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 1913 
 
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CORNELL UNIVERSITY LIBRARY 
 
 924 085 502 049 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085502049 
 
PRACTICE 
 
 IN 
 
 COURTS OF CHANCERY 
 
 WITH 
 
 FORMS 
 
 PARTICULARLY ADAPTED TO 
 
 MODERN EQUITY PRACTICE 
 
 IN THE 
 
 STATE OF MICHIGAN 
 
 BV FRANCIS A. STACE 
 
 Of the Grand Rapids Bar 
 
 CHICAGO 
 
 CALLAGHAN AND COMPANY 
 
 1913 
 
^^:5'60^ 
 
 COPYRIGHT, 1913, 
 
 by 
 
 CALLAGHAN AND COMPANY 
 
PREFACE 
 
 Being encouraged by the manner in which my collec- 
 tion of Chancery forms and precedents has been received 
 by the profession, in spite of its many typographical 
 errors,' and in view of the many changes in the practice 
 since the publication of the last edition of Puterbaugh's 
 Michigan Chancery, I have been induced to offer the 
 present work to the Bar of Michigan. 
 
 Practice and Pleading in Chancery has been of late 
 years much simplified in this State by the adoption of the 
 new rules of practice and by several recent statutory 
 regulations. Also, it is now the disposition of the courts 
 to disregard, so far as consistent with an orderly sys- 
 tem, the old technicalities which formerly embarrassed 
 the practitioner, and counsel can now obtain the close 
 attention of the court to the substantial equities and 
 good faith of the parties. 
 
 A modern bill usually consists of merely the address, 
 introduction, stating part and prayer, the confederating 
 part and the lengthy and cumbrous charging part are 
 usually wholly omitted as well as the useless jurisdiction 
 clause, the interrogating part is omitted except in ex- 
 ceptional cases where some special discovery is required, 
 and the prayer for process may be dispensed with, as 
 process of subpoena issues of course and other process 
 by special order of the court. 
 
 The science of Chancery pleading may be summed up 
 in this. State plainly, positively and concisely every 
 fact necessary to make the equity of the party manifest 
 and employ no unnecessary verbiage. This principle 
 will apply to motions, afifidavits and petitions as well as 
 to bills and answers. 
 As this work is a treatise on Chancery practice in 
 
 iii 
 
IV PKEFACE 
 
 Michigan the authorities cited are principally those of 
 the Supreme Court of this State. While our statute 
 provides that the practice shall conform to that of the 
 English High Court of Chancery except as modified by 
 our own statutes and rules, it must be remembered that 
 this statute refers to the English practice as it then ex- 
 isted i. e., in 1848, and it is well known that since that 
 time, the English practice as well as our own is greatly 
 changed. Therefore, in matters of mere practice it is 
 now usually useless to refer to that of the English court. 
 
 The Forms in this work have been carefully revised 
 and I have endeavored to make them conform as nearly 
 as possible to the needs of the busy equity practitioner. 
 There are many which are not to be found in the older 
 works, these have been prepared from such as have been 
 approved by decisions of the Supreme Court of the state. 
 Most of the forms are arranged under the appropriate 
 subjects to which they refer, others that cannot be pre- 
 cisely classified, are inserted at the close of the book. 
 
 It is the hope of the author that this work will supply 
 the needs of the profession, to whom it is respectfully 
 dedicated. 
 
 Fbancis a. Stage. 
 Grand Rapids, Michigan. 
 
INTRODUCTION 
 
 Origin of Courts of Equity. 
 
 It may be said in one sense that courts of equity are 
 more ancient than courts of law, because in the infancy 
 of civil government, when mankind was divided into a 
 number of small independent communities, sometimes 
 consisting only of the members of one family, the only 
 court or tribunal was that of the ruler, whether patriarch, 
 chief, or king, who dispensed justice according to the 
 dictates of his own conscience in each individual case. 
 
 As communities became more extensive it became nec- 
 essary to formulate certain positive rules for the gov- 
 ernment of the citizens, and to regulate their intercourse 
 with each other, and to provide for the enforcement of 
 such rules, hence arose the various codes of laws which 
 are found in every civilized country from the earliest 
 antiquity as well as judicial tribunals for the enforce- 
 ment of those laws. 
 
 Nevertheless there arose from time to time some ex- 
 traordinary case not anticipated by the existing laws, 
 and consequently beyond the jurisdiction of the judges, 
 whose office was to carry the laws into effect; in such 
 cases we find many instances in ancient times of a direct 
 appeal to the sovereign in person. This was merely a 
 return to first principles, applying to the ruler to decide 
 the particular case in such manner as his conscience 
 should declare to be just and right. 
 
 In England, from which country our entire system of 
 jurisprudence is derived, the "Aula Eegia" or "Royal 
 Court," which was originally presided over by the King 
 in person assisted by his councillors chosen for their 
 probity and learning in the law, constituted the court 
 
 V 
 
VI INTRODUCTION 
 
 which took cognizance of all matters in difference be- 
 tween subjects, except such petty matters as fell within 
 the very limited jurisdiction of local magistrates. 
 
 The Eoyal Court accompanied the King's person 
 wherever he might be within the realm to the great in- 
 convenience of suitors and delay of justice. To remedy 
 this the courts of common law were created at a very 
 early day with their respective judges, and from the 
 judgment of these courts an appeal lay to the peers in 
 parliament as the court of last resort. 
 
 The remedies provided by these courts were, and still 
 are, awards of money to be paid by a debtor to his 
 creditor, or by a wrong-doer to the person injured, or 
 that goods or lands wrongfully taken or withheld should 
 be restored to the rightful owner, etc. No means or 
 method was provided in these courts by which the com- 
 mission of a threatened injury could be restrained, no.r 
 for the enforcement of trusts, nor to compel the specific 
 performance of contracts, nor to relieve against the un- 
 conscionable enforcement of the strict letter of a contract 
 or mortgage, nor for many other grievances now in- 
 cluded within the scope of equity jurisdiction. 
 
 For the redress of such grievances, as well as in cases 
 wherein the common law courts could not by their judg- 
 ments afford full or adequate relief, the only remedy of 
 the subject was to petition the king in person. This was 
 done by a written petition, or as it is now called a bill, 
 setting forth fully the circumstances of the grievance 
 complained of and the relief prayed, and appealing to 
 the conscience of the king to do what would be equitable, 
 guch petitions were usually referred to an officer of the 
 King's Court called his Chancellor, who in early times 
 was always an ecclesiastic and was then styled the 
 "Keeper of the Kings Conscience." This officer sum- 
 moned the parties complained of to appear before him 
 to answer the bill and proofs were taken and the chan- 
 cellor then recommended the decree which was almost 
 invariably adopted by the king. This decree was en- 
 forced by punishing the person disobeying, for contempt 
 of the King's majesty. In process of time the decree was 
 
INTEODUCTION Vll 
 
 made by the chancellor himself and a regular court called 
 "The High Court of Chancery" was established. 
 
 In the fourteenth century we find the record of a 
 decree of John Waltham, Bishop of Salisbury, Chancellor 
 to King Edward II, in a case where the grantee of land 
 conveyed to him in trust, for the use of another, refused 
 to perform his trust or to account to his beneficiary, the 
 common law courts had refused to interfere but the 
 chancellor held that the trust was binding in conscience 
 and decreed its fulfillment. This chancellor appears to 
 have been the first to issue a subpoena to compel the 
 appearance of a defendant. 
 
 The first layman to hold this important oflSce in Eng- 
 land appears to have been Chief Justice Thorp, Chan- 
 cellor to King Edward III, in 1372, who was succeeded 
 the following year by Chief Justice Knyvet. These were 
 followed by ecclestiastics until 1530, when Henry VIII 
 appointed the Ulustrious Sir Thomas More his chancellor. 
 Sir Thomas endeavored to reduce the proceedings in his 
 court to a system, which was subsequently improved by 
 Lord Bacon in the early part of the seventeenth century, 
 although the forms of procedure continued to follow to 
 a great extent those of the civil (or Roman) law, which 
 procedure was that followed by the ecclesiastical courts. 
 
 Thus originally the proofs of the respective parties 
 were taken by depositions upon written interrogatories 
 out of court before an ofiicer termed "master," and were 
 not allowed to be seen by the opposite party until all were 
 in; the case was then heard and the decree made on the 
 bill, answer, replication and proofs thus taken, the answer 
 being always on oath was taken as evidence on the part 
 of the defendant. The practice has been long since 
 changed and now each party has the right to hear the 
 testimony given on the part of his adversary and to 
 cross-examine the witness, and if he so elects, either 
 party may, in Michigan and in most if not all the states, 
 have all the proofs taken in open court as in a suit at law. 
 
 The authority of a court of equity to supervise the 
 courts of common law and to relieve against any injustice 
 caused by reason of the strict rules thereof, was estab- 
 
VUl INTEODUCTION 
 
 lished as long ago as the year 1615, during the chancellor- 
 ship of Lord Ellesmere, Lord Bacon's immediate pre- 
 decessor, when on solemn appeal to the king (James I) 
 in council attended by all the judges, such authority was 
 fully established, the precise case then decided was that 
 the Court of Chancery had power to prevent by injunction 
 the enforcement of a judgment of the court of King's 
 bench, which judgment had been obtained by fraud. Since 
 that decision such authority and power has remained 
 unquestioned. 
 
CONTENTS 
 
 [eepeeences aee to sections] 
 
 Preface » iii 
 
 Introduction v 
 
 Jurisdiction of courts of equity 1 
 
 Jurisdiction of federal courts 2 
 
 Jurisdiction of courts in Michigan 3 
 
 Inherent jurisdiction 4 
 
 Statutory jurisdiction 5 
 
 Courts having equity jurisdiction 6 
 
 Federal courts, style of 7 
 
 Courts of the state of Michigan, style of 8 
 
 Appeal lies to supreme court 9 
 
 Officers of the court 
 
 Register 10 
 
 Circuit court commissioner 11 
 
 Sheriff 12 
 
 Solicitor 13 
 
 Proceedings in a suit in chancery 14 
 
 The biU 15, 16 
 
 The several parts of a bUl 17 
 
 Sworn bills, how verified 18, 19 
 
 Bill must be divided into paragraphs 19 
 
 Stating part of the biU 20 
 
 How facts must be stated 24 
 
 Scandal and impertinence, what are 25 
 
 Federal court rule as to statement of facts 26 
 
 Multifariousness, what is 27, 28 
 
 Parties to bills 29 
 
 Attorney general, when to be complainant 30 
 
 Who may join as co-complainants 31 
 
 Who are proper complainants 32 
 
 Who are proper defendants 33 
 
 ix 
 
x contents 
 
 [ebfeeences are to sections] 
 
 Who need not be made defendants 34 
 
 Who are necessary and proper defendants 35, 36 
 
 Misjoinder, of several defendants for separate frauds 37 
 
 Junior mortgagee on payment when entitled to be substi- 
 tuted in foreclosure 37 
 
 Intervention by creditor of insolvent bank when allowed. . 37 
 Subpoena, is the regular process against defendants on 
 
 filing bill 38 
 
 Register to issue 39 
 
 Underwriting 40 
 
 By whom and where to be served 41 
 
 When to be served 42 
 
 If injunction issued when subpoena to be served 43 
 
 When to be made returnable 44 
 
 Admission of service of 46 
 
 Compelling return of process 47, 48 
 
 Action on ofScial bond for failure to return process. ... 49 
 
 When order of publication can be made 50 
 
 Affidavit for order 51, 52, 53 
 
 What affidavit must show 54 
 
 Where and how publication must be made 53, 55 
 
 Proof of publication 55 
 
 Taking bills as confessed 56 
 
 Facts showing default must appear from records 57 
 
 When affidavit of regularity required 58 
 
 When order of reference may be- taken 59 
 
 When and how proofs may be taken 59 
 
 Personal decree for payment of money not to be taken 
 
 on order pro confesso on publication 60 
 
 Decree pro confesso must conform to bill 61 
 
 Amending bill materially vacates order pro confesso ... 62 
 Bill cannot be taken pro confesso against infants or in- 
 competents 63 
 
 Bill dismissed if it shows no equities 64 
 
 Defendant may attend accounting after order pro con- 
 fesso 65 
 
 Setting aside default, answer must be proffered 66 
 
 Default vacated if proposed answer shows valid defence 67 
 
 What petition and affidavit must show 67 
 
Contents xi 
 
 [references are to sections] 
 
 Setting aside rests in sound discretion of the court 68 
 
 Application must be made promptly 69 
 
 Wten some have answered, no decree can be made 
 
 against defaulted defendants until hearing 70 
 
 Default set aside, when defendant has been brought in by 
 
 publication 71 
 
 The right to appear is absolute 72 
 
 Must appear within one year after notice, and within 
 
 seven years when no notice given 73 
 
 Decree confirmed if no appearance had 74 
 
 If appearance made before sale in foreclosure case sale 
 
 stayed , 75 
 
 When sale on foreclosure not affected by such appearance 
 
 but defendant may have accounting against complainant 76 
 
 Defence. 
 
 Appearance of defendant 77 
 
 Complaiaant to serve copy of bill 78 
 
 Ex parte proceedings after appearance void 79 
 
 General appearance, effect of 80 
 
 BiU dismissed if copy not served 81 
 
 May be by demurrer, plea answer or disclaimer 82 
 
 Demurrer, what is 83 
 
 General demurrer 84 
 
 General is to merits, special demurrer to form 85 
 
 When amendment ore tenus may be made without costs 85 
 
 What it reaches 86 
 
 Joint demurrers, how treated 87 
 
 Special demurrer 88 
 
 May be to entire bill or only a part 89 
 
 If too general it will be overruled 90 
 
 Several reasons may be assigned 91 
 
 Sustained when complainant fails to show any interest 92 
 
 Distinct demurrers to different parts of bill 93 
 
 Speaking demurrer 94 
 
 Certificate of counsel required 95 
 
 Joinder in demurrer not necessary 96 
 
 May be noticed for argument 96 
 
XU CONTENTS 
 
 [references are to SEOTIONSJ 
 Hearing if demurrer sustained at, complainant may 
 
 amend 97 
 
 If overruled defendant may answer 97 
 
 Form of demurrer 98 
 
 Plea, what it is, must be single 99 
 
 May set forth a variety of facts and circumstances. . . . 100 
 
 May put in several pleas to distinct parts of bill 101 
 
 May be good in part 102 
 
 Every essential fact must be stated in plea 103 
 
 Afflrmative and negative pleas 104 
 
 May be to relief or discovery or both 105 
 
 To the jurisdiction of the court 106 
 
 To the person of the complainant 107 
 
 To the bill, — lack of parties 108 
 
 In bar 109 
 
 How matters must be stated in plea 110 
 
 Must be signed by defendant 110 
 
 Verification by affidavit of defendant Ill 
 
 Must have certificate of counsel Ill 
 
 "When must be supported by answer Ill, 112 
 
 Answer in support of plea no part of defence . . , 113 
 
 When must be filed and served 114 
 
 Setting plea &own for argument 115 
 
 Replying to plea, effect of 116 
 
 "When plea may be amended , 117 
 
 Amendment of bill after plea,, effect of 118 
 
 "When to stand for answer 119 
 
 If plea overruled defendant to answer 120 
 
 If plea allowed complainant may take issue or move for 
 
 leave to amend bill 121 
 
 Decree on determinaliion of issue of fact 121 
 
 Not held bad when 122 
 
 Superseded by answer to amended bill 123 
 
 When benefit saved to hearing, effect of 124 
 
 Disclaimer. 
 
 "What it is ]^25 
 
 When must be accompanied by answer 126 
 
 Cannot disclaim in a demurrer. , , 126 
 
contents xiu 
 
 [references are to sections] 
 
 Proceedings by complainant on disclaimer 127 
 
 When must he accompanied by release 127 
 
 May disclaim as tp part of bill 128 
 
 Must be full and explicit 129 
 
 Answer. 
 
 What it is , 130 
 
 Need not be on oath, when 130 
 
 Of what it consists 131 
 
 Must contain admission or denial of aU matters in bill 
 
 within kiiowledga of defendant 132 
 
 Allegations not answered are taken as admitted 132 
 
 Must be full and explicit and apprise complainant of 
 
 defence 133 
 
 Defence not stated in answ0r cannot be availed of 133 
 
 Waives right to demur or plead 134 
 
 Equitable estoppel, answer must state all facts of 135 
 
 Demurrer clause in answer when available 136 
 
 Form of 137 
 
 To amended bill, how made 138 
 
 Of infants by guardian ad litem 139 
 
 Amendments to ,...., 140 
 
 Exceptions to, iaI)olished ; objection^ disposed of by spe- 
 cial motion "^ 141 
 
 Claiming affirmative relief by way of cross bill, allowed 
 
 when 142 
 
 Allegations must conform to rules for cross bill 142 
 
 Complainant must answer allegations of 142 
 
 No replication by defendant necessary , . . , , 142 
 
 Cross bills. 
 
 Object and nse, and when necessary 143 
 
 Bill must first be answered 143 
 
 Answer must show grounds on which cross bill founded 143 
 
 May be filed at same time with answer, not before 143 
 
 Can be sustained only on matters arising out of original 
 
 biU 144 
 
 When it can be maintained - 145 
 
 May introduce new facts • • • 146 
 
xiv CONTENTS 
 
 [eepekences are to sections] 
 Answer claiming benefit of cross bill does not apply 
 
 where relief is sought against co-defendants 146 
 
 Cases where affirmative relief may be given defendant 
 
 without cross bill •. 14T 
 
 Frame of 148 
 
 Subpoena must be issued and served 148 
 
 Effect of allowing answer in nature of cross bill to be 
 
 taken pro conf esso 148 
 
 Complainant not compelled to delay bringing original 
 
 suit to hearing except by special order 148 
 
 When cross case is at issue 148 
 
 Replication — what it is and when to be filed 149 
 
 Special not allowed , 149 
 
 Effect of 150 
 
 Form of 151 
 
 Proceedings after cause at issue. 
 
 "When deemed at issue 152 
 
 Notice to be served on all defendants who have appeared 152 
 Time for claim for examination of witnesses in open 
 
 court begins from service pf such notice 152 
 
 Examination of witnesses in open court notice of claim 153 
 Case may then be noticed for trial and hearing like law 
 
 eases , 153 
 
 The court may, in cause shown, otherwise direct 153 
 
 Demand must be made within the time prescribed 153 
 
 Demand cannot be made until cause is at issue 153 
 
 Notwithstanding demand court may order reference 
 
 to circuit court commissioner for an accounting. . . . 153 
 Depositions pf absent witnesses may nevertheless be 
 
 taken 154 
 
 If no such election be made, testimony to be taken before 
 
 circuit court commissioner 155 
 
 Notice to be given . , , 155 
 
 Each party to pay fees for transcribing his own exami- 
 nation and cross examination 155 
 
 Subpoena for witnesses , 155 
 
 How testimony taken 155 
 
 Time for taking testimony may be extended by court. . 156 
 
COtTTENTS XV 
 
 [references are to sections] 
 
 What application must state 156 
 
 To whom application may be made — circuit judge or 
 
 circuit court commissioner 156 
 
 Commissioner to return and file proofs in court 157 
 
 Testimony closed without order at expiration of time. . 157 
 
 Either party may ncftice for hearing 157 
 
 Defendants may notice for hearing on pleadings if no 
 
 testimony taken 157 
 
 Notice of hearing to be served on all defendants who 
 
 have appeared 157 
 
 Testimony before commissioner to be taken in same 
 
 manner as depositions 158 
 
 Testimony may be taken stenographieally and tran- 
 scribed 158 
 
 Testimony may be taken by question and answer .... 158 
 Eecord to show who appeared for respective parties. . . 158 
 Testimony to be read to each witness bef ope signature . . 158 
 Circuit court commissioner cannot rule on admissibility 
 
 but must take objection and evidence 159 
 
 Except as to priviliged communications 159 
 
 Testimony in open court to be taken subject to objec- 
 tions 159 
 
 Circuit court commissioners are auxiliary judicial officers . . 160 
 
 Discharge duties of masters in chancery 160 
 
 Authorized to perform duties of injunction masters . . 160 
 
 Who to act when disqualified or absent 161 
 
 May complete sale after expiration of term of office . . 161 
 
 Powers and duties of 162 
 
 Manner of accounting before 163 
 
 Duties on any sale of real estate same as in foreclosure 164 
 
 Must keep register 164 
 
 Caption of order by 165 
 
 May make separate reports when ■ • • 165 
 
 Order of confirmation nisi to report of 165 
 
 Exceptions to report of, brought to hearing on motion 165 
 
 Appeals from orders of 166 
 
 To give notice of proposed report 167 
 
XVI CONTENTS 
 
 [RErERENCBS ARE TO SECTIONS] 
 
 Either party may file objections and take exeeptianfi 
 
 thereto 167 
 
 Eeport on facts should not embody evidence unless so 
 
 ordered 167 
 
 When no exceptions are filed, report taken as true . . . 167 
 
 Evidence rules of are substantially the same as at law 168 
 
 No incompetency because of interest, relationship or 
 
 infamy of witness , 168 
 
 Parties to. record, are competent witnesses 168 
 
 No incompetency on account of religious opinions .... 168 
 Evidence. 
 
 Ministers and priests not to divulge confessions 169 
 
 Physicians and surgeons not to divulge disclosures by 
 
 patients 169 
 
 Husband and wife not competent against each other 
 except in cases where their rights are antagonistic to 
 
 each other 170 
 
 Comunications betwen husband and wife privileged. . 170 
 
 Privilege may be waived 170 
 
 When one party is deceased opposite party not compe- 
 tent to testify to matters within knowledge of deceased 
 
 party , 170 
 
 Rule includes agents, surviving partners and officers of 
 
 corporation 170 
 
 Also assignors of cause of action 170 
 
 Statute not to aifect deposition already taken and used 170 
 
 The prohibition may be waived 171 
 
 Limitation of the prohibition 171 
 
 Manner of swearing witnesses — when may affirm 172 
 
 When witnesses may be excused from answering 172 
 
 Right to call and cross examine opposite party 173 
 
 Court to receive all testimony subject to objections 
 
 unless scandalously improper or violates privilege. . . 173 
 Admission of genuineness of documents, effect of refusal 174 
 
 Deposition may be read by either party 174 
 
 Objections to, when to be made and noticed for hearing 174 
 Pleadings are evidence only as to admissions 175 
 
CONTENTS XVll 
 
 [references .\re to sections] 
 Amendments of the bill, when may be without leave of the 
 
 court 176 
 
 May be allowed on motion at any stage of the proceed- 
 ings 177 
 
 Not to be inconsistent with original bill 177 
 
 Necessary parties may be added by 178 
 
 Divorce bill not to be amended by praying annulment of 
 
 marriage 178 
 
 Matter occurring since filing bill not proper for amend- 
 ment 178 
 
 Mere clerical errors amended as soon as discovered . . . 178 
 
 Of a plea by supplying omissions 179 
 
 Of an answer when may be without leave 180 
 
 Court may allow at any time 181 
 
 How made when without leave of court 181 
 
 When considered as made 182 
 
 Amendments. 
 
 Time to answer amended bill 183 
 
 Defendant may demur or plead to amended bill ..,.,. 183 
 
 Leave to amend, when necessary how obtained 184 
 
 Original and amended bill constitute but one record . . 184 
 
 Court may allow a demurrer to be amended 184 
 
 Hearing. 
 
 Interlocutory and final, what are 185 
 
 Notice of when and how given 186 
 
 How and when notices of hearing of motions and peti- 
 tions to be served 187 
 
 How and when notice of final hearing to be served . . . 187 
 
 Calendar how made up 188 
 
 Note of issue to be filed 189 
 
 Original and cross suits heard together 190 
 
 Party having affirmative has right to open and close . . . 191 
 On hearing of demurrer or plea, defendant should open 
 
 and close 191 
 
 In other cases, the complainant 191 
 
 All former orders may be affirmed, modified or vacated 
 
 at 192 
 
 Note of issue to be filed with register, and what it contains 193 
 
XVm CONTENTS 
 
 [eepekences are to sections] 
 
 Term calendar, how made up 194 
 
 Decree. 
 
 What is interlocutory or final 195 
 
 Must conform to bill if for complainant 195 
 
 If for affirmative relief for defendant must conform to 
 
 cross bill or answer 195 
 
 May give any relief warranted by statement in bill . . . 195 
 
 Interlocutory on demurrer or plea 196 
 
 Final, what is 197 
 
 Test whether decree is interlocutory or final 197 
 
 What should be stated in 198 
 
 After death of party after hearing decree may be made 
 to relate back to time of hearing nunc pro tune clause 
 
 to be entered 199 
 
 Lost decree may be restored 199 
 
 Cannot be entered in divorce ease after death of party 199 
 
 How prepared and signed by judge 200 
 
 When successor to judge may sign 300 
 
 Opinion to be rendered by judge within six months after 
 
 hearing 200 
 
 Enrollment of decree. 
 
 When and how to be ma,de 201 
 
 No final process to issue until enrollment 201 
 
 Effect of enrollment 202 
 
 Orders. 
 
 Common, what are and how entered 203 
 
 Special orders and decrees to be signed by judge or 
 circuit court commissioner whether heard in court or 
 
 at chambers .•■ 204 
 
 Rehearing. 
 
 May be applied for before enrollment by petition 205 
 
 What petition must state 205 
 
 Must have certificate of counsel 205 
 
 Deposit in case rehearing granted 205 
 
 When will be granted 206 
 
 When not granted 207 
 
 When application for may be made 207 
 
 After decree affirmed in supreme court, application must 
 
 be made to that court 208 
 
contents xlx 
 
 [references are to sections] 
 Bill of review. 
 
 Only means to obtain rehearing after enrollment 209 
 
 Grounds of, errors apparent on face of record and 
 
 new evidence 209 
 
 Cannot be filed without leave of the court 209 
 
 Leave to file discretionary 210 
 
 Leave cannot be granted at chambers 210 
 
 After appeal application must be to supreme court . . . 210 
 Supreme court will grant leave after judgment for 
 
 newly discovered evidence 211 
 
 For errors of law when allowed 212 
 
 When defendant precluded by irregularity from meri- 
 torious defence 213 
 
 When defendant decreed to be liable contrary to under- 
 writing in subpoena 213 
 
 When foreclosure decree contrary to terms of mortgage 213 
 For fraud in award of commissioners in partition . . . 213 
 When mortgagee in possession has failed to apply issues 
 
 and profits of land 213 
 
 For newly discovered evidence when allowed 214 
 
 Not allowed on ground of failure to perfect appeal .... 214 
 Nor on ground of mistake of law causing consent to 
 
 decree > 214 
 
 What petition for leave to file must show 215 
 
 Notice of petition must be given 215 
 
 At hearing of petition opposite party may present 
 
 affidavits 216 
 
 Leave not granted to file unless apparent that charges 
 
 and facts can be proved 216 
 
 If leave granted, what bill should state 217 
 
 Error in law and newly discovered evidence may be 
 
 joined in 217 
 
 In foreclosure case on ground of sacrifice of property 
 bill should offer security to redeem or to produce a 
 
 higher bid 218 
 
 Must be verified 219 
 
 May be amended by leave of court 219 
 
 Defence to 220 
 
 Not allowed to take place of appeal 221 
 
xx contents 
 
 [references are to sections] 
 
 Party has same right as on rehearing 221 
 
 Answer waives right to appftftl from order granting 
 
 leave 221 
 
 Answer in nature of cross bill attacking decree in an- 
 other case requires leave to file 221 
 
 All parties to original biU are proper parties 221 
 
 If new parties are introduced, it is original with regard 
 
 to them 221 
 
 Supplemental bill. 
 
 Is to introduce matters occurring since filing original 
 
 bill 222 
 
 Not to introduce preexisting matters 222 
 
 Will not avail where original bill shows no ground for 
 
 relief 222 
 
 May bring in new matters which may vary relief sought 222 
 
 Can only be filed by leave of court 223 
 
 When leave may be granted ex parte 223 
 
 What petition for leave must show 223 
 
 Is an addition to original bill and part of same record 224 
 May be used to bring new parties before court and is 
 
 original as to such new parties 224 
 
 One not a party to original bill may be allowed to file 
 
 supplemental 225 
 
 Filing vacates order pro confesso to original bill 226 
 
 Bill of revivor and supplement. 
 
 When may be filed after death of complainant 227 
 
 When supplemental bill may be filed after decree 228 
 
 Kevivor. 
 
 When a suit "abates" in equity 229 
 
 Formerly bill always necessary 230 
 
 Statements in original bill need not be stated in bill of 231 
 
 Bill of not necessary in Michigan 232 
 
 Statutory provisions as to suggestion of death of com- 
 plainant 232 
 
 Court may order revivor against representatives of 
 
 deceased defendant 232 
 
 Order of to be served 232 
 
 Proceedings after order of 232 
 
contents xxi 
 
 [repeeknces aee to sections] 
 Eepresentatives of deceased complainaiit may be made 
 
 complainants 232 
 
 When representatives of deceased complainant may be 
 
 made defendants , 232 
 
 Proceedings when co-defendant dies and complainant . 
 
 fails to revive , 232 
 
 Case wherein bill of revivor deemed necessary 233 
 
 Appeals to supreme court. 
 
 "Who may appeal , 234 
 
 Jurisdiction of supreme court appellate only ..... 234 
 
 Right of appeal absolute 234 
 
 Supreme court acts as on rehearing or trial de novo . . . 234 
 Appeal lies from order overruling general demurrer, 
 
 not special 235 
 
 Lies only from such decrees as are final and not merely 
 
 interlocutory 235 
 
 If decree conclusive of any right it is appealable 236 
 
 All final decrees are appealable 236 
 
 After decision on appeal on demurrer case to be 
 
 remanded • • ■ • 237 
 
 Giving opportunity to remand bill after sustaining 
 
 demurrer not mandatory 237 
 
 How taken 238 
 
 Time may be extended for perfecting appeal 238 
 
 Extension to be on special motion 238 
 
 Not to stay proceedings unless bond filed 239 
 
 Sureties, how approved 239 
 
 Appeals. 
 
 Evidence, how settled for 239 
 
 No stay of proceedings to be granted longer than forty 
 
 days without bond 240 
 
 Statute regulating proceedings 240 
 
 Register to transmit papers to supreme court on 240 
 
 Proceedings necessary to take 241 
 
 Must be taken within statutory time 241 
 
 Record must be printed 241 
 
 Printed record, what it must contain and how printed 242 
 
XXll . CONTENTS 
 
 [references are to sections] 
 When and how printed copies of record to be filed and 
 
 served 242 
 
 When and how case noticed for hearing 243 
 
 Heard on printed briefs and oral arguments 244 
 
 Brief of appellant to contain statement of facts 244 
 
 How and when briefs to be served 245 
 
 Supplemental briefs may be filed 245 
 
 Eighteen copies of briefs to be filed with court 245 
 
 Court will consider only such points as are made in 
 
 briefs 245 
 
 Statement of facts should contain references to record 245 
 Six copies of briefs and records to be served on attorney 
 
 general 245 
 
 How calendar made up on 246 
 
 Ee-arrangement of calendar 246 
 
 Fifteen cases to be put on call each day 246 
 
 When ease regarded as submitted on briefs 246 
 
 Motion days, what are 246 
 
 Oral argument limited to two counsel and two hours on 
 
 a side 247 
 
 Causes involving not more than $500, and all motions, to 
 
 be submitted on briefs 247 
 
 Decree, form of if that of court below affirmed 248 
 
 If modified, practice on 248 
 
 Costs, fee of clerk , 249 
 
 Taxable costs 249 
 
 AU costs in discretion of court , 250 
 
 Larger counsel fees sometimes allowed 250 
 
 Counsel fee not allowed when no brief filed 250 
 
 Deductions made when record too prolix 250 
 
 Copy for printer allowed as disbursement 250 
 
 How taxed ; to be taxed by clerk 251 
 
 Appeal from taxation by special motion to court . .. . 251 
 
 Objections to be filed in writing with clerk 251 
 
 Rehearing in supreme court, petition for 252 
 
 If denied, costs on . . , , 252 
 
 Right to on application, when a dissenting opinion 
 filed when not before full bench 252 
 
CONTENTS XXlll 
 
 [references are to sections] 
 
 "When court may order re-argument 252 
 
 When re-hearing not allowed 253 
 
 Final process of supreme court, when and how issued. . 254 
 Costs. 
 
 Axe always in the discretion of the court 255 
 
 ■ AUowed by rule 255 
 
 Expenses for payment of officers and witness fees, etc . . 255 
 
 Fees of register in chancery 256 
 
 Sheriff in chancery 257 
 
 Circuit court commissioner 258 
 
 Witnesses 259 
 
 Register of deeds 260 
 
 For publishing legal notices, etc 261 
 
 Meaning of word "folio" 262 
 
 Prospective, what may be charged 263 
 
 Legal fees paid for certified copies of document may 
 
 be taxed 263 
 
 Attorneys, solicitors and counsel not allowed witness fees 263 
 
 How awarded and taxed 264 
 
 When complainant dismisses his bill 264 
 
 In aU other cases costs paid by such party as court shaU 
 
 direct 264 
 
 Register to tax costs, including his own fees . , 264 
 
 Notice of taxation same as in supreme court 264 
 
 Objections to taxation how made 265 
 
 Hearing on retaxation confined to those objections. . 265 
 Affidavit of attendance, etc., of witnesses and of dis- 
 bursements 266 
 
 Taxing officer to examine bills and reject illegal charges 267 
 Notice of taxation must have copy of bill annexed .... 267 
 Security for costs. 
 
 Bond to be filed by non-resident complainant 268 
 
 Bond for may be allowed nunc pro tunc 268 
 
 Court m«,y on special motion order complainant to give 
 
 in other cases 269 
 
 Not ordered if it appears complainant entitled to relief 269 
 
 Motions and petitions, what are 270 
 
 May be made to court or judge at chambers 270 
 
xxiv contents 
 
 [references are to sections] 
 When application should be by petition and when by 
 
 motion 270 
 
 Motions are general or special, general when party is 
 
 entitled to order of course , 271 
 
 Common orders how entered , .r 271 
 
 Taken by mover at his peril ., 271 
 
 Petitions and special motions to be in writing and signed 272 
 Must set forth grounds and filed with affidavits on or 
 
 before hearing 272 
 
 Notice of time and place of hearing with copies of 
 
 affidavits how given 273 
 
 To be argued on day for which uotjeed unless otherwise 
 
 ordered 273 
 
 When to stand continued 273 
 
 One counsel to be heard on a side ; mover to have opening 
 
 and close 273 
 
 Deposition may be used at hearing of 273 
 
 Judge may order stay of proceedings, when 273 
 
 Motions for continuance, when and how to be made .... 274 
 Effect of service of notice of motion for continuance . . . 274 
 Counter affidavits may be read at hearing of without 
 
 having served copies 274 
 
 Affidavits used on motions must be entitled . , 275 
 
 Authentication of affidavits sworn in foreign country or 
 
 state 277 
 
 Affidavit valid in some cases without signature of affiant . . 278 
 Facts to be stated positively in affidavits to give jurisdiction 278 
 Petitions. 
 
 Are motions in more formal shape 279 
 
 How facts to be set forth in 279 
 
 When to be supported by affidavit 279 
 
 Entitled in court and cause and addressed to court 280 
 
 Signed and sworn to by petitioner and signed by his 
 
 solicitor or counsel 280 
 
 Proceedings by and against infants, etc 281 
 
 Next friend to be appointed for infant complainant . . 281 
 Appointment made by judge or circuit court commis- 
 sioner 282 
 
contents xxv 
 
 [repebences aee to sections] 
 
 When and how must give security 283 
 
 Order appointing next friend to be filed before bill filed 284 
 When guardian ad litem to be appointed for infant 
 
 defendant 285 
 
 Order in case infant neglects to request appointment . . . 286 
 In case of persistent neglect judge may appoint on 
 
 motion of complainant 287 
 
 In such case register of court usually appointed 287 
 
 Service of papers, pendente lite. 
 
 How made 288 
 
 Extra time when adverse solicitor lives at a distance . . 289 
 
 Where several defendants appear by different solicitors 289 
 
 Where two or more solicitors appear for same defendant 289 
 
 Where party appears in proper person 290 
 
 When the court may direct how service to be made. . . . 290 
 
 When object is to bring party into contempt 291 
 
 None necessary on defendant who has not appeared . . . 292 
 Party having appeared by solicitor, service must be on 
 
 solicitor 292 
 
 Notice required to be given of all proceedings to party 
 
 who has appeared 292 
 
 Need not be given in advance of entry of common orders 
 
 nor of ex parte applications 292 
 
 Computation of time on 293 
 
 Entitling papers. 
 
 AU must be entitled in court and cause 294 
 
 Kegister not to file papers not entitled 294 
 
 Agreements to be in writing ; rule strictly enforced 295 
 
 Court files. 
 
 Register to endorse day of filing 296 
 
 Files not to be removed without order of judge 296 
 
 Parties interested may inspect and take copies 296 
 
 May be withheld from public until hearing 296 
 
 Not to be altered without leave of the court 296 
 
 Assignment of interest by complainant 297 
 
 Bill in nature of revivor formerly necessary 297 
 
 Assignee may now be substituted on petition 297 
 
xxvi contents 
 
 [references are to sections] 
 
 Injunction. 
 
 Is mandatory or prohibitory 298 
 
 Permanent or preliminary or interlocutory 298 
 
 Mandatory not usually granted as interlocutory 298 
 
 Preliminary issued in cases of urgency on filing bill . . . 299 
 
 Granting of, rests in discretion 300 
 
 Not reviewed by supreme court except when discretion 
 
 abused 300 
 
 One court cannot enjoin another 301 
 
 Possession of lands cannot be changed or disturbed by 301 
 
 Directors of corporation not deprived of management by 301 
 
 When court has no jurisdiction to grant 301 
 
 "When priliminary injunction may be granted 302 
 
 Granted to restrain inequitable interference with water 
 
 rights 303 
 
 Misapplication of public money 303, 
 
 Threatened injury to land or continuous trespass 303 
 
 Any act constituting a nuisance 303 
 
 Suit in ejectment against equitable owner 303 
 
 Conveyances of real estate or transfer of personalty 
 
 pendente lite 304 
 
 Erection of obstruction to public alley or private 
 
 right of way 304 
 
 Parishioners from interfering with proper church 
 
 officials 304 
 
 Collection or negotiation of note obtained by 
 
 fraud 304 
 
 Violation of covenants of a lease 304 
 
 Carrying on business in violation of contract 304 
 
 Trades unions from boycotting 305 
 
 Any act inequitably injuring complainant 305 
 
 Commencement or prosecution of inequitable suits 
 
 at law 306 
 
 Collection of inequitable judgments 806 
 
 Does not act against tribunal but restrains parties f rorti 
 
 acting 306 
 
 Deposit of money as security to be given on injunction 
 
 to stay trial at law 307 
 
CONTENTS XXVii 
 
 [refeeences are to sections] 
 Deposit of money and security to be given on injunction 
 to stay proceedings at law after verdict or judgment 308 
 
 Proceedings at law for recovery of land 309 
 
 Circuit judge may dispense with deposit on giving band 310 
 May dispense with bond or deposit in eases of fraud 310 
 
 Bond, sureties, justification and approval of 310 
 
 When condition broken judge shall direct delivery 310 
 
 Circuit judge and circuit court commissioner may grant 
 
 to stay proceedings at law 3X1 
 
 Circuit court commissioner not to grant to stay after 
 
 verdict 3Xi 
 
 Limitation of power of circuit court commissioner to 
 
 grant 312 
 
 No second application to a circuit court commissioner to 
 
 be made after first is refused 312 
 
 Order of circuit court commissioner not to be affected 
 by subsequent order of any other circuit court com- 
 missioner while first is competent to act 313 
 
 Circuit court commissioner refusing injunction shall 
 
 endorae refusal on biU 313 
 
 Party making subsequent application after refusal 
 
 guilty of contempt 313 
 
 Supreme court may grant interlocutory injunction 
 
 while appeal pending 314 
 
 Bill praying for injunction as part of final relief need 
 
 not be on oath, when 315 
 
 Bill praying preliminary injunction must be on oath. . . 315 
 All facts and circumstances must be stated positively 
 
 on knowledge 315 
 
 Prayer should state clearly acts to be enjoined 315 
 
 In urgent cases may be granted ex parte 316 
 
 Injunction. 
 
