum of dollars. 
 
718 FORMS OF PLEADINGS. 
 
 And I further report, that the said , the late wife of 
 
 the said , deceased, is entitled to receive and have paid to 
 
 her by the said and , executors as aforesaid, the 
 
 sum of . dollars. 
 
 And I further report, that the said {names of distributees) are 
 each entitled to receive and be paid by said executors the sum 
 of dollars as their respective share and interest in the said 
 
 trust fund, making the aforesaid sum of dollars. 
 
 And I further report, that the schedule hereunto annexed, 
 making part of this my report, contains a statement and account 
 of the principal and interest of the said trust fund, and to which, 
 for greater certainty, I refer. 
 
 And I further report, that the said {names of distributees) 
 should respectively execute a bond to the said executors, in the 
 iform prescribed by law. 
 
 EespectfuUy submitted, &o. 
 
 {Signatwe of m,aster.) 
 
 Bond from distributee to executors. Know all men 
 •'by these presents, that I, , of the township of , 
 
 in the county of , and State of New Jersey, am held and 
 
 firmly bound unto and , executors of , 
 
 deceased, in the sum of dollars, lawful money of the 
 
 United States of America, to be paid to the said and 
 
 , executors aforesaid, or to their certain attorney or 
 assigns ; to which payment well and truly to be made; I bind 
 myself, my heirs, executors and administrators, firmly by these 
 presents. Sealed with my seal, and dated the day of , 
 
 eighteen hundred and 
 
 Whereas, made application, by petition, to the Court of 
 
 €hancery of New Jersey, as one of the legal representatives of 
 , for a distributive share and interest in the moneys held 
 by and , executors of , deceased, in trust for 
 
 the benefit of , under the provisions of the will of the 
 
 flaid ; and whereas, such proceedings were had in said 
 
 matter that it appeared that the said is one of the legal 
 
 representatives of said , who has absented himself from 
 
 the State of New Jersey for seven years and upwards succes- 
 
DISTRIBtJTION OP PEESONAL PKOPEKTY. 719 
 
 sively, and is presumed to be dead, and that the said was 
 
 entitled to dollars of said fund ; and whereas, the said 
 
 and , executors of said , deceased, have 
 
 paid to the said the said sum of dollars, in full 
 
 satisfaction and payment of his distributive share and interest 
 in the moneys held in trust by said executors for the benefit of 
 said , under said will : 
 
 Now, therefore, if the said and , executors of 
 
 , deceased, should be hereafter compelled to pay to said 
 , or to any other person or persons other than the brothers 
 and sisters of said , and his said wife , the whole 
 
 or any part of said moneys so held by them in trust for the 
 benefit of said and others, the said shall refund and 
 
 pay back to said and his ratable part of the said 
 
 moneys, with costs of suit and charges that the said executors 
 may be compelled to pay, in proportion to the money received 
 by said of said trust fund, then said obligation to be void, 
 
 otherwise to remain in full force and virtue. 
 
 Signed, &c. [Signature of distributee.) 
 
 Order of distribution to legatees in remainder, &c. 
 
 {Title of matter.) 
 
 This matter being opened to the court by , of counsel 
 
 with the petitioner, and it appearing by a report heretofore made 
 by , one of the special masters of this court, and now on 
 
 file, that the sum of dollars of the estate of , 
 
 deceased, in the petition mentioned, is held by and 
 
 , executors of , deceased, for the benefit of 
 
 And it further appearing, that the said has absented 
 
 himself from the State of New Jersey for seven years succes- 
 sively and upwards ; and that during that time his relatives and 
 friends have heard no tidings of him ; and that (names of dis- 
 tributees) are the legal representatives of said , deceased, 
 and entitled to demand and receive from the said executors of 
 the said , deceased, the share and interest by them held in 
 trust for the said of the estate of the said , deceased. 
 
720 FORMS OF PLEADINGS. 
 
 And it further appearing, that the said , the late wife- 
 
 of the said , is entitled to receive and have paid to her by 
 
 the said executors the sum of dollars, and that the said 
 
 {names of distributees) are each entitled to receive and be paid by 
 the said executors the sum of dollars, as their respective- 
 
 share and interest in the said trust fund. 
 
 And it further appearing, that each of the legal representa- 
 tives of the said above mentioned have respectively given 
 bond to the said executors according to law ; which said bonds- 
 have been approved as to form by the said master, and are now 
 on file in this court : It is, on this day of , eighteen 
 hundred and , ordered, that the said executors pay, within 
 ten days from the date of the service of a copy of this order 
 upon them, to {the late wife) the sum of dollars; and 
 within the same time also pay to {names of distributees) each the 
 sum of dollars. 
 
 APPLICATION FOR THE APPOINTMENT OF A 
 
 NEW TKUSTEE.(a) 
 
 Petition for the appointment of a new trustee, 
 under a will, in place of a deceased trustee. (6) 
 
 In Chancery of New Jersey. 
 To his Honor , Chancellor of the State of New Jersey r 
 
 The petition of and , adult children of , 
 
 deceased, and and , infant children of the said 
 
 (o) The appointment of new trus- (i) Applications to appoint or sub- 
 tees is an ordinary remedy enforced stitute trustees may be made by bill 
 by courts of equity in all cases where or petition, and when made by peti- 
 there is a failure of suitable trustees tion shall set forth the trust suffi- 
 to perform the trust, either from acci- ciently to show who are interested in 
 dent or from the refusal of the old the same as cestuis que trust, vested or 
 trustee to act, or from their original contingent, and as trustees. Rule 162. 
 or supervenient incapacity to act, or In case any lands or real estate held 
 from any other cause. iStory's Eg. PL, in trust shall, upon the death of the 
 ? 1287 ; (yKill v. Campbell, 3 Or. Oh. sole trustee, or of the survivor of two 
 13; Green v. Blackwell, 4 Stew. Eg. 37. or more trustees, descend to and be- 
 
APPOIHTMBNT OP NEW TBTT8TEE. 
 
 721 
 
 , by , their next friend, all of, &c., respectfully 
 
 shows, that , the father of your petitioners, being in his 
 
 lifetime seized and possessed of considerable real and personal 
 
 come vested in any infant under the 
 age of twenty-one years as trustee, or 
 in case any sole trustee shall be de- 
 clared a lunatic, or shall abscond or 
 remove from this state, or become in 
 any manner legally incapable of exe- 
 cuting the trust, it shall be lawful for 
 the * * « Court of Chancery, 
 upon the application of any person 
 interested, after notice to all parties 
 concerned, to remove such trustee and 
 appoint a, new trustee in his place ; 
 and such new trustee shall be seized 
 of the trust estate as fully and in the 
 same manner as the original trustee 
 was; provided, that the court in its 
 discretion may require such new 
 trustee to enter into bond with sure- 
 ties in such manner as the court may 
 direct, conditioned for the perform- 
 ance of the duties of such office ; if 
 any account shall be necessary or 
 required, the application shall be 
 made to the Court of Chancery. Rev., 
 "Trustees,'' § 4. Any trustee ap- 
 pointed under the foregoing section, 
 or who heretofore has been, or here- 
 after shall be, appointed or substituted 
 ]jy * » » tj]g Court of Chancery 
 in the place of any trustee, appointed 
 by a will or other instrument creating 
 or continuing a trust, shall have the 
 same power to sell and convey lands 
 and other property as was given to 
 and vested in the original trustee, or 
 trustees named in or appointed by 
 such will or instrument, even in cases 
 where such power may be directed to 
 be exercised at the discretion of such 
 original trustee or trustees, unless 
 such power of sale shall by such will 
 or instrument be expressly prohibited 
 
 to any substituted trustee. Id., § 5 ; 
 amended by Pamph. L., 1892, p. 443. 
 Whereas, the acts relating to descents 
 have always been construed not to 
 extend to estates granted or devised 
 to trustees so that the estate descended 
 to the heir at common law, but 
 doubts have been suggested whether 
 the act respecting joint tenants and 
 tenants in common does not apply to 
 estates granted or devised to trustees, 
 although the same reason of conveni- 
 ence applies to both cases, and the 
 survivor or survivors should take the 
 legal estate and such doubts should be 
 set at rest ; therefore, all estates here- 
 tofore or hereafter to be granted or 
 devised to trustees shall be construed 
 to have vested and to vest an estate in 
 joint tenancy in such trustees, and in 
 case any trustee has been or shall be 
 removed, and a conveyance or devise 
 has been or shall be made by the 
 trustee or trustees, so removed to the 
 old and new trustees, or to new trus- 
 tees, such conveyance or devise shall 
 be construed to vest in the old and 
 new trustees, or the new trustees, an 
 estate in joint tenancy, notwithstand- 
 ing the want of any unity. Bev., 
 "Tmstees," § 1. Whereas, many in- 
 conveniences may arise by reason that 
 persons under the age of twenty-one 
 years, having estates in lands, tene- 
 ments and hereditaments, only in 
 trust for others, or by way of mort- 
 gage, cannot, though by the direction 
 of the cestui que trust or mortgagor, con- 
 vey any sure estate in any such lands, 
 tenements or hereditaments to any 
 person or persons : for remedy whereof 
 it shall be lawful for any such person 
 
 2v 
 
722 
 
 FORMS OF PLEADINGS. 
 
 estate, made, executed and published his last will and testament, 
 in writing, in due form of law, dated, &c., and therein and 
 thereby did, among other things, order and direct as follows, 
 viz., (recite so mueh of the will as is necessary to the case,) as by 
 the said will, or a duly certified copy thereof, ready to be pro- 
 duced, will more fully appear. 
 
 or persons under the age of twenty- 
 one years, by direction of the Court of 
 Chancery, by an order made upon 
 hearing all parties concerned, on the 
 petition of the person or persons for 
 whom such infant or infants shall be 
 seized or possessed in trust, or of the 
 mortgagor or mortgagors, or guardian 
 or guardians of such infant or infants, 
 or person or persons entitled to the 
 moneys secured by or upon any lands, 
 tenements or hereditaments whereof 
 any infant or infants are or shall be 
 seized or possessed by way of mort- 
 gage, or of the person or persons enti- 
 tled to the redemption thereof, to 
 convey and assure any such lands, 
 tenements or hereditaments, in such 
 manner as the said Court of Chancery 
 shall by such order direct, to any 
 other person or persons; and such 
 conveyance or assurance, shall be as 
 good and effectual in law, to all in- 
 tents and purposes whatsoever, as if 
 the said infant or infants were, at the 
 time of making such conveyance or 
 assurance, of the full age of twenty- 
 one years. Sev., "Trustees," i 2. All 
 and every such infant or infants, being 
 only trustee or trustees, mortgagee or 
 mortgagees as aforesaid, shall and 
 may be compelled by order, so as 
 aforesaid to be obtained, to make such 
 conveyance or conveyances, assurance 
 or assurances as aforesaid, in like 
 manner as trustees or mortgagees of 
 fall age are compellable to convey or 
 assign their trust estates or mortgages. 
 Id., § 3. 
 
 Where the surety in any bond 
 given by a trustee shall discover that 
 such trustee is wasting or mismanag- 
 ing the estate, whereby the said 
 surety may become liable to loss or 
 damage, the court making the appoint- 
 ment, upon application of such surety, 
 and upon suflScient reason therefor, 
 may order every such trustee to render 
 an account of his or her trusteeship to 
 such surety ; and if it shall appear 
 that such trustee has embezzled, 
 wasted, misapplied, mismanaged, or 
 not sufficiently secured said estate, in 
 any such case the said court shall 
 direct the said trustee to give separate 
 security to his or her surety, for the 
 true payment of the balance remain- 
 ing in his or her hands, to be paid 
 according to the trust ; and on neglect 
 or refusal, it shall be lawful for the 
 said court to revoke the trusteeship, 
 and grant the same to such person or 
 persons having right thereto, or other 
 person or persons as will give suffi- 
 cient bonds in the usual form ; and in 
 such case, it shall be the duty of the 
 newly-appointed trustee immediately 
 to bring an action on tlie case against 
 such removed tiustee, and hold him 
 or her to bail, and in such action to 
 recover the amount of all moneys, 
 assets, rents, issues and profits received 
 by such trustee, and not applied 
 according to law, as well as all dam- 
 ages done or committed by such trus- 
 tee in respect to the estate in his or 
 her hands. Bei>., " Trustees," § 6. 
 
APPOINTMENT OF NEW TETJSTEE. 723 
 
 And your petitioners further show, &c., {state here the death of 
 the testator, and the probate of will, and the execution of the trust 
 by the trustee and executor, as far as may be necessary.) 
 
 And your petitioners further show, that the said con- 
 
 tinued so to exercise the duties of such trustee and executor as 
 aforesaid until {date,) when he departed this life intestate. 
 
 And your petitioners further show, that the said trust estate 
 held by the said for their benefit, under the said will, at 
 
 the time of the death of said trustee, consisted of the following 
 items, viz., {state here a schedule of the real and personal 
 property.) 
 
 And your petitioners further show, that by the death of the 
 said trustee, the estate of their father, so held in trust for their 
 benefit, remains without any trustee to administer the same 
 according to the intention of their father, as expressed in his 
 said will ; that they are wholly inexperienced in business, two 
 of them being minors, and desire that the said estate be taken 
 under the protection of this court, and that a new trustee be 
 appointed to administer the same. 
 
 And your petitioners further show, that there is no person in 
 being, besides your petitioners, who has any beneficial interest 
 vested or contingent in the said real and personal estate devised 
 and bequeathed in trust as aforesaid. 
 
 Your petitioners therefore pray, that , of {residence), or 
 
 some other fit and proper person, may be appointed trustee under 
 this application, in the place and stead of , deceased, with 
 
 full power to take possession of all the said trust estate, and to 
 hold and dispose of the same under the direction of this court, to 
 to be given from time to time, in order that the same may be 
 secured and applied to the purposes set forth in the said will. 
 
 And your petitioners, &c. 
 
 {Signature of solicitor and counsel.) 
 
 {Add affidavit of verification.) 
 
724 FOKMS OF PLEADINGS, 
 
 Notice of application, by petition, for appointment 
 of a new trustee.(a) 
 
 ( When notice of this application is necessary, it may be in the fol- 
 lowing or like form.) 
 
 rp . In Chancery of New Jersey. 
 
 You are hereby notified that application will be made to the 
 Chancellor, at , on , the day of next, 
 
 {or " instant," as the case may be,) at o'clock in the fore- 
 
 noon, by the subscriber, upon a petition filed for that purpose, 
 for the appointment of a new trustee in the place and stead of 
 , deceased, the trustee named in the last will and testa- 
 ment of , deceased. 
 
 {Signature of applicant.) 
 Dated, &c. 
 
 Order of reference on foregoing petition. 
 
 In the matter of the application \ 
 
 of for the appointment > 
 
 of a new trustee. ) 
 
 Upon reading the petition of and , filed in the 
 
 above-stated matter, duly verified, setting forth, among other 
 things, that, &c., {redte shortly the statements and prayer of the 
 petition.) 
 
 And it appearing that due notice of this application has been 
 given to , {the persons interested, whoj under the rule, are 
 
 to be notified :) 
 
 It is, on this, &c., on motion, &c., ordered, that it be referred 
 to , one of the special masters of this court, to ascertain 
 
 (a) Notice shall be given to each patty at his post-office address, so that 
 
 person interested as cestui que trust, the same would reacli him, by the 
 
 vested or contingent, or as trustee, of usual course of the mail, twenty days 
 
 the time, place and object of such before such time ; and in case such 
 
 application, by serving the same in party shall be an infant, such notice 
 
 person or at his residence, ten days shall be served on his or her parent 
 
 before such application ; and if the or guardian, or in such other manner 
 
 party reside out of the sta'e, by mail- as the Chancellor, on application, may 
 
 ing the same prepaid, directed to such direct. iJWe 162. 
 
APPOINTMENT OP NEW TKTJSTEE. 725 
 
 and report the truth of the allegations of the said petition ; and 
 to inquire and report whether , of (residence,) the person 
 
 named in the prayer of said petition, is or is not a fit and 
 proper person to be appointed a trustee in the place of , 
 
 deceased, to execute the trust declared in the will of said 
 deceased, with all the rights, powers, privileges and duties inci- 
 dent thereto; and if not, then to name some other suitable 
 person to be such trustee ; and that he also report what security 
 such trustee, when appointed, should give for the due perform- 
 ance of his trust ; and that said master report with all convenient 
 speed ; and all further directions are reserved until the coming 
 in of said report. 
 
 Master's report. 
 
 {Title of matter.) 
 
 In pursuance of an order of this court, made in the above- 
 slated matter, dated, &c., whereby it was referred to me, one 
 of the special masters of this court, to, &c., [state shortly the 
 directions of the order,) I hereby report to his Honor the Chan- 
 cellor, that I have been attended by the solicitor of the peti- 
 tioners, and have examined the matters referred to me by said 
 order. 
 
 And I further report, that the allegations of the said petition 
 are true ; and that , of (residence,) is a fit and proper per- 
 
 son to be appointed a trustee in the place and stead of , 
 
 deceased, with all the rights, powers, duties and privileges inci- 
 dent to such appointment, and that said , before taking 
 upon himself the burthen of said trust, should give bond to the 
 Chancellor, with and as sureties, in the sum of 
 dollars. 
 
 I herewith return the depositions taken before me in this 
 matter, to which I beg leave to refer. 
 
 Respectfully submitted, &c. 
 
 (Signature of master.) 
 
726 FOBM8 OF PLEADINGS. 
 
 Order appointing new trustee.(a) 
 
 {Title of matter.) 
 
 Upon reading and filing the report made in the above-stated 
 matter, by , one of the special masters of this court, 
 
 bearing date, &c., and the depositions accompanying the same, 
 from which it appears that the allegations of the petition filed 
 in said matter are true ; and that , of (residence,) is a fit 
 
 and proper person to be appointed trustee in the room and stead 
 of , deceased, to execute the trusts declared in the last will 
 
 and testament of , deceased, with all the rights, powers, 
 
 duties and privileges incident to such appointment; and no cause 
 being shown or appearing against confirming the said report : 
 It is, on this, &c., on motion, &c., ordered, that the said master's 
 report and all the matters therein containeid stand ratified and 
 confirmed. 
 
 And it is further ordered, that said be and he hereby 
 
 is appointed trustee in the room and stead of , deceased, 
 
 to execute the trusts mentioned and declared in and by the last 
 
 (o) Upon petition the Chancellor satisfaction of the same. Pamph. L., 
 
 may order the transfer of any trust 1889, p. 57. The court may also, 
 
 funds in the custody of or under on the application of an executor, 
 
 the control of the Court of Chan- guardian or trustee, continue the in- 
 
 cery, including the proceeds of sale vestments that came into his hands, 
 
 of lands made by order of the or make such other order touching 
 
 court, into the custody of the proper the sale or retention thereof as may 
 
 court of another state or into the ous- be just. Pamph. L., 1889, p. 169. 
 tody of a trustee appointed by such Executors and trustees holding land 
 
 court of another state, wherein all the and real estate in trust for minor 
 
 beneficiaries reside or wherein all the children may apply by petition to 
 
 beneficiaries who are in esse at the mortgage the same, and apply the 
 
 time of making such order reside. proceeds to the improvement and 
 
 The foreign trustee must give ade- erection of buildings on said lands, 
 
 quate security. Pamph. L., 1886,^. Pamph. L., 1891, p. 31. 
 61, 354. See these statutes for the Assignees for thebenefit of creditors 
 
 practice thereunder. may make sale of the lands conveyed 
 
 Executors and trustees may apply to them by the debtor, at private 
 
 by petition to the Court of Chancery sale, on the order of the Chancellor, 
 
 to sell and convey or mortgage land Applications for such order should be 
 
 and real estate where the same is en- made by petition. The act indicates 
 
 cumbered by taxes and assessments, the method of procedure. Pamph. 
 
 and to use the proceeds thereof in L., 1888, p. 122. 
 
APPOINTMENT OP NEW TKU8TEB. 727 
 
 will and testament of , late of (residence,) deceased, with 
 
 all the rights, powers, duties and privileges incident to the 
 appointment. 
 
 And it is further ordered, that the said , before entering 
 
 upon the duties of his office, do give bond to the Chancellor of 
 the State of New Jersey, in the sum of dollars, with such 
 
 sureties as the Chancellor shall approve, for the due perform- 
 ance and faithful execution of the trust reposed. 
 
 And it is further ordered, that the costs of the proceedings to 
 be taxed be paid out of the income (or "corpus" as the cowrt 
 may direct,) of the trust property. 
 
 And it is further ordered, that all parties interested have leave 
 to apply for further directions, if occasion shall require. 
 
INDEX TO FORMS AND NOTES. 
 
 THE LETTER "n REFERS TO THE NOTE COMMENCINO ON THE PAGE 
 
 PRECEDING THAT INDICATED BY THE FIGURES. 
 
 FIGURES WITHOUT LETTERS FOLLOWING INDICATE FORMS. 
 
 PAGE. 
 
 Abandonment of suit, rule as to what is 142(a) 
 
 Abatement and revivor — 
 appeal in case of — 
 
 bill of revivor for purpose of. 187, n. 
 
 death of respondent, revivor as to heirs 187, n., 315, n. 
 
 in what court to be 315, ii. 
 
 general principles and practice on — 
 
 effect of dismissal of original bill 141(a) 
 
 definition of. 31.4(a) 
 
 answer on 314(a) 
 
 order instead of bill of revivor 315, n. 
 
 in case of devise 315, n. 
 
 after decree 315, n. 
 
 affidavits on obtaining order 315, n. 
 
 when supplei|iental bill_to be filed 315, n. 
 
 bill of revivor may be used 315, n. 
 
 after death of sole parly after decree who may revive 317(a) 
 
 in case of lunatic 317(a) 
 
 order in case of injunction 321(a) 
 
 when bill necessary 322(a) 
 
 orders on reviving — 
 
 as to representatives of deceased defendant 316 
 
 sole complainant 317 
 
 by defendant 318 
 
 co-complainant, by representative, 318 
 
 sole defendant 319 
 
 co-complainant 320 
 
 survivors in name of surviving complainant 314 
 
 against surviving defendants 316 
 
 order of dismissal on default of representative 321 
 
730 INDEX TO FORMS AND NOTES. 
 
 Abatement and revivor — 
 
 statutes— PAGE. 
 
 as to death of one of several plaintiffs or defendants 315(a) 
 
 making representatives parties 316(a) 
 
 on death of sole complainant 317(a) 
 
 as to foreign executor, &c 318(a) 
 
 on death of sole defendant 319(a) 
 
 as to representative of co-complainant 320(a) 
 
 what constitutes end of suit 321(a) 
 
 in case of administrator pendemie lite 321(a) 
 
 statutory provisions confined to certain suits.. 322(a) 
 
 Absconding defendants, order of publication in case of 27 
 
 Absent defendants — 
 
 affidavits in case of — 
 
 non-residence 23 
 
 by sheriff, what to contain 23(6), 24, n. 
 
 in case of concealment 24, u, 
 
 of mailing or inquiry.., 31 
 
 defect in, may be amended 32, n. 
 
 in case of foreign corporation 32, n. 
 
 of publication of notice to appear 32 
 
 appearance of — 
 
 effect of. 25, n. 
 
 petition of defendant on 26, n. 
 
 order for superserfeas on 33 
 
 concealment, in case of — 
 
 when publication may be had in case of 20, n. 
 
 sheriff's affidavit in case of. 23(6) 
 
 grounds of belief of, in affidavit 24, n. 
 
 decree against statute as to 24(6), 25, u. 
 
 definition of 24(6) 
 
 divorce, notice in case of. 31 
 
 foreclosure in — 
 
 order of publication in 27 
 
 statute regarding 27(a), 29(6) 
 
 order of publication in case of supposed death 29 
 
 foreign corporation as an 32, n., 33, n. 
 
 husband and wife, when either is 28(a) 
 
 inquiry, what constitutes 31(a), 32, n. 
 
 jurisdiction over— 
 
 statute on 24(6) 
 
 what gives 28(a) 
 
 when lost 30(a) 
 
 publication of notice — 
 
 statute on 25, n.- 
 
 in what county to be made 26(a) 
 
 effect of improper 28(a) 
 
 in foreign state 28(a) 
 
INDEX TO FORMS AND NOTES. 731 
 
 Absent defendants — 
 
 publication of notice — page. 
 
 conclusiveness of. 28(a) 
 
 in case of unknown residence 29(o) 
 
 form of... 30 
 
 error in name of newspaper as to 30(a) 
 
 in case of divorce 31 
 
 proof of mailing 31 
 
 practice on 31(a), 32, u. 
 
 eflfect of non-delivery of. , 26, n., 32, n. 
 
 amendment of proof of mailing 32, n. 
 
 affidavit of. 32 
 
 publication, order of — 
 
 common form 24 
 
 in foreclosure suits •. 27 
 
 partition suits 28 
 
 case of supposed death 29 
 
 statutes — 
 
 as to power of court over 24(6), 25, u., 26, n. 
 
 absconding, &c., mortgagors 27(a) 
 
 partition suits 28(a) 
 
 in case of supposed death 29(5), 617(a) 
 
 supersedeas, order for.., 33 
 
 Abstract of decree — 
 
 form of. 222 
 
 filing of. 222(a) 
 
 recording of. 222(a) 
 
 effect of, as to lien upon lands 222(a), 223, n. 
 
 practice on decree for deficiency 223, n. 
 
 priority of mortgage over decree before filing of 223, u. 
 
 in case of contingent, &c., liability 223, n. 
 
 must be actual filing 223, n. 
 
 Account — 
 
 ne exeat on suit for 14(a), 309(a) 
 
 on foreclosure 356, n. 
 
 assignment of dower 623, u. 
 
 interlocutory decree for, between partners 627 
 
 by master on sale of land 697 
 
 Acknowledgment — 
 of deed — 
 
 by sheriff. 241(a) 
 
 master 427 
 
 release by distributee 434 
 
 Acknowledgment of process — 
 
 by party or solicitor 18(a), 19, n., 21, n. 
 
 in case of citation in divorce 21(6) 
 
 by attorney-general for the state 22(a) 
 
732 INDEX TO FORMS AND NOTES. 
 
 Address of bill— page. 
 
 see that title under " Bill," post. 
 Adjournments — 
 
 in case of commission to take testimony 146(a) 
 
 on sale of land — 
 
 practice on 213(a) 
 
 appointment of master to make 219 
 
 statement of officer making 220 
 
 advertisement of, in newspaper 230 
 
 statutes on 213(a), 219(d), 230(a), 234(c), (d) 
 
 Administration ad prosequendum — • 
 
 when granted 57(a) 
 
 extent of authority granted 57(a) 
 
 binding effect of decree on 57(«) 
 
 terms of grant 57(a) 
 
 for what purpose granted 57(a) 
 
 petition to the Ordinary for letters of 58 
 
 when petition to be made and practice on 58(o) 
 
 order for 59 
 
 letters of. 59 
 
 order admitting administrator as defendant 60 
 
 practice when appointment made pending suit 60(a) 
 
 costs on 60(a) 
 
 Administrators and executors — 
 
 introduction of bill by 5 
 
 allegations in bills by 5(c), 6, u. 
 
 executors who have qualified as parties 6, n. 
 
 necessity of appointment in state 6, n. 
 
 dissenting administrator 6, u. 
 
 letters to, before hearing 6, n. 
 
 not to sue in fortna pauperis 73(a) 
 
 foreign, how suit may be brought by 6, n., 318(a), 332, n. 
 
 security for costs 71, n., 332, n. 
 
 objection to, how made 332, n. 
 
 executor, &c., with power of sale, may have partition 402(a) 
 
 Admission of parties — 
 
 arresting proceedings for 341, n. 
 
 at the hearing — 
 
 order for cause to stand over for 176 
 
 English practice on 176(6) 
 
 time of application for 176(6) 
 
 on court's own motion 176(5) 
 
 order not to be appealed from 176(6) 
 
 creditor's bill, to — 
 
 petition for 527 
 
 at what time to be made 527(a) 
 
 when notice of application required 527(a), 528, n. 
 
INDEX TO F0BM8 AND NOTES. 733 
 
 . Admission of parties — 
 
 creditor's bill, to — page. 
 
 order admitting creditor 528 
 
 rights of party admitted 528(a) 
 
 foreclosure, on — 
 
 rights of party admitted 284, n. 
 
 statute on 285(a) 
 
 junior encumbrancers 341, n. 
 
 notice of application for — 
 
 form of. 285 
 
 service of. 283(a), 284, n. 
 
 order for — 
 
 form of 285 
 
 effect of. 284, n. 
 
 cause not to be delayed by ' 284, n. 
 
 petition for — 
 
 form of, by party defendant 283 
 
 instead of supplemental bill 176(6), 283(a) 
 
 to be verified 283(a) 
 
 service of. 283(a), 284, n. 
 
 recitals in 283(a), 286, n. 
 
 omission of setting out instrument in 286, u. 
 
 neglect to make, effect of. 286, n. 
 
 Adverse interests — 
 
 between husband and wife 3(a) 
 
 co-complainants 3(a) 
 
 guardian and lunatic. 4(a) 
 
 co-administrators 6, n. 
 
 Advertisements — 
 
 in partition — 
 
 statute on 417(o) 
 
 proof of, by posters 423 
 
 in newspapers 423 
 
 curing defective 424(a) 
 
 on sale of land — 
 
 of sale, form of. 217 
 
 method of. 217(a), 218, n. 
 
 hour and place of. 219(a) 
 
 description of premises in 219(6) 
 
 signing of 219(c) 
 
 of adjournment 280, 230(a) 
 
 costs on 234(6), (o), (d) 
 
 Advisory masters — 
 
 practice at hearing by 174, n. 
 
 order of reference to 176 
 
 power of Chancellor to refer to 176(a) 
 
 reference to discretionary 176(a) 
 
734 INDEX TO FORMS AND NOTES. 
 
 Advisory masters — page. 
 
 application for reference to 176(a) 
 
 to proceed to final decree 176(a) 
 
 Affidavits — 
 
 absent defendant, in case of — 
 
 non-residence of 23 
 
 of mailing or inquiry 31 
 
 publication of notice to appear 32 
 
 non-residence of infant 51 
 
 administrator ad prosequendum 58 
 
 age of infant, as to 54, 56 
 
 amending answer, on 106, n. 
 
 answer, to — 
 
 in partition 112 
 
 common form of 113 
 
 of guardian ad litem 114 
 
 jurat to, in case of corporation 115 
 
 appeal, service of notice of. ; 189 
 
 bills, to- 
 by complainant in person 16 
 
 agent or attorney 16 
 
 a corporation 16(a), 17 
 
 an attorney in fact 17 
 
 omission to sign jurat to 17(6) 
 
 personal knowledge on 17(a), (c), 278(a) 
 
 of divorce 454 
 
 interpleader 484 
 
 to perpetuate testimony 493 
 
 of discovery 497, n., 500 
 
 christian name of married woman, of. 330 
 
 commission de 6en6 esse, to obtain 147 
 
 commissioner, by 151 
 
 commission to take answer 86(6), 88 
 
 concealment of defendant, of. 23(6), 24, n. 
 
 cross-bill, to stay proceedings 511(a) 
 
 deed by sheriif, to 241 
 
 master in partition, to 428 
 
 demurrer, to 92 
 
 discovery, to bill of. 497, n., 500 
 
 divorce — 
 
 of non-collusion 454 
 
 to petition for alimony 467 
 
 evidence at hearing, as 17(6), 278(a) 
 
 examination of witnesses, to obtain time for 161, n. 
 
 exceptions to 68(a), 278(a) 
 
 foreclosure, on — 
 
 of service of notice of demand , 203 
 
INDEX TO FOBM8 AND NOTES. 735 
 
 Affidavits — ■ 
 
 foreclosure, on — page. 
 
 to petition for writ of assistance , 205 
 
 of service of notice of motion for order 206 
 
 order for possession 207 
 
 on sale of mortgaged premises 236 
 
 to deed of sheriff. 241 
 
 form of, general 278 
 
 general principles of — 
 
 uses of. 278(a) 
 
 to be read on motions, not at hearing 278(a) 
 
 may be made by parties 278(a) 
 
 personal knowledge in 17(a), (c), 278(a) 
 
 residence of deponent need not be btated in 278(a) 
 
 as to venue of 278(a) 
 
 fact^only to be stated in 278(a) 
 
 scandal and impertinence in 278(a) 
 
 how written 278(a) 
 
 signing and jurat to , 278(a) 
 
 jurisdiction of officer taking, presumed 278(a) 
 
 may be sworn to out of state 279, n. 
 
 to be regular in appearance 279, u. 
 
 taken before solicitor 279, u. 
 
 oaths presumed to be correct and legal 279, n. 
 
 service of, on special motion 279, n. 
 
 when taken on notice 279, u. 
 
 to be filed with clerk 279, n. 
 
 on rules to show cause 279, n. 
 
 time for service of certain 279, n. 
 
 counter affidavits may be read: 279, n. 
 
 habeas corpui, on — 
 
 to petition for 478 
 
 of service of writ , 479 
 
 imbecility, in case of 56(a) 
 
 infant defendant, in case of — 
 
 of notice to 51 
 
 non-residence of...., 51 
 
 of age of 54, 56 
 
 subscribing witnesses to petition of. 54, 56 
 
 in forma pauperis — 
 
 to petition of. 72 
 
 injunction, in case of — 
 
 to bill for 16(6) 
 
 petition to stay waste after bill filed 296 
 
 decree 299 
 
 in partition 411 
 
 interpleader, of non-collusion 484 
 
 justification of surety for costs 71, 71(a) 
 
736 INDBX TO FOEM8 AND NOTES. 
 
 Affidavits — 
 
 lunatics, idiots and drunkards — page. 
 
 to petition for commission for 640 
 
 of proof of lunacy 640 
 
 to petition to set aside inquisition 657 
 
 of guardian of, for sale of lands 662 
 
 mailing notice to absent defendant, of. 31 
 
 master's summons, service of. 63 
 
 motion, service of notice of. 275 
 
 ne exeat 14:(a), 309 
 
 new execution, to petition for 227, 228 
 
 non-residence — 
 
 common form 23 
 
 in case of infant 51 
 
 partition, on — 
 
 to answer on 112 
 
 procure injunction on , 411 
 
 of master's sale on 423 
 
 advertisement of sale by posters 423 
 
 in newspaper 423 
 
 to master's deed 428 
 
 commissioner's oath on 441 
 
 payment of money into court, on application for, on 137(a) 
 
 perpetuating testimony, to bill for 493 
 
 plea, to 92, 96(a) 
 
 publication of notice, on — 
 
 in foreclosure cases 27(o) 
 
 statute on 25, u., 27(a) 
 
 form of 32 
 
 order of publication, on — 
 
 in case of foreign corporation 32, n. 
 
 production of papers, on — 
 
 to petition 76 
 
 of service of notice for 77 
 
 receiver, in case of — 
 
 of mortgaged premises , 374(a) 
 
 service of notice of application for 535 
 
 to inventory by 538 
 
 account of. 540 
 
 reference to Vice Chancellor, on 165 
 
 sale of infant's land, on — 
 
 to petition for 670 
 
 report of special guardian on 682 
 
 sale of lands limited over, on — 
 
 to petition of non-resident guardian on 701 
 
 scire facias, to petition of. 324 
 
 signature of infant, by witness 54 
 
INDEX TO F0BM8 AND NOTES. 737 
 
 Affidavits— page. 
 
 solicitor in cause, swearing to before 279, n. 
 
 special motions, on 166(6), 279, n. 
 
 strict foreclosure, of default on 397 
 
 surplus money, to account of. 265 
 
 witnesses — 
 
 to obtain commission for foreign 147 
 
 commissioner's oath 151 
 
 for examination of domestic 158 
 
 oath of. J 152, 163, n. 
 
 on reference to Vice Chancellor 165 
 
 to obtain time for examination of. 166(a) 
 
 Affirmation — 
 
 by commissioner 151(a) 
 
 witness 158(a) 
 
 messenger 159, n. 
 
 form of 152, 153, 163, n. 
 
 Agent — 
 
 when a party 2(a) 
 
 swearing to bill by, of corporation 17(a) 
 
 forms of swearing to bill by 16, 17 
 
 personal knowledge of. 17 (c) 
 
 Alimony — 
 
 see that title under '' Divorce," post. 
 
 ne exeat upon bill for 14(a), 309(a) 
 
 Allegata et probata — 
 
 agreement of. 8, n. 
 
 bill may be amended so as to agree as to 135(a) 
 
 Alterations — 
 
 in answer taken before commissioners 89, u. 
 
 to be resworn, in case of 114, n. 
 
 in bill 136, n. 
 
 Amendments — 
 
 affidavit of mailing notice, of. 31(a) 
 
 answer, of — 
 
 may be as to matters of form or substance 106, n. 
 
 discretion of court on 106, n. 
 
 to be made upon petition and notice 106, n. 
 
 when upon affidavit 106, n. 
 
 not to set up usury 106, u. 
 
 in case of supplementary answer 106, n. 
 
 to set up ultra vires 106, n. 
 
 particular cases of. 106, n. 
 
 supplemental, in place of 106, u. 
 
 upon the merits of the case 106, n. 
 
 may be made after setting down for hearing 177(a) 
 
 2w 
 
738 INDEX TO FOBMS AND NOTES. 
 
 Amendments — 
 bill, of— 
 
 general principles— page. 
 
 in case of omission to allege lossof instrument 8, n. 
 
 by inserting names of defendants in prayer 12(a) 
 
 adding signature of counsel 15(a) 
 
 deemed an original bill 18(a) 
 
 is a waiver of process for contempt 37(a) 
 
 when impertinent 68(a) 
 
 time to answer extended by.... 82, n. 
 
 by waiving oatb after sworn answer 114, n. 
 
 right to except to answer waived by 122, n. 
 
 after answer reported insufficient 124, n. 
 
 on submissions to exceptions 125(a) 
 
 time for answering after • 125(a) 
 
 by striking out 132(a) 
 
 what is an "amended bill" 132(o) 
 
 in discretion of court 132(o) 
 
 when supplemental bill proper. 133, n. 
 
 not allowed after dismissal 133, u. 
 
 of course 132(a), 133, n. 
 
 after insuflScient answer 133, n. 
 
 when on payment of costs 133, n. 
 
 copy of, to be furnished defendant 133, n. 
 
 to be on notice 133, u. 
 
 making a new case 134, n. 
 
 order for leave for, under rule 135 
 
 after answer 135 
 
 may be made after proofs taken 135(a) 
 
 at the hearing 135(a) 
 
 after hearing 135(a) 
 
 trial of issue at law 135(a) 
 
 to make bill correspond with proofs 135(o) 
 
 not allowed on special prayer 11(0)) 136, u. 
 
 when costs on to be paid 136, u. 
 
 to be signed by counsel 136, n. 
 
 practice in case of irregularity 136, n. 
 
 by drawing line, not by erasing 136, u. 
 
 how to be served 136, n. 
 
 when to take date 136, n. 
 
 new subpoena not necessary 136, n. 
 
 answer required to 136, n. 
 
 of charging part, to avoid plea in bar 143(a) 
 
 discretionary as to costs 143(a) 
 
 proof of materiality of. 144, n. 
 
 diligence 144, n. 
 
 to be on special motion 144, u. 
 
INDEX TO F0BM8 AND NOTES. 739 
 
 Amendments — 
 bill, of— 
 
 general principles — page. 
 
 when to be made 132(a), 133, n., 135(o), 144, n. 
 
 as to prayers for relief. 343, u. 
 
 by adding facts 132(a), 343, n. 
 
 orders on — 
 
 for leave to, after demurrer 132 
 
 plea 134 
 
 and withdraw replication 134 
 
 under rule 135 
 
 after answer 135 
 
 special cases, in — 
 
 answer, in case of — 
 
 right to except to, waived by 122, n. 
 
 time for, after 125(a) 
 
 after insuflficient 133, n. 
 
 order for, after 135 
 
 what parties to be called to 136, n. 
 
 to be filed 136, n. 
 
 demurrer, in case of — 
 
 after allowance of. 90, n. 
 
 by adding parties 94(a) 
 
 when may be of course 94(a) 
 
 costs on 94(a) 
 
 effect of amending on 95(a) 
 
 when not of right after 101(a) 
 
 may be made on motion 101(a) 
 
 after partial 101(a) 
 
 order for, after 132 
 
 after overruling 133, n. 
 
 in discretion of court 134, n. 
 
 to amended bill..... 136, ii. 
 
 when allowed after general 343, n. 
 
 foreclosure of purchase-money mortgage 336, n. 
 
 injunction — 
 
 on omitting special prayer 11(a) 
 
 practice on 133, n., 134, n. 
 
 second amendment of. 134, n. 
 
 omission of prayer for process of. 13(c), 136, u. 
 
 ne exeat, in case of. 15, n. 
 
 parties, as to — 
 
 adding next friend on misjoinder 3(a) 
 
 misjoinder of husband and wife 3(a) 
 
 adding next friend in case of infant 4, n. 
 
 not allowed in Court of Appeals by adding... 186, n. 
 who to be called to answer 136, n. 
 
740 INDEX TO FORMS AND NOTES. 
 
 Amendments — 
 bill of— 
 
 special cases, in — 
 
 parties, as to — page. 
 
 dismissal of bill against parties not retained.. 136, n. 
 
 by adding 132(a\ 133, n., 341, n., 343, n. 
 
 plea — 
 
 effect of, after filing of. 101(a) 
 
 after overruling of. 133, n. 
 
 order for, after allowance of. 134 
 
 replication — 
 
 order for leave to withdraw, and amend 134 
 
 method of, after filing of 134(a), 135, n., 143(a) 
 
 after filing of. 144,n. 
 
 decree, of — 
 
 in case of erroneous order of sale 211(a) 
 
 demurrer, of — 
 
 may be conditionally 12(a) 
 
 narrowing scope of 91, n. 
 
 of clerical error in 91, n. 
 
 by stating grounds 91, n., 93 n. 
 
 substituting new 91, n., 94(a) 
 
 costs on 91, n., 94(a) 
 
 exceptions of — 
 
 leave to, after hearing 124, n. 
 
 mailing notice, of aflSdavit of. 31(a) 
 
 order of publication after sale 30(a) 
 
 Answer — 
 
 affidavit to — 
 
 by husband and wife in partition 112 
 
 common form of. 113 
 
 by agent insufficient 113(a) 
 
 how taken by absent defendant 86(6), 113(a) 
 
 effect of omission of. 113(a) 
 
 on what part of answer to be written 113(a) 
 
 where there are several defendants 113(a) 
 
 oath or affirmation 113(a) 
 
 before whom taken out of the state 113(a) 
 
 venue of. 113(6) 
 
 jurat 113(6) 
 
 where to be signed by defendant as affidavit 113(c) 
 
 certificate 113(c) 
 
 and how signed by officer 113(rf) 
 
 by particular classes of persons 114, n. 
 
 husband and wife 114, n. 
 
 to be resworn in case of alteration 114, u. 
 
 sworn to before filing 114, u. 
 
 when defendant is ignorant of English language 114, n. 
 
INDEX TO POEMS AND NOTES, 741 
 
 Answer — 
 
 affidavit to — page. 
 
 in case of dissenting defendant 114, u. 
 
 by guardian ad litem 114 
 
 when clerk of court is guardian 114(a) 
 
 jurat to answer of a corporation 115 
 
 by corporation by whom and how sworn to 115(a) 
 
 see also " commission to take," below. 
 
 claiming benefit of demurrer 109 
 
 commencement of — 
 
 common form of 105 
 
 by infants in partition suit 106 
 
 commission to take — 
 
 order for 86 
 
 affidavit to obtain 87, n. 
 
 extension of time to answer 87, n. 
 
 notice on application for 87, n. 
 
 commissioners, by whom named and number of. 87, n. 
 
 how issued and transmitted 87, u. 
 
 when complainant has joined, practice on 87, n. 
 
 attendance of commissioners 87, n. 
 
 form of 88 
 
 oath to be administered 88 
 
 defendant, how to be sworn 88(6) 
 
 signature of defendant to answer, &c 88(6) 
 
 certificate of commissioners to 89 
 
 alterations in, how authenticated 89, n. 
 
 mode of verification of 89, n. 
 
 return of with answer, time of 89(a) 
 
 mode of execution by commissioners 89(a) 
 
 commissioners' duty under 87, n., 88(a), 89, n.(a) 
 
 conclusion of 107 
 
 death of defendant before filing, effect of. , 114, n. 
 
 demurrer, answer claiming benefit of 109 
 
 defences under — 
 
 avoiding deed of married woman 104(d) 
 
 mode of stating 105(6) 
 
 number of. 106, u. 
 
 to be set up fully in 106, n. 
 
 usury set up as an amendment 106, n. 
 
 ultra vires set up as an amendment 106, u. 
 
 litigated title in foreclosure 107(5) 
 
 mistake in deed 107(6) 
 
 matters in avoidance 105(6), 107(6) 
 
 same benefit of, as if bill demm-red to 109 
 
 disclaimer and — 
 
 form of 109 
 
742 INDEX TO F0EM8 AND NOTES. 
 
 Answer — 
 
 disclaimer and — page. 
 
 definition of and practice under 109(a), 110, n. 
 
 getting rid of, when and how 110, n. 
 
 not to deprive complainant of rights 110, u., 110(a) 
 
 how signed 110(a) 
 
 J evidence, as — 
 
 when without oath 10(a) 
 
 in case of infant 104(6) 
 
 joint answer of husband and wife 104(c) 
 
 irresponsive allegations 105(6) 
 
 how overcome 107(a) 
 
 matters in avoidance .• 105(6), 107(6) 
 
 on motion to dissolve injunction 114, n. 
 
 statute on 115(6) 
 
 in case of corporation 120, n., 122, n. 
 
 on hearing on hill and answer 174, n. 
 
 improbability of statements 174, n. 
 
 on hearing when complainant does not attend 174, n. 
 
 in cases of divorce 455(o) 
 
 extending time for — 
 
 after decree pro confesso 34(a), 35, n., 81(a) 
 
 order for 81, 86 
 
 costs on 34(o), 35, n., 81(a), 82, n. 
 
 effect of notice of motion for 81(a) 
 
 on attachment 81(a) 
 
 calculation of time 81(a) 
 
 when plea or demurrer may be filed under 81(a) 
 
 after frivolous demurrer 81(a) 
 
 refusal after plea overruled 82, u. 
 
 effect on security for costs 82, ii. 
 
 after amendment of bill 82, n. 
 
 when party is in contempt 82, n. 
 
 costs on 34(a), 35j n., 81(a), 82, n. 
 
 order for 86 
 
 in case of commission 87, n. 
 
 insufficiency 127(a), (6), 128, n. 
 
 when granted ex parte 86(a), 104(o) 
 
 on motion 81(a), 104(o) 
 
 filing of — 
 
 after extension of time.., 81(a) 
 
 statute as to 104(a) 
 
 if due on a holiday 104(a) 
 
 guardian ad litem — 
 
 infant must answer by 53(a) 
 
 title of answer by 104, 105 
 
 married woman, when an infant 104(6) 
 
INDEX TO F0EM8 AND NOTES. 743 
 
 Answer — 
 
 guardian ad litem — page. 
 
 idiot or lunatic must answer by 105(a) 
 
 in case of death, practice on new appointment 105(a) 
 
 as to unsworn answer of. 363, n. 
 
 for appointment of, see " Guardian ad litem," post. 
 
 idiot or lunatic, by — 
 
 title of. 105 
 
 defence by 105(a) 
 
 infant, by — 
 
 title of. 104 
 
 effect of. 104(6) 
 
 defence by 104(6) 
 
 insufficiency of — 
 
 title of, in case of insufficient answer 105 
 
 joint answer — 
 
 title of. 104 
 
 of husband and wife 104(c) 
 
 commencement of. .- 105 
 
 ■when defendants should join , 105(6) 
 
 mode of answering — 
 
 as to material allegations in the bill 105(6) 
 
 interrogatories 10(a), 105(6) 
 
 what is insufficient 105(6) 
 
 as to particular charges 105(6) 
 
 defence to be fully stated 105(6) 
 
 denial of an unknown fact 105(6) 
 
 irresponsive allegations must be proved 105(6) 
 
 untrue statements, when perjury 105(6) 
 
 matters of avoidance, how proved 105(6) 
 
 as to immaterial or irrelevant matters 106, n. 
 
 answer tending to criminate 106, n. 
 
 may state more than one defence in 106, n. 
 
 defence not stated in, not available though proved 106, u. 
 
 mortgagee, by — 
 
 answer of second 107 
 
 effect of neglect to make 107(6) 
 
 what defences may not be set up in 107(6) 
 
 setting up tender 346 
 
 oath, without — 
 
 statute as to 10(a) 
 
 order to take 80 
 
 practice as to consent on obtaining order to take 80(6) 
 
 bow far evidence 10(a), 114, n. 
 
 partition, in — 
 
 form of 110 
 
 verification of. 112 
 
 short form of 112 
 
744 INDEX. TO F0BM8 AND NOTES. 
 
 Answer— page. 
 
 plea and answer by heir-at-law 98 
 
 plea standing for — 
 
 order for 103 
 
 allowing .•■■■ 103(a) 
 
 on failure to amend, with liberty to except 103(a) 
 
 exceptions to, when to be filed 103(a) 
 
 costs on ; 103(a) 
 
 effect of order without liberty to excejit 103(a) 
 
 dissolution of injunction on 103(a) 
 
 proceedings to compel an — 
 
 common order to answer 36 
 
 order on, how served 36(a) 
 
 when order necessary 36(a) 
 
 who are entitled to notice of order 37, u. 
 
 order to answer or that an attachment issue 37 
 
 uses of order 37(a) 
 
 effect of amendment of bill upon 37(a) 
 
 accepting or replying to answer 37(a) 
 
 may be had against married woman 37(a) 
 
 infant 37(a) 
 
 lunatic... 37(a) 
 
 corporation 37(a) 
 
 husband and wife 37(a) 
 
 guardian ad litem 37(a) 
 
 how enforced against a corporation 37(a) 
 
 order of attachment on 38 
 
 discretionary on attachment in 38(a) 
 
 writ of attachment 38 
 
 when writ returnable 38(6) 
 
 to whom writ directed 38(6) 
 
 rule as to writ 38(6) 
 
 when sheriff may return writ 38(6) 
 
 how many writs may issue > 38(6) 
 
 at whose instance writ may issue 38(6) 
 
 return of sheriff on writ 38(6), 39, n. 
 
 alias attachment 39, 39, n. 
 
 pluries attachment 39 
 
 attachments with proclamation and commission of rebel- 
 lion abolished 39(a) 
 
 statute as to 39(a) 
 
 bond on attachment 39 
 
 rule as to penal sum in bond 39(6) 
 
 rules as to practice on return of attachment 39(6) 
 
 refusal to answer after giving bond 40, n. 
 
 when clerk to enter appearance 40, n. 
 
 order for alias attachment 41 
 
INDEX TO F0EM8 AND NOTES. 745 
 
 Answer — 
 
 proceedings to compel an— page. 
 
 order for leave to prosecute bond at law 41 
 
 after appearing and admitting contempt 41 
 
 for commitment 41 
 
 warrant of commitment 42 
 
 sheriff's return to warrant of commitment 42, 43 
 
 order for a sequestration 43 
 
 when sequestration will issue 43(a) 
 
 effect of discharge under insolvent laws on 43(a) 
 
 writ of sequestration 43 
 
 refusal to answer — 
 
 in case of immaterial or irrelevant matters 106, n. 
 
 matters tending (o criminate or forfeiture 106, n. 
 
 reswearing to 114, n. 
 
 second answer — 
 
 order for 126 
 
 statute as to 126(6) 
 
 form of 127 
 
 costs on 127 (<z) 
 
 accepting, not a waiver of costs due 127(a) 
 
 statute as to filing further answer ]27(i) 
 
 separate — 
 
 by married woman — 
 
 petition for leave to file (two forms) 82 
 
 leave of court to be first had 82(a) 
 
 may be suppressed, if without leave 82(a) 
 
 effect of not answering pursuant to order 82(a) 
 
 who may apply for 82(a) 
 
 order for 85 
 
 suppressing, filed without leave 86 
 
 several defendants — 
 
 by same solicitor, effect of when unnecessary 105(6) 
 
 signing by defendant — 
 
 to answer 113(c) 
 
 and disclaimer 110, n, 110(a) 
 
 supplemental answer — 
 
 when necessary , 106, n. 
 
 leave to file, after cause set down fur hearing 177(a) 
 
 suppression of — 
 
 when married woman's may be 82(o) 
 
 order suppressing married woman's 86 
 
 for want of affidavit 113(a) 
 
 third answer — 
 
 statute as to 127(a), (5), 128, u. 
 
 no further time allowed after 128, n. 
 
746 INDEX TO FOEM8 AND NOTES. 
 
 Answer — 
 
 titles of— PAGE. 
 
 by an infant 104, 104(6) 
 
 a single defendant 104 
 
 adults and infants , 104 
 
 husband and wife 104, 104(c> 
 
 a married woman separately 104, 104(d) 
 
 lunatic or idiot, &c 105, 105(a) 
 
 in case of an insufficient answer. 105 
 
 for exceptions to, see " Exceptions 'to answer' " post. 
 Appeals — 
 
 answer to petition of— 
 
 form of. 195 
 
 when to be filed 195(a) 
 
 practice on default in filing ]95(o) 
 
 argument of — 
 
 form of notice of..., 196 
 
 when to be served 196(a) 
 
 filed 196(a) 
 
 for what day noticed 196(a) 
 
 effect of non-appearance at 196(a) 
 
 solicitor for respondent on 196(6) 
 
 bill of revivor fur purpose of. 187, n. 
 
 constitutional provisions on 187, n,, 197(a) 
 
 costs on — 
 
 deposit to answer for 194(6) 
 
 on dismissal 195, n. 
 
 recovery and enforcement of. 198(a) 
 
 order for execution for, on affirmance 201 
 
 discretionary 201(a) 
 
 to include expense of printing 201(a) 
 
 death, as affecting — 
 
 of complainant after decree 187, n. 
 
 respondent 187, n. 
 
 decree of reversal — 
 
 on remittitur 199 
 
 order to rectify decree below 199(a), 200, u. 
 
 effect of decree affirmed by consent 200, n. 
 
 deposit on — 
 
 to answer for costs 194(6) 
 
 order to pay over 201 
 
 practice on repaymentof. 201(6) 
 
 dismissal of 195, n. 
 
 effect of. 188, n. 
 
 execution, pending an — 
 
 when not to issue without order 188, n. 
 
 order for, notwithstandlog an 194 
 
INDEX TO FORMS AND NOTES. 747 
 
 Appeals — 
 
 execution, pending an page. 
 
 order for, when discretionary '. 194(a) 
 
 security required, when granted 194(a) 
 
 order for, for costs on affirmance 201 
 
 grounds of — 
 
 statutes on 186(6), 187, n. 
 
 in case of injunctions 188, n. 
 
 appointment of receiver 188, n. 
 
 in case of refusal to set aside sale 188, n. 
 
 process for contempt 188, n. 
 
 for decree rendered in absence of defendant 188, n. 
 
 when decree is executed 188, n. 
 
 from award on issue at law 245(a) 
 
 determination of receiver 550 
 
 statute on 550(a) 
 
 statement in petition 551, n. 
 
 issue on 551, n. 
 
 proofs on 551, u. 
 
 hearing of — 
 
 procedure at , 196(6), 197, n. 
 
 Chancellor not to sit at. 197(o) 
 
 in forma paitperis, Tpiaciice on 187, n. 
 
 injunction continued pending an 194(a) 
 
 insolvent corporation in case of. 550, 550(a), 551, n. 
 
 jurisdiction lost after decree and remittitur..... 188, n., 198(a) 
 
 notice of — 
 
 form of 186 
 
 when to be made 187, n. 
 
 statement of order or decree complained of in 188, n. 
 
 certificate of counsel 188 
 
 signing of, by counsel 188, n. 
 
 affidavit of service of. 189 
 
 practice on obtaining and serving 189(a) 
 
 solicitor of respondent 189(a), 196(5) 
 
 parties to — 
 
 not to be added by amendment on 136, n. 
 
 who may appeal 186(6) 
 
 infants, /eme covert or insane 187, n. 
 
 corporation may be 187, n. 
 
 when appellant not a party of record 187, n. 
 
 "persons aggrieved," who are 187, n. 
 
 in forma pauperis 187, n. 
 
 bill of revivor for purpose of 187, n. 
 
 supplemental bill for purpose of 187, n. 
 
 petition of — 
 
 by pauper 187, u. 
 
748 INDEX TO F0KM8 AND NOTES. 
 
 Appeals — 
 
 petition of — page. 
 
 form of 194 
 
 time of presenting 187, n., 194(6) 
 
 failure to present, a waiver 194(6) 
 
 service of 194(6) 
 
 contents of. 194(6), 195, ii. 
 
 from determination of receiver 550, 550(a), 551, n. 
 
 Prerogative Court, from 187, n. 
 
 printed cases and briefs on — 
 
 form of. 197 
 
 rules as to 197(a) 
 
 what to contain 197(a) 
 
 service of. 197(a) 
 
 what to be omitted from 197(a) 
 
 points and citations 197(a) 
 
 quiet title, from final decree on 621, n. 
 
 re-argument on 188, n. 
 
 remittitu/i — 
 
 on affirmance 198 
 
 definition of 198(o) 
 
 recitals in 198(a) 
 
 duty of clerk on 198(a) 
 
 Court of Chancery on 198(a) 
 
 what decree is made on 198(a) 
 
 jurisdiction gone after 188, n., 198(o) 
 
 on reversal 199 
 
 decree of reversal on, in chancery 199 
 
 order to rectify decree below 199(a), 200, n. 
 
 efiect of decree affirmed by consent 200, n. 
 
 practice on, affirming 200, n. 
 
 presenting 200, n. 
 
 proceedings after appeal from interlocutory decree 200, n. 
 
 removal of cause to IT. S Supreme Court 198(a) 
 
 revivor on — 
 
 bill of, for purpose of. 187, n. 
 
 abatement before appeal 315, n. 
 
 after appeal 315, n. 
 
 - service of papers on 196(a) 
 
 stay on — 
 
 when appeal taken in ten days 188, n. 
 
 in case of issue at law 252(a) 
 
 from interlocutory decrees — 
 
 order for.... 189 
 
 noiper se a 189(6) 
 
 when will be granted 189(c) 
 
 on accounting 189(c) 
 
 presumption on application for 189(c) 
 
INDEX TO FORMS AND NOTES. 749 
 
 Appeals — 
 
 summons and severance on — page. 
 
 rule to show cause on 190 
 
 practice as to parties on appeal 190(a) 
 
 allegation of death of party 190(a) 
 
 in case of joint judgment 190(a) 
 
 time allowed to assign errors 190(a) 
 
 separate defence against joint appellants 190(a) 
 
 parties defendant in error 190(a) 
 
 effect of non-joinder of plaintifis in error 190(a) 
 
 practice in case of non-joinder of plaintiffs in error 190(a) 
 
 rule to show cause in (another form of ) 191 
 
 practice in New Jersey by rule and not by summons 191(a) 
 
 in case of appeal from Prerogative Court 191(a) 
 
 chancery 191(a) 
 
 refusal to join 192 
 
 order of. 192 
 
 writ of summons, ancient form 193, 193(a) 
 
 supplemental bill for purpose of 187, n. 
 
 Appearance — 
 
 by attorney-general for the state 13, n. 
 
 defendant 19, n. 
 
 solicitor 19, n. 
 
 effect of appearance 19, n. 
 
 in divorce 21(6), 22, n. 
 
 right to mate decree without 24(6) 
 
 by absent defendant after decree 25, n., 26, n. 
 
 of wife by husband 28(a) 
 
 form of 35 
 
 avoiding decree made on appearance by solicitor 35(a) 
 
 entry of, without authority 36, n. 
 
 authority to enter may be disputed 36, n. 
 
 request to clerk to enter 36,n. 
 
 effect of subpcena issued before bill, waived by 36, n. 
 
 in case of supplemental bill 36, n. 
 
 foreclosure '■ 36, n. 
 
 entry of, after contempt 39(6), 46(a), 46 
 
 by guardian ad litem for infant 52 
 
 administrator ad prosequendum » 60(a) 
 
 on ne exeat • 313(a) 
 
 in case of abatement and revivor 316(a), 319(a), 321(a) 
 
 by clerk for infant 50, n., 348, n. 
 
 supersedeas on, by absent defendant 362, n. 
 
 by infant on sale of land limited over 688 
 
 Argument of case — 
 
 see title "Hearing," post. 
 
750 INDEX TO FORMS AND NOTES. 
 
 Assistance, writ of — page. 
 
 petition for 204 
 
 affidavit to petition 205 
 
 notice of motion for 208 
 
 when does not issue of course 208(a) 
 
 form of 209 
 
 costs on 209(a) 
 
 Assumption of mortgage, right to decree for deficiency 579(a) 
 
 Attachment — 
 
 answer, refusal to, for — 
 bond on — 
 
 form of 39 
 
 penal sum in 39(6) 
 
 refusal to answer after giving 40, n. 
 
 order for leave to prosecute 41 
 
 commitment — 
 
 order for 41 
 
 warrant of. 42 
 
 sheriff's return to warrant of 42, 43 
 
 contempt, for — 
 
 amendment of bill as a waiver of. 37(a) 
 
 acceptance of answer, effect of on 37(a) 
 
 reply or motion as a waiver of. 37(a) 
 
 statute on 39(a) 
 
 extension of time as aftecting 81(a) 
 
 orders in — 
 
 to answer or for issuance of. 37 
 
 uses of. 37(a) 
 
 for not answering 38 
 
 when discretionary 38(a) 
 
 for alias 41 
 
 leave to prosecute bond at law 41 
 
 to answer after appearance 41 
 
 for commitment 41 
 
 on third insufficient answer 128 
 
 plea or demurrer overruled, after 102(a) 
 
 statutes on 37(a), 39(a) 
 
 with proclamation abolished 39(a) 
 
 . writ of — 
 
 common form 3ij 
 
 practice on 38(6) 
 
 alias 39 
 
 pluries 39 
 
 return of 38(6), 42, 43 
 
 see also "Answer, 'proceedings to compel,' " ante. 
 
INDEX TO FORMS AND NOTES. 751 
 
 Attachment — 
 
 violation of injunction, for — page. 
 
 answer to interrogatories on — 
 
 form of 47 
 
 how to be made 47(6), 48, n. 
 
 appearance to — 
 
 form of 46 
 
 rules as to 46, n., (o) 
 
 costs on 49(a) 
 
 habeas corpus to produce contemner 45(i) 
 
 interrogatories on — 
 
 rule for 47 
 
 practice on obtaining rule for 47(a) 
 
 form of. 47 
 
 answer to 47 
 
 examination of witnesses on „ 48, n. 
 
 settlement of. 48, n. 
 
 order convicting defendant on 48 
 
 orders on — 
 
 to show cause 45 
 
 for attachment 45 
 
 convicting defendant 48 
 
 writ of — 
 
 form 38 
 
 requisites of 45(6), 46, n. 
 
 see also "Injunction, 'contempt for violating,'" posi. 
 Attorney — 
 
 in fact — 
 
 suit by, to be joined with cestui que trust j 2(a) 
 
 oath to bill, by 16, 17 
 
 at law — 
 
 see "Solicitor," post. 
 Attorney-general — 
 
 introduction to bill by 6 
 
 where there is a relator 7 
 
 on behalf of a lunatic 7 
 
 may sue on behalf of lunatic 4(a), 7(o) 
 
 prayer for process in bill by 12 
 
 service of process on 13, n., 22(a) 
 
 Attornment to receiver — 
 
 direction to tenant for 376(a) 
 
 notice to tenant for 540 
 
 by tenant 540 
 
 Bills- 
 constituent parts of — 
 address of — 
 
 in chancery 1 
 
752 INDEX TO FORMS AND NOTES. 
 
 Bills- 
 constituent parts of — 
 
 address of — page. 
 
 when Chancellor is a party ](6) 
 
 of petitions 1(*) 
 
 in United States Circuit Court 1, 1(c) 
 
 County Circuit Court in foreclosure 2 
 
 introduction — 
 
 names and residences of complainants in 2(a) 
 
 effect of omission of complainant's residence 2(a) 
 
 practice in case of omission of residence 2(a) 
 
 change of complainant's residence after filing 2(a) 
 
 general form of. 2 
 
 in Circuit Courts of the United States 2 
 
 by husband and wife 2 
 
 wife suing alone 2 
 
 by next friend, husband defendant 3 
 
 as to residence of wife and next friend in 3(a) 
 
 by infants by next friend 3 
 
 as to residence of infant and next friend in 4, n. 
 
 by lunatic by guardian, &c 4 
 
 corporation 5 
 
 railroad corporation 5 
 
 foreign corporation 5 
 
 creditor on behalf of himself and others 5 
 
 effect of omission byoireditor to state on behalf, &c.. 5(6) 
 
 what creditors may not unite 5(6) 
 
 when creditors have distinct claims 5(6) 
 
 by executors or administrators 5 
 
 attorney-general on behalf of the state 6 
 
 where there is a relator 7 
 
 on behalf of a lunatic 7 
 
 premises or staling part — 
 
 form of 7 
 
 necessary allegations by administrator 5(c), 6, n. 
 
 executor 6, n. 
 
 averments of facts in 7(6) 
 
 setting out evidence in 7(6) 
 
 English rule as to setting out evidence in 7(6) 
 
 facts stated when sufficient for relief under general 
 
 prayer 7(6) 
 
 misstatements, when not fatal 7(6) 
 
 may be without precedent 7(6) 
 
 allegata to agree with probata 8, n. 
 
 averment as to lost instrument in 8, n. 
 
 technicality not required in 8, n. 
 
 averments by assignee of mortgagee 8, n. 
 
 showing legal title 8, n. 
 
INDEX TO FORMS AND NOTES. 753 
 
 Bills- 
 constituent parts of — 
 
 premises or stating part — page. 
 
 must show grounds of equity 8, n. 
 
 recovery to be on case made by bill 8, n. 
 
 effect of immaterial variance 8, n. 
 
 averments claiming benefit of statute 8, n. 
 
 substance of case in 8, n. 
 
 facts must be stated or cannot be proved 8, n. 
 
 general statement suflGlcient 8, n. 
 
 in what part of bill facts to be stated 8, n. 
 
 facts proved but not-pleaded 8, u. 
 
 allegations, when to be positive 8, n. 
 
 on information, &c 8, n. 
 
 must contain facts sufficient to make decree on 9, n. 
 
 to be full and accurate 9, n. 
 
 plea decided by averment in 9, n. 
 
 failure to show equity, effect of. 9, n. 
 
 make a case, effect of. 9, n. 
 
 degree of certainty required 9, n. 
 
 rule as to where facts to be stated 9(6) 
 
 relief granted on facts slated 11(a), 361(o) 
 
 charge of confederacy — 
 
 abolished 9(a) 
 
 charging part — 
 
 form of. 9 
 
 uses of. 9(6) 
 
 allegations in 9(6) 
 
 perjury in 9(6) 
 
 defects in 9(6) 
 
 whether facts to be alleged in 9(5) 
 
 jurisdiction clause — 
 
 form of. 9 
 
 necessity of. 9(c) 
 
 interrogating part — 
 
 validity of plea not decided by 9, n. 
 
 form of. ' 10 
 
 interrogatories annexed to bill, a part of. 10(a) 
 
 effect of omission of. 10(a) 
 
 general interrogatory 10(a) 
 
 special interrogatories 10(a) 
 
 to be founded on allegation in bill 10(a) 
 
 statute regarding 10(a) 
 
 effect of answer without oath 10(a) 
 
 what composed of. 10(a) 
 
 prayer for general relief — 
 
 form of 11 
 
 necessity for HW 
 
 2x 
 
754 INDEX TO FORMS AND NOTES. 
 
 Bills - 
 
 constituent parts of — 
 
 prayer for general relief — page. 
 
 what relief granted under 7(6), ll(o) 
 
 relief to be warranted by facts stated 11(«) 
 
 prayer for special relief only 11(a) 
 
 statement of facts showing right to relief. 11(a) 
 
 claim distinct from issue, not recoverable under 11(a) 
 
 in case of injunction ll(<i) 
 
 when relief on main ground denied 11(a) 
 
 omission of. 142(a) 
 
 amendment of.., ll(o), 136, n., 343, n. 
 
 in case of receiver 372(a) 
 
 prayer for process — 
 
 general form of. 12 
 
 to call for all parties to suit 12(a) 
 
 effect of omission of. 12(a) 
 
 who are defendants to bill 12(a) 
 
 practice in New York 12(a) 
 
 United States courts 12(a) 
 
 amendment of omission of. 12(a) 
 
 when the United States or the state is a party 12, 13(a) 
 
 against corporation defendant 13 
 
 statements in, against defendant corporation 13(6) 
 
 for injunction and subpoena 13 
 
 subpoena to be taken out with inj unction 13 (c) 
 
 effect of filing answer 13(c) 
 
 omission of. 13(c) 
 
 against sheriff. 13(c) 
 
 amendment of bill by inserting 136, u. 
 
 for me exeat and subpoena 14 
 
 when not prayed for 15, n. 
 
 formal execution of — 
 signing of — 
 
 where complainant sues in person 15 
 
 by a private person or corporation through solicitor, 15 
 
 • counsel 15(a) 
 
 firm of counsel 15(a) 
 
 effect of counsel not signing 15(o) 
 
 by solicitor and counsel 15(a) 
 
 counsellor's name, without consent 15(a) 
 
 in suits in propria persona counsel need not 15(a) 
 
 amendment in case of omission of. 15(a) 
 
 counsel to read before 15(a) 
 
 by private person sworn to 15 
 
 practice on 15(6) 
 
 corporation sworn to 16 
 
 whom signed in case of corporation 16(a) 
 
 amended bill 136, n. 
 
INDEX TO FORMS AND NOTES. 755 
 
 Bills- 
 swearing to — PAGE. 
 
 form of, by complainant in person 16 
 
 agent or attorney 16 
 
 not necessary except in special cases 16(i) 
 
 special affidavit to injunction bill 18(6) 
 
 in case of lost instruments 16(6) 
 
 form of, by corporation 17 
 
 who to swear to, in case of corporation 17(a) 
 
 effect of omission to sign jurat 17(6) 
 
 form of, by an attorney in fact 17, 17(c) 
 
 by person having knowledge of the facts 17(c) 
 
 writing of — 
 
 to be legibly written 1(a) 
 
 typewritten copies allowed 1(a) 
 
 parties to — 
 
 when Chancellor is 1(6) 
 
 complainants to be all named in 2(a) 
 
 real person in interest to be 2(a) 
 
 in case of agent, trustee and cestui que trust 2(o), 332, n. 
 
 husband and wife 3(a) 
 
 having adverse interests not to be joined as complainants... 3(a) 
 
 necessity of next friend for married woman 3(a) 
 
 infants 4, n. 
 
 idiots and lunatics 4(a) 
 
 creditor on behalf of class 5(5) 
 
 administrators and executors 5(c), 6, n. 
 
 foreign executors, &c 6, n. 
 
 dissenting administratrix 6, n. 
 
 the state 6(a) 
 
 attorney-general on behalf of a lunatic 7 (a) 
 
 only those against whom process is prayed are 12(a) 
 
 amendment in case of omission of. 12(a) 
 
 corporation as 13(6) 
 
 administrator ad prosequendum 57(a), 58(a), 60(a) 
 
 poor parties : 72(a) 
 
 practice on — 
 
 to be filed with clerk of court 1(a) 
 
 as of the time received 1(a) 
 
 special forms of — 
 
 (indexed also under separate heads, which see.) 
 
 alimony, for 468 
 
 attaching creditor for his own and others' benefit 521 
 
 creditor, by 512 
 
 cross-bill 510 
 
 discovery for 496 
 
756 INDEX TO F0EM8 AND NOTES, 
 
 Bills- 
 special forms of — 
 
 divorce, of — page. 
 
 for adultery 452 
 
 to annul marriage 474 
 
 dower, for 622 
 
 foreclosure, of — 
 
 short form 326 
 
 in complicated case 331 
 
 strict foreclosure 386 
 
 against infant 389 
 
 insolvent corporation, against 529 
 
 interpleader, of. 480 
 
 partition, for 402 
 
 perpetuate testimony, to 489 
 
 quiet title, to 615 
 
 redeem mortgaged premises, to 377 
 
 relief, of — 
 
 against judgment at law 558 
 
 for cancellation of bond and mortgage and injunc- 
 tion 566 
 
 to compel payment of excess of mortgage debt 576 
 
 enforce personal liability of directors 580 
 
 by surety to compel principal to pay debt 588 
 
 next of kin for distributive share 594 
 
 for establishment of destroyed will 602 
 
 to set aside conveyance on ground of fraud 606 
 
 review, of — 
 
 for errors in law 509 
 
 on discovery of new matter 510 
 
 revivor, of — 
 
 revivor and supplement, in nature of. 504 
 
 supplemental — 
 
 in case of new matter 502 
 
 parties 503 
 
 Bonds — 
 
 absent defendants, in case of — 
 
 by complainant to abide decree against 25, n. 
 
 attachment, in — 
 
 return and filing of. 38(6) 
 
 form of. 39 
 
 penal sum in 39(6) 
 
 order for leave to prosecute 41 
 
 costs, for — 
 
 form of. 70 
 
 practice on 70(a) 
 
 justification to 71, 71(a) 
 
 distributee to executors, by 718 
 
INDEX TO F0EM8 AND NOTES. 757 
 
 Bonds — 
 
 injunction, on — PAGE. 
 
 on ex parte allowance 301 
 
 stay of ejectment suit 302 
 
 personal action 303 
 
 order for delivery of, for prosecution 308 
 
 ne exeat, on 
 
 common form of. 312 
 
 to obtain a discharge of. 313 
 
 payment of surplus money, on 272 
 
 receiver, of — 
 
 of mortgaged premises 376 
 
 insolvent corporation 537 
 
 sale of land, on — 
 
 by guardian of lunatic 665 
 
 infant 676 
 
 approval of, by master 677 
 
 l)y administrator on presumption of death 709 
 
 Books, production of — 
 
 see " Papers, production of," post. 
 
 Briefs on appeal 197, 197(a) 
 
 Capias ad salisfaciendii/m — 
 
 form of 242 
 
 statute on 242(a), 243, n. 
 
 Canceling mortgage, decree for 63i 
 
 Caveat against enrolling decree — 
 
 form of. 185 
 
 practice on filing of. 185(o) 
 
 Certificate — 
 
 of commissioners to take answer 89 
 
 counsel to demurrer 92 
 
 plea 92, 96(a) 
 
 in form of affidavit 113(c) 
 
 of judge on trial of feigned issue 250 
 
 costs for searches 327, n. 
 
 by master to deed on partition 428 
 
 surrogate as to no guardian 687 
 
 Cestuis que trust as parties with trustees 2(a), 332, n., 341, n., 362, n. 
 
 Chancellor — 
 
 form of address to 1 
 
 as a party 1(6) 
 
 process against 1(6) 
 
 Changing conduct of cause — 
 
 order to show cause on 139 
 
 rule of court on 139(a) 
 
 object of rule 139(a) 
 
 costs on 139(a) 
 
758 INDEX TO F0EM8 AND NOTES. 
 
 Changing conduct of cause — page. 
 
 effect of. 139(a) 
 
 practice in case of. 139{«) 
 
 waiver of rights under 139(a) 
 
 order on 140 
 
 Charging part of bill — 
 
 see that title under " Bill," ante. 
 Charge of confederacy — 
 
 see that title under " Bill," ante. 
 
 Chattel mortgages 333, n. 
 
 Circuit Courts, address of bill in — 
 
 of the United States 1 
 
 county 2 
 
 Citation in divorce — 
 
 form of 21 
 
 when may issue 21(6) 
 
 defendant to answer 21(6) 
 
 effect of acknowledgment of service of. 21(6) 
 
 mode of obtaining 21(6), 459(o) 
 
 service of, with copy of petition 21(6), 459(o) 
 
 sheriff's endorsement on 21(6), 459(a) 
 
 service of, out of the state 459(a) 
 
 Commencements — 
 
 of answers 105, 106 
 
 demurrers 89 
 
 pleas 96 
 
 suit in chancery, by filing bill 1 
 
 Commission — 
 
 answer, to take — * 
 
 order for 86 
 
 practice on 86(6), 87, n. 
 
 form of 88, 88(a) 
 
 oath of defendant to 88, 88(6) 
 
 certificate of commissioners on 89 
 
 return of. 89(a) 
 
 indexed also under "Answer," ante. 
 dower, on — 
 
 to assign and set out 627 
 
 practice on 627(a) 
 
 examination of witnesses for — 
 
 see that title, post. 
 lunatics, idiots and drunkards, in case of — 
 
 petition for 638, 641, 642 
 
 order for 642 
 
 form of. 643, 646 
 
 return to 645 
 
 notice of executing 647 
 
INDEX TO FORMS AND NOTES. 759 
 
 Commission — 
 
 lunatics, idiots and drunkards, in case of— page. 
 
 oath to juror on 648 
 
 subpcena to witness on 648 
 
 order for new 652 
 
 indexed also under " Lunatics, &c.," post. 
 partition, on — 
 
 order appointing commissioners 437 
 
 form of 439 
 
 oath of commissioners on 441 
 
 return to 442 
 
 indexed also under " Partition,'' post. 
 
 Compelling defendant to answer 36-44 
 
 indexed also under "Answer," ante. 
 
 Committee of lunatic, suit by 4(a) 
 
 Commitment — 
 
 order for 41 
 
 warrant of. 42 
 
 return of warrant of. 42, 43 
 
 on refusal to produce books 80(a) 
 
 Concealment — 
 
 of infant to evade service of process 20, n. 
 
 parties defendant — 
 
 form of affidavit 23, 23(6) 
 
 order of publication against 24, 24(a), 25, n. 
 
 mortgagor 27, 27(a) 
 
 of witness 169(6) 
 
 Conclusions — 
 
 of answer 107 
 
 demurrer 91 
 
 plea 97 
 
 Conduct of cause by defendant — 
 
 order to show cause on 139 
 
 rule of court on 139(o) 
 
 object of rule 139(a) 
 
 costs on 139(a) 
 
 transfer of cause from complainant 139(a) 
 
 practice in case of. 139(a) 
 
 waiver of rights under 139(a) 
 
 order absolute to proceed 140 
 
 Consent — 
 
 use of counsel's name without 15(a) 
 
 appearance by 35(a), 36, n. 
 
 by guardian ad litem 53, 53(a), 56 
 
 to answer without oath 80(6) 
 
 dismissal of bill by, costs on 140(a) 
 
 effect of decree by 181(a) 
 
 of widow to join in sale of infant's land 678 
 
760 INDEX TO FOEMS AND NOTES. 
 
 Constilution— page. 
 
 appeals from Orphans' Court to Prerogative Court 187, n. 
 