 Order to show cause when granted with restraining 
 
 order in meantime 317 
 
 Bill entirely on information and relief supports order 
 
 to show cause 317 
 
 AVTien notice of application to be given 317 
 
 When judge of an adjoining circuit may act 318 
 
XXVlll CONTENTS 
 
 [references are to sections] 
 Dissolution of injunction is in the discretion of the 
 
 court 319 
 
 When denied 319 
 
 When dissolved before answer 319 
 
 Motion to dissolve how made and heard 320 
 
 General rule that motion to dissolve must be founded 
 
 on answer 320 
 
 Dissolution of in urgent cases_ affidavit may be usod 
 
 before answer 320 
 
 Answer admitting allegations and setting up new matter 
 
 not sufficient 320 
 
 Affidavits may be read by both parties at the hearing of 
 
 the motion 320 
 
 Notice of motion should state reasons for dissolution. . 320 
 May be reviewed by supreme court by mandamus when 
 
 discretion abused or when question is one of law 
 
 merely 321 
 
 Receiver, what is 322 
 
 Chancery the only court in which a receiver can be 
 
 appointed 323 
 
 Appointment of governed by discretion limited by 
 
 rules of law 32B 
 
 Is harsh remedy to be resorted to only in extreme 
 
 eases 323 
 
 Cannot be appointed ex parte 323 
 
 In partnership cases to wind up business 324 
 
 In judgment creditor's suits, when 324 
 
 Powers and duties of in judgment creditor 's suits 325 
 
 When several creditors' suits against same debtor, only 
 
 one appointed 326 
 
 Unless the first was appointed by fraud and collusion. . 326 
 
 To give security 326 
 
 Not to be discharged without order of court 326 
 
 When a subsequent suit commenced, same person 
 
 appointed, to give additional security and keep seper- 
 
 ate accounts 327 
 
 By statute in proceedings to wind up corporations 328 
 
 For collection of labor debts 328 
 
CONTENTS XXIX 
 
 [references are to sections] 
 To take charge of property of insolvent and vacated 
 
 corporations 328 
 
 In partition proceedings 328 
 
 Of husband 's estate to secure alimony 328 
 
 In assignments for benefit of creditors 328 
 
 In foreclosure of mechanic's liens 328 
 
 In winding up business of a bank, or trust and deposit 
 
 and security company 328 
 
 Of copartnership or corporation may be directed to 
 
 continue the business 328 
 
 May be appointed of effects of insolvent corporation of 
 another state as ancillary to receiver of court of that 
 
 state 329 
 
 Bill should pray for appointment of 330 
 
 Application may be made at any time during pendency 
 
 of suit 330 
 
 Affidavits and sworn answer may be read at hearing of 
 
 application 330 
 
 Not appointed to take property from those in lawful 
 
 possession unless danger apprehended 330 
 
 Appointment may be made at court or at chambers. . . 330 
 
 Must be strong ground to appoint before answer 331 
 
 Officer, stockholder or creditor of insolvent corporation 
 
 may be 331 
 
 Courts have broad discretion in creditor's suits 332 
 
 Not appointed in foreclosure eases before sale 832 
 
 Nor of property of corporation covered by trust mort- 
 gage unless fund in danger 332 
 
 Contempt. 
 
 Is either criminal or ordinary 333 
 
 Criminal, what is 333 
 
 Punishment for 333 
 
 Ordinary, what is : 334 
 
 It is contempt to file bill to interfere with the jurisdic- 
 tion of another court over the same subject matter. . 335 
 
 Failure to pay alimony is 336 
 
 So is violation of injunction 336 
 
XXX CONTENTS 
 
 [rEPBBENCES ABE TO SECTIONS] 
 
 And disobedience of order of court by receiver 33& 
 
 Party not guilty of contempt for failure to pay money 
 
 until demand and refusal 337 
 
 Nor for failure to execute deed unless deed presented 
 
 and execution refused > 337 
 
 When proceedings for, cannot be resorted to for nofl- 
 
 payment of mioney 337 
 
 Proceedings when not committed in view of court 338 
 
 By disobedience to rule or order for payment of costs 
 
 or other money on proof of personal decree is, and 
 
 court to issue attachment ex parte, but defendant 
 
 shall have opportunity to be heard 338 
 
 In all other cases of, order to show cause or attachment 
 
 issues ■. 339 
 
 Attachment for to issue without special order against 
 
 ofl&cer for failure to return process 339 
 
 In any other case attachment without special order is 
 
 void 339 
 
 Order for attachment to have amount of bond endorsed 
 
 thereon 339 
 
 Sheriff to bring party into court on attachment unless 
 
 bond given 340 
 
 On attachment without special order if no amount 
 
 endorsed 340 
 
 Defendant may give bond in $100, for appearance 340 
 
 If special order not endorsed defendant not to be 
 
 released on bond 340 
 
 If defendant make default after release second attach- 
 ment issues 340 
 
 Interrogatories to be ordered and written answers on 
 
 oath required 341 
 
 Reasonable time allowed to make answers 341 
 
 Affidavits or other proofs may be received contradicting 
 
 answers 34j^ 
 
 "When defendant will be discharged with costs 341 
 
 Filing interrogatories necessary in proceedings 342 
 
COKTENTS XXxi 
 
 [references are to sections] 
 When facts admitted by answer to order to show cause 
 
 interrogatories not necessary 342 
 
 No interrogatories in case of criminal contempt 343 
 
 Solicitor cannot make admissions for his client 343 
 
 Judgment of fine or imprisonment if guilty 344 
 
 Sentence to imprisonment must be definite 345 
 
 Women not exempt for imprisonment for contempt ... 345 
 In case of actual loss or injury court may order payment 
 
 of indenmity to party instead of fine 346 
 
 Imprisonment to be only until defendant has performed 
 act or duty omission of which caused the contempt 
 
 and paid fine and costs 347 
 
 Committment for to specify act or duty, and amount of 
 
 fine and costs 347 
 
 Imprisonment not to exceed six months, when 347 
 
 Bond may be prosecuted, when 347 
 
 May be purged by performance of order or showing 
 
 inability to perform 348 
 
 Foreclosure of mortgage. 
 
 Equity considers mortgage as security only 349 
 
 Bill for must be filed in county where land lies 350 
 
 What bill must show 350 
 
 Sale to be not within six months after bill filed 351 
 
 May be redeemed within six months after sale 351 
 
 Deed becomes operative after six months if not redeemed 351 
 
 Court may decree payment of deficiency, when 352 
 
 Execution may issue for deficiency 352 
 
 If debt be secured by obligation of other parties they 
 may be made parties and decree for deficiency made 
 
 against them 352 
 
 Parties to bill who are 352 
 
 Owner of debt secured is owner of mortgage 352 
 
 What stating part of bill should allege 353 
 
 Not necessary to particularize the interests of subse- 
 quent purchasers 353 
 
 Prayer of bill for 354 
 
•yyyn conteitts 
 
 [eepeebncbs are to sections] 
 Assignment, if any to complainant m-ust be alleged in 
 
 bill 355 
 
 What constitutes assignment 355 
 
 Person holding legal title to mortgage must be party . . . 355 
 Purchaser at defective statutory foreclosure becomes 
 
 owner of mortgage and may foreclose 356 
 
 Trustee holding mortgage need not make beneficiaries 
 
 parties 356 
 
 On death of one of two or more mortgagees for single 
 
 debt, survivor may foreclose 357 
 
 If to secure separate debts, survivor can recover only his 
 
 own debt 357 
 
 If mortgagee dies, mortgage if not specifically be- 
 queathed, goes to executor or administrator 358 
 
 Bill by executor to foreclose, what must show 358 
 
 A mortgage specifically bequeathed to legatee, legatee 
 
 may foreclose and what bill must show 358 
 
 Mortgage in trust to secure bondholder when trustee 
 
 may foreclose 359 
 
 What the bill should state 360 
 
 If trustee refuses to foreclose bondholders may and what 
 
 bondholder's bill should state 360 
 
 Foreclosure bills need not be sworn unless injunction 
 
 asked 361 
 
 Defence, answer m^y show any equitable defense 362 
 
 That complainant does not own the debt is good defence 363 
 Defendant is entitled to any defence he has against 
 
 owners of note 363 
 
 Assignee of mortgage not given to secure negotiable note 
 
 takes it subject to all equities 363 
 
 Must be commenced within fifteen years after due or 
 
 after last payment 364 
 
 Defence must be set up in answer 364 
 
 Answer may pray affirmative relief as by cross bill 365 
 
 Answer to bill filed for discharge of mortgage may pray 
 
 for foreclosure ' 365 
 
 Keferenee to commissioner to report amount due when 365 
 
CONTENTS XXXlll 
 
 [eefekences ake to sections] 
 If defendant is an infant reference must be to take 
 
 proofs 365 
 
 Court may make computation itself 366 
 
 No decree against a defendant not personally served nor 
 
 against an infant without proofs 366 
 
 If bill be taken pro confesso, affidavit of regularity is 
 
 necessary 367 
 
 Notice lis pendens to be filed 368 
 
 At hearing notes, bonds and mortgage to be produced. . 368 
 
 Decree for 369 
 
 Sales on, to be in parcels in inverse order of alienation 
 
 when 370 
 
 Personal decree against guarantors, when 370 
 
 Not against wife of mortgagor, when 370 
 
 No sale to be made on until after six months from com- 
 mencement of suit 371 
 
 Deeds on, not operative until six months after sale, in 
 
 the meantime redemption may be made 371 
 
 Publication must give 42 days notice of sale 371 
 
 Publication of notice of sale not until time for payment 
 
 has elapsed 371 
 
 Sale on must be by circuit court commissioner of county 
 
 where land lies at public vendue or auction at court 
 
 house between 9 a. m. and sunset 372 
 
 Sale cannot be made before enrollment of decree but 
 
 advertising may be before enrollment 372 
 
 When land to be sold in parcels 373 
 
 Notice to be posted and published in newspaper 374 
 
 Adjournment of sale, how made 374 
 
 If bidder neglects immediate payment, resale to be made 375 
 Proof of publication and posting of notice, how made . . 376 
 
 Circuit court cominissidner to make deed 376 
 
 Deed to be deposited with register of deeds 376 
 
 Proceedings when redemption is made 376 
 
 Circuit court commissioner to make report of sale . , . , . 377 
 
 Bring surplus into court or report deficiency 377 
 
 Order of confirmation nisi - • ••_• •-• • • •_• •^••- 377 
 
xxsiv contents 
 
 [references are to sections] 
 If exception taken sale cannot be made absolute until 
 
 exceptions are decided, 377 
 
 Sale may be vacated on exceptions 378 
 
 When petition for resale, filed after confirmation, may 
 
 ibe granted 378 
 
 Petition for resale must be filed as soon as opportunity 
 
 offers 378 
 
 Granting resale is discretionary 378 
 
 Complainant may bid at sale 379 
 
 Purchaser at defective sale acquires all rights of com- 
 plainant in the mortgage 379 
 
 Writ of assistance when may issue to purchaser 380 
 
 Petition for writ of assistance what to set forth 380 
 
 Writ of assistance how directed, issued and served . . . 380 
 
 How surplus if any disposed of 381 
 
 Claim for surplus to be filed with register when 381 
 
 ( Proceedings relative to claim for surplus 381 
 
 Deficiency to be reported 382 
 
 When personal decree for deficiency may be made .... 383 
 When mortgage debt is secured or guaranteed by third 
 party, not obligatory on complainant to make guaran- 
 tor party 384 
 
 Obligation must be such that action at law would lie . . . 384 
 Execution not decreed against guarantor of collection, 
 
 when 384 
 
 Authority to make decree for deficiency wholly statutory 384 
 Purchaser who assumes debt secured by mortgage liable 385 
 Proceedings to obtain execution for deficiency are sup- 
 plemental 386 
 
 Special application to be made and notice given 386 
 
 No decree for deficiency c^-n be made against defend- 
 ant not personally served 386 
 
 Non-resident personally served with subpoena may be 
 
 made liable by substituted service of notice 886 
 
 Defeadant may answer petition stating grounds of 
 objections , , . . . 387 
 
contents xxxv 
 
 [refprences are to sections] 
 Petition for execution may be denied when inequitable 
 
 its allowance .being discretionary 387 
 
 Not allowed after ten years 387 
 
 Subsequent instalments when suit retained to enforce. . 388 
 Proceedings on subsequent default essentially new suit 38.9 
 
 Reference in case instalments not all due 390 
 
 Petition and proceedings in case of default subsequent 
 
 to decree 390 
 
 Petition in case of subsequent default 391 
 
 When whole premises may be sold in first instance 
 
 although the whole be not due 392 
 
 How proceeds applied in such case 392 
 
 Vendor's lien. 
 
 What it is, has priority over bankruptcy or insolvency 393 
 Bill to establish and foreclose what to state and who to 
 
 be made parties 394 
 
 Land contracts. 
 
 Foreclosure for non-payment 395 
 
 Not strict foreclosure but sale of land as in mortgage 
 
 cases 395 
 
 Bill, what to state and who to be made parties 396 
 
 Sale may be made before the expiration of six months 
 
 and no redemption after confirmation of sale 396 
 
 Mechanic's Hen. 
 
 When lien given by statute to contractors, sub-contraC' 
 
 tors, laborers and material men 397 
 
 Notice must be given owner 397 
 
 Claim must be filed, when 397 
 
 Principal contractor to furnish sworn statement to 
 
 owner 397 
 
 What lien extends to ^ 397 
 
 Lien of material man exists for what 397 
 
 Owner may recoup damages 397 
 
 Lien arises only on contract with owner, part owner or 
 
 lessee 397 
 
 Fraud in furnishing defective materials defeats lien. . . 398 
 Contracts must be performed substantially 398 
 
XXXVl CONTBN'TS 
 
 [bEFEEENCES ABE TO SECTIONS] 
 
 Payments to principal contractor after notice or before 
 
 sworn statement not to affect lien 399 
 
 When contractee has no title to the land lien may attach 
 
 to building 400 
 
 Bests on strict legal rights not on equities 400 
 
 No lien on land held by entireties, or a homestead, 
 
 unless contract is signed by both husband and wife. , 401 
 Owner may retain enough to pay claims of subcon- 
 tractors, etc 402 
 
 Contractor must make sworn statement when he desires 
 to draw money and may be called upon for statement 
 
 at any time , . . . , 402 
 
 Failure to make statements subjects contractor to pen- 
 alty 402 
 
 Claimant of must file statement with register of deeds 
 within 60 days and must also serve copy on owner. . . . 40S 
 
 The statement tnust be true and on oath 404 
 
 Must be served as provided by statute or the lien will 
 
 be void ; . 405 
 
 Service of statement on agent outside of county void . . 405 
 
 Principal contractor need not serve notice of lien 405 
 
 Claimant must furnish particulars of claim on demand 406 
 Lien continues for one year after filing claim and pro- 
 ceedings to enforce must be made within the year. . . 407 
 
 Proceedings to enforce are by biU on oath 408 
 
 Notice lis pendens continues lien pending suit 408 
 
 Who to be parties 408 
 
 Other lienors may file cross bills 408 
 
 All sworn bills evidence unless denied by answer on oath 408 
 Amendments may be made at any time before final order 408 
 Bill must set forth every essential fact showing exist- 
 ence of lien 409 
 
 By subcontractor, what bill must show 410 
 
 By laborer, what bill must show 410 
 
 By material men, what bill must show 410 
 
 Names of all persons interested must be stated in bill . . 410 
 Prayer of bill what to be 410 
 
CONTENTS XXXVll 
 
 [references are to sections] 
 
 Original contractor necessary party to bill by subcon- 
 tractor 410 
 
 Bill must show defendant has some interest in the land 410 
 Receiver of debtor necessary party, but leave of court 
 
 necessary to make him party 410 
 
 Objection for want of parties, when may be made . . . 410 
 When amount due has been submitted to arbitrators, 
 
 award is necessary before filing bill 410 
 
 Bill must be on oath, verification may be added by 
 
 amendment 410 
 
 Bill may be amended by adding parties after expiration 
 
 of year 410 
 
 Answer affirmative relief by recoupment should be 
 
 claimed by 411 
 
 Should show every matter of defence 411 
 
 Should be on oath to destroy effect of bill as evi- 
 dence 411 
 
 By defendant having lien may claim benefit of 
 
 cross bill 411 
 
 May be amended, when 411 
 
 Material questions of fact may be submitted to jury. . 412 
 
 Burden of proof is on complainant 413 
 
 Proof of oral contract must be clear and preponderating 413 
 
 Court to examine all claims of lien 413 
 
 "When contract not completed by fault of owner, decree 
 
 may be pro tanto 413 
 
 Decree may order sale of building or machinery sepa- 
 rately or may order property into hands of receiver 
 
 to be leased, etc , 414 
 
 Court may make such order as justice requires 414 
 
 Decree what it should state 415 
 
 When contractor has made default and owner completes, 
 
 how percentage ascertained 416 
 
 Sales to be as in mortgage foreclosure 416 
 
 When lien creditors to share fund equally pro rata . , . 416 
 Costs in discretion of court and may include reasonable 
 attorney fees 417 
 
XXXVIU CONTENTS 
 
 [eEPBBENCES ABE TO SECTIONS] 
 
 Complainant may have execution without awaiting sale 417 
 In ease of death of lien claimant, his representative may 
 
 prosecute 418 
 
 All liens are assignable ; assignees may prosecute .... 418 
 
 When lien not waived by taking other security 418 
 
 Parties whose claims are not due may give notice of 
 intent to claim but no proceedings to be taken until 
 
 maturity 418 
 
 Statute declared remedial but must be strictly followed 419 
 Subcontractor not bound by a stipulation in original 
 contract not agreed to by himself except as to amount 
 
 of contract price 419 
 
 Adverse lienors may insist on proof waived by owner. . 419 
 Tax lien. 
 
 Taxes are lien on land on December 1st, after assess- 
 ment 420 
 
 Lien is to be foreclosed in chancery 420 
 
 Proceedings — petition by auditor general what to con- 
 tain 420 
 
 To be filed vrith county clerk 420 
 
 Tax record, what it is and how made up 420 
 
 When petition and list filed, county treasurer to notify 
 
 owners ^ 421 
 
 County clerk to present petition to circuit judge 422 
 
 Circuit judge to make order for hearing 422 
 
 Auditor general to designate newspaper to publish order 
 
 and petition 422 
 
 Order and petition to be published weekly for four weeks 423 
 Publication equivalent to personal service on OTmers . . 423 
 Court to have jurisdiction when amount involved is less 
 
 than $100 423 
 
 Prosecuting attorney to prosecute petition 423 
 
 Proof of publication to be made before any final order 423 
 Objections to be filed with county clerk on or before 
 
 day of hearing 423 
 
 Copy of objection to be served on prosecuting attorney 
 t^ days before hearing 423 
 
CONTENTS XXxix 
 
 [refeeenoes aee to sections] 
 When further time may be allowed to file objections ... 423 
 
 Hearing of petition to have precedence 423 
 
 Evidence to be taken in open court 423 
 
 Court's decision on admissibility of testimony final ... 423 
 Court may separate taxes on lands assessed together. . . 423 
 When tax or part of tax may be vacated and proceedings 
 
 thereon 423 
 
 Entry of orders to be made on tax record 423 
 
 Effect of entry same as decree 423 
 
 Final decree, when to be made 423 
 
 Costs may be allowed against inequitable contestant . . . 423 
 
 Final decree to be entered in chancery record 424 
 
 Form of and how signed 424 
 
 Copy of, to be annexed to tax record 424 
 
 Tax record to be then delivered to county treasurer . . . 424 
 
 Hearing cm petition may be adjourned 424 
 
 Court may make decree as to all taxes not objected to or 
 determined, reserving those where objections are 
 
 pending 424 
 
 Decree in favor of disputed tax may be appealed from 424 
 Appellant must pay tax to county treasurer in mean- 
 time who will return it if appellant is successful on 
 
 appeal 424 
 
 County treasurer or auditor general may appeal from 
 
 order vacating tax 424 
 
 Proceedings otherwise to follow ordinary chancery cases 424 
 
 Appeal, how taken — bond to be filed 424 
 
 Case containing evidence to be settled 424 
 
 Appeal not to affect sale of other lands 424 
 
 Lands not offered for sale are to be treated as bid off 
 
 to state 424 
 
 Lands of infants or incompetents may be withheld from 
 
 sale 424 
 
 Sale of such lands may be cancelled 424 
 
 County treasurer to make sales first Tuesday of May con- 
 tinuing from day to day , . 425 
 
 How sale made , • 425 
 
Xl CONTENTS 
 
 [eEPEBENCES ABE TO SECTIONS] 
 
 Lands to be bid off to state when 425 
 
 Taw records how filled up 425 
 
 Report of sale to be filed with county clerk 425 
 
 Confirmation of sales 425 
 
 When sale not to be set aside 425 
 
 Report of sale to be made to auditor general 425 
 
 After redemption expired auditor general shall make 
 
 deeds 425 
 
 If land not sold it may be advertised 425 
 
 Purchaser must pay back taxes on state tax land 425 
 
 Certificates of sale to be given by county treasurer . . 426 
 On presentation of certificate after redemption expired 
 
 auditor general to make deed 426 
 
 Deed to convey absolute title subject to all subsequent 
 
 taxes 426 
 
 Writ of assistance may be issued 426 
 
 Affidavit in case of loss of certificate of sale 426 
 
 No sale to be vacated after purchaser has been in pos- 
 session five years 426 
 
 When sale s^t aside, court to determine value pf improve- 
 ments of pur-chaser 426 
 
 Amount to be collected by execution from claimant . . . 426 
 Purchase money refunded with interest and tax charged 
 
 back to county 426 
 
 How lands sold may be redeemed 426 
 
 Payment of redemption money and interest at one per 
 
 cent per month 426 
 
 Proceedings on redemption 426 
 
 Certificate of judgment of annulment of deed or certifi- 
 cate of sale may be recorded 427 
 
 Proceedings if purchaser dies, deed vests title in heirs 
 
 unless executor assigns certificate to some other person &l 
 Purchaser dispossessed shall have lien for improvements 427 
 Holder of certificate of purchase may restrain waste. . . 448 
 Township treasurer may maintain bill to restrain waste 448 
 Writ of assistance, when and how obtained 449 
 
CONTENTS xli 
 
 [refeeences are to sections] 
 When not until six months after proof of notice given 
 
 to owner 449 
 
 How notice served 449 
 
 Redemption after notice, who entitled to make and how 
 
 made; purchase money, lOO^o and $5 added 450 
 
 On such redemption tax title becomes void 450 
 
 Register in chancery shall notify owner of tax title . . . 450 
 Shall pay over all money received for redemption 450 
 No purchaser shall enter into possession until six months 
 
 after giving notice 450 
 
 Certified copy of notice and proof of service may be 
 
 recorded , 450 
 
 Statutory provisions must be strictly followed 451 
 
 Objections to validity of tax must be raised at hearing 
 
 and not afterwards 451 
 
 Publication of petition and order is equivalent to per- 
 sonal notice 452 
 
 Duty of every owner of land to watch the proceedings 452 
 Publication must be in newspaper published in English 452 
 Decree cannot be made at same term of court in which 
 
 petition is filed 452 
 
 Publication may be in supplement to newspaper 452 
 
 What publication sufficient 452 
 
 If affidavit of publication defective new one may be filed 452 
 Adjournment of court sine die without order of continu- 
 ance loses jurisdiction ■ . • 452 
 
 When after decree court adjourned sine die so that 
 parties did not have five days, decree is void as to all 
 
 who did not appear ■ .• . 453. 
 
 Decree ineffectual where no amount of tax extended in 
 
 tax record , • 454 
 
 Decree ineffectual where no dollar mark affixed to 
 
 figures 454 
 
 New order may be made if it can be done in time 454 
 
 When decree not invalid , 454 
 
 Decree need not be enrolled 454 
 
 Forecloses all questions as to validity df tax 455 
 
xlii CONTENTS 
 
 [references are to sections] 
 
 Avoided for apparent jurisdictional defects 456 
 
 Neither county treasurer nor his deputy can be pur- 
 chaser 457 
 
 Who cannot set up purchase against owner 457 
 
 County treasurer must make and file report of sale . . . 458 
 Sale confirmed without order if no objections filed in 
 
 eight days 458 
 
 Objections are brought on to be heard according to 
 
 general practice 458 
 
 Grounds of attack on sale after confirmation ...... 458 
 
 When auditor general to execute deed 458 
 
 Deed made before redemption expires is void 458 
 
 Owner has six months after year succeeding sale to 
 redeem by paying double purchase price and $5 for 
 
 each description , , 458 
 
 Notice to redeem when void ; 458 
 
 Sheriff 's return of service of notice may be contradicted ; 
 
 the fact of service, not return, controls 459 
 
 Search for record owner must be made in good faith . . . 459 
 Notice, what must show and on whom to be served. . . . 459 
 
 Registered letter receipted for its good service 459 
 
 Redemption favored; technical objections thereto not 
 
 sustained 460. 
 
 When purchaser entitled to possession 461 
 
 If occupied must demand possession 461 
 
 May have writ of assistance ; what petition should show 462 
 Petition to vacate a sale, how, by whom and when may 
 be filed for nonperformance of statutory require- 
 ments 463 
 
 Cancellation of sale of land of incompetent persons may 
 
 be made, when 464 
 
 Statute declaring the effect of deed to be conclusive 
 
 evidence of absolute title is unconstitutional 464 
 
 Holder of tax deed must prove validity, not prima facie 
 
 evidence of itself 4^5 
 
 Where description does not describe any land no title 
 
 passes 465 
 
 Tax title not void, when 466 
 
CONTENTS xliii 
 
 [references are to sections] 
 Tax payer may pay part of tax and contest remainder . . 466 
 Lands held by state bid not to be included in petition . . 466 
 
 Appeal must be perfected within twenty days 467 
 
 Ordinary chancery practice followed where not other- 
 wise provided 467 
 
 Subrogation. 
 
 What it is and to whom doctrine applies 468 
 
 Is doctrine of equity exclusively and is never applied 
 
 where it would work injustice 468 
 
 When surety subrogated to rights of creditor. .. .469, 470 
 
 Surety who has not paid liability not entitled to 470 
 
 Junior mortgagee paying senior mortgage is subrogated 
 
 to it 471 
 
 Judgment creditor having levied and having paid off 
 
 chattel mortgage is entitled to 471 
 
 One who had advanced money on worthless security to 
 
 pay valid mortgage is entitled to 471 
 
 Purchaser of reversion is entitled to, on redemption . . . 471 
 Stranger to the title who voluntarily pays mortgage 
 
 not subrogated 472 
 
 One entitled to redeem and who does redeem from fore- 
 closure is 472 
 
 Devisee of lands mortgaged to secure debt of another is 473 
 Corporation to pay debt to secure which fraudulently 
 
 issued stock has been assigned is subrogated 473 
 
 Bmiding firm to rights of corporation to unpaid stock . . 473 
 Equitable owner of mortgaged land on payment of 
 
 mortgage ^^^ 
 
 What the bill should state 474 
 
 Establishment of liens. 
 
 Not done where there is no agreement for a lien 475 
 
 Where money lent to purchase land on agreement that 
 
 mortgage should be given 475 
 
 Subscribers to stock in hotel on agreement to have 
 
 ownership interest 475 
 
 Money furnished to buy land on agreement that title 
 ^ould be in joint names 476 
 
Xliv CONTENTS 
 
 [eepeeences are to sections] 
 Bills to redeem. 
 
 Owner has right to redeem property from liens which 
 
 can only be cut off by foreclosure 477 
 
 Equity favors redemption 477 
 
 Who may redeem, no one who has no interest in the 
 
 land 478 
 
 Holder by tnist deed who repudiates trust cannot 478 
 "When redemption cannot be made by second mort- 
 gagee 478 
 
 Mortgagor and those claiming under him may .... 478 
 
 Wife may redeem homestead 478 
 
 Junior mortgagee may '. 478 
 
 Assignee in bankruptcy of junior mortgagee 478 
 
 Mortgagee of indemnity mortgage may, when .... 478 
 
 After death of debtor administrator may 478 
 
 Junior mortgagee, when may redeem from senior 
 
 after foreclosure 478 
 
 Bill to redeem. 
 
 Proper remedy to vacate irregular statutory foreclosure 479 
 When remainder man subject to tenant for life may 
 
 redeem 480 
 
 When mortgagor of mortgage in trust for creditors may 
 
 file 480 
 
 Judgment creditor cannot redeem mortgage on home- 
 stead of debtor 481 
 
 When junior mortgagee may redeem 482 
 
 Long delay will bar right to , 482 
 
 When defendant obtained title from purchaser at fore- 
 closure sale in order to allow mortgagor to redeem, 
 
 redemption was allowed 482 
 
 Eedemption. 
 
 Of chattel mortgages, when allowed 483 
 
 From tax sales, when allowed 484 
 
 Mailing draft in district city one day before redemption 
 
 expires not sufficient < 485 
 
 Where lands sold as state tax lands and as delinquent for 
 taxes at same sale, redemption allowed when made in 
 time for delinquent taxes 485 
 
CONTENTS xlV 
 
 [references are to sections] 
 Solicitor for mortgagee bid off land at tax sale, bid held 
 
 to be for client and to redeem tax 486 
 
 "Where title of redemptioner obtained by fraud effect is 
 
 to enure to owner 486 
 
 Bill for must show what interest of complainant in land 
 
 is 487 
 
 By several joint complainants must show joint 
 
 interest .' . . . 488 
 
 To redeem from statutory foreclosure charging 
 
 usury, etc 488 
 
 A distinct offer to pay money due should be shown but 
 
 this is not indispensable 488 
 
 Bill to redeem from deed intended as mortgage after 
 
 twenty wears must show facts establishing instrument 
 
 still in force as mortgage 488 
 
 What biU for, must show 488 
 
 Best practice is to bring money admitted due into court, 
 
 but this is not essential when amount in dispute 488 
 
 Parties to bill, who are necessary 491 
 
 At hearing of bill for ; defendants not to prove increase 
 
 of rate of interest, when 491 
 
 Decree, what is proper 492 
 
 That amounts due be determined and paid or sale made 
 
 as in foreclosure, when 492 
 
 Where bill dismissed on merits the foreclosure is ren- 
 dered absolute 492 
 
 Where a payment is disputed complainant has burden 
 
 of- proof 492 
 
 May be allowed on regular statutory foreclosure 492 
 
 Costs usually chargeable to complainant 493 
 
 But where defendant is in fault otherwise 493 
 
 Co-tenant purchasing mortgage redeems pro tanto 493 
 
 Mortgage of a mortgage may be redeemed 493 
 
 Waste. 
 
 What it is 494 
 
 Active waste, what is 495 
 
 Permissive waste, what is 495 
 
Xlvi CONTENTS 
 
 [refbeences are to sections] 
 Active waste restrained by coiLrts of equity by injunc- 
 tion 496 
 
 Enjoined when tenant ailects inheritance unreasonably 497 
 When township treasurer may obtain injunction from 
 
 cutting timber 498 
 
 When the bill will lie notwithstanding the action at law 
 
 given by statute , . . 499 
 
 Cutting timber to clear land was not waste when country 
 
 was new 500 
 
 Removing manure from farm is 500 
 
 Quarrying by tenant holding over is 500 
 
 Diligence and promptitude required in seeking remedy 501 
 
 Mere value of timber not always important 501 
 
 Accounting for injury as ancillary to action 501 
 
 What the bill should state 502 
 
 Judgment creditors. 
 
 When may apply to equity 503 
 
 Bill in aid of execution 504 
 
 Complainant must have a valid judgment for $100 
 
 or more , 504 
 
 Execution must be issued and in hands of sheriff 504 
 
 BiU seeks to set aside a fraudulent transfer of property 504 
 
 What are fraudulent conveyances under statute 505 
 
 Intent of parties and effect of conveyance form 
 
 criterion 506 
 
 Conveyance for value not set aside unless grantor and 
 
 grantee participate in fraud; bona fide purchaser 
 
 protected 506 
 
 Voluntary conveyance without consideration will be. . . 506 
 
 Burden of proof on grantee 506 
 
 Conveyance of homestead not fraudulent 507 
 
 Conveyance in payment of honest debt not fraudulent 507 
 
 Debtor may prefer wife to other creditors 507 
 
 When value largely in excess of debt, conveyance 
 
 deemed fraudulent 507 
 
 Deed to wife made when solvent, not put on record until 
 
 insolvency may be vacated 508 
 
CONTENTS xlvii 
 
 [references are to sections] 
 Lands purchased and title taken to husband and wife by 
 
 entireties, when fraudulent 508 
 
 No one but judgment creditors can attack 509 
 
 Conveyance is valid between parties 510 
 
 No one but attacking creditor can have benefit of bill . . 510 
 Judgment creditors for judgments not on contract may 
 
 file bill, when 511 
 
 When such judgment becomes debt 511 
 
 Equitable interests may be subjected to 511 
 
 Bill must be filed before sale on execution 512 
 
 Laches and delay causes loss of right to file 513 
 
 After death of creditor when executor or administra- 
 tor may file bill 514 
 
 Lien not lost by death of debtor and proof before com- 
 missioners on claims after bill filed 514 
 
 Bill not sustained if debtor has other sufSeient property 5l5 
 Nor when matter can be adjusted at law as to personalty 515 
 
 Wliat bill must show 516 
 
 AH details of fraud need not be stated 516 
 
 Need not state the return of the execution unsatisfied. . 516 
 If suit begun by attachment levied on some land, bill 
 
 need not state insolvency 516 
 
 Bill need not attack all fraudulent conveyances, if more 
 
 than one . , 516 
 
 Bill must be filed in county where land lies, and within 
 
 one year after levy 517 
 
 Every person interested in land must be party 518' 
 
 Prayer, what should contain 518 
 
 Answer on oath not conclusive if replied to 519 
 
 Should be specific and full 519 
 
 Must state all matters defendants rely on 519 
 
 Burden of proof on complainant to show existence of 
 fraud and to show he was creditor at time of fraud, 
 
 but on grantee to show good faith of purchase 520 
 
 Bill in aid of execution need not be on oath unless in- 
 junction sought 520 
 
 Levy must have been made during life of execution .... 520 
 
Xlviii CONTEITTS 
 
 [references ABE TO SECTIONS] 
 
 Judgment creditor's bill. 
 
 To reach equitable assets is statutory provision; when 
 
 may be filed , . 521 
 
 Execution must have been returned unsatisfied 521 
 
 What equitable assets may be made liable 521 
 
 Is bill of discovery to disclose equitable assets 521 
 
 What bill must show 522 
 
 Must negative collusion 522 
 
 Bill must be verified 522 
 
 Answer must be on oath when required and must be full 
 
 and explicit and make full disclosure 522 
 
 Assets reached include all interests defendant has .... 523 
 Property purchased with his money and title taken to 
 
 another 523 
 
 Choses in action, etc 523 
 
 Fraudulent judgments on fictitious debts may be va- 
 cated by 523 
 
 Bill to set forth all averments necessary by statute and 
 
 rules 524 
 
 That his remedy at law is exhausted 524 
 
 Judgment must be of court of competent jurisdiction 525 
 
 Judgment of federal court in Michigan sufficient 525 
 
 Rule as to judgment of sister state 525 
 
 Execution may be returnable not less than 20 nor more 
 
 than 90 days 526 
 
 Not considered as issued until in the hands of the 
 
 officer 526 
 
 Return of, what is sufficient 526 
 
 Parties, who may be made 527 
 
 Debtor to judgment creditor entitled to costs when 527 
 
 Bill should pray answer on oath 528 
 
 What relief should be prayed 528 
 
 Must be on oath 528 
 
 When must be filed 528 
 
 Defence, how made 529 
 
 Answer on oath 529 
 
 Good defence, what is 529 
 
 Negligence of sheriff is no defence 529 
 
CONTENTS Xlix 
 
 [rEPEBENOES ABE TO SECTIONS] 
 
 No defence that second execution has been issued and 
 
 levied on property fraudulently conveyed 530 
 
 Death of judgment debtor, when it ends suit 530 
 
 Injunction, ground of allowance of, ex parte 531 
 
 Receiver may be appointed, when 532 
 
 General assignment to, not contemplated 532 
 
 Affidavits may be read on application for 532 
 
 Amendments to bill made in usual manner 533 
 
 Supplemental bill may be filed when 534 
 
 Proceedings are as in ordinary suits 535 
 
 Former practice is obsolete 535 
 
 Defendant to make fuU disclosure on oath 535 
 
 May be called to witness stand and cross examined. . . . 535 
 
 Bill with double aspect may be maintained, when 536 
 
 What bill to show 536 
 
 Trusts. 
 
 What are and how created 537 
 
 Equity does not create but defines, regulates and en- 
 forces 537 
 
 Who may be beneficiaries 538 
 
 Who may create 538 
 
 Who may be trustees and beneficiaries . . . . , 538 
 
 Are expressed or implied by operation of law 539 
 
 Express trusts in land, what may be created 539 
 
 Vests title in trustee 539 
 
 Trusts in land can only be created by instrument in 
 
 writing 540 
 
 Trusts in personalty may be by parol 540 
 
 When admission in writing sufficient to establish 541 
 
 Executed parol trust cannot be questioned as to validity 541 
 
 By implication of law, how arises 542 
 
 When purpose of ceases, the trust ceases 543 
 
 Does not descend to heirs or representatives on death of 
 
 trustee but chancery will appoint new trustee 543 
 
 How and when trustee may resign by leave of court . . . 543 
 Statute of 1899 does not change jurisdiction of chancery 
 
 over testamentary trusts 544 
 
 When chancery will remove trustee and appoint another 545 
 
1 contents 
 
 [references are to sections] 
 Court will not interfere with discretion unless abused . . 545 
 All trustees must usually join in execution of the trust 546 
 "When trustee fails or refuses to act court will act to 
 
 preserve 546 
 
 Courts liberal in protecting honest trustees but hold 
 
 dishonest trustees to strict liability 547 
 
 Trustee not to make advantage to himself from the trust 547 
 
 Trustee cannot withdraw after acceptance 547 
 
 Creator of has no power to change 547 
 
 Trustee must account to beneficiaries 548 
 
 English statute of charitable uses not in force in Michi- 
 gan 549 
 
 Charitable trusts must be clearly defined 549 
 
 Beneficiary may pursue misappropriated trust fund. . . 550 
 Bill against trustee for accounting need not set out the 
 
 misdoing 551 
 
 Parties to bill — Attorney general proper party when 
 
 public interested 552 
 
 Beneficiaries not necessary, to bill by trustee to re- 
 cover trust fund 552 
 
 Who are necessary, to bill for accounting by trustee 552 
 
 Court of equity will interpret trust 552 
 
 Laches by beneficiary when will bar suit against 
 
 trustee for misappropriation 553 
 
 Statute of limitations does not apply until trust dis- 
 avowed 553 
 
 Contribution. 
 
 When enforced in equity 554 
 
 Between joint tenants and tenants in common 555 
 
 Between partners 556 
 
 Between stockholders pro rata 557 
 
 Not between eodefendants in judgment for tort 558 
 
 Between legatees and devisees for claims and expenses 559 
 Parties — Principal debtor and insolvent co-sureties 
 need not be, but biU should ssdow insolvency 560 
 
CONTENTS li 
 
 [refeeences aee to sections] 
 Interpleader. 
 