 Chancellor not to sit on hearing on appeal 197(a) 
 
 Contempt — 
 
 technical grounds as an excuse for 19, n. 
 
 waiver of process for 37(a) 
 
 amending bill as affecting 37(a) 
 
 accepting answer or replying, effect of. 37(o) 
 
 fine for 39(a) 
 
 examination of party in 39(6) 
 
 report of master on 39(6) 
 
 when sheriff is in 39, n. 
 
 on neglect to answer after giving bail 40, n. 
 
 when contemner not to be heard 40, u. 
 
 purging from 40, n. 
 
 inability to pay costs as 40, n. 
 
 on non-production of papers 80(a) 
 
 by married woman not making separate answer 82(a) 
 
 extension of time to answer by party in 82, n. 
 
 on failure to answer after plea or demurrer 102(a) 
 
 by complainant on interrogatories by defendant 115(6) 
 
 dismissal of bill by party in 140(a) 
 
 by witness 157(a) 
 
 appeal from process for IBS, n. 
 
 see title "Answer, ' proceedings to compel.' "' 
 " Commitment." 
 " Injunction, ' contempt for violating.' " 
 
 Corporations — 
 
 introduction to bill by 5 
 
 railroad 5 
 
 foreign 5 
 
 evidence of corporate existence 5(a) 
 
 prayer for process against 13, 13(6) 
 
 signing bill of, by solicitor 15 
 
 when sworn to 16 
 
 by ofiicer of. 16(a) 
 
 swearing to bill of. , 17, 17(o) 
 
 as absent defendants 32, n., 33, ii. 
 
 distringas and sequestration to enforce answer of 37(a) 
 
 defence of ultra vires in amended answer 106, n. 
 
 jurat to answer of. ' 115 
 
 answer by 115(a) 
 
 discovery by 115(a) 
 
 see also "Absent defendants.'' 
 
 " Insolvent corporations.'' 
 Costs — 
 
 administration ad prosequendum, on 60(a) 
 
INDEX TO FOEMS AND NOTES. 761 
 
 Costs — 
 
 answer, on — PAGE. 
 
 after pro confesso on payment of 34(a) 
 
 on time granted for, without notice 81(o) 
 
 plea standing for 103(a) 
 
 unnecessary separate 105(6) 
 
 double 127(a) 
 
 acceptance of further, not a waiver 127(a) 
 
 after third insufficient 128, u. 
 
 treble 128, n. 
 
 appeal, on — 
 
 deposit on, to answer for 194(6) 
 
 on dismissal of. 195, n. 
 
 failure of appellant to appear 196(a) 
 
 enforcement of, on 198(a) 
 
 discretionary on 201(a) 
 
 practice as to 198(a), 201(a) 
 
 of printing on 198(a), 201(a) 
 
 order for execution for 201 
 
 to pay over deposit on ' 201 
 
 return of deposit on 201(6) 
 
 application of deposit on, to payment of prior 201(5) 
 
 bill, on — 
 
 amendment of, on allowance of demurrer, with 101(a) 
 
 without 124, 11., 132(a) 
 
 after demurrer 94(a), 133, n. 
 
 before answer, &c 133, n. 
 
 after insufficient answer 133, n. 
 
 plea, &c., overruled 133, n. 
 
 on leave 133, n. 
 
 without, to furnish copy 133, n. 
 
 time of payment of. 136, n. 
 
 discretionary as to 143(a) 
 
 on dismissal of, on motion 90, n. 
 
 for failure to answer interrogatories 115(5) 
 
 by complainant 140(a) 
 
 for failure to set down cause 118(6), 141(6) 
 
 want of prosecution 142(a) 
 
 non-attendance 141(6), 171(a), 174, n , 182(a) 
 
 contempt, on — 
 
 party in, to stand committed until payment of 39(a) 
 
 not to be heard until payment of. 40, u. 
 
 inability to pay as an excuse for 40, n. 
 
 discharge in insolvency as relief from payment 43(a) 
 
 from attachment for, with 47(a) 
 
 on attachment for 49(a) 
 
 time to answer by party in 82, n. 
 
762 INDEX TO FOKMS AND NOTES. 
 
 Costs — 
 
 creditor's bill, on — page- 
 
 indemnity for, by co-complainant in 528(a) 
 
 decree, on — 
 
 absent defendants appearing after, security for 26, n, 
 
 relief after pro confesso on payment of. 35, n. 
 
 on opening 35, n. 
 
 after opening pro eon/csso to abide event 35, n, 
 
 on enrollment of 141(a) 
 
 to include subsequent 180(c) 
 
 waiver of objection to award of, in 181, n. 
 
 changing award of, in 181, n. 
 
 with liberty reserved 181(a) 
 
 demurrer, on — 
 
 discretionary power as to 90, n., 91, n, 
 
 on withdrawal 94, n. 
 
 filing new 94, u. 
 
 discovery, on — 
 
 amount due, exclusive of 496(6), 497, n. 
 
 when no costs awarded on 497, n. 
 
 divorce, on — 
 
 in case of poor persons 454, n. 
 
 counsel fee in 465(a), 469, n. 
 
 dower, in case of 626(6) 
 
 X exceptions, on — 
 
 for scandal in bill 67(a) 
 
 on allowance of. , 67(a) 
 
 reference to master on 67(a) 
 
 submission to 61(a), 121, n., 125(a) 
 
 overruling 130(o), 131, n. 
 
 allowance of, in part 67(a), 131, n. 
 
 execution for — 
 
 on proceedings for possession 209(a) 
 
 against lands and goods for 214 
 
 when issued and practice on 180(6), 214(a) 
 
 on decree for payment of money 216(a) 
 
 foreclosure, on — 
 
 on drawing tickets in 22(6) 
 
 not allowed on affidavit of service of ticket 22(6) 
 
 in case of defendant mortgagee 107(5) 
 
 on neglect to proceed in 139(a) 
 
 payment of, by defendant proceeding 139(a) 
 
 on decree for deficiency 223, n. 
 
 decree for 326(a) 
 
 for certificates of search on 327, n. 
 
 on drawing bill for 336, n. 
 
 in case of one bill for two mortgages 336, n. 
 
INDEX TO FOKMS AND NOTES. 763 
 
 Costs — 
 
 foreclosure, on — page. 
 
 effect of tender on 345{i) 
 
 in case of sale on, money not all due 350(a) 
 
 hearing, on — 
 
 on not bringing on cause after notice 172(o) 
 
 ordering off 172(a) 
 
 postponement of. 175, n. 
 
 standing over at, to add parties 176(6) 
 
 injunction, on — 
 
 to stay proceedings at law before verdict 293, n. 
 
 injunction master 300(a) 
 
 stay proceedings in ejectment 302(a) 
 
 at law after verdict 303(a) 
 
 insolvent corporation, in case of — 
 
 distribution after payment of. 535(a) 
 
 interpleader, on — 
 
 on decretal order in 486, n. 
 
 dispute 486, n. 
 
 counsel fee on i 486(a) 
 
 liability for — 
 
 residence of complainant to be stated to fix 2(a) 
 
 in case of infant or non compos 4, n. 
 
 ■ infant's bill without next friend, solicitor's 4, n. 
 
 on infant's bill filed as adult 4, n. 
 
 guardian's or next friend's 4, u. 
 
 relator's 6(a) 
 
 in suits against the state 7, n. 
 
 lunatics, idiots and drunkards, in case of — 
 
 in case of petition presented by wife 640, n. 
 
 of jurors on inquiry 645(a) 
 
 commissioners 645(a) 
 
 clerk to tax, on filing of decree 654(a) 
 
 motion, on — 
 
 on party's own mistake 276, n. 
 
 usually granted on 276, n. 
 
 for neglect to proceed after notice of. 276(a) 
 
 partition, in — 
 
 master's fees on 413, n. 
 
 discontinuance of, on payment of. 421(a) 
 
 distribution in, after deducting. 428(a) 
 
 on refunding bonds in 432, u. 
 
 to be charged to shares on 442(a) 
 
 preferred to lien 442(rt) 
 
 commissioner's fees on 444(6) 
 
 for searches on 447(a) 
 
 counsel fee on 447(a) 
 
764 INDEX TO FORMS AND NOTES. 
 
 Costs — 
 
 perpetuating testimony, on — page. 
 
 on plaintiff's neglect to proceed 494, n. 
 
 plea, on — 
 
 on benefit of, reserved 101, n. 
 
 standing for answer 103(a) 
 
 poor persons, in case of — 
 
 not required 1o pay 73(0) 
 
 on divorce of. 454, n. 
 
 quieting title, on — 
 
 in case of decree pro covfesm 620(a) 
 
 to answering defendant 620(o) 
 
 redemption of mortgaged premises, on — 
 
 on ejectment 346, n. 
 
 payment of, in case of. 378, n., 384(a) 
 
 on dismissal of bill for 384(a) 
 
 rehearing, on 186(o) 
 
 replication, on — 
 
 on filing of. 144, n. 
 
 permission to file 174, n. 
 
 sale of land, on — 
 
 on adjournment of 230(a) 
 
 sheriff's statement of, on 233, 233(a), 234(a) to (i) 
 
 enforcement of, in case of 242(a) 
 
 in case of resale 253(a) 
 
 death presumed, on — 
 
 recoverable, on return of party 703(a) 
 
 distribution of proceeds of, after payment of. 703(6) 
 
 infant's land — 
 
 payment to guardian after deducting 681(6) 
 
 limited over — 
 
 to be taxed and paid out of proceeds of. 693(a) 
 
 lunatics, &c. — 
 
 investment of proceeds of, after payment of 666(a) 
 
 stay until payment of, in former suit 214(a) 
 
 strict foreclosure, decree against infant on payment of. 389(o) 
 
 witnesses, examination of, by commission — 
 
 as to party requiring 149(a) 
 
 of stenographer on 162, n. 
 
 exhibits on 162, n. 
 
 on paging, &e., of deposition 163, n. 
 
 as to fees of examiners on 163, n. 
 
 on notice of appeal from examiner 164, n. 
 
 see also " Security for costs," post. 
 Creditor's bill — 
 bill, the— 
 
 introduction to 5 
 
INDEX TO POEMS AND NOTES. 765 
 
 Creditor's bill — 
 
 bill, the — PAGE. 
 
 to set aside fraudulent conveyance and establish lien 512 
 
 what must be shown by 512(a), 513, n. 
 
 necessary statements in 5(6), 512(a), 513, n. 
 
 by attaching creditor for himself and others 521 
 
 averments in, by attaching creditor 521(a) 
 
 supplemental, when allowed 521(a) 
 
 decree on — 
 
 by default 35, n. 
 
 when several suits pending 513, n. 
 
 form of 519 
 
 distribution of assets on 528(a) 
 
 execution in case of — 
 
 before filing, advantage of 513, n. 
 
 out of chancery 520(o) 
 
 money in hands of sherifi" may 'be levied on 525(a) 
 
 judgment creditor, how afiectedby 521(a) 
 
 jurisdiction of equity over 512(a) 
 
 lien necessary 513, n., 521(a) 
 
 lis pendens — 
 
 notice of. 517 
 
 statutes as to 517(a), 518, n., 519, n. 
 
 when takes effect 519, n. 
 
 no bill filed 519, n. 
 
 effect of conveyance after 519, n. 
 
 parties — 
 
 effect on creditor omitted as 521(a) 
 
 who maybe 5(6), 512(a), 521(a), 527(o) 
 
 admission of — 
 
 petition for 527 
 
 time of naaking 527(a) 
 
 when notice of application for, required 527(a), 528 n. 
 
 order on 528 
 
 rights of. 528(a) 
 
 receiver's notice of motion for 519 
 
 stay when several suits pending 528, n. 
 
 Cross-bill — 
 
 answer to 136, n. 
 
 for relief in case of mistake in mortgage on foreclosure 334(o) 
 
 against co-defendant 334(o) 
 
 positive relief. 336, n. 
 
 definition of. 510 
 
 for relief or discovery 75, u., 510(a) 
 
 when to be filed 510(a) 
 
 practice after replication 510(a) 
 
 may be filed after close of testimony 510(a) 
 
766 INDEX TO FORMS AND NOTES. 
 
 Cross-bill— page. 
 
 new parties not to be introduced by 510(a) 
 
 not to be inconsistent with original 510(o) 
 
 against co-defendant 510(a) 
 
 answer to 136, u., 510(a), 511, u. 
 
 practice as to, under rule of court 511, n. 
 
 order to stay proceedings until answer to 511 
 
 must be verified to stay proceedings 511(a) 
 
 does not operate as a stay of course 511(a) 
 
 practice on, as to stay 511(a) 
 
 order that original and cross-bill be heard 511 
 
 original and cross-cause one suit 511(6) 
 
 reformation of mortgage by 636(a) 
 
 Curtesy — 
 
 see " Dower and curtesy," post. 
 Death— 
 
 of guardian r. 105(a) 
 
 defendant before answer filed 114, n. 
 
 witness 149, u. 
 
 party after argument and before decree 179(c) 
 
 complainant after decree 187, n. 
 
 respondent in appeal 187, n. 
 
 sherifi"or officer pending execution 226(a) 
 
 solicitor 281(6) 
 
 party entitled to notice of new party 284, n. 
 
 presumption of. 703(o), 704, n. 
 
 of trustee 720(6) 
 
 see also "Abatement and revivor." 
 "Absent defendants." 
 "Distribution of personal property." 
 "New trustee." 
 
 " Sale of land on presumption of death." 
 Decrees — 
 
 abstract of. 222 
 
 indexed also under "Abstract of decree," ante. 
 final — 
 
 caveat against enrolling 185 
 
 common form — 
 
 in ordinary cases 178 
 
 absence of complainant 182 
 
 entering — 
 
 nunc pro tunc 179(c) 
 
 in case of loss of original 180, n. 
 
 rule of tourt as to time of... 180(c) 
 
 by agreement of parties 362, n. 
 
 execution on — 
 
 for costs 180(6) 
 
 in case of appeal 188 n. 
 
INDEX TO F0BM8 AND NOTES. 767 
 
 Decrees — 
 
 practice and principles applicable to — page, 
 
 in case of absent defendants 24(6) 
 
 creditor's bills 35, n. 
 
 definition of 178(6), 179, n. 
 
 objection to, bow waived 179, n. 
 
 recitals in 179(o) 
 
 declaration of rights of parties in 179(6) 
 
 in case of death before signing 179(c) 
 
 by Chancellor on opinion of predecessor 1 80, n. 
 
 signing of, by Chancellor's successor 180, n. 
 
 may be made in vacation 180, n. 
 
 not to be in figures 180(a) 
 
 reservation of further consideration in 180(c) 
 
 when equities settled by interlocutory 180(c) 
 
 equity reserved 181, n. 
 
 waiver of objection to 181, n. 
 
 settling form of 181, n. 
 
 wlien to be enforced 181, n. 
 
 with liberty reserved 181(a) 
 
 consent to, as settlement of rights 181(o) 
 
 time for performance of 181(6) 
 
 effect of, as a conveyance 182, n. 
 
 amendment of 211(a) 
 
 in case of collateral security for less than mortgage 362, n. 
 
 operation of. 222(a), 362, n. 
 
 pro confesso — 
 
 against absent defendants 25, n. 
 
 form 34 
 
 when may be entered 34(a) 
 
 in case of divorce 34(a) 
 
 signing of ■ 34(a) 
 
 rule as to notice on 34(a) 
 
 when proof required on 35, n. 
 
 final in lieu of 35, u. 
 
 right to, when answer on file 35, n. 
 
 relief against 35, n. 
 
 costs on opening 35, n. 
 
 opening 34(a), 35, ii., 81(a) 
 
 leave to answer on same day with 34(a), 81(a) 
 
 on third insufficient answer 130 
 
 foreclosure .;... 350 
 
 special forms of, final — 
 
 annul a deed, to 633 
 
 cancel a mortgage, to 634 
 
 creditor's bill to set aside conveyance, on 519 
 
768 INDEX TO FORMS AND NOTES. 
 
 Decrees — 
 
 special forms of, final — 
 
 divorce, on — page. 
 
 in ea: parte proceedings 463 
 
 for alimony 473 
 
 nullity of marriage 476 
 
 dower, for 625 
 
 establish a will, to 632, 632(a) 
 
 foreclosure, on — 
 
 on no order of reference 353 
 
 for sale of whole premises 361 
 
 part of premises 364 
 
 money not due 365 
 
 residue 367 
 
 special, in favor of complainants and defendants... 368 
 strict — 
 
 form for 387 
 
 final 399 
 
 interpleader, in 487 
 
 mortgage declared usurious, on 637 
 
 partition, on — 
 
 for partition and appointing commifsioners 437 
 
 confirming 445 
 
 quiet title, to 620 
 
 redemption of mortgaged premises, for 384 
 
 reform a mortgage so as to convey a fee, to 635 
 
 a trust deed, to 636 
 
 reversal on remittitur, on 199 
 
 specific performance, for 630 
 
 special forms of interlocutory — 
 
 account between partners, for 627 
 
 compelling second mortgagee to redeem 628 
 
 interpleader, on 485 
 
 partition, in 412 
 
 mortgage foreclosure, on 347 
 
 strict foreclosure, on 393 
 
 Decretal order — 
 
 retaining bill with leave to bring action 177 
 
 see also "Decrees," supra. 
 "Orders," post. 
 Demurrer — 
 
 constituent parts of — 
 
 title and commencement of. 89 
 
 conclusion of. 91 
 
 affidavit to — 
 
 form 92 
 
 eflfect of omission of. 92(a) 
 
INDEX TO FOEMS AND NOTES. 769 
 
 Demurrer — 
 
 constituent parts of — 
 
 certificate of counsel to — page. 
 
 form 92 
 
 effect of omission of 92(o) 
 
 forms of — 
 
 for want of equity 92 
 
 multifariousness 9& 
 
 want of parties 94 
 
 affidavit, &c., in interpleader 94 
 
 not showing claim, &c., in interpleader 95 
 
 demurrer and answer 95 
 
 answer claiming benefit of. 109 
 
 grounds of — 
 
 for omitting residence of complainant 2(a) 
 
 defect in interrogating part 10(o) 
 
 omission of prayer for process 12(a) 
 
 want of counsel's signature 15(a) 
 
 to original bill 90, n. 
 
 bill of discovery 90, n. 
 
 for misjoinder of parties 91, n. 
 
 want of equity 92 
 
 must rest upon objections to the bill 92(5) 
 
 for want of form 93, n. 
 
 stating, by way of amendment 93, n. 
 
 for misjoinder of causes 93, n. 
 
 in case demurrant not a necessary party 93, n. 
 
 statement of 93, n. 
 
 for multifariousness 93 
 
 what constitutes multifariousness 93(a) 
 
 for misjoinder of husband and wife 93(a) 
 
 want of parties 94 
 
 statement in, for want of parties 94(a) 
 
 in case of no ticket with subpoena 94(o) 
 
 bill by foreign executor 332, n. 
 
 interpleader, to — 
 
 for want of affidavit and equity. 94 
 
 not showing claim of right in defendant 95 
 
 in case bill admits debt due one defendant 480(a) 
 
 of bill of, after judgment at law 480(a) 
 
 omission of offer to pay into court 480(a) 
 
 objection to want and form of affidavit in 484(a) 
 
 orders on — 
 
 sustaining 101 
 
 for time to file, to amended bill 102 
 
 overruling on default 102 
 
 argument 102 
 
 2y 
 
770 INDEX TO F0EM8 AND NOTES. 
 
 Demurrer — 
 
 ore ienus — page. 
 
 at hearing after overruling in doubtful cases 90, n. 
 
 for misjoinder 93, n. 
 
 want of equity 93(a) 
 
 assignment of causes 94(a) 
 
 practice On — 
 
 objection to bill under rule 89(6) 
 
 on overruling in doubtful cases 90, n. 
 
 decision on 90, n. 
 
 effect of allowance of. 90, n. 
 
 at the hearing 90, n., 91, n. 
 
 to what matters argument confined 91, n. 
 
 ameudment of. 91, n. 
 
 answer on overruling 91, n. 
 
 filing of, as a waiver 91, u. 
 
 time of filing 92(a) 
 
 noticing and setting down 92(a) 
 
 after time extended 81(o), 92(a) 
 
 leave to amend by stating grounds 93, u. 
 
 file new 94(a) 
 
 withdrawal of. 94(o) 
 
 to be first disposed of. 95(a) 
 
 hearing on 95(a) 
 
 admitting sufficiency of 95(a) 
 
 order sustaining 101 
 
 effect of allowance of. 101(a) 
 
 in case of partial 101(a) 
 
 costs on 90, n., 91, n., 94(a), 101(a) 
 
 order overruling, on default 102 
 
 argument 102 
 
 leave to put, in after plea overruled 102(a) 
 
 answer to be put in on overruling 102(a) 
 
 principles governing — 
 
 lies to bill only 89(6) 
 
 as a protection from discovery 89(6) 
 
 decision on 90, n. 
 
 admission of facts by 91, n. 
 
 effect of general, as a waiver 91, n. 
 
 in case part of bill demurrable 91, n. 
 
 to show cause for, on face of bill 92(6) 
 
 amended bill 136, n. 
 
 bill of review 508(a) 
 
 and answer 95 
 
 claiming benefit of, in answer 109 
 
 Demurrer and answer , 95 
 
 Depositions — 
 
 see " Examination of witnesses," post. 
 
INDEX TO FOEMS AND NOTES. 771 
 
 Deputy sheriff— page. 
 
 authorization of. 21 
 
 mode of appointing 21(a), 213(a) 
 
 deed executed by 240(a) 
 
 Diligence — 
 
 what constitutes, on inquiry 31(a), 32, n. 
 
 Disclaimer — 
 
 form of 109 
 
 when used 109(o) 
 
 to be with answer 109(a) 
 
 on oath , 110, n. 
 
 getting rid of. 110, n. 
 
 effect of. 110, n. 
 
 how to be signed 110, n., 110(a) 
 
 Discontinuance — 
 
 in partition 421(a) 
 
 see "Dismissal of bill," post. 
 
 Discovery — 
 
 bill for 496 
 
 definition of 496(a) 
 
 statements in bill for 496(a) 
 
 prayers in bill for 496(o) 
 
 answer to bill for , 496(a) 
 
 parties to 497, n. 
 
 relief granted 497, n. 
 
 receiver in case of 497, n., 498, n. 
 
 in case of unsatisfied judgment at law 496(6), 497, n., 498, n. 
 
 statutes on 496(6), 497, n., 498, n. 
 
 procedure on 497, n., 498, n. 
 
 affidavit to bill of 500 
 
 order for 501 
 
 iDismissal of bill — 
 
 misjoinder of husband and wife not a cause for 3(a) 
 
 in case of infant without next friend 4, n. 
 
 next friend without authority 4(a) 
 
 for want of interest between complainants 5(6) 
 
 no ground of equity on motion 62, n. 
 
 failure to file security for costs 71, u. 
 
 refusal to answer interrogatories 115(6) 
 
 on failure to speed cause 118(6) 
 
 as to parties not retained on amendment 136, n. 
 
 order for, by complainant 140 
 
 when complainant may have 140(a) 
 
 costs on 140(a) 
 
 as of course 140(a) 
 
 when on notice and motion 140(o) 
 
 •on non-appearance of defendant after notice 140(a) 
 
772 INDEX TO FORMS AND NOTES. 
 
 Dismissal of bill— PAGE. 
 
 eflfect of voluntary , 141(a) 
 
 when pleadable in bar 141(a) 
 
 for want of parties 141(a) 
 
 gross negligence 141(o) 
 
 vacating order for , 141(a) 
 
 on agreement 141(a) 
 
 notice of motion for, for want of prosecution 141 
 
 for failure to file exceptions to answer 141(5) 
 
 replication 141(6) 
 
 set down cause 118(5), 141(5) 
 
 attend at hearing 141(5), 142, n., 171(a), 174, n. 
 
 ' on court's own motion 141(a), 142, n. 
 
 motion for, by one of joint defendants 142 n. 
 
 for abandonment of suit 142(a) 
 
 not without full hearing 142(a) 
 
 for want of equity 142(a) 
 
 in case of no relief prayed against defendant 142(a) 
 
 for want of prosecution pending injunction 142(a) 
 
 in case of bill to perpetuate testimony 142(a) 
 
 for want of prosecution, efiect of. 142(a) 
 
 after order to amend 142(a) 
 
 on application of party without process served 143, n. 
 
 conclusiveness of. 141(a), 143, n. 
 
 setting aside decree for 143, n. 
 
 when motion for, irregular 143, n. 
 
 filing of replication to prevent 144, n. 
 
 want of parties as a ground for 176(5) 
 
 for failure to elect between suit and action 117(a), 280, n. 
 
 of complainant to appoint a solicitor 282 
 
 when answer denies matter of discovery 496(a) 
 
 Dissolution of injunction— 
 
 see " Injunctions," post. 
 Distribution of personal property — 
 
 presumption of death, in case of — 
 
 statute on 713(a), 714, n. 
 
 petition for 713 
 
 order of reference on 715 
 
 report of master on 715 
 
 bond from distributee to executors 718 
 
 order of distribution to legatees in remainder 719 
 
 Distringas to compel corporation to answer 37(a) 
 
 Divorce — 
 
 aflSdavits, on — 
 
 of non-collusion 454 
 
 answer sworn to, used as 455(a) 
 
 statute regarding 452(o), 457(a) 
 
INDEX TO FORMS AND NOTES. 773 
 
 Divorce — 
 
 affidavits, on — PAGE. 
 
 of non-residence of defendant , 459(o) 
 
 to petition for alimonj pendente lite 467 
 
 alimony — 
 
 ne exeat on bill for 14(a) 
 
 petition for, pendente lite 465 
 
 discretion of court on allowance of. 465(o) 
 
 when will be granted 465(a) 
 
 affidavit to petition for 467 
 
 denial of adultery in petition for 467(o) 
 
 order of reference for 467 
 
 allowance of, with or without reference 467(6) 
 
 order for 467 
 
 poverty as a defence to 468, n. 
 
 bill for, under the statute 468 
 
 statute on 468(a) 
 
 as a lieu 469, n. 
 
 security for 468(a), 469, n. 
 
 power of court to decree 469, n. 
 
 when will be refused 465(a), 466, n., 469, n. 
 
 necessary averments in bill for 469, n. 
 
 proof on 469, u. 
 
 when no divorce granted 469, n. 
 
 order for security for costs on 473 
 
 statute as to security for costs on 473(a) 
 
 decree for 473 
 
 not given in gross sum 473(6) 
 
 petition for alteration in allowance of. 473(6) 
 
 amount of. 467(6), (c), 468, n., 473(6) 
 
 answer — 
 
 to bill of divorce for adultery 455 
 
 not evidence 455(a) 
 
 time of filing 455(a) 
 
 issue joined on filing of. 455(a) 
 
 not to be under oath 459(6), 467(a) 
 
 bill for— 
 
 in case of adultery 452 
 
 necessary averments in, as to adultery 453(a) 
 
 when suit must be commenced by 453(a) 
 
 improper joinder of grounds in 453(a) 
 
 prayer for independent relief in 454, u. 
 
 alimony in 454, n. 
 
 in case of alimony 468 
 
 averments in bill for alimony 469, u. 
 
 to annul marriage 474 
 
774 INDEX TO P0BM8 AND NOTES. 
 
 Divorce — 
 
 citation — page. 
 
 form of 21 
 
 acknowledgment of service of 21(6) 
 
 proof of service of. 22, n. 
 
 service of, in case of non-residence 459(a) 
 
 issuing and service of. 21(6), 459(a) 
 
 cohabitation pending suit 452(a), 474(6) 
 
 collusion in 463(a), 475(a) 
 
 condonation as a bar 456(a) 
 
 conscientious scruples as to absolute 464(a) 
 
 decree — 
 
 on ex 'parte, proceedings 463 
 
 practice on exparte proceedings 463(a) 
 
 for separation and alimony 473 
 
 nullity of marriage 476 
 
 desertion — 
 
 proof of. 460(a) 
 
 what constitutes 452(a), 457(6), 458, n,, 460(o), 461, n. 
 
 dower and curtesy forfeited by 464(o) 
 
 evidence in — 
 
 sworn answer not 455(a) 
 
 time and mode of taking 455(a), 459(6), 461, n. 
 
 to be taken before one master 461, n. 
 
 in case of adultery 462(o), 463, n. 
 
 grounds for — 
 
 in case of another husband or wife living 452(a) 
 
 when parties are within prohibited degrees 452(a) 
 
 adultery 464(o), 452(a) 
 
 impotency 452(a) 
 
 extreme cruelty 464(a), 453(a) 
 
 desertion 452(o), 457(6), 458, ii., 460(a), 461, n., 464(a) 
 
 limited, in case of conscientious scruples 464(a) 
 
 in case of void contract 474(6) 
 
 intoxication at time of marriage 474(6) 
 
 marriage in jest.. 474(5) 
 
 force or fraud 474(6), 475, n- 
 
 hearing, rule as to 459(6) 
 
 jurisdiction — 
 
 serving copy of petition as giving.... 21(6) 
 
 what residence gives 452(o) 
 
 facts giving, to be reported 461, n. 
 
 statutes on 452(a), 464(a) 
 
 ne exeat in case of bill for alimony 14(a), S09(a) 
 
 notice to absent defendant 30, 31 
 
 orders — 
 
 alimony, for 467 
 
INDEX TO F0EM8 AND NOTES. 775 
 
 J)ivorce — 
 
 orders reference, of — page. 
 
 in ex parte proceedings 459 
 
 practice on 459(6) 
 
 to special master 459(6) 
 
 when not made in case of adultery 459(6) 
 
 master's duties on 461, n. 
 
 as to alimony 467 
 
 order security for costs, for 473 
 
 petitions for — 
 
 commencement of suit by 453(o) 
 
 for adultery 456 
 
 desertion , 457 
 
 alimony pendente lite 465 
 
 poor person, assignment of solicitor for 454, n. 
 
 procedure on 455(a), 459(6) 
 
 publication of notice and order — 
 
 see "Absent defendants,'' ante. 
 
 replication 455(a) 
 
 reports of master — 
 
 in case of desertion 460 
 
 necessary statements in , 460(o) 
 
 in case of adultery 462 
 
 residence — 
 
 as giving jurisdiction 452(a) 
 
 definition of. 452(o) 
 
 to be continuous 458, n. 
 
 security for costs — 
 
 order for 473 
 
 statute on 473(a) 
 
 variance 463, n. 
 
 Documents, production of — 
 
 see "Papers, production of," post. 
 Domicil — 
 
 of husband 19, n., 28(a) 
 
 wife 19, n., 28(a) 
 
 necessary in divorce 452(a) 
 
 see also "Residence," post. 
 
 " Security for costs," post. 
 Dower — 
 
 assignment of — 
 
 bill for 622 
 
 jurisdiction of chancery over 622(a), 623, n. 
 
 suit for mesne profits... 623, n. 
 
 parties to 623, n. 
 
 account on 623, n. 
 
 reference or commission to assign 623, n. 
 
776 INDEX TO FOEM8 AND NOTES. 
 
 Dower — 
 
 assignment of — page. 
 
 from what time mesne profits are computed 623, n. 
 
 execution and return of commission on 623, n. 
 
 decree for and reference 625 
 
 rights and liabilities of widow 625(a) 
 
 interest on arrears of. 625(a) 
 
 practice on 625(6) 
 
 effect of death of widow on 267(a), 448, n., 626(a) 
 
 costs on 626(6) 
 
 commission for 627 
 
 release of 667, n. 
 
 Dower and curtesy — 
 
 election between gross sum and interest — 
 
 in case of surplus money , 267(a) 
 
 form of 447 
 
 statute on 447(6) 
 
 valuation of estate 448, n. 
 
 measure of compensation 448, n. 
 
 order of reference as to amount 449 
 
 master's report on sum in gross 449 
 
 what is a " reasonable sum " 449(a) 
 
 allowance to be inserted in order for distribution 449(a) 
 
 confirmation of master's report on 449(a) 
 
 master's report on amount to be invested 451 
 
 sale of land, on — 
 
 consent to release 678 
 
 practice as to release 678(a) 
 
 release of. 667(a), 678 
 
 endorsement of release on deed 678(6) 
 
 statute and rule on release 678(6), 679, n. 
 
 Drunkards, proceedings affecting — 
 
 see " Lunatics, idiots and drunkards," post. 
 Election between suit and action — 
 
 order for 117, 279 
 
 form of. 279 
 
 when defendant entitled to compel 117(a), 279(o) 
 
 complainant will not be put to ll'''(a), 279(o) 
 
 in case of suit pending in another state 98(a), 117(a), 279(o) 
 
 complainant not put to, until answer filed ll'''(a), 280, n. 
 
 practice on motion or petition for 117(a)> 280, n. 
 
 service of order for 117(<i), 280, n. 
 
 proceedings stayed by injunction on 117(a), 280, n. 
 
 effect of default in making 117(«), 280, n. 
 
 reasonable time allowed for making 111(a), 280, n. 
 
 order for, in place of injunction 118(a), 280(a) 
 
 motion to discharge, order for 118(a), 280(a) 
 
INDEX TO FORMS AND NOTES. 777 
 
 Election between suit and action — page. 
 
 inquiry on 118(a), 280(a) 
 
 when injunction granted on 118(a), 280(a) 
 
 extension of time for making 118(a), 281, n. 
 
 after decree 118(a), 281,n. 
 
 Evidence — 
 
 of existence of corporation 5(a) 
 
 a?/e^a(a to agree with probata 8, n. 
 
 lost instrument, in case of. 8, n. 
 
 affidavit to bill as 17(6) 
 
 bill stating document admitted by answer as 79, n. 
 
 pleadings as 7(b), 8, u., 105(6) 
 
 answer to defendant's interrogatories as 115(6) 
 
 depositions under commission, &c. — 
 
 admissibility as 149, u. 
 
 death of witness as affecting 149, n. 
 
 informality as affecting 149, n. 
 
 how to be taken down 158(a) 
 
 documentary papers — 
 
 notice of use at hearing 165 
 
 rule as to 165(a) 
 
 proofs — 
 
 order for ex parte 170, 170(a) 
 
 cause to stand over to supply 177 
 
 leave, when granted to supply 177(a) 
 
 newly-discovered 177(a) 
 
 deed of sheriff as 237(6), (c), 240(a) 
 
 affidavits used at hearing as 278(a), 279, n. 
 
 in case of infant 355(a) 
 
 on mortgage foreclosure 34(a), 356, n. 
 
 see "'evidence' under Answer," ante. 
 Examination of defendant on third insufficient answer — 
 
 order for 129 
 
 time of making 129(a) 
 
 settling interrogatories on 129(a) 
 
 report as to sufficiency of. 129 
 
 Examination of witnesses — 
 
 advisory master, before 164, n. 
 
 de bene esse, domestic witness — 
 
 affidavit for 158 
 
 in what cases to be taken 158(a) 
 
 what notice to be given 158(a) 
 
 witness, how compelled to testify 158(a) 
 
 mode of taking 158(a) 
 
 duties of officer taking 146, n., 159, n. 
 
 affidavit of messenger on 159, n. 
 
 notice of examination of. 159 
 
 how served '. 159(c) 
 
778 INDEX TO POEMS AND NOTES. 
 
 Examination of witnesses — 
 
 de bene ease, domestic witness — page. 
 
 statute applies only to 159(c)' 
 
 certificate of master 159(c) 
 
 deposition on 160 
 
 statutes as to 158(o), 159, n. 
 
 examiners, before — 
 
 notice of. 160 
 
 to be taken on notice after issue 160(a) 
 
 when to be commenced and concluded 160(a) 
 
 issue joined on plea, mode of taking 160(a) 
 
 adjournment of. 160(a), 161, u. 
 
 one examination at the same time 160(a) 
 
 rule as to testimony in rebuttal 161, n., 168(a) 
 
 time for taking may be extended 161, u. 
 
 on what days not to be taken 161, a. 
 
 form of. 161 
 
 examination, how taken down 161(a), 162, n. 
 
 statute as to direct and cross-examination 162, n. 
 
 irregularities in taking 162, u. 
 
 cross-examination 162, n. 
 
 to be taken in narrative form 162, n, 
 
 question and answer, when allowed 162, n. 
 
 exhibits on 162, n. 
 
 copies of. 162, n. 
 
 costs on 162, n. 
 
 rule as to paging, &c 162, u., 163, n. 
 
 duties of examiners 163, n. 
 
 signing of deposition 163, n. 
 
 jurat 163, n. 
 
 effect of death before signing 163, u. 
 
 filing depositions 163, n. 
 
 no lien for fees 163, n. 
 
 ruling upon evidence 163, n. 
 
 appeal from decision of. 163, u. 
 
 notice of. 163, n., 164, n. 
 
 entry of. 164, n. 
 
 when to be heard 164, n. 
 
 costs on 164,11. 
 
 nomination of examiners 161, ii., 164, n. 
 
 rejection of testimony by 164, n. 
 
 notice of motion extending time 166 
 
 rule as to extending time 166(a) 
 
 order extending time under rules 166 
 
 not under rules 166 
 
 affidavits used to obtain 166(6), 167, n. 
 
 to close testimony 167 
 
INDEX TO FORMS AND NOTES. TTD' 
 
 Examination of witnesses — 
 
 examiners, before — page. 
 
 when order to close testimony granted 167(a) 
 
 relief granted 167(o) 
 
 rules as to closing testimony 167(a), 168, n. 
 
 order for re-examination 168 
 
 practice regarding re-examination 168(a) 
 
 order for re-examination, how granted.. 168(a} 
 
 non-resident — 
 
 commission for — • 
 
 affidavit to obtain 147 
 
 • when and how awarded 145(a), 146, n., 147(a) 
 
 rale when examination not de bene esse 147(a) 
 
 notice of motion for 148 
 
 practice on application for 148(a) 
 
 order for 148 
 
 when adverse party joins in 148(6) 
 
 English rule as to 148(6) 
 
 admissibility of. 149, n. 
 
 objections to 149, n. 
 
 effect of death upon 149, n. 
 
 return of. 149(a) 
 
 not to operate as a stay 149(a) 
 
 costs on 149(a) 
 
 form of. 150 
 
 contents of. 150(a} 
 
 direction for execution of. 151 
 
 statutes as to execution of. 151(c), 152(a), (6), (c), (d), 
 
 163(a), (6), (c), 154(a), (6), (c), 155(a), (6) 
 notice of, by part of commissioners to the others... 156 
 
 English rule as to notice by commissioners 156(o) 
 
 rules of court as to 147(a), 148(a), (6), 149(a), 150(a) 
 
 statutes as to 145(a), 146, n., 147(a), 148(a), 149, n.,. 
 
 149(a), 150(a), 151(c), 152(a), (6), (c), 153(a), (6), (c), 
 154(a), (6), (c), 155(a), (6) 
 commissioners for — 
 
 nomination of. 148(a), (6) 
 
 appointment of. 148(6) 
 
 oath of 151 
 
 statute as to oath of. '. 151(a) 
 
 directions to 151 ei seg. 
 
 de bene esse on notice — 
 
 notice of motion for order 145 
 
 who mayapply for 145(a) 
 
 before what officers taken 145(a) 
 
 notice of, how given 145(a)' 
 
 oath of officer on 145(a} 
 
780 INDEX TO FORMS AND NOTES. 
 
 ^Examination of witnesses — 
 non-resident— 
 
 de bene esse on notice — page. 
 
 oatli of witnesses on 145(o) 
 
 notice by court's direction 145(a) 
 
 interrogatories and answers to be written 145(a) 
 
 subscription of testimony on 145(a) 
 
 deposition to be certified, &c 145(a) 
 
 return of deposition 145(o) 
 
 application of statute to chancery 145(a) 
 
 reasons for taking 145(a) 
 
 order for 146 
 
 notice of, form of. 146 
 
 adjournments on 146(a) 
 
 statutes as to 145(a), 153(a) 
 
 interrogatories, on commission — 
 
 service of copy of. 146, n., 148(a), 150(a) 
 
 drawing and signing of 150(a) 
 
 submission of, to Chancellor 150(a) 
 
 interrogatories, cross, on commission — 
 
 may be submitted 148(a) 
 
 service of copies of. 150(a) 
 
 submission of, to Chancellor 150(a) 
 
 presumption of absence of witness at li earing 149, n. 
 
 letters rogatory — 
 
 form of. 155 
 
 in what oases granted 155(c) 
 
 to whom directed , 155(c) 
 
 application for 155(c) 
 
 comity as to 155(c) 
 
 to whom presented 155(c) 
 
 practice on 155(c) 
 
 re-examination of — 
 
 order for 168 
 
 not favored 168(a) 
 
 effect of, without order for 168(o) 
 
 waiver of irregularity in 168(a) 
 
 order for, how granted 168(a) 
 
 objection to 168(a) 
 
 to follow cross-examination 168(a) 
 
 correction of mistake on 169, n. 
 
 refreshing memory on 169, u. 
 
 discretion of court as to allowing 168(o), 169, n. 
 
 subpoena ad te'tifieandum — 
 
 form of 156 
 
 how issued 156(6) 
 
 number of names in 157, n. 
 
INDEX TO FOBMS AND NOTES. 781 
 
 Examination of witnesses — 
 
 subpoena ad testificandum — page. 
 
 how served 157, n. 
 
 fees on service of. 357(a) 
 
 order to show cause for disobeying , 157 
 
 statute as to witness disobeying 157(a) 
 
 suppressing depositions — 
 
 when irregularity not sufficient for 162, n. 
 
 on second examination without leave 168(a) 
 
 notice of motion for.., 169 
 
 practice on 169(a) 
 
 reasons for. 169(a) 
 
 time for 169(a) 
 
 discretionary 169(a) 
 
 when taken in another state 169(a) 
 
 for refusal to be cross-examined 169(i) 
 
 order for 169 
 
 for want of notice of taliing 161, n., 170, n. 
 
 Vice Chancellor, on reference to — 
 
 mode of proceeding. 164, n. 
 
 affidavit to take depositions 165 
 
 when depositions taken in a cause before 165(6) 
 
 witnesses, the — ■ 
 
 fees of. 157(a) 
 
 order to show cause for disobedience 157 
 
 process for 156, 156(6) 
 
 rule of court as to attendance of 157, n. 
 
 service of process on 157, n. 
 
 penalty for contempt '. 157(a) 
 
 credibility of, when destroyed 162, n. 
 
 party as 162, n. 
 
 oath of. 152(c), {d), 163, n. 
 
 competency of 163, n. 
 
 rejection of. 164, n. 
 
 Exceptions — 
 
 affidavit, to — 
 
 may be referred for impertinence in 68(a) 
 
 what constitutes impertinence in 278(a) 
 
 answer, to — 
 
 amendment of, after hearing 119(a), 124, n. 
 
 costs on — 
 
 amendment of bill without, after allowance of. 124, n. 
 
 on submission 121, n., 125(a) 
 
 double 127(o) 
 
 acceptance of further answer not a waiver of. 127(a) 
 
 on third insufficient answer 128, u. 
 
 overruling 130(a) 
 
782 INDEX TO F0BM8 AND NOTES. 
 
 Exceptions — 
 
 answer, to — 
 
 costs on — PAGE. 
 
 on allowance 130(a) 
 
 overruling part and allowing part 131, n. 
 
 expunging — 
 
 rule as to consent for 125(6) 
 
 order for, in case of scandal on report 131 
 
 submission 132 
 
 further answer, after — 
 
 second, after allowance of 124(a) 
 
 order for 126 
 
 statute as to 126(5) 
 
 in case of insufficiency of 126(J) 
 
 after exceptions and amendments 127 
 
 costs on 127(a) 
 
 effect of acceptance of, on costs 127(a) 
 
 time for filing 127(6) 
 
 practice on exceptions to, 127(6) 
 
 in case of third insufficient 128, n. 
 
 effect of third insufficient 128, n. 
 
 costs on third insufficient 128, n. 
 
 general principles on — 
 
 in what cases will lie 119(a) 
 
 to answer of corporation ^ 120, n. 
 
 without oath 120, n. 
 
 in case of several defendants 120, n. 
 
 joint defendants 120, n. 
 
 separate, to same matter not allowed 120, n. 
 
 must be conclusive 121(6) 
 
 query as to corporation 122, n. 
 
 when plea stands for answer 103(a), 122, n. 
 
 effect of third insufficient answer 128, n. 
 
 hearing of — 
 
 rule for, to master's report 126 
 
 effect of rule for 126(a) 
 
 impertinence, for — 
 
 definition of. 119(a) 
 
 rules as to 120, n. 
 
 form 121 
 
 when exception for fails 121(6) 
 
 to point out exceptionable matter 121(6) 
 
 grounds for to be clear 121(6) 
 
 injunctions, in case of — 
 
 effect of, on injunction 122, n. 
 
 motion to dissolve, and to hear at same time 122, n. 
 
 practice on 124, u. 
 
INDEX TO FORMS AND NOTES. 783 
 
 1 Exceptions — 
 
 answer, to — 
 
 insufficiency, for — page. 
 
 form of. 119 
 
 definition of 119(a) 
 
 to answer of corporation 120, n. 
 
 without oath 120, n. 
 
 of infant 122, n. 
 
 proceeedings before master on 123(a) 
 
 what constitutes 124(a) 
 
 second answer, in case of. 126(6) 
 
 in case of further answer 127(a), (6) 
 
 costs on 127(o), 128, u. 
 
 order for attachment on 128 
 
 of third answer, order pro confesso on 130 
 
 may be allowed as to part 119(a), 126(6), 131, n. 
 
 interrogatories, examination upon — 
 
 order for 129 
 
 time for 129(a) 
 
 settling of. 129(a) 
 
 report as to sufficiency of answer 129 
 
 orders on — 
 
 referring 122 
 
 under rule 75 123 
 
 nisi 124 
 
 for hearing upon exceptions to report 126 
 
 further answer 126 
 
 referring exceptions on second, &c., answer 127 
 
 for attachment 128 
 
 examination upon interrogatories 129 
 
 to take bill as confessed 130 
 
 confirming master's report on 130 
 
 to expunge scandal, &c., on report 131 
 
 submission 132 
 
 plea standing for answer, to 103(a) 
 
 ^.practice on — 
 
 in what cases may be filed 119(a) 
 
 method of stating .•. 119(a) 
 
 how to be framed 120, u. 
 
 entitled 120, n. 
 
 exceptionable matter to be pointed out 120, n. 
 
 time of taking 120, u. 
 
 filing 120, n. 
 
 in case of demurrer and answer 120, n. 
 
 time for filing after plea overruled 120, n., 121, n. 
 
 how to be signed 121(a) 
 
 to be confined to a distinct question 121(5) 
 
784 INDEX TO F0BM8 AND NOTES. 
 
 Exceptions — 
 
 answer, to — 
 
 practice on — page. 
 
 certainty in stating 121(6) 
 
 effect of order to amend on 122, n. 
 
 mode of procedure before master 123(a) 
 
 order to answer amended bill and exceptions 124, n. 
 
 as to injunction bills 124, u. 
 
 scandal, impertinence, &c 124(a) 
 
 rule as to answering bill and 125(a) 
 
 upon exceptions to second, &c, answer 127(6) 
 
 time of filing further answer 127(5) 
 
 in case of third insufficient 128, n. 
 
 on insufficiency in part 131, n. 
 
 referring — 
 
 by one rule to same master 120, n. 
 
 form of 122 
 
 statute on 122(a) 
 
 order of proceeding before master 123, n. 
 
 one rule of. 123, n. 
 
 for impertinence or scandal 123 
 
 on second or third answer 127 
 
 report of master on — 
 
 form of 123 
 
 mode of procedure before master 123(a) 
 
 to be filed 124, n. 
 
 exceptions to 125 
 
 rule for hearing exceptions to 126 
 
 effect of rule for hearing exceptions to 126(o) 
 
 as to sufficiency of examination , 129 
 
 order confirming 130 
 
 rule nisi to confirm — 
 
 form of 124 
 
 practice on '. 124(a) 
 
 scandal, for — 
 
 definition of. 119(a) 
 
 • rules as to 120, n. 
 
 form .-. 121 
 
 to point out exceptionable matter 121(5) 
 
 submission to — 
 
 effect of. 121, n. 
 
 notice of, to be given 121, n. 
 
 notice of. 125 
 
 how made 125(a) 
 
 costs on 121, n., 125(a) 
 
 rules of court as to practice on 125(a), (5) 
 
INDEX TO F0EM8 AND NOTES, 785 
 
 Exceptions — 
 
 bill, to— 
 
 costs on — PAGE. 
 
 on submission 61(o) 
 
 expunging , 67 (o) 
 
 allowance in part 67(o) 
 
 exceptions to master's report on — 
 
 form 65 
 
 time of filing 65(a) 
 
 setting down, for bearing 65(o) 
 
 entry and service of rule for argument 65(a) 
 
 notice of hearing of, dated on Sunday 65(o) 
 
 rule as to setting down for bearing 65(a) 
 
 effect of neglect to appear on 65(a) 
 
 what, may be taken 65(a) 
 
 rule for hearing upon 66 
 
 time for setting down , 66(a), 67, n. 
 
 notice of bearing upon 67 
 
 practice on setting down 67, n. 
 
 procedure on argument of. 67(a) 
 
 evidence on argument of. 67(o) 
 
 order to review report ,..,. 67(a) 
 
 expunging — 
 
 order for , 67(a) 
 
 method of 67(a) 
 
 costs on 67(a) 
 
 impertinence, for — 
 
 form for 61 
 
 what may be referred for 68(a) 
 
 constitutes 68(a), 119(o) 
 
 affidavit referred for... 68(a), 278(o) 
 
 master's report on — 
 
 form of. 63 
 
 time of making 63(a) 
 
 when considered abandoned 63(a) 
 
 by whom to be filed 68(o) 
 
 conclusiveness of. 63(o) 
 
 order to review 67(a) 
 
 confirming 68 
 
 master's summons on — 
 
 , form of 62 
 
 affidavit of service of. 63 
 
 time of service of. 63(a) 
 
 motion on, under rule — 
 
 when objection may be made by 61(o) 
 
 is a waiver of exceptions 62, n. 
 
 . of bill by 62, n. 
 
 ■ 2z 
 
786 INDEX TO POEMS AND NOTES. 
 
 Exceptions — 
 bill, to— 
 
 practice on^ page. 
 
 effect of obtaining time to answer 61(a) 
 
 how taken 61(a) 
 
 served 61(a) 
 
 statements in 61(a) 
 
 English rule 61(a) 
 
 referring — 
 
 irrelevant matter stricken out on 6 1 (a) 
 
 clerk to enter rule 61(a) 
 
 by one rule to same master. 61(a) 
 
 form of rule ". 62 
 
 mode of. 62(a) 
 
 practice on 62(a) 
 
 time and place assigned for 63(a) 
 
 when master may proceed ex parte 63(a) 
 
 practice at hearing 63(o) 
 
 rule nisi to confirm — 
 
 effect of omission to enter 63(a) 
 
 form of 64 
 
 entry of. 64(o) 
 
 service of 64(a) 
 
 scandal, reference for 61(a) 
 
 submission to — 
 
 complainant's right to make 61(a) 
 
 practice on 61(a) 
 
 costs on 61(a) 
 
 hearing of — 
 
 cause set down, on — 
 
 notice of. 172 
 
 rules as to time and practice on 172(a), 173(a) 
 
 order for 173 
 
 service of copy of order for 173(a) 
 
 master's report on foreclosure, to — 
 
 allowance of. 356, n. 
 
 when to be taken in lieu of re-reference 356, n. 
 
 upon what to be fouflded 357, n. 
 
 on the ground of irregularity 357, n. 
 
 security for costs, to — 
 
 to surety on bond for , 70(a) 
 
 how taken... 70(a) 
 
 justification on 70(a) 
 
 Executions — 
 
 advertisement on — 
 
 form of 217 
 
 statutes and practice as to 217(a), 218, n. 
 
INDEX TO FORMS AND NOTES. 787 
 
 Executions — 
 
 advertisement on — page. 
 
 time of sale stated in 219(a) 
 
 description of property in 219(6) 
 
 signing of. 219(c) 
 
 of adjournment of sale 230 
 
 statute on, in case of adjournment 230(a) 
 
 appeals, pending— 
 
 when not to issue without order for 188, n. 
 
 order for, notwithstanding ". 194 
 
 when discretionary ]94(o) 
 
 security required on, when granted 194(a) 
 
 order for, for costs on affirmance of. 201 
 
 capias ad satisfaciendum — 
 
 form of , 242 
 
 statute on 242(a), 243, n. 
 
 costs — 
 
 order for, on affirmance of appeal 201 
 
 form of, against goods and lands for 214 
 
 rule as to issuing for 214(a) 
 
 practice as to demand for 214(a) 
 
 creditor's bills, on^ 
 
 practice as to taking out '. 513, n. 
 
 issuing of, out of chancery 520(a) 
 
 forms of — 
 
 for sale of mortgaged premises 210 
 
 against goods and lauds for costs 214 
 
 payment of money 216 
 
 fi.fa. for deficiency 224 
 
 capias ad satiffaciendum 242 
 
 new, in case of death, &c. — 
 
 petition for 226 
 
 statute on 226(a) 
 
 affidavits on 227, 228 
 
 notice on 228 
 
 order for 229 
 
 orders for — 
 
 notwithstanding appeal 194 
 
 for costs on affirmance of appeal.; 201 
 
 fi.fa. on deficiency 220 
 
 new 229 
 
 principles and practice applicable to — 
 
 power of court to issue 210(a) 
 
 time of issuing 210(o) 
 
 to be recorded 210(a) 
 
 whom directed 210(o) 
 
 conform to decree 212(a) 
 
788 INDEX TO FORMS AN© NOTES. 
 
 Executions — 
 
 principles and practice applicable to — page. 
 
 return of sheriff to 212(6), 213, n. 
 
 levy not after return-day of. 214(a) 
 
 when new writ necessary after return-day 214(o) 
 
 practice on fi,.ja. for money 216(o) 
 
 what Constitutes executing writ 228(a) 
 
 return of sheriff to 212(6), 213, n,, 233(a) 
 
 unexecuted writs 234(i) 
 
 signing of return of. 234(J) 
 
 from what time writ binds 243, n. 
 
 sale under — 
 
 adjournment of. 213(a) 
 
 how made 213(a) 
 
 appointment of master to adjourn 219 
 
 statute as to adjournment of, by master 219(d) 
 
 statement of master on adjournment of. 220 
 
 conditions of. 230 
 
 practice on and nature of. 230(6) 
 
 acknowledgment of purchaser under 232, 232(a) 
 
 sheriff's statement on 233 
 
 statute on sheriff's statement 233(a) 
 
 notes on sheriff's statement of. 234(a to j) 
 
 sheriff's deed on 237 
 
 notes on sheriff's deed on 237(a), (6), (c), 238(o), (5), (c), 
 
 239(a), (6), 240(a), (6), 241(a) 
 see "advertisement," under this title, supra. 
 
 sequestration — 
 
 order for 43 
 
 writ of. ; 43 
 
 when will issue , 43(a) 
 
 statute on 242(a), 243, n. 
 
 see also " ' execution ' under Foreclosure," post. 
 "Scire facias," post. 
 Executors — • 
 
 see "Administrators and executors,'' ante. 
 Exhibits — 
 
 to be left with examiner 162, n. 
 
 examination of 162, n. 
 
 copies of. 162, u. 
 
 inspection of. 162, n. 
 
 costs of copies of. 162, n. 
 
 Extension of time — 
 
 demurrer, as affecting right of. 92(a) 
 
 partition, on — 
 
 order for, on master's report 414 
 
 practice as to order for 414(6) 
 
 when rule nisi necessary 414(6) 
 
INDEX TO POEMS AND NOTES. 789 
 
 Extension of time — 
 
 testimony, on taking — page. 
 
 notice of motion for 166 
 
 practice on 166(o) 
 
 order for, under rules 166 
 
 not under rules 166 
 
 time of service of affidavit for 167, n. 
 
 see also "Answer, ' extending time for,' " ante. 
 Feigned issue— 
 
 hearing for further directions after trial of — 
 
 notice of 252 
 
 practice in 252(a) 
 
 appeal, when not a stay on 252(o) 
 
 jury- 
 power of court to order special 246(6) 
 
 order for struck 249 
 
 motion for struck 249(a) 
 
 new trial — 
 
 notice of motion for 250 
 
 when granted 250(o), (6), 251(a) 
 
 when application for, to be made 251, n. 
 
 order for 251 
 
 reasons for granting 251(a) 
 
 practice on 251(6) 
 
 practice on — 
 
 notice of motion for, under the statute 243 
 
 order for, under the statute 244 
 
 at the hearing 245 
 
 at what time directed 245(a) 
 
 order for, appealable 245(a) 
 
 form of 246 
 
 pleadings and practice on 246(c), 247, n. 
 
 postea 249 
 
 and transcript, where returnable 249(6) 
 
 certificate of trial judge 250 
 
 statement and certificate of trial judge 250(a) 
 
 conclusiveness of verdict 250(a) 
 
 as to exceptions on trial 251, n. 
 
 principles governing — 
 
 statute as to direction of trial of. 243(a) 
 
 in case of title 244, n. 
 
 control of chancery over 244, n. 
 
 feigned issue and issue at law distinguished 244(a) 
 
 in what cases directed 245(a) 
 
 discretion of court in directing 245(a) 
 
 issue may be on court's motion 245(6) 
 
 application of relator 245(6) 
 
790 INDEX TO F0BM8 AND NOTES, 
 
 Feigned issue — 
 
 special cases, in — page, 
 
 interpleader, on 487(a) 
 
 lunacy, in case of — 
 
 notice of motion for 652 
 
 order for 654 
 
 quiet title, to 618 
 
 Filing papers, rule regarding l(<i) 
 
 Final decree — see " Decree," ante. 
 
 Foreclosure — 
 
 answer on — 
 
 of second mortgagee 107 
 
 what may be set up under 107(6) 
 
 effect of neglect to make 107(6) 
 
 defence of mistake in 334(a) 
 
 setting up a tender 345 
 
 how tender to be set up in 345(6) 
 
 effect of admission by guardian ud litem in 363, n. 
 
 appearance — 
 
 entering of, when not a stay 210(a) 
 
 of infant by clerk 50, n., 348, n. 
 
 in case of absent defendants 362, n. 
 
 bills on — 
 
 address of, in County Circuit Court 2 
 
 short form of. 326 
 
 form in complicated case 331 
 
 in case of chattel mortgage 333, n. 
 
 description of property in 334(a) 
 
 frame of. 335(a) 
 
 recitals in, rules as to 335(a) 
 
 by corporation, averments in 335(a) 
 
 statement of assignment in 8 n., 336, n. 
 
 for two mortgages 336, n. 
 
 must allege maturity of debt , 336, n. 
 
 allegation of non-payment in , 336, u. 
 
 for unpaid purchase-money 336, n. 
 
 must allege defendant's interest 340(5) 
 
 amendment of, as to parties 343, n. 
 
 amendments to, generally 343, n. 
 
 directions for drawing 345(a) 
 
 when debt payable in installments 336, n., 350(o) 
 
 prayer for receiver in 372(a) 
 
 see also title "Amendments, ' bill to,' " ante. 
 
 chattel mortgages 333, n. 
 
 collateral security for debt less than mortgage 362, n. 
 
 complainants — 
 
 when defendant may proceed as 139(o) 
 
INDEX TO FOKMS AND NOTES. 791 
 
 Foreclosure — 
 
 complainants — page. 
 
 general principles as to 331(o) 
 
 sole mortgagee 331(a) 
 
 several mortgagees 331(a) 
 
 refusal to join as 331(o) 
 
 assignee as absolute owner 331(a) 
 
 and mortgagee as 331(a) 
 
 partners as 332, u. 
 
 trustee and cesluia que trust 332, n. 
 
 executor or administrator 332, n. 
 
 surviving co-mortgagee 332, n. 
 
 executors who have qualified 332, n. 
 
 foreign administrator or executor 332, n. 
 
 parties acting in official capacity 332, n. 
 
 husband and wife, when not to be 332, u. 
 
 encumbrancer, when not to be 333, n. 
 
 chattel mortgagee 333, n. 
 
 confirmation of report — 
 
 when rule nisi not necessary 107(5), 347(a), 355(a) 
 
 is necessary 356, n. 
 
 costs on — 
 
 for drawing tickets 22(6) 
 
 mortgagee not answering not entitled to 107(6) 
 
 decree to include...., 326(a) 
 
 for searches 327, u. 
 
 where there are more than one mortgage 336, n. 
 
 cross-bill — 
 
 relief by 334(a) 
 
 decree on — 
 
 when to be made after report 107(6) 
 
 power of court to make 326(o) 
 
 statute on 350(a) 
 
 final, pursuant to master's report 353 
 
 after report, no infants 355(a) 
 
 in case of infants 348, n., 355(a) 
 
 rules on 355(a) 
 
 no exceptions to report, in case of. 347(a), 356, u. 
 
 in case of forfeiture whether money all due or not 356, n. 
 
 interest on 359(a) 
 
 final, for sale of whole of premises 361 
 
 on second mortgage 361(a) 
 
 must conform to bill 361(a) 
 
 satisfaction of. 362, n. 
 
 by agreement 362, n. 
 
 effect of, as binding party 362, n. 
 
 on prior mortgagee 362, n. 
 
792 INDEX TO FORMS AND NOTES. 
 
 Foreclosure — 
 
 decree on — page. 
 
 appearance of absent defendant ■■. 362, n. 
 
 in case of collateral security to be for actual debt 362, n. 
 
 when not to bind cestuis que trust 362, n. 
 
 not to be made on unsworn answer of guardian 363, n. 
 
 for sale of part of premises against infants and others 364 
 
 final, after report for sale of part, not all due 365 
 
 upon report for sale of residue 367 
 
 special, in favor of complainant and defendants 368 
 
 to order sale in inverse order of alienation 368(a), 369, n. 
 
 deed on — 
 
 see under "execution on," this title, 
 defences to — 
 
 what allowed as set-off. 107(6) 
 
 matters in avoidance not a 107(6) 
 
 error in deed of mortgagor not a 107(6) 
 
 rights of third party against mortgagor not a 107(6), 342, n. 
 
 tender as 345(6) 
 
 acts of complainant as 351, n. 
 
 defendant's carelessness not a 351, n. 
 
 receipt of interest after due as 351, n. 
 
 extension of time of payment as 351, n. 
 
 defendants on — 
 
 guardian ad litem 49(6), 50, n., 53(a), 54(a), 55(a), 56(a) 
 
 refusal to join as complainant 331(a) 
 
 general principles regarding 340(6) 
 
 owner of premises must be 341, u. 
 
 when mortgagee who has assigned not to be 341, n. 
 
 subsequent encumbrancers as 341, n. 
 
 first mortgagee not to be 341, u. 
 
 prior encumbrancers 341, n. 
 
 parties having interest in subject-matter to be 341, n. 
 
 cestui que trust and trustee 341, n. 
 
 junior encumbrancers as 341, u. 
 
 when remaindermen not to be 342, n. 
 
 who are necessary parties 341, n., 342, n. 
 
 proper parties 341, n., 342, n. 
 
 when mortgagor not to be 341, n., 342, u. 
 
 executor of co-mortgagee as 332, n., 342, n. 
 
 widow of mortgagee as 342, n. 
 
 owner by unrecorded assignment as 342, n. 
 
 when assignor not to be 342, n. 
 
 heirs-at-law, &c., of husband not to be 342, n. 
 
 assignee of bankrupt, as 342, n., 343, n. 
 
 receiver of corporation after pro eonfesso not to be 343, n. 
 
 purchasers pending the bill 343, n. 
 
INDEX TO FORMS AND NOTES. 793 
 
 Poreclosure — 
 
 defendants on— page. 
 
 encumbrancers pending the bill 343, n. 
 
 purchaser on execution pending the bill 343, n. 
 
 lunatic, as 343, ii. 
 
 guardian of lunatic, as.... 343, n. 
 
 married woman, as , 343, n. 
 
 when judgment creditor to be 344, n. 
 
 executors, &c., of deceased mortgagor, as 344, n. 
 
 in case of unknown parties 344(a) 
 
 see also "Absent defendants," ante. 
 
 depositions on hearing before master, rule on 356, n. 
 
 directions to solicitor 326(a) 
 
 evidence on — 
 
 matters in avoidance, how proved 107(6) 
 
 in case of infants 348, n., 355(o) 
 
 after decree pro confeiso 34(o), 356, n. 
 
 exceptions to report on — 
 
 setting down cause for hearing on 347(o) 
 
 when allowed and practice on 355(a), 356, n., 357, n. 
 
 execution on — 
 
 execution for sale of mortgaged premises 210 
 
 power of court to issue 210(a) 
 
 when will issue , 210(a) 
 
 appearance not to stay 210(a) 
 
 to be recorded 210(a) 
 
 what officer directed 210(a) 
 
 when sale under, to be in parcels 211(a) 
 
 description of premises in 211(6) 
 
 to conform to the decree 212(a) 
 
 return of. 212(6), 233(a) 
 
 adjournment of sale under 213(a) 
 
 sale under, not to be on a holiday 213(a) 
 
 on Saturday afternoon 213(a) 
 
 under, by whom and how made 213(a) 
 
 place of sale 213(a), 214, n. 
 
 disputed bid on , 214, n. 
 
 against goods and lands for costs 214 
 
 rule as to costs 214(a) 
 
 no levy after return-day 214(a) 
 
 when new writ is necessary 214(a) 
 
 advertisement of sheriff's or master's sale on 217 
 
 method of advertising on 217(a), 218, n. 
 
 hour and place of sale in advertisement 219(a) 
 
 description of premises in advertisement 219(6) 
 
 signing advertisements on 219(c) 
 
 appointment of master, &c, to adjourn sale on 219 
 
794 INDEX TO FOEMS AND NOTES. 
 
 Foreclosure — 
 
 execution on — page, 
 
 statute as to adjournments 219(d) 
 
 statement of officer making adjournment 220 
 
 order for fia-i facias for deticiency 220 
 
 statute as to deficiency 220(o,) 
 
 abstract of decree for deficiency 222 
 
 eflfect of abstract of decree 222(a), 223, n. 
 
 fierifacias for deficiency 224 
 
 petition for new, on death of sheriff. 226 
 
 statute as to disability, &c., of sheriff. 226(o) 
 
 affidavits to petition for new 227, 228 
 
 notice under petition for new 228 
 
 what constitutes executing the writ 228(a) 
 
 order for new, in case of death of sheriff. 229 
 
 advertisement in newspapers of adjoiu^ment 230 
 
 statute as to advertisement of adjournment 230(a) 
 
 conditions of sale on 230 
 
 statute of frauds as affecting sales under...., 230(J) 
 
 who to fix terms of sale on 231, n. 
 
 purchaser's memorandum 232 
 
 sherifi''s or master's statement on sale on 233 
 
 statute as to sheriff's, &c., statement 233(o) 
 
 notes on sheriff's statement 234(a to J) 
 
 sheriff's report on sale on 235 
 
 statute on sherifl"s report on sale on 235(a) 
 
 rule on sheriff's report on sale on 235(a) 
 
 sheriff's affidavit to report 236 
 
 order confirming sale under 236 
 
 deed by sheriff or master for land sold on 237 
 
 deed on — 
 
 what estate vests under 237(a) 
 
 recitals in 237(6) 
 
 variance in, as to 237(6) 
 
 as evidence in case of non-recital of notice 237(c) 
 
 to assignee of bid 239(a) 
 
 apt words of conveyance in 239(6) 
 
 statute as to evidence of recitals 240(a) 
 
 execution of, by deputy she iff. 240(a) 
 
 time of taking effect 240(5) 
 
 delivery of, out of state 240(6) 
 
 title under, when not affected by 240(5) 
 
 acknowledgment of. , 241(a) 
 
 oath or affirmation to be endorsed on conveyance.. 241 
 
 statute as to endorsement of oath 241(a) 
 
 execution of, by successor of officer 241(a) 
 
INDEX TO POEMS AND NOTES. 795 
 
 Foreclosure — 
 
 infant defendants on — page. 
 
 appointment of guardian ad litem 49(6), 348, n. 
 
 appearance of, by clerk 50, n., 348, n. 
 
 reference when there are 348, n. 
 
 report of master when there are 348, n. 
 
 interest — 
 
 rate of, allowed on bond and mortgage 359(a) 
 
 decree 359(a) 
 
 in case of partial payments, how computed 359(a) 
 
 when in excess of penalty of bond 359(a) 
 
 interlocutory decree on — 
 
 non-resident and infant defendants, money due 347 
 
 signing of, after order extending time to answer 349, n. 
 
 pro confesso and reference, money not all due 350 
 
 statute as to money not all due 350(a) 
 
 lis pendens, statute of, not to apply to 343, n. 
 
 name, christian, of married woman when unknown — 
 
 affidavit of. 330 
 
 statute as to unknown name 330(a) 
 
 parties — 
 
 complainant 331(a) 
 
 defendant 340(6) 
 
 may be added at any time 341, n. 
 
 want of, objection to at hearing 341, n. 
 
 on appeal 342, n. 
 
 see also " complainant," " defendant," this title, supra. 
 
 receivers — 
 
 petition for, of rents, &c., of mortgaged premises 372 
 
 when and how appointed 372(a) 
 
 prayer in bill for, to be specific 372(a) 
 
 petition for, to be verified 374(a) 
 
 order to show cause on petition for 375 
 
 service of, how made 375(o) 
 
 ' appointing 375 
 
 bond of... , 376 
 
 attornment of tenants to 376(a) 
 
 fees of. 376(6) 
 
 amount of bond of. 376(c) 
 
 notice to tenant to attorn to 540 
 
 attornment by tenant to 540 
 
 affidavit to account by 540 
 
 recovery of balance on strict 363, n. 
 
 reference on — 
 
 when there are outstanding encumbrancers 107(6) 
 
 non-resident and infant defendants 347 
 
 rules governing 347(a), 348, n., 349, n. 
 
796 INDEX TO FORMS AND NOTES. 
 
 Foreclosure — 
 
 reference on — page. 
 
 when consent to, is necessary 348, n., 349, n. 
 
 not necessary to set down for hearing to obtain 349, n. 
 
 on pro confesso, money not all due 350 
 
 statute when money is not all due • 350(a) 
 
 master's summons on 354 
 
 rules as to service, &c., of summons on 354(a) 
 
 rule as to hearing on 354(o) 
 
 effect of not appearing at hearing 354(a) 
 
 report on — 
 
 where there is no order of reference 352 
 
 rule when no order of reference necessary 352(o) 
 
 when mortgage is due and there are infant defendants 355 
 
 rules as to priority of claims in 107(6), 355(a) 
 
 rule as to confirmation of. 355(o), 356, n. 
 
 proofs, when to be filed with 348, n., 856, u. 
 
 exceptions to 356, n., 357, n. 
 
 where money is not all due 359 
 
 interest, how computed in 359(o) 
 
 for sale of residue to satisfy balance due....... 360 
 
 sale on — 
 
 premises to be sold in inverse order of alienation 368(a) 
 
 effect of release of part of premises 369, n. 
 
 see also " execution," this title, supra. 
 
 satisfaction of decree 362, n. 
 
 stay of execution — 
 
 entering of appearance not to 210(o) 
 
 in case of absent defendant 362, n. 
 
 strict foreclosure — 
 
 bill for 386 
 
 parties to 386(a) 
 
 decree for 387 
 
 estate acquired under 387(a) 
 
 effect of, on bond 363, n., 387(a) 
 
 redemption under 387(a) 
 
 final order for, upon default of defendant 388 
 
 affidavit of default 388(a) 
 
 when decree for, not sustained 388(a) 
 
 bill for, against an infant 389 
 
 general principles governing infants on 889(o) 
 
 interlocutory decree on 393 
 
 order confirming master's report on.... 395 
 
 master's report of defendant's default 396 
 
 complainant's solicitor's affidavit of attendance 397 
 
 notice to guardian ad litem on..... 398 
 
 final decree against infant on 399 
 
INDEX TO FORMS AND NOTES. 797 
 
 Foreclosure — 
 
 summons by master — PAGE. 
 
 to outstanding encumbrancers 107(6) 
 
 on reference for surplus money 258(a) 
 
 form of 354 
 
 issuing and service of. 354(a) 
 
 surplus money — 
 
 controversies as to, how settled 355(a) 
 
 see also title " Surplus money," post. 
 
 tender — 
 
 answer setting up 345 
 
 defence of, how to be set up 345(6) 
 
 effect of. 345(5) 
 
 what is a good 345(6) 
 
 statute on 345(6), 346, n. 
 
 tickets on — 
 
 form of. 22,23 
 
 practice as to 22(6) 
 
 aflSdavit of service of. 22(6) 
 
 fees on 23, n. 
 
 by whom supplied 23(o) 
 
 writ of assistance — 
 
 against whom issued 202(o) 
 
 who are entitled to 202(a) 
 
 title not to be tried under 202(a) 
 
 notice and demand of possession 203 
 
 demand and exhibit of deed, how made 203(a) 
 
 proof of demand and exhibit of deed necessary 203(6) 
 
 service of notice and demand 203 
 
 petition for 204 
 
 afSdavit to petition 205 
 
 notice of motion for order for possession 206 
 
 proof of service of notice of motion 206 
 
 hearing party in possession on motion for 206(a) 
 
 notice to be for regular motion-day 206(a) 
 
 amendment of petition as to part of premises 206(6) 
 
 practice at hearing to obtain order for possession 206(6) 
 
 order for possession ■ 206 
 
 proof of service of order for possession 207 
 
 clerk to furnish copies of order for possession 207(a) 
 
 notice of motion for 208 
 
 when allowed 202(a), 208(a) 
 
 order for ;.. 208 
 
 writ of. 209 
 
 costs on 209(a) 
 
798 INDEX TO FOBMS AND NOTES. 
 
 Foreign corporations — page. 
 
 introduction to bill by 5 
 
 proof of corporate existence of. 5(a) 
 
 as an absent defendant 32, u., 33, u. 
 
 Forfeiture in case of mortgage — 
 
 condition for, to be explicit 351, n. 
 
 acts of the complainant as a defence to 351, n. 
 
 in case of carelessness of defendant 351, n. 
 
 receipt of after due interest as a waiver of. 351, ii. 
 
 extension of time as a defence to 351, n. 
 
 Ouardian ad litem for infants, lunatics, &c. — 
 appearance by — 
 
 form of. 52 
 
 in case of foreclosure 50, n., 348, n. 
 
 sale of land limited over 688 
 
 appointment of — 
 
 affidavits on — 
 
 in case of non-resident infants 50, n. 
 
 of notice 51 
 
 non-residence 51 
 
 subscribing witness to consent and age 54 
 
 in case of lunatic 54(a) 
 
 of age 56 
 
 witness to petition 56 
 
 consent to act — 
 
 of guardian, infant over fourteen 53 
 
 rule as to 53(a) 
 
 of guardian, infant under fourteen 56 
 
 notice on — 
 
 to infant over fourteen years 49 
 
 service of, on resident 50, n. 
 
 non-resident 50, n. 
 
 to infant under fourteen years 50 
 
 service of, on person in loco parentis 50(a) 
 
 to lunatic 55, n. 
 
 order for — 
 
 on application of complainant 51 
 
 infant's petition 54 
 
 in case of lunatic 54(a) 
 
 when infant under fourteen years 56 
 
 petition for — 
 
 by minor over fourteen years 53 
 
 rule as to 53(a) 
 
 on behalf of minor under fourteen 55 
 
 by whom presented 53(a), 55(a) 
 
INDEX TO FOBMS AND NOTES. 799 
 
 <jruardian ad litem for infants, lunatics, &c. — 
 pleadings by — 
 
 answer by — page. 
 
 formal by clerk 50, n. 
 
 for infant 104 
 
 effect of. lOKi) 
 
 for infant and adults 104 
 
 lunatic, &c , 105 
 
 infants in partition 106 
 
 affidavits to 114, 114(o) 
 
 effect of unsworn 363, n. 
 
 bill by— 
 
 for infant 3, 3(6), 4, n. 
 
 lunatic 4, 4(a), 7, 7(a) 
 
 practice in case of — 
 
 in case of concealed infants 20, n. 
 
 suit to be brought by next friend 3(6), 4, n., 53(o) 
 
 who to be appointed 53(o) 
 
 in case of lunatic, clerk to be appointed 54(a) 
 
 when defendant is aged or infirm 56(a) 
 
 court will act on its own motion 56(a) 
 
 husband may be, for infant wife 104(6) 
 
 when general guardian of lunatic to be 105(a) 
 
 • defence to be by guardian 4, n., 53(a), 105(o) 
 
 new appointment in case of death 105(a) 
 
 clerk of the court when appointed 49(6), 50, n., 54(a), 348, n. 
 
 court rules on 49(6), 50, u., 53(a), 348, n. 
 
 proehdn ami — 
 
 when suit to be brought by 3(6), 4, n., 53(a) 
 
 -Guardian, general or special — 
 
 lunatics, idiots and drunkards, in case of — 
 
 appointment of. 654(a) 
 
 see also " Lunatics, &c., ' sale of land of,' " post. 
 sale of land of infant, in case of — 
 
 order appointing for 671(a), 673(a), 674 
 
 appointment for, in case of death 674(5) 
 
 see also "Sale of land, 'infant, of,'" post. 
 sale of land limited over, in case of — 
 
 certificate as to no guardian 687 
 
 order appointing 687 
 
 see also "Sale of land, 'limited over,'" post. 
 ■Guardian, non-resident — 
 
 removal of ward's property, by — 
 
 petition for 700 
 
 affidavit to petition 701 
 
 notice of application for 702 
 
 order for 702 
 
 statutes as to 666(a), 667, n., 700(a), 701, n., 726(a) 
 
800 INDEX TO FOBM8 AND NOTES. 
 
 Habeas corpus — page. 
 
 application for, after writ of attachment 45(6) 
 
 petition for 476 
 
 statute on 476(a) 
 
 power of chancery over 476(a) 
 
 in case of infants 476(a) 
 
 affidavit to petition for 478 
 
 writ of. 478 
 
 endorsement of writ of. 479 
 
 proof of service of writ of. 479 
 
 order for custody of infant 479 
 
 Handwriting, rule as to legibility of. 1(a) 
 
 Hearing — 
 
 advisory master bv — 
 
 see "Vice Chancellor," this title, 
 amendments — 
 
 to bill at or after 135(a) 
 
 answer after cause set down for 177(a) 
 
 argument of the cause on — 
 
 papers to be furnished at 173(i) 
 
 opening and reply on 173(6), 174, n. 
 
 on bill and answer 174, n. 
 
 costs on reply allowed 174, n. 
 
 assigning day for final 171(a) 
 
 bringing on cause — 
 
 rule as to 172(a) 
 
 costs pn failure in case of. 172(a) 
 
 cause standing over at — 
 to add parties — 
 
 order for.. 176 
 
 English practice on 176(6) 
 
 want of parties, time for objection to 176(6) 
 
 on court's motion 176(6) 
 
 practice in New Jersey on 176(6) 
 
 order for, not appealable 176(5) 
 
 to supply proofs — 
 
 order fur 177 
 
 in case of defects in testimony 177(a) 
 
 newly-discovered testimony 177(a) 
 
 demurrer, of 90, n., 91, n. 
 
 evidence on — 
 
 notice of using documentary paper at 165 
 
 rule as to documentary paper at 165(a) 
 
 when cause heard on bill and answer 174, n. 
 
 exceptions to master's report, on — 
 
 time and service of order setting down 172(a) 
 
 order for 173 
 
INDEX TO F0BM8 AND NOTES. 801 
 
 Hearing — 
 
 exceptions to master's report, on — page. 
 
 on what day of term to be heard 173(a) 
 
 what notice to be given 173(o) 
 
 copy of order, wlien to be served 173(o) 
 
 in case of no order 173(a) 
 
 feigned issue, on — 
 
 notice of, for further directions 252 
 
 practice on 252(a) 
 
 non-attendance at. effect of — 
 
 of CQmglaijaaint 141(6), 171(a), 174, ii. 
 
 defendant 174, n. 
 
 note of issue to be furnished 171(a) 
 
 notice of — 
 
 form of 172 
 
 service of 172(a) 
 
 for what term to be given 172(a) 
 
 on exceptions 173(a) 
 
 reserving further consideration on 180(c), 181, n.,(a) 
 
 retaining bill at, with leave to bring action — 
 
 decretal order for 177 
 
 in what cases allowed 177(6) 
 
 does not admit complainant's equity 177(6) 
 
 in case of dower 177(6) 
 
 ejectment 178, n. 
 
 specific performance 178, n. 
 
 when whole equity is before the court 178, n. 
 
 in case of default in bringing action 178(a) 
 
 rule for 171 
 
 setting down for— 
 
 for what term to be 171(a) 
 
 time for, on bill and answer 171(a) 
 
 priority of causes on 171(a) 
 
 issue upon plea 171(a) 
 
 for argument upon plea or demurrer 171(a) 
 
 when equities settled 171(a) 
 
 for what day of term 171(a), 172(a) 
 
 when court open for 172(o) 
 
 submission of cause without argument at — 
 
 form of 173 
 
 how to be made 173(6) 
 
 briefs on 173(6) 
 
 Vice Chancellor, by — 
 
 notice of application to, for day for 174, n. 
 
 designation of day and notice of .'. 175, n. 
 
 adjournments of. 175, n. 
 
 in case of absence of material witness 175, n. 
 