 Object is to compel rival claimants to litigate between 
 themselves and relieve complainant from threatened 
 
 litigation 561 
 
 Does not lie where complainant has by agreement in- 
 curred express liability to one defendant 561 
 
 Claims of defendants must negative each other 561 
 
 Pur? interpleader is where complainant has no interest 
 
 in fund ~ 552 
 
 The conflicting claims of defendants may be legal or 
 
 equitable 562 
 
 Lies only where complainant without collusion cannot 
 safely decide to whom to pay and must be absolutely 
 
 neutral 563 
 
 Bill in nature of when it lies 564 
 
 Strict biU of, where it Lies 565 
 
 General rule is that fund must be offered to be brought 
 
 into court 565 
 
 Injunction will be dissolved if fund not paid into court 565 
 Bill to state all circumstances accurately and must show 
 
 each defendant has color of right to fund 566 
 
 Whien injunction against suits at law by defendants 
 
 proper 567 
 
 Money should be paid into court on granting injunction 567 
 Bill must be filed without collusion and want of collusion 
 
 must be shown on oath 568 
 
 Prayer of bill is that defendants may interplead and 
 
 complainant be indemnified as to his costs 569 
 
 Defendants assert their respective claims by their an- 
 swers and should do so fully and completely 570 
 
 Cross bill between defendants not necessary 570 
 
 Copy of each answer should be served on each defendant 570 
 Defendants may demur and if demurrer of one defend- 
 ant be sustained, biU will be dismissed, although 
 
 others have answered 570 
 
 First question is — is the bill well filed? If so, court 
 decrees to that effect and that the complainant be 
 exonerated on payment of money into court and al- 
 
lii CONTENTS 
 
 [eepeeences are to sections] 
 lowed costs from fund, reasonable solicitor's fee al- 
 lowed 571 
 
 Where answers show respective claims clearly, no fur- 
 ther interpleader needed 572 
 
 If necessary court may order new pleadings to form issue 
 
 between defendants 572 
 
 The entire controversy is then between defendants. . . . 572 
 Defendant by allowing bill to be taken pro con admits 
 
 he has no claim 573 
 
 Cause proceeds and proof taken between contesting 
 
 defendants 574 
 
 Decree is made according to rights of each and costs 
 
 as ordered by court 574 
 
 Complainant must bring all defendants within juris- 
 diction otherwise other defendant on indemnifying 
 
 complainant takes fund 574 
 
 When complainant ordered to pay costs 574 
 
 Dismissal of bill leavies all parties as they were before 575 
 Judgments at law. 
 
 Jurisdiction of the court over 576 
 
 Judgments obtained by fraud will be enjoined as well 
 allowance of commissioners on claims obtained by 
 fraud and unauthorized attachments may be vacated 577 
 When suit will be enjoined against sureties on replevin 
 
 bond 578 
 
 When judgment on note enjoined against sureties 579 
 
 When chancery will not interfere 580 
 
 When cause of action settled but judgment not dis- 
 charged equity will compel a discharge 581 
 
 Motion for new trial does not destroy eq-flfttable remedy 581 
 After judgment amounts must be deposited or bond 
 
 given to sustain injunction 582 
 
 When charge of fraud in bill is sufficient 582 
 
 Prayer of bill to enjoin 583 
 
 Lost deeds, etc. 
 
 When lost or destroyed writings may be restored 584 
 
CONTENTS liii 
 
 [eEFEEENCES ABE TO SECTIONS] 
 
 When deed restored on condition of giving mortgage . . 585 
 Restoration refused when deed destroyed by grantor 
 
 before delivery 585 
 
 Mortgage discharged by mistake may be restored 586 
 
 Fraudulently obtained and destroyed may be re- 
 stored 586 
 
 Life insurance policy fraudulently obtained and de- 
 stroyed may be restored 586 
 
 All persons interested should be made parties to biU . . . 586 
 Reformation and correction of mistakes. 
 
 When to be decreed 587 
 
 Either party may maintain bill &88 
 
 Mistakes in mortgages may be corrected 588 
 
 Description of land platted 588 
 
 When instruments reformed to conform to actual agree- 
 ment 589 
 
 Mistake of law no groiond for 5.90 
 
 Mistake of law when connected with fraudulent repre^ 
 
 sentations is ground for 590 
 
 Voluntary conveyance not corrected without coasent. . 590 
 One who has no rights under deed cannot complain. . . . 591 
 
 Mistake must have been mutual 591 
 
 Mistake must be admitted o.r conclusively proved 592 
 
 Judgment for damages no bar 593 
 
 No defence that title to land conveyed in exchange failed 593 
 Quit claim to third person intending to prevent correc- 
 tion is no bar 593 
 
 When equity will reform contract when there was no 
 
 actual mistake at the time ., 594 
 
 Quieting title to land. 
 
 Inherent power exists in equity independent of statute 
 
 to vacate, fraudulent deeds 595 
 
 What bill must show 596 
 
 Equity will establish and restore lost deed and quiet title 59T 
 
 What bill to cancel deed for fraud must show 598 
 
 S'tatutory provision that complainant need not be ia 
 
liv CONTENTS 
 
 [references are to sections] 
 possession allows suit against all claimants not in 
 
 possession 599 
 
 Statute extends powers, does not limit tliem 600 
 
 Bill must show title of complainant (equitable title 
 
 sufficient) and defendant is not in possession 601 
 
 In case of forcible dispossession of defendant by com- 
 plainant for the purpose of filing a bill, the bill was 
 dismissed, also when possession was obtained by 
 
 wrongful conduct 601 
 
 Bill will lie to quiet title to land in complainant's pos^ 
 
 session up to disputed boundary line 602 
 
 Bill will lie to remove levy on homestead 602 
 
 Bill to vacate tax deed : complainant has burden to show 
 
 invalidity 603 
 
 Auditor general proper party to 603 
 
 "When holder of tax deed cannot maintain bill 603 
 
 When redemption may be decreed against complainant 
 
 holding tax deed 604 
 
 Heir may maintain against void trust 605 
 
 Bill to vacate tax deeds fraudulently obtained by 
 
 tenant , 605 
 
 Bill will not lie to remove irregular levy of execution . . 606 
 Bill to — may include parcels contracted to be sold by 
 
 complainant 607 
 
 Cloud on title, what is 608 
 
 Bill to qui^t title cannot take place of ejectment 609 
 
 Make collateral attack on tax decree 609 
 
 Be sustained where defendant has equitable interest 609 
 Defendant may assert title by cross bill or answer ...... 610 
 
 Decree as to improvements where defendant prevails 
 
 on cross biU 610 
 
 Bill to quiet title need not state grounds on which de- 
 fendant claims 611 
 
 Bill to quiet title — amendment giving new reason, when 
 
 may be allowed , 611 
 
 All persons claiming interest should be made parties 
 to 612 
 
CONTENTS Iv 
 
 [references are to sections] 
 All heirs of deceased grantor necessary to bill to 
 
 establish deed 612 
 
 Unknown claimants may be made parties to 613 
 
 Statutory provisions as to proceedings against unknown 
 
 defendants 613 
 
 When party may be allowed to be defendant on his 
 
 own motion 613 
 
 Proceedings at hearing and decree 613 
 
 Statute repeals in effect former statute as to unknown 
 
 heirs 613 
 
 Specific performance. 
 
 Equity will enforce of lawful contracts 614 
 
 Contract must be lawful, for a lawful consideration and 
 
 not void by statute of frauds 614 
 
 Contract must be certain, free from fraud or deceit, 
 mutual and such as court can compel performance 
 
 of 615 
 
 Not awarded when defendant cannot perform 616 
 
 Grantee with knowledge of contract is bound by it and 
 
 must perform 616 
 
 "When defendant can only perform in part 616 
 
 When not decreed 617 
 
 When decreed on verbal contract to convey lands 618 
 
 In what cases may be decreed 619 
 
 Party seeking remedy must be without default 620 
 
 Time, when not essence of land contract 621 
 
 When remedy not barred by lapse of 621 
 
 Vendor must show he can give good title 621 
 
 Denied when complainant has not performed and court 
 
 cannot make him perform 622 
 
 Not an absolute right but discretionary with the court. . 623 
 
 When denied without prejudice to suit at law 623 
 
 Is denied when inequitable 623 
 
 When complainant guilty of unreasonable delay . . . 623 
 
 If contract not clearly proved 623 
 
 What the bill should state 624 
 
 Parties to bill 624 
 
Ivi CONTENTS 
 
 [rEPEEENCES ABE TO SECTIONS] 
 
 Vendor in land contract may have against vendee .... 625 
 
 Vendee may Have against grantee of vendor with notice 625 
 Bill with double aspect in alternative for performance 
 
 or cancellation 626 
 
 Proceedings are as in ordinary suits 626 
 
 Laches of complainant a bar but delay may be excused 627 
 
 No relief can be given except on contract alleged in bill 628 
 
 Inadequacy of price is no defence 628 
 
 That the written contract does not embody whole agree- 
 ment when no defence 628 
 
 Contract to convey homestead void without wife's sig- 
 nature 628 
 
 Statements of deceased contracting party are evidence 628 
 Partition. 
 
 When may be had 629 
 
 Proceedings for prescribed by statute in Michigan 
 
 which must be strictly followed 630 
 
 All joint tenants and tenants in common may have . . . 630 
 
 Who are joint tenants 630 
 
 Who are tenants in common 630 
 
 Where and by whom suit to be instituted 630 
 
 What is estate in possession 631 
 
 Constructive possession sufficietnt 631 
 
 Complainant must have legal title G31 
 
 Homestead rights do not preclude 631 
 
 Equity has exclusive jurisdiction over 632 
 
 All persons having interest should be parties to bill for 632 
 Mortgagee or lienor of entire tract not proper party to 
 
 bill for : 632 
 
 Order to be made for appearance of parties having inter- 
 est, who are unknown 633 
 
 Guardian to represent wards in partition 634 
 
 To be appointed when 634 
 
 To give bonds 634 
 
 Bill for must be on oath 635 
 
 What it must show 635 
 
 Reason for requiring all interests to be stated in bill . . 635 
 
CONTENTS Ivii 
 
 [references are to sections] 
 Not necessary to state a disagreement of parties in bill. . 635 
 
 Lis pendens should be filed 635 
 
 Defendant maj- deny joint tenacj-, or tenaey in common 
 
 and court may order issue tried by jury 636 
 
 Court may stay proceedings until complainant estab- 
 lishes title at law 636 
 
 Lease if relied on as defence should be set forth in 
 
 answer 636 
 
 When bill and subsequent proceedings may be amended 637 
 No person to be made defendant by amendment without 
 
 notice or consent , 637 
 
 Right to answer after amendment 637 
 
 Amendments to be ordered to make lienors or mort- 
 gagees of part, parties 638 
 
 On taking bill as confessed order of reference to be made 
 •to take proofs of title, or the court may take such 
 
 proofs itself 639 
 
 Case is ready for hearing when interests of all parties 
 
 are before court 639 
 
 At hearing interests of all parties should be determined 640 
 Reference on decree for partition to inquire as to 
 
 whether partition can be made without prejudice . . 641 
 If partition can be made, three freeholders to be ap- 
 pointed commissioners to make it, and the proceed- 
 ings of the commissioners, their report and compen- 
 sation ; 642 
 
 "When court may set aside report and recommit case to 
 
 same, or appoint new commissioners 643 
 
 On confirmation of report, decree to be entered 644 
 
 Tenants in common after partition are purchasers for 
 
 value 644 
 
 Decree of not to affect tenants for life of whole premises 645 
 
 Is not to bar right of dower 645 
 
 When exceptions to be filed to commissioners' report. , 645 
 
 Court to adjudicate as to costs 645 
 
 When partition cannot be made equal, court may decree 
 compensation to parties having smaller share 646 
 
Iviii CONTENTS 
 
 [eepeeences are to sections] 
 May be made when state is tenant in common in which 
 
 case subpoena to be served on attorney general 646 
 
 Burial lot not subject of partition 646 
 
 Statute adopted from New York, construction in that 
 
 state followed 647 
 
 If land cannot be partitioned without prejudice the 
 
 courts will decree that it be sold 648 
 
 Court may allow sale on credit secured by mortgage and 
 
 bond 648 
 
 Mortgage for unknown owners to run to register of court 648 
 Before makiag sale all lienors on undivided shares must 
 
 be made parties 649 
 
 If liens exist on the share of any party to the suit, his 
 
 share to be paid to the register of the court 649 
 
 Proceedings to satisfy incumbrance in such case 649 
 
 Court to have proofs and may order trial by jury .... 649 
 
 Proceedings in case of estate for life or dower 650 
 
 Notice of sale similar to that of sheriffs on execution. . 651 
 
 Sale to be at court house 651 
 
 Report of sale to be made and confirmed in usual manner 651 
 
 After confirmation deeds to be executed to purchaser. . 651 
 
 Costs to be fixed and paid from proceeds 651 
 
 Balance divided according to regpeetive interests 651 
 
 Shares of infants to general guardian 651 
 
 Unknown parties to be invested 651 
 
 Dowress to be invested and income paid to her . . . 651 
 
 Court may require indemnity security from parties . . . 652 
 Court may authorize guardian of in-fant to consent to 
 
 partition 653 
 
 Trustee holding land for benefit of others may apply for 
 
 partition 653 
 
 P:roceedings when original parties dead 654 
 
 When married woman has inchoate right to dower value 
 
 to be settled 655 
 
 "When receiver may be appointed 656 
 
 If bill dismissed complainant to pay costs 657 
 
 Any party interested may appeal to supreme court 658 
 
CONTENTS lix 
 
 [references are to sections] 
 Lands left to trustees by will in what cases may be 
 
 partitioned 659 
 
 Partnership. 
 
 When it exists and how formed , . . . . 6G0 
 
 Partners cannot sue each other at law concerning part- 
 nership matters , 661 
 
 The remedy between partners is in equity 661 
 
 How may be dissolved 662 
 
 On dissolution partners are entitled to mutual account- 
 ing in equity, but a fair settlement between them- 
 selves is not disturbed 663 
 
 One partner selling out, former partner has right to 
 
 accounting 664 
 
 Defendant denying partnership, is nevertheless entitled 
 
 to fair accounting when the partnership is established 664 
 Retiring partner is entitled to accounting from- new firm 664 
 When no accounts kept and both partners are in fault, 
 
 partners are left as they were 665 
 
 When accounting barred by delay 665 
 
 If partnership is not established, bill will be dismissed 
 
 without prejudice to a suit at law 666 
 
 Beal estate is regarded as personal assets in settling . . . 667 
 Jurisdiction of the courts depends on residence of part- 
 ner, not on location of land 667 
 
 Surviving partner to wind up business 668 
 
 Representative of deceased partners may file bill for 
 
 accounting 668 
 
 On accounting what to be credited and charged to 6ach 669 
 
 When each partner entitled to salary 669 
 
 When managing partner must account for capital of 
 
 other partner 670 
 
 When partner entitled to compensation for settling u.p 
 
 business after dissolution , 671 
 
 Surviving partner is not entitled to compensation for 
 
 settling business 672 
 
 Duties of 672 
 
Ix CONTENTS 
 
 [repeeences are to sections] 
 Becomes trustee for estate of deceased and creditors 
 
 of firm 672 
 
 Fraudulent, may be charged with capital of de- 
 ceased with compound interest 672 
 
 Acts of in good faith, bind estate of deceased 672 
 
 On death of, the rights of his representatives and 
 the rights of the representatives of the other de- 
 ceased partners to the books and assets of the 
 
 firm are equal 672 
 
 In absence of proof, shares of each partner are pre- 
 sumed to be equal 673 
 
 On filing bill for dissolution a receiver is usually prayed 
 
 and it is usually matter of course to appoint 674 
 
 Receiver when not ordered 675 
 
 Receiver to take charge of all partnership property . . . 675 
 Evidence, land in name of one partner may be shown to 
 
 be joint property 676 
 
 Books not to be overhauled beyond term of partnership 676 
 After dissolution and payment of debts, lands are held 
 
 by partners as tenants in common 676 
 
 Partition cannot be decreed on bill for accounting ex- 
 cept by consent 676 
 
 Decree for accounting may be against two or more sur- 
 viving partners jointly 676 
 
 Final decree is made after accounting is complete 676 
 
 When receiver may be appointed without dissolution 
 
 or accounting 676 
 
 Bill What to state 677 
 
 Prayer for dissolution and accounting, either or both, 
 
 and injunction and receiver if necessary 678 
 
 First inquiry is as to existence of partnership 679 
 
 Then if partnership exists, an interlocutory decree for 
 
 accounting 679 
 
 After accounting a final decree 679 
 
 Nuisance. 
 
 Ground of jurisdiction 680 
 
 Granting of Injunction discretionary 681 
 
CONTENTS Ixi 
 
 [references are to sections] 
 
 What will be enjoined as nuisance 682 
 
 Complainant need not establish right at law 683 
 
 No defence that other similar nuisances exist 684 
 
 When complainant cannot complain 685 
 
 Remedy must be proportionate to injury 685 
 
 Where the only injury is to the value of property, the 
 nuisance will not be restrained where adequate rem- 
 edy exists at law 685 
 
 Several persons injured in like manner may join as 
 
 complainants 686 
 
 Municipal corporations may institute suits against .... 686 
 Fraud. 
 
 Equity has inherent jurisdiction in cases of fraud, but 
 where remedy at law is adequate, equity will not in- 
 terfere 687 
 
 Unfair transactions with persons of mental weakness 
 
 or infirmity will be vacated 688 
 
 Sale of land will be vacated if purchaser was deceived 
 
 by vendor although no fraud was intended 689 
 
 Award of arbitrators fraudulently obtained will be 
 
 corrected 689 
 
 Fraud in breach of trust 690 
 
 Deed obtained by fraud will be vacated , 690 
 
 Covenants of warranty and seisin fraudulently inserted 
 
 in deed vacated 690 
 
 Shares of stock obtained by fraud will be cancelled .... 690 
 Probate order closing estate obtained by fraud will be 
 
 vacated 690 
 
 Transactions having effect of fraud will not be allowed 
 
 to stand 690 
 
 Equity will not aid participant in fraud who is himself 
 
 defrauded 691 
 
 Will not adjust equities between wrong doers .... 691 
 
 Party defrauded must act promptly 692 
 
 Proof, great latitude allowed of facts and circumstances 693 
 Estates of decedents. 
 
 Jurisdiction only where no adequate remedy in probate 
 court 694 
 
Ixii CONTENTS 
 
 [references are to sections] 
 
 Instances wherein equity has jurisdiction 695 
 
 Equity has jurisdiction. 
 
 To construe wills 696 
 
 To admit a foreign will to probate 697 
 
 Proceedings for that purpose by petition 697 
 
 Marriage. 
 
 Who capable and incapable of contracting 698 
 
 If either party under age, void if they separate during 
 
 non-age 699 
 
 Void if consent obtained by force or fraud if no volun- 
 tary cohabitation 699 
 
 Valid where solemnized is valid everywhere 700 
 
 Bill may be filed to annul or affirm when validity 
 
 doubtful 701 
 
 Suit for annulment of differs from divorce 702 
 
 For fraud, duress or incapability is within inherent 
 
 jurisdiction 702 
 
 Bill for annulment of, what should set forth 703 
 
 Annulment of may be decreed on cross bill to bill for 
 
 divorce 704 
 
 Bill for annulment must be verified denying collusion. . 704 
 All issues on legality of to be tried by jury but verdict 
 
 of jury not final but advisory 705 
 
 Decree is either that marriage is void or that it is legal 706 
 BiU for annulment on account of non-age may be filed 
 by parent or guardian of minor, not by party of full 
 age and should negative cohabitation after arriving 
 
 at full age 707 
 
 Court may grant temporary alimony and expenses to 
 
 woman 708 
 
 Divorce. 
 
 Marriage is dissolved by sentence to imprisonment for 
 
 life 709 
 
 When divorce from bonds of matrimony granted 709 
 
 Limited from bed and board, for what cause granted . . , 709 
 From bonds of matrimony for cruelty, desertion, or 
 f ai.lure to support , 710 
 
CONTENTS Ixiii 
 
 [rBFEEENCES ABE TO SECTIONS] 
 
 From bed and board not favored 711 
 
 Complainant must have resided in this state one year 
 
 or from time of marriage until suit brought 712 
 
 Defendant must be domiciled within state or brought 
 
 in by publication or personally served in the state . . . 712 
 "When cause of divorce arose outside of state, complain- 
 ant must have had residence of two years in this state 712 
 Actual abandonment without proof of intent is sufficient 
 
 proof of desertion 712 
 
 No proofs to be taken in until two months after filing 
 
 bill except for desertion or proofs taken de bene esse 713 
 Proofs in, when defendant is not domiciled within state 713 
 Not granted in case of collusion, verification must deny 
 
 coUusion 714 
 
 Not granted when complainant guilty of same offense . . 714 
 
 BiU may be exhibited by wife in her own name 715 
 
 Bill may be answered without oath 715 
 
 Suits conducted like other chancery eases 716 
 
 All bills for to be on oath 717 
 
 Jurisdiction in is statutory, what bill must show 718 
 
 Bill must show the grievance and misconduct complained 
 of and the statement must be certain and circumstan- 
 tial showing all facts and circumstances 719 
 
 Several grounds for may be charged in the same bill. . . 720 
 
 Incompatibility not ground for divorce 7'20 
 
 Bill should aver complainant never guilty of similar 
 
 offence , 721 
 
 Jurat of verification must negative collusion, etc 722 
 
 Proceedings are as in usual chancery cases 723 
 
 If minbr children under 14, subpoena to be served on 
 prosecuting attorney, who may examine case and 
 
 oppose divorce 724 
 
 Verification cannot be waived, but may be supplied by 
 
 amendment , 724 
 
 Bill may be amended as in other cases but prayer cannot 
 
 be changed to a prayer to annul a marriage 725 
 
 Amendments must be verified like original 725 
 
Ixiv CONTENTS 
 
 [references are to sections] 
 Not granted solely on declarations, confessions or ad- 
 missions of parties 726 
 
 Testimony of parties in, to 'be in open court 726 
 
 Not received in case of adultery 726 
 
 Should be corroborated 726 
 
 Taking bill as confessed will not authorize decree in 
 
 without proofs 726 
 
 Order of reference in case of bill taken as confessed. . . 727 
 
 Of charge admitted by answer 727 
 
 Not mandatory, proofs may be in open court . . . 727 
 When testimony taken before commissioner, final ques- 
 tion to each witness 728 
 
 Proofs not to be taken until two months after bill filed 
 
 except for desertion 729 
 
 No decree can be made by consent or of course after 
 
 default 729 
 
 Affidavit of regularity when bill taken pro confesso . . . 729 
 Testimony before circuit court commissioner to be read 
 
 to witness and signed 730 
 
 Court may prevent restraint of wife pendente lite 731 
 
 Make order as to custody and care of children pen- 
 dente lite 731 
 
 Restrain annoyance of wife by husband pendente 
 
 lite 732 
 
 Restrain dispositiqn of property by husband pen- 
 dente Hte , 732 
 
 Make order for care of children, pendente lite .... 733 
 Order husband to pay expenses of wife pendente 
 
 lite ■. 734 
 
 Decree costs against either party 734 
 
 When order for expenses and alimony may be made if 
 
 wife has property 734 
 
 Alimony, what is 735 
 
 Temporary alimony for support of wife pendente lite . . 736 
 
 Denied when wife has available means of her own .... 736 
 
 Amounl; discretionary, limited to needs of wife 736 
 
CONTENTS IXV 
 
 [references ABE TO SECTIONS] 
 
 Order for temporary alimony obtained by petition on 
 
 oath ygy 
 
 Petition should state that wife has no property and 
 
 what property husband has 737 
 
 Copy of petition and notice of hearing to be served 737 
 
 At hearing reference may be made to circuit court com- 
 missioner to inquire into proper amount, or court may 
 
 and usually does settle it 738 
 
 Guilt or innocence of defendant wife not considered on 
 motion for alimony and expenses, counter affidavits 
 are material only as to necessities of wife and amount 
 of property of parties 738 
 
 Temporary alimony enforced by contempt proceedings 
 and may be awarded at final decree even if her bill 
 be dismissed 739 
 
 Temporary alimony ends with decree 740 
 
 Supreme court may order temporary alimony during 
 pendency of appeal, but usually reserves considera- 
 tion until hearing 740 
 
 Poverty of husband complainant no excuse for non- 
 payment of alimony and expenses 741 
 
 Execution cannot issue for temporary alimony, the 
 only means of enforcement is by contempt 742 
 
 Defence may be by demurrer, plea or answer; the 
 answer need not be on oath, but may be 743 
 
 When sworn answer may be read as an affidavit on 
 motion for alimony 743 
 
 Answer claiming benefit of cross bill for divorce must 
 be sworn 743 
 
 Marriage may be denied in answer 743 
 
 Condonation as a complete defence and how shown . . . 744 
 
 In case of condonation bill may be dismissed by stipu- 
 lation 745 
 
 Recrimination that complainant is also guilty bars 
 
 divorce 746 
 
 Of cruelty not countercharge to adultery .^ 746 
 
Ixvi CONTEHTTS 
 
 [references ABE TO SECTIONS] 
 
 Provocation of conduct of defendant by complainant 
 
 bars divorce 747 
 
 Acquiesence in conduct of defendant by complainant 
 
 bars divorce 748 
 
 Collusion in application for divorce bars the divorce. . 749 
 May be decreed on auswer claiming benefit of cross bill 750 
 
 Cross bill must be germane to original bill 750 
 
 Answer claiming benefit of cross bill for divorce may 
 
 be by non-resident defendant 751 
 
 Death of either party ends a suit for divorc6 752 
 
 Court may order Issues to be tried by jury 753 
 
 Verdict not conclusive but is advisory only 753 
 
 Decree, when charges proved is that marriage be dis- 
 solved and divorce from bonds of matrimony, or 
 
 that parties be divorced from bed and board 754 
 
 Decree may prohibit marriage within specified time, hot 
 
 more than two years -. 755 
 
 May restore wife to her former name if there are 
 
 no children 755 
 
 May provide for restoration of wife's personal 
 
 property 755 
 
 Court may revise and alter from time to time as 
 benefit of children requires, but change not made 
 
 unless circumstances have changed 755 
 
 In ease of marriage dissolved for force or fraud 
 children to go to innocent parent for their educa- 
 tion and maintenance from estate of guilty party 756 
 Money for support of child decreed to the custody of 
 wife to be paid to wife not to .guardian of child. . . . 756 
 
 Court may decree permanent alimony to wife 756 
 
 Permanent alimony is for support of wife after decree. . 757 
 May be decreed in any case except adultery of vsdfe. . . 757 
 PflTver to decree permanent alimony wholly statutory . . . 757 
 Permanent alimony a lien on real and personal estate 
 of husband and foreclosure may be decreed in easfe 
 
 of default in payment , 758 
 
 Or court may award execution 758 
 
6oNTiiNTs Ixvii 
 
 [references are to section^] 
 
 Court may award sequestration 758 
 
 Decree may be revised at any time as to alimony 758 
 
 Divorce must be decreed before determining allowance 
 
 of permanent alimony 759 
 
 Permanent alimony is in discretion of court; statute is 
 
 not mandatory 759 
 
 When not allowed 759 
 
 When allowed 759 
 
 Divorce: alimony. 
 
 When should be allowed in gross 760 
 
 Real estate may be vested in lieu of, when held by 
 
 entireties 760 
 
 Alimony may be awarded if husband die after decree of 
 divorce, but heirs and legatees of husband must in 
 
 that ease be made parties to petition 761 
 
 Wife has no vested right in permanent alimony 762 
 
 Contract to pay her solicitors a proportionate share of 
 
 alimony is void 762 
 
 Allowance of permanent alimony is appealable, that of 
 
 temporary is not 762 
 
 Court may modify and revise decree for alimony 763 
 
 Failure to pay to be enforced by contempt proceedings 763 
 Order for alimony may be made in bill for divorce from 
 
 bed and board 764 
 
 Ee-marriage of wife is ground for suspension or cessa- 
 tion of alimony, and it may be suspended or termi- 
 nated or modified for other causes 765 
 
 Divorce of marriage with lunatic may be decreed on 
 
 application of lunatic after restoration 766 
 
 Not if parties have freely cohabited after restora- 
 tion 766 
 
 Not decreed for force or fraud if parties have 
 
 freely cohabited before suit commenced 766 
 
 Decree may be rescinded : causes for rescission 767 
 
 Not to be rescinded at suit of guilty party 767 
 
 Not to be rescinded at suit of children or third 
 parties 767 
 
Ixviii CONTENTS 
 
 [references are to sections] 
 Not to be rescinded after death of complainant . . . 767 
 When complainant has re-married the new spouse is 
 
 necessary party to application for rescission 767 
 
 Decree of from bed and board may be revoked on joint 
 
 application of parties 767 
 
 Defendant brought in by publication cannot after de- 
 cree appear and petition to vacate as in other cases. . 768 
 Decrees may be appealed from to the supreme court by 
 
 either party 769 
 
 Effect of decree : dower, when wife shall be endowed 770 
 
 Wife not endowed when decree is for her own 
 
 misconduct , 770 
 
 Wife may bring ejectment for her dower 770 
 
 Divorce: effect of decree: dower. 
 
 .Court to make provision in decree in lieu of dower . . . 771 
 Husband and wife holding by entireties become tenants 
 
 in common by divorce 771 
 
 Ownership of lands may be determined by decree . . . 771 
 
 Court may order partition of lands by decree 771 
 
 Previous to statute of 1909 court could not settle 
 
 property right in decree of divorce 771 
 
 If parties cohabit after divorce they are liable as for 
 
 adultery 772 
 
 For adultery of wife does not of itself affect legitimacy 
 
 of children 772 
 
 Legitimacy of children may be questioned 772 
 
 For nonage or insanity, children legitimate issue of 
 
 competent parent 772 
 
 For prior marriage and prior spouse believed to be dead, 
 facts to be stated in decree ; children legitimate issue 
 
 of competent party 772 
 
 Adultery, 
 
 Strict adherence to all forms required in presentation 
 
 of case for 774 
 
 No divorce granted for any act not charged in the bill . , 774 
 Amendment as to time and place of act charged not 
 permitted 774 
 
CONTENTS Ixix 
 
 [references are to sections] 
 Issue on charge made by bill may be tried by jury .... 774 
 
 Verdiet must specify the act, if guilty 774. 
 
 May be proved by circumstantial evidence 775 
 
 Evidence of particeps criminis should be corroborated 775 
 
 Reputation, effect of proof of 775 
 
 Evidence of to be closely scanned, guilt not lightly in- 
 ferred 776 
 
 Connivance by husband bars divorce , 776 
 
 Subsequent cohabitation after discovery of adultery 
 
 bars divorce 777 
 
 Divorce barred by statute if offence by procurement of 
 
 complainant 778 
 
 If offence condoned or forgiven 778 
 
 If suit not brought within five years after discovery 
 
 of offence 778 
 
 Physical incapacity : suit only maintainable by injured party 
 
 and must be brought within two years 779 
 
 Desertion. 
 
 Desertion must have continued for two years and niust 
 have been against will of deserted party and without 
 
 consent to the separation 780 
 
 Mere failure to object when objection would be 
 
 futile is no bar to divorce for 780 
 
 Wife compelled to leave on account of cruelty of 
 husband is not gu,ilty of desertion, but husband 
 
 is in such case 780 
 
 Cruelty not confined to physical violence but grievance must 
 
 be of most aggravated natuse ■ , ■ .■ 781 
 
 Physical violence is, in any manner causing injury by 
 
 force cruel in its nature 782 
 
 A single blow under great provocation not cruelty 782 
 
 A single act of violence may be sufficient under some 
 
 circumstances 782 
 
 "When both parties were fighting and both suffered di- 
 vorce was denied 782 
 
 "Without physical violence is hard to define — what is by 
 husband 783 
 
ixx contents 
 
 [references are to sections] 
 
 What is by wife 784 
 
 Acts must be aggravated to amount to extreme cruelty 785 
 
 Continued succession of petty annoyances is not 785 
 
 Where opprobrious language considered as 785 
 
 Divorce for denied where proof was the uncorroborated 
 
 evidence of parties .... .j^. 786 
 
 Cases of cruelty . , 787 
 
 Complainant seeking divorce for cruelty must come into 
 
 court with clean hands 788 
 
 Separate maintenance of wife by husband, when decreed . . 789 
 
 Application must be by petition 789 
 
 Proportion of husband's income or earnings mAy b6 
 
 awarded , 789 
 
 Husband may be ordered to pay temporary alimony and 
 
 expenses 789 
 
 Husband may show in answer any fact which would bar 
 
 a divorce 789 
 
 Appeal may be taken to supreme court 789 
 
 When wife need not give bond on appeal 789 
 
 When petition filed subpoena to issue and served as in 
 
 chancery cases 790 
 
 If husband out of the state, etc., publication may be had 790 
 Court may enjoin sale or disposition of husband's 
 
 property pendente lite 790 
 
 Decree for may be enforced by execution 791 
 
 Not sustained unless reasons imperative 792 
 
 A valid marriage must be alleged and proved 792 
 
 Petition must show clearly that it is under statute for 
 
 separate maintenance, and not a bill for divorce 792 
 
 Prayer for separate maintenance is not sufficient to 
 
 distinguish it from divorce 792 
 
 Proceedings similar to those in divorce 792 
 
 Bar dower of insane wife when she has been mentally in- 
 
 pompetent for two years 793 
 
 Husband may file petition for leave to sell inchoate 
 
 right of dower 793 
 
 What petition must state 793 
 
CONTENTS Ixxi 
 
 [bepeeences are to sections] 
 
 Order for hearing and publication T93 
 
 At hearing wife may appear in person, by counsel, or 
 
 guardian ad litem , . . . . 794 
 
 Answer to be filed, cause then at issue 794 
 
 Court to hear proofs summarily or refer to circuit 
 court commissioner, or special commissioner, to take 
 
 proofs and report 794 
 
 Court to make proper order and appoint guardian, other 
 
 than husband for the wife 794 
 
 Quardian may sell right of dower or join husband in 
 
 deed and apply income to support of wife 795 
 
 Proceedings statutory, purchaser shoruld see that' all 
 
 steps are taken 796 
 
 No laches can be imputed to wife or to her guardian. . 796 
 Corporations. 
 
 Power to dissolve is at law , 797 
 
 Court may enjoin exercise of franchise of on bill by 
 
 attorney general 797 
 
 Banking or insurance may be restrained from exercis- 
 ing corporate rights when insolvent on bill by attorney 
 
 general, or creditor 798 
 
 Court to adjudge forfeiture of charter of on bill by 
 
 creditors if proof sufficient , 799 
 
 Settlement by creditor not to prevent adjudication . . . 799 
 Attorney general when to appear aaid prosecute ....... 799 
 
 Receiver to be appointed . . , 799 
 
 When directors or stockholders are by law liable, they 
 
 should be parties 800 
 
 Directors or stockholders may be made parties by sup- 
 plemental bill after de<3ree 800 
 
 Creditors may file bill to charge officers of with liability 800 
 
 Receiver of may be appointed , 800 
 
 If it has no assets court may -determine respective lia- 
 bilities of directors and stockholders and decree 
 
 afliount to be paid by each •. 801 
 
 Court may compel discovery of stock and assfets of .... 802 
 Officers of to answer bill and make discovery and such 
 
Ixxii CONTEITTS 
 
 [references are to sections] 
 answer may be compelled notwithstanding that cor- 
 porate rights may be forfeited by disclosure 802 
 
 Answers of officers evidence against, but no answer com- 
 petent without order of court 803 
 
 Court may issue injunctions when necessary 804 
 
 Order all creditors to present claims or lose divi- 
 dend oil distribution 804 
 
 Provisions of the act not to extend to library, religious,. 
 
 school or burying ground . . . , 805 
 
 No exceptions can be taken to voluntary answer of officer 
 
 of corporation to judgment creditor's bill 805 
 
 Motion for further answer, when proper 805 
 
 Insolvency of is no ground for action by stockholder jto 
 
 wind up 806 
 
 Voluntary dissolution of corporation. 
 
 Proceedings wholly statutory , 807 
 
 When directors, etc., or may file petition for dissolution 808 
 
 Petition to state reasons for application 808 
 
 What to have annexed 808 
 
 Order that all persons interested show cause before 
 
 circuit court commissioner 809 
 
 Notice to be published 809 
 
 Circuit court commissioner to hear allegations and 
 proofs and make report of assets, debts, credits, en- 
 gagements, etc , 810 
 
 Decree that corporation be dissolved and a receiver ap- 
 pointed 811 
 
 Any officer of corporation may be receiyer 811 
 
 Property to vest in receiver or trustee 811 
 
 Powers of receivers to be the same as of trustees of 
 
 insolvent debtors 813 
 
 B^ceiver may carry on business for six months 812 
 
 Sale not in usual course of business subject to approvsil 
 
 by court 812 
 
 Court may stop carrying on of business and order sale 
 
 in bulk pr in parcels 812 
 
 Unpaid stock to be collected by receiver 813 
 
CONTENTS Ixxiii 
 
 [eefeeenoes aee to sections] 
 
 Receiver to give notice to all persons to present claims 814 
 
 Sales, transfers and judgments confessed after filing 
 petition void 815 
 
 Persons having property of or indebted to corporation 
 to account, etc 816 
 
 All provisions of law as to insolvent debtors applicable 816 
 
 Receiver, powers and duties of 817 
 
 Allowed commission as court shall direct 818 
 
 To retain moneys for certain purposes when 818 
 
 To distribute residue pro rata 818 
 
 Order of distribution by 818 
 
 Second distribution if whole estate not distributed at 
 first 819 
 
 Creditors may present claims for second dividend who 
 neglected first 820 
 
 After second dividend balance to be distributed among 
 stockholders 820 
 
 At termination of suit pending at time of final dividend 
 money retained for that purpose to be applied thereto 
 and distribute proceeds if any like other assets 821 
 
 Receivers subject to control of court may be removed 
 and vacancy supplied 822 
 
 Account of receiver to be made to and reported by cir- 
 cuit court commissioner 823 
 
 Court to make final decree on coming in of report .... 824 
 
 Receiver to account from time to time and pay un- 
 claimed dividend into court 824 
 
 Provisions of this act not to extend to libraries, lyceums, 
 churches, schools or cemeteries 825 
 
 Appeal may be taken to supreme court by written claim 
 vrithin forty days 826 
 
 Supreme court may alter or affirm decree 826 
 
 May make any orders necessary in case 826 
 
 Chancery cannot take property of corporation from 
 directors and officers except by these proceedipgs 
 and under chapter 269, C. L 827 
 
 Corporation cannot dissolve itself in any other manner 828 
 
Ixxiv OONTENTS 
 
 [eeperences are to sections] 
 Creditor cannot maintain suit against corporation after 
 
 it is dissolved 828 
 
 Receiver takes property subject to liens of levies by 
 
 judgment creditor 828 
 
 Assignments for benefit of creditors. 
 
 Chancery has supervision of and may make orders for 
 
 management of property and distribution of assets. . 829 
 Chancery may prevent fraudulent transfers or payments 829 
 May require assignor to appear for examination 
 
 on oath 829 
 
 May require assignee to appear for examination 
 
 on oath 829 
 
 Is a proceeding in chancery from time of filing assign- 
 ment 830 
 
 Jurisdiction is statutory and not like ordinary suits . . 830 
 
 Proceedings not removable to municipal court 830 
 
 Court may direct manner in which property shall be 
 
 sold 831 
 
 Duty of assignee to apply in court for' directions 831 
 
 Court or judge may extend time for closing trust 831 
 
 Notice of application to be given creditors by mail .... 831 
 Creditors may apply to court to order assignee to con- 
 test claims 832 
 
 Right of third parties to property assigned settled at law 832 
 Escheats. 
 