 3a 
 
802 INDEX TO F0EM8 AND NOTES. 
 
 Hearing — 
 
 Vice Chancellor, by — page. 
 
 argument at 175, n. 
 
 mode of procedure 175, n, 
 
 settling and signing report by, for appeal 175, n. 
 
 advisory master same as Vice Chancellor 175, u. 
 
 order of reference to 176 
 
 statute as to reference to 176(a) 
 
 order of reference to, discretionary 176(a) 
 
 application for, how made 176(a) 
 
 proceedings to final decree before 176(a) 
 
 see also "Appeals," ante 
 
 "Examination of witnesses, 'suppression of depo- 
 sitions,' " ante. 
 " Rehearing," post. 
 Heir-at-law — 
 
 plea and answer by 98 
 
 of husband as a party in foreclosure 342, n. 
 
 prayer for receiver over estate of testator 539 
 
 decree for specific performance against 630 
 
 Holiday — 
 
 writs returnable on 19, n. 
 
 in case of pleading due on 104(a) 
 
 not to be computed as time for taking testimony 161, n. 
 
 execution sale not to be on.,.. 213(a) 
 
 as to Saturday afternoon 213(a) 
 
 Husband and wife — 
 answer, by — 
 
 petition for separate (two forms) 82 
 
 practice as to separate 82(a) 
 
 order for separate 85 
 
 suppressing separate 86 
 
 joint 104, 104(c) 
 
 separate, by leave 104 
 
 in partition ....110, 112 
 
 bills by- 
 introduction as co-complainants 2 
 
 by wife suing alone 2 
 
 husband a defendant 3 
 
 practice as to joinder of 3(a), 93(a) 
 
 wife suing alone 3(a), 104(rf) 
 
 subpoena, service of, on — 
 
 how made 19 n. 
 
 in case one is a non-resident 28(n.) 
 
 Idiots — 
 
 answer by — 
 
 title of. 105 
 
 to be put in by guardian 105(a) 
 
INDEX TO FORMS AND NOTES. 803 
 
 Idiots — 
 
 bill by— PAGE. 
 
 introduction of. 4 
 
 to be put in by guardian, &c 4(a) 
 
 see also " Lunatics, idiots, &c.," post. 
 Impertinence — 
 
 affidavits, in 68(a), 278(a) 
 
 definition of 68(a), 119(a), 120, u. 
 
 see also " Exceptions, ' answer to,' " ante. 
 " Exceptions, ' bill to,' " ante. 
 Infants — 
 
 absent defendants as — 
 
 affidavit of non-residence of 51 
 
 answer by — 
 
 title of 104 
 
 by adults and 104 
 
 effect of. 104(6) 
 
 by married woman 104(6) 
 
 in partition suit 106 
 
 appearance by — 
 
 to suit. 52 
 
 in foreclosure 50, n., 348, n. 
 
 on sale of land limited over 688 
 
 bill by- 
 introduction of. 3 
 
 statement of residence in 3(6), 4, n. 
 
 practice as to 4, n. 
 
 costs, liability for 4, o. 
 
 custody of — 
 
 statute as to 476(a) 
 
 order for 479 
 
 decree against 355(a) 
 
 defence by 4, n., 53(a) 
 
 subpoena, service of, against — 
 
 how to be made 19, u. 
 
 in case of concealment 19, n., 20, n. 
 
 see also " Foreclosure," ante. 
 
 " Guardian ad litem," ante. 
 "Sale of lands, 'infants of.' " 
 
 ' limited over.' " 
 Informations — 
 
 introduction to — 
 
 common form 6 
 
 where there is a relator.... 7 
 
 on behalf of a lunatic 7 
 
 practice on — 
 
 when the suit concerns the state 6(a), 7, n. 
 
 on behalf of a lunatic 4(a), 7(a) 
 
804 INDEX TO FOKMS AND NOTES. 
 
 In forma -pauperis — 
 
 see title " Paupers," post. 
 lojunction — 
 
 affidavits to obtain — page. 
 
 to be special 16, 16(6), 288, n. 
 
 when to be filed 287, n. 
 
 to be made before bill and annexed to 287, n. 
 
 of merits 287, n. 
 
 by whom to be made 287, n. 
 
 may be dispensed with in interpleader 287, n. 
 
 to show actual or apprehended injury 288, r.. 
 
 what averments necessary in 288, n. 
 
 ex parte may be read by defendant before answer 289, n. 
 
 forms of. 16, 296, 299 
 
 in partition 411 
 
 allowance of — 
 
 common order for 286 
 
 general principles governing 286(a), 287, n. 
 
 court always open to grant 286(a), 287,ti. 
 
 against corporation or staying public work 287,n. 
 
 to be mainly on equitable grounds 287, n. 
 
 after answer filed 289, n. 
 
 on behalf of attorney-general 289, n. 
 
 against whom issued 291(o) 
 
 in favor of mortgagee to restrain waste 294(a) 
 
 not allowed on prayer for account only 294(a) 
 
 special order for 299 
 
 by master 300(o) 
 
 amendments — 
 
 to bill, as to prayer for process 11(a), 13(c), 136, n. 
 
 when answer excepted to 124, n. 
 
 for various reasons 133, u., 134, n. 
 
 second 134, n. 
 
 application for — 
 
 pending appeal, security on 194(a) 
 
 may be made in term or vacation 286(a) 
 
 affidavits in support of. 287, n. 
 
 general practice on 288(a), (6), 289, n. 
 
 to be made by attorney-general, not by relators 289, n. 
 
 motion for, for what day noticed 289, n. 
 
 in case of special character 289, n. 
 
 when not allowed ex parte 289(a) 
 
 day for hearing rule to show cause 289(a) 
 
 bill for— 
 
 to contain prayer for injunction and subpcena 13, 13(c) 
 
 verification of, to be special 16, 16(6), 288, n. 
 
 must be filed .' 290(6) 
 
 praying cancellation of bond, &c , and for 566 
 
INDEX TO FOBMS AND NOTES. 805 
 
 Injunction — 
 
 bond on — page. 
 
 allowing injunction under rule 127 301 
 
 on ex parte allowance.... 301(a) 
 
 rule as to '. 301(o), 302(a) 
 
 statute as to 302(a), 303(a) 
 
 on stay of ejectment suit after issue joined 302 ' 
 
 personal action after judgment 303 
 
 statute as to, on stay of personal action 303(a) 
 
 on bill of interpleader .303(a) 
 
 prosecution of. 307(6) 
 
 order for delivery of, for prosecution at law 308 
 
 breach of — 
 
 not allowed on technical grounds 19, n. 
 
 statute as to 294(a) 
 
 contempt for violating — 
 
 costs on 49(a) 
 
 counsel fee on 49(a) 
 
 fine on 49(a) 
 
 habeas corpus to produce contemner 45(6) 
 
 in presence of Vice Chancellor 45(a) 
 
 interrogatories on — • 
 
 rule for defendant's examination on 47 
 
 entry and service of rule 47(o) 
 
 effect of neglect to enter rule 47(a) 
 
 form of 47 
 
 answer to 47 
 
 answers to be ore terms 48, n. 
 
 aflSdavits not received on 48, n. 
 
 defence to, on 48, n. 
 
 proof of, on 48, n. 
 
 settlement by master of. 48, n. 
 
 report on 48, n. 
 
 order convicting defendant on 48 
 
 orders on — 
 
 to show cause 45 
 
 be signed by Chancellor 45(a) 
 
 affidavits used to obtain to be iiled 45(a) 
 
 for attachment 45 
 
 to whom directed 45(6) 
 
 against party in prison 45(6) 
 
 convicting defendant after examination 48 
 
 writ of attachment on — 
 
 form of 38 
 
 time between teste and return 45(6) 
 
 number of defendants in 45(6) 
 
 defendant to be retained in custody on 46, n. 
 
806 INDEX TO FOEM8 AND NOTES. 
 
 Injunction — 
 
 contempt for violating — 
 
 writ of attachment on — page. 
 
 endorsement of. 46, n. 
 
 to be tested and sealed 46, n. 
 
 no arrest on Sunday under 46, n. 
 
 after return-day of. 46, u. 
 
 bond for appearance to 46, n. 
 
 form of appearance to 46 
 
 practice on appearance to 46(a) 
 
 nature of. 49(a) 
 
 see also " violation of," this title. 
 
 continuance of, pending appeal 194(a) 
 
 damages by — 
 
 notice of motion to ascertain 306 
 
 practice on ascertaining 306(6) 
 
 order to show cause on motion to ascertain 307 
 
 of reference to ascertain 307, 307(o) 
 
 ascertaining and directing payment of 308 
 
 denial of — 
 
 order on 290 
 
 endorsement on bill on 290(6) 
 
 dissolution of — 
 
 defective jurat no cause for 17(6) 
 
 in case no subpoena issued 13(c), 20, n. 
 
 misjoinder of husband and wife as ground for 93(a) 
 
 allowance of plea is a 101(a) 
 
 motion for, when plea stands for answer 103(a) 
 
 filing exceptions to answer as affecting 122, n. 
 
 time for service of notice of motion for 275, n. 
 
 in case of insufficient affidavits or answer 288, n. 
 
 notice of motion to dissolve or modify 304 
 
 how and when may be dissolved 304(a), 305(a) 
 
 papers used on motion for 304(a) 
 
 affidavits on motion for, rule as to 304(a) 
 
 motion for, before answer 304(a) 
 
 statement of grounds for, in notice of motion 304(o) 
 
 motion for, when to be heard 304(a) 
 
 answer as affecting motion for , 305 n. 
 
 laches as a ground for 305(a) 
 
 death as a cause for 305, n., 306(o) 
 
 on perfecting answer on bill for discovery 306, n. 
 
 order for 305 
 
 unless cause be revived 306 
 
 on denial of subject-matter on discovery 496(a) 
 
 election between suit and action on 117(a), 280(o) 
 
INDEX TO P0KM8 AND NOTES. 807 
 
 InjuQCtion — 
 
 injunction master — page. 
 
 petition to 300 
 
 report by 300 
 
 designation of 300(a) 
 
 practice before 300(a) 
 
 rule for, on allowance by 301 
 
 insolvent corporations, against — 
 
 bill for 529 
 
 order to show cause with ad iwienm 534 
 
 for 537 
 
 interpleader, order for, on bill of 485, 485(a) 
 
 marriage, to restrain record of 474, 475 
 
 notice of motion for — 
 
 form of .*. 288 
 
 service of, when defendants reside out of state 288(a) 
 
 and practice on 289, n. 
 
 statement of grounds for, in 304(a) 
 
 order to show cause on application for — 
 
 form of, with restraint 289 
 
 service of 289(a) 
 
 rule of court regarding 290, n. 
 
 answer of corporation not evidence on 290, n. 
 
 insolvent corporations, in case of 634 
 
 parties against whom awarded 291(a) 
 
 perpetual after decree 295 
 
 petition for— 
 
 to slay waste after bill filed 295, 296 
 
 decree 297, 299 
 
 where bill is presented to a master 300 
 
 prayer for relief in bill for, to be special 11(a) 
 
 preliminary — 
 
 when not granted 288, u. 
 
 form of 291 
 
 restraining action at law — 
 
 form of 292 
 
 ground of. 292(o) 
 
 before verdict , 292(a) 
 
 in case of manifest wrong 292(a) 
 
 rule as to, before answer filed 292(o) 
 
 after verdict 302(o), 803(a) 
 
 in case of ejectment suit 302(a) 
 
 definition of Eev., "Chancery," ? 80 303(a) 
 
 restraining order in nature of — 
 
 form ;.. 289 
 
 service of. 289(a) 
 
 second writ of, when will issue 295(o) 
 
808 INDEX TO FOEM8 AND NOTES. 
 
 Injunction — 
 
 service of — page. 
 
 mode of. 291(a) 
 
 time and return of 291(a) 
 
 sheriff, restraining official acts of. 13(c) 
 
 special prayer for, necessary ll(i)j 13, 13(c) 
 
 subpoena to be taken out with 291(a) 
 
 Vice Chancellor may grant 300(a) 
 
 violation of — 
 
 before service of writ, when punishable. 291(a) 
 
 attachment in case of. 301(a) 
 
 waste, in case of — 
 
 form of, to stay , 293 
 
 to restrain 293(o), 294(a), 297(a) 
 
 punishment for breach of, to stay 294(a) 
 
 petition for, after bill filed to stay 295 
 
 verification of petition 296 
 
 to stay waste after decree 297 
 
 verification of petition 299 
 
 writ of — 
 
 preliminary ,.... 291 
 
 what to contain 291(a) 
 
 when must be issued 291(a) 
 
 service of, how made 291(a) 
 
 to-stay action at law 292 
 
 waste 293 
 
 perpetual after decree 295 
 
 Inquiry — 
 
 rules as to 30(a) 
 
 affidavit of 31 
 
 what constitutes "diligent and careful" 32, n. 
 
 Inquisition of lunacy — 
 
 see title " Lunatics, idiots and drunkards," posl. 
 Insolvent corporations — 
 
 answer by 533(a) 
 
 bill against — 
 
 for injunction and receiver of. 529 
 
 statements in 530, u. 
 
 claims against — 
 
 order limiting 543 
 
 to show cause in case of 544 
 
 extending time for admitting 544(a), 545(a) 
 
 order admitting '545 
 
 appeal from receiver's refusal of 550 
 
 creditors of — 
 
 to act by common solicitor 530, 
 
 bill by one for all 530(a) 
 
INDEX TO F0KM8 AND NOTES. 809 
 
 Insolvent corporations — 
 
 creditors of — page. 
 
 may unite in one bill 530(a) 
 
 order limiting 543 
 
 to show cause as to claim of. 544 
 
 practice on claims of 544(a), 545(a) 
 
 order admitting claim of. 545 
 
 deed of receiver of. 546 
 
 exceptions to master's report on receiver's account 550 
 
 final dividend and discharge of receiver, order for 552 
 
 injunction — 
 
 order to show cause 534 
 
 for 537 
 
 insolvency of— 
 
 statute on 529(a) 
 
 how to judge of. 530, n. 
 
 proof of. 530, n. 
 
 inventory, in case of — 
 
 statute on 536, n. 
 
 affidavit to 538 
 
 master — 
 
 reference to 547 
 
 report of. 548 
 
 practice on return of report of. 548(a), 549, n. 
 
 exceptions to report of. 550 
 
 orders — 
 
 to show cause for injunction and receiver 534 
 
 appointing receiver 535 
 
 for injunction 537 
 
 appointing receiver over railway. 541 
 
 limiting creditors 543 
 
 to show cause to admit claim 544 
 
 admitting claim 545 
 
 confirming receiver's sale of property 545 
 
 of reference to state receiver's account 547 
 
 confirming sale of claims due 551 
 
 for final dividend and discharge of receiver 562 
 
 discharging receiver 555 
 
 petition, in case of — 
 
 by creditor. 529(a) 
 
 complainant for receiver's discharge 553 
 
 receiver for his discharge 554 
 
 practice, in case of — 
 
 on application for receiver 534(a) 
 
 objections to master's reports 548(o) 
 
 appeal : 551, n. 
 
 preferences by 530, n. 
 
810 INDEX TO FOEM8 AND NOTES. 
 
 Insolvent corporations — 
 receiver of — 
 
 account of — page. 
 
 affidavit to 540 
 
 order of reference to state 547 
 
 master's report on 548 
 
 exceptions to master's report on 550 
 
 affidavits of — 
 
 to inventory 538 
 
 account 540 
 
 appeal — 
 
 from determination of. 550 
 
 statute on 550(a), 551, n. 
 
 . statements in petition of. 551, n. 
 
 issue on answer 551, n. 
 
 procedure on 551, n. 
 
 appointment of — 
 
 bill for 529 
 
 order to show cause on 534 
 
 notice of application for 534 
 
 practice on 534(a) 
 
 affidavit of service of. 535 
 
 order for 535 
 
 statute as to 53o(a) 
 
 to whom refused 536, u. 
 
 order for, over railroad 541 
 
 attornment — 
 
 notice to tenant by 540 
 
 by tenant to 540 
 
 bond of — 
 
 form 537 
 
 petition for vacating 554 
 
 certificate of — 
 
 form , 555 
 
 endorsement 556 
 
 form 556, 557 
 
 deed of 546 
 
 discharge of — 
 
 order for final dividend and 552 
 
 petition by complainant for 553 
 
 receiver for 554 
 
 order for 555 
 
 notice of application for — 
 
 form 534 
 
 practice on 534(o) 
 
 affidavit of service of 535 
 
INDEX TO FORMS AND NOTES. 811 
 
 Insolvent corporations — 
 
 receiver — paoe. 
 
 oath of. 535(o), 536, n. 
 
 powers and duties of. '. 535(ffl) 
 
 sales by, orders confirming — 
 
 of real and personal property 545 
 
 claims due. , 551 
 
 reference to master 547 
 
 report of master — 
 
 form 548 
 
 practice on return of 518(a), 549, n. 
 
 exceptions to ". 550 
 
 restraining order against 534 
 
 statute on — 
 
 text of. 529(a) 
 
 character of. 529(a) 
 
 object of. '... 530, u. 
 
 Interest — 
 
 rate to be charged on bond and mortgage 359(a) 
 
 on decree 359(a) 
 
 calculation of, in case of partial payments 359(a) 
 
 beyond the penalty of a bond 359(a) 
 
 on widow's quarantine 625(a) 
 
 arrears of dower , 625(a) 
 
 Inspection of documents — 
 
 see "Papers, production of," post. 
 Interlocutory decrees — 
 
 fee title " Decrees,'' ante. 
 Interrogating part of bill — 
 
 see '' Bill, ' constituent parts of,' " ante. 
 Interrogatories — 
 
 complainant, to — 
 
 form 115 
 
 statute on 115(i) 
 
 rule on 116, n. 
 
 order for, unnecessary 116, u. 
 
 notice of application to compel 116, n. 
 
 destroying plaintiff's claim by 116, n. 
 
 exceptions to answers to 116, n. 
 
 contempt on — 
 
 on failure to answer 115(6) 
 
 third insufficient answer 128, n. 
 
 defendant, to — 
 
 form 10 
 
 appending and making part of bill 10(a) 
 
 effect of omitting 10(a) 
 
 general 10(a) 
 
812 INDEX TO FORMS AND NOTES. 
 
 Interrogatories — 
 
 defendant, to page. 
 
 to conform and relate to bill 10(a) 
 
 statute as to annexing to bill 10(a) 
 
 how framed 11, n. 
 
 when and how to be answered 105(6) 
 
 defendant excused from answering 106, n. 
 
 evidence, answer to, as ■ 107(a), 115(6) 
 
 examination of defendant upon — 
 
 effect of omitting to answer 10(a) 
 
 on third insufficient answer 128, n. 
 
 order for 129 
 
 time of exhibiting 129(a) 
 
 settling interrogatories 129(a) 
 
 examination of witnesses — 
 see-that title, ante. 
 
 exceptions to 116, n, 
 
 scandal or impertinence in 116, n. 
 
 Introductory part of bill — 
 
 see " Bill, ' constituent parts of,' " ante. 
 Interpleader — 
 
 affidavit of non-collusion on — 
 
 form 484 
 
 practice as to 484(a) 
 
 effect of want of 484(a) 
 
 by several complainants 484(a) 
 
 solicitor of complainant 484(a) 
 
 objection to omission of or form of, by demurrer 484(a) 
 
 answer on 485(a) 
 
 bill of— 
 
 form of 480 
 
 necessary averments in 480(a) 
 
 time of filing 480(a) 
 
 supplemental, may be filed 486, n. 
 
 effect of dismissal of. 487(a) 
 
 admission of debt in 487(a) 
 
 costs on 486, n.(a) 
 
 death of complainant, effect of on 486, u. 
 
 decree on — 
 
 interlocutory 485 
 
 procedure after interlocutory 485(6) 
 
 final 487 
 
 time of making 487(a) 
 
 when of course 487(a) 
 
 demurrer, in case of — 
 
 for want of affidavit and want of equity 94 
 
 not showing any claim of right in defendant 95 
 
INDEX TO FOEMS AND NOTES. 813 
 
 Interpleader — 
 
 demurrer, in case of — page. 
 
 admitting debt due one defendant as ground for 480(o) 
 
 certain defects not ground for 480(a) 
 
 want of affidavit of non-collusion as ground for 484(o) 
 
 objection to form of affidavit by 484(a) 
 
 injunction on — 
 
 bond 303(a) 
 
 order for 485 
 
 payment of money into court as condition to 48o(a) 
 
 issue at law on 487(a) 
 
 payment of money into court 480(o), 485(a) 
 
 principles applicable to 480(a), 485(a) 
 
 procedure on 485(a), 487(a) 
 
 reference on 487(a) 
 
 replication 485(o) 
 
 right to 480(a), 485(a) 
 
 Investment on sale of land — 
 
 see " Dower and curtesy," ante. 
 
 " Lunatics, &c., ' sale of lands,' " post. 
 "New trustee," post. 
 " Sale of lands, ' infants, of,' " post. 
 " Sale of lands ' limited over,' " post. 
 Issue at law — 
 
 interpleader, in 486, n., 487(a) 
 
 lunatics, in case of — 
 
 order for 654 
 
 on restored sanity 660(a) 
 
 quieting title, on — 
 
 form of 618 
 
 in what county to be tried 618(6) 
 
 statute on 620(a) 
 
 see also "Feigned issue," ante. 
 Joinder of parties — 
 answer, in — 
 
 husband and wife 104(c) 
 
 when interests are identical 105(6) 
 
 bill in- 
 general principles as to 3(o) 
 
 of husband and wife 3(o) 
 
 in case of distinct claims 3(a) 
 
 adverse interests 3(o) 
 
 of judgment and execution creditor 5(6) 
 
 in case of no privity 5(6) 
 
 claims in personam 5(6) 
 
 of executors 6, n. 
 
 dissenting administrators 6, n. 
 
814 INDEX TO F0EM8 AND NOTES. 
 
 Joinder of parties — page. 
 
 cestuis que trust and trustees 2(o), 332, u., 341, n., 362, n. 
 
 creditor's bill, in 521(a), 527(o), 528, n. (o), 530(a) 
 
 demurrer, as grounds for — 
 
 form, for want of. 94 
 
 practice as to 94(a) 
 
 see also "Foreclosure, 'complainant.'" 
 ' defendant.' " 
 Jurat — 
 
 form of, under "by the complainant in person" 16 
 
 omission to sign in case of injunction bills 17(6) 
 
 to state correct time of swearing 113(6) 
 
 affiant to sign at side of. 113(c) 
 
 signature and official character to be added to 113(d) 
 
 in case of defect in 114, n. 
 
 to answer of a corporation 115 
 
 deposition of witness 163, n. 
 
 Jurisdiction — 
 
 when process alone will not give 28(a) 
 
 lost 30(a) 
 
 avoiding decree for want of. 35(a), 36, n. 
 
 of Errors and Appeals after remittitur 198(a) 
 
 special cases, in — 
 
 absent defendants, over — 
 
 statute as to 24(6), 25, n. 
 
 in case of defective notice to 30(a) 
 
 administration of assets of deceased person, over 594(a) 
 
 assumption of mortgage, over 576(a) 
 
 cancellation of instruments, over 566(a) 
 
 correction of mistakes, over 635(a), 636(a) 
 
 creditor's bills, over 512(a) 
 
 directors of corporation, over 580(a) 
 
 discovery under the statute, over 496(6) 
 
 distribution of personal property, over 713(n) 
 
 divorce, over — 
 
 acknowledgment of citation as giving 21(6) 
 
 statute on 452(a) 
 
 statement of facts giving, in report 461 n. 
 
 over alimony 469, n. 
 
 dower, over 622(a), 623, u. 
 
 fraud, over 558(a), 559, n., 606(a) 
 
 habeas corpus, over 476(a) 
 
 insolvent corporation, over 529(a) 
 
 interpleader, over 487(a) 
 
 lunatics, &c., over 638(a) 
 
 new trustee, over 720(a) 
 
 partition, over 402(a) 
 
 quiet title, proceedings to, over 615(a) 
 
IMDBX TO FOEMS AND NOTES. 815 
 
 Jurisdiction — 
 
 sale of land, over — page. 
 
 of infants 669(o) 
 
 limited, over 682(a) 
 
 on presumed death 703(6) 
 
 Jurisdiction clause — 
 
 see " Bill ' constituent parts of " ante. 
 
 Jury — 
 
 see " Feigned issue," ante. 
 
 " Lunatics, idiots and drunkard," post. 
 
 Laches — 
 
 in case of answer after decree 34(<')) 35, n. 
 
 dismissal of bill for 118(4), 141(a) 
 
 of solicitor as a ground for opening decree 143, n. 
 
 in case of taking testimony 167(a) 
 
 as ground for dissolution of injunction 305(a) 
 
 Letters of administration — 
 
 statement in hill as to issuing 5(c) 
 
 to be issued before hearing 6, u. 
 
 granted in a foreign state 6, n., 318(o), 332, n. 
 
 Letters rogatory — 
 
 form of. 155 
 
 statute and practice on 155(c) 
 
 Letters testamentary — 
 
 need not be set forth in bill 6, n. 
 
 to be issued before hearing 6, n. 
 
 granted in a foreign state 6, n., 318(a), 332, n. 
 
 Legibility of pleadings l(o) 
 
 Lien — 
 
 of the state 12(6) 
 
 on partition 417 (o), 442(a) 
 
 bill to free discovered property from 497, n. 
 
 as giving right to creditor's bill 512(a), 513, n., 521(a) 
 
 when creditor not to lose 521(a) 
 
 sale of infant's land to discharge 669(a) 
 
 •when not affected by sale of lands 683, u. 
 
 sale of land free from 417(a), 683, u. 
 
 by executors, &c., to pay off. 726(a) 
 
 Lost instrument — 
 
 allegation of, in bill 8, n. 
 
 Lis pendens — 
 
 notice of. 411, 517 
 
 statute as to 411(a), 517(a) 
 
 in foreclosure 343, n., 517(a) 
 
 discharge of 411(a), 517(a), 518, n., 519, n. 
 
 time of taking effect of.. 519, u. 
 
 without bill is a nullity 519, n. 
 
 effect of conveyance after filing of 519, n. 
 
816 INDEX TO FOBM8 AND NOTES. 
 
 Lunatics, idiots and drunkards — page. 
 
 affidavits to petition in case of — 
 
 verification of. 640 
 
 form , 640 
 
 by wliom made 640(a), 641, n. 
 
 on setting aside inquisition 657 
 
 for sale of land by guardian 662 
 
 answer 105, 105(a) 
 
 bill, introduction to, by 4, 7 
 
 bond of guardian on sale of lands of— 
 
 form 665 
 
 statute on .... 665(5) 
 
 commission, the — 
 
 against an infant 639(a) 
 
 a non-resident 640, n. 
 
 order for 642 
 
 issuing of discretionary...., 643, n. 
 
 form of 643 
 
 rule on 643(a) 
 
 practice in case of. 843, n., 643(a) 
 
 return to 645 
 
 to inquire of drunkenness 646 
 
 notice of executing 647 
 
 rule on 647(a) 
 
 effect of omitting 647(a) 
 
 proof of service 647(a) 
 
 oath to juror on 648 
 
 order for new 652 
 
 when to be executed: 643(a), 652(o) 
 
 superseding 643(a), 657(a), 658(o) 
 
 see " petition for," below. 
 
 commissioners, the — 
 
 effect of death of. 643(a) 
 
 mode of selecting 643, n. 
 
 master in chancery as 643, n., 648(a), (6) 
 
 powers and duties of. 645(a), 648(c), 649(a), 650, n. 
 
 decree — 
 
 entering of. 643(a) 
 
 form, in case of lunacy 654 
 
 dating and filing of. 643(a), 654(n) 
 
 confirming sale of lands of. 666 
 
 deed of guardian of. 668 
 
 definition of. 638(a), 639, n. 
 
 dower, statutes on 667 u. 
 
 examination of. 647(6), e49(a), 659(5) 
 
 execution of commission — 
 
 place of. 610, u., 643(a) 
 
INDEX TO FOBM8 AND NOTES. 817 
 
 Lunatics, idiots and drunkards — 
 
 execution of commission — PAGE. 
 
 mode of 645(a) 
 
 notice to lunatic, &c., of. , 647 . 
 
 rule on 647(a) 
 
 omission or defect in 647(o) 
 
 proof of. 647(a> 
 
 time of. 643(a), 652(o) 
 
 foreclosure — 
 
 lunatic, &c., having interest to be a party 343, u. 
 
 in case of party declared, pending suit 343, n. 
 
 guardian of — 
 
 suit by 4(a) 
 
 clerk as 54(a) 
 
 in case of small estate 639, n. 
 
 appointment of. 654(o) 
 
 assent of, to superseding commission 658(a) 
 
 appearance of, before master 659(6) 
 
 settlement with , 660(a) 
 
 discharge of. 660(a) 
 
 petition by, for sale of land 661 
 
 affidavit to 662 
 
 order to, for sale of lands 664 
 
 bond of. 665 
 
 practice on bonds of 649(a), 665(6), 666, n. 
 
 account of. 666(a) 
 
 non-resident 666(o) 
 
 deed of 668 
 
 information — ■ 
 
 form of. 7 
 
 practice on 7(a) 
 
 inquisition, the — 
 
 of lunacy or idiocy 649 
 
 practice on 649(a), 650, n., 651(a) 
 
 principles applicable to 649(a), 650, n., 651(a) 
 
 sufficiency of. 650, n., 651(a) 
 
 return of 643(a), 652(o) 
 
 order setting aside and for new commission 652 
 
 notice of motion for leave to traverse 652 
 
 traverse of. 653 
 
 mode of making traverse 652(6) 
 
 right to traverse 653, n. 
 
 return of, not found, order on 655, 655(a) 
 
 petition by lunatic to set aside 656 
 
 how made 656(a) 
 
 affidavit to 657 
 
 by drunkard to set aside 657 
 
 3b 
 
818 INDEX TO FORMS AND NOTES. 
 
 Lunatics, idiots and drunkards — 
 
 inquisition, the — page. 
 
 statute on setting aside 657(a) 
 
 order of reference to set aside 658 
 
 report on petition to set aside 659 
 
 order setting aside, in case of lunatic 660 
 
 order to set aside, in case of drunkard 660 
 
 practice on order to set aside 660(a) 
 
 introduction to bill by 4, 7 
 
 issue in fact — 
 
 order for 654 
 
 on restored sanity 660(a) 
 
 jury, in case of— 
 
 precept to summon 645 
 
 practice on summoning 645(a) 
 
 statute as to number of 645(a) 
 
 compensation of 645(a) 
 
 challenges to 645(a) 
 
 return of precept to summon — , 646 
 
 oath to 648 
 
 who to administer oath to 648(a) 
 
 verdict of. 645(a), 649(a), 650, n. 
 
 new commission — 
 
 in case of death of commissioner 643(a) 
 
 order for 652 
 
 notice — 
 
 of executing commission 647, 647(a) 
 
 motion for leave to traverse 652 
 
 oaths — 
 
 to juror 648 
 
 witnesses 648 
 
 who to administer 648(a), (6) 
 
 orders — 
 
 for commission 642 
 
 granting of. : 643, n. 
 
 filing of 643(a) 
 
 setting aside inquisition and for new commission 652 
 
 directing issue of fact 654 
 
 confirming return not finding lunatic 655, 655(a) 
 
 of reference to set aside inquisition 658 
 
 final, setting aside inquisition, lunatic 660, 660(a) 
 
 drunkard 660 
 
 on application for sale of land 663 
 
 to guardian to sell lands 664 
 
 petition for commission — 
 
 of lunacy 638 
 
 who may prefer 639(a), 640, n. 
 
INDEX TO FORMS AND NOTES. 819 
 
 Xjunatics, idiots and drunkards — 
 
 petition for commission — PAGE. 
 
 verification of 640 
 
 affidavits to 640 
 
 tiow supported , 640(a), 641, n. 
 
 of idiocy 641, 641(a) 
 
 against drunkard 642 
 
 wlio may prefer, in case of drunkard 639(a), 642(a) 
 
 allegations in 642(a) 
 
 petition to set aside inquisition — 
 
 by lunatic 656 
 
 in whose name to be 656(a) 
 
 afiidavit to 657 
 
 by drunkard 657 
 
 statute on 657(a), 659(o) 
 
 order of reference on 658 
 
 master's report on 659 
 
 order on, lunatic 660 
 
 drunkard 660 
 
 petition for sale of land — 
 
 by guardian 661 
 
 affidavit to 662 
 
 yrochem ami — 
 
 residence of,in bill 4, u. 
 
 suit by, when allowed 4(a) 
 
 to be appointed before decree 56(a) 
 
 publication, order of 
 
 in case of non-resident 20, u. 
 
 reference to master — 
 
 on petition to set aside inquisition 658 
 
 practice on 658(a) 
 
 attendance on 659(6) 
 
 on application for sale of land 663 
 
 to special master on sale of land 663(a) 
 
 relator, as 7(a) 
 
 report — 
 
 of master on setting aside inquisition 659 
 
 application for sale of lands 664 
 
 guardian on sale of land 665 
 
 statute on 665(a) 
 
 revivor on death of. 317(a) 
 
 ^ale of land of — 
 
 petition for 661 
 
 authority for 661(a), 662, n. 
 
 affidavit to petition for 662 
 
 order of reference on application for 663 
 
 appointment and duties of special master on 663(a) 
 
820 INDEX TO FOEM8 AND NOTES. 
 
 Lunatics, idiots and drunkards — 
 
 sale of land of— page. 
 
 report on reference for 664 
 
 order for 664 
 
 proceeds of, how considered 664(a) 
 
 may be private 662, n., 664(a) 
 
 report of. 665 
 
 when report to be made 665(a) 
 
 confirmation of. 665(a) 
 
 what estate vests on 665(a) 
 
 bond of guardian on 665 
 
 at what time bond to be given on 665(6) 
 
 iiling of bond on 666, n. 
 
 forfeiture and prosecution of bond on 666, n. 
 
 decree confirming 666 
 
 investment of proceeds of. 666(a) 
 
 account of proceeds on 666(o) 
 
 payment of proceeds of, to non-resident guardian 667, n. 
 
 release of dower on 667, n. 
 
 statutes on...661(a), 662, n., 664(a), (6), 665(o), (6), 666(a), 667, n. 
 
 deed of guardian on 668 
 
 petting aside inquisition — 
 
 petition for, by lunatic 656 
 
 in whose name proceedings had for 656(a) 
 
 affidavit in case of. 657 
 
 petition for, by drunkard 657 
 
 statute on 657(a) 
 
 practice on, in case of drunkard 657(a) 
 
 order of reference on , 658 
 
 practice on reference on 658(a) 
 
 notice on : 658(a) 
 
 report on 659 
 
 witnesses on proceedings for.... 659(6) 
 
 order for, in case of lunatic 660 
 
 drunkard 660 
 
 subpoena for witnesses, on commission for 648 
 
 warrant to produce 647 
 
 witnesses— 
 
 oath to 648 
 
 who administers oath to 648(6) 
 
 compelling attendance of. v 648(c) 
 
 power of commissioners over 648(c) 
 
 subpoena for 648, 648(«) 
 
 Mailing of notice — 
 
 when not done in time 30(a) 
 
 proof of 31 
 
 practice on 31(a) 
 
INBBX TO F0KM8 AND NOTES. 821 
 
 Mailing of notice — page. 
 
 defect in aflBdavit of. 31(a) 
 
 amendment of proof of 32, n. 
 
 effect of non-delivery in case of. 26, n., 32, n. 
 
 Married women — 
 
 custody of children by 476(a) 
 
 demurrer — . 
 
 misjoinder of husband and wife as ground for 93(a) 
 
 foreclosure — 
 
 when christian name unknown — 
 
 aflBdavit 330 
 
 statute on 330(a) 
 
 of mortgage owned by 332, n. 
 
 inquisition of drunkard — 
 
 not to petition for, against husband 639(a), 640, n., 642(a) 
 
 next friend, when to sue by 3(a) 
 
 suit by 3(a), 104(d) 
 
 see also " Husband and wife, ' answer by.' " 
 'bills by.'" 
 