 Attorney general may file bill of discovery to ascertain 
 
 and full disclosure may be compelled 833 
 
 After discovery remedy of state is at la^ or in probate 
 
 court 833 
 
 Perpetuate testimony — seldom used at present time, being 
 
 suspended by statute for taking depositions 834 
 
 Discovery. 
 
 Office of bill for, was to compel disclosure of facts by 
 party to a suit at law which disclosure should be used 
 
 as evidence 835 
 
 Bill for is obsolete in most cases, since parties are com- 
 petent witnesses 835 
 
 May still be employed in some cases 836 
 
contents ixxv 
 
 "[references are to sections] 
 Sale of lands by executor. 
 
 When for the best interests of beneficiaries court may- 
 order lands held in trust by executor to be sold on 
 bill or petition of executor or any person interested . . 837 
 On filing bill or petition, proceedings same as in ordi- 
 nary suits 838 
 
 Bond to be filed before sale by executor 838 
 
 Court to make necessary orders for disposition of pro- 
 ceeds 838 
 
 All beneficiaries to be made parties 838 
 
 Sales of lands held by life tenants. 
 
 May be ordered by court on petition of life tenant 839 
 
 Petition on oath must contain names and residence of 
 
 all persons interested and description of property. . 840 
 Prayer must be that lands be sold and proceeds invested 
 
 and treated as realty 840 
 
 Order that all persons interested appear and show cause 841 
 
 Copy of order to be personally served and published. . . 841 
 
 Any person interested may appear and show cause. . . . 842 
 
 Proofs to be taken as court shall direct 842 
 
 Sale ordered if found to be for best interests of all in- 
 terested 842 
 
 Proceeds to stand in lieu of land sold 842 
 
 Showing cause against petition is as in ordinary cases. . 843 
 
 Summary proceedings contemplated 843 
 
 Proofs taken without delay in court or by circuit court 
 
 commissioners 843 
 
 Adjournment of proofs may be had for a fair trial 843 
 
 Trustee will be appointed to make sale to give bond . . . 844 
 
 Sale to be reported to court 845 
 
 Sale when confirmed passes title in fee simple 845 
 
 Proceeds stand in lieu of property 846 
 
 Court may order investment of proceeds from time to 
 
 time '. 846 
 
 No sale to be made contrary to provisions of will or deed 846 
 Sales of lands of infants and incompetents. 
 
 Where application made 847 
 
Ixxvi CONTENTS 
 
 [eEPERBNCES ABE TO SECTIONS] 
 
 If infant or incompetent be non-resident of state in 
 
 county where land is 847 
 
 Be resident, in court of county where he resides . . . 847 
 If party has guardian, application must be by guardian 847 
 
 No guardian, by next friend 847 
 
 Proof required before appointing next friend 847 
 
 Court may direct notice to be given to parents, relatives 
 
 or guardian of infant 847 
 
 Guardian to be appointed 848 
 
 Guardian to give bonds — ^filed with register of court. . . 848 
 Court proceed in summary manner on oral or other 
 testimony or by reference to circuit court coijimis- 
 
 sioner to inquire into merits 848 
 
 Sale may be ordered when necessary and proper but not 
 
 against provisions of will or conveyance 849 
 
 Sale to be reported to court and if confirmed convey- 
 ance to be made 849 
 
 Sales effective after confirmation as if made by infant 
 
 when of full age 850 
 
 Infant is considered ward of court from time of making 
 
 application 851 
 
 Court may make orders for investment of fund and 
 
 accounts to be rendered 851 
 
 If land subject to dower, how release may be obtained, 
 if dowress will accept gross sum, court may order 
 
 such gross sum paid 852 
 
 Effectual release of dower to be executed 852 
 
 Court m.ay order incumbrance to be purchased and dis- 
 charged and that part of land may be sold for that 
 
 purpose 853 
 
 No right in land will vest in guardian 853 
 
 Proceedings prescribed by the statute must be strictly 
 
 followed 854 
 
 Proceedings are by petition setting forth aU facts .... 854 
 
 Sale can be made only as ordered by court 854 
 
 Purchasers are presumed to have knowledge of all the 
 
 proceedings 854 
 
 Agreement to sell must be approved before deed made 855 
 
CONTENTS Ixxvii 
 
 [references are to sections] 
 A deed made before order of sale will not be ratified ... 855 
 
 Contingent estates in remainder may be sold 856 
 
 If tainted by fraud, infant may vacate on reaching full 
 
 age, or non compos on regaining soundness of mind 857 
 No money to be paid to guardian ad litem until security 
 
 given 857 
 
 Courts are careful to guard rights of infants 857 
 
 Petition or application must be on oath 857 
 
 Transfer of causes. 
 
 When made 858 
 
 Made by application to judge of adjoining circuit stat- 
 ing facts and notice given to all interested 858 
 
 If judge disqualified cause will be transferred 858 
 
 Transfer will be made to the court on which parties 
 
 agree 859 
 
 If no agreement, judge to make transfer 859 
 
 Parties may transfer by stipulation 860 
 
 Court to which transfer is made to take jurisdiction on 
 
 filing order with register 861 
 
 Court to make orders for transfer of records and files. . 861 
 Register of court where cause was pending to transfer 
 
 files and copies of records and orders 862 
 
 Fee of register 862 
 
 Application must show facts of disqualification and 
 proof thereof must be made at hearing, also of fact 
 that judge of court to which transfer is proposed is 
 
 not disqualified 863 
 
 Venue may be changed for cause, by court in which suit 
 
 was commenced 864 
 
 Maxims in equity 865 
 
 Michigan Chancery Rules Appendix 
 
 Michigan Law Rules applicable to chancery Appendix 
 
 Michigan Supreme Court Rules as to chancery appeals, Appendix 
 
STAGE'S MICHIGAN CHANCERY 
 PRACTICE AND FORMS 
 
 Jurisdiction of Courts of Equity. 
 
 § 1. The jurisdiction of Courts of Equity in America 
 is adopted from, and similar to, that of the English High 
 Court of Chancery. 
 
 The constitution of the United States provides that the 
 judicial power of the Federal Courts shall extend to all 
 cases of law and equity arising under the constitution, 
 the laws of the United States, and territories made under 
 their authority ; to all cases affecting ambassadors, other 
 public ministers and consuls; to all cases of admiralty 
 and maritine jurisdiction; to controversies in which the 
 United States shall be a party ; to controversies between 
 two or more states ; between a state and citizens of an- 
 other state ; between citizens of different states ; between 
 citizens of the same state claiming lands under grants of 
 different states; and between a state or the citizens 
 thereof and foreign states, citizens or subjects.^ But 
 shall not be construed to extend to any suit of law or in 
 equity against one of the United States by citizens of 
 another state or any foreign country.^ 
 
 § 2. The jurisdiction in equity of the federal courts is, 
 subject to the provisions of the constitution, substantially 
 the same as that of the English High Court of Chancery.^ 
 
 It is provided by statute of congress that suits in equity 
 
 1 — ^TJ. S. Constitution, Art. III. Wheat. 212; Fenn v. Holmes, 21 
 
 2 — TJ. S. Constitution, Eleventh How. 481; Meade v. Beale, — Taney 
 
 Amendment. 339; Eoot v. Railway Co., 105 IT. S. 
 
 3 — Bobinson v. Campbell, 3 189. 
 
2 stage's MICHIGAN CHANCEET PBACTICE AND FORMS 
 
 shall not be sustained in either of the courts of the United 
 States in any case where a plain, adequate and complete 
 remedy may be had at law.* This statute seems to be 
 declaratory of an ancient rule of the English court. 
 
 § 3. In Michigan the powers and jurisdiction of the 
 Circuit Courts in Chancery and of the judges thereof in 
 and for their respective counties are co-extensive with 
 those of the High Court of Chancery and its judges in 
 England, with the exceptions, addition, and limitations 
 created and imposed by the constitution and laws of the 
 state.' 
 
 § 4. Equity jurisdiction is of two classes, inherent and 
 statutory. Equity has inherent jurisdiction over trusts 
 and trustees; the rights and equities of married women 
 'against their husbatids; estates of deceased persons, 
 guardianship of infants and incompetent persons; the 
 specific performance of contracts ; matters between part- 
 ners; cancellation of fraudulent deeds and contracts; 
 correction of mistakes in deeds and written instruments ; 
 restoration of lost deeds and other writings; awards of 
 arbitrators; contribution between co-sureties and other 
 joint obligees where equitable ; establishment of equitable 
 liens ; interpleading between themselves of rival claimants 
 to a fund in the hands of another; the foreclosure of 
 mortgages and other liens ; relief against the terms of an 
 unconscionable contract : relief against a judgment in the 
 common law courts obtained by fraud ; the prevention by 
 injunction of the commission of acts whereby irremediable 
 injury would be caused ; the prevention by injunction of 
 the prosecution of unconscionable actions at law; the 
 prevention of the harassing of a party by a multiplicity 
 of suits when one litigation would suffice ; the discovery 
 of matters within the knowledge of the adverse party; 
 waste ; nuisances ; and in fine over all matters of uncon- 
 scionable injury wherein the common law courts can 
 afford no adequate remedy. 
 
 Several of these matters have been the subject of more 
 
 4-.tr. S. E. S., T[723. 5—1. C. L., Sec. 433. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 3 
 
 or less statutory regulation, notably foreclosure * ; in- 
 junction to stay proceedings at law ; '' trusts and trus- 
 tees ; * and others. 
 
 § 5. Courts of equity have statutory jurisdiction over 
 partition of land ; ® divorce ; ^'^ separate maintenance of 
 ■wife;^^ voluntary dissolution of corporations;'^ quiet- 
 ing title to land; '^ winding up affairs of banks;'* dis- 
 covery of equitable assets and subjecting them to execu- 
 tion ; '^ assignments for benefit of creditors ; '® sale of 
 land of infants and others under guardianship ; ''' adjust- 
 ment of rights and liabilities of cities and townships on 
 division of territory ; '® orders of railroad commission, 
 fixing maximum rates, etc. ; '^ of gifts, etc., for religious, 
 educational, charitable and benevolent purposes;^" col- 
 lection of inheritance tax when a lien on realty ; ^' over 
 plank and gravel road companies ; ^^ to vacate cemeteries 
 in cities, etc., when deleterious to public health ; ^^ sale of 
 land for delinquent taxes.^^ 
 
 Courts Having Equity Jurisdiction. 
 
 § 6. In England the High Court of Chancery, pre- 
 sided over by the lord chancellor was a court entirely dis- 
 tinguished from the courts of common law and the judges 
 thereof had no common law jurisdiction. An appeal lay 
 to the house of lords.' 
 
 In the Federal Courts of the United States each Dis- 
 trict Court has original jurisdiction in equity cases as 
 well as in cases at common law. The same judges pre- 
 
 6—1 C. L., Sec. 515 et seq. 18—1 C. L., Sec. 3418, Act No. 
 
 7—1 C. L., Sec. 502 et seq. 290 Pub. Acts 1909. 
 
 8—3 C. L., Sec. 8853 et seq. 19— Act 300, Pub. Acts 1909. 
 
 9 — 3 C. L., Chap. 304. 20— Act 122, Pub. Acts 1907. 
 
 10—3 C. L., Chap. 232. 21— Act 155, Pub. Acts 1907. 
 
 11—3 C. L., Sec. 8686. 22— Act 196, Pub. Acts 1907; C. 
 
 12—3 C. L., Chap. 300. L. Sec. 6625. 
 
 13_1 c. L., Sec. 448. 23— C. L., Sec. 3485. 
 
 14—2 C. L., Sec. 6144 et seq. 24— C. L., Sec. 3880 Act 262, Pub. 
 
 15—1 C. L., Sees. 436-439. Acts 1899. 
 
 16—3 C. L., Sec. 9549. 1—111 Oooley's Bl. Com. 55. 
 
 17—1 C. L., Sec. 532 et seq. 
 
4 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 side on both the equity and common law side of the same 
 court.^ The style of the court when sitting in equity 
 being: The District Court of the United States for 
 
 the Circuit , District of , In 
 
 Equity. An appeal lies to the United States Circuit 
 Court of Appeals and then to the Supreme Court. 
 
 § 7. In some of the states courts of equity of original 
 jurisdiction are separate and distinct from those of com- 
 mon law, but in most of them, including Michigan, the 
 same court exercises both equity and common law juris- 
 diction. In all cases an appeal lies to the Supreme Court 
 of the state. 
 
 § 8. In Michigan the Circuit Court for each county is 
 a court of equity as well as of common law, the same 
 judge presiding on both sides of the court. When sitting 
 in equity the style of the court is, "The Circuit Court for 
 the County of , In Chancery. ' ' ^ 
 
 Municipal Courts created by the legislature may have 
 equity jurisdiction conferred upon them.* 
 
 §9. From each of these courts an appeal lies to the 
 Supreme Court of the state.^ 
 
 § 10. The county clerk of each county is ex officio 
 register in chancery for such county.* 
 
 § 11. Circuit Court commissioners in each county are 
 officers vested with judicial powers not exceeding those 
 of a judge at chambers and as limited by statute,'^ and 
 are competent to perform such duties as have been per- 
 formed by masters in chancery according to the English 
 practice, and have such other powers and duties as are 
 conferred upon them by the several Circuit Courts ac- 
 cording to law.* 
 
 The ordinary functions of a Circuit Court Commis- 
 sioner in Chancery proceedings are the taking of the 
 
 2 — U. S. Statutes at Large, Ch. 5 — 1 C. L., Sec. 549. 
 
 373, 114. 6—1 C. L., Sec. 416. 
 
 3— C. L. Sec. 415. 7— Const., Art. vii, H 21. 
 
 4— Const. Art. vii, If 1. 8—1 C. L., See. 1079. 
 
STAGE S MICHIGAN CHANCEBY PEACTICE AND FOBMS 5 
 
 testimony of witnesses in cases where neither party has 
 elected that such testimony should be taken in open court ; 
 to make judicial sales under decrees of the court and 
 report them; and generally to do and perform all such 
 matters as shall be referred to him by the court and make 
 report thereon. In certain cases of emergency he may 
 allow injunctions and other orders pendente lite.* 
 
 §12. The sheriffs of each county are the officers of 
 the court to execute its process.^" 
 
 § 13. Lawyers practicing in chancery are styled "So- 
 licitors ' ' and ' ' Counsel. ' ' The same person may be both 
 solicitor and counsel.^^ 
 
 Proceedings in a Suit in Chancery — The Bill. 
 
 § 14. A suit in chancery (except in some statutory pro- 
 ceedings hereinafter referred to) is commenced by the 
 filing in the office of the register of the proper court, of a 
 bill of complaint, setting forth the facts relied on, the 
 names of the defendants therein, and the relief desired, 
 addressed to the court, and signed hj the complainant, 
 or his agent or solicitor.^ 
 
 § 15. The bill by which a suit is commenced is called 
 an "Original Bill" to distinguish it from such bills as 
 may be filed during the progress of the cause. 
 
 An original bill is in the form of a petition praying for 
 relief for an alleged grievance not as a matter of strict 
 legal right, but as being in accordance with equity and 
 good conscience. The party filing the bill is called the 
 complainant and the other party is the defendant. 
 
 § 16. Anciently a bill appears to have been very sim- 
 ple in form, consisting of an address to the chancellor, 
 a statement of the grievance complained of and a prayer 
 for relief. In process of time bills became more formal 
 and elaborate, although modem practitioners have en- 
 
 9—1 C. L., See. 1082. 11— Henry v. Gregory, 29 Mich. eS. 
 
 10 — 1 C. L., Sec. 429. 1 — Chancery Bule la. 
 
6 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 deavored to return as much as possible to the original 
 simplicity eschewing all unnecessary parts. 
 
 § 17. A bill is usually described as consisting of nine 
 parts : 
 
 1. The address. " To the Circuit Court for the County 
 
 of , In Chancery. ' ' 2. The Introduction. 
 
 ' ' Complaining your Orator John Doe, of , in the 
 
 State of , respectfully shows unto the Court. ' ' 
 
 It is important that the residence as well as the name of 
 the complainant, and of each of them, if there are more 
 than one, should be shown for the information of the 
 court as well as for that of the defendant. 
 
 3. The Stating Part or Premises. This is a state- 
 ment of the facts and circumstances constituting tlie 
 grievance for which relief is sought, and must be full 
 and explicit, setting forth the facts in such a manner that 
 if the bill be taken as confessed or admitted by the an- 
 swer, the court may be enabled to make a perfect decree 
 upon the statements therein contained.^ The material 
 facts must be stated positively and not by way of in- 
 ference or recital.' In a sworn bill those facts which are 
 not within the actual knowledge of the complainant, or 
 of the person verifying the bill, must be stated to be on 
 his information and belief,^ but it must be averred to be 
 the fact.^ All the facts necessary to establish the com- 
 plainant's case should be stated, as no relief can be given 
 on a case not made by the statements in the bill ® and 
 where the proofs show a case for relief, but a different 
 one from that stated in the bill, no relief can be given 
 on that bilU and the defendant would not be bound to 
 
 2 — Highstone v. Franks, 93 Mich. 6 — ^Booth v. Thompson, 49 Mich. 
 
 52; Fox V. Pierce, 50 Mich. 500. 73; Elliott v. Amazon Ins. Co., 49 
 
 3 — Manning v. Drake, 1 Mich. 34; Mich. 579; Ford v. Loomis, 33 Mich. 
 
 Moran v. Palmer, 13 Mich. 367; Wil- 121. 
 
 son V. Eggleston, 27 Mich. 257. 7 — Moran v. Palmer, 13 Mich. 
 
 4 — Chancery Eule 2b. 367; Booth v. Thompson, 49 Mich. 
 
 5 — Lord Uxbridge v. Staveland, 1 73; Elliott v. Amazon Ins. Co., 49 
 
 Ves. Sen. 56; Ex parte Eeid, 50 Ala. Mich. 579; Sanford v. Wyman, 24 
 
 439; Nix v. Winter, 35 Ala. 309. Mich. 326. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 7 
 
 answer any interrogatory not based on the stating part.^ 
 
 4. The Confederating Part. "But now so it is may 
 it please the court that the said defendant Richard Roe, 
 combiaing and confederating with divers other persons 
 whose names are to your orator unknown, but whose 
 names when discovered your orator prays may be herein 
 inserted with apt and proper words to make them de- 
 fendants hereto, how to injure and oppress your orator, 
 etc." This part is wholly unnecessary and is now almost 
 invariably omitted. In those cases where there is actually 
 a confederacy with parties unknown, that fact should be 
 alleged in the stating part. 
 
 5. The Charging Part. The oiEce of this part of a bill 
 is to inform the court of the pretences and excuses set 
 up by the defendant. After stating the pretences it pro- 
 ceeds to charge that the contrary of such pretences is 
 true and concludes : "All which actings, doings and pre- 
 tences are contrary to equity and good conscience and 
 tend to the manifest wrong and injury of your orator. ' ' 
 
 In a sworn bill care must be taken not to charge any 
 pretence or excuse which has not been in fact made by 
 the defendant as a false statement in this part of a sworn 
 bill would be as much perjury as a false statement in 
 the stating part.® 
 
 This part of a bill is seldom necessary and may usually 
 be omitted. 
 
 6. The Jurisdiction Clause. This is a formal allega- 
 tion that the complainant is without remedy according to 
 the strict rules of the common law and can have no relief 
 except in a court of equity, etc. It is utterly useless being 
 a mere conclusion based on the. stating part of the bill 
 and unless the facts there stated show jurisdiction the 
 court will not assume it. 
 
 7. The Interrogating Part The office of this part of 
 the bill is to require an answer from the defendant. It 
 in the first instance requires the defendant to answer 
 generally the whole bill and if any more particular or 
 
 8 — Atty. Gen. v. Whorwood, Vesey 9 — Smith v. Clark, 4 Paige 368. 
 
 Sen. 534. 
 
8 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 specific answer is required to any part of the bill to point 
 it out and make a specific interrogatory thereto. If there 
 are several defendants, specific interrogation may be 
 addressed to some and not to others, but all interroga- 
 tories must be based on the allegations in the stating part 
 of the bill.^" Originally an answer on oath was required 
 in all cases, but the complainant may now waive an an- 
 swer on oath ia all cases other than for discovery only,^^ 
 and cannot compel an answer on oath unless his bill is 
 also on oatb.12 This part of the bill should state whether 
 an answer on oath or without oath is required. 
 
 8. The Prayer for Belief. This is divided into two 
 parts, viz., the prayer for specific relief and the prayer 
 for general relief. The rules provide that a bill shall set 
 forth the relief desired. ^^ 
 
 In the prayer for specific relief the bill should state the 
 particular relief to which the complainant considers him- 
 self entitled as well during the pendency of the suit as 
 upon final decree. Thus when a temporary injunction 
 pendente lite is desired, it must be specially prayed for ^* 
 and so in most cases of a receiver.^' 
 
 The prayer for general relief "and that your orator 
 may have such further or such other relief in the premises 
 as shall be agreeable to equity and good conscience" is 
 usually added to the prayer for specific relief. Under this 
 prayer the court may grant any relief to which the com- 
 plainant may be found to be entitled under the pleadings 
 and proofs in the case although it may be different from 
 that specifically prayed for.^* 
 
 9. The Prayer for Process. " May it please the court 
 to grant unto your orator the writ of subpoena of the 
 
 10— Muckleston v. Brown, 6 Vesey 15— Cooke v. Gwyn, 8 Atk. 689; 
 
 Meredith v. Wise, 1 Molloy 29. 
 
 11— C. L. Sec. 443. 16 — Wilkinson v. Beal, 4 Madd. 
 
 12— Chancery Rule, 10a; World 406 ; Partridge v. Haycraft, 11 Vesey 
 
 Manufacturing Co. v. Kent Circuit 570; Crawford v. Schneider, 105 
 
 Judge, 115 Mich. 652. Mich. 199; English v. Foxal, 2 
 
 13 — Chancery Kule la. Peters 595. 
 
 14 — Savery v. Dyer Amb. 70; 
 Wright V. Atkyns, 1 Ves. & B. 314; 
 Walker v. Devereux, 4 Paige 229. 
 
 62. 
 
STAGE S MICHIGAN CHANCERY PEACTIOE AND FORMS if 
 
 people of the state of Michigan to be issued out of and 
 under the seal of this honorable court and directed to 
 the above named Eichard Roe, the defendant herein, 
 therein and thereby commanding him on a certain day 
 and under a certain penalty to be therein inserted to 
 appear before this honorable court and answer the 
 premises and to stand to, abide and perform such order 
 and decree therein as shall, be agreeable to equity and 
 good conscience." All the defendants should be named 
 in the prayer for process. ^^ If an injunction or other 
 process pendente lite is desired it should be specially 
 prayed for in the prayer for process as well as in the 
 prayer for relief.** 
 
 By the present chancery rules in Michigan, the prayer 
 for process may be wholly omitted and a subpoena issues 
 as a matter of course on filing the bill and other process 
 when ordered by competent authority.^* 
 
 Conclusion. A bill usually concludes with the words 
 "and your orator will ever pray, etc." borrowed from 
 the English form. 
 
 Signature. A bill must be signed by the complainant 
 or by some authorized representative,^" a printed signa- 
 ture is not good,** and unless the complainant prosecutes 
 his bill in his own proper person as he is entitled to do 
 under the constitution ^^ it should also be signed by the 
 counsel,^* but as in Michigan all solicitors are also coun- 
 sel a signature by a solicitor as such without describing 
 him as counsel is good.^* 
 
 Verification. ' ' ^worn bills may be verified by the oath 
 of the complainant, or, in case of his absence from the 
 state or other sufficient cause shown, by the oath of his 
 agent, attorney or solicitor.*^ The oath to be adminis- 
 tered to the party verifying is in substance that he has 
 
 17— story Eq. PI. Sec. 844; 22— Constitution Art. 11, H 12. 
 
 Fawkes v. Pratt, 1 Peer Wms. 593. 23— Sill v. Ketchum, Harr. Ch. 
 
 18 — Wood V. Beadell, 3 Sim. 273. 423; Bveland v. Stephenson, 45 Mich. 
 
 19 — Chancery Eule Ic. 394. 
 
 20 — Chancery Eule la. 24 — Henry v. Gregory, 29 Mich. 68. 
 
 21 — Eveland v. Stephenson, 45 25 — Chancery Rule 2a. 
 Mich. 394. 
 
10 stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 
 
 read the bill, or has heard it read, and knows the con- 
 tents thereof, and that the same is true of his own knowl- 
 edge, except as to the matters which are therein stated 
 to be on his information and belief, and as to those mat- 
 ters he believes it to be true.*^ 
 
 §18. "The bill may be sworn to before any officer 
 authorized by the laws of this state to administer oaths 
 or take affidavits. It may also be sworn to outside of this 
 state before any notary public or other person authorized 
 by the laws of any other state or territory to administer 
 oaths ; but if sworn to in any other state or territory there 
 shall be added the certificate of the clerk of some court 
 of record of the county under the seal thereof, showing 
 the official character of the person administering the oath 
 and the genuineness of his signature. The bill may be 
 sworn to in any foreign country before any minister or 
 other diplomatic agent or consul of the United States or 
 any notary public; but the certificate of such notary shall 
 be under his notarial seal. ' ' ^^ 
 
 The jurat should show when, where and before whom 
 the bill was sworn to ^® and where the verification is by 
 an agent, other than the solicitor, the jurat should show 
 the fact of such agency .^^ 
 
 A bill in equity need not be verified in the absence of 
 any statute or rule requiring it, except where preliminary 
 relief is sought, or where it is sought to transfer into 
 equity matters usually cognizable at law.^" 
 
 § 19. The bill must be divided into paragraphs con- 
 secutively numbered and each paragraph must contain 
 as near as may be a separate and distinct allegation. The 
 prayer of every bill must also be divided into paragraphs 
 numbered consecutively ^i and a bill of complaint which 
 does not comply with the rule with respect to paragraphs 
 will be stricken from the files on motion unless the court 
 shall deem it proper to allow amendments to cure the 
 
 26— Chancery Rule 2b. 30— Moore v. Cheeseman, 23 Mich. 
 
 27— Chancery Rule 2c. 332; Wardle v. Cummings, 86 Mich. 
 
 28 — Smart v. Howe, 3 Mich. 590. 395. 
 
 29— Bergh v. Poupard, Wal. Oh. 5. 31— Chancery Rule lb. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 11 
 
 defect.='2 The former practice of marking the folios of 
 a bill is obsolete. 
 
 The bill may be sworn to by a foreigner who does not 
 miderstand English through an interpreter who in that 
 case must also be sworn to a true interpretation. 
 
 FOEMS. 
 
 ADDKESS IN THE FEDERAL COURTS. 
 
 United States of America. 
 Sixth Circuit, District of Michigan. • 
 
 To the Judges of the District Court of the United States for 
 the District of Michigan. In Equity. 
 
 INTRODUCTION. • 
 
 Complaining, your orator (or oratrix), A. B., of , 
 
 in the county of and state of , respectfully 
 
 shows unto the court: 
 
 ANOTHER FORM. 
 
 [Sometimes preferred.] 
 
 Complaining, your orator, A. B., of , in the county 
 
 of and state of , brings this, his bill of com- 
 plaint, against C. D. and B. F., defendants, and thereupon your 
 orator respectfully shows unto the court : 
 
 BY SEVERAL COMPLAINANTS. 
 Complaining, your orators, (or orator and oratrix, or orators 
 
 and oratrixes, as the case may he), A . B., of and C. 
 
 D., of , respectfully show unto the court : 
 
 BY HUSBAND AND WIFE. 
 
 Complaining, your orator and oratrix, A. B., of in 
 
 the county of and state of and C. B., of the 
 
 «ame place, his wife, respectfully show unto the court : 
 
 BY AN INFANT. 
 Complaining, your orator, A. B., an infant under the age of 
 twenty-one yjears by C. D., of , his next friend, re- 
 spectfully shows unto the court: 
 
 BY AN ADULT UNDER GUARDIANSHIP. 
 
 Complaining, your orator, A. B., of , a lunatic, (or 
 
 as the case may be) by C. D., his guardian, duly appointed by 
 
 32 — Chancery Eule la. 
 
12 stage's MICHIGAN CHANCERY PBACTICB AND FORMS 
 
 the Probate Court for the county of , respectfully 
 
 shows unto the court: 
 
 BY A CORPORATION. 
 
 Complaining, your orator, , a corporation existing 
 
 under the laws of the state of , having its principal 
 
 ofi&ce for the transaction of business at in the state of 
 
 , respectfully shows unto the court : 
 
 BY A CREDITOR OR BENEFICIARY. 
 
 [For himself and others in like condition.] 
 
 Complaining, your orator, A. B., of , on behalf of 
 
 himself find all other creditors of C. D. hereinafter named (or, 
 all other beneficiaries of the trust hereinafter mentioned) who 
 may come in and join themselves as complainants in this suit, 
 respectfully shows unto the court : 
 
 IN THE FEDERAL COURTS. 
 
 A. B., of , in the county of , and state of 
 
 , a citizen of the state of brings this, his bill, 
 
 against C. D., of , and a citizen of the state of , 
 
 and thereupon your orator complains and says i 
 
 INTERROGATING PART. 
 WHERE ANSWER ON OATH IS NOT WAIVED. 
 
 To the end therefore that the said defendants, C. D. and B. 
 F., may on their several and respective corporal oaths full, true, 
 direct and perfect answer make to all and singular the matters 
 hereinbefore stated and charged, and that as fully and par- 
 ticularly, sentence by sentence and paragraph by paragraph, as 
 if the same were here repeated and they thereunto respectively 
 specifically interrogated, and that such answer be made not 
 only as to their respective knowledge, but also as to their sev- 
 eral and respective information, hearsay and belief. 
 
 WHERE ANSWER ON OATH IS WAIVED. 
 To the end therefore that the said defendants, C. D. and E. 
 F., if they can show why your orator should not have the re- 
 lief hereby prayed, may without oath, all answer upon oath be- 
 ing hereby waived, full, true, direct and perfect answer make 
 to all the singular matters hereinbefore stated and charged. 
 
 SPECIFIC INTERROGATORY TO ONE OF SEVERAL 
 
 DEFENDANTS. 
 And that the said defendant, C. D., may answer specifically 
 whether or not, etc. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 13 
 
 SPECIFIC INTERROGATORY. 
 And that the said defendants may answer specifically whether 
 or not, etc. (state special matter on which answer is sought 
 and make as many specific interrogatories as shall be necessary.) 
 
 PRAYER FOR INJUNCTION PENDENTE LITE. 
 And that the said defendants, C. D. and E. F., be forever 
 restrained by the order and injunction of this honorable court 
 from (state from what they are to he restrained), and that they 
 and each of them be so restrained in the meantime during the 
 pendency of this suit. 
 
 PRAYER FOR RECEIVER. 
 And that some fit and proper person may be appointed by 
 this honorable court a receiver, to receive, collect and take into 
 his possession all (state what the receiver is to take into his cus- 
 tody), hereinbefore mentioned, and to dispose thereof as this 
 court shall direct ; with the usual powers and duties of receivers, 
 and upon such directions as to this court shall seem meet. 
 
 PRAYER FOR WRIT OF NB EXEAT. 
 And that the said defendant, C. D., may be stayed and re- 
 strained by the writ of ne exeat reipublicae of the people of the 
 state of Michigan, to be issued out of and under the seal of this 
 court, from departing out of the state of Michigan and out of 
 the jurisdiction of this court. 
 
 CONCLUSION. 
 And your orator will ever pray, etc. 
 
 (Signature) A. B., 
 
 K. L. Complainant. 
 
 Solicitor for Complainant and of Counsel. 
 
 SIGNATURE. 
 
 BY INFANT. 
 
 A.B., 
 Complainant, 
 an Infant, by G. H., his next friend. 
 K.L. 
 
 Of Counsel for Complainant. 
 
 BY CORPORATION. 
 
 The G. H. & C. Co., Complainant, 
 Corporation by A. B., its President, 
 
 Seal and C. D., its Secretary. 
 
 KL. 
 
 Solicitor for Complainant and of Counsel. 
 
14 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 BY SEVERAL COMPLAINANTS. 
 
 A.B., 
 E.F., 
 CD., 
 
 Complainants. 
 K.L. 
 Solicitor for Complainants and of Counsel. 
 
 BY AGENT OR ATTORNEY. 
 
 A.B., 
 Complainant, 
 by C. D., his Agent (or Attorney 
 in Fact, as the case may be.) 
 
 BY RELIGIOUS CORPORATION. 
 
 A.B., 
 CD., 
 
 E.F., 
 Trustees of the (name of Society), 
 Complainant. 
 
 VERIFICATION. 
 State of Michigan, } 
 
 County of ) 
 
 On this day of , A. D. 19 . . , before me, 
 
 the undersigned, a notary public, (or as the case may he) of, in 
 and for the said county, personally came the above named com- 
 plainant, A. B., and made oath that he has read (or heard read) 
 the foregoing bill of complaint by him subscribed and knows the 
 contents thereof, and that the same is true of his own knowl- 
 edge, except as to those matters which are therein stated to be 
 on information and belief, and as to those matters he believes it 
 to be true. 
 
 John Doe, 
 Notary Public, 
 (or as the case may be.) 
 
 county, Michigan. 
 
 My commission will expire , 19 . . . 
 
 BY AGENT. 
 
 State of Michigan, 
 
 County of 
 
 On this day of .' A. D. 19. ., before me, the 
 
 undersigned, a notary pubUe, (or as the case may be) of, in and 
 for the said county, personally came the above named, C D., and 
 
 I ss. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 15 
 
 made oath that he is duly authorized to sign the name of the com- 
 plainant, A. B., to the foregoing bill of complaint and that the 
 said A. B. is now absent from the state of Michigan (or as the 
 case may be), and that he, said C. D., has read (or heard read) 
 the said bill of complaint and knows the contents thereof, and 
 that the same is true of his own knowledge, except as to those 
 matters which are therein stated to be on information and belief, 
 and as to those matters he believes it to be true. 
 
 John Doe, 
 Notary Public, 
 (or as the case may he.) 
 
 county, Michigan. 
 
 My commission will expire , 19. .. 
 
 TO BILL FOR DIVORCE. 
 State of Michigan, 1 
 
 County, of | **• 
 
 On this day of , A. D. 19 . . , before me, the 
 
 undersigned, a notary public, (or as the case may be) of, in and 
 for the said county, personally came the above named com- 
 plainant, A. B., and made oath that . .he has read (or heard 
 read) the foregoing bill of complaint by h. . . . subscribed and 
 knows the contents thereof, and that the same is true of h. . . . 
 own knowledge, except as to those matters which are therein 
 stated to be on information and belief, and as to those matters 
 . .he believes it to be true, and that there is no collusion, under- 
 standing or agreement whatever between h . . . . self and the de- 
 fendant therein in relation to h. . . . application for a divorce. 
 
 John Doe, 
 Notary Public, 
 (or as the case may be.) 
 
 county, Michigan. 
 
 My commission will expire , 19 . . . 
 
 ONE OF SEVERAL COMPLAINANTS ON BEHALF 
 OF ALL. 
 State of Michigan, I 
 
 County of 5 
 
 On this day of , A. D. 19 . . , before me, the 
 
 undersigned, a notary public, (or as the case may be) of, in and 
 for the said county, personally came the above named com- 
 plainant, A. B., and made oath that he is duly authorized to sign 
 and verify the foregoing bill of complaint and doth verify the 
 same on behalf of all the complainants therein as well as on his 
 own behalf, and that he has read (or heard read') the said bill of 
 complaint and knows the contents thereof, and that the same is 
 true of his ovm knowledge, except as to those matters which are 
 
16 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 therein stated to be on information and belief and as to those mat- 
 ters he believes it to be true. 
 
 John Doe, 
 Notary Public, 
 (or as the case may he.) 
 
 county, Michigan. 
 
 My commission will expire , 19 . . . 
 
 BY FOREIGNER, IGNORANT OF ENGLISH LANGUAGE. 
 State of Michigan, 1 ^^ 
 
 County of 3 
 
 On this day of , A. D. 19. ., before me, a 
 
 notary public, of, in and for said county, personally appeared 
 the above named, A. B., being a Frenchman (or as the case may 
 he) ignorant of the English language, and by and through the 
 interpretation of X. Y., who was for that purpose by me duly 
 sworn, and whose affidavit is hereto annes;ed, made oath that 
 he has heard read the annexed bill of complaint (or answer) as 
 translated and interpreted to him by the said X. Y., and knows 
 the contents thereof, and that the same is true of his ovm knowl- 
 edge, except as to the matters therein stated to be on information 
 and belief, and as to those matters he believes it to be true as so 
 translated and interpreted to him. 
 
 John Doe, 
 Notary Public, 
 (or as the case may he.) 
 
 county, Michigan. 
 
 My commission will expire , 19 . . . 
 
 AFFIDAVIT OF INTERPRETER. 
 
 [Annex to foregoing.] 
 State of Michigan, 1 
 
 County of ) 
 
 John Doe, of , being duly sworn, says that he is well 
 
 acquainted with and well versed in the French (or as the case 
 may he) and English languages and that he has well, truly and 
 correctly read over, interpreted and translated the annexed bill 
 of complaint (or if the verification is to an answer say, the bill of 
 complaint in this cause and also the annexed answer thereto) into 
 the (French) language to A. B., the complainant (or defendant) 
 in the said annexed bill (or answer), and has given him the 
 said A. B. the just and true translation thereof and also the just 
 and true translation of the oath administrated to the said A. B. by 
 , a notary public, in verification of the said bill (or an- 
 swer) according to the best of his ability, and that he verily be- 
 lieves that the said A. B. fully understands the same and the 
 whole thereof. 
 
 Jurat 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 17 
 
 The Stating Part of the Bill. 
 
 § 20. This is the most important part of a bill as it is 
 that which sets forth the facts upon which the complain- 
 ant bases his application for relief. Therefore it must 
 set forth fully, clearly and positively all the facts in such 
 a manner that the court can see on a perusal of the bill 
 exactly what the grievance is of which complaint is made 
 and also what relief would be appropriate so that, if the 
 bill should be taken as confessed the court would be able 
 to make a proper decree upon the allegation of the bill 
 alone * or if it be admitted by the answer or proved at the 
 hearing.^ Care must be taken to state such a case as the 
 proofs will sustain as if the bill should state one valid 
 cause of complaint and the proofs should fail to sustain 
 it but should show a different, although equally valid 
 case, no relief can be decreed on that hill as every decree 
 must be ' ' secundum allegata et probata. ' ' * 
 
 § 21. A bill should not set out the evidence on which 
 the complainant relies but should aver the facts which 
 would entitle him to relief* and those facts should be 
 fully set forth so as to advise the court of the entire case. 
 Thus a bill to remove an encroachment in a highway 
 should state the establishment and existence of the high- 
 way and should also accurately describe the encroach- 
 ment and should show that the highway commissioners 
 had ordered the removal and had authorized the suit.'' 
 Any exception claimed by complainant to exist to the 
 statute of limitations in his particular case, or any ground 
 to rebut such presumptions as might arise from lapse of 
 time should be stated,^ and where a bill is filed under a 
 statute containing an exception in the enacting clause the 
 
 1 — McMahon v. Eooney, 93 Mieh. 529; Jerome v. Hopkins, 2 Mich. 
 
 390; CoveU ». Cole, 16 Mich. 223; 91; Covell v. Cole, 16 Mich. 223. 
 
 Hurlbut V. Britain, 2 Doug. Mieh. 4 — Wilson v. Eggleston, 27 Mich. 
 
 191. 257. 
 
 2 — Highstone v. Franks, 93 Mich. 5 — ^Lebanon Tp. v. Burch, 78 
 
 52; Fox T. Pierce, 50 Mieh. 500; Mich. 641. 
 
 Le Baron v. Shepherd, 21 Mich. 263. 6— Campan v. Chene, 1 Mich. 400. 
 
 3 — ^Peckham v. Buffum, 11 Mich. 
 
18 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 bill must aver that the case is not within the exception, 
 but where the exception is in a proviso or in a subsequent 
 section of the act it need not be negatived in the bill.'' 
 Where the complainant's equity depends upon the per- 
 formance of conditions precedent such performance must 
 be shown by the bill,* and where a complainant relies on 
 estoppels to defeat a legal title the facts constituting suoh 
 estoppels must be set forth in the bill.* In short the bill 
 must in its stating part set forth everything necessary to 
 show the complainant's claim for relief. 
 
 § 22. Thus a bill to obtain relief against a fraudulent 
 transaction must set forth the facts constituting the fraud 
 it is not suflScient to allege generally that the transaction 
 was fraudulent^" although all the details of the fraud 
 need not be shown *^ and when an act set up in a bill does 
 not of itself import a fraud, a fraudulent intent must be 
 expressly averred if such intent is claimed to have 
 existed, but no such averment of intent is necessary- if the 
 acts stated plainly show that fraud is to be clearly 
 deduced therefrom;^* the substance of the transaction, 
 the facts constituting the fraud and the result are the 
 necessary matters to be stated in a complaint of fraud.* ^ 
 It has been held, however, that if at the hearing the 
 defendant does not make the objection that the facts con- 
 stituting the fraud are not set out in the bill it was too 
 late to do so on appeal to the Supreme Court.** A bill for 
 injunction to restrain proceedings at law should show the 
 state of the pleadings in the suit at law as well as the 
 court wherein the same is pending *^ and of course the 
 
 7 — Attorney Gen. v. Oakland Co. 29 Mich. 289; Wilson v. Eggleston, 
 
 Bank, Wal. Ch. 90. 27 Mich. 257. 
 
 8 — Curtis V. Goodenow, 24 Mich. 11 — McMahcn v. Eooney, 93 Mich. 
 
 18. 390; Merrill v. Allen, 38 Mich. 487. 
 
 9— Moran v. Palmer, 18 Mich. 12 — Hale v. Chandler, 3 Mich. 531. 
 
 367; Curtis v. Gagnier, 2 Mich. 381. 13— Merrill v. Allen, 38 Mich. 487. 
 
 10— MeMahon v. Kooney, 93 Mich. 14— Ehead v. Hownaon, 46 Mich. 
 
 390; Andrews v. Osbom, 159 Mich. 243. 
 
 77; Stradley v. Circuit Judge, 96 15— Carroll v. Fanners, etc. Bank, 
 
 Mich. 287; Auditor Gen. v. Stiles, Harr. Ch. 197. 
 83 Mich. 460; Damouth v. Klock, 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 19 
 
 parties thereto. Bills filed in pursuance of rights 
 granted by statute must show clearly that the complaia- 
 ant is within the purview of its provisions; thus where 
 an act of the legislature for the relief of innocent pur- 
 chasers and settlers of railroad grant lands provided that 
 claims should be presented on or before March 8, 1884, 
 an averment that the claim was filed on or about March 
 8, 1884, was held insuflBcient on demurrer but leave was 
 granted to amend. ^® 
 
 §23. The bill must also show that the complainant 
 has done everything necessary to be done on his part or 
 that he is ready, willing and able to do it, or such matters 
 as will excuse his non performance," according to the 
 maxims "He that seeks equity must do equity" and 
 "Who seeks equity must come into court with clean 
 •hands. ' ' 
 
 The bill must also show the acts of the defendant per- 
 formed or threatened, or the rights which he claims, 
 against which relief is sought.^® 
 
 § 24. As to the manner of stating the facts : — No par- 
 ticular form of words is essential but the facts must be 
 stated clearly and positively, not by way of recital or 
 inference and should be stated as briefly as would be con- 
 sistent with the necessity of placing all the facts before 
 the court. 
 
 In sworn bills such facts as are within the actual knowl- 
 edge of the complainant should be stated positively with- 
 out qualification, such facts as are not within his own 
 knowledge may be stated as follows "and your orator 
 is informed and believes and charges (or avers) the 
 truth to be that," etc., followed if the allegation is essen- 
 tial to preliminary relief, such as injunction, and is sup- 
 ported by an affidavit of one knowing the facts appended 
 
 16 — Paine y. State Land Comr. 66 Dak. 386; Sheets v. Sheldon, 74 
 
 Mich. 245. U. S. (7 Wall.; 416; Martin v. 
 
 17 — Chadbourne v. Stockton, etc. Tenison, 26 Ala. 738; Oliver v. 
 
 Soc. 88 Cal. 636; D'WoIf v. Pratt, Palmer, 11 Gill. & J. (Md.) 426. 
 
 49 111. 198; Palmer v. Palmer, 114 18— Emerson v. Walker, Tp. 63 
 
 Mich. 509; De Ford v. Hyde, 10 S. Mich. 483. 
 
20 stage's MICHIGAN CHANCEEY PEACTICB AND FOBMS 
 
 to the bill by the following "as appears by the affidavit of 
 J. K. hereto annexed marked Exhibit . . whereto refer- 
 ence is prayed. " A subsequent allegation of facts within 
 complainant's knowledge should be prefixed by the words 
 ' ' and your orator further shows, ' ' etc. 
 
 When deeds, mortgages or other written instruments 
 are essential to the complainant's case they may be stated 
 by their legal effect giving dates and description, etc., or 
 they may be set out by a full copy. If recorded the time 
 and place of recording as well as the book and page of the 
 record should be stated, and it is usual although not in all 
 cases absolutely necessary to add to each statement of a 
 writing in complainant's possession a statement in the 
 nature of a profert thus "as in and by the said (deed) 
 now in possession of your orator ready to be produced 
 and proved as this court shall direct and whereto ref- 
 erence is prayed will fully appear," and in case of a 
 
 record " as in and by the said record of the said 
 
 now remaining in the office of and whereto ref- 
 erence is prayed will fully appear. ' ' Sometimes in case 
 of lengthy documents, copies thereof are annexed as 
 exhibits to the bill, in which case after identifying and 
 describing the document and mentioning the substance 
 and effect of the facts essential to the case in the stating 
 part the bill it may be referred to as follows: "a copy 
 
 of which said is hereto annexed as and for a 
 
 part of this bill of complaint marked Exhibit . . and 
 whereto reference is prayed. ' ' 
 
 The necessary averments in bills for relief in the prin- 
 cipal cases of equity jurisdiction, such as foreclosure, 
 divorce, partition, specific performance, judgment credit- 
 ors, corporations, interpleader, quieting title, injimction, 
 etc., will be found later on under their respective titles. 
 
 § 25. Care must be taken to avoid scandal and imperti- 
 nence. By scandal is meant any matter that is not becom- 
 ing the dignity of the court to hear, or which unjustly or 
 unnecessarily reflects upon any party.^* Impertinence 
 
 19— story Bq. PI. Sec. 48, 266, 270. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOEMS 2.1 
 
 consists of matter not pertinent to the object of the bill, 
 needless verbosity and long recitals of immaterial facts. 
 The courts discourage prolixity in pleading, what they 
 require is a concise and clear statement of the essential 
 facts, anything beyond this is improper, and superfluous 
 allegations as well as redundant and unnecessary state- 
 ments having no relevancy or materiality to the real mat- 
 ter in controversy will not be tolerated and on motion will 
 be stricken out.^" 
 
 § 26. The federal courts have provided by rule that 
 "Every bill shall be expressed in as brief and succinct 
 terms as it reasonably can be and shall contain no 
 unnecessary recitals of deeds, documents, contracts or 
 any other instruments in haec verba, or any other im- 
 pertinent matter, or any scandalous matter not relevant 
 to the suit ; if it does, it may on exception be referred to a 
 master by any judge of the court for impertinence or 
 scandal, and if so found by him the matter shall be 
 expunged. ' ' ''^ 
 
 § 27. Care must also be taken not to render the bill 
 multifarious. Multifariousness is defined by Judge Story 
 as "the improperly joining in one bill distinct and inde- 
 pendent matters and thereby confounding them, as for 
 example, the writing in one bill of several matters per- 
 fectly distinct and unconnected against one defendant; 
 or the demand of several matters of a distinct and inde- 
 pendent nature against several defendants in the same 
 bUl. In the latter case the proceedings would be oppres- 
 sive because it would tend to load each defendant with 
 an unnecessary burden of costs, by swelling the pleadings 
 with the statement of the several claims of the other 
 defendants with which he has no connection. In the for- 
 mer case the defendant would be compelled to write in 
 his answer and defense, different matters, wholly uncon- 
 nected with each other; and thus the proofs applicable 
 to each would be apt to be confounded with each other, 
 and great delays would be occasioned by waiting for the 
 
 20— story Eq. PI. Sec. 266. 21— U. S. Equity Eule 26. 
 
22 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 proofs respecting one of the matters, when the others 
 might be ripe for hearing. " ^^ 
 
 A bill is multifarious if it contains two or more 
 different and independent causes of complaint requiring 
 different and independent decrees against different 
 defendants ^^ and also if the complainants have no com- 
 mon cause of complaint and their interests are several.** 
 Thus where a number of complainants each being the 
 owner of a separate parcel of land, all of whom derived 
 the title from the same source, joined in a bill to enjoin 
 a defendant, who claimed an individual interest in each 
 parcel from instituting or prosecuting suits in ejectment 
 against each complaint to recover such interests the bill 
 was dismissed on demurrer as multifarious.^® 
 
 But a bill is not multifarious if several causes of action 
 are stated if they all arise from the same transaction,*' 
 nor because it asks different kinds of specific relief in 
 relation to the same subject matter against the same 
 parties.*^ 
 
 As a general rule if all the matters and grievances 
 alleged in the bill can be covered and completely disposed 
 of by one decree, the bill is not multifarious. It is diffi- 
 cult to state a definite rule as to multifariousness. Each 
 case must be governed by its own circumstances and 
 whether multifarious or not must be left to the sound 
 discretion of the court.*^ 
 
 But an objection to a bill on the ground that it is 
 multifarious must be taken by demurrer. It caimot avail 
 
 22— story Bq. PI. Sec. 271. 26— Eberle v. Heaton, 124 Mich. 
 
 23— Ingersoll v. Kirby Walk. Ch. 205 ; Torrent v. Hamilton, 95 Mich. 
 
 65; Hart t. McKeen Walk. Ch. 417; 159; Cleland v. Casgrain, 92 Mich. 
 
 Wales V. Newbould, 9 Mich. 45; 139; Manufacturing Co. v. Swift, 89 
 
 Woodruff V. Young, 4S Mich. 548; Mich. 503. 
 
 Taylor v. King, 32 Mich. 42. 27— Densmore v. Savage, 110 
 
 24— Kerr V. Lansing, 17 Mich. 34; Mich. 27; Cleland v. Casgrain, 92 
 
 Barker v. Vernon, 63 Mich. 516. Mich. 139. 
 
 25— Douglas v. Boardman, 113 28— Densmore v. Savage, IK) 
 
 Mich. 618; Winslow v. Jennsas, 64 Mich. 27; Torrent v. Hamilton, 95 
 
 Mich. 84 ; Jennesa v. Smith, 64 Mich. Mieh. 159 ; 1 Dan. Ch. Pr. & PI. 
 
 91- 334, Note 2. 
 
stage's MICHIGAN CHANOEEY PEACTICE AND FORMS 23 
 
 a defendant after the case has been brought to hearing 
 on the merits.^^ 
 
 §26. Mere surplusage will not render a bill multifa- 
 rious and therefore if, in addition to stating a case for 
 equitable relief, it contains allegations with reference to 
 another matter, but insufficient to entitle the complainant 
 to relief with reference thereto it is not multifarious. It 
 does not become multifarious by adding to an equitable 
 cause of action matter in which there is no equity.*" 
 
 So a bill to set aside a levy is not multifarious because 
 it also claims damages on account of such levy.*^ 
 
 FORM OF LAST PARAGRAPH OF STATING PART. 
 
 And your orator has gften and in a friendly manner applied 
 to said C. D. and E. F., defendants herein, and requested them 
 respectively that they would (here state the act that they ought 
 to have done or the request may he stated as follows) and re^ 
 quested the said C. D., defendant herein, that he should (state 
 what, fully) and requested the said B. F., defendant herein, that 
 he should (state what, fully) and your orator well hoped that the 
 said defendants would have complied with such reasonable re- 
 quest of your orator as in equity and good conscience they 
 ought to have done; but so to do the said defendants have 
 hitherto neglected and refused and still do neglect and refuse. 
 
 [This paragraph is often omitted except where injunction or 
 some relief of that nature is prayed for.] 
 
 Parties to Bills. 
 
 §29. A person cannot be regarded as a party to a 
 suit who is not made so by the proceedings and does not 
 appear in that character on the record.* 
 
 § 30. Complainants. Private persons cannot institute 
 a suit to redress a public grievance, unless the injury 
 to them is distinct from that to the public at large. Pub- 
 
 29 — Snook v. Pearsall, 95 Mich. 31 — Wight v. Eoethlisberger, 116 
 
 534; Eichardson v. Eichardson, 100 Mich. 241. 
 
 Mich. 364; Burnham v. Dillon, 100 1 — State Bank v. Hastings, 1 
 
 Mich. 352; Miner v. Wilson, 107 Doug. Mich. 225; State Bank v. 
 
 Mich. 57. Hammond, 1 Doug. Mich. 527. 
 
 30 — ^Wheeler v. Ocker & Ford Mfg. 
 Co., 162 Mich. 204; Stone v. Bail- 
 road Co., 139 Mich. 265. 
 
24 stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 
 
 lie grievances must be redressed by tbe action of public 
 agents.* 
 
 • The attorney general is the proper complainant in a 
 bill to enjoin abuse of municipal corporate power,^ but 
 his action must be based on a public grievance not a mere 
 private injury.* 
 
 A sheriff cannot file a bill in aid of an execution held 
 by him, such a bill must be filed by the creditor.^ 
 
 § 31. Joinder of Complainants. Several judgment 
 creditors who have recovered judgments in several dis- 
 tinct actions and have had executions simultaneously 
 levied on the same land may join as complainants in a 
 bill in aid of execution.® Co-sureties who have paid the 
 debt may join in a suit for contribution by another co- 
 surety, and for subrogation.'^ 
 
 Tax payers who have a common ground of complaint 
 may join in a bill to restrain injurious action by a city.* 
 
 Husband and wife should join in a bill to vacate a levy 
 or execution against the husband on land held by them 
 as tenants by entireties.® 
 
 Persons who were deceived at the same time by false 
 representations made to them while together as to the 
 stock of a company, and who each purchased a distinct 
 number of shares of stock by reason of such misrepre- 
 sentations may join in a bill to vacate such purchases for 
 fraud." 
 
 Lot owners abutting on a street may join in a bill to 
 restrain the construction of a street railway thereon 
 where the grievance is common to all," and distinct mill 
 
 2— Miller v. Grundy, 13 Mieh. 540 ; 8— Alpena v. Cir. Judge, 97 Mich. 
 
 Steffes V. Moran, 68 Mich. 291; 550; Scofield v. Lansing, 17 Mich. 
 
 Henry v. Ann Arbor E. Co., 116 437; George v. Electric Light Co., 
 
 Mich. 314. 105 Mich. 1. 
 
 3— Atty. Gen. v. Detroit, 26 Mich. 9— Wight v. Eoethlisberger, 116 
 
 263. Mich. 241. 
 
 4 — Atty. Gen. v. Evart-Booming 10 — Sherman v. Am. Stove Co., 85 
 
 Co., 34 Mieh. 462. Mich. 169; Hamilton v. Am. Hulled 
 
 3 — Hackley v. Mack, 60 Mieh. 591. Bean Co., 143 Mieh. 277. 
 
 6— First N. Bank v. Tyler, 55 11— Taylor v. Bay City St. By. 
 
 Mich. 297. Co., 80 Mich. 77; Nieman v. Detroit 
 
 7— Smith V. Eumsey, 33 Mieh. 183. Sub. St. Ey. Co., 103 Mich. 356. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FORMS 25 
 
 owners on the same stream may join in a bill to restrain 
 the unlawful interference with the water restricting their 
 rights to the flowage of the water.^^ 
 
 To avoid a multiplicity of suits a number of taxpayers 
 separately taxed may join in a suit to restraia the collec- 
 tion of an invalid tax.^* 
 
 A wife is properly joined with her husband as a com- 
 plainant in a bill to restrain the collection of an illegal 
 tax on his land occupied by both as a homestead,^* and a 
 husband and wife should be joined as complainants in a 
 bill to protect the homestead from a mortgage not 
 signed by her or to vacate a statutory foreclosure for 
 irregularity. 1^ 
 
 Several distinct property owners may properly join 
 in a bill to abate a nuisance in the vicinity of their dwell- 
 ings where they are similarly affected by the njaisance,'^ 
 and several parties interested in the same way by fraudu- 
 lent and illegal proceedings to extend a drain, may join 
 in a suit to enjoin such proceedings." 
 
 The creditors of a partnership, which has sold its prop- 
 erty to a party who has agreed in writing as a part of the 
 •consideration to pay the partnership debts may join with 
 the partners m a bill against the purchaser to enforce the 
 agreement.^® 
 
 As a general rule complainants may properly join in 
 an injunction suit where the grievance, though not joint, 
 is common and the relief sought by each is the same.^® 
 
 A grantor who covenants against an outstanding mort^ 
 gage which he claims to have paid, may properly join 
 
 IS — CornweU Mf. Co. v. Swift, le-rRobinson v. Baugh, 31 Mich. 
 
 89 Mieh. 503;Middleton v. Booming 290. 
 
 Co., 27 Mich. 533. 17— Zabel v. Hirshman, 68 Mich. 
 
 13— Glee v. Sanders, 74 Mieh. 692 ; 270. 
 
 Scofield V. Lansing, 17 Mich. 437; 18 — Olson v. Morrison, 29 Mich. 
 
 Bristol V. Johnson, 34 Mich. 123. 395. 
 
 14 — Henry v. Gregory, 29 Mich. 68. 19 — Putnam v. Grand Eapids, 58 
 
 15 — Shoemaker v. Gardner, 19 Mich. 416; Turner v. Hart, 32 Mich. 
 
 Mich. 96; Shoemaker v. Collins, 49 123; Foi v. Holcomb, 32 Mich. 494. 
 Mich. 596; Hawes v. Detroit, F. & 
 M. Ins. Co., 109 Mich. 324. 
 
26 stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 
 
 with his grantee in a suit for the cancellation and dis- 
 charge of the mortgage.*" 
 
 But parties cannot join as complainants in a suit 
 wherein they have no common interests.*^ 
 
 §32. Who Are Proper Complainants? The auditor 
 general is the proper complainant in a suit to enforce 
 collection of specific taxes against a railroad company.* ** 
 
 A legatee may maintain a bill to subject land of the 
 testator to the payment of his legacy.** 
 
 A wife may maintain a bill in equity against her hus- 
 band in relation to her separate property without the 
 aid of any statute.** 
 
 Where lands are conveyed in trust to be conveyed to 
 another and the grantee in violation of the trust, conveyed 
 to a different person the original grantor is the proper 
 complainant in a bill to enforce the trust.*^ 
 
 Where a judgment creditor has assigned his demand 
 the assignee is the only person who can bring suit in 
 equity to enforce the judgment.*® 
 
 The assignee of an agreement to have a conveyance set 
 aside on payment of a sum of money should file the 
 bill to enforce the agreement in his own name as 
 complainant.*'' 
 
 A married woman who has bargained with her husband 
 for his title is the proper complainant in a bill to vacate 
 a deed of the land procured by fraud, the husband need 
 not join.** 
 
 A school district may file a bill to enjoin an illegal tax 
 based on a void apportionment of property in the division 
 of the township.* » 
 
 20— Dedrick v. Van Bleyke», 85 24— Markham v. Markham, 4 
 
 Mich. 475. Mich. 305. 
 
 21— Brunner v. Bay City, 46 Mich. 25— Abbott v. Gregory, 39 Mich. 
 
 238; Walsh v, Varney, 38 Mich. 73; 68. 
 
 Youngblood v. Sexton, 32 Mich. 406; 26— Andrews v. Kibbee, 12 Mich. 
 
 Barker -v, Vernon, 63 Mich, 516. 94. 
 
 22— And. Gen. v. Lake George, 27— Brush v. Sweet, 38 Mich. 574. 
 
 etc., K. Co., 82 Mich. 426. 28— Bellair v. Wool, 35 Mich. 440. 
 
 23— Chase v. Warner, 106 Mich. 29— School District v. School Dis- 
 
 695- trict, 63 Mich. 51. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 27 
 
 A single creditor may file a bill to enforce prompt ex- 
 ecution of the trust of an assignee for the benefit of credit- 
 ors, the other creditors need not be joined.'" 
 
 The administrator of a deceased mortgagor, being en- 
 titled by statute to the possession of lands, may file a bill 
 to redeem or to compel release of the mortgage.*^ 
 
 A resident tax payer whose interest is sufficient to 
 confer jurisdiction may maintain a bill to restrain a 
 municipality from making a threatened illegal expendi- 
 ture of the public funds.^^ 
 
 The assignee of property for the benefit of creditors, 
 or the receiver, if a receiver be appointed, is the proper 
 complainant in a suit to attack as fraudulent, convey- 
 ances, mortgages or payments made by the assignor to 
 third persons.'* 
 
 A defendant in foreclosure interested in having the 
 mortgage foreclosed according to its terms is a proper 
 complainant in a bill of review if the decree does not 
 provide for such foreclosure.'* 
 
 § 33. Defendants. Parties whose interests in the sub- 
 ject matter of a suit are identical with those of complain- 
 ant who refuse to join as complainants must be made 
 defendants as all parties interested in the suit must be 
 brought before the court either as complainants or 
 defendants.'^ 
 
 Every person against whom relief is prayed or who 
 
 30— Wilhelm v. Byles, 60 Mieh. 34 — Mickle v. Maxfield, 42 Mich. 
 
 561. 304. 
 
 31 — Enos V. Sutherland, 11 Mich. 35 — Weaver v. Van Aikin, 77 
 
 538. Mich. 588; Benedict v. Beurman, 90 
 
 32 — Savidge v. Spring Lake, 112 Mich. 396 ; Waldo v. Waldo, 52 Mieh. 
 
 Mich. 91; Curteniua v. Hoyt, 37 91 ; Watson v. Lyon Brewing Co., 61 
 
 Mich. 583; Putnam v. Grand Rapids, Mich. 595; Howell v. Merrill, 30 
 
 58 Mich. 416. Mich. 382; McBride v. Mclntyre, 91 
 
 33 — Boot V. Potter, 59 Mich. 498 
 Angel V. Pickard, 61 Mich. 561 
 Scott V. Chambers, 62 Mich. 532 
 Sweetzer v. Higby, 63 Mich. 13. 
 
 Mich. 406. Same Case, 100 Mich. 
 302. 
 
28 stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 
 
 is interested in the subject matter of the suit adversely 
 to the complainants must be made defendants.*^ 
 
 Where the interests of an iof ant are affected he must 
 be made a party and a guardian ad litem appointed.*'' 
 
 The auditor general is a necessary party to a bill filed 
 against a county treasurer to restrain a sale for taxes 
 assessed under the drain law of 1859.** 
 
 § 34. "When it is evident that the persons who may be 
 affected by a decree are so numerous that to require a 
 joinder of all that are interested would virtually deny 
 any remedy their joinder will not be insisted upon.*' 
 
 In proceedings to quiet title persons who have con- 
 veyed all their interests iu the land and cannot be affected 
 by the result are not proper parties defendant.*" 
 
 A township is not a proper party defendant in a bill 
 for relief against an illegal drain tax.*' 
 
 In a bill by certain creditors to attack an assignment 
 as fraudulent, alleging that certain other creditors had 
 been paid in full but not asking that they should refund, 
 
 36 — ^Wineman v. Cir. Judge, 117 
 Mich. 320; Wescott v. Mining Co., 
 23 Mich. 145; Bengley v. Wheeler, 
 45 Mich. 483; Cicotte v. Ancianx, 53 
 Mich. 228; McBride v. Mclntyre, 91 
 Mich. 406; Cook v. Wheeler, Harr. 
 Ch. 443; Pulezer v. Kucharzyk, 116 
 Mich. 92; Burk v. Muskegon Ma- 
 chine Co., 98 Mich. 614; Steele t. Cir. 
 Judge, 109 Mich. 647; Hoppock v. 
 Chambers, 96 Mich. 509; Eiehards 
 T. Arms Shingle, etc. Co., 74 Mich. 
 57; Pierce v. Ware, 94 Mich. 321; 
 Stevens v. Pendleton, 83 Mich. 342; 
 Chapman v. Morgan, 55 Mich. 124; 
 Bailey v. litehfield, 10 Mich. 29; 
 Eogers v. Odell, 36 Mich. 411; Hor- 
 ton V. Hubbard, 83 Mich. 123; 
 Damm v. Moon, 48 Mich. 510 ; Fraser 
 V. Passage, 63 Mich. 551; Haddon 
 V. Hemingway, 39 Mich. 615 
 Thomas v. Gain, 35 Mich. 156 
 Adams t. Aud. Gen., 43 Mich. 453 
 
 Frost V. Leatherman, 55 Mich. 33; 
 Coxe V. Hart, 53 Mich. 557; Stone 
 V. Pontiac, O. & N. E. Co., 139 
 Mich. 265; Houghton v. Life Asso. 
 Co.) 110 Mich. 308 ; Hulbert v. Cycle 
 Co., 107 Mich. 81 ; Jenness v. Smith, 
 58 Mich. 281; Eiehardson v. Eich- 
 ardson, lOO Mich. 364; Buchof v. 
 Le Cour, 9 Mich. 234; Wykes v. 
 Bingleberg, 40 Mich. 567. 
 
 37 — Wight V. Eoethlisberger, 116 
 Mich. 241. 
 
 38— Palmer v. Eich, 12 Mich. 414. 
 
 39— Pettibone v. McGraw, 6 Mich. 
 441; Brewer v. Mich. Salt Assn., 58 
 Mich. 351 ; State Bank v. Hastings, 1 
 Doug. Mich. 225. 
 
 40 — Hammondtree v. Lott, 40 
 Mich. 190; Crooks v. Whitford, 40 
 Mich. 599; Taber v. Shattuck, 55 
 Mich. 370. 
 
 41 — Emerson v. Walker, 63 Mich. 
 483. 
 
stage's miosigan chanceey practice and pobms 29 
 
 it is not necessary to make such other creditors 
 defendants.*^ 
 
 One having an unknown interest not to he affected hy 
 the suit is not a necessary party.** 
 
 The purchaser at an execution sale under a decree for 
 personal liability for deficiency on a foreclosure is not 
 a proper party to a hill of review.** 
 
 The assignor of a judgment is not a necessary party 
 to a creditor's bill by his assignee, but he may be made 
 a party.*® 
 
 Where one of several judgment debtors is insolvent and 
 has no property liable to execution he need not be made 
 a party to a creditor's bill** and the same is true of an 
 insolvent stockholder.*'^ 
 
 Where the intent of a deed in trust is so far carried 
 o«t as to secure to beneficiaries the interests designed 
 for them the grantor need not be made a party to a credit- 
 or 's bill to vacate subsequent conveyances.** 
 
 A paving contractor, under the paving system of De- 
 troit, is not a necessary party to a bill to enjoin an illegal 
 paving assessment.** 
 
 Indorsers, joined with their principals in a judgment, 
 need not be made parties to a bill in aid of execution 
 levied on land of principal alone.®" 
 
 The grantee of one who has conveyed with warranty 
 is not a necessary party to a bill by the grantor to vacate 
 a fraudulent tax purchase affecting his covenant of war- 
 ranty.®* 
 
 A guarantor of the collection of bonds secured by 
 
 42 — Suydam v. Dequindre, Harr. 47 — ^Wilson v. California Win? 
 
 Oh. 347. Co., 95 Mich. 117. 
 
 43 — Holcomb v. Mosher, 50 Mich. 48 — Paton v. Langley, 50 Mich. 
 
 252. 428. 
 
 44 — Gies v. Green, 42 Mich. 107. 49 — Wilkins v. Detroit, 46 Mich. 
 
 45— Morey v. Forsyth, Walk. Ch. 120. 
 
 465; Beach v. White, Walk. Ch. 495. 50— First N. Bank v. Taylor, 55 
 
 46 — Williams t. Hibbard, 1 Mich. Mich. 297. 
 
 446; Eankin v. EothschUd, 78 Mich. 51— Taylor v. Snyder, Walk. Ch. 
 
 10. 490. 
 
30 stage's MICHIGAN CHANCBBY PEACTICE AND FOBMS 
 
 mortgage is not, it seems, a necessary party to the fore- 
 closure of the mortgage, although a proper one.^^ 
 
 § 35. A railroad company in possession of part of 
 land sold on a contract is a proper party to a suit to fore- 
 close the vendor's lien.*** 
 
 A judgment creditor's bill against stockholders in a 
 corporation for unpaid stock should make defendants all 
 solvent stockholders, who have not fully paid for their 
 stock.'* 
 
 A bill by a legatee to subject land to the payment of 
 his legacy need not make other legatees in the same con- 
 dition parties '^ although all such legatees might have 
 joined. 
 
 A husband is not a necessary party to his wife's suit to 
 set aside a deed of the homestead for fraud on her '® nor 
 is the wife a necessary party to the husband's bill to 
 vacate a deed of husband's land obtained by fraud on 
 him.*^ 
 
 A tenant in common with husband and wife who hold 
 by entireties is not a necessary party to a suit to restrain 
 a sale of land on execution against the husband where no 
 levy has been made on the interest of such tenant in 
 common.®* 
 
 When all the tenants in common of a tract of land have 
 conveyed a strip to a railroad company in fee that com- 
 pany is not a proper party to a bill for the partition of 
 all the land except that strip.®* 
 
 In a suit by a purchaser of bank stock to compel the 
 bank to transfer the stock from the registered holder, the 
 registered holder, against whom no relief is prayed, is 
 
 52 — Owen v. Potter, 115 Mieh. 56 — Sanborn v. SaAborn, 104 Mich. 
 
 556; Johnson t. Shepherd, 35 Mich. 180. 
 
 115. 57 — Stevens v. Thompson, 98 
 
 53 — Proctor t. Plnmer, 112 Mich. Mich. 9. 
 
 393. 58— Wight v. Boethlisberger, 116 
 
 54 — Dunston v. Hoptonie Co., 83 Mich. 241. 
 
 Mich. 372. 59— Hooper v. McAllister, 115 
 
 55 — Chase v. Warner, 106 Mich. Mich. 174. 
 695. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FORMS 31 
 
 not a necessary party to a cross bill by the bank to en- 
 force its lien on the stock.®" 
 
 The beneficiaries of a trust are not necessary parties 
 to a suit by the trustee to reduce the trust fund to his 
 possession "^^ but are necessary where the existence or 
 enjojrment of the trust is affected by the bill.*'^ 
 
 Persons who have no interest in the trust property 
 during the life of complainant and are not affected by 
 the alleged breach of trust are not necessary parties to a 
 bill involving such breach of trust.®^ 
 
 A bill by a village corporation to abate an encroach- 
 ment on and obstruction to a public street need not join 
 as defendants other parties who have encroached on the 
 same street, each case must be prosecuted separately.®* 
 
 The auditor general and county treasurer are proper 
 parties in a bill to annul a tax.®^ 
 
 A city clerk alleged to have furnished complainant with 
 a defective certificate as to assessments is not a proper 
 party to a bill to cancel a tax deed.®® 
 
 An attorney for a mortgagee who is charged with active 
 participation in a fraudulent foreclosure to the injury 
 of creditors is a proper but not necessary party to a 
 creditor's bill for an accounting.®^ 
 
 § 36. The wife of a deceased partner is a proper party 
 to a biU for an accounting where real estate is part of 
 the firm assets.®* 
 
 Personal representatives of deceased trustees who re- 
 ceived the fund in which complainant is interested are 
 
 60 — Git. State Bank v. Kalamazoo 64 — Grandville v. Jennison, 84 
 
 Co. Bank, 111 Mich. 313. Mich. 54. 
 
 61 — Snook V. PearsaU, 95 Mich. eS^Lake Superior Ship Canal Co. 
 
 534; Sill V. Ketehum, Harr. Ch. 423; v. Aud. Gen., 79 Mich. 351; Green- 
 
 Morey v.* Forsyth, Walk. Ch. 465j ley v. Hovej^ 115 Mich. 504. 
 
 Adams v. Bradley, 12 Mich. 346; 66— Thompson v. Johnson, 75 
 
 Marljn v. McEeynolds, 6 Mich. 70. Mich. 181. 
 
 62 — Cook y. Wheeler, Harr. Ch. 67— Sweet v. Converse, 88 Mich. 1. 
 
 443. 68 — Free v. Beatley, 95 Mich. 426. 
 
 63 — Chadwiek v. Chadwick, 59 
 Mich. 87. 
 
32 stage's MICHIGAN CHANCEBY PEACTICB AND FORMS 
 
 necessary parties to a bill for aceounting as to such 
 fund.«» 
 
 An executor wlio has settled the estate and turned over 
 the property is not a necessary party to a bill against 
 the testamentary trustee for an accounting.'^" 
 
 Where the complainant's title to land was obtained 
 without warranty the grantee in a conveyance through 
 which he claims is not a necessary party to a bill to cor- 
 rect a mistake in that conveyance J ^ 
 
 A wife who did not join her husband in a land contract 
 is not a proper party to a bill for specific performance' as 
 such specific performance cannot in that case be decreed 
 against herj^ g^^ g, wife in the actual occupation of a 
 homestead is a necessary party to a foreclosure of a 
 mortgage thereon even if it were a purchase money 
 mortgage which she did not sign J* 
 
 § 37. A bill seeking to hold several defendants for sep- 
 arate individual frauds is demurrable for misjoinder.''* 
 
 An objection to the misjoinder of complainants will not 
 be allowed when taken for the first time at the hearing 
 in a case where the court can make a decree doing entire 
 justice to the parties.''^ 
 
 Substitution. A junior mortgagee on payment to the 
 prior mortgagee of the full amount of the decree obtained 
 by him iu a foreclosure suit is entitled to be substituted 
 as complainant in that suit although he was made a de- 
 fendant therein and the decree had been enrolled.''^ 
 
 Intervention. A creditor of an insolvent state bank 
 for which a receiver has been appointed should apply to 
 the court for leave to intervene before filing his petition 
 
 69— Eichardson v. Richardson, 83 Sessions v. Sherwood, 78 Mich. 234; 
 
 Mich. 653. Haviland v. Chase, 116 Micb> 214. 
 
 70— McBride v. Mclntyre, 91 74— Wo6dru£E v. Young, 43 Mich. 
 
 Mich. 406. 548. 
 
 71- Farmers, etc. Bank v. De- 75— Turner v. Hart, 71 Mich. 128; 
 
 troit, 12 Mich. 446. Heed v. Wessel, 7 Mich. 139. 
 
 72— Eichmond v. Robinson, 12 76— Codd v. Cir. Judge, 109 Mich. 
 
 Mich. 193. 120. Ch. Eule 84. 
 
 73— Gibbs v. O'NeU, 85 Mich. 633; 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 33 
 
 therein as a claimanV^ but the court may allow such 
 intervention nunc pro tunc after the petition is filedJ* 
 
 Subpoena. 
 
 § 38. Upon filing the bill the first process issued is the 
 writ of "Subpoena," this is issued by the register of the 
 court as a matter of course upon application of the com- 
 plainant, it cannot regularly be issued until after the 
 bill is filed.i 
 
 Originally this writ commanded the defendant under a 
 certain penalty (sub poena) to appear before the court 
 by a certain day called the return day, and answer the 
 bill. Under the present rules in Michigan a subpoena 
 "shall notify the defendant that a bill of complaint has 
 been filed against him by the complainant (naming him) 
 and that if he desires to defend the same he is required 
 to cause his appearance to be filed or entered in the cause 
 in accordance with the rules and practice of the court, in 
 person or by solicitor within fifteen days after service 
 of the subpoena upon him, and the return day thereof 
 shall be indicated at the foot of the subpoena, and there 
 shall be an underwriting designating against what de- 
 fendant, if any, a personal decree is asked. The business 
 address of the complainant's solicitor shall appear upon 
 the subpoena.^ 
 
 § 39. The Rule Also Designates the Form of the Sub- 
 poena.^ "The names of all the defendants in a cause 
 shall be inserted in the subpoena. It may be served by 
 delivering a copy of the writ subscribed by the com- 
 plaiaant, his solicitor or the officer or person serving the 
 same, and inscribed 'copy' and showing the original, 
 under seal of the court, at the time of such delivery, to 
 the defendant. The service may be on or before the 
 return day mentioned in the subpoena. ' ' * 
 
 77 — Cit. Sav. Bank v. Cit. Judge, 1—1 Dan. Ch. PI. & Pr., 439 note. 
 
 fl8 Mich. 173; Stone v. Cir. Judge, 2 — Chancery Eule 4c. 
 
 105 Mich. 234. 3 — Chancery Eule 4d. 
 
 78 — Stone v. Cir, Judge, 105 4 — Chancery Bule 4b. 
 Mich. 234. 
 
34 stage's MICHIGAN CHANCERY PBACTICB AND FOEMS 
 
 "All process, unless otherwise directed, shall be made 
 returnable on a day certain (except Sunday) either in 
 vacation or in term, not less than ten days from the is- 
 suing thereof; and if the process is not executed on or 
 before the return day further process may be taken out 
 of course as often as may be necessary." ^ 
 
 If there are several defendants residing in different 
 counties in this state the register may issue as many 
 original writs of subpoena as there may be different 
 counties in which the defendants respectively reside and 
 the service of any of such originals will be valid.** 
 
 It is the duty of every register in chancery to furnish 
 to any solicitor when required and upon payment of the 
 fees required by law, blank process to appear and answer 
 bills with the seal of the court impressed thereon and with 
 the name of such process printed or written on the body 
 of the seal.'' 
 
 The subpoena must be "In the name of the people of 
 the State of Michigan ' ' and tested in the name of one of 
 the judges of the court from which it issues.* 
 
 The requirement that the subpoena shall be "In the 
 name of the People of the State of Michigan" being a 
 constitutional provision is jurisdictional and the omis- 
 sion of these words will render the process void.® 
 
 §40. Underwriting. The object of the underwriting 
 is to apprise the defendant that he need not be at the 
 expense of examining the bill to ascertain whether or not 
 a personal decree is sought against him. It is a part of 
 the same instrument as the subpoena and proof of service 
 of the subpoena without mentioning the underwritings, is 
 taken as proof of service of the underwriting as well." 
 
 § 41. A subpoena, or other chancery process, may be 
 served in any part of the state by the sheriff of any county 
 
 5— Chancery Eule 4a. 9— Forbes v. Darling, 94 Mich. 
 
 6— C. h., Sec. 452. 621. 
 
 7— C. L., Sec. 454. 10— Corning v. Burton, 102 Mich. 
 
 8— C. li.. Sec. 9984; Const. Art 86. 
 vii, Sec. 22. 
 
stage's MICHIGAN CHANCERY PRACTICE AND EORMS 35 
 
 or by any other competent person, but the sheriff of any 
 county, other than that in which the suit is commenced, 
 is only entitled to travel fees from his own county seat. 
 He may transmit his return to the register of the court by 
 mail or express." It is the duty of every sheriff to serve 
 all process with all convenient speed after it has been 
 delivered to him for service.^^ It would seem that he is 
 not bound to serve it without payment or tender of his 
 fee for so doing ^^ but unless he actually demands his fee 
 in advance at the time the writ is delivered to him he will 
 be considered to have waived his right to insist on pay- 
 ment in advance." 
 