 ' subpoena, service of.' " 
 Master's account — 
 
 on sale of land limited over 697 
 
 Master's receipt on distributive share in partition 431 
 
 Master's reports — 
 contempt — 
 
 on attachment for 48, n. 
 
 distribution of personal property— 
 
 on petition for 715 
 
 divorce — 
 
 for desertion 460 
 
 adultery 462 
 
 dower 625(6) 
 
 dower and curtesy — 
 
 as to sum in gross 449 
 
 on amount to be invested 451 
 
 exceptions — 
 
 to bill 63 
 
 answer 123 
 
 as to sufficiency of defendant's examination 129 
 
 foreclosure — 
 
 of sale of mortgaged premises 235 
 
 where there is no order of reference 352 
 
 mortgage due and infant defendants 355 
 
 where money not all due 359 
 
 for sale of residue 360 
 
 injunction — 
 
 on granting 300 
 
 ascertaining damages on 308 
 
822 INDEX TO FORMS AND NOTES. 
 
 Master's reports — 
 
 insolvent corporations— page. 
 
 on account of receiver of. 548 
 
 lunatics, idiots, &c. — 
 
 on petition to set aside inquisition 659 
 
 application for sale of land of. ■ 664 
 
 new trustee — 
 
 on petition for 725 
 
 partition — 
 
 that sale is necessary 415 
 
 of sale in 421 
 
 that partition can be made 436 
 
 redemption of mortgaged premises, on 384(a) 
 
 sale of land — 
 
 infants, of on petition for 672 
 
 limited over — 
 
 on petition for 689 
 
 of sale ; 692 
 
 as to investment of proceeds 694 
 
 of investments 697 
 
 allowance on particular estates 697 
 
 on presumption of death — 
 
 on petition for 706 
 
 strict foreclosure on 396 
 
 surplus money — 
 
 on petition for 259 
 
 by administrator , 268 
 
 Master's statement — 
 
 on adjournment of sale 220 
 
 sale of mortgaged premises 233 
 
 partition 434 
 
 Master's summons — 
 
 exceptions to bill, on — 
 
 form of. 62 
 
 affidavit of service of.... 63 
 
 foreclosure, on — 
 
 against encumbrancers 107 (i) 
 
 form of 354 
 
 service of, how made 354(a) 
 
 surplus money, on petition for 258(a) 
 
 Minors — ■ 
 
 see " Guardian ad litem," ante. 
 " Infants," ante. 
 
 " Sale of lands, ' infants, of,' " post. 
 Misjoinder — 
 
 demurrer for — 
 
 of complainants .' 91, n., 93, n.. 
 
INDEX TO FORMS AND NOTES. 823 
 
 Misjoinder — 
 
 demurrer for — page. 
 
 of husband and wife 3(a), 93(a) 
 
 causes of action , 3(a), 5(5), 93(a) 
 
 general principles as to 3(a) 
 
 Mistake in instrument, reformation of — 
 
 in case of mortgage 334(a) 
 
 decree for, in case of mortgage 635 
 
 a trust deed 636 
 
 power of equity over 635(a), 636(a) 
 
 practice as to 636(a) 
 
 Mortgage — 
 
 answer of second mortgagee on foreclosure of. 107 
 
 assignment of — 
 
 allegation of, in bill 8, n. 
 
 assignor and assignee, in foreclosure 331(a) 
 
 by writing not under seal 331(a) 
 
 delivery 331(a) 
 
 assignment of bond as 331(a) 
 
 as evidence of consideration paid 331(a) 
 
 assumption of — 
 
 as to decree for deficiency 220(a) 
 
 bill for -. 576 
 
 right to sue on 576(a), 579(a) 
 
 contesting validity of, after decree 362, n. 
 
 decree — 
 
 canceling 634 
 
 reforming so as to convey fee 635 
 
 to confer power of. 636 
 
 on usurious 637 
 
 executors, &c., may execute 669(a), 726(a) 
 
 extension of time of payment of, by parol 351, n. 
 
 extinguishment of. '. 336, n. 
 
 forfeiture of — 
 
 to be explicit 351, n. 
 
 in case of acts of complainant 351, n. 
 
 on ground of mistake 351, n. 
 
 receipt of interest as a waiver of 351, n. 
 
 mistakes in 334(a), 635(a) 
 
 set ofi'to, what may be 107(6) 
 
 see also "Foreclosure," ante. 
 Motions — 
 
 costs on — 
 
 order for, on abandonment of. 276, 276(a) 
 
 successful party's right to 276, n. 
 
 rules as to 276, n., (a) 
 
 days for , 274, ii., 275, n. 
 
824 INDEX TO FORMS AND NOTES. 
 
 Motions — 
 
 notice of — page. 
 
 common form 273 
 
 definition of. 274, n. 
 
 entitling of. 274, n. 
 
 address of. 274, n. 
 
 signing of 274, n. 
 
 in case of in forma pauperis 274, n. 
 
 day for, to be certain 274, n. 
 
 by leave of court 274, n. 
 
 service of. 274, n. 
 
 when no time fixed bylaw 274, n. 
 
 time of service of. 275, n. 
 
 as to dissolving injunctions 275, ii. 
 
 statements in 275, n. 
 
 when may be dispensed with 275, n. 
 
 right to make — 
 
 by any party to the record 275, n. 
 
 attorney-general on information 289, n. 
 
 service of notice of — 
 
 affidavit of. 275 
 
 practice as to 275(a), 276, n. 
 
 adniission of. 276, n. 
 
 see for notices of motion in special cases " Notices,'' post. 
 Multifariousness — 
 
 demurrer for 93 
 
 what constitutes 90, n., 93(a), 497, n. 
 
 Name — 
 
 statement of correct, in introduction to bill 2(a) 
 
 suit to be in name of real party in interest 2(a) 
 
 of corporation in prayer for process against 13(6) 
 
 counsel to bill 15(a) 
 
 defendants in subpoena 20, n. 
 
 signing of, by defendant to answer 113(c) 
 
 officer to jurat 17(6), 113(d) 
 
 christian, of married woman, when unknown — 
 
 affidavit as to 330 
 
 statute on 330(a) 
 
 proceeding in, of complainant — 
 
 order to show cause on 139 
 
 rule on 139(a) 
 
 practice on 139(a) 
 
 effect of. 139(a) 
 
 order on 140 
 
 Ne exeat — 
 
 account, in suit for 14(a), 309(a) 
 
INDEX TO F0BM8 AND NOTES. 825 
 
 JVe exeat— page. 
 
 aflSdavits to obtain — 
 
 time of making 14(o) 
 
 necessary averments in 14(a) 
 
 in case of alimony 14(a), 309(a) 
 
 of wife, when sufficient 14(a), 309(a) 
 
 upon information and belief. 14(a), 309(a) 
 
 must show sum due 14(a), 309(a) 
 
 positiveness of statements in 309(o) 
 
 must show intent to avoid jurisdiction 14(a), 309(a) 
 
 form of. 309 
 
 application for 14(a) 
 
 bond on — 
 
 direction as to amount of. 311, n. 
 
 sheriff to take, as directed 311, n. 
 
 in suit against a personal representative 311, n. 
 
 order for sum actually due 311, n. 
 
 amount of 310(a), 312(6) 
 
 common form of. 312 
 
 form under rule 192 313 
 
 rule on 313(a) 
 
 cancellation of. 314, n. 
 
 security to abide event 314, n. 
 
 breach of. 314, n. 
 
 power of equity over 314, n. 
 
 denial of. 14(a) 
 
 deposit in lieu of bail 312(a) 
 
 discharge from — 
 
 affidavits on motion for 14(a), 313(6) 
 
 grounds for 14(a), 313(6) 
 
 notice of motion for 313 
 
 time of applying for 14(a), 313(6) 
 
 defendant to have benefit of sworn answer 14(a), 313(6) 
 
 when refused 313(6) 
 
 on security to abide the event 314, n. 
 
 upon giving security or making deposit 309(a), 314, n. 
 
 divorce, in suit for 14(a), 309(a) 
 
 equitable demand as ground for , 14(a) 
 
 grounds of application for l''(«), 309(a) 
 
 non-resident, against 14(a) 
 
 order for — • 
 
 form 310 
 
 statement of amount of bail in 310(a) 
 
 petition for — 
 
 application for writ may be made by 15, n. 
 
 without prayer 15, n. 
 
 no amendment of bill on 15, n. 
 
826 INDEX TO FOEMS AND NOTES. 
 
 Ne exeal — page.- 
 
 prayer for 14 
 
 presence in state as giving right to. 14(a) 
 
 return to — 
 
 on arrest and security given 312 
 
 when defendant not found 312 
 
 on arrest and commitment 312 
 
 statute on 309(a) 
 
 time of issuing 14(a) 
 
 writ of — 
 
 not to issue until bill filed 14(a) 
 
 unless sum due 14(a) 
 
 on service of, no subpoena necessary , 14(a) 
 
 form of 310 
 
 endorsement of. 310(6), 311, n. 
 
 New execution on death of sheriflF — 
 
 see "Execution,'' ante. 
 New matter — 
 
 when may be set up in supplemental answer 106, n. 
 
 see also " Review, bills of," post. 
 
 "Supplemental bills,'' post. 
 Newspapers — 
 
 absent defendants — 
 
 publication against, in 25, n. 
 
 in foreclosure suits 27(a)' 
 
 error in name of. 30(a)' 
 
 execution — 
 
 advertisement in, of adjournment of sale under 213(a} 
 
 of sale under 217 
 
 statute on advertisements under 21T(a), 218, n. 
 
 partition — 
 
 advertisement in, of lands sold free of dower, &c 417(a) 
 
 proof of advertisement in, annexed to report in 424(a) 
 
 defective advertisements in , 424(a) 
 
 New parties — 
 
 supplemental bill against , 503 
 
 see also "Admission of parties," ante. 
 New trial of issue at law — 
 feigned issue, on — ■ 
 
 notice of motion for 250 
 
 practice and grounds for granting 250(a), (6), 251, n., (a), (6) 
 
 order denying 251 
 
 granting 251 
 
 quieting title, on 620(o) 
 
 New trustee — 
 
 petition for appointment of 720 
 
INDEX TO F0KM8 AND NOTES. 827 
 
 New trustee— page, 
 
 remedy in equity as to 720(a) 
 
 notice of application for appointment of. 724 
 
 order of reference on 724 
 
 rule on appointing 720(6), 724(a) 
 
 master's report 725 
 
 order appointing 726 
 
 statutes on 720(6), 721, ii., 722, n., 726(o> 
 
 Next friend — 
 
 infants, in case of — 
 
 introduction to bill by 3 
 
 descriplion and residence of, in bill 4, n. 
 
 effect of filing bill without 4, n. 
 
 amendment of bill of, by inserting name of 4, n. 
 
 guardian as 4, n. 
 
 to sue by, notwithstanding guardian 4, n. 
 
 English practice 4, n. 
 
 New York practice 4, n. 
 
 commencement of suit by 53(a) 
 
 non-resident, to give security for costs 69, n, 
 
 on appeal by 187, n. 
 
 lunatics and idiots, in case of — 
 
 introduction to bill by 4 
 
 description and residence of, in bill 4, n. 
 
 authority of, to file bill 4(a) 
 
 dismissal of bill filed by volunteer 4(a) 
 
 appointment of, on court's motion 57, n. 
 
 married women, in case of — 
 
 introduction to bill by 3 
 
 husband as 3(a) 
 
 amendment of bill of, by inserting 3(a} 
 
 when may sue without 3(a) 
 
 address of, to be stated in bill 3(a) 
 
 Non-joinder — 
 
 creditor's bill, in case of — 
 
 statement of parties in 5, 5(6) 
 
 effect of 521(a) 
 
 demurrer, for— 
 
 form of. 94 
 
 practice on 94(a) 
 
 Non-residents — 
 
 administrator or executor 6, n. 
 
 writ of ne meat against 14(a) 
 
 mode of acquiring jurisdiction over 24(6) 
 
 effect of subpoena against, on jurisdiction 28(o) 
 
 lunatic 640, u.. 
 
828 INDEX TO FOEMS AND NOTES. 
 
 Non-residents — page. 
 
 guardian of lunatic, payment to 667, n. 
 
 and ward, removal of property of 700(a) 
 
 defendants, see ''Absent defendants," a/nte. 
 complainants, see " Security for costs," post. 
 witnesses, see " Examination of witnesses," ante. 
 Non-residence — 
 
 form of affidavit of. 23 
 
 sheriflF's return of. 23(6) 
 
 affidavit of, to state true residence 23(6) 
 
 "information and belief" of. 24, n. 
 
 affidavit of, in case of infants 51 
 
 as a ground for stay of proceedings 559, n. 
 
 see also " Security for costs," post. 
 Notice — 
 
 absent defendants, to — 
 
 common form of 30 
 
 in divorce case 31 
 
 admission of parties, on — 
 
 of application on petition for 285 
 
 appeal, of — 
 
 form of. 186 
 
 of argument in Court of Appeals 196 
 
 creditor's bill, on — 
 
 of motion for receiver.. 519 
 
 dismissal of bill — 
 
 of motion for, for want of prosecution 141 
 
 examination of witnesses, as to — 
 
 of motion for order de 6ejie esse 145 
 
 examination, de bene esse 146 
 
 motion for commission 148 
 
 by part of commissioners to the others 156 
 
 of domestic witness under §25 159 
 
 taking depositions within the state 160 
 
 using documentary evidence 165 
 
 motion to extend time for 166 
 
 suppress deposition 169 
 
 exceptions — ■ 
 
 answer, to — 
 
 of defendant's submission 125 
 
 bill, to— 
 
 of hearing upon 67 
 
 execution of decree — 
 
 and demand of possession 203 
 
 of motion for order of possession 206 
 
 writ of assistance 208 
 
INDEX TO F0EM8 AND NOTES. 82& 
 
 Notice — 
 
 feigned issue — page. 
 
 of motion for, under the statute 243 
 
 new trial of 250 
 
 hearing for further directions after 252 
 
 general principles of — 
 
 definition of 273(a), 274, n. 
 
 entitling of 274, n. 
 
 address of. 274, n. 
 
 signing of. 274, n. 
 
 in case of in forma pauperis 274, n. 
 
 day for, to be certain 274, n. 
 
 of motion by leave 274, n. 
 
 service of 274, n. 
 
 when no time fixed for 274, n. 
 
 for what day notice to be given 274, n. 
 
 rule as to motion-days 275, n. 
 
 time of service of. 275, n. 
 
 statements in 275, n. 
 
 when may be dispensed with 275, n. 
 
 who may give 275, n. 
 
 affidavit of service of, of motion 275 
 
 service of, how proved 275(a), 276, n. 
 
 costs on failure to proceed after 276(a) 
 
 guardian ad litem, as to— 
 
 to infant defendant over fourteen years 49 
 
 under fourteen years 50 
 
 hearing — 
 
 of bringing on cause for 172 
 
 injunction — 
 
 of motion for 288 
 
 to dissolve or modify 304 
 
 ascertain damages on 306 
 
 insolvent corporation — 
 
 of application for receiver for 534 
 
 lis pendens, of — 
 
 in partition 411 
 
 on creditor's bill 517 
 
 lunatics, idiots and drunkards, in case of — 
 
 of executing commission 647 
 
 motion for leave to traverse inquisition 652 
 
 motion, of. 273 
 
 ne exeat, of motion for discharge of 313 
 
 new execution — • 
 
 of presenting petition for 228 
 
 new trustee — 
 
 of application for appointment of. 724 
 
S30 INDEX TO FORMS AND NOTJE8. 
 
 Notice — 
 
 partition, in— PAGE. 
 
 to tenant in dower or curtesy 417 
 
 payment of money into court, as to — 
 
 of motion for, upon admissions 137 
 
 production of papers — 
 
 of motion for 76 
 
 rehearing — 
 
 of presenting petition for 185 
 
 sale of laud limited over, on — 
 
 to owners of vested or prospective estates 684 
 
 of application for appointment of guardian on 687 
 
 taking testimony on 688 
 
 application for removal of ward's property 702 
 
 State of New Jersey, to 22 
 
 surplus money — 
 
 of application by executors, &c., for 265 
 
 Oaths — 
 
 answer, to — 
 
 by defendant on commission to take 88 
 
 who may administer out of the state 113(a) 
 
 christian religion, by person not of. 88(6), 152(d) 
 
 conscientiously scrupulous against, by person 88(6), 113(a) 
 
 examination of witnesses, on — 
 
 oath of commissioners 151 
 
 directions as to 152 
 
 form of 163, n. 
 
 lunatics, &c., on inquisition of — 
 
 form of, to juror 648 
 
 witnesses 648 
 
 by whom administered 648(a), (6) 
 
 partition, in — 
 
 form of commissioner's 441 
 
 Opening decree — 
 
 on showing reasonable grounds for 34(a), 35, n. 
 
 payment of costs on 34(a), 35, n. 
 
 after time to answer has expired 35, n. 
 
 terms on 35^ n. 
 
 after master's report 35 n. 
 
 for want of authority of solicitor 35(a), 36, n. 
 
 by party in contempt 40 n. 
 
 when answer shows ground of defence 81(a) 
 
 in case of solicitor's laches I43 n. 
 
 when answer shows no ground of defence 34(a), 349, n. 
 
INDEX TO FORMS AND NOTES. 831 
 
 ■Orders — - 
 
 abatement and revivor, on — 
 
 representatives, orders reviving as to — page. 
 
 of defendant 316 
 
 sole complainant 317 
 
 complainant, by defendant 318 
 
 his representative 318 
 
 sole defendant 319 
 
 co-complainant 320 
 
 dismissal against 321 
 
 survivors, orders reviving as to — 
 
 in favor of co-complainants 314 
 
 against co-defendants 316 
 
 absent defendants, in case of — 
 
 of publication, common form 24 
 
 in foreclosm-e 27 
 
 partition 28 
 
 case of supposed death 29 
 
 for supersedeas 33 
 
 administration ad prosequendum, in case of — 
 
 form of. 59 
 
 admitting administrator as defendant 60 
 
 admission of parties, for. 285 
 
 amend bill, to — 
 
 for leave to, after demurrer sustained 102 
 
 filed ; 132 
 
 plea allowed 134 
 
 and vrithdraw replication 134 
 
 under rule 135 
 
 after answer 135 
 
 answer, in case of — 
 
 to take without oath 80 
 
 for wife to make separate 85 
 
 suppressing, of married woman's 86 
 
 for time to 81, 86 
 
 commission to take 86 
 
 compel, to — 
 
 common form 36 
 
 to answer or for attachment 37 
 
 for attachment 38 
 
 alias attachment 41 
 
 leave to prosecute bond at law 41 
 
 after admission of contempt 41 
 
 for commitment 41 
 
 a sequestration 43 
 
832 INDEX TO FORMS AND NOTES, 
 
 Orders — 
 
 appeals — page. 
 
 to stay proceedings on 189 
 
 show cause, on summons and severance 190, 191 
 
 of severance 192 
 
 for execution notwithstanding 194 
 
 for costs on affirmance on 201 
 
 to pay over money deposited on 201 
 
 conduct of cause by defendant — 
 
 to show cause on 139 
 
 proceed on 140 
 
 contempt for violating injunction — 
 
 to show cause on 45 
 
 for attachment on 45 
 
 defendant's examination on 47 
 
 convicting defendant of. 48 
 
 costs, for — 
 
 on non-attendance at hearing of motion 276 
 
 creditor's bill — 
 
 admitting creditor as a party 528 
 
 cross-bill, in case of — 
 
 to stay proceedings 511 
 
 that original and cross-bill be heard together 511 
 
 demurrer, on — 
 
 sustaining 101 
 
 overruling, on default ,. 102 
 
 argument 102 
 
 discovery, for 501 
 
 dismissal of bill — 
 
 by complainant for 140 
 
 for want of prosecution 142 
 
 distribution of personal property — 
 
 of reference on petition for. 715 
 
 to make, to legatees 719 
 
 divorce, in case of — 
 
 of reference, on exparte proceedings 459 
 
 as to alimony 467 
 
 for alimony 467 
 
 security for costs on bill for alimony 473 
 
 dower and curtesy — 
 
 of reference as to dower 449 
 
 election between suit and action — 
 
 form of. 117,279 
 
 examination of witnesses — 
 
 de bene esse foreign, on notice 146 
 
 for commission de bene esse , 14s 
 
 witness to show cause for disobedience 157 
 
INDEX TO F0BM8 AND NOTES. 833 
 
 •Orders — 
 
 examination of witnesses — page. 
 
 extending time for, under the rules 166 
 
 not under the rule 166 
 
 to close testimony 167 
 
 for re-examination 168 
 
 suppressing deposition 169 
 
 for proofs exparte 170 
 
 exceptions, on — 
 
 answer, to — 
 
 referring 122 
 
 for scandal, &c 123 
 
 nisi to confirm report on 124 
 
 for hearing, to master's report on 126 
 
 further answer on report on .*.... 126 
 
 referring, on second, &o., answer 127 
 
 for attachment on third insufficient answer 128 
 
 examination of defendant 129 
 
 to take bill as confessed 130 
 
 confirming master's report on 130 
 
 to expunge, on report on 131 
 
 submission... 132 
 
 bill, to- 
 referring 62 
 
 nisi to confirm report on 64 
 
 for hearing, to master's report 66 
 
 confirming master's report on 68 
 
 execution — 
 
 for fieri facias for deficiency 220 
 
 execution of decree — 
 
 for possession 206 
 
 writ of assistance 208 
 
 feigned issue — 
 
 for, under the statute 244 
 
 at the hearing 245 
 
 struck jury in case of. 249 
 
 denying motion for new trial of. 251 
 
 for new trial of. '. 251 
 
 foreclosure, on — 
 
 confirming sale , 236 
 
 to show cause on petition for receiver 375 
 
 appointing receiver 375 
 
 general form of. 277 
 
 general principles applicable to — 
 
 entry of. 277(a) 
 
 drawing of. 277(o) 
 
 nunc pro tunc 277(a) 
 
 3c 
 
834 INDEX TO F0BM8 AND NOTES. 
 
 Orders — 
 
 general principles applicable to — page. 
 
 advised by master or Yice Chancellor 277(a) 
 
 entitling of. 277(a> 
 
 statements in , 277(a) 
 
 computing time on 277(a) 
 
 irregularity in ■^'°' "• 
 
 vacating 278, n. 
 
 directions as to time of complying with 278, n. 
 
 guardian ad litem — 
 
 for appointment of, complainant's application 51 
 
 infant's application 54 
 
 infant under fourteen 56 
 
 habeas corpus, in case of — 
 
 for custody of infant 479 
 
 hearing — • 
 
 setting down cause for 171 
 
 for, of exceptions to master's report 173 
 
 of reference to Vice Chancellor or advisory master 176 
 
 for cause to stand over to add parties 176 
 
 supply proofs 177 
 
 decretal, retaining bill with liberty reserved 177 
 
 injunction, for — 
 
 common form 286 
 
 to show cause with restraint 289 
 
 denying 290 
 
 special 299 
 
 on allowance of, by master 301 
 
 dissolving 305 
 
 unless cause be revived..., 306 
 
 to show cause on ascertaining damages 307 
 
 of reference to ascertain damages 307 
 
 ascertaining damages 308 
 
 for delivery of bond 308 
 
 granting, in case of interpleader 485 
 
 in suit against insolvent corporation 537 
 
 insolvent corporation — 
 
 to show cause as to injunction and receiver for 534 
 
 appointing receiver for 535 
 
 for injunction in suit against 537 
 
 , appointing receiver over railway 541 
 
 limiting creditors of. 543 
 
 to show cause as to admission of claim against 544 
 
 admitting claim of creditor of. 545 
 
 confirming receiver's sale of property of 545 
 
 of reference to statereceiver's account 547 
 
 confirming sale of claims due an 551 
 
INDEX TO FOKMS AND NOTES. 835 
 
 Orders — 
 
 insolvent corporation— page. 
 
 for final dividend and receiver's discharge 552 
 
 discharging receiver of 555 
 
 interpleader — 
 
 for injunction on bill of. 485 
 
 lunatics, idiots and drunkards — 
 
 for commission 642 
 
 setting aside inquisition and for new commission 652 
 
 directing issue of fact in case of. 654 
 
 on return of inquisition not found 655 
 
 of reference to set aside inquisition 658 
 
 final, setting aside inquisition of lunacy 660 
 
 setting aside inquisition of drunkenness 660 
 
 referring, as to sale of lands of. 663 
 
 to guardian to sell laud of 664 
 
 master, substituting 282 
 
 ne exeat, for.... ' 310 
 
 new execution, for 229 
 
 new trustee — 
 
 of reference on petition for 724 
 
 appointing 726 
 
 partition — 
 
 extending time for filing report in 414 
 
 confirming sale in 424 
 
 for distribution in 428 
 
 partnership — 
 
 appointing receiver over 538 
 
 payment of monev into court, for 138 
 
 plea — 
 
 saving benefit of, till the hearing. 100 
 
 sustaining 101 
 
 overruling, on default 102 
 
 argument 102 
 
 directing, to stand for answer 103 
 
 poor persons — 
 
 assigning counsel for complainant 73 
 
 defendant 74 
 
 proceedings against purchaser — 
 
 to show cause on 255 
 
 absolute on 255 
 
 production of papers — 
 
 on complainant for...,. 77 
 
 defendant for 77 
 
 for inspection and 80 
 
 redemption of mortgaged premises — 
 
 confirming report on 385 
 
 dismissing bill for 385 
 
836 INDEX TO FOEMS AND NOTES. 
 
 Orders— ' page. 
 
 rehearing, for 185 
 
 review, bill of — 
 
 for leave to file 508 
 
 sale of lands — 
 
 infants, of^ 
 
 of reference as to merits and for guardian 670 
 
 to appoint guardian and for sale 674 
 
 confirming 679 
 
 limited over — 
 
 of reference on petition for 686 
 
 appointing guardian for infants on 687 
 
 absolute 691 
 
 confirming 693 
 
 for investment 695 
 
 of reference as to allowance to owners 697 
 
 fixing allowance to owners of particular estates... 699 
 
 for removal of ward's property 702 
 
 presumption of death on — . 
 
 of reference on petition for 706 
 
 absolute for 707 
 
 confirming 710 
 
 of reference as to debts 712 
 
 see also "lunatics, &c.," supra, 
 scire facias — 
 
 to show cause on petition for 324 
 
 for execution to issue 325 
 
 security for costs, for 68 
 
 solicitor — 
 
 substituting 281 
 
 that complainant appoint 281 
 
 for dismissal of bill on failure to appoint 282 
 
 speed, cause to 118 
 
 strict foreclosure, in case of — 
 
 final, upon default 388 
 
 confirming master's report on 395 
 
 supplemental bill — 
 
 for leave to file 501 
 
 surplus money — 
 
 of reference on petition for 258 
 
 final, on petition for 260 
 
 of reference on petition of executor, &c., for 266 
 
 for payment of, to executor, &c 270 
 
 Ore terms — 
 
 see " Demurrer, ' ore ienus,' " ante. 
 
INDEX TO FORMS AND NOTES, 837 
 
 Papers, production of — 
 
 general principles governing — page. 
 
 when order for, granted 74(o) 
 
 referred to and made part of answer 74(a), 75, u. 
 
 admission of defendant's possession 74(o) 
 
 wheii defendant not entitled to, before answer 74(a), 75, n. 
 
 cross-bill necessary for 75, n. 
 
 in case of partnership 75,n. 
 
 at what place to be produced 75, n. 
 
 affidavits in opposition, rule as to 76(o) 
 
 contest as to fraud and falsity of. , 78(a) 
 
 when deed not forthcoming 78(a) 
 
 complainant entitled to 78(o) 
 
 effect of admission in answer '. 78(a) 
 
 merits of the question, how disposed of. 78(a) 
 
 applicant's common interest 74(a), 79, u. 
 
 custody of papers in foreiga country 79, n. 
 
 when motion for, refused 79, n. 
 
 admitted document to be produced 79, n. 
 
 how and where inspection to be made 79, n., 80(a) 
 
 sealed papers 80(a) 
 
 copies, when to be furnished 80(a) 
 
 refusal to produce, contempt 80(o) 
 
 attachment for refusal to produce 80(a) 
 
 notice — 
 
 of motion on petition for '. 76 
 
 affidavit of service of. 77 
 
 orders — 
 
 on complainant for 77 
 
 defendant for , 77,80 
 
 practice on obtaining , 80(o) 
 
 petitions for — 
 
 by defendant 74 
 
 afiBdavit to 76 
 
 practice as to verifying 76(a) 
 
 by complainant 78 
 
 note as to form, p. 74 78(a) 
 
 necessary statements in 78(a) 
 
 Partners — 
 
 examination of books of. 75, n. 
 
 prayer for receiver over , 538 
 
 order appointing receiver over 538 
 
 interlocutory decree for account between 627 
 
 partner not to question liability to account 628(a) 
 
 Parties — 
 
 adverse interests — 
 
 between husband and wife. 3(a) 
 
838 INDEX TO F0EM8 AND NOTES. 
 
 Parties — 
 
 adverse interests — page. 
 
 practice as to 3(a) 
 
 ia case of co-administrators. 6, n. 
 
 amendment — 
 
 by adding husband as a party 3(a) 
 
 see "Amendments, ' bill to,' " ante. 
 
 application to be made— 
 
 time of making, 176(6) 
 
 statute on 176(6) 
 
 Chancellor as, designation of 1(") 
 
 complainant — 
 
 suit to be brought by real party in interest 2(a) 
 
 husband and wife as 3(a) 
 
 on bill relating to husband's rights 3(a) 
 
 general rules as to joinder of 3(a) 
 
 on bill to protect wife's estate 3(a) 
 
 married woman as 3(a) 
 
 infants, practice as to 3(6), 4, n. 
 
 idiots and lunatics as 4(a) 
 
 in creditor's bill 5(i) 
 
 when interests are distinct 5(6) 
 
 administrator as 5(c), 6, u. 
 
 when the state is 6(a) 
 
 attorney-general as, on behalf of lunatic 7(a) 
 
 infants, practice as to 3(5), 4, n., 53(o) 
 
 executor, &c., of lunatic 317(a) 
 
 executors, domestic as 6, n., 332, n. 
 
 foreign as 6, n., 332, n. 
 
 cestui que trust and trustee as 2(a), 332, n., 341, n., 362, n. 
 
 death of respondent on appeal, in case of 187, n. 
 
 defendant — 
 
 husband, on bill by wife 3(a) 
 
 co-administrator as 6, n. 
 
 prayer for process as making 12(a) 
 
 service of process as making 12(a) 
 
 state as 12(6) 
 
 married infant as 104(6) 
 
 guardian of infant as 4, n., 53(a), 104(6) 
 
 husband and wife as joint 104(c) 
 
 in case of identity of interests 105(6) 
 
 lunatic or idiot as 56(o), 57, n., 105(a) 
 
 party having unrecorded interest 285(a), 286, n. 
 
 designation of married woman as 330(a) 
 
 foreclosure — 
 
 complainants 331(o), et seg. 
 
 defendants 3i0{b), et seq. 
 
INDEX TO FORMS AND NOTES. 839 
 
 Parties — 
 
 see also "Abatement and revivor," ante. 
 "Admission of parties," ante. 
 "Amendments, 'bill, to,' " ante. 
 "Dismissal of bill," ante. 
 "Misjoinder of parties," ante. 
 "Non-joiuder of parties," ante. 
 "Partition, 'parties to,'" post. 
 Partition — 
 
 advertisement of sale on — page. 
 
 statute on 417(a) 
 
 proof of, by posters 423 
 
 in newspapers 423 
 
 to be attached to report 424(o) 
 
 defective 424(a) 
 
 affidavits on — 
 
 to answer 112 
 
 procure injunction 411 
 
 master's report 423 
 
 deed 428 
 
 allowances to commissioners on 444(6) 
 
 answers on — 
 
 by infants 106 
 
 common form 110 
 
 short form 112 
 
 bill for— 
 
 form of 402 
 
 suit commenced by 403, u. 
 
 bonds on sale in — 
 
 guardian's for infant's share on sale 430 
 
 refunding for share of party absent or presumed dead 431 
 
 statutes regarding 430(a), 431(a), 432, n. 
 
 commission in — 
 
 when appointed 413, n. 
 
 after adverse report by master 415(o) 
 
 order appointing and decree in 437 
 
 form of. 439 
 
 oath of commissioners 441 
 
 return of commissioners 442 
 
 schedule to 444 
 
 signing of. 444(a) 
 
 allowance on 444(6) 
 
 confirmation of sale on — 
 
 in case of private sale 420(a) 
 
 after report 420(a) 
 
 order of. 424 
 
 time of 424(o) 
 
840 INDEX TO P0BM8 AND NOTES. 
 
 Partition — 
 
 curtesy and dower on— page 
 
 notice to tenant in 417 
 
 statute on 417(a> 
 
 waiver of notice of tenant in 419(A) 
 
 when sale may be subject to 420, n, 
 
 deed after sale in — 
 
 form of 425 
 
 acknowledgment of 427 
 
 certificate and affidavit to 428 
 
 discontinuance on 421 (o)' 
 
 distribution on — 
 
 in case of inchoate right of dower 406(a) 
 
 order for 428 
 
 statute as to distributees..: 428(«) 
 
 judgment creditors 428(a)' 
 
 receipt taken in case of. 431 
 
 release of distributee 433 
 
 acknowledgment to release of distributee 434 
 
 master's statement 434 
 
 dividing premises on — 
 
 mode of. 402(a), 403, n, 
 
 criterion for 415(a) 
 
 by consent 415(a) 
 
 determination for, when made 418(a) 
 
 statute on 418(a), 419(a> 
 
 master's report for 436 
 
 as to part and sale of residue 402(o), 442(0) 
 
 final decree on — 
 
 for sale 418 
 
 for private sale 420(a> 
 
 for partition and order appointing commissioners 437 
 
 confirming 445 
 
 direction for mutual conveyances in 446(a)' 
 
 interlocutory decree on 412, 412(a) 
 
 investment on — 
 
 of share of future rights 419(a} 
 
 proceeds of sale 419(a) 
 
 for persons not known to be living or dead 432, n. 
 
 jurisdiction in 402(a), 403, u. 
 
 liens — 
 
 as affecting right to 404, n.- 
 
 protectiou of. 404, n. 
 
 discharge of. 405, n. 
 
 in case of inchoate right of dower 406(a) 
 
 sale of lands free of. 417(a) 
 
 on part of premises assigned 442(a) 
 
INDEX TO FORMS AND NOTES. 841 
 
 Partition — 
 
 dens— PAGE. 
 
 notice of. 411 
 
 statutes on 411 (o) 
 
 litigating title on 403, ii, 
 
 master's report on — 
 
 court rule on 412(o) 
 
 objectioDS to, how made 413, n, 
 
 order extending time of filing 414 
 
 practice on extending time for filing 414(6) 
 
 rule Tiisi to confirm 414(6} 
 
 that sale of premises is necessary , 415 
 
 description of premises in 415(a) 
 
 sale of premises 421 
 
 verification of, on sale 423 
 
 proofs to be attached to 424(a) 
 
 that premises can be partitioned 436 
 
 master's statement on 434 
 
 order of publication on — 
 
 where some or one of the parties are unknown 28 
 
 see also "Absent defendants,'' ante. 
 
 owelty of. 439(a), 442(a) 
 
 parties to — 
 
 joint tenants, &c 402(a) 
 
 executors with power of sale 402(a) 
 
 infant.... 403,n. 
 
 lunatic 403, n. 
 
 absent or unknown 403, u. 
 
 encumbrancers 404, ii. 
 
 administrators 404, n. 
 
 creditors 404, n. 
 
 tenant in dower or curtesy 405, n. 
 
 corporation 405, n. 
 
 contingent owner 405, n, 
 
 reversioner 405, u. 
 
 marriage oi, pendente lite 405, n. 
 
 general principles governing 402(a), 403, n., 404, n., 405, n.. 
 
 statutes on 402(a), 403, n., 404, n., 405, n. 
 
 new 413, n. 
 
 publication on — 
 
 in what county to be made 26(a) 
 
 at last known place of residence 29(a) 
 
 see "Absent defendants,'' ante. 
 
 reference to master on — 
 
 on facts admitted in bill 110(6) 
 
 when authorized 412(a) 
 
 court rules on 412(a), 413, n. 
 
842 INDEX TO F0BM8 AND NOTES. 
 
 Partition — 
 
 reference to master on — page. 
 
 waiver of irregularity in 413, n. 
 
 effect of consent to 413, n. 
 
 after death of a party 413, n. 
 
 return of commissioners in — 
 
 form 442 
 
 general principles governing 442(a) 
 
 errors in 442(a) 
 
 practice on 442(a) 
 
 schedule to 444 
 
 signing of 444(a) 
 
 recording of 446(a) 
 
 review of proceedings on 421(a) 
 
 right to 402(a), 403, n. 
 
 sale on — 
 
 in case of a particular estate 402(a) 
 
 right of complainant to have 402(a) 
 
 mode of determining question of. 415(o) 
 
 in separate parcels 418(a) 
 
 may be public or private 420(a) 
 
 right of purchaser on 421(a) 
 
 by master '. 420(6) 
 
 report on 421 
 
 verification to report on 423 
 
 order confirming 424 
 
 when sale confirmed 424(a) 
 
 statutes concerning 402(a), 404, n., 405, n , 406(a), 417(a), 
 
 418(a), 419(a), 420(a), (6), 423(a), 424(a), 
 428(a), 430(a), 442(a) 
 
 searches, fees for 447(a) 
 
 setting aside — 
 
 on report of sale 420(6) 
 
 appeal from order 421(a) 
 
 when prejudicial 403, n., 442(a) 
 
 for error 442(a) 
 
 share on — 
 
 mode of estimating 403, n. 
 
 of party absent 428(a) 
 
 lunatic, &c 442(a) 
 
 general principles as to 439(a), 442(o) 
 
 testimony on 110(6) 
 
 unknown owner in 28 28(a) 
 
 Paupers — 
 
 appeal, right to 187, n. 
 
 complainants — 
 
 petition of, for assignment of counsel 72 
 
INDEX TO FORMS AND NOTES. 843 
 
 Paupers — 
 
 complainants— page. 
 
 statute on 72(a) 
 
 verification of petition 72, 72(6) 
 
 order assigning counsel for 73 
 
 when notice of application required 73(a) 
 
 in case of divorce 454, n. 
 
 defendants — 
 
 right to defend as 72(a) 
 
 petition of, for leave to defend 73 
 
 order assigning counsel for 74 
 
 general principles and practice — 
 
 practice after answer filed 73(a) 
 
 privileges in case of. 73(o) 
 
 when party may be dispaupered 73(a) 
 
 allowances to 73(a) 
 
 administrators, &c., cannot sue as 73(a) 
 
 notice of motion by 274, n. 
 
 Payment of money into court — 
 
 notice of motion for, upon admissions 137 
 
 to abide the event 137(a) 
 
 at what time application for, to be made 137(a) 
 
 reasons for 137(a) 
 
 on admissions 137(a) 
 
 in what particular cases made 137(a) 
 
 case of insecurity of funds 137(a) 
 
 not unless due or admitted 137(o) 
 
 effect of parol admissions 137(a) 
 
 upon answer, examination or report 137(o) 
 
 effect of affidavits on motion for 137(o) 
 
 as to actual amount due 137(o) 
 
 money in the hands of executor's partner 137(a) 
 
 in case of money in hands of executor or trustee 137(a) 
 
 of actual balance 138, n. 
 
 in case of vendor and purchaser 138, n. 
 
 specific performance 138, u. 
 
 order for 138 
 
 as to principal and interest 138(a) 
 
 reasonable time to make » 138(a) 
 
 motion to rescind order for 138(a) 
 
 is a collateral security, not payment 138(a) 
 
 affidavits in support of motion for ". 138(o) 
 
 in case of bill to redeem 138(a), 345(6) 
 
 plea of tender 138(o), 345(6) 
 
 foreclosure 345(6) 
 
 suits on bond or ejectment in foreclosure 346, u. 
 
 on redemption of mortgaged premises 378, n. 
 
 in case of interpleader 480(a) 
 
844 INDEX TO FOBMS AND NOTES. 
 
 Perpetuating testimony — page, 
 
 bill for 489 
 
 in what cases bill may be filed for 489(a) 
 
 necessary statements in bill for 489(a) 
 
 prayer in bill for. 489(a) 
 
 distinction between bills for relief and discovery,: 490, n. 
 
 demurrer to 491(a) 
 
 interest of complainant in 491(J) 
 
 affidavit to bill for 493 
 
 practice as to affidavit to bill for 493(a)' 
 
 defence to bill for 493(a) 
 
 procedure on 493(a), 494, n, 
 
 answer on 494, n. 
 