 § 42. Service may be made on any day except Sunday, 
 or legal holiday, before the return day or on the return 
 day.^^ 
 
 If service is made by a private person the proof must 
 be made by affidavit of the person serving which must 
 set forth fully the time, place and manner of service 
 which affidavit should be annexed to the subpoena.'^ 
 
 Service cannot lawfully be made outside of the state 
 wherein the subpoena was issued, and such service will 
 be set aside on motion.^'' 
 
 § 43. If an injunction is, issued the subpoena should be 
 served at the same time as, or previously to, the service 
 of the injunction, or the injunction will be set aside on 
 motion of the defendant for irregularity and it is said 
 that under some circumstances the defendant might in 
 
 11— C. L., See. 452, also Sec. 430. Estate, 44 Vt. 265; Haas v. Gaddis, 
 
 12— C. L., Sec. 9987. 1 Wash. St., 89, 23 Pac. 1010. 
 
 13_See C. L., See. 11222 aa 15— Johnson v. Shepard, 35 Mich, 
 
 amended by Act No. 181, Pub. Acts 115; C. L., Sec. 5916, Pub. Acts 1909 
 
 of 1903; Jones v. Guptop, 65 N. C. Act No. 246. 
 
 48. 16 — ^Benefit Society v. Circuit 
 
 14_Perkins v. Pitman, 34 N. H. Judge, 97 Mich. 627. 
 
 261; Wait v. Schoonmaker, 15 How. 17— Pratt v. Bank of Windsor, 
 
 Pr. N. T. 460; Carlisle v. Soules Harr. Ch. 254; Dunn v. Dunn, 4 
 
 Paige 425. 
 
36 stage's MICHIGAN CHANCEEY PEACTICB AND POEMS 
 
 that case disregard the injunction '^ and the same would 
 be true in case of ne exeat.^* 
 
 § 44. There is no maximum limit to the time when a 
 subpoena must be made returnable. As the time for the 
 defendant's appearance commences from the date of 
 service, it is advisable to make the return day sufficiently- 
 distant to enable service to be obtained on all the defend- 
 ants. If the subpoena is served personally on all the de- 
 fendants it may be returned as soon as such service is 
 made but if there be any defendant named in the subpoena 
 who cannot be found the return ought not to be made until 
 the return day as until that day has elapsed there is a 
 possibility that the missing defendant may be found.^** 
 
 § 45. It is provided by statute that "When a defend- 
 ant brought into court by writ of habeas corpus or other 
 process, shall neglect or refuse to enter his appearance 
 according to the rules of the court, the court shall order 
 his appearance to be entered, and the suit shall then pro- 
 ceed as if the party had actually appeared." ^^ 
 
 Under the present practice the compulsory bringing of 
 a defendant personally before the court has fallen into 
 disuse and it seems difficult to imagine a case where it 
 would be necessary unless in some divorce cases to en- 
 force payment of alimony which will be treated of later. 
 
 RETURN OF SHERIFF TO SUBPOENA- 
 State of Michigan, ) 
 
 Comity of , I ^*- 
 
 I do hereby certify and return, that on the day of 
 
 • ., A. D. 19. ., atthe of , in said comity, 
 
 1 served the withm subpoena personally on C. D., the defendant 
 therein named, by then and there delivering to the said defend- 
 ant, C. D., a true copy of the within subpoena inscribed "copy" 
 and subscribed , complainant's solicitor, and at the 
 
 18— Sullings V. Goodyear Dental 20— Soule v. Hough, 45 Mich. 418. 
 
 Vulcanite Co. 36 Mich. 313; Peltier 21— Soule v. Hough, 45 Mich. 418- 
 
 V. Peltier, Harr. Ch. 19. c. L., Sec. 455. ' 
 
 19— Peltier v. Peltier, Harr. Ch. 
 19. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 37 
 
 same time and place I showed to the said defendant, C, D,, the 
 original subpoena with the seal of the court impressed thereon. 
 Dated this day of , A. D. 19. .. 
 
 Sheriff of said County. 
 
 My fees, services, etc 
 
 Travel, miles 
 
 Copies 
 
 Total 
 
 AFFIDAVIT OF SERVICE OF SUBPOENA 
 BY PRIVATE CITIZEN. 
 State of Michigan, ) 
 County of , j **• 
 
 A. B., being duly sworn, says that he resides in the 
 
 of , in said county and state, and is over twenty-one 
 
 years of age, and that on the , day of , A. D. 
 
 19 . . , at , he served the within (or, annexed) subpoena 
 
 personally on C. D., the defendant {or, one of the defendants) 
 named therein, by then and there delivering to him, the said G. 
 D., a true copy of the within {or, annexed) subpoena inscribed 
 
 "copy" and subscribed , complainant's solicitor, and 
 
 that at the same time he showed to the said defendant, C. D., the 
 original subpoena, with the seal of the court thereon impressed. 
 
 (Signature.) 
 
 Subscribed and sworn to before me, this day of 
 
 ,A, D. 19,.. 
 
 Notary Public, 
 
 . , county, Michigan, 
 
 My commission wiU expire ...., 19. .. 
 
 Admission of Service of Process. 
 
 § 46. Wlien a defendant accepts or acknowledges in 
 writing the service of any process, pleading or notice and 
 an affidavit is filed therewith showing the genuineness of 
 his signature the same shall have the same effect as a 
 return or other legal proof of service.^ 
 
 The mere written acceptance without proof of the 
 authenticity of the signature is insufficient* Where the 
 
 1 — ^Law Rule 40, applicable to 2 — Johnson v. Dplbridge, 35 Mich. 
 
 Chancery hj Ch. Rule 15. 486, 
 
38 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 acceptance of service is on belialf of a corporation proof 
 of the agency must be filed.^ 
 
 Acceptance of service usually operates only as proof 
 of service at the place where such acceptance is signed, 
 but where the defendant in addition to accepting service 
 expressly waives formal service and consents that the 
 plaintiff may proceed the same as if lawful service had 
 been made the court has jurisdiction although actual 
 service at the place where the acceptance was signed 
 would have been void.* 
 
 Acceptance of due personal service confers jurisdiction 
 although signed in another state. The insertion of the 
 word due evidently shows an intent that the complainant 
 should proceed as if service was made in this state.** 
 
 Compelling Returns of Process. 
 
 § 47. The return of any subpoena, writ or other papers 
 delivered to a sheriff or his deputy for service may be 
 enforced by rule and attachment in the same manner as 
 the return of a capias.^ 
 
 The return of a capias is enforced by entering a rule 
 with the clerk that an attachment issue against the sheriff 
 and the issuance of an attachment accordingly ^ and the 
 bringing of the sheriff into court on such attachment.^ 
 The attachment may be served by the coroner when the 
 sheriff is the party attached.* 
 
 § 48. It is provided by rule that if any sheriff or coro- 
 ner shall fail to return any process to him directed and 
 delivered, on or before the return day therein specified,* 
 any party interested in procuring a return may cause 
 an order to be filed or entered in the book of common 
 orders requiring such officer to return the process within 
 five days after service of notice of such order: and if 
 
 3— Hebel t. Amazon Ins. Co., 33 1— C. L., Sec. 9988; see C, L., 
 
 Mich. 400. See. 10896. 
 
 4— Allured t. VoUer, 107 Mich. 2— C. L., Sec. 10037. 
 
 *76. 3— C. L., Sec. 10038. 
 
 5— Jones ▼. Merrill, 113 Mich. 4— C. L., Sec. 2609. 
 433. 
 
stage's MICHIGAN CHAKCEBY PKACTICE AND FOBMS 39 
 
 such process be not returned within the time specified in 
 such order, on filing with the register an affidavit of the 
 service of such notice, and of the delivery of such process 
 to such officer to be served, the default of such officer in 
 not making such return may be entered and thereupon an 
 attachment may be issued of course against such sheriff 
 or coroner to compel such return.^ 
 
 § 49. And the party injured by such failure to return 
 or by the failure to serve process without reasonable 
 excuse may have an action on the official bond of the 
 officer.® 
 
 Proceedings When a Subpoena Cannot Be Served Upon 
 
 a Defendant By Reason Of His Absence, 
 
 Concealment, or Non-Residence. 
 
 § 50. It is provided by statute that "After the filing of 
 a bill, the circuit judge or circuit court commissioner shall 
 make an order for the appearance of a defendant, at a 
 future day therein to be specified, as hereinafter directed 
 in the following cases. 
 
 First. When the defendant resides out of the state, 
 upon proof by affidavit of that fact. 
 
 Second. When the defendant is a resident of this state, 
 upon proof by affidavit that the process for his appear- 
 ance has been duly issued, and that the same could not 
 be served by reason of his absence from or concealment 
 within this state, or by reason of his continued absence 
 from his place of residence. 
 
 Third. When it cannot be ascertained in what state 
 or county the defendant resides upon proof thereof by 
 affidavit.^ 
 
 The order shall require the defendant to appear and 
 answer as follows : 
 
 First. If a resident of this state in not less than three 
 months. 
 
 5 — Law Eule 43. Made applicable 1 — C. L., See. 485. 
 
 by Ch. Eule 15. 
 
 6— C. L., Chap. 270; see Sec. 9781 
 ct. seq. 
 
40 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 Second. If a resident of some other of the United 
 States, or of one of the territories thereof, or of the 
 British Provinces of North America, in not less than four 
 months. 
 
 Third. If a resident of any other state or country not 
 before mentioned, or if he has departed from his last 
 known place of residence and his residence cannot be 
 ascertained, or if it cannot be ascertained in what state 
 or country he resides, in not less than five months from 
 the date of making such order.^ 
 
 ' ' Such order shall be published within twenty days after 
 it shall have been made, in some newspaper printed in 
 the county, or in such other paper as the court may direct, 
 once in each week for six weeks in succession ; but such 
 publication shall not be necessary in any case in which 
 a copy of such order shall have been served on such 
 absent, concealed or non-resident defendant personally 
 at least twenty days before the time prescribed for the 
 appearance of such defendant. ' ' * 
 
 "The court may, if necessary, by further order, extend 
 the time for the appearance of such defendant: and in 
 that case shall direct thie publication of such further order 
 for as long a time as it shall think proper. ' ' * 
 
 § 51. This statute must be strictly complied with, the 
 rule that all exceptional methods of service and obtaining 
 jurisdiction over persons must be confined to the cases 
 mentioned and must be exercised in the precise manner 
 prescribed by the statute, is well established.^ 
 
 The aiBdavit must show facts making a prima facie 
 case to give jurisdiction to make the order, but the degree 
 of proof is not subject to review.® 
 
 § 52. The affidavit showing the non-residence of the 
 defendant may be filed and the order obtained imme- 
 diately after the filing of the bill and before the return 
 
 2 — C. L., See. 486. Campau v. Cbarbeneau, 105 Mich. 
 
 3— C. L., See. 487. 422. 
 
 4— C. L., Sec. 488. 6— Adams v. Circuit Judge, 98 
 
 5 — Piatt V. Stewart, 10 Mich. 260 ; Mich. 51. 
 Colton V. Eupert, 60 Mich. 318; 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 41 
 
 of the subpoena "not found" ^ but wben the defendant 
 resides in the state and the affidavit shows that the sub- 
 poena cannot be served by reason of his concealment or 
 absence therefrom or continual absence from his resi- 
 dence it is of course necessary to endeavor with all due 
 diligence to serve the subpoena and the affidavit should 
 not be "made until after the return of the subpoena, "that 
 the defendant cannot be found" which return cannot be 
 made until after the return day thereof.* 
 
 § 53. An affidavit showing defendant's residence in 
 another state or country is, from the very nature of the 
 facts to be proved, often such that it can only be made 
 on information and belief. Good practice requires that in 
 such cases the name of the informant of the source from 
 which the information is received, should be stated, not as 
 affording any additional weight to the affidavit as evi- 
 dence but as a safeguard against reckless swearing,® 
 while the statute does not undertake to prescribe what 
 shall be considered ' ' proof, " it is clear that enough should 
 appear to satisfy the judge of the existence of the fact on 
 which the order is based." 
 
 § 54. Where the defendant is a resident of this state 
 the affidavit must state facts and circumstances showing 
 due diligence in the endeavor to obtaia service of the 
 subpoena, and this is not exercised as long as service can 
 be lawfully made." An affidavit which merely states that 
 the affiant cannot find the defendant by reason of his 
 absence from the state or of his concealment therein, is 
 not sufficient. It should state the facts of inquiry and 
 investigation so that the court can see that the conclusion 
 that the defendant cannot be found for the reason stated 
 is a reasonable one.^^ The order is the result of an 
 adjudication that the statutory cause exists.^* 
 
 7— Gordon v. Tyler, 53 Mich. 631. 11— Soule v. Hough, 45 Mich. 418. 
 
 8— Soule T. Hough, 45 Mich. 418. 12— Thompson v. Circuit Judge, 
 
 9— Colton V. Bupert, 60 Mich. 318. 54 Mich. 236. 
 
 10— Adams v. Circuit Judge, 98 13— Adama v. Circuit Judge, 98 
 
 Mich. 51; Pettiford v. Zoellner, 45 Mich. 51. 
 Mich. 358. 
 
42 stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 
 
 § 55. Where there is no personal service the publica- 
 tion of the order is necessary to enable the court to obtain 
 jurisdiction. The publication stands in lieu of personal 
 summons.^* 
 
 The publication must be ia a newspaper published and 
 circulating in the county to be a compliance with the 
 statute. ^^ 
 
 Proof of the publication may be made by the affidavit 
 of the printer or of his foreman or principal clerk an- 
 nexed to a printed copy of the order as published taken 
 from the paper in which it was published and stating 
 the times when and the paper in which such order was 
 published.^® 
 
 Of course the appearance of the defendant by solicitor 
 renders the publication unnecessary.^'^ 
 
 AFFIDAVITS TO OBTAIN ORDER OF PUBLICATION. 
 
 NON-RESIDENT DEFENDANT. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 A. B., Complainant, 1 
 
 C. D. and E. F., Defendants. J 
 County of , ss..: 
 
 A. B., the ahove named complainant, being duly sworn, says 
 that he knows the above named defendant E. F., and kaows 
 where he, the said E. P., resides, and that the said B. F. is not 
 a resident of the state of Michigan, and that the said E. F. re- 
 sides at , in the state of 
 
 Subscribed and sworn to, etc. 
 
 RESIDENCE UNKNOWN. 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 A. B., the above named complainant, being duly sworn, says 
 
 14— King V. Harrington, 14 Mic^^. 16^0. L., See. 10162. 
 
 532 ; Thompson v. Thomas, 11 Mich. 17— Long v. Long, 59 Mich. 296. 
 
 274. 
 
 15 — Dexter v. Cranston, 41 Mich. 
 448. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 43 
 
 that he has made diligent search and inquiry to learn the resi- 
 dence of the above named defendant, E. F., and has been and 
 is unable to ascertain the same; that the last known place of 
 
 residence of the said defendant, B. P., was in , in the 
 
 state of , which place he left over years ago, 
 
 and that since that time this deponent has been unable to obtain 
 any information as to his residence or as to where he now is 
 
 ; and that this deponent has made diligent inquiries 
 
 of the former neighbors and acquaintances of the said defend- 
 ant, E. F., and of all his known relatives and of all other per- 
 sons within his knowledge who would be likely to have any knowl- 
 edge of his place of residence or of where he is now to be found, 
 and that it cannot be ascertained in what state or country the 
 said defendant, E. F., resides. 
 Subscribed and sworn, etc. 
 
 DEFENDANT ABSENT FROM STATE. 
 (Title of court and cause.) 
 County of , ss. : 
 
 A. B., the above named complainant, being duly sworn, says 
 
 that on the day of , A. D. 19 . . , a subpoena 
 
 to appear and answer, was duly issued out of this court in this 
 cause directed to the defendant, above named, the return day 
 
 whereof was the day of , A. D. 19. ., which 
 
 said subpoena was on the day of the issue thereof duly placed 
 
 in the hands of , the sheriff of the said county, to be 
 
 served; that the defendant, C. D., resides at , in this 
 
 state,* and that he was absent from this state at the time of the 
 issuing of the said subpoena and ever since that time the said 
 E. D. has been and still continues to be absent from this state, 
 and that by reason of such absence the said subpoena could not 
 be served on the said C. D., and this deponent has made diligent 
 inquiry as to when the said C. D. is expected to return and has 
 ascertained from such inquiry that he is not expected to return 
 to this state for several months. 
 
 Sworn to and subscribed, etc. 
 
 CONCEALED WITHIN THIS STATE. 
 (As in last form to the * and then proceed:) 
 and that he, the said C. D., could not be found by the said 
 sheriff at his place of residence aforesaid, nor elsewhere, and 
 that the said defendant, C. D., is concealed and hidden within 
 this state, so that process could not be served upon him and that 
 (state facts and circumstances showing concealment). 
 Subscribed and sworn to, etc. 
 
44 stage's michigak chanceby practice and fobms 
 
 UNKNOWN HBIES. 
 State of Michigan. 
 
 The Circuit Court for the County of ; 
 
 In Chancery. 
 A. B., Complainant, 1 
 
 V- [ 
 
 The unknown heirs of C. D., deceased, Defendants. J 
 
 County of , ss. : 
 
 A. B., of (state residence), being duly swom, says 
 
 that he is the complainant in the above entitled cause and that 
 he knew C. D., the person whose unknown heirs are made defend- 
 ants in said cause, in his lifetime ; that the name of the said per- 
 son was C. D. ; that he is now deceased, and that at the time of 
 
 his death he was a resident of the , in the county of 
 
 , state of , and had resided therein continually 
 
 for over years ; that he was unmarried when he died 
 
 and that he left no widow, child or children, his heirs surviving, 
 to the knowledge or belief of this deponent and that this deponent 
 does not know the names of the heirs of the said C. D., deceased ; 
 that he has made diligent search and inquiry to ascertain the 
 names or residence of such heirs or any of them, and cannot 
 ascertain such names or residences or any of them. 
 
 ORDER OP PUBLICATION. 
 (Title of court.) 
 
 At a session of the said court, held at the court house in the 
 
 of , in said county on the day of 
 
 , A. D. 19... 
 
 Present, the Hon , 
 
 Circuit Judge. 
 (Title of cause.) 
 
 In this cause, it appearing by affidavit on file, that the defend- 
 ant, C. D. is not a resident of this state but is a resident of the 
 
 state of (or, of the kingdom of ) {or that the 
 
 defendant, C. D., is a resident of this state, and that a subpoena 
 to appear and answer has been duly issued in this cause, but 
 could not be served upon said C. D. by reason of his continued 
 absence from, {or, concealment within) this state, {or, by reason 
 of his continued absence from his place of residence, {or, that 
 the defendant, C. D., is not a resident of this state and that it 
 cannot be ascertained ia what state or country he, the said C. D., 
 now resides) : 
 
 On motion of , Esq., solicitor for complainant, it is 
 
 ordered that the appearance of the said defendant, C. D., be 
 
 entered in this cause within months from the date of 
 
 this order ; and that in case of his appearance that he cause his 
 answer to the bill of complaint to be filed and a copy thereof 
 served upon the solicitor for the complainant within fifteen days 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 45 
 
 after service on him or his solicitor of a copy of the said bill, 
 and in default thereof that said bill be taken as confessed by the 
 said defendant, C. D. 
 
 And it is further ordered, that the said complainant cause 
 
 this order to be published in the , a newspaper printed, 
 
 published and circulating in said county, and that such pub- 
 lication be commenced within twenty days from the date of 
 this order, and that such publication be continued therein once 
 in each week for six weeks in succession, or that the said com- 
 plainant cause a copy of this order to be personally served on 
 the said defendant, C. D., at least twenty days before the time 
 above prescribed for his appearance. 
 
 Circuit Judge. 
 Examined, countersigned and entered by me : 
 
 Register. 
 
 Solicitor for Complainant. 
 
 UNKNOWN HEIRS. 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 At a session of the said court, held at the court house in the 
 
 of , in said county on the day of 
 
 A. D. 19..: 
 
 Present, the Hon , 
 
 Circuit Judge. 
 A. B., Complainant, 1 
 
 V. [ 
 
 The Unknown Heirs of C. D., Deceased, Defendants. J 
 
 In this cause, it appearing to the satisfaction of the court now 
 here, that the unknown heirs of C. D., late of (state residence), 
 deceased, are necessary and proper parties to the above entitled 
 cause, and the said complainant having made and filed his affi- 
 davit (if any additional affidavit has been filed add and the 
 
 affidavit of ) showing the name of the said deceased, 
 
 C. D., and that the said C. D. is deceased and that the names of 
 such heirs are unknown to the said affiant {or affiants). 
 
 On motion of E. F., solicitor for the said complainant, it is 
 ordered that the appearance of the said defendants, the un- 
 known heirs of C. D., deceased, be entered in this cause within 
 six months * from the date of this order ; and that in case of 
 their appearance, or the appearance of any of them, they re- 
 spectively cause their answer or answers or the answer or an- 
 swers of such of them, as shall have appeared, to the bill of 
 
46 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 complaint in this cause to be filed and a copy thereof to be served 
 on the complainant's solicitor within fifteen days after service 
 on them, or such of them as shall have appeared respectively, or 
 on their respective solicitors, of a copy of the said bill and notice 
 of this order, and that in default thereof the said bill be taken 
 as confessed by them, the said defendants, the unknown heirs 
 of C. D., deceased, respectively. 
 
 And it is further ordered, that within twenty days the said 
 complainant cause a copy of this order to be published in the 
 
 , a newspaper printed, published and circulating in said 
 
 county of , and that such publication be continued 
 
 therein once in each week for at least six successive weeks, or 
 that he cause a copy of this order to be personally served on 
 each of the said unknown heirs of C. D., deceased, at least 
 twenty days before the time above prescribed for their appear- 
 ance. 
 
 Circuit Judge. 
 
 Solicitor for Complainant. 
 
 Business address : 
 
 Countersigned : 
 
 Register in Chancery. 
 
 AFFIDAVIT OF PRINTER OF PUBLICATION OR ORDER. 
 State of Michigan, ) 
 Count of , ] ^^■ 
 
 H. T., of , in said county, being duly sworn, says that 
 
 he is the printer {or, foreman of the printer, or, principal clerk 
 of the printer) of the (name of newspaper), a newspaper 
 printed, published and circulating in the said county of 
 
 , and knows the facts herein stated, and that the notice 
 
 ("chancery order") hereto annexed was taken from the said 
 paper, and that the same was published in the said newspaper 
 
 once in each week for successive weeks, and that the 
 
 first publication thereof was on the day of , 
 
 A. D. 19. ., and the last publication thereof was on the .' 
 
 day of , A. D. 19... 
 
 Subscribed and sworn to before me, etc. 
 
 Taking Bills as Confessed. (Pro Confesso.) 
 
 § 56. By allowing a bill to be taken as confessed a de- 
 fendant is considered as admitting all tbe material allega- 
 tions in the stating part of the bill to be true, and in cases 
 where personal service of the subpoena has been had 
 
stage's MICHlGAli CHANCERY PEACTICE AND FORMS 47 
 
 STicli admission will in most cases authorize the court to 
 make a decree forthwith upon the case made by the bill. 
 
 The statute provides that "In all cases not otherwise 
 provided for, bills shall be taken as confessed and orders 
 and decrees may be made by default, according to such 
 rules as shall be from time to time made." ^ 
 
 It is provided by rule that "If either party shall make 
 default in filing or serving any pleading or notice within 
 the time limited by these rules, or the special order of the 
 court in the cause, the opposite party may have the de- 
 fault entered in the common order book, or filed, in vaca- 
 tion or in term time"^ and that "If the defendant has 
 failed to appear, or to plead, answer or demur, the com- 
 plainant may enter or file an order taking the bill of 
 complaint as confessed, and referring the cause to a 
 commissioner or to the court for proofs." ^ Thus a com- 
 plainant may have an order that the bill be taken as con- 
 fessed by a defendant in cases where such defendant has 
 failed to enter his appearance in the case within fifteen 
 days after he has been personally served with a subpoena, 
 or where after having appeared, he has failed to answer, 
 demur or plead to the bill within fifteen days after service 
 on his solicitor of a copy thereof, or where his demurrer 
 or plea has been overruled and he has failed to answer 
 the bill within the time directed by the court. 
 
 § 57. As this order is made and entered ex parte by 
 the solicitor for the complainant it is necessary that the 
 facts appearing on the records of the court in the case 
 should justify it. The filing of an affidavit stating the 
 factg constituting the default may not be absolutely neces- 
 sary yet it is good practice * especially when the default 
 consists of a failure to answer, plead or demur within the 
 time prescribed after service of a copy of the bill as fre- 
 quently the court could not be otherwise informed of the 
 service of such copy of the bill. 
 
 1— C. Jj., Sec. 455. 4 — Eaton v. Eaton, 33 Mich. 305; 
 
 2 — Chancery Eule 7a. Low v. Mills, 61 Mich. 35. 
 
 3— Chancery Eule 7b. 
 
48 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 § 58. In foreclosure and divorce cases an affidavit of 
 the complainant's solicitor showing the regularity of the 
 proceedings to take the bill as confessed must be filed be- 
 fore the case is brought to a hearing,^ and this practice 
 would be proper, although not necessary in every case 
 taken pro confesso. 
 
 § 59. After an order pro confesso has been entered 
 the complainant may at once proceed with the case; he 
 may take proofs before a circuit court commissioner or 
 before the court according to the order of reference, ^ 
 any, which he has included in his order pro confesso with- 
 out delay or notice, and in cases wherein the allegations 
 of the bill state a complete case and no accounting is 
 necessary and no statute requires that testimony shall 
 be taken, the court may grant a decree upon the bill alone 
 when the defendant has been personally served with the 
 subpoena ; " but where the service is by publication the 
 bill cannot be considered as evidence and proof of the 
 facts therein alleged is required.'' 
 
 §60. No personal decree for the pajrment of money 
 can be made on an order pro confesso based upon an 
 order of publication, and if such a decree be taken it will 
 be void, nothing is bound but the property which is the 
 subject of the bill in such a case.* 
 
 § 61. Allowing a bill to be taken as confessed is an 
 admission by the defendant of every material fact therein 
 stated,* but such admission is limited to the facts actually 
 stated in the bill, and the complainant in taking a decree 
 is strictly confined to the case made by his bill, which can- 
 not be enlarged or changed by proofs." 
 
 5 — Chancery Eules 28d and 29c. Innes v. Stewart, 36 Mich. 285; 
 
 6^-St. Louis Hoop & Stovp Co. v. Booth v. Ins. Co., 43 Mich. 299; 
 
 Danforth, 160 Mich. 226. Colton v. Eupert, 60 Mich. 318. 
 
 7— C. L., Sec. 490; Brown t. 9— Ward v. Jewitt, Walk. Ch. 45; 
 Thompson, 29 Mich. 72; State Tax St. Louis Hoop & Stove Co. v. Dan- 
 Law cases, 54 Mich. 350-415. forth, 160 Mich. 226. 
 
 8— Outhwaite v. Porter, 13 Mich. 10— Hardwick v. Bassett, 25 Mich. 
 
 533; Tyler v. Peatt, 30 Mich. 63; 149; McCabe v. Tarnsworth, 27 
 
.stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 49 
 
 § 62. Amending a bill by inserting material allega- 
 tions after an order pro confesso is entered, vacates the 
 order and the defendant may appear and answer the 
 amended bill." 
 
 § 63. A bill cannot be taken as confessed against an 
 infant defendant,^^ nor against any incompetent person 
 as defendant. 
 
 § 64. Where there are several defendants some of 
 whom have allowed the bill to be taken as confessed while 
 others have answered denying the entire equity of the 
 complainant, and at the hearing the complainant is found 
 to have had no equities, the defense of those defendants 
 who have answered will enure to the benefit of those 
 against whom the bill was taken as confessed,^^ and if the 
 bill shows no equity in complainant it will be dismissed." 
 
 § 65. After the bill has been taken as confessed in a 
 case involving an accounting a defendant may neverthe- 
 less attend the taking of the account and produce evidence 
 as to the amount due ^^ and, if he has appeared, he is 
 entitled to notice of all proceedings even if the bill has 
 been taken pro confesso,^^ and to copies of all pleadings 
 and proceedings taken by the complainant.*'' 
 
 § 66. Setting Aside Default. The court may in its dis- 
 cretion on special motion set aside an order pro confesso 
 for cause shown, on such terms as may be deemed just 
 and proper. But to entitle a defendant to an order set- 
 ting aside his default for want of appearance or answer, 
 he shall proffer a sworn answer showing a defense on 
 
 Mich. 52; MeMahon y. Eooney, 93 Ch. 120; Bushby v. Lecour, 9 Mich. 
 
 Mich. 390; Covell v. Cole, 16 Mich. 234; McCabe v. Farnsworth, 27 Mich. 
 
 223. 53. 
 
 11 — Harris t. Deidrich, 29 Mich. 14 — Voorhies v. Frisbie, 25 Mich. 
 
 366. See Johnson v. Van Velsor, 43 476. 
 
 Mich. 208 and Bowers v. Chippewa 15 — See Mason v. Beynolds, 33 
 
 Circuit Judge, 136 Mich. 367. Mich. 60. 
 
 12— Smith V. Smith, 13 Mich. 258; 16— Ch. Rule 5a; Jenny v. 
 
 Thayer v. Lane, Walk. Ch. 200; O'Flynn, 6 Mich. 215. 
 
 Chandler v. JIcKinney, 6 Mich. 217. 17— C. L., See. 458 and 460. 
 
 13 — Stockton V. Williams, Walk. 
 
50 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 the merits as to the whole or a part of the complainant's 
 case, and in cases where personal service shall have been 
 made upon a defendant, and proceedings taken after de- 
 fault on the strength thereof, his default shall not be 
 set aside unless the application shall be made within six 
 months after the default is regularly entered. And in 
 amy case where personal service shall have been made 
 upon a defendant, an order setting aside his default shall 
 be conditioned upon his payment to the complainant of 
 the taxable costs incurred in reliance on said default, and 
 the court may impose such other conditions as shall be 
 deemed proper.^* 
 
 § 67. It may be said to be a general rule that where 
 the answer proffered shows a valid defence, and excuse 
 is shown for the delay, the court will set aside the default 
 and permit the answer to be filed, on terms, the inclina- 
 tion of the court being always to allow a defendant the 
 benefit of a meritorious defence unless the delay was in- 
 tended to retard the proceedings.^® 
 
 The affidavit or petition must show a reasonable excuse 
 for the default,*" and must be sworn to by the defendant 
 himself or some good reason must be given for its verifi- 
 cation by another.*^ The answer produced must show a 
 meritorious defence to the bill, in whole or in part."* 
 
 When the application to vacate the order is made before 
 a decree is entered it may be by special motion supported 
 by affidavits as provided by the rule above mentioned. 
 When a decree has been entered, and, in cases where the 
 order is for want of appearance, even after enrolhnent 
 a petition is the proper practice.** In cases where the de- 
 ls— Ch. Eule 7d. 21— Bank of Mich. v. Wiffiams, 
 19 — Smith V. Saginaw City Bank, Harr. Ch. 219. 
 Harr. Ch. 426 ; Stockton v. WilUams, 22— Mills v. McLeod, 86 Mich. 
 Harr. Ch. 241; Graham v. Elmore, 290; Stockton v. WiUiams, Harr. 
 Harr. Ch. 265; Hart v. Lindaay, Ch. 241 ; Long v. Long, 59 Mich. 296. 
 Walk. Ch. 72; Cook v. French, 96 23— Hart v. Lindsay, Walk. Ch. 
 Mich. 525; Benedict v. Aud. Gen., 72; Miekle v. Mansfield, 42 Mich. 
 104 Mich. 269. 304; Benedict v. Aud. Gen., 104 
 20— Stradley v. (Sr. Judge, 96 Mich. 269; Low v. Mills, 61 Mich. 
 Mich. 287; Long v. Long, 59 Mich. 35. 
 296. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 51 
 
 f endant has appeared, a decree can only be set aside after 
 enrollment by a bill of review.** 
 
 § 68. The setting aside of an order pro eonfesso or of 
 a decree founded thereon rests in the sound discretion of 
 the court. No general rule can be laid down on this sub- 
 ject but each application must necessarily rest on its own 
 merits.*" 
 
 § 69. The application must be made promptly, where 
 the defendant delays until after the time for appeal had 
 elapsed to move to vacate a decree for irregularity the 
 application will be denied unless it be shown that the de- 
 lay was excusable.''^ 
 
 § 70. A decree by default may be set aside on motion 
 without a petition where the facts upon which the motion 
 is based appear by the record of the case-*^ 
 
 When there are joint defendants some of whom have 
 allowed the bill to be taken as confessed and others have 
 answered no decree can be taken against those who have 
 suffered default until the final hearing of the case against 
 all the defendants when all the parties in interest are 
 before the court.''^ 
 
 The court may open a decree taken by default, but not 
 enrolled, on petition showing an adequate excuse, and due 
 diligence, even though third parties may have purchased 
 the property in reliance on the decree.''* 
 
 §71. When a Defendant has been brought in by 
 publication. It is provided by statute that, in cases 
 where a decree pro eonfesso has been taken against a 
 
 24 — Maynard v. Pereault, 30 Mich. 27 — Graham v. Elmore, Harr. Ch. 
 
 160; Reynolds v. Reynolds, 116 Mieh. 265. 
 
 378; Cook V. French, 96 Mieh. 525. 28 — Graham v. Elmore, Harr. Ch. 
 
 25 — ^Russell v. White, Walk. Ch. 265. 
 
 31; Brewer v. Dodge, 28 Mieh. 359; 29— Benedict v. And. Gen., 104 
 
 Graham v. Elmore, Harr, Ch. 265; Mich. 269; Cook v. French, 96 Mich. 
 
 Low V. Mills, 61 Mich. 35; Benedict 525. See Carlisle v. Carlisle, 96 
 
 V. And. Gen., 104 Mich. 269. Mich, 128. 
 
 26— Long V. Long, 59 Mich. 396. 
 
52 stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 
 
 defendant brought in by publication without personal 
 service or appearance. "If the defendant against whom 
 such decree shall have been made, unless such decree shall 
 be a decree of divorce, or his representatives, shall after- 
 ward appear and petition to be heard, the party so peti- 
 tioning shall be admitted to answer the complainant's 
 bill upon paying or securing to be paid such costs as the 
 court shall adjudge, and the suit shall then proceed in like 
 manner as if such defendant had appeared in due season 
 and no decree had been made. ' ' ^^ 
 
 § 72. The right of a defendant or his representatives 
 to appear and answer under this section is absolute and 
 cannot be opposed by affidavits tending to show he has no 
 equity. His equities can only be determined on a hearing 
 on the merits.^^ The effect of allowing such a defendant 
 to answer is to vacate the decree as to him leaving it to 
 stand as against the other defendants ; ^^ and such an ap- 
 pearance waives all objections on account of defects in 
 the proceedings by publication.^^ 
 
 § 73. " The defendant or his representatives must so 
 appear within one year after notice in writing of the de- 
 cree shall have been given him or them, and within seven 
 years after the making of the decree when such notice 
 shall not be given." ^* 
 
 §74. "If the defendant or his representatives shall 
 not so appear within one year after such notice shall have 
 been given, and if not given, before the expiration of 
 seven years after the making of the decree, the court shall 
 then, by order, confirm the decree against the defendant, 
 and against all persons claiming under him by virtue of 
 any act subsequent to the commencement of the suit, and 
 may make such further order in the premises as shall be 
 
 30— C. L., See. 496. 514; State Tax Law Gases, 54 Mioh. 
 
 31 — McDonald v. McBonald, 45 350. 
 
 Mich. 44. 34— G. L., See. 497; King v. Har- 
 
 32— Griggs V. Det. & Mil. By. Co., rington, 14 Mich. 532; Colton T. 
 
 10 Mich. 117. Rupert, 60 Mieh. 318. 
 
 33— Stone v. Welling, 14 Mieh. 
 
stage's MICHIGAN CHANCEKY PRACTIGE AND FORMS 53 
 
 just and reasonable.'"' This order of confirmation is a 
 matter of right and not of discretion, its omisson will not 
 be material.*® 
 
 § 75. If the bill shall have been filed to procure tiie 
 foreclosure or satisfaction of a mortgage, if the defendant 
 at any time before the sale of the mortgaged premises 
 shall appear and pay to the complainant such costs as the 
 court shall award, the court shall stay the sale, and the 
 same proceedings shall be thereafter had as if the de- 
 fendant had been served with process and had regularly 
 appeared.^^ 
 
 Under this section the costs are the only matter in the 
 discretion of the court, on payment of them any defendant 
 has a right to interpose a defence, it is not limited to the 
 mortgagor and makes no distinction between the mort- 
 gagor and the other defendants and puts the defendant 
 on precisely the same footing as if, so far as he is con- 
 cerned, no decree had ever been made.*^ 
 
 §76. No sale and conveyance regularly made under 
 the preceding provisions, upon a bill for the foreclosure 
 and satisfaction of a mortgage, shall be affected or 
 prejudiced by the appearance of the defendant within one 
 year, or the seven years hereinbefore specified, nor by 
 any other proceeding; but such defendant or his repre- 
 sentatives may at any time within seven years after the 
 decree ordering such sale, file a bill against the complain- 
 ant or his representatives to account for all moneys re- 
 ceived by him or them, by virtue of such decree, over and 
 above the amount justly due on the mortgage and costs of 
 suit; and the court shall proceed on such bill according 
 to the equity of the case.** 
 
 35 — C. L., Sec. 498. 305; Hardwick v. Bassett, 25 Mich. 
 
 36 — King V. HarriDgton, 14 Mich. 149. 
 532; Colton v. Rupert, 60 Mich. 318. 39— C. L., Sec. 501. See MeVieker 
 
 37 — C. L., Sec. 500. v. Filer, 31 Mich. 304; Colton v. 
 
 38 — ^Bailey v. Murphy, Walk. Ch. Bupert, 60 Mich. 318. 
 
54 stage's MICHIGAN CHANCERY PBAOTICE AND FOBMS 
 
 COMMON ORDERS PRO CONFESSO. 
 
 REFERENCE TO CIRCUIT COURT COMMISSIONER. 
 (Title of court and cause and caption.) 
 
 In this cause, on filing due proof of personal service of the 
 subpoena issued in this cause upon the defendant, C. D., on or 
 before the return day thereof, and more than fifteen days hav- 
 ing elapsed since the time of such service, and the said defend- 
 ant, C. D., not having appeared in the said cause as shown by 
 the records and files in this court and the afBdavit of N. 0. on 
 file: 
 
 On motion of N. 0., Esq., solicitor for the complainant, it is 
 ordered that the bill of complaint filed in this cause be, and 
 the same hereby is, taken as confessed by the said defendant, 
 C. D., and that it be referred to * J. K., Esq., a circuit court 
 
 commissioner of said county of , to- take proofs of the 
 
 facts and circumstances stated in said bill, and that the said 
 circuit court commissioner report the same, with his opinion 
 thereon, to this court with all convenient speed. 
 
 N. 0., 
 Solicitor for Complainant'. 
 
 "WITH REFERENCE TO COURT. 
 (As in preceding order to the*: then proceed:) this court to 
 take proofs of the facts and circumstances stated in said bill, 
 (in foreclosure cases after the last clause insert, and to com- 
 pute and ascertain the amount due to the complainant upon the 
 note (or bond) and mortgage {or, mechanic's lien) mentioned 
 in the said bill). 
 
 (If there are prior incumbrancers who are made defendants, 
 add), and the amount due to each of the defendants respectively 
 who are prior incumbrancers of the mortgaged premises men- 
 tioned in the said bill. 
 
 Y DEFENDANT BROUGHT IN BY PUBLICATION. . 
 
 A (Title of court and cause and caption.) 
 