 Personal property, distribution of— 
 
 see " Distribution of personal property," ante. 
 Petitions — 
 
 address of. 1(J). 
 
 admission of parties, on^- 
 
 to be admitted as defendant 283 
 
 administration ad prosequendum, for 58 
 
 answer — 
 
 by wife for leave to make separate (two forms) 82 
 
 appeal, of — 
 
 form of, to Court of Appeals 194 
 
 creditor's bill, on — 
 
 by creditor to be admitted as a party 527 
 
 distribution of personal property — 
 
 of application for 713 
 
 divorce — 
 
 in case of adultery 456 
 
 desertion 457 
 
 for alimony pendente lite. 465 
 
 foreclosure — 
 
 for receiver in ; 372 
 
 guardian ad litem — 
 
 by infant over fourteen years for 53 
 
 on behalf of infant under fourteen years for 55 
 
 habeas corpus, for 475 
 
 injunction, for — 
 
 to stay waste after bill filed 295 
 
 decree 297 
 
 master. 
 
 300 
 
 insolvent corporations — 
 
 by complainant for receiver's discharge 553 
 
 receiver for a discharge 554 
 
 lunatics, idiots and drunkards — 
 
 for commission of lunacy 638. 
 
INDEX TO FOKMS AND NOTES. 845 
 
 Petitions — 
 
 lunatics, idiots and drunkards— page. 
 
 for commission of idiocy 641 
 
 against habitual drunkard 642 
 
 to set aside inquisition of lunacy 656 
 
 drunkard 657 
 
 by guardian for sale of land of. 661 
 
 new execution, for 226 
 
 new trustee — 
 
 for appointment of. 720 
 
 poor persons — 
 
 by complainant for counsel 72 
 
 defendant for leave to defend as 73 
 
 proceedings against a purchaser — 
 
 to compel purchaser to complete purchase 253 
 
 production of papers — 
 
 form for 74 
 
 for inspection and 78 
 
 rehearing, for 182 
 
 review, bill of — 
 
 for leave to file 507 
 
 sale of lands — 
 
 infants, of — 
 
 for order for 669 
 
 limited over — 
 
 for order for 682 
 
 of non-resident guardian for ward's property 700 
 
 lunatics, &c., of — 
 
 by guardian for 661 
 
 presumption of death, on — 
 
 by devisee for 703 
 
 administrator for payment of debts 711 
 
 scire faciaii — 
 
 for writ of. 322 
 
 surplus money — 
 
 common form of. 256 
 
 by administrator, &c 262 
 
 writ of assistance, for 204 
 
 Plea- 
 constituent parts of — 
 
 affidavit to .' 92 
 
 certificate of counsel to 92 
 
 statute on affidavit and certificate to 92(a) 
 
 practice on omission of affidavit and certificate to 92(a) 
 
 title and commencement of. 96 
 
 conclusion of. 97 
 
 signature of counsel to 97(a) 
 
846 INDEX TO FORMS AND NOTES. 
 
 Plea- 
 defences under — page. 
 
 on untrue statement of residence in bill 2(a) 
 
 single aflSrmative, to avoid discovery 96(o) 
 
 several, by leave of court 96(o) 
 
 what, may be made 97(a) 
 
 former suit pending- 
 form of. 98 
 
 must be in a court of equity 98(a) 
 
 subject-matter to be the same 98(a) 
 
 as to identity of parties 98(a) 
 
 mode of pleading 98(o) 
 
 in another state 117(a) 
 
 forms of — 
 
 that defendant is not personal representative 97 
 
 and answer by heir-at-law 98 
 
 of former suit pending 98 
 
 by an executor 98(o) 
 
 to the jurisdiction by a foreign corporation 99 
 
 issue on — 
 
 on reply 100(a) 
 
 effect of determination on 100(a) 
 
 proof on 100(a) 
 
 entry of, for argument after lOO(o) 
 
 orders on- 
 saving benefit till the hearing 100 
 
 sustaining 101 
 
 overruling, on default 102 
 
 after argument 102 
 
 directing to stand for answer 103 
 
 principles and practice on — 
 
 sufficiency of averments to sustain 96(a) 
 
 leave to file, after demurrer overruled 96(a) 
 
 under order to answer, not to file 96(a) 
 
 when to be considered as true 100(a) 
 
 definition and eflfect of benefit reserved 100(6), 101, n. 
 
 United States practice on allowance of. 101(a) 
 
 allowance of, dissolves injunction 101(a) 
 
 amending bill, not an allowance of. 101(a) 
 
 effect of motion confessing truth of 101(a) 
 
 leave to demur after overruling of. 102(a) 
 
 answer to be put in after overruling of. 100(a), 102(a) 
 
 when answer filed with 102(a) 
 
 replication to — 
 
 form of 100 
 
 statute on 100(a) 
 
 to be put in on allowance of 100(a) 
 
INDEX TO FOEM8 AND NOTES. 847 
 
 Plea- 
 Stand for answer, to — page. 
 
 order directing 103 
 
 when court will order 103(a) 
 
 amendment of plea or to 103(o) 
 
 exceptions on 103(o) 
 
 costs on 103(o} 
 
 motion to dissolve injunction on 103(o) 
 
 Plea and answer 98 
 
 Pleadings, legibility of 1(a) 
 
 Postea — 
 
 see " Feigned issue," ante. 
 Post-ofSce address — 
 
 mailing of notice to absent defendant's 25, n. 
 
 affidavit of mailing notice to 31(a) 
 
 amendment of affidavit as to 31(a) 
 
 last known place of residence as 29(a), 32, n. 
 
 Prayer for process — 
 
 see "Bill, ' constituent parts of,'" ante. 
 Prayer for relief — 
 
 see " Bill, ' constituent parts of,' " ante. 
 Premises or stating part — 
 
 see " Bill, ' constituent parts of,' " ante. 
 
 Printed cases and briefs on appeal 197, 19V(o) 
 
 Probate of will, statement of — 
 
 by what executors to be made 6, n. 
 
 necesssity for, in bill 6, n. 
 
 sufficiency of, in bill 6, n. 
 
 allegation of, before actual probate 6, u. 
 
 Process — ' 
 
 mesne — 
 
 master's summons on exceptions 62 
 
 foreclosure 354 
 
 subpoena ad testificandum , 156 
 
 on lunacy 648 
 
 see also " Executions,'' ante. 
 original — 
 
 against Chancellor , 1(6) 
 
 issue and service of, to make party 12(a) 
 
 prayer for — 
 
 common form 12 
 
 against United States or state 12 
 
 corporation : 13 
 
 in case of injunction 13 
 
 ne exeat 14 
 
 subpoena ad respondendum 18 
 
 endorsement of subpcena ad respondendum 20 
 
548 INDEX TO FORMS AND NOTES, 
 
 Process — 
 
 original — PAGE. 
 
 against the state 22 
 
 citation in divorce 21, 459 
 
 see also " Subpoena," post. 
 Prochein ami — 
 
 see " Next friend," ante. 
 
 Proclamation and commission of rebellion abolished 39(a) 
 
 Pro confesso, decree — 
 
 against absent defendants 25, n. 
 
 common form of "^ 
 
 practice on 34(a), 35, n. 
 
 on third insufBcient answer 130 
 
 in foreclosure 350 
 
 see also " Decrees," ante. 
 Proofs, order for — 
 
 form of, ex parte I'O, 170(a) 
 
 to stand over to supply 177, 177(a) 
 
 Publication of notice — 
 
 see "Absent defendants," ante. 
 .Publication, order of — 
 
 against non-resident lunatic ' 20, n. 
 
 heirs of deceased respondent on appeal 187, n. 
 
 see also "Absent defendants," ante. 
 Purchaser, proceedings against — 
 
 complete purchase on execution sale, to — 
 orders — 
 
 to show cause 255 
 
 absolute 255 
 
 service of. ' 255(a) 
 
 petition for 253 
 
 principles applicable to — 
 
 power of court over 253(a) 
 
 when purchaser may be discharged 253(a) 
 
 when purchaser not a party to suit 253(a) 
 
 may be ordered to, in a summary way 253(a) 
 
 sheriff's right of action on 253(o) 
 
 measure of damages on resale 253(a) 
 
 when resale may be refused 253(a) 
 
 enforcement of, by process for contempt 255(a) 
 
 -Quieting title — 
 
 absent defendants — 
 
 statute on 617(a) 
 
 see also "Absent defendants," ante. 
 
 answer on 61S(a), 620(a) 
 
 appeal , 621, n. 
 
INDEX TO F0BM8 AND NOTES. 849 
 
 Quieting title — 
 
 bill for— PAGE. 
 
 form 615 
 
 when bill will lie 616(a> 
 
 statements in 615(a)' 
 
 costs on 620(a> 
 
 decree — 
 
 form : 620 
 
 when costs allowed by 620(a) 
 
 effect of. .'. 620(o) 
 
 against infant 621, n. 
 
 feigned issue on — 
 
 form 618 
 
 in what county tried 618(6) 
 
 peaceable possession as a condition for 618(6) 
 
 statute on 620(a) 
 
 incorporeal heriditameuts, in case of 615(a) 
 
 jurisdiction of chancery over 615(a) 
 
 occupation as giving right to 615(a) 
 
 possession as giving right to 615(a), 618(6) 
 
 rehearing when allowed , 620(a) 
 
 statute on 615(a) 
 
 ticket on bill for — 
 
 form of. 618 
 
 statute on 618 (o) 
 
 Ee-argument — 
 
 practice as to 188, n. 
 
 Receivers — 
 
 alimony, in case of. 468(a) 
 
 appeal from decree appointing 188, n. 
 
 appointed after pro confeeso, as parties 843, n. 
 
 creditor's bill, on — 
 
 notice of motion for 519 
 
 discovery, on — 
 
 bill, praying for appointment of 496 
 
 relief by, provided by statute 497, n. 
 
 may file bill to free property from lien 497, n. 
 
 effect of answer on appointment of 497, n., 498, n. 
 
 appointment of, on master's report 498, n. 
 
 authority of. 498, n. 
 
 when appointed of course 498, n. 
 
 statute on 498, ii. 
 
 . affidavit to bill praying for, &c 500 
 
 see also " Foreclosure, ' receivers,' '' ante. 
 
 " Insolvent corporations, ' receivers,' " ante, 
 3d 
 
850 INDEX TO POEMS AND NOTES. 
 
 Eedemption of mortgaged premises — 
 
 bill for — PAGE. 
 
 form of 377 
 
 offer to pay to be stated in 378, n. 
 
 costs on 378, n., 384(a) 
 
 decree for — 
 
 form of 384 
 
 directions in ^ 384(o) 
 
 to compel second mortgagee to redeem 628 
 
 setting aside ". 629, u. 
 
 extent of. 378, n. 
 
 orders — 
 
 confirming report on 385 
 
 dismissing bill for 385 
 
 parties to 377(a), 378, n. 
 
 payment on 377(a), 378, n. 
 
 purchaser of equity of redemption, obligation for 377(o 
 
 may call for 628(6 
 
 right of — 
 
 sfatute on 345(5 
 
 persons having interest in premises 377(a 
 
 second encumbrancer 377(o 
 
 on tender and refusal 345(J), 377(a' 
 
 not restricted to time or class 377(a' 
 
 mortgagor's 377(a 
 
 widow entitled to dower 377(a^ 
 
 price of purchase-money as affecting 378, n. 
 
 purchaser, after tax sale 378, n, 
 
 heira-at-law 378, n 
 
 part owner 378, n 
 
 purchaser at foreclosure sale 378, n 
 
 to call for 628(6 
 
 time of — 
 
 not restricted 377(o 
 
 direction in decree as to 384(a 
 
 discretionary 384(a 
 
 when allowed, not to be enlarged 384(a 
 
 effect of failure to redeem within 385(a 
 
 Keferences — 
 
 when facts in bill are admitted in answer 110(6) 
 
 on answer not setting up defence 107(6), 348, n. 
 
 by encumbrancer praying for decree 349, n. 
 
 see " Master's reports," ante. 
 " Orders," ante. 
 Reformation of instruments — 
 
 see " Mistake in instruments," ante. 
 
INDEX TO F0EM8 AND NOTES. 851 
 
 Eehearing — 
 
 allowance of— page. 
 
 power of court to grant before enrolling 182(6) 
 
 in the federal courts 183, n. 
 
 for newly-discovered evidence 183, n. 
 
 error 183, n. 
 
 to advance ends of justice 183, n. 
 
 rest upon merits of the case 183, n. 
 
 for mistake of law or fact 183, n. 
 
 on account of absence of defendant 183, n. 
 
 for complainant's equity 183, n. 
 
 not to be on cumulative evidence 183, n. 
 
 for neglect of solicitor 183, n. 
 
 in Court of Errors and Appeals 186, n. 
 
 is discretionary 182(6), 186(a) 
 
 appeal on 188, n. 
 
 caveat against enrolling final decree — 
 
 form of 185 
 
 practice on filing of. 185(o) 
 
 certificate of counsel on — 
 
 as to granting, on 183, n. 
 
 form of 185 
 
 costs on 186(a) 
 
 efTect of, to open whole case 183, n. 
 
 notice of presenting petition for — 
 
 form of. 185 
 
 practice on 184, n., 185(6) 
 
 order for — 
 
 form of. 185 
 
 efiect of; as a stay 185(c) 
 
 petition for — 
 
 form of 182 
 
 to be presented before enrolling 182(6) 
 
 signing of. 183, n. 
 
 when by one counsel 183, n. 
 
 statements in 18.3, u., 184, n. 
 
 service of copy of. 184, n. 
 
 practice on- — 
 
 opening and closing of argument on 183, n. 
 
 in Court of Errors and Appeals 185(c), 186, n. 
 
 United States Supreme Court 186, n. 
 
 as to terms 186(a) 
 
 ■quieting title, in case of. 620(a) 
 
 submission of cause on, without argument — 
 
 as to signature of counsel 183, n. 
 
 when granted of course 184, n. 
 
852 INDEX TO FORMS AND NOTES. 
 
 Rehearing — 
 
 Vice Chancellor, on decrees by— page. 
 
 how obtained 184, n. 
 
 certificate on 184, u. 
 
 application for, to whom made 184, n. 
 
 who to rehear 1°*, n. 
 
 Relator — 
 
 when information exhibited without 6(o) 
 
 efiect as to costs when state sues without 6(o), 7, n. 
 
 introduction to bill with 7 
 
 for lunatic 7 
 
 practice as to, in case of lunatic 4(a), 7(o) 
 
 may make application for a feigned issue 245(6) 
 
 right of, to move for injunction 289, n. 
 
 Eelease — 
 
 dower, of — 
 
 form of > 678 
 
 practice on 678(6), 679, n. 
 
 partition, in — 
 
 by distributee to master 433 
 
 acknowledgment of. 434 
 
 Eelief— 
 
 bills for— 
 
 against a judgment at law — 
 
 form of. 558 
 
 cancellation of judgments 558(a) 
 
 when bill will not lie 558(a), 559, u. 
 
 , incases of attachment 559, u. 
 
 eifect of equitable defence at law 559, n. 
 
 election 559, n. 
 
 jurisdiction of chancery over judgments 558(a), 559, u. 
 
 artifice and fraud as a ground for 558(a), 559, n. 
 
 non-residence as a stay 559, u. 
 
 by next of kin for distributive share — 
 
 form 594 
 
 jurisdiction of chancery over legacies, &c 594(a) 
 
 grounds for 594(a) 
 
 by surety to compel payment of debt by principal — 
 
 form 588 
 
 subrogation of surety 588(a) 
 
 rights of surety against principal 588(a) 
 
 indemnity allowed ; 588(a) 
 
 effect of payment by surety 588(a) 
 
 when surety not entitled to relief. 688(a) 
 
 in case of one surety for several principals 588(a) 
 
 cancellation of bond and mortgage — 
 
 form of 566 
 
INDEX TO FOEMS AND NOTES. 853 
 
 Eelief— 
 
 bills for — 
 
 cancellation of bond and mortgage — pAOB. 
 power of chancery over cancellation of instru- 
 ments 566(o) 
 
 assignee of bond subject to equities 566(a) 
 
 compelling payment of excess of mortgage debt — 
 
 form of 576 
 
 jurisdiction of equity over assumption of payment, 576(a) 
 
 right of mortgagee to decree for deficiency 579(a) 
 
 enforcing liability of directors of corporation — 
 
 form 580 
 
 jurisdiction of chancery over misfeasance 580(a) 
 
 establishment of lost will — 
 
 form of 602 
 
 examination of witnesses to will 602(o) 
 
 in case of death of witnesses to will 602(a) 
 
 satisfactory proof required 603, n. 
 
 as to secondary evidence 603, n. 
 
 setting aside conveyance for fraud — 
 
 form 606 
 
 definition of ejectment bill 606(a) 
 
 jurisdiction of chancery over 606(a) 
 
 fraud as a ground of relief 606(a), 607, n. 
 
 in case of intoxication 607, n. 
 
 for inadequacy of price 607, n. 
 
 general principles as to— 
 
 effect of mistake of claim to 7(6) 
 
 unusual frame of bill as afiecting 7(5) 
 
 defence at law as a bar to 8, n. 
 
 bill to show grounds for 7(6), 8, u., 9, n., ll(o) 
 
 decree to conform to grounds of. 361(a) 
 
 prayers for — 
 
 general — 
 
 form of 11 
 
 eflfect of. 11(«) 
 
 dismissal of bill for want of. 142(o) 
 
 amendment of 343, n. 
 
 special — 
 
 effect of. 11(1) 
 
 on injunction ll(<i) 
 
 dismissal of bill for want of. 142(a) 
 
 amendment of 11(a), 136, n., 343, n. 
 
 in case of receiver 372(o) 
 
 perpetuating testimony 489(a) 
 
 for receiver over partnership 538 
 
 estate of testator 539 
 
 see also " Bill," ante. 
 
854 INDEX TO FOEMS AND NOTES. 
 
 Eemoval — 
 
 cause, of— page, 
 
 to United States Supreme Court 198(a) 
 
 persons, of — 
 
 of complainant pending suit 2(a) 
 
 party entitled to order to ansvper 37, u. 
 
 sheriff or officer 241(a), 242, n. 
 
 solicitor 281(6) 
 
 ward's property, of— 
 
 petition for VOO 
 
 practice on 700(a), 701, n. 
 
 affidavit to petition for 701 
 
 notice of application for 702 
 
 order for 702 
 
 statutes on ; 666(o), 667, n., 700(o), 701, n., 726(o) 
 
 Keplication — 
 
 amendments to bill after — 
 
 order for leave to withdraw 134 
 
 extension of time for filing 135, n. 
 
 after filing , 143(aJ 
 
 to be made instead of filing special 143(a) 
 
 practice on 134(a), 144, m. 
 
 answer, to — 
 
 general form 143 
 
 costs of motion to dismiss for failure to file 144, n. 
 
 filing of — 
 
 cause at issue on 143(a) 
 
 time of 143(o) 
 
 at the hearing 144, n, 
 
 nunc pro time 144, n, 
 
 after notice to dismiss 144, n. 
 
 the hearing 174, u. 
 
 issue on — 
 
 determination on 100(a) 
 
 when cause at, on filing of. 143(a), 144, u. 
 
 plea, to — 
 
 when must be filed 100(a) 
 
 determination of issue on 100(a) 
 
 right to file lOO(o), 143(a) 
 
 when issue to be entered for argument on 100(a), 143(a) 
 
 form of. 100, 144 
 
 admission of sufficiency 144, n. 
 
 practice on — 
 
 statutes on 100(a), 143(a> 
 
 one only to be filed 143(a) 
 
 dismissal of bill after filing of. 143(a) 
 
 withdrawal of, in case of amendment 144, n. 
 
 rules on lOO(o), 143(a), 144, n. 
 
INDEX TO FOEMS AND NOTES. 855 
 
 Replication — 
 
 principles governing — page. 
 
 one only allowed 143(a) 
 
 special, use of, discontinued 143(a) 
 
 effect of not filing, on truth of answer 144, n. 
 
 denial of facts by 144, n. 
 
 rule to rejoin unnecessary 143(a) 
 
 special — 
 
 use of, discontinued 143(a) 
 
 amendment to bill in lieu of. 143(a) 
 
 subpoena to rejoin unnecessary... 143(a) 
 
 supplemental bills, to 504(a) 
 
 Eeports — 
 
 administrator, of — 
 
 on sale of land on presumption of death 709 
 
 guardian, of — 
 
 on sale of infant's lands 677 
 
 of investment and disposition of proceeds of sale 681 
 
 see " Master's reports," ante. 
 Residence — 
 
 complainant, of — 
 
 to be stated in bill 2(a) 
 
 effect of misstating 2(a) 
 
 omission of. 2(a) 
 
 in case of no permanent 2(a) 
 
 change of, after bill filed 2(a) 
 
 of next friend of married woman to be stated 3(a) 
 
 married woman 3(a) 
 
 infant 3(6) 
 
 lunatic 4, u. 
 
 next friend of infant, lunatic, &c 4, n. 
 
 defendant, of — 
 
 service of process at 18(a), 19, n. 
 
 of husband living apart from wife 19, n., 28(o) 
 
 information as to 24, n., 31(a) 
 
 amendment of atfldavit of mailing to 32, n. 
 
 place named in deed as 32, n. 
 
 "diligent and careful inquiry" 32, n. 
 
 in case of corporation 32, n. 
 
 change of, pending suit 37, n. 
 
 Restraining order — 
 
 common form of 289 
 
 definition of. 290(a) 
 
 form of, in case of insolvent corporation 534 
 
 Retaining bill — 
 
 see " Hearing," ante. 
 
856 INDEX TO FORMS AND NOTES. 
 
 Return of subpoena — 
 
 see " Subpoena," post. 
 Eeview, bill of — 
 
 bills, forms of— P-*-GE- 
 
 for errors of law ""° 
 
 on discovery of new matter 51" 
 
 demurrer to, effect of. 508(o) 
 
 deposit on filing • 508(a) 
 
 leave to file — 
 
 petition for ■• ""' 
 
 practice regarding 507(0) 
 
 when errors are apparent 507(a) 
 
 conclusiveness of faols in petition for 507(a) 
 
 order for 508 
 
 efiect of omission of. 508(a) 
 
 nature of. 507(a) 
 
 practice on 507(a), 508(a) 
 
 principles applicable — 
 
 object of. 507(a) 
 
 when allowed 507(a) 
 
 eflfectof enrollment of decree 507(o) 
 
 new matter as a ground for 508(o) 
 
 does not stay proceedings 508(a) 
 
 Bevivor — 
 
 see "Abatement and revivor,'' ante. 
 
 " Supplemental bills, ' bills of,' " post. 
 Eules of court — 
 
 abandonment of suit, on 90, n., 142(a) 
 
 absent defendants, in case of — 
 
 in wbat county publication to be made 26(a) 
 
 notice to 30(a) 
 
 in case of divorce 34(a) 
 
 affidavits — 
 
 used on special motions 279, n. 
 
 hearing 279, n. 
 
 on extension of time 279, n. 
 
 amending bill — 
 
 when complainant may of course 132(a) 
 
 after demurrer 94(a), 133, n. 
 
 on overruling plea or demurrer 133, n. 
 
 when costs to be paid on 133, n. 
 
 copy of amendments to be furnished 133, n. 
 
 answer — 
 
 commission to take — 
 
 before whom oath may be taken on 
 
 86(5), 87, n., 113(o), 115(o) 
 not raising a defence , 107(6) 
 
INDEX TO FORMS AND NOTES. 857 
 
 Eules of court — 
 
 answer — 
 
 proceedings to compel — page. 
 
 order for 36(a), 37, n. 
 
 writ of attachment on 38(6) 
 
 bond on attachment on 39(i) 
 
 appearance on 39(6) 
 
 examination of defendant in case of 39(6), 40, n. 
 
 appeal — 
 
 notice of, statements in 188, n. 
 
 when process on final decree not to issue after 188, n. 
 
 service of notice of. 189(a) 
 
 from interlocutory decree not to stay suit 189(6) 
 
 order for execution notwithstanding an 194(a) 
 
 petition of, when to be presented 194(6) 
 
 practice on 194(6), 195, n. 
 
 answer to petition of 195(a) 
 
 when to be brought on and noticed 196(a) 
 
 effect of failure of parties to appear on 196(a) 
 
 who is considered as solicitor on 196(6) 
 
 order of hearing 196(6) 
 
 time allowed on 197, n. 
 
 state of the case on 197(a) 
 
 points and authorities to be furnished on 197(o) 
 
 costs on 198(a), 201(a) 
 
 bill- 
 charge of confederacy in, abolished 9(a) 
 
 prayer for process in (United States courts) 12(a) 
 
 amendments of 12(a) 
 
 to be signed by counsel 15(a) 
 
 verification of, in ease of injunction 16(6) 
 
 aflBdavit to, in case of corporation 17(a) 
 
 Chancellor, when a party 1(6) 
 
 conduct of cause- 
 when defendant may have 139(a) 
 
 practice by defendant on 139(a) 
 
 contempt for violating injunction — 
 
 attachment on 45(6), 46, n. 
 
 bond in case of 46, n. 
 
 appearance in case of. 46(a) 
 
 examination upon interrogatories on 47 (a) 
 
 master's report on 48, n. 
 
 cross-bill, as to 511, n. 
 
 decree — 
 
 final — 
 
 when execution for costs allowed by.. 180(6) 
 
 entry of, after final hearing 180(c) 
 
858 INDEX TO FORMS AND NOTES. 
 
 Rules of court — 
 
 decree — 
 
 final— PAGE. 
 
 objection to form of, how waived 179, n., 181, n. 
 
 award of costs in, how waived... 181, n. 
 
 when may be enforced 181, n. 
 
 pro confesso — 
 
 entry of. 34(a) 
 
 signing of. 34(a) 
 
 demurrer — 
 
 objection to bill without filing 89(6) 
 
 statement of want of equity, when suificient 93, n. 
 
 amendment of bill after 94(o) 
 
 dismissal of bill — 
 
 when to be on notice 140(a) 
 
 for want of prosecution 142(a) 
 
 after replication filed and proofs taken 143(o) 
 
 divorce — 
 
 name of adulterer to be stated in the bill 453(a) 
 
 taking of evidence in 455(a) 
 
 reference to be to special master 459(6) 
 
 when no reference will be ordered 459(6) 
 
 report of facts on desertion 460(o), 461, n. 
 
 signing of decree on 463(a) 
 
 dower and curtesy — 
 
 computation of gross sum to be paid on 449(a) 
 
 examination of witnesses — 
 
 notice of application for commission on 146, n. 
 
 application for commission after cause at issue 147(a) 
 
 practice on commission for 148(a) 
 
 nomination of commissioners for 148(6) 
 
 return of commission on 149(a) 
 
 names of witnesses in commission 150(a) 
 
 interrogatories to be furnished 150(a) 
 
 subpoena ad testificandum 156(6), 157, n. 
 
 mode of. 160(0)' 
 
 when to be commenced and closed 160(a) 
 
 issue joined on plea 160(a) 
 
 what examiner may take testimony 160(a) 
 
 testimony in rebuttal 161, ii. 
 
 adjournment on 160(o), 161, n. 
 
 extension of time for 161, n. 
 
 computation of time on 161, n. 
 
 stenographer's fees on 162, n. 
 
 deposition on, how taken down 162, n. 
 
 exhibits on 162, n. 
 
 form and requisites of deposhion on 162, n., 163, u. 
 
INDEX TO FORMS AND NOTES. 859 
 
 Eules of court — 
 
 examination of witnesses — page. 
 
 'filing of depositions on 163, n. 
 
 as to agreement of examiner 161, n., 164, n. 
 
 before Vice Chancellor or advisory master 164, n., 165, n. 
 
 as to documentary evidence 165(o) 
 
 de bene esse within the state 165(6) 
 
 extension of time for 161, n., 166(a} 
 
 affidavits used on, practice as to 166(6), 167, n. 
 
 to extend time for 167, n, 
 
 cause to be noticed for hearing after 168, n, 
 
 when proceedings to be ex parte 170(a) 
 
 before examiner in business with party 283, n, 
 
 exceptions — 
 
 answer, to — 
 
 as to scandal, &o 119(a) 
 
 practice on 120, ii.. 
 
 reference on, to one master 120, n, 
 
 when to be taken 122(a), 123, n> 
 
 a,mendment of bill after report on 124, n. 
 
 submission to 121, n., 125(a) 
 
 practice after submission to 125(a) 
 
 failure to consent to expunge on submission 125(6) 
 
 bill, to— 
 
 how taken 61(o) 
 
 service of copy of. 61(a) 
 
 reference to master on 61(a) 
 
 be to one master 61(a) 
 
 submission to , 61(a) 
 
 objection to bill without filing 61(a), 62, n. 
 
 reference and practice on 62(o) 
 
 report on 63(a) 
 
 procedure on reference on.... 1 63(o) 
 
 on what day may be set down for hearing 65(o) 
 
 setting down for hearing 65(a), 66(a), 67, n. 
 
 notice of setting down for hearing 67, n. 
 
 interrogatories, to 116, n. 
 
 execution — 
 
 when complainant entitled to 210(a) 
 
 directed to sheriff. 210(a) 
 
 master 210(o) 
 
 for costs 214(a) 
 
 return of, by sheriff. 212(6), 283(a) 
 
 report of sale of land under 235(a} 
 
 foreclosure — 
 
 what bill for, to contain 335(a) 
 
 bond and mortgage not to be#et out in bill for 336, n.- 
 
860 INDEX TO FORMS AND NOTES. 
 
 Eules of court — 
 
 foreclosure — page. 
 
 practice on reference on •'• 347(a) 
 
 in case of infant defendants on 348, n. 
 
 reference on, when answer sets up no defence 348, n., 349, n. 
 
 when report on, to be made without reference 347(a), 352(a) 
 
 master's summons, on service of. 354(o) 
 
 procedure on reference on 354(a) 
 
 reference on, after decree pro confesso 355(a) 
 
 report on, rule nisi to confirm 107(6), 355(a) 
 
 rights of defendants in 355(a) 
 
 when complainant entitled to final decree on 356, u. 
 
 service of rules nisi on 356, n. 
 
 depositions annexed to report on 356, n. 
 
 guardian ad litem — 
 
 assignment of clerk as 49(6), 50, u. 
 
 notice to infant 50, n. 
 
 petition, affidavits and consent on 53(n) 
 
 hearing — 
 
 setting cause down for 171(a) 
 
 day for final 171(a) 
 
 when issue is on plea 171(a) 
 
 decree to be signed in ex parte divorce' 171(o) 
 
 on objection to plea 171(a) 
 
 when equities are settled, day for final 171(o) 
 
 terms of court 172(a) 
 
 not to be set down for, after twentieth day 172(a) 
 
 notices of, how served 172(a) 
 
 for what term cause to be noticed for 172(a) 
 
 costs on failure to attend 172(a) 
 
 argument ordered ofi' at - 172(a) 
 
 on exceptions to master's report ^. 173(a) 
 
 briefs on cause submitted .' 173(6) 
 
 papers to be furnished at 173(6) 
 
 procedure at 173(6), 174, n. 
 
 on reference to Vice Chancellor 174, n., 175, n. 
 
 adjournment of, by Vice Chancellor 175, n. 
 
 procedure at, before Vice Chancellor 175, n. 
 
 on reference to advisory master 175, n. 
 
 application for reference to Vice Chancellor 176(a) 
 
 proceedings before Vice Chancellor to final decree 176(a) 
 
 injunctions — • 
 
 when granted on merits 287, n. 
 
 against corporations or public works 287, n. 
 
 affidavits for, by whom made 287, ii. 
 
 motion for, on what day noticed 289, n. 
 
 after answer filed.....* 289, n. 
 
INDEX TO FOEMS AND NOTES. 861 
 
 Rules of court — 
 
 injunctions — page. 
 
 as to orders to show cause on 289(a), 290, n. 
 
 regular course on order to show cause on 290(a) 
 
 endorsement of denial of. ... 290(6) 
 
 when writ of, must be issued 291(a) 
 
 to restrain proceedings at law 292(a), 293, n. 
 
 injunction master 300(a) 
 
 practice on, by Vice Chancellor , 300(a) 
 
 bond on, exparte 301(a) 
 
 in ejectment suit 302(a) 
 
 motion to dissolve before answer 304(a) 
 
 papers to be used on motion to dissolve 304(a) 
 
 insolvent corporations — 
 
 rules applicable to 534(a) 
 
 interrogatories, as to 115(*)) 116, u. 
 
 joinder of complainants, as to 3(a) 
 
 lunatics, idiots and drunkards — 
 
 affidavits in case of. 641, ii. 
 
 practice on execution of commission on 643(a) 
 
 notice of inquisition 647(a) 
 
 examination of. 649(a) 
 
 execution and return of commission on 652(a) 
 
 decree in case of 654(a) 
 
 petition for sale of land of. 662, n. 
 
 reference on sale of land of. 663(a) 
 
 bond on sale of land of. 665(6), 666, n. 
 
 master, no sale by, in business with party 283, n. 
 
 motions — 
 
 notice of, to state day for 274, u. 
 
 motion, upon whom served 274, n. 
 
 what are days for 274, n. 
 
 effect of noticing, on days not enumerated 275, u. 
 
 notice of, times for service of 275, n. 
 
 costs on 276, n. (a) 
 
 me exeat 313(a) 
 
 new trustee — 
 
 application for, how made , 720(6) 
 
 notice of application for, service of 724(a) 
 
 orders, entry of. 277(a) 
 
 papers, production of — ' 
 
 inspection and copy of 74(a) 
 
 practice on 76(a) 
 
 partition — 
 
 reference to ascertain if actual, may be made 412(a), 413, n. 
 
 when answer on, sets up no defence 413, n. 
 
 notice of land to be sold free from dower, &c 417(a) 
 
862 INDEX TO F0BM8 AND NOTES. 
 
 Eules of court — 
 
 partition— page. 
 
 waiver of notice of selling land free of dower, &c 419(6) 
 
 master making report not to make sale 420(6) 
 
 appointment of commissioners to make 444(a) 
 
 plea — 
 
 need not be signed by counsel 97(a) 
 
 when to be entered for argument 100(a) 
 
 amendment after allowance of (United States courts) 101(a) 
 
 standing for answer, exceptions to 103(a) 
 
 rehearing — 
 
 petition for, what to contain 183, n. 
 
 copy of petition for, and notice of, to be served 184, n. 
 
 on causes submitted without argument 184, n. 
 
 of decrees by Vice Chancellor 184, n. 
 
 mveat against enrolling final decree 185(a) 
 
 notice of petition for, how served 185(5) 
 
 order for, not to stay proceedings 185(c) 
 
 replication — 
 
 to plea, argument on 143(a) 
 
 United States rule as to special 143(a) 
 
 after filing of, when defendant may bring on 144, n. 
 
 practice on (head-note) 144 
 
 sale of lands, infants, of — 
 
 petition for 669(a) 
 
 reference and practice on 670(a), 671, u. 
 
 amount of and approval of bond on 676(a), 677(a) 
 
 joining of widow on 678(6), 679, n. 
 
 disposition of proceeds on 679(a) 
 
 commissions of guardian on 680, n. 
 
 scire fadas — 
 
 as to revivor 322(a) 
 
 papers used on hearing 324(a> 
 
 subpoena ad respondendum — 
 
 names to be in one 20, n. 
 
 supplemental bill, on 502, n. 
 
 surplus money — 
 
 petitions for 256(a) 
 
 controversies to be settled on application for 256(a) 
 
 master's summons on reference for 258(o) 
 
 petition for, by executors, &c 262(6) 
 
 notice by executors, &c., on application for.., 265(6), 266, ii. 
 
 reference to master on 266(a) 
 
 when order for, on behalf of executor will be made 270(6) 
 
 bond by executor, &c., on 272(a) 
 
 typewritten papers, as to 1(a) 
 
 writ of assistance, practice on 206(a) 
 
INDEX TO FORMS AND NOTES. 863 
 
 Sale of land — page. 
 
 assignees for benefit of creditors, by 726(a) 
 
 infant, of — 
 
 petition for order for 669 
 
 affidavit to 670 
 
 who may present petition for 669(a) 
 
 order of reference on 670 
 
 reference to special master on 670(a) 
 
 duties of master on reference on 670(a), 671, n. 
 
 master's report on reference 672 
 
 evidence necessary on reference on 672(a) 
 
 necessity for, how determined 672(a) 
 
 guardian, not to be non-resident 671(a), 673(a) 
 
 order to appoint guardian and for sale 674 
 
 mode of sale 674(o) 
 
 death of guardian on 674(6) 
 
 bond of guardian on 676 
 
 execution of bond of guardian on 676(a) 
 
 as to bond of general guardian 676(o) 
 
 approval of bond of guardian 677, 677(o) 
 
 report of guardian on 677, 677(6) 
 
 affidavit to report of guardian 678 
 
 consent of widow, to join and release on 678, 678(a) 
 
 release of dower on 678 
 
 rule and statute on 678(6), 679, n. 
 
 order confirming ,679 
 
 commission of special guardians on 680, n. 
 
 in case of death of purchaser 680, n. 
 
 report of investment and disposition of proceeds 681 
 
 disposition and investment of proceeds of sale 676(a), 678(6), 
 
 679(a), 681 (o), (6), 682, n. 
 
 discharge of special guardian 682, n. 
 
 bond of general guardian on receipt of proceeds 682, n. 
 
 account byspecial guardian 682, n. 
 
 rules on 669(a), 670(a), 671, n., 
 
 676(a), 677(a), 678(6)^ 679, n. (a), 680, n. 
 
 statutes on 669(a), 674(a), (6), 676(a), 677(6), 
 
 678(a), 678(6), 679, n. (a), 680, n., 681(a), 682, n. 
 
 limitation over, in case of — 
 
 in case of infant's reversionary interest 672(o) 
 
 petition for 682 
 
 what estates conveyed by 683, u. 
 
 liens of encumbrancers on 683, n. 
 
 notice to owners of vested or prospective estates 684 
 
 order of reference 686 
 
 notice of application for guardian for infant 687 
 
 certificate as to no guardian for infant 687 
 
864 INDEX TO FORMS AND NOTES. 
 
 Sale of land — 
 
 limitation over, in case of — page. 
 
 order appointing guardian for infant 687 
 
 appearance of infant on 688 
 
 notice of taking testimony on 688 
 
 report of master on merits of application for 689 
 
 order for 691 
 
 report of. , 692 
 
 order confirming 693 
 
 master's report as to investment of proceeds of. 694 
 
 order for investment 695 
 
 power of Chancellor to order payment of mortgage 695(a) 
 
 forms of bonds and mortgages 696(a) 
 
 master's account and report of investment 697 
 
 order of reference in case of particular estates 697 
 
 report of master on reference, in particular estates 697 
 
 order of allowance to owners of particular estates 699 
 
 petition of non-resident guardian for property 700 
 
 affidavit to .^ 701 
 
 practice on removal of proceeds of 700(a), 701, n. 
 
 notice of application for payment, to non-resident 
 
 guardian 702 
 
 order for removal of property 702 
 
 statutes on 682(a), 683, n., 683(a), 684(a), 685, n., 
 
 686(o), 689(a), 691(a), 693(a), 695(a), 700(a), 701, n. 
 presumption of death, in case of— 
 
 statutes on 703(a), (5) 
 
 petition for, by devisee 703 
 
 as to presumption and proof of death 704, n. 
 
 order of reference, on devisee's petition 706 
 
 master's report, on devisee's petition 706 
 
 order for 707 
 
 bond of administrator to secure proceeds of. 709 
 
 report of administrator on 709 
 
 order confirming 710 
 
 petition for, by administrator to pay debts 711 
 
 order of reference, as to debts 712 
 
 trustees, &c., by, to pay encumbrances 726(a) 
 
 see " Execution," ante. 
 