 On filing due proof of publication of notice {or, of personal' 
 service upon the defendant, C. D., of a copy) of the order re- 
 quiring the defendant, C. D., to appear and answer the bill of 
 
 complaint filed in this cause within months from the 
 
 date of such order, and the time limited in the said order for 
 the entering of such appearance having expired, and on filing 
 due proof that the said defendant, C. D., has not appeared in 
 the said cause : 
 
 On motion of N. 0., solicitor fpr the complainant, it is ordered 
 that the said bill of complaint be, and the same hereby is taken 
 as confessed by the said defendant, C. D., and that it be referred 
 to J. R., Esq., a circuit court comimissioner of the said county 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 55 
 
 of , to take proofs of the facts and circumstances stated 
 
 in the said bill (if a foreclosure bill add), and to compute and 
 ascertain the amount due to the complainant, upon the note and 
 mortgage {or, mechanic's lien, etc.) mentioned in the bill; (if 
 prior incumhraiicers are made defendants, add further), and the 
 amount due to such of the defendants respectively who are prior 
 incumbrancers of the mortgaged premises mentioned in the said 
 bill of complaint, and that the said circuit court commissioner 
 report the same with his opinion thereon to this court with all 
 convenient speed. 
 
 N. 0., 
 Solicitor for Complainant. 
 
 [The reference may be "to this court" instead of to a circuit 
 court commissioner, in which case the direction to report to this 
 court will be omitted.] 
 
 AFFIDAVITS OF REGULARITY. 
 FORECLOSURE. 
 (Title of court and cause.) 
 County of , ss. : 
 
 N. O., of , being duly sworn, says that he is the solic- 
 itor for the complainant in the above entitled cause, and that 
 
 the bill of complaint in the said cause was filed on the 
 
 day of , A. D. 19 . . , for the purpose of foreclosing a 
 
 certain indenture of mortgage made by the defendants, C. D. 
 
 and N. D., his wife, to the complainant {or, to one and 
 
 duly assigned to the complainant) upon certain real estate, sit- 
 uate in the county of , Michigan, and that the said 
 
 bill has been taken as confessed by the defendant or defendants 
 (naming him or them) for want of an appearance after due 
 personal service upon him (or, them and each of them) of a sub- 
 poena to appear and answer issued in this cause {or, after due 
 publication of notice of an order of this court requiring the said 
 defendant {or defendants, naming him or them), an absentee, 
 {or, as the case may be) to enter his appearance in this cause 
 
 within months), and that all the proceedings to take 
 
 the said bill as confessed have been regular and according to the 
 rules and practice of this court. 
 
 N. 0. 
 
 Subscribed and sworn to, etc. 
 
 (If the defendant has appeared and failed to answer, instead 
 of "for want of an appearance, etc.," say, "for want of an 
 answer, the said defendant, C. D., having appeared in said cause 
 and having failed to demur, plead or answer to the said bill 
 within fifteen days after due service on his solicitor of a copy 
 of the said bill, and that all the proceedings/' etc.) 
 
56 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 AS TO SEVERN DEFENDANTS. 
 (Title of court and cause.) 
 County of , ss. : 
 
 N. 0., of , being duly sworn, says that he is the 
 
 solicitor for the complainant in the above entitled cause, and 
 that the bill of complaint in the said cause was filed on the 
 day of , A. D. 19 . . , for the purpose of fore- 
 closing a certain indenture of mortgage made by the defend- 
 antSj C. D. and M. D., his wife, to the complainant (or, to one 
 J. K. and duly assigned to the complainant) upon certain real 
 
 estate in the county of , Michigan, and that the said 
 
 bill has been taken as confessed by the said defendants, C. D. 
 and M. D., for want of an appearance after due personal service 
 upon each of them of a subpoena to appear and answer issued 
 in the said cause, and that the said bill has been taken as con- 
 fessed by the said defendant, E. F., for want of an appearance 
 as an absentee (or, non-resident, or as the case may be) after 
 due publication of notice of an order of this court, requiring tte 
 said defendant, E. F., to enter his appearance in the said cause 
 
 within months from the date of the said order, and 
 
 that the said bill has been taken as confessed by the said defend- 
 ant, G. H., he having appeared in said cause and having failed 
 to demur, plead or answer to the said bill within fifteen days 
 after due service on his solicitor of a copy of the said bill, and 
 that all and singular the proceedings to take the said bill as 
 confessed against each of the said defendants, C. D., M. D., E. F., 
 and G. H., respectively, have been regular and according to the 
 rules and practice of this court. 
 
 N. 0. 
 
 Subscribed and sworn to before me, this day of 
 
 ,A. D. 19... 
 
 Y 
 
 Notary Public, 
 
 County Michigan. 
 
 My commission will expire , 19. .. 
 
 DIVOKCE. 
 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 N. 0., of , being duly sworn, says that he is the 
 
 solicitor for the complainant in the above entitled cause, and 
 that the bill of complaint in the said cause was filed on the 
 day of , A. D. 19 . . , for the purpose of obtain- 
 ing a decree of divorce from the bonds of matrimony (and the 
 custody of minor children, and for alimony), and that the said 
 bill has been taken as confessed by the defendant for want of 
 an appearance, after due personal service upon him of a sub- 
 poena to appear and answer {or, after due publication of notice 
 
stage's MICHIGAN CHANCBBY PRACTICE AND FOBMS 57 
 
 of an order of this court requiring the said defendant to enter 
 
 his appearance in this cause within months), and that 
 
 all the proceedings to take the said bill as confessed have been 
 regular and according to the rules and practice of this court. 
 
 N. 0. 
 Subscribed and sworn to, etc. 
 
 [Michigan Chancery Rule 29 (c), see appendix.] 
 (If the defendant has appeared and failed to answer, instead 
 of, for want of an appearance, etc., say, for want of an answer, 
 the said defendant having appeared in said cause, and having 
 failed to demur, plead or answer to the said bill within fifteen 
 days after due service on his solicitor of a copy of the said bill, 
 and that all the proceedings, etc.) 
 
 AFFIDAVIT OF NON-APPEARANCE OF DEFENDANT. 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 N. 0., of , the solicitor for the complainant in the 
 
 above entitled cause, being duly sworn, says that a subpoena 
 issued out of this court in this cause was personally served on 
 
 the defendant, C. D., on the day of , A. D. 
 
 19 . .., as appears by the proof of service thereof on file, and 
 that although more than fifteen days have elapsed since such 
 service this deponent has not received any notice that an appear- 
 ance has been entered in this cause by or on behalf of the said 
 defendant, C. D., and that the said defendant, C. D., has not 
 caused his appearance to be entered in this cause, as appears 
 by the records and files of this court in this cause. 
 
 N. 0. 
 
 Subscribed and sworn to, etc. 
 
 AFTER PUBLICATION. 
 Title of court and cause.) 
 
 County of , ss. : 
 
 N. 0., of , the solicitor for the complainant in the 
 
 above entitled cause, being duly sworn, says : that although the 
 order heretofore made by this court that the defendant, C. D., 
 should cause his appeai'ahce to be cDtered in this cause within 
 
 months from the date thereof, has been duly published 
 
 as directed by the said order, as appears by the affidavit of 
 
 on file, and although more than months have 
 
 elapsed since the said order was made, this deponent has not 
 received any notice that an appearance has been entered in this 
 cause by or on behalf of the said defendant, C. D., nor has the 
 appearance of the said defendant, C. D., been entered therein, 
 
58 stage's MICHIGAN OHANCEBY PBACTIOE AND FORMS 
 
 as appears by the records and files of this court, or to the knowl- 
 edge or belief of this deponent. 
 
 N. 0. 
 Subscribed and sworn to, etc. 
 
 AFFIDAVIT DEFENDANT HAS FAILED TO ANSWER. 
 (Title of court and cause.) 
 County of , ss. : 
 
 N. 0., of , being duly sworn, says that he is the solic- 
 itor for the complainant in the above entitled cause, and that on 
 or about the . , day of , A. D. 19 . . , the defend- 
 ant, C. D., entered his appearance therein by P. Q., his solicitor, 
 and demanded a copy of the bill of complaint, and that after- 
 wards and on the day of A. D. 19 . . , this 
 
 deponent served a copy of the bill of complaint in this cause 
 on the said P. Q., by delivering the same to him personally at 
 
 , and that, although ijiore than fifteen days have elapsed 
 
 since such service, this deponent has not received any copy of, 
 nor any notice of the filing of, any demurrer, plea, or answer 
 to the said bill of complaint by or on behalf of the said defend- 
 ant, C. D., add that the said defendant, C. D., has not filed any 
 demurrer, plea or answer to the said bill, as appears by the 
 records and files of this court in this cause. 
 
 N. 0. 
 
 Subscribed and sworn to, etc. 
 
 COMMON ORDERS, PRO CONFESSO AND REFERENCE. 
 
 DEFAULT OF DEFENDANT FOR NOT ANSWERING. 
 (Title of court and cause and caption.) 
 
 In this cause the defendant, C. D., having entered his appear- 
 ance therein by P. Q., his solicitor, and on filing due proof of 
 due service of a copy of the bill of complaint in this cause on 
 said P. Q., solicitor for the said defendant, C. D., on the 
 
 day of , A. D. 19 . . , and more than fifteen 
 
 days having elapsed since suoh service, and on filing due proof 
 that the said defendant, C. D., has not filed any demurrer, plea 
 or answer to the said bill of complaint : 
 
 On motion of N. 0., solicitor for the complainant, it is ordered 
 that the said bill of complaint be, and the same hereby is taken 
 as confessed by the said defendant, C. D., for want of an answer, 
 and that it be referred, etc. 
 
 IN DIVORCE. 
 State of Michigan. 
 
 In the Circuit Court for the County of : 
 
 In Chancery. 
 At a session of said court, held at the courthouse in the 
 
stage's MICHIGAN CHANCEEY PEACiaCE AND FORMS 59 
 
 of , in said county, on the day of 
 
 ,A. D. 19... 
 
 Present : Hon 
 
 Circuit Judge. 
 , Complainant, ] 
 
 \ 
 , Defendant. J 
 
 In this cause, it appearing that a subpoena has been issued 
 and returned, and filed herein, and by the return of the sheriff 
 
 of the county of endorsed upon the said subpoena, 
 
 that the same was duly served upon the said defendant person- 
 ally before the return day thereof, and it also appearing by the 
 affidavit of X. Y., filed herein, that no appearance by, or on 
 behalf of said defendant has been entered herein, and more than 
 fifteen days having elapsed since the service of the said subpoena 
 upon said defendant, and said defendant not having appeared 
 herein, on motion of X> Y., solicitor for complainant, it is 
 ordered that the appearance of the said defendant be, and the 
 same is hereby entered herein, by the register of this court, pur- 
 suant to the rules and practice thereof, and on further motion, 
 it is ordered that the bill of complaint filed in this cause be 
 and the same is hereby taken as confessed by the said defendant. 
 And on further motion of said solicitor, it is ordered that said 
 
 bill be, and the same is hereby referred to , Esq., one 
 
 of the circuit court commissioners of said county, to take proofs 
 of all the material facts and circumstances charged in said bill, 
 and that said commissioner, with all convenient speed, report to 
 this court said proofs, together with all other matters hereby 
 referred to him and his opinion thereon. 
 
 Complainant's Solicitor. 
 (The reference may be to the court and this has become the 
 Bsual practice.) 
 
 PETITION OF DEPENDANT NOT PERSONALLY 
 
 SERVED TO VACATE DECREE. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 A. B., Complainant, ] 
 V. } 
 
 C. D., Defendant. J 
 
 To the Circuit Court for the County of : In Chancery. 
 
 The petition of the above named defendant, C. D., of (state 
 residence), respectfully shows unto the court: 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19 . . , the above named complainant, A. B., 
 
 exhibited his bill of complaint in this court against your peti- 
 
60 stage's MICHIGAN OHANOEEY PEACTICB AND FORMS 
 
 tioner as defendant in this suit and, on making af&davit of the 
 (non-residence) of your petitioner, procured an order to be 
 made that your petitioner enter his appearance in this cause 
 
 within months from the date thereof, and for the 
 
 publication of a notice of such order in the , a news- 
 paper printed and published and circulating in said county of 
 
 , as appears by the records and files of this court, 
 
 whereto reference is prayed. 
 
 2. And that afterwards and on the day of , 
 
 A. D. 19 . . , at the term of this court for the year 
 
 19.., a decree was rendered in this cause against your peti- 
 tioner as such defendant upon the said bill of complaint, taken 
 as confessed by this defendant for want of an appearance as 
 by the record and proceedings of this court in this cause, whereto 
 reference is prayed, will fully appear. 
 
 3, Your petitioner further shows unto the court that he has 
 not been served with any subpoena issued in the said cause, and 
 has not been served with the said order of appearance and pub- 
 lication, nor with any copy or notice thereof, and that he has 
 received no nptice in writing of the said decree (or if notice in 
 writing of the decree has ieen served, instead of the last clause 
 insert, and that notice in writing of the said decree was served 
 
 on your petitioner on the day of , A. D. 19 . . , 
 
 and not before that day, and that one year has not elapsed since 
 the time of such service), and that seven years have not elapsed 
 siiice the making of such decree, and that your petitioner first 
 learned of the commencement of such suit on or about the 
 day of , A. D. 19... 
 
 L And your petitioner now appears in this honorable court 
 in this cause and prays to be heard touching the matters in 
 the said bill contained, and to be admitted to answer the said 
 complainant's said bill upon paying, or securing to be paid, 
 such costs as this court shall adjudge, and he hereby offers to 
 pay such costs or to secure the payment thereof in such manner 
 as this court shall direct; and your petitioner further prays 
 that the said decree may be vacated as to your petitioner, this 
 defendant, and that he may be permitted to file his answer to 
 the said bill (which answer is herewith presented), and that this 
 suit then proceed in like manner as if your petitioner had ap- 
 peared in due season and no decree had been made ; pursuant to 
 the statute in such case made and provided. And your peti- 
 tioner presents herewith his answer to the said bill. 
 
 II. And that your petitioner may have such further or other 
 relief as shall be agreeable to equity and good conscience. 
 
 And your petitioner will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor for Petitioner and of Counsel.) 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 61 
 
 State of Michigan, ) 
 
 County of , J **• 
 
 On this day of , A. D. 19. ., before me, a 
 
 (notary public) of, in and for said county, personally appeared 
 the above named petitioner, C. D., and made oath that he has 
 read {or, heard read) the foregoing petition by him subscribed 
 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 
 information and belief, and as to those matters he believes it to 
 be true. 
 
 Notary Public, 
 
 county, Mich. 
 
 My commission will expire , 19 . . . 
 
 ORDER THAT DECREE BE VACATED. 
 
 AS TO DEFENDANT NOT PERSONALLY SERVED 
 
 (Title of court.) 
 (Title of cause.) 
 (Cwption.) 
 
 In this cause on reading and filing the petition, duly verified, 
 of the above named defendant, CD., praying, for reasons therein 
 stated, among other things, that the decree heretofore entered in 
 this cause be vacated as to him, and that he, the said defend- 
 ant, C. D., may be permitted to file his answer to the bill of 
 complaint in this cause, and that this cause then proceed in like 
 manner as if the said defendant had appeared in due season and 
 no decree had been made against him therein. 
 
 On motion of , Esq., solicitor for the said defendant, 
 
 C. D., it is ordered that the prayer of the said petition be 
 granted, and that upon the payment by the said C. D. (state 
 the condition on which the order is granted), the decree hereto- 
 fore made in this cause be, and the same hereby is vacated and 
 set aside as to the said defendant, C. D., and that he, the said 
 defendant, CD., have leave to file his answer, presented with 
 his said petition, to the bill of complaint in this cause, and that 
 this cause then proceed as to the said defendant as if he, the 
 said defendant, had appeared in said cause and filed his said 
 answer in due season. 
 
 Circuit Judge. 
 
 MOTION OP DEFENDANT TO VACATE DEFAULT. 
 (Title of court and cause.) 
 
 Of the , day of , A. D. 19. .. 
 
 Now comes the said defendant, C. D., by his solicitor, 
 
62 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 and moves the court now here that the default of this defend- 
 ant, C. D., and the order heretofore entered in this cause that 
 the bill of complaint be taken as confessed by this defendant, 
 C. D., and all proceedings subsequent thereto as to this defend- 
 ant, C, D., be vacated, set aside and held for naught, and that 
 this defendant, C. D., have leave to file his answer on oath to 
 the said bill of complaint; for the reason that this defendant 
 has, as he is advised, a good and valid defence to the matters 
 stated and charged in the said bill of complaint (or to a part 
 thereof) on the merits thereof, as set forth in his said answer 
 now produced and proffered to be filed, and that (set forth facts 
 showing the default was not caused by negligence and excusing 
 the default). -n 
 
 This motion is founded on the affidavit of the said defend- 
 ant, C. D., on file, and on his sworn answer now proffered to 
 the court to be filed, and on the records and files of this court 
 in this cause. 
 
 S. T., 
 Solicitor for Defendant, C. D. 
 
 Business address 
 
 AFFIDAVIT IN SUPPORT OF MOTION 
 TO VACATE DEFAULT. 
 (Title of court and cause.) 
 County of , ss. : 
 
 C. D., the defendant {or, one of the defendants) in the above 
 entitled cause, being duly sworn, says that it appears by the 
 records and files in this cause that the default of this defendant 
 for want of an appearance {or, answer) was entered therein 
 on the day of , A. D. 19. ., and this depo- 
 nent further says that (state facts showing absence of negli- 
 gence and in excuse of the default). 
 
 And this deponent further says that he is advised that he has 
 a defense on the merits thereof to the whole {or, to a part) of 
 the complainant's ease stated in his said bill, and he says that 
 the facts constituting such defense are as follows: (state the 
 facts constituting the defense), as stated in the answer of this 
 defendant on oath herewith proffered, and this deponent there- 
 fore prays that the said default and the order pro confesso 
 thereon entered may be vacated and set aside, and that he may 
 Be permitted tto file his said answer herewith exhibited and prof- 
 fered, and which he now offers to file in this cause. 
 
 C. D. 
 
 Subscribed and sworn to, etc. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 63 
 
 ORDER VACATING DEFAULT AND ORDER 
 PRO CONFESSO. 
 (Title of court and caption.) 
 (Title of cause.) 
 
 This cause having come on to be heard upon the motion of 
 S. T., Esq., solicitor for the defendant, C. D., to set aside the 
 default and order pro confesso hereinbefore entered and all 
 proceedings subsequent thereto as to the said defendant, C. D., 
 and upon reading the affidavit of the said C. D. in support 
 of the said motion and the proposed answer on oath of the 
 said C. D. by him proffered to be filed in this cause, and the 
 court having heard the allegations and arguments of the counsel 
 for the complainant in opposition thereto, and being fully ad- 
 vised in relation thereto, and it appearing to the court that 
 (state the facts showing absence of negligence-), and also that 
 the matters of fact stated in the said sworn answer constitute 
 a defense to the whole {or, a part) of the case made by the 
 complainant in and by his said bill against the said defendant, 
 C. D., on the merits thereof: Now, therefore, it is hereby or- 
 dered and adjudged, and the court now here doth order and 
 adjudge that the said default and order pro confesso, and all 
 proceedings subsequent thereto as to the said defendant, C. D., 
 be, and the same hereby are vacated and set aside, upon (state 
 terms such as payment of costs, etc.), and that the said defend- 
 ant, C. D., thereupon have leave to file his said sworn answer, 
 and that thereafter such proceedings be had in this cause as if 
 the said answer had been seasonably filed. 
 
 Circuit Judge. 
 
 The Defence to a Suit in Chancery. 
 
 § 77. If a defendant desires to defend a suit brought 
 against him in chancery, or to have notice of the pro- 
 ceedings therein his first step after being served vs^ith the 
 subpoena will be to appear in the cause. This is done by- 
 causing notice of his appearance to be filed or entered in 
 the office of the register of the court within fifteen days 
 after service of the subpoena and within the same time 
 serving notice of such appearance on the solicitor for the 
 complainant. Such appearance whether followed by 
 answer or not entitles the defendant to notice of all future 
 proceedings in the case. Such notice shall be entitled in 
 the cause and addressed to the complainant's solicitor 
 and may be in substance as follows : 
 
64 stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 
 
 (Title of Court and Cause.) 
 
 To Esq. Solicitor for Complainant. 
 
 Sir : Please to take notice that the defendant 
 
 appears in the above entitled cause and demands a copy of the 
 Bill of Complaint therein. Yours, etc., 
 Dated ,19... 
 
 Business Address Solicitor for Defendant.^ 
 
 §78. The complainant shall cause a copy of the bill 
 of complaint to be served on the solicitor so appearing 
 for the defendant within fifteen days after receiving 
 such notice and demand (but he shall not be required to 
 serve more than one copy of the bill on any one solicitor, 
 although such solicitor may appear at different times for 
 more than one defendant and in such case service of a 
 copy of the bill shall be deemed to have been made on 
 the fifteenth day after receiving a subsequent notice of 
 appearance).* 
 
 §79. The notice must be in writing and signed by 
 the solicitor.* Ex parte proceedings taken by a com- 
 plainant without notice to a defendant who has appeared 
 are void.* Good practice requires that a defendant who 
 has appeared should have such notice of the entry of the 
 decree as will afford him an opportunity to attend and be 
 heard on the settlement thereof.' 
 
 § 80. A general appearance by the defendant waives 
 any irregularity in the process or in the service thereof, a 
 defendant may appear gratuitously that is befo-re any 
 service on him of a subpoena, he may also appear after 
 publication as in case of non resident absent or conee9,led 
 defendants. Appearance may be entered of course at q,ny 
 time before the default for non appearance is actually 
 entered although the time may have expired. 
 
 §81. If the complainant fails to serve a copy of the 
 bill within the fifteen days the defendant may on filing 
 
 1— Ch. Eule 3a-b; C. L., Sec. 458 Clintock v. Laing, 22 Mich. 212. 
 
 and 460. 4— Cook v. French, 96 Mich. 525. 
 
 2 — Chancery Eule 5c. 5 — Detroit Ins. Co. v. Eenz, 33 
 
 3— Mason v. Kellogg, 38 Mich. Mich. 298. 
 133 and cases cited at p. 141; Mc- 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 65 
 
 an affidavit of service of the required notice and of the 
 complainant's neglect, enter or file an order dismissing 
 the bill.« 
 
 § 82. A defendant having appeared in a suit may de- 
 fend either by demurrer, by plea, by answer or by dis- 
 claimer. 
 
 A demurrer is a claim that the maitters stated in the bill 
 do not show that the complainant has any ground for 
 equitable relief, and appeals to the judgment of the court 
 as to whether or not the complainant has shown by his 
 bill that he has any equities. 
 
 A plea is a claim that on account of some matter or 
 circumstance not mentioned or alluded to in the bill the 
 complainant should be barred from asserting the matters 
 alleged in his bill. 
 
 An answer is the most usual defence and consists of 
 a complete reply to the facts alleged in the bill, whereby 
 the defendant admits such facts as he concedes to be true, 
 denies such allegations which he declares to be false and 
 shows such facts and circumstances in relation to the case 
 as he deems material which are not mentioned in the bill 
 and tend to modify its allegations. An answer may show 
 that the defendant is ignorant of and not informed as to 
 any fact alleged in the bill. 
 
 A disclaimer is a declaration on the part of the defend- 
 ant that he claims no interest in the subject matter of the 
 suit. In many cases a disclaimer at once terminates the 
 suit as to the disclaiming defendant. A demurrer, plea 
 and answer or any two of them may be interposed to dif- 
 ferent distinct parts of the same bill and the same may be 
 feaid of an answer and disclaimer. A cross bill is also a 
 species of defence and may be added to an answer. 
 
 The order of interposing such defences is first demur- 
 rer, second plea, third answer, but an answer may contain 
 a clause praying the benefit of a demurrer to the bill for 
 want of equity or an averment which would be available 
 as a plea and claiming the benefit thereof, a disclaimer 
 
 6 — Chancery Eule 7c. 
 
66 stage's michigak chanoeby pbactice and forms 
 
 may be, and often is, coupled with an answer. A cross 
 bill cannot usually be filed until the original bill is 
 answered and may be now in most cases included in the 
 answer. 
 
 Demurrer. 
 
 § 83. The word ' ' demurrer ' ' is derived from the Latin 
 "deinorare" "to abide," hence a demurrer indicates that 
 the defendant claims that the bill of complainant does not 
 set forth such a state of facts as to entitle the complain- 
 ant to any relief in the court in which it is filed and that 
 he abides the decision of the court as to whether or not 
 the bill does show sufficient facts to enable the complain- 
 ant to maintain his suit.^ 
 
 By demurring the defendant says in substance that ad- 
 mitting all the allegations which are properly pleaded in 
 the bill to be true, yet the complainant is not entitled to 
 the relief which he seeks. Consequently it is considered 
 that for the purpose of determining whether or not the 
 demurrer is well taken all the material facts stated in the 
 bill are tq be taken as true,^ and at the hearing nothing 
 but the bill itself and the grounds of demurrer will be 
 considered. The admission by the demurrer, however, 
 extends only to the purpose of the argument of the de- 
 murrer 3 and to such facts as are plainly stated in the bill 
 and not to any inferences or conclusions of law which may 
 be alleged as being founded on such facts,* as the correct- 
 ness of such inferences and conclusions is often the very 
 matter to be determined by the court at such hearing. 
 
 § 84. Demurrers are either general or special, a gen- 
 eral demurrer challenging the entire bill for want of 
 equity while a special demurrer relates to matters of 
 form and imperfect allegations; before the adoption of 
 
 1— story Bq. PI. Sec. 441 ; 3 Black 3— Cook v. Det. & Mil. E. Co., 45 
 
 Com. 446. Mich. 453. 
 
 2— Pardridge v. Brennan, 64 Mich. 4—1 Dan Ch. PI. & Pr. 545; Lee 
 
 575; Caldwell v. Ward, 83 Mich. 13; v. Eobeson, 12 Gray 280; Dillon v. 
 
 Laubengayer v. Eohde, 167 Mich. Barnard, 21 Wall. 430 ; Le Baion v. 
 
 605; Frost v. Frost, 165 Mich. 591. Shepherd, 21 Mich. 263. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 67 
 
 the present chancery rules in 1896 a general demurrer 
 merely alleged that the complainant had not in or by his 
 bill shown that he had any ground for relief in a court 
 of equity without setting forth any particular reasons ^ 
 while a special demurrer pointed out the particular de- 
 fect. By the present rule however it is necessary to 
 state briefly but plainly in a general demurrer the special 
 reasons therefor in matter of substance as well as the rea- 
 sons for a special demurrer as to matter of form.^ 
 
 This rule however does not abolish the distinction 
 between general and special demurrers, it merely re- 
 quires the grounds of a general demurrer to be stated 
 so that the complainant may be apprised of the particular 
 objection which he is expected to meet; a general de- 
 murrer is still one which goes to the merits of the bill in 
 matter of substance while a special demurrer relates to 
 form and imperfect allegations.'' 
 
 § 85. Under the former practice at the hearing of a 
 general demurrer the defendant might assign * ' ore tenus ' ' 
 any cause of demurrer co-extensive with that already 
 appearing by the demurrer on record.® By the present 
 rule it is provided that ' ' If any pleading shall be adjudged 
 bad for any cause which is not plainly specified in the 
 demurrer, the party pleading shall be allowed to amend 
 without costs.^ 
 
 This clearly recognizes the same right as still existing, 
 merely providing that in such a case the complainant 
 should not be charged with costs. 
 
 §86. As a general demurrer challenges the entire 
 equity of the ease made by the bill, it must be overruled if 
 any case whatever is shown calling for equitable relief 
 however imperfectly set f orth.^" 
 
 5 — Taylor v. Taylor, 87 Mich. 64; Sweet v. Converse, 88 Mich. 1; Burk 
 
 Cochrane t. Adams, 50 Mich. 16. v. Muskegon Machine Co., 98 Mich. 
 
 6 — Chancery Eule 9a. 614. 
 
 7— Greenley v. Hovey, 115 Mich. 9— Chancery Eule 9b. See C. L., 
 
 504; Eobinson v. Kunkleman, 117 See. 10069. 
 
 JGch. 193. 10 — Thayer v. Lane, Harr. Ch. 
 
 8 — Clark v. Davis, Harr. Ch. 227; 247; WUliams v. Hubbard, Walk. 
 
68 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 A general demurrer lies to call in question the juris- 
 diction of the court, as where the facts stated in the bill 
 show that the complainant has a complete and adequate 
 remedy at law." And when it appears that a receiver 
 has been made a defendant without the permission of the 
 court by which he was appointed.^^ Also when for any 
 reason the bills fails to disclose any ground for equitable 
 relief.** Also when it is apparent from the bill that the 
 complainant ought to be barred by his own laches." The 
 defence of the statute of limitations when it appears on 
 the face of the bill may be made by demurrer.*® 
 
 § 87. Where two or more defendants join in a gen- 
 eral demurrer the court will only consider such grounds 
 for demurrer as are applicable to all the demurrants;*^ 
 although a joint and several special demurrer by several 
 may be sustained as to one or more of the demurrants 
 and overruled as to others.*'' 
 
 § 88. A special demurrer is necessary to raise objec- 
 tions that the allegations in the bill are indefinite and 
 to raise other formal and technical objections.** 
 
 Ch. 28; Taylor v. Taylor, 87 Mich. 12— Burk v. Muskegon Machine 
 64; Glidden v. Norvell, 44 Mich. 202; Co., 98 Mich. 614; Steel Brick Sid- 
 Shaw V. Chase, 77 Mich. 436 ; Green- ing Co. v. Muskegon Machine Co., 
 ley V. Hovey, 115 Mich. 504; Frost 98 Mich. 616. 
 
 V. Frost, 165 Mich. 591. 13— Nash v. Burehard, 87 Mich. 
 
 11— Williams v. Mayor, etc. of 85; Stille v. Hess, 112 Mich. 678; 
 
 Detroit, 2 Mich. 560; Cavanaugh v." Aldine Mfg. Co. v. Phillips, 118 
 
 Jake-way, Walk. Ch. 344; Torrent v. Mich. 162, 
 
 Eogers, 39 Mich. 85; Bay City 14— Baent v. Kennicutt, 57 Mich. 
 
 Bridge Co. v. Van Etten, 86 Mich. 268. 
 
 210 ; Hagenbush v. Howard, 34 Mich. 15— McLean v. Barton, Harr. Ch. 
 
 1; Bennett v. Nichols, 12 Mich. 22; 279; Campau v. Chene, 1 Mich. 400. 
 
 Torrent v. Muskegon Booming Co., 16 — Sweet v. Converse, 88 Mich. 
 
 22 Mich. 354; Atty. Gen. v. Detroit, 1; Burk v. Muskegon Machine Co., 
 
 107 Mich. 92; Mack v. Frankfort, 98 Mich. 614. 
 
 123 Mich. 121; N. W. Mut. Life Ins. 17— Barstow v. Smith, Walk. Ch. 
 
 Co. V. Amos, 136 Mich. 210; Grand- S94, 1 Barb. Ch. PI. & Pr. 108; 
 
 champ V. McCormick, 150 Mich. 232 ; Sweet v. Converse, 88 Mich. 1. 
 
 Nichols V. Boyne City Lumber Co., 18— Salisbury v. Miller, 14 Mich. 
 
 157 Mich. 234; Aldine Mfg. Co. v. 160; Weaver v. Van Aikin, 77 Mich. 
 
 Phillips, 118 Mich. 162. 588; Caldwell v. Ward, 83 Mich. 13; 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 69 
 
 The objection that a bill is multifarious must be raised 
 by demurrer; ^® and if not so raised the objection will not 
 be considered.^'' A demurrer will lie for the misjoinder 
 of defendants, but only those defendants who are so mis- 
 joined can demur on that ground.^^ Non joinder of neces- 
 sary parties is also good ground for demurrer where 
 the facts shomng the necessity for joining such parties 
 appear in the bill.^^ 
 
 § 89. A demurrer may be to the entire bill or to only 
 a part thereof and a defendant may demur to one part, 
 plead to another and answer the rest of the biU, but each 
 mode of defence must be distinct and must apply to a 
 distinct part of the bill and no two modes can apply to 
 the same part, and each mode of defence must be so ap- 
 plied as to be consistent with and not overruling the 
 others.^^ Thus an answer to a part of a bill will ipso 
 facto overrule a demurrer to the whole bill, and an 
 answer or plea to a part of a bill overrules a demurrer 
 to the same part.^^ After answer or plea it is too late to 
 demur unless the answer or plea be withdrawn by leave 
 of the court for that purpose. 
 
 § 90. If the demurrer be too general, that is to say 
 if it is to the whole bill when it is good for a part only, 
 or if it be to a part but is not good to the entire extent 
 which it covers but only to a part thereof it will be over- 
 ruled as a demurrer cannot be good in part and bad in 
 part.^'^ 
 
 Glidden v. Norvell, 44 Mich. 202; 657; Walker v. Casgrain, 101 Mich. 
 
 Day V. Cole, 56 Mich. 294; Shaw v. 604. 
 
 Chase, 77 Mich. 436; Hagerman v. 22 — Powers v. Hubbard, 114 Mich. 
 
 Wigent, 108 Mich. 193. 533 ; Mich. TruBt Co. v. Webber, 109 
 
 19 — ^Burnham v. Dillon, 100 Mich. Mich. 87. 
 
 252; Payne v. Avery, 21 Mich. 324; 23— Coopers Eq. PI. 112, US; Liv- 
 
 Wales V. Newbould, 9 Mich. 45; ingston v. Story, 9 Peters 632; 
 
 Snook V. Pearsall, 95 Mich. 534. SpofPord v. Manning, 6 Paige 383; 
 
 20— Miner v. WUson, 107 Mich. 1 Dan. Ch. PI. & Pr. 583. 
 
 57; Hinkley v. Bishop, 152 Mich. 24 — Story Eq. PI. See. 442; Wil- 
 
 556. liams v. Hubbard, Walk. Ch. 28. 
 
 21 — Sweet v. Converse, 88 Mich. 25 — Hawkins v. Clermont, 15 
 
 jfe^ Bigelow V. Sanford, 98 Mich. Mich. 511; Hoffman v. Boss, 25 
 
70 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 § 91. Several causes or reasons, may be assigned for 
 the same demurrer and if any of them are good the de- 
 murrer will be sustained.** 
 
 § 92. A demurrer will be sustained when the bill fails 
 to show that the complainant has any interest in or title 
 to the subject matter of the suit,^'' and also where a party 
 having no such interest or title is improperly joined as 
 a complainant.*^ 
 
 The question as to whether or not the bill shows equity 
 on its face cannot be raised by motion to dismiss the bill, 
 it is a proper ground for general demurrer.*^ 
 
 §93. A defendant may put in separate and distinct 
 demurrers to separate and distinct parts of the bill for 
 separate and distinct different causes,^" for the same 
 grounds for demurrer may not be applicable to all parts 
 of the bill although each may be demurrable : at the hear- 
 ing of such demurrers some may be sustained and others 
 overruled or all sustained or overruled as the court may 
 determine. 
 
 § 94. Speaking Demurrer. A demurrer setting out 
 facts which do not appear on the face of the bill is called 
 a speaking demurrer and is bad, as a demurrer must 
 rely solely on the statements in the bill,^^ but the introduc- 
 tion of immaterial facts not necessary to support the de- 
 murrer, although not good practice, will not vitiate the 
 demurrer, being mere surplusage.^* 
 
 § 95. To every demurrer there must be added the in- 
 dividual certificate of counsel having principal charge of 
 
 Mich. 175; Williams v. Hubbard, 104; Hawkins v. Clermont, 15 Mich. 
 
 Walk. Ch. 28; 1 Dan. Ch. PI. & Pr. 511; Hoffman v. Eoss, 25 Mich. 175. 
 583. 30—1 Dan. Ch. PI. & Pr. 584; 
 
 26— Clark v. Davis, Harr. Ch. 227; North v. Earl of Strafford, 3 P. 
 
 Story Eq. PI. Sec. 443. Wms. 148; Roberdean v. Sous, 1 
 
 27— Story Eq. PI. Sec. 504. Ark. 544. 
 
 28— Barstow v. Smith, Walk. Ch. 31—1 Dan. Ch. PI. & Pr. 687; 
 
 394. Edsell v. Buchanan, 4 Bro. C. C. 
 
 29— Thayer v. Lane, Harr. Ch. 254. 
 247; Woodward v. Clark, 15 Mich. 32—1 Dan. Ch. PI. & Pr. 588; 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 71 
 
 the cause on behalf of the party filing the demurrer, to 
 the effect that the demurrer is not interposed for delay 
 and that in his opinion it is well founded. And a demur- 
 rer not accompanied with such a certificate shall be 
 stricken from the files on motion, unless the court shall 
 deem it proper to allow the certificate to be added.^^ In 
 the federal courts in addition to the certificate of counsel 
 an affidavit of the defendant that the demurrer is not 
 filed for delay is also required.^* It is said that a de- 
 murrer without the required certificate may be disre- 
 garded,*'' but under the present rule the proper practice 
 is a motion to strike it from the files. 
 
 § 96. A joinder in demurrer is not necessary, and 
 either party may at once notice the demurrer for argu- 
 ment at the next term of court. Such notice shall be 
 served at least ten days before the first day of such term ; 
 but if the cause is not in readiness for hearing in time to 
 so notice it, it may be noticed for a subsequent day in 
 term not less than ten days after such notice and put 
 at the foot of the calendar.*" 
 
 A joinder in demurrer in chancery was unnecessary 
 under the former practice although there was no rule so 
 declaring. 
 
 § 97. At the hearing on the demurrer as above stated 
 nothing can be considered except the bill and the demur- 
 rer. If the demurrer be overruled the court shall, on such 
 terms and conditions as are reasonable, permit the de- 
 fendant to answer, and if the demurrer be sustained the 
 court shall likewise permit the complainant to amend the 
 bill." 
 
 This rule gives the complainant an absolute right to 
 amend his bill after the demurrer is sustained and the 
 court has no discretion except as to terms and conditions 
 which refer to costs and the time in which an amendment 
 
 Cawthorn v. Chalie, 2 Sim. & Stu. 35 — National Bank v. Insurance 
 
 127; Davies v. Williams, 1 Sim. 5. Co., 104 U. S. 54. 
 
 33 — Chancery Eule 9e. . 36 — Chancery Rule 9d. 
 
 34 — Federal Equity Eule 31. 37 — Chancery Eule 9e. 
 
72 stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 
 
 can be made. Under the former rules the proper prac- 
 tice was to grant the defendants leave to answer upon 
 terms upon overruling a demurrer unless it were frivo- 
 lous and in such case the complainant might take an order 
 pro confesso unless the court in its discretion permitted 
 an answer.^^ The present rule makes no exception 
 against frivolous demurrers. Under the former rules a 
 bill, would not be dismissed on sustaining a general de- 
 murrer if it contained equity enough to furnish the means 
 of amendment,^® and on sustaining a special demurrer 
 where the objection could be obviated by amendment the 
 court would allow the amendment and not dismiss the 
 bill.*" But where the demurrer went to the merits of the 
 whole bill and it was apparent that it could not be im- 
 proved by amendment the practice was to dismiss the 
 bill." 
 
 § 98. Form of Demurrer. It is provided by rule that 
 the form of a demurrer may be as follows: "The de- 
 fendant says that the complainant has not stated such a 
 case in his bill as entitles him to relief in a court of equity 
 for the following reasons" (adding briefly but plainly 
 the special reasons in matters of substance in a general 
 demurrer, as well as matters of form in a special de- 
 murrer) .** 
 
 The rule omits the ordinary form of conclusion of a de- 
 murrer viz.: "Wherefore the defendant demurs to the 
 said bill and prays the judgment of this honorable' court 
 whether he shall be compelled to make any further or 
 other answer to the said bill, and prays to be hence dis- 
 missed with his r.easonable costs in this behalf sustained." 
 The object of the rule evidently is to simplify the state- 
 ment and give particularity to the specific cause for de- 
 murrer and to eliminate the preliminary protest which 
 
 38— Former Ch. Eule 26. 41— Bigelow v. Sanford, 98 Mich. 
 