 " Foreclosure, ' execution on,' " ante. 
 " Lunatics, idiots, &c., ' sale of land,' " ante. 
 Scandal — 
 
 definition of 119(a), 120, n. 
 
 inafiSdavit 278(o) 
 
 see " Exceptions, ' answer to,' " ante, 
 'hill to,'" ante. 
 
INDEX TO FORMS AND NOTES, 865 
 
 Scire facias — page. 
 
 petition for writ of 322 
 
 when execution may issue 322(a) 
 
 order for execution, when necessary 322(a) 
 
 effect of statute upon 322(a) 
 
 affidavit of verification to petition for 324 
 
 order to show cause on petition for 324 
 
 when order to show cause necessary 324(o) 
 
 proceedings on 324(a) 
 
 affidavits and petitions used on hearing 324(a) 
 
 order for execution to issue 325 
 
 form of execution 325(o) 
 
 in case of partly-satisfied execution 325(a) 
 
 amendment of 325(a) 
 
 Security for costs — 
 bond on — 
 
 general principles- 
 form of 70 
 
 how given 70, n. 
 
 notice of filing 70, n. 
 
 requisites of. 70(a) 
 
 operates as a discharge of stay 70(a) 
 
 where to be filed 70, n. (a) 
 
 to what, is applicable 71(a) 
 
 justification of — 
 
 affidavit of surety, where to be written 70(a) 
 
 exception to surety 70(a) 
 
 surety required to make 70(a) 
 
 affidavit of, by surety 71 
 
 how surety to justify 71(a) 
 
 deposit in lieu of bond — 
 
 notice of filing 70, n. 
 
 may be given 69, n., 70, n., 71, n. 
 
 order for — 
 
 form of. 68 
 
 may be made independent of statute 69, n. 
 
 how obtained 69,d. 
 
 served , 70, n. 
 
 practice and principles applicable to — 
 
 complainant's residence not staled in bill as grounds for... 2(a) 
 
 complainant having no permanent residence 2(a) 
 
 state need not give 7,n. 
 
 acceptance of. ,. 69, n. 
 
 when required, independent of statute 69, n. 
 
 proceedings to be stayed until given 69, n. 
 
 non-residence, how proved 69, n. 
 
 pending suit 69, n. 
 
 Be 
 
866 INDEX TO F0EM8 AND NOTES. 
 
 Security for costs — 
 
 practice and principles applicable to — page. 
 
 waiver of 69, n. 
 
 in case of joint complainants 69, n. 
 
 infants 69, n. 
 
 unknown complainant 70, n. 
 
 military or public officer 70, n. 
 
 computation of time after order for 70, n. 
 
 effect of obtaining time to answer, &c 70(a) 
 
 non-resident executor, &c., need not give 71, n. 
 
 complainant in cross-bill need not give 71, n. 
 
 by poor relator 71, n. 
 
 when cause will be dismissed for want of 71, n. 
 
 order for time to answer precludes motion for 82, n. 
 
 by foreign executor 332, n. 
 
 in case of alimony 473(a) 
 
 statute on 68(5), 69, n. 
 
 Sequestration — 
 
 in case of absent defendants 25, n. 
 
 compelling answer of corporation by 37(a) 
 
 when may issue 43(a) 
 
 ■ order for , 43 
 
 writ of. 43 
 
 in case of contempt 80(a) 
 
 power of court to order 242(a), 243, n. 
 
 in case of alimony 468(a) 
 
 Service of subpoena — 
 
 see " Subpoena," post. 
 Severance, summons and — 
 see "Appeals," ante. 
 Sheriffs- 
 injunction to restrain official acts of. 13(c), 14, n. 
 
 see " Deputy sheriff," ante. 
 "Execution," ante. 
 "Foreclosure," ante. 
 " New execution," ante. 
 " Subpoena, ' service of,' " post. 
 Solicitor — 
 
 appearance by — 
 
 form 35 
 
 statute on 281(a) 
 
 appointment of — 
 
 order for 281 
 
 in case of suit commenced in person 281(a) 
 
 death, &c., statute on 281(6) 
 
 dismissal of bill for default of, order for 282 
 
INDEX TO F0KM8 AND NOTES. 867 
 
 Solicitor — 
 
 authority of— page. 
 
 avoiding decree for want of 36, n. 
 
 liability for acting without 36, n. 
 
 disproving 36, n. 
 
 presumption of. 281(a) 
 
 liability of — 
 
 for costs, on infant's bill 4, u. 
 
 acting without authority 36, n. 
 
 costs, on non-resident's bill 69, n. 
 
 powers of — 
 
 affidavit taken by, in cause, effect of. 279, n. 
 
 partners may act as 281(a) 
 
 effect of dissolution of firm of. 281(a) 
 
 substitution of — 
 
 order of. 281 
 
 right to 281(a) 
 
 order for, in order to prosecute in person 281(a) 
 
 •Special decrees and decretal orders — 
 
 see " Decree, ' special forms of,' " ante. 
 
 Specific performance, decree for 630 
 
 Speeding cause — 
 
 order for 118 
 
 grounds for 118(6) 
 
 time of taking order for 118(6) 
 
 return of order for 118(6) 
 
 what notice of, to be given 118(6) 
 
 orders for, ex parte 118(6) 
 
 filing of replication as 118(6) 
 
 discretion of court as to 118(6) 
 
 on bill to perpetuate testimony 142(a) 
 
 State — 
 
 bill- 
 introduction to, by 6 
 
 with relator 7 
 
 prayer for process in, against 12 
 
 costs, need not give security for 7, n. 
 
 notice — 
 
 statute as to 12(6) 
 
 appearance on 13, u. 
 
 form of 22 
 
 endorsement of. 22(a) 
 
 names of parties in 22(o) 
 
 return-day of. 22(a) 
 
 to be under seal 22(a) 
 
 service of 13, u., 22(a) 
 
 acknowledgment of service of. 22(a) 
 
 relator in suits by 6(o) 
 
868 INDEX TO F0EM8 AND NOTES. 
 
 Stating part — 
 
 see "Bill, 'constituent parts of,'" ante. 
 Statutes — 
 
 abatement and revivor — page. 
 
 suits in chancery not to abate ^l^i "• 
 
 as to bills of revivor 316, n. 
 
 death, of one of several plaintiffs or defendants 
 
 315(a), 316, u. (a) 
 
 on death of sole plaintiff 317(o) 
 
 by foreign executor, &c 318(a) 
 
 on death of sole defendant 319(a) 
 
 order to revive 316(a), 320(a) 
 
 when suit at an end 321(a) 
 
 by administrator pendente lite 316(a), 321(o) 
 
 absent defendants — 
 
 publication against 24(6), 25, n,, 26, n. 
 
 in case of mortgagors as 27(a) 
 
 partition 28(a) 
 
 foreign publication superseded 28(a) 
 
 in case of unknown, &c., parties 29(o) 
 
 non-resident corporation 24(a), 33, n. 
 
 abstract of decree — 
 
 filing and effect of. 222(a), 223, u. 
 
 administrators and executors — 
 
 foreign, suit by 6, n. 
 
 substitution of, in place of complainant 6, n. 
 
 admission of parties — 
 
 in case of newly-acquired interest 283(a), 284, n. 
 
 not to delay cause 284, n. 
 
 in case of unrecorded lien 285(a) 
 
 affidavits, how taken out of the state 279, n. 
 
 answer — 
 
 extension of time for, after demurrer 81(a) 
 
 before what officers may be sworn 87, n. 
 
 after demurrer overruled 91, u. 
 
 time for filing 104(a) 
 
 when sworn to, how far evidence 114, n. 
 
 in case of insufficient, time for further 126(6), 127(6) 
 
 costs on second insufficient 127(o) 
 
 third insufficient 128, u. 
 
 effect of third insufficient 128, u. 
 
 appeals — 
 
 in what cases and when brought 186(6), 187, n. 
 
 by corporation 187, n. 
 
 from Prerogative Court 187, n. 
 
 by poor person 187, n. 
 
 Chancellor not to sit on 197(a) 
 
INDEX TO FOEMS AND NOTE8. 869 
 
 Statutes — 
 
 appeals — PAOE. 
 
 papers to be returned after decision on 198(a) 
 
 costs on, discretionary 201(o) 
 
 appearance, in foreclosure 36, n. 
 
 assignees for the benefit of creditors — 
 
 sale of land by 726(o) 
 
 attachments with proclamation and commission of rebellion 
 
 abolished 39(<i) 
 
 citation in divorce — 
 
 when may issue 21(6) 
 
 service and return of 21(6) 
 
 conduct of cause — 
 
 as to exceptions or replication on 139(a) 
 
 contempt — 
 
 sherififnot returning process to be in 39, n. 
 
 punishment for 39(a) 
 
 in case of insolvent debtor 40, n. 
 
 presence of Vice Chancellor 45(o) 
 
 cross-bill, answer to 510(a) 
 
 demurrer — 
 
 aflSdavit and certificate to 92(a) 
 
 time for filing 92(a) 
 
 to be first disposed of. 95(a) 
 
 setting down of, for hearing 95(a) 
 
 and answer, practice on 120, n. 
 
 discovery 496(6), 497, n., 498, n. 
 
 dismissal of bill — 
 
 when defendant may move for 90, n. 
 
 enrollment unnecessary on 141(o) 
 
 grounds for 141(5) 
 
 on failure to set down for hearing 141(6) 
 
 for failure to attend at hearing 141(5), 171(a), 174, n., 182(a) 
 
 distribution of personal property — 
 
 application for 713(a), 714, n. 
 
 divorce — 
 
 jurisdiction of chancery over 452(a) 
 
 grounds of. 452(a) 
 
 petition in 453(o) 
 
 appointment of solicitor for poor person 454, n. 
 
 sworn answer as evidence in 455(a) 
 
 affidavit of non-collusion 457(a) 
 
 issuing and service of citation 459(a) 
 
 non-resident defendant 459(a) 
 
 practice and procedure on 455(a), 459(6) 
 
 effect of collusion 463(o) 
 
870 INDEX TO FORMS AND NOTES. 
 
 Statutes — 
 
 divorce — page, 
 
 from bed and board on conscientious scruples 464(a) 
 
 as to alimony 468(a), 469, n. 
 
 security for costs 473(a) 
 
 examination of witnesses — 
 
 non-resident on notice 145(a) 
 
 de bene esse, when may be taken 145(a) 
 
 notice of application for commission for 146, n. 
 
 commission for, on short notice 346, n. 
 
 notice of taking, by officer 146, n. 
 
 taking and filing depositions on 146, n. 
 
 on commission 147(a) 
 
 practice on commission for 148(a) 
 
 deposition on, to be admitted in evidence 149, n. 
 
 objections to competency of depositions 149, n. 
 
 as to expense of taking deposition 149(a) 
 
 names of witnesses in commission 150(a) 
 
 oath of commissioners 151(a), (c) 
 
 as to commission 152(a) 
 
 what oaths declared good 152(6) 
 
 swearing with uplifted hand 152(c) 
 
 affirmation and declaration 152(d) 
 
 depositions on, to be written and signed 153(a) 
 
 how depositions on, taken 153(6) 
 
 as to exhibits 153(c) 
 
 how commission on, returned 154(a) 
 
 party may receive and deliver commission 154(6) 
 
 of the return of foreign commission 154(c) 
 
 endorsement on return of commission 155(a) 
 
 messenger's oath to foreign commission 155(6) 
 
 as to letters rogatory 155(c) 
 
 subpoena ad testificandum 157, n. (a) 
 
 contempt for disobedience to subpoena 157 (a) 
 
 domestic, de bene esse 158(a) 
 
 compelling, de bene esse 158(o) 
 
 domestic, depositions of. 158(a), 159, n. 
 
 messenger's oath to domestic deposition 159, n. 
 
 notice of domestic 160(a) 
 
 stenographer's fees on 162, n. 
 
 by examiners 162 n. 
 
 complainant as a witness 162, u. 
 
 form of oath on 163 n. 
 
 when cause to be set down for hearing after 168, n. 
 
 exceptions — 
 
 answer, to — 
 
 time for filing of. 120, n. 
 
 rule to refer 122(a), 123, n. 
 
INDEX TO F0EM8 AND NOTES. 871 
 
 Statutes — 
 
 exceptions — 
 
 answer, to — PAGE. 
 
 further answer after allowance of. 126(6) 
 
 costs on 130(a) 
 
 bill, to— 
 
 when master to report on 63(a) 
 
 executions — 
 
 power of court to issue process for 210(a) 
 
 appearance not to stay 210(a) 
 
 to be recorded 210(a) 
 
 sale under, when whole of mortgage money not due 211(a) 
 
 sheriff's return to 213, n. 
 
 adjournment of sale on 213(a) 
 
 advertisement of adjournment of sale on 213(a) 
 
 sales under, on Saturday afternoon 213(a) 
 
 appointment of undersheriif on 213(a) 
 
 coroner may execute writ 213(a) 
 
 mode of sale on 213(a) 
 
 advertisement of sale on 217(a), 218, n. 
 
 defective advertisement of sale on 218, n. 
 
 appointment of officer to adjourn sale on 219(d) 
 
 petition for new 226(a) 
 
 adjournment of sale on, for more than a week 230(a) 
 
 sheriff's statement of sale on 233(a) 
 
 fees on sales on 234(a) to (i) 
 
 number of adjournments of sale on 234(c) 
 
 as to sheriff's successor , 234(t) 
 
 effect of sheriff's failure to make return on 235, n. 
 
 report of sale on 235(a) 
 
 what estate vests on sale on 237(a) 
 
 recitals in deed on sale on 237(6) 
 
 sheriff''s notice of sale of land on 238(a), (6) 
 
 advertisement of sale on, in what newspaper 238(0) 
 
 deed on sale on, how far evidence 240(a) 
 
 sheriff's affidavit to deed on sale on .234(jj), 241(a) 
 
 recording deed on sale on 241(a) 
 
 deed of succeeding officer on sale on 241(a), 242, n. 
 
 process to enforce decree by, and lien of 242(a), 243, n. 
 
 feigned issue — 
 
 court may authorize trial at law 243(a) 
 
 to try title to real estate 244, n. 
 
 final decree — 
 
 recitals in 179(a) 
 
 signing of, by Chancellor's successor 180, u. 
 
 may be made in vacation , 180, n. 
 
 effect of, as a conveyance 181(6), 182, n. 
 
872 INDEX TO P0BM8 AND NOTES. 
 
 Statutes — 
 
 foreclosure— ^'^*^^- 
 
 power of court to decree sale on 326(a) 
 
 search fees on ' "■ 
 
 designation of married woman on ■■•• oSO{a) 
 
 foreign executor, &c., as party in 6, n., 332, n. 
 
 married woman may sue alone 332, n., 333, n. 
 
 parties acquiring interest after bill filed for 343, n. 
 
 lispendens not to apply to. 343, n. 
 
 in case of unknown, &c., pai-ty 344(a) 
 
 sale when money not all due 336, n., 340(u), 350(a) 
 
 supersedeas, if absent defendant appears 362, n. 
 
 satisfaction of decree on 362, n. 
 
 habeas corpus — 
 
 act of 476(a) 
 
 power of Chancellor to grant 476(a) 
 
 custody of infants in case of. 476(a) 
 
 hearing — 
 
 when cause to be set down for 118(6), 171(a) 
 
 setting down for, on bill and answer 171(a) 
 
 when plea or demurrer to be set down for 171(a) 
 
 on bill and answer I'^i '^■ 
 
 before Vice Chancellor, settling report.pn 175, n. 
 
 reference of cause to Vice Chancellor for 176(a) 
 
 effect of non-attendance at 171(a), 174, n., 182(a) 
 
 improvement of ward's property 701, n., 726(a) 
 
 injunctions — 
 
 court always open to grant 287, d. 
 
 to stay proceedings at law before verdict 292(o) 
 
 punishment for breach of, to stay waste 294(a) 
 
 to stay mixed actions after verdict 302(a) 
 
 ejectment suit after issue joined 302(a) 
 
 personal actions after verdict .- 303(a) 
 
 motion to dissolve, when to be heard 304(a) 
 
 insolvent corporations — 
 
 power of chancery over ". 529(a) 
 
 appointment of receivers of 535(a) 
 
 oath of receiver of 535(a), 536, p. 
 
 duties of receiver of. 536, n. 
 
 appeal from determination of receiver of 550(o) 
 
 interest 637(a) 
 
 interpleader, counsel fee in 486(a) 
 
 interrogatories — 
 
 annexing of, to answer without oath 10(a) 
 
 by defendant to complainant 115(6) 
 
 lis pendens 343, n., 411(a), 517(a), 518, n., 519, n. 
 
INDEX TO FORMS AND NOTES. 873 
 
 Statutes — 
 
 lunatics, idiots and drunkards — page. 
 
 appointment of guardian for, without inquest 639, n. 
 
 place of executing commission 640, n. 
 
 in case of non-resident 640, n. 
 
 wife or child not to petition in case of drunkard...639(a), 642(a) 
 
 Chancellor may issue commission for drunkard 642(o) 
 
 jury in case of 645(a) 
 
 practice in case of jury 649(a) 
 
 application for guardian of. 654(o) 
 
 setting aside inquisition 657(a) 
 
 reformation of drunkard 659(a) 
 
 sale of land of. 661(a), 662, n., 
 
 664(a), (i), 665(a), (6), 666(a), 667, n. 
 
 conveyance by wife of. 667,n. 
 
 release of inchoate dower of. 667, n. 
 
 dower of. 667, n. 
 
 married woman — 
 
 service of process on 28(a) 
 
 right to sue in her own name 3(a), 104(d) 
 
 month, meaning of. 277(a), 278, n. 
 
 ne exeat — 
 
 when writ of, will he granted 309(o) 
 
 amount of bond to be given on 312(6) 
 
 new trustee — 
 
 application for and appointment of. 720(6), 721, a. 
 
 powers of 721, n. 
 
 joint tenancy, of. 721, n. 
 
 in case of minority. 721, u., 722, n. 
 
 conveyance by infant trustee 721, n., 722, n. 
 
 appointment of, in case of waste by old trustee 722, u. 
 
 transfer of funds to foreigu 726(a) 
 
 application by, to pay off liens 726(a) 
 
 continuation of investments by 726(a) 
 
 improvement of ward's property by 726(a) 
 
 sale by assignee of insolvent debtor 726(a) 
 
 next friend — 
 
 English practice as to 4, n. 
 
 New York practice as to 4, n. 
 
 notice of application — 
 
 in unspecified cases, how given 274, n. 
 
 papers, production of — 
 
 power of court to order 74(a) 
 
 application for, by petition , 76(a) 
 
 partition — 
 
 authorization of sale in 402(a) 
 
 power of chancery over 402(o) 
 
874 INDEX TO FOEMS AND NOTES. 
 
 Statutes — 
 
 partition — PAGEr 
 
 who may have 402(a) 
 
 by executor with power of sale 402'(a) 
 
 on estate less than a fee 402(a) 
 
 in case of advancement 402(o) 
 
 when owners presumed to be dead 28(a), 403, n., 404, n. 
 
 protection of liens in 404, n. 
 
 as to sale in, discharged of liens 405, n. 
 
 right of tenant in dower or curtesy in 405, n, 
 
 inchoate right of dower in 405, n., 406(a) 
 
 creditors, when to be made parties in 407(a) 
 
 as to lis pendens 411(a) 
 
 report as to liens 414(a) 
 
 sale of lands in, free from dower or curtesy 417(a) 
 
 liens of debts 417(a) 
 
 decree for actual 418(a) 
 
 in case of lands limited over 419(a) 
 
 investment of share not held in fee 419(a) 
 
 proceeds of sale 419(a) 
 
 sale of land in, how made 420(a) 
 
 by master 420(6) 
 
 conclusiveness of 421(a) 
 
 report of sale by master 423(a) 
 
 in, may be made at special term 424(a) 
 
 defective advertisements of sale in 424(a) 
 
 as to distribution in 428(a) 
 
 to judgment creditors 428(a) 
 
 bond of guardian 430(a) 
 
 investment of share of unknown parties 431(a), 432, n. 
 
 suits on refunding bonds in 432, n. 
 
 liens apportioned amongst shares 442(a) 
 
 of part of premises and sale of residue 402(a), 442(o) 
 
 vacancy on commission in 444(a) 
 
 allowances to commissioners in 444(6) 
 
 effect of decree to convey lands in 446(a) 
 
 fees for searches in 447(a) 
 
 counsel fee in 447(a) 
 
 as to gross sum in payment of dower or curtesy. ...447(6), 448, n. 
 plea — 
 
 when not to be filed 96(a) 
 
 affidavit and certificate to 92(a), 97(o) 
 
 issue upon 100(a) 
 
 standing for answer, sufficiency of. 103(a) 
 
 answer after overruling of. 100(a), 104(a) 
 
 poor persons, suits by 72(a) 
 
INDEX TO POEMS AND NOTES. 875 
 
 Statutes — 
 
 quiet title, to — page. 
 
 bill may be filed to 615(a) 
 
 in case of unknown parties 617(a) 
 
 tickets in case of. : 618(a) 
 
 in what county issue may be tried 618(6) 
 
 decree for costs on 620(a) 
 
 answer of defendant claiming estate 620(a) 
 
 issue at law may be directed 620(o) 
 
 final decree to settle rights 620(a) 
 
 appeal in case of. 621, n. 
 
 redemption of mortgage — 
 
 in case of action on bond or ejectment 345(6), 346, n. 
 
 replication — 
 
 to plea 143(a) 
 
 cause at issue upon filing 143(a) 
 
 time for filing 143(a) 
 
 sale of lands — 
 
 infants, of — 
 
 application for, to Chancellor , 669(a) 
 
 for discharging encumbrances 669(a) 
 
 mode of sale 674(a) 
 
 in-case of death of special guardian 674(6) 
 
 bond of guardian on 676(a) 
 
 report of guardian on 677(6) 
 
 consent of widow to 678(a) 
 
 payment or investment of dower or curtesy on 678(6) 
 
 release of dower on, by married woman 678(5), 679, u. 
 
 disposition of proceeds of 679(a) 
 
 in case of death of purchaser 680, n. 
 
 guardian's report of disposition of proceeds of. 681(a) 
 
 discharge of special guardian 682, u. 
 
 bond of general guardian on receipt of proceeds of, 682, n. 
 
 account of special guardian on 682, u. 
 
 limitation over, in case of— 
 
 power of court to direct 682(a), 683, n. 
 
 sale may be free from liens....: 683, u. 
 
 taxes, &c., may be ordered paid on 683, n, 
 
 in case of widow's unproductive share in 683, n. 
 
 when and how application may be made for 683(a) 
 
 notice to owners of vested or prospective estates... 684(a) 
 
 in case of unknown owners 684(a), 685, n. 
 
 reference on 686(a) 
 
 master's report on 689(a) 
 
 order for sale of 691(a) 
 
 master's deed on 693(a) 
 
 costs and expenses on 693(a) 
 
876 INDEX TO FOEMS AND NOTES. 
 
 Statutes — 
 
 sale of lands — 
 
 limitation over, in case of — . page. 
 
 investment of proceeds of. 695(a) 
 
 payment of proceeds of. 69o(a) 
 
 proof of appointment of non-resident guardian.... 700(a) 
 removal of proceeds of, by non-resident guardian, 
 
 700(a), 701, II. 
 presumption of death, on — 
 
 when death presumed 703(a) 
 
 application for 703(6) 
 
 disposition of proceeds of 703(6), 704, n. 
 
 see also under " Statutes." 
 
 ' assignee.' > 
 
 ' execution.' 
 ' foreclosure.' 
 ' lunatics.' 
 ' partition.' 
 ' trustees.' 
 scire facias — 
 
 execution may issue without revival 322(a) 
 
 security for costs — 
 
 in case of non-resident complainant 68(5), 69, n. 
 
 solicitors — 
 
 partners may appear as 281(a) 
 
 effect of death, &o., of. 281(6) 
 
 State of New Jersey — 
 
 notice to, in suits against 12(6), 21, n. 
 
 subpoena ad respondendum — 
 
 issuing of. 18(a) 
 
 acknowledgment of service of. 19, n. 
 
 by whom served 19, n. 
 
 service of, in case of disability of officer 19, n. 
 
 upon a corporation 20, n. 
 
 requisites of. 20, u. 
 
 surplus money — 
 
 investment of. 261(o) 
 
 rights of judgment creditors to 261(a) 
 
 payment of, to executor, &o 262(a) 
 
 investment of gross sum for life tenant 267(a) 
 
 payment to life tenant of gross sum out of. 267(a), 269(a) 
 
 release of dower in 270(a) 
 
 executors, &c., bond on receipt of. 272(a) 
 
 tickets — 
 
 in foreclosure 22(6) 
 
 on bill to quiet title 618(a) 
 
INDEX TO FOBMS AND NOTES. 877 
 
 Statutes — 
 
 trustees, guardians, &c. — PAGE. 
 
 may improve ward's property 701, n., 726(a) 
 
 remove property from state 726(a) 
 
 sell land to pay encumbrances 726(a) 
 
 continue investments 726(a) 
 
 mortgage to improve lands 726(a) 
 
 Staying suit — 
 
 on omission to state complainant's residence in bill 2(o) 
 
 for want of security for costs 69, n. 
 
 discbarge of, by filing bond for costs 70(o) 
 
 surety to justify before order to discbarge 70(a) 
 
 on commission de bene esse 149(a) 
 
 rehearing, notice of. 185 
 
 rule for 185(c) 
 
 order for 185 
 
 appeal from interlocutory decree, order for 189 
 
 practice on 189(6), (c) 
 
 appeal from order in feigned issue, as grounds for 252(a) 
 
 on election between suit and action 117(a), 280, n. 
 
 admission of parties 284, n., 341, n. 
 
 cross-bill, order for 511 
 
 practice as to 511(a) 
 
 see also "Appeals," ante. 
 
 "Injunction,'' ante. 
 Strict foreclosure — 
 
 see " Foreclosure," ante. 
 Submission of cause without argument — 
 hearing, on — • 
 
 form of 173 
 
 practice on 173(6) 
 
 rehearing, on — 
 
 granted of course on 184, n. 
 
 practice as to, in United States courts 186, n. 
 
 Subpcena ad respondendum — 
 
 practice and requisites of — 
 
 form of. 18 
 
 time of issuing 18(a 
 
 statute as to 18(a 
 
 when will be set aside 18(a 
 
 waiving defective issue by appearance 18(a 
 
 correction of date of. 18(a 
 
 in case of amended bill 18(a 
 
 where obtained 18(a 
 
 will issue against infants 18(a 
 
 when to be tested 18(a' 
 
 return-day may be altered by sheriff. 18(a 
 
878 INDEX TO FORMS AND NOTES. 
 
 Subpoena ad respondendvm — 
 
 practice and requisites of — ' ' page. 
 
 technical grounds for disobeying not allowed 19, n. 
 
 on what day to be returnable..' 19, n. 
 
 when returnable on Sunday 19, n. 
 
 a holiday 19, n. 
 
 in case of blank return-day and month 19, n. 
 
 endorsement on .' 20 
 
 statute as to subscription or endorsement 20, n. 
 
 names in 20, n. 
 
 in case of amended bill 136, u. 
 
 subpoena to rejoin 14:3(a) 
 
 issue and return of, with injunction 13(c), 20, n., 291(o) 
 
 subpoena ad remvendum 316(a) 
 
 in case of partition 403, u. 
 
 supplemental bills 36, n., 503(a) 
 
 return of — 
 
 day for, may be altered by sheriff. 18(a) 
 
 day for...'. 19, n. 
 
 on Sunday 19, n. 
 
 holiday 19, n. 
 
 form of. 20 
 
 conclusiveness of. 20, n. 
 
 in case of absence, concealment, &c 23(i) 
 
 service of — 
 
 effect of, as making party 12(a) 
 
 writ of ne exeat when served equivalent to 14(a) 
 
 mode of. 18(a) 
 
 acknowledgment of. 19, n. 
 
 defective, cured by appearance 19, n. 
 
 on defendants absent from home 19, n. 
 
 in case of blank day and month 19, u. 
 
 by whom served 19, n. 
 
 domicile of husband and wife as affecting 19, n. 
 
 on husband and wife 19, n. 
 
 wife in suit against separate estate 19, n. 
 
 infant 19, n. 
 
 secreted 19, n., 20, n. 
 
 non-resident lunatic 20 n. 
 
 corporation 20 n. 
 
 lunatic 20 n. 
 
 effect of omission of, in case of injunction 20 u. 
 
 request to enter appearance 21, n. 
 
 on United States or state 13 n. 21 n. 
 
 prisoner in custody 21 u. 
 
 authorization of deputy sheriff to make 21 
 
 deputy sheriff not to be appointed by parol 21(a) 
 
INDEX TO FORMS AND NOTES. 879 
 
 Subpoena ad respondendum — 
 
 service of-;- ' ' page, 
 
 appearance equivalent to 19, n., 36, n. 
 
 waiver of defects in; by demurrer 91, n. 
 
 in case of supplemental bills 503(a) 
 
 Subpoena ad remvendum 316(a) 
 
 Subpoena ad testificandum — 
 
 common form of 156 
 
 form of, in lunacy proceedings... 648 
 
 see also " Examination of witnesses," ante. 
 " Lunatics, idiots, &c.," ante. 
 
 Subpoena to rejoin 143(a) 
 
 Subrogation — 
 
 jurisdiction of chancery in cases of. 576(a) 
 
 right of surety to 588(a) 
 
 Substitution of master — 
 
 Older for 282 
 
 not to be made without order 282(a) 
 
 grounds for, to be shown 282(o) 
 
 Substitution of solicitor — 
 see " Solicitor," post. 
 
 Summons — 
 
 see " Master's summons," ante. 
 
 Summons and severance — 
 see "Appeals," ante. 
 
 on appearance of absent defendant 25, n. 
 
 order for 33 
 
 statute in case of foreclosure .' 362, n. 
 
 Supplemental answer — 
 
 when necessary 106, n. 
 
 leave to file, after cause set down for hearing 177(a) 
 
 Supplemental bills — 
 
 bills of— 
 
 to introduce new matter 502 
 
 statements in 502(a) 
 
 stating amendments in 502(a) 
 
 against new parties 503 
 
 in the nature of bill of revivor and 504 
 
 prayers in 504(a) 
 
 orders on — 
 
 leave to file , 501 
 
 irregular if filed without leave 501(o) 
 
 waiver of irregularity 36, n., 501(a) 
 
 notice of 501(a) 
 
880 INDEX TO FORMS AND NOTES. 
 
 Supplemental bills — 
 
 practice on — page. 
 
 before filing, leave (o be had 36, n., 501(a) 
 
 petition under rule 502, n. 
 
 after answer 504(a) 
 
 principles applicable to — 
 
 on change of issue by amendment 133, n. 
 
 dismissal of bill as bar to 141(a) 
 
 in case of new evidence 183, n. 
 
 filing, for the purpose of appeal 187, n. 
 
 in case of new matter 315, n. 
 
 by defendant in interpleader 486, n. 
 
 to be founded on new facts 502(a) 
 
 uses of. 502(a) 
 
 when necessary 502(a) 
 
 court rule on 502, u. 
 
 replication to 504(a) 
 
 subpoena, issuing and service of 503(a) 
 
 Suppression — 
 
 see "Answer,'' ante. 
 
 " Examination of witnesses,'' ante. 
 Surplus money- 
 account of executors, &c., on — 
 
 rule on 262(6) 
 
 to petition 264 
 
 items in, how expressed 265(a) 
 
 affidavit to 265 
 
 bond on payment of — 
 
 by executor, &c 272 
 
 statute and rule on 272(a) 
 
 to whom given 272(6) 
 
 claims to — 
 
 priority of 256(o) 
 
 controversies on, how settled 256(a) 
 
 to be verified 259(a) 
 
 dower and curtesy — 
 
 as to payment of sum in gross 267(o) 
 
 rights of widow .' 267(a) 
 
 sum in gross, how ascertained 268(a) 
 
 inchoate right of dower in 270(o) 
 
 release of inchoate right of dower in 270(a) 
 
 investment of, in case of absent parties 261(a) 
 
 judgment creditors — 
 
 claims of, in attachment 259(a) 
 
 petition by 261(a) 
 
 payment to 261(o) 
 
 land, considered as 256(o), 262(6) 
 
INDEX TO FOEMS AND NOTES. 881 
 
 Surplus money — 
 
 notice of application for — page. 
 
 by executors, &c 265 
 
 rule on 265(6), 266, n. 
 
 payment of, order for — 
 
 receipt by sheriiF on 256(a) 
 
 common form of final 260 
 
 to judgment creditor 261(a) 
 
 executor of deceased mortgagor 262(a) 
 
 executors, &c., form of. 270 
 
 when will be made to executors, &c 270(6) 
 
 petition for — 
 
 common form 256 
 
 how entitled 256(a) 
 
 in foreclosure, time of presenting 256(a) 
 
 by judgment creditor 261(a) 
 
 executor, &c., form of. 262 
 
 statements in, by executor, &o 262(6) 
 
 annexing account to, by executors, &c 262(6) 
 
 verification of, by executors, &c 262(6) 
 
 form of account to, by executors, &c 264 
 
 afl&davit to, by executors, &c 265 
 
 filing of. 265(5) 
 
 references on petition for — 
 
 common form of order for 258 
 
 proof of claims on 259(a) 
 
 order for, in case of executors, &c 266 
 
 rule of court as to executors, &c.., 266(o) 
 
 practice as to summons on 258(a), 266(a) 
 
 report on petition for — 
 
 common form 259 
 
 rule nisi to confirm ; 260('a) 
 
 form in case of executors, &c 268 ■* 
 
 Tender — i 
 
 see " Foreclosure," ante. 
 Terms of court — 
 
 regular 172(a) 
 
 supposed to be always open 287, n. 
 
 Testimony — 
 
 not to be taken before certain persons 283, n. 
 
 see also " Evidence," ante. 
 
 " Examination of witnesses," ante. 
 Tickets- 
 foreclosure in — 
 
 forms of 22, 23 
 
 practice as to 22(6), 23, u. (a) 
 
 omission of, as grounds for demurrer 94(a) 
 
 3p 
 
882 INDEX TO F0BM8 AND NOTES. 
 
 Tickets- 
 quiet title, to— PAGE. 
 
 form of. 618 
 
 statute on 618(a) 
 
 see also " Foreclosure," ante. 
 " Quiet title," ante. 
 
 Titles- 
 
 see " Quieting title," ante. 
 
 Titles and commencements — 
 see "Answer," ante. 
 "Demurrer," ante. 
 "Flea," ante. 
 
 Trust deed, decree reforming 636 
 
 Trustee — 
 
 mortgagee as, for assignee 331(a) 
 
 party with cestui que trust 2(a), 332, n., 341, n., 362, n. 
 
 see " New trustee," ante. 
 
 " Statutes, ' trustees, &c.,' " ante. 
 
 Typewriting, rule as to 1(a) 
 
 Ultra vires as defence under amended answer 106, n. 
 
 United States Circuit Court — 
 
 address in bill to 1 
 
 introduction in bill in 2 
 
 United States, prayer for process against 12 
 
 Unknown owners — 
 
 in case of surplus money 261(a)- 
 
 investment of shares of. 431(o), 432, n> 
 
 statutes on 27(a), 28(a), 29(6), 344(a), 617(a), 684(a), 685, u. 
 
 see "Absent defendants," ante. 
 
 Usury — 
 
 as defence under amended answer 106, n. 
 
 V^aj nance — 
 
 I between allegata ani probata 8, n. 
 
 immaterial, between agreement alleged in bill and answer. 8, n. 
 
 between stating and interrogating parts of bill 9, n. 
 
 recitals in deed and writ of execution 237(6) 
 
 writ of execution and judgment 237(6) 
 
 curing of, by statute 237(6)- 
 
 in cases of divorce 463, n. 
 
 Verification — 
 
 of signature to acknowledgment of service of subpoena 19, n., 21, n. 
 
 waiver of notice of sale 419(6). 
 
 consent of widow to join and release on sale 678(a) 
 
 see "Affidavits," ante. 
 Vice Chancellor— 
 
 in case of contempt before 45(a) 
 
 examination of witnesses before 164, n.. 
 
INDEX TO F0EM8 AND NOTES. 883 
 
 Vice Chancellor— page. 
 
 affidavit in cause before 165 
 
 hearing of cause by 174, n., 175, n. 
 
 order of reference to 176 
 
 Chancellor may refer cause to 176(a) 
 
 application for reference to 176(a) 
 
 practice on cause referred to 176(a) 
 
 rehearing of decree advised by 184, n. 
 
 injunctions may be granted by 300(a) 
 
 Waiver — 
 
 of ^ath to answer, statute on 10(a) 
 
 irregularity in subpoena by appearing 18(o) 
 
 issuing of subpoena before bill filed by appearing 18(a), 36, n. 
 
 process for contempt 37(a) 
 
 exception to bill, by objection under rule 62, u. 
 
 security for costs, what constitutes '. 69, n. 
 
 defects in service of subpoena by demurrer 91, n. 
 
 answer on oath on amendment of bill 114, n. 
 
 right to except to answer after order to amend bill 122, n. 
 
 rights on conduct of cause by defendant 139(o) 
 
 in case of abandonment of suit 142(o) 
 
 of irregularity in re-examination of witness 168(a) 
 
 objection to form of decree 179, n., 181, n. 
 
 award of costs in decree 181, n. 
 
 in case of insufficient affidavit for injunction 288, n. 
 
 of objection to bill by foreign executor 332, n. 
 
 forfeiture of mortgage ; 351, n. 
 
 order of reference by taking part in proceedings 413, n. 
 
 notice under rule by tenant in dower, &c 419(6), 420, u. 
 
 order for leave to file supplemental bill 36, n., 501(a) 
 
 objection to bill of review t 5C\(a) 
 
 Warrant of commitment — \ 
 
 see " Commitment," ante. , ~- 
 
 Warrant to produce alleged lunatic 647 '; 
 
 Waste — 
 
 process for appearance, in case of. 18(o^ 
 
 in case of mortgaged premises 373, n. 
 
 of funds of corporation 580(a) 
 
 see " Injunction," ante. 
 
 Will, decree establishing 632, 632(a) 
 
 Writing — 
 
 rule as to legibility of handwriting 1(a) 
 
 typewriting 1(a) 
 
 Writs- 
 assistance, of. 209 
 
 attachment, of. 38 
 
 citation in divorce 21 
 
884 INDEX TO FORMS AND' NOTES. 
 
 Writs— PAGE. 
 
 habeas corpus 478 
 
 lunatics, &c., precept to sheriff. 645 
 
 master's summons on exceptions 62 
 
 foreclosure 354 
 
 ne exeat ,... 310 
 
 sequestration 43 
 
 subpoena, ad respondendum 18 
 
 ad testificandum 156, 648 
 
 see " Execution, ' forms of,' " ante. 
 "Injunction," ante. 
 [The above are indexed fully under their respective titles, g. «'.]