 39 — Merrifield v. Ingersoll, 61 657. 
 
 Mich. 4; Creasy v. St. George's So- 42— Chancery Eule 9a. 
 ciety, 34 Mich. 51. 
 
 40 — ^Bigelow v. Sanford, 98 Mich. 
 657. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 73 
 
 it had become customary to make that the demurrer did 
 not admit nor confess any matter or thing in the said 
 bill contained to be true in manner or form as therein 
 alleged, which was apparently inserted to nullify the sup- 
 posed after effect of the admission of the truth of the 
 facts stated in the bill for the purposes of tlie demurrer. 
 Under the rule this preliminary protest may well be 
 omitted but the conclusion is still proper although not 
 mentioned in the rule. 
 
 GENERAL FORM. 
 State of Michigan. 
 
 The Circuit Court for the County of ; 
 
 In Chancery. 
 A. B., Complainant, 1 
 
 C. D., Defendant. J 
 
 The demurrer of C. D., defendant, to the bill of complaint of 
 A. B., complainant. 
 
 The defendant says that the complainant has not stated such 
 a case in his bill as entitles him to any relief in a court of 
 equity for the following reasons* : (state reasons briefly and 
 plainly, e. g. :) Because the said bill does not show that the com- 
 plainant has any interest in the subject matter thereof. (Con- 
 clude as follows:) 
 
 Wherefore, and for divers other good causes of demurrer ap- 
 pearing therein, this defendant demurs to the said bill and 
 prays the judgment of this court whether he shall be required 
 to make any further or other answer thereto, and he prays to 
 be hence dismissed with his reasonable costs in this behalf sus- 
 tained. 
 
 C. D. 
 K. L., 
 
 Solicitor for Defendant and of Counsel. 
 
 CERTIFICATE OF COUNSEL. 
 I hereby certify that I have the principal charge of this cause 
 on behalf of the defendant, C. P., and that in my opinion the 
 foregoing demurrer of C. D., defendant to the bill of A. B., 
 complainant, is well founded in law and proper to be filed in 
 the cause, and that the same is not interposed for delay. 
 
 K. L. 
 Of Coimsel for Defendant, C. D. 
 
74 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 BY ONE OF SEVERAL DEPENDANTS. 
 State of Michigan. 
 
 The Circuit Court for the County of :; 
 
 In Chancery. 
 A. B., Complainant, 1 
 
 C. D., E. P. aad 0. H., Defendants. J 
 
 The several demurrer of the defendant, E. P., to the bill of 
 complaint of A. B., complainant : 
 
 The defendant, B. P., says that the said complainant has not 
 steted such a case in his bill as entitles him to relief in a court 
 of equity against this defendant for the following reasons: 
 
 1. Because, etc., (state reasons). 
 
 Wherefore this defendant demurs to the said bill and prays 
 the judgment of this honorable court whether he shall be com- 
 pelled to make any further or other answer to the said bill, and 
 he prays to be hence dismissed with his reasonable costs in this 
 behalf sustained. 
 
 (Add certificate of counsel.) 
 
 POE MULTIPARIOUSNESS. 
 (As in general form to the *, then proceed:) 
 
 Because 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 divers distinct matters and 
 causes, in several whereof, as appears by the said biU, this de- 
 fendant is not in any manner interested or concerned, and that 
 the said bill is altogether multifarious. 
 
 Wherefore (conclude as in general form and add certificate.) 
 
 WANT OP PARTIES. 
 (As in general form to the *, then proceed:) 
 
 Because it appears by the said bill that one G. H., therein 
 named, is a necessary party to the said bill, inasmuch as it is 
 therein stated that E. P., the testator in the said bill, named, 
 did, in his lifetime, by certain conveyances made to the said 
 
 G. H. in consideration of dollars, convey to him by 
 
 way of mortgage certain lands and premises in the said bill 
 particularly described, for the purpose of paying the said tes- 
 tator's debts and legacies, but the complainant has not made 
 the said G. H. a party to his said bill. 
 
 Wherefore, (conclude as in general form; add certificate.) 
 
 WANT OP PRIVITY. 
 (As in general form to the *, then proceed:) 
 
 Because it appears by the said bill that there is no privity 
 between the complainant and this defendant to enable the com- 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 75 
 
 plainant to call upon this defendant for the payment of any 
 
 debt due from this defendant to the estate of the said testator. 
 
 "Wherefore, (conclusion as in general form and certificate.) 
 
 BECAUSE REMEDY IS AT LAW. 
 (As in general form to the *, then proceed:) 
 
 Because all and every the matters in the said complainant's 
 bill of complaint mentioned and set forth in respect whereof 
 relief is prayed are matters which may be tried and determined 
 in a suit at law, and with respect to which the complainant is 
 not entitled to any relief in a court of equity. 
 
 Wherefore, etc., (conclude as in general form and add cer- 
 tificate of counsel). 
 
 TO BILL OF INTERPLEADER. 
 
 [For want of showing of non-collusion.] 
 (As in general form to the asterisk *, then proceed.) 
 
 That although the complainant's said bill is on the face 
 thereof a bill of interpleader and prays that this defendant and 
 the other defendant thereto may interplead together concerning 
 the matters therein mentioned, and may be restrained by in- 
 junction from proceeding at law against the complainant touch- 
 ing such matters, yet there is no averment on oath in the said 
 bill that the complainant does not collude concerning such mat- 
 ters with any of the defendants thereto, and the complainant 
 has not annexed to his said bill any affidavit that he does not 
 so collude with any of the defendants, and this defendant is ad- 
 vised that by the rules and practice of this court the said com- 
 plainant ought to have made an averment on oath of such 
 non-collusion in his said bill, or annexed an affidavit to his 
 said bill showing non-collusion. 
 
 Wherefore, (conclude as in general form and annex certificate 
 of counsel). 
 
 TO BILL OF INTERPLEADER. 
 
 [Showing no claim of right in defendant.] 
 
 (As in general form ante to the asterisk *, and proceed as 
 follows:) 
 
 That the complainant has not in or by the said bill shown 
 any claim or right, title or interest whatever, in the defendant, 
 B. F., in or to the (name the fund alleged to l>e in dispute) in 
 the said bill particularly mentioned and described, in respect 
 whereof this defendant ought to be compelled to interplead with 
 the said E. F. 
 
 Wherefore, (conclude as in general form ante, and annex cer- 
 tificate of counsel). 
 
76 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 TO SUPPLEMENTAL BILL. 
 
 (Title of court and cause.) 
 
 The demurrer of C. D., defendant, {or, one of the defend- 
 ants to the supplemental bill of A. B., complainant. 
 
 This defendant says, that the complainant has not stated 
 such a ease in his supplemental bill as doth, or ought to entitle 
 him to any relief in a court of equity against this defendant for 
 the following reasons: 
 
 That this defendant, as appears by the said supplemental bill, 
 is not a party to the original bill therein in part stated and set 
 forth; and it does not appear by the said supplemental bill 
 that any new matter has, or is pretended to have arisen since 
 the original bill was filed, or that there is any reason why this 
 defendant should not, if necessary, be made a party thereto by 
 amendment (state any other reason as the. case may ie). 
 
 Wherefore this defendant demurs to the said supplemental 
 bill, and prays the judgment of this honorable court whether 
 he shall be compelled to make any further or other answer 
 thereto, and prays to be hence dismissed with his reasonable 
 costs in this behalf sustained. 
 
 pnifii Solicitor for Defendant. 
 
 -ni 'id h. (Add certificate of counsel.) 
 
 -riojjot Insni^ 
 
 bifla srlt ni rItBo TO BILL OP REVIEW. 
 
 -fS'Sk'JifsogiirA-and^cause.) 
 
 ta^^4^m^^Sf «feP-,P-. defendant {or, one of the defendants), 
 
 iteitM)|i¥iPliF*fiMjMl^- B. complainant. 
 
 -bB''Si?j:lM?H^lifl?'J»u^0Ai4e complainant has not stated such 
 
 -?[i^^m M§ M^!P4iH9"vi6w,i8?o/Jpth or ought to entitle him to 
 
 fffffig J5di^jM %(POjffiiiPfeMUftte' ^Sffiianst this defendant, for the 
 
 Jfl%yi¥&5B^fin&fi b9Z9iini3 lo ,Jlid hi.. 
 
 That by the constant rules of t^igQU^tjjgft bill of review ought 
 
 9tooH^-ftf|i^J<^ tekj^li^Pfo'P?»<fte«ig%W&^Si?Sc^<^J'eed, unless for 
 error of law appearing in the body of the decree as drawn up 
 and entered, or for new matters arising since the decree, or 
 such matter of which the complainant in the bill of review could 
 not have had .fiaQ^atI"?8WiMit 'S© tyiie&'Ee ; but this de- 
 
 li^ikmUki «av!M'ftlft,tti«fe>iflSt^¥§wg^^iied by the said bill 
 
 2©f ^iwiW fetfneaMaioJ&i*ev§;^lo^f3the ^aid'\dfefe't%e,3'eis«fihe^We 
 thereby appears by the complainant's said bill, are neithlMP^&V 
 
 reffisfei itiitfatyift^jai-eHtf iiP tfife 45tfajB<i($S tefenkltna^bi*^ iSjt'Sny 
 
 .suehiinfeil) mkkmt ,a8vaf«feai€>'i!bw ssis^ttSgdite iiP fifkfersn<Sf 
 
 tooQtaingd jiffi'cteasfeidjrMllb^tffo^^^iwvitRfBB^^SMtiMi^f'tff sfee 
 
 Mit bei^sg'ittbi €fe<ijft!i9gas8©*4Q&^iM5^5aki«ke^fbfii# ^^ssfi^f 
 
 form. .'? .3 aim odi 
 
 -•«9'S^5fe«sBes£(^eotyiEif«deiefidaia;ti^^ain* ^o ^it4'^i) bIHP'ttff ^^w, 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 77 
 
 and prays the judgment of this court whether he shall be com- 
 pelled to make any further or other answer thereto, and prays 
 to be hence dismissed with his reasonable costs in this behalf 
 sustained. 
 
 Solicitor for Defendant, C. D. 
 (Add certificate of counsel.) 
 
 DEMURRER, PLEA AND ANSWER. 
 
 (Title of court and cause.) 
 
 The demurrer, plea and answer of the defendant, C. D., to 
 the bill of complaint {or, amended bill of complaint) of A. B., 
 complainant. 
 
 1. This defendant, by protestation, not confessing, nor ad- 
 mitting, nor acknowledging all or any of the matters ia the 
 said bill stated or charged to be true in manner and form as 
 therein set forth and alleged, as to so much and such parts of 
 the said bill as seeks that this defendant may answer and set 
 forth whether, etc. (state the matters in the said bill which 
 are demurred to), this defendant doth demur thereto, and 
 for cause of demurrer showeth (state cause of demurrer). 
 
 Wherefore, and for divers other good causes of demurrer ap- 
 pearing in the said bill this defendant prays the judgment of 
 this court whether he shall be required to make any further or 
 other answer to such parts of the said bill hereinbefore demurred 
 to. 
 
 2. And this defendant, not waiving his said demurrer but 
 wholly relying thereon as to so much of the said bill herein- 
 before demurred to, as to so much and such parts of the said 
 bill as states and sets forth (here set forth the matters in the' bill 
 to which a plea is interposed) doth plead thereto and says and 
 avers that (state the matters to be pleaded in bar). All which 
 matters and things this defendant doth plead in bar to suoh 
 last mentioned parts of the said bill, and asks the judgment of 
 this court whether he ought to be required to make any fur- 
 ther or other answer thereto. 
 
 3. And this defendant, not waving his said demurrer and 
 plea to the several parts of the said bill hereinbefore respec- 
 tively demurred and pleaded unto but relying and insisting 
 thereon, for answer unto the remainder of the said bill, or unto 
 so much thereof as this defendant is advised is material or nec- 
 essary for him to make answer unto, answering says he admits 
 (or denies, as the case may be — proceed as in an answer to con- 
 clusion). 
 
 C. D. 
 
 Solicitor for Defendant and of Counsel. 
 (Add affidavit of defendant as to truth of plea.) 
 (Add certificate of counsel.) 
 
78 stage's MICHIGAN CHANCERY PKACTICE AND POEMS 
 
 I hereby certify that I have the principal charge of this 
 cause on behalf of the defendant, C. D., and that in my opin- 
 ion the foregoing demurrer of the said C. D., defendant, to 
 part of the bill of A. B., complainant, is well founded in law 
 and proper to be filed in this cause, and. that the saijie is not 
 interposed for delay, and also that in my opinion the foregoing 
 plea of the said C. D., defendant, to part of the said bill of A. 
 B., complainant, is well founded in point of law and is proper 
 to be filed in the above cause. 
 
 Of Counsel for the Defendant, C. D. 
 
 OEDER SUSTAINING DEMURRER. 
 WITH LEAVE TO AMEND. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the demurrer of the 
 defendant, C. D., to the bill of complaint in this cause, and 
 was argued by counsel and thereupon upon due consideration 
 thereof, it is ordered, adjudged and decreed that the said 
 demurrer be and the same is hereby allowed and adjudged to 
 be well taken, and that the said complainant pay to the said 
 defendant, C. D., the costs of the said demurrer, hereby taxed 
 at the sum of (twenty) dollars, and that the said defendant 
 have execution thereof. 
 
 And it is further ordered, adjudged and decreed that upon 
 payment of the said costs the said complainant have leave to 
 amend his said bill of complaint within fifteen days from the date 
 of this order and that in default of such amendment the said 
 bill be dismissed. 
 
 Circuit Judge. 
 
 ORDER OVERRULING DEMURRER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the demurrer of the 
 defendant, C. D., to the bill of complaint therein and was argued 
 by counsel : 
 
 And thereupon upon due consideration thereof, it is ordered 
 that the said demurrer be and the same hereby is overruled, 
 and that the said defendant pay to the complainant the costs 
 
 thereof, hereby taxed at the sum of dollars, and that 
 
 the said complainant have execution thereof, and that upon 
 payment of such costs the said defendant, C. D., have leave 
 
stage's MICHIGAN CHANCEKY PEACTIOE AND FOEMS 79 
 
 to answer the said bill of complaint within fifteen days from 
 the date of this order. 
 
 Circuit Judge. 
 
 Plea. 
 
 §99. By a plea to a bill in equity the entire contro- 
 versy is reduced to a single point by setting forth a single 
 fact or a number of circumstances constituting one single 
 fact which shows that the complainant cannot maintain 
 his suit. Judge Story has said : "A plea has been usually 
 described to be a special answer, showing or relying upon 
 one or more things as a cause why the suit should either 
 be dismissed, or delayed or barred." * 
 
 The principle of this defence is that the defendant 
 avers one matter of avoidance, or denies some one allega- 
 tion of the bill, and contends that, assuming the truth of 
 all the allegations of the bill, together with the matter 
 set up by him in avoidance ; or assuming the truth of all 
 the allegations of the bill except that one which he denies, 
 the complainant cannot maintain his suit. 
 
 The object to be obtained by a plea is the reduction of 
 the controversy to a single issue and thereby to avoid the 
 expense and delay of going into and taking proofs as to 
 the entire matters set up in the bill at large, and therefore 
 in a case ^here the defence rests on a single point and the 
 defendant neglected to plead but answered, thus necessi- 
 tating going into the evidence at large when the bill was 
 dismissed it was without costs.^ 
 
 A plea which sets forth more than one defence is called 
 a double plea and is not permitted and if offered will be 
 overruled.* 
 
 However under certain peculiar circumstances a double 
 plea has been permitted by special leave of the court 
 
 1— story Eq. PL Sec. 649 ; 1 Dan. Walk. Ch. 317 ; Carroll v. Potter, 
 
 Ch. PI. & Pr. 603 ; Schwartz V. "Wen- Walk. Ch. 355; Mains v. Homer 
 
 dall, Harr. Ch. 395. Steel Spring Co., 116 Mich. 526; 
 
 2 — Sanderson v. Benson, 4 Beav. Whitebread v. Brockhurst, 1 Bro. 
 
 350; Sims v. Lyle, 4 Wash. C. C. 302. C. C. 404; 1 Dan. Ch. PI. & Pr. 608. 
 
 3 — ^Albany City Bank v. Dorr, 
 
80 stage's MICHIGAN CHAKCEEY PBACTICE AND EOBMS 
 
 obtained on special motion where great inconvenience 
 would be obviated by permitting a double plea * and also 
 in a bill to restrain the infringement of a patent the de- 
 fendant was allowed to plead first that the invention was 
 not useful, second that it was not new,^ but such permis- 
 sions are rarely given. 
 
 § 100. The rule that a plea must reduce the defence to 
 a single point does not mean that it must be confined to 
 the statement of one particular fact, as it may consist of 
 a variety of facts and circumstances provided that such 
 facts and circumstances give as their result one clear 
 groimd upon which the entire equity of the bill may be 
 disposed of.* 
 
 § 101. A defendant may, however, put in several pleas 
 to different parts of the same bill,'' and he may demur 
 and plead, or plead and answer to different parts of the 
 same bill provided that he distinctly points out the sev- 
 eral parts which intended to be -covered by the plea, the 
 demurrer and the answer respectively,* he may not, there- 
 fore, simultaneously plead and demur to the whole bill : ^ 
 and where he puts in several pleas to the same bill he 
 must point out the particular part of the bill to which 
 each plea is to be applied.'" 
 
 § 102. It is said that a plea in equity may be good in 
 part and bad in part but this must be understood as re- 
 ferring to the extent of the bill covered by the plea and 
 not to the ground of defence offered by it as if any part 
 of the defence made by the plea is bad the whole is bad.^^ 
 
 4—1 Dan. Ch. PI. & Pr. 609 ; Gib- 9— Loundes v. Garnet & Moseley 
 
 son V. Whitehead, 4 Madd. 241. Gold Mining Co., 2 J. & H. 282. 
 
 5— Kay v. Marshall, 1 Kay 190. 10 — 1 Dan. Ch. PI. & Pr. 610, and 
 
 6—1 Dan. Ch. PI. & Pr. 607, and cases cited; Clark v. Sag. aty Bank, 
 
 eases cited; Story Eq. PI. See. 652; Harr. Ch. 240. 
 
 Eitehie v. Ailwin, 15 Vesey 79 ; Fox 11— D. L. & N. E. Co. v. McCam- 
 
 V. Gates, 24 Beav. 271. mon, 108 Mieh. 368; 1 Dan. Ch. PI. 
 
 7 — Chancery Eule 8b. & Pr. 611 and oases cited. 
 
 8— Clark v. Sag. City Bank, Harr. 
 Ch. 240. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 81 
 
 § 103. It is necessary to state in a plea every fact es- 
 sential to show a complete defence, so that the court may 
 at once be able to decide whether the case presented by 
 the plea is a bar to the case made by the bill, or by that 
 part of the bill which the plea seeks to cover.^^ Thus a 
 plea to a bill to obtain possession of an estate averring 
 merely that the defendant was a purchaser for a valuable 
 consideration without notice is insufficient, it should state 
 the title or apparent title of the person from whom he 
 purchased, the circumstances which made such title ap- 
 parently good, the manner of conveyance to the defendant 
 and that the defendant paid a valuable consideration, as 
 well as th^ fact that the defendant had no notice of the 
 complainant's claitn.^® So a plea of a former suit for the 
 same matter averring that the bill was dismissed is de- 
 fective if it does not aver that it was dismissed at the 
 hearing on the merits.^* And a plea of a stated account 
 must aver that such accounting settled all the dealings 
 between the parties and that the accounts were just and 
 fair and due.^® And where a bill sets forth facts which, 
 if true, would destroy the effect of the plea, such facts 
 must be negatived by proper averments in the plea or they 
 will be considered as admitted,^ ^ and such admission 
 would effectively destroy the defence made by the plea. 
 
 § 104. Pleas are said to be of two classes, affirmative 
 or pure pleas and negative. An affirmative plea is one 
 which alleges some matter not stated in the bill and which 
 if stated would have rendered the bill demurrable, as that 
 the mortgage for the foreclosure whereof the bill was 
 filed had been transferred by the complainant to a 
 stranger before the suit was brought and consequently 
 the complainant had no equity or interest therein. A 
 negative plea is one which denies some essential allega- 
 tion in the bill itself constituting the entire equity of the 
 
 12—1 Dan. Ch. PI. & Pr. 611; 14— D. L. & N. E. Co. v. McCam- 
 
 GaUatian v. Cunningham, 8 Cow. mon, 108 Mleh. 368. 
 
 361; Jewell v. Palmer, 7 Johns. Ch. 15 — Schwartz v. Wendell, Harr. 
 
 65. Ch. 395. 
 
 13— Jackson v. Bowe, 4 Euss. 514. 16—1 Dan. Ch. PL & Pr. 612, 614. 
 
82 stage's MICHIGAN CHANCEKY PEACTICB AND FORMS 
 
 complainant as where a complainant alleges that he is 
 administrator of an estate and files his bill in that capac- 
 ity showing no other title or interest in the subject matter 
 than as such administrator a plea denying his ^appoint- 
 ment as such administrator would effectively dispose of 
 that suit, although all other allegations of the bill might 
 be true. 
 
 The Different Grounds of Pleas. 
 
 § 105. Pleas may be either to the relief or to the dis- 
 covery, or both, but as bills for discovery are now prac- 
 tically obsolete except in judgment creditor's suits and 
 possibly a few other instances, pleas to the relief are now 
 practically the only ones to be considered. These have 
 been arranged under the heads, "To the jurisdiction," 
 "To the person of either complainant or defendant," 
 "To the Bill," and "In bar of the suit." " 
 
 § 106. Pleas to the jurisdiction do not dispute the 
 rights of the complainant nor the allegations in the bill, 
 but simply assert 1, That they are not fit objects for the 
 cognizance of a court of equity; or 2, That the court of 
 chancery in which the bill is filed is not the proper court 
 to have cognizance of such rights.^* 
 
 Cases in which a court of equity has no jurisdiction 
 cannot easily be so disguised in a bill as not to be open to 
 demurrer, but instances may occur in which a plea is 
 necessary to show such want of jurisdiction, although 
 such cases will be very rare. 
 
 As the courts of chancery in Michigan are as numer- 
 ous as the counties and as the jurisdiction of each depends 
 on the residence of the parties in personal cases and on 
 the location of the property where lands are in contro- 
 versy i" it may sometimes happen that a suit is com- 
 menced in a court of chancery which has no jurisdiction. 
 In such a case the plea must aver the facts showing such 
 
 17—1 Dan. Ch. PI. & Pr. 626; 18— 1 Dan. Ch. PI. & Pr. 628. 
 
 Mitf. Eq. PI. 219; Cooper Eq. Pr. 19— C. L., Sec. 434. 
 
 236. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 83 
 
 lack of jurisdiction. If it depends on residence it must 
 aver the actual residence of each of the parties with an 
 averment that none of them reside in the county wherein 
 the suit is brought. If it concerns land it must show the 
 actual location of the land and that it is entirely in other 
 counties with a like averment and should also show the 
 proper court wherein the suit ought to have been 
 brought.*" 
 
 § 107. Pleas to the person of the complainant may be : 
 Alien enemy, Infancy, Idiocy or Lunacy, in which cases 
 it will be necessary to aver that no next friend or guardian 
 has been appointed. Bankruptcy, although a bankrupt 
 may maintain a suit in some cases; and that the com- 
 plainant does not sustain the character (such as executor, 
 guardian, trustee, etc.), which he assumes.^^ A defend- 
 ant may plead that he is not the person he is alleged to 
 be, or does not sustain the character he is stated to bear.** 
 Coverture is no longer a disability to sue or be sued in 
 Michigan. Such pleas attack merely the right of the 
 complainant to sue without affecting the merits of the 
 case. 
 
 § 108. Pleas to the bill assert some defect in the bill 
 itself not apparent on its face and are practically con- 
 fined to allegations of want of necessary parties. 
 
 When the lack of necessary parties appears on the face 
 of the bill of course the proper course is by demurrer, 
 but when this defect is not apparent it may be pleaded, 
 setting forth who the omitted parties are and their in- 
 terests and the facts which make them necessary,*^ such 
 pleas, not going to the merits, are readily met if good, 
 by amendment of the bill. 
 
 § 109. Pleas in bar may be on such a diversity of 
 grounds that it would be impracticable in this work to 
 enumerate them. Only a few will be mentioned. 
 
 That the matter has already been adjudicated in a for- 
 mer suit in equity between the same parties is a good 
 
 20—1 Dan. Ch. PI. & Pr. 629. 22—1 Dan. Ch. PI. & Pr. 631. 
 
 21—1 Dan. Ch. PI. & Pr. 630. 23—1 Dan. Ch. PL & Pr. 631. 
 
84 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 plea,^* and so is a plea that a former suit in equity is still 
 pending between the same parties on the same subject. 
 Such a plea must set forth the general character and 
 object of the former suit and the relief thereby prayed,^^ 
 and it is necessary to show that the whole matter of the 
 second suit is embraced in the first.^® 
 
 The statute of limitations may be pleaded in bar *'' and 
 so may the statute of frauds."* 
 
 An account stated is a good plea provided it avers that 
 the accounts were fair and just and due and settled all 
 the matters between the parties,"® and so is a release, if 
 supported by an answer.^" 
 
 It is also a good plea that the complainant has parted 
 with his interest in the subject matter of the suit.^* 
 
 § 110. A plea must state matters positively when the 
 facts are within his own knowledge or touching his own 
 acts, but when the matter concerns acts of other persons 
 of which he has no actual knowledge, such matters may 
 be stated on information and belief,^" but in that case 
 it would be good practice to annex and refer to an affidavit 
 of the person knowing the facts. 
 
 A plea should be signed by the defendant as well as by 
 counsel.^* 
 
 § 111. "No plea shall be allowed to be filed to any bill 
 unless upon a certificate of counsel that in his opinion it 
 is well founded in point of law, and supported by the 
 affidavit of the defendant that it is not interposed for 
 
 24—1 Dan. Ch. PI. & Pr. 659; D. partial payments, etc., it must be 
 L. & N. E. Co. V. McCammon, 108 negatived by averments in the plea). 
 Mich. 368; Petrine v. Dunn, 4 Johns. 28—1 Dan. Ch. Pr. & PI. 655 et 
 
 Ch. 142. 
 
 seq. 
 
 25— Bajik of Michigan v. Wil- 29— Sehwarz v. Wendell, Harr. 
 
 liams, Harr. Ch. 219; O'Brien v. Ch. 395. 
 
 Oir. Judge, 106 Mich. 42. 30— Sehwarz v. Wendell Harr. 
 
 26—1 Dan. Ch. PI. & Pr. 632 and Ch. 395. ' 
 
 cases cited. 31— WaUace v. Dunning, Walk. 
 
 27—1 Dan. Ch. PI. & Pr. 639 et Ch. 416. 
 
 seq. (but when any matter is stated 32— Parker v. Parker, Walk. Ch. 
 
 in the bill calculated to take the 457. 
 
 case out of the statute as fraud, 33 — 1 Barb. Ch. Pr. 117. 
 
stage's MICHIGAN OHANCEET PBACTICE AND FORMS 85 
 
 delay merely, and that he knows or has good reason to 
 believe it to be true in point of fact. ' ' ^* But where a 
 plea set up a public record of the same court in which the 
 suit is pending,- the plea need not be verified.^* 
 
 "The defendant may plead to the whole or any part of 
 the bill, but in every case in which the bill specially 
 charges fraud or combination, a plea to such part must 
 be supported by an answer explicitly denying the fraud 
 and combination and the several facts on which the charge 
 is founded.*® 
 
 § 112. Aside from the requirements of this rule a plea 
 must be supported by an answer, where the bill requires 
 an answer on oath, in cases where the complainant admits 
 the existence of a legal bar, and alleges some equitable 
 circumstances to avoid its effect and in his bill inserts 
 interrogatories as to such circumstances : and cases where 
 the complainant does not admit the existence of any legal 
 bar, but states circumstances which may be true, and to 
 which there may be a valid ground of plea, together with 
 other circumstances which are inconsistent with the sub- 
 stantial validity of the plea and inserts interrogatories 
 as to such circumstances. Where no ostensible bar is 
 admitted to exist by the bill, and yet the defendant desires 
 to plead in bar, the general rule would be that he must 
 distinguish those allegations which, if true, would not 
 invalidate or disprove his plea, and plead as to them: 
 and then if interrogated as to the allegations which, if 
 true, would disprove or invalidate his plea, or as to mat- 
 ters which are specially alleged as evidence of such facts, 
 he must answer as to such facts and matters,*^ this rule 
 would apply to cases in which the complainant is entitled 
 to a discovery as to matters relative to the plea. It has 
 been held that a plea of release must be supported by 
 an answer.*® 
 
 34— Chancery Eule 8a; Federal 37—1 Dan. Ch. PI. & Pr. 616-617. 
 
 General Equity Eule 31. 38 — Schwarz v. Wendell, Harr. Ch. 
 
 35— D. L. & N. R. Co. v. McCam- 395. 
 mon, 108 Mich. 368. 
 
 36 — Chancery Eule 8b. See Fed. 
 Gen. Eq. Eule 32. 
 
86 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 In cases not covered by the above rule a plea need not 
 be supported by an answer, nor in any case where an 
 answer on oath is waived. ^^ 
 
 § 113. An answer in support of a plea immediately 
 follows the plea and is. prefixed by a clause in effect as 
 follows : "And this defendant, not waiving his said plea, 
 but insisting thereon for answer to the residue of the 
 said bill and in support of his said plea, says." This 
 clause is inserted to obviate the rule that an answer 
 overruled the plea which is not applicable to answers 
 which are put in for the express purpose of supporting 
 the plea. 
 
 Such an answer is no part of the defence. The defence 
 is the matter set up by the plea ; the answer is that evi- 
 dence which the complainant has a right to require and 
 to use, to avoid the defence sought to be made by the 
 plea and the complainant is entitled to use it as evidence 
 as well upon the argument of the plea as upon the hear- 
 ing of the cause upon the issue formed by a replication 
 to the plea after the plea has been adjudged to be good.*" 
 
 § 114. The plea with the necessary certificate and 
 affidavit must be filed and a copy served within fifteen 
 days after service of a copy of the bill.*^ If the com- 
 plainant considers that the matter pleaded is not a good 
 defence, or is not properly pleaded, his proper course is, 
 not to demur, but to set the plea down for argument.*^ 
 
 § 115. The complainant may set down the plea to be 
 argued, or he may take issue on the plea, and in default 
 of the complainant taking any action within twenty days, 
 the defendant shall be entitled as of course to a decree 
 dismissing the bill or so much thereof as is covered by 
 the plea, unless the court shall allow further time for the 
 purpose.*^ 
 
 39— Hearth v. Coming, 3 Paige 41 — Chancery Rule 5d. 
 
 566. See Story Eq. pi. Sees. 681- 42— Travers v. Boss, 1 McCarter 
 
 682; 1 Dan. Ch. PI. & Pr. 615. 254; Stone v. Moore, 26 111. 165. 
 
 40—1 Dan. Ch. PI. & Pr. 624; 43— Chancery Eule 8e. 
 Mitf. Eq. PI. 244; 1 Barb. Ch. Pr. 
 129. 
 
stage's MICHIGAN CHANCEEY PRACTICE AKD FOEMS 87 
 
 The setting down of a plea for argument is tantamount 
 to an assertion that it is not a sufficient defence to the bill 
 or that it is not well pleaded. If the complainant is 
 satisfied that the matter pleaded, if true, would be a good 
 defence, and that it is properly pleaded, his course will 
 be to take issue on the plea by filing and serving a replica- 
 tion thereto. 
 
 § 116. By replying to a plea to the whole bill instead 
 of setting it down for argument, its validity, if true, is 
 admitted, and the only question for trial is its truth and 
 if its truth be established, the bill will be dismissed.** 
 
 § 117. If on the argument a plea be found defective in 
 form, or where an important averment was inadvertently 
 omitted, the conrt may permit it to be amended*^ and 
 also by inserting the averment of a fact which was un- 
 known to the defendant at the time of filing the plea.*® 
 
 § 118. If the complainant amends his bill after the filing 
 of a plea it will be considered an admission of the validity 
 of the plea,*'' and the amended bill stands as if no plea 
 had been filed.** 
 
 § 119. When on the argument it is determined that 
 the plea contains matter which, if put in the form of an 
 answer, would be a defence in whole or in part to the 
 matters to which was pleaded but is insufficient, or im- 
 properly offered as a plea, the court may in its discre- 
 tion aUow the plea to stand as an answer.*" 
 
 § 120. If upon the argument the plea is overruled, 
 the defendant shall be required to answer within such 
 time as the court shall deem reasonable, and if the de- 
 fendant make default, the bill, or as much thereof as 
 
 44 — ^Hurbut v. Britain, Walk. Ch. 47 — Tompkins v. Hollister, 60 
 
 45'55 Little & Stephens, 82 Mich. Mich. 470; 1 Barb. Ch. Pr. 120. 
 
 596. 48 — Peck v. Burgess, Walk. Ch. 
 
 45_Det. L. & N. E. Co. v. Mc- 485; Tompkins v. Hollister, 60 Mich. 
 
 Cammon, 108 Mich. S68. 470. 
 
 46 — ^Freeman v. Michigan State 49 — Schwarz v. Wendell, Harr. Ch. 
 
 Bank, Harr. Ch. 311. 395-403; 1 Dan. Ch. PI. & Pr. 700. 
 
88 stage's MICHIGAN- CHANCBEY PEACTICE AND FOBMS , 
 
 the plea covered, shall be taken pro confesso and the 
 matter thereof proceeded in and decreed accordingly.^" 
 
 § 121. If, upon the argument, the plea is allowed, com- 
 plainant may, within ten days after notice of such allow- 
 ance, take issue upon the plea on payment of the costs 
 of hearing thereon, unless he shall within such ten days 
 move for leave to amend the bill, on which motion the 
 court may allow such amendment on such terms as it 
 may deem reasonable. Within ten days after the de- 
 termination of such motion for leave to amend (if it be 
 denied), the complainant may take issue on the plea 
 upon the terms above provided. In default of such mo- 
 tion for leave to amend or in case such leave is denied 
 and in default of taking issue on the plea, the bill or so 
 much thereof as is covered by the plea, shall be dis- 
 missed.^^ 
 
 If a plea or demurrer to a bill be overruled the com- 
 plainant may, within ten days thereafter, amend his bill 
 without leave of the court and without costs.^^ 
 
 If, upon an issue, the facts stated in a plea be deter- 
 mined for the defendant, they shall avail him as far as 
 in law and equity they ought to avail him : If the facts 
 are determined for the complainant, the effect shall be 
 the same as though the bill or so much thereof as is 
 covered by the plea was taken pro confesso,*^ 
 
 § 122. No plea shall be held bad and overruled upon 
 argument only because it shall not cover so much of the 
 bill as it might by law have extended to.^* 
 
 A plea may be good to a part of the bill and not to the 
 whole and the court will allow it to so much of the bill 
 as it properly extends to. 
 
 No plea shall be held bad and overruled upon argu- 
 ment only because the answer of the defendant may 
 
 50— Chancery Rule 8d. 54r— Chancery Eule 8g. Federal 
 
 • 51— Chancery Rule 8e. General Equity Rule 36. 
 
 52 — Chancery Eule 16e. 
 53— Chancery Rule 8f. See Fed- 
 eral General Equity Rule 33. 
 
stage's MICHIGAN CHANCEEY PEAOTICE AND FOEMS 89 
 
 extend to the same matter as may be covered by such 
 plea.^^ 
 
 This rule ameliorates somewhat the strictness of the 
 rule that an answer to a bill or to part of a bill pleaded 
 to overrules the plea. 
 
 § 123. A plea is superseded by an answer to an 
 amended bill.^® 
 
 § 124. It sometimes happens that upon the argument 
 of a plea, the court considers that although it may be 
 apparently a good defence yet evidence may disclose 
 facts which, even if the plea be strictly true, would 
 avoid it. In such a case the court, in order that the ques- 
 tion of allowing the plea may not be precluded, may 
 direct that the benefit of the plea shall be saved to the 
 to give the complainant an opportunity of replying and 
 defendant at the hearing,^^ the effect of such an order is 
 going into evidence without passing on the sufiSciency 
 of the plea, and jji such a case such parts of the bill as 
 are covered by the plea are not to be answered and 
 neither party recovers costs until the hearing.^* 
 
 While it is quite proper to state in a plea that the de- 
 fendant does not confess or acknowledge any of the 
 equities set forth in the biU, it is not essential that he 
 should do so.'* 
 
 PLEA, TITLE AND COMMENCEMENT. 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 The plea of C. D., defendant, (or one of the defendants) to 
 the bill (or amended bill) of complaint of A. B., complainant 
 .{if more than one defendant and any do not join in the plea 
 add filed against this defendant and E. F. and G. H. as de- 
 fendants). 
 
 (If more than one defendant join in the plea, commence:) the 
 joint and several plea of C. D. and E. F, defendants, etc. 
 
 55— Chancery Eule 8h. Federal PL Sees. 696-700; 1 Barb. Ch. Pr. 
 
 General Equity Eule 3,7. 121-2. 
 
 56— Peck V. Burgess, Walk. Ch. 58—1 Barb. Ch. Pr.J22 
 485. 
 
 59_Pet. L. & N. E. Co. v. Me- 
 
 57— Mitf. Eq. PI. 303; Story Eq. Common, 108 Mich. 368. 
 
90 stage's MICHIGAN CHANCEEY PBACTICE AND FOKMS 
 
 This defendant (or these defendants) not confessing nor 
 acknowledging the matters and things in the said bill set forth 
 and alleged, or any thereof, 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, or to so much and such parts 
 thereof as prays any relief or seeks a discovery from this de- 
 fendant (or these defendants) saith, (or say) * that. 
 
 CONCLUSION. 
 All which matters and things this defendant avers (or these 
 defendants aver) to be true and he pleads (or they plead) the 
 said (statute or release or whatever the matter in bar may be) 
 to the said bill of the said complainant, (or if to a part only, to 
 so much of the said bill as is hereinbefore particularly men- 
 tioned), and pray {or, pray) the judgment of this honorable 
 court whether he {or, they) ought to be required to make any 
 other or further answer to the said bill {or to so much of the 
 said bill as is herein pleaded unto), and prays (or pray) to be 
 hence dismissed with his (or, their) reasonable costs and charges 
 in this behalf most wrongfully sustained. 
 
 C. D. 
 
 X.Z. ^ 
 
 Solicitor and of Counsel for Defendant. 
 
 CEETIPICA-TE OP COUNSEL. 
 I hereby certify that in my opinion the foregoing plea of 
 C. D., defendant {or, of C. D. and B. P., defendants), to the 
 bill of complaint of A. B., complainant, is well founded in 
 point of law and is proper to be filed in the above cause. 
 
 Of Counsel for Defendant, C. D. 
 {Or, for Defendants, C. D. and E. P.) 
 
 APPIDAVIT OP DEPENDANT. 
 
 State of Michigan, ) 
 
 County of , J **• 
 
 C. D., the defendant in the foregoing plea named, being 
 duly sworn, says {or, C. D. and E. P., the defendants in the fore- 
 going plea named, being severally duly sworn, say) that he 
 has {or, they have) heard read the foregoing plea to the bill 
 of complaint of A. B., complainant, and knows {or, know) the 
 contents thereof, and that the same is not interposed for the 
 purpose of delaying the said suit or any proceedings therein 
 and that he knows or has good reason to believe or, they know 
 or, have good reason to believe or, that this defendant, C. D., 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 91 
 
 knows and this defendant, E. F., has good reason to believe) that 
 the seme is true in point of fact. 
 
 Subscribed and sworn to before me this day of 
 
 , A. D. 19... 
 
 Notary Public, 
 
 county, Michigan. 
 
 My commission will expire , 19 . . . 
 
 TO JURISDICTION. 
 (Commencement as ante to the *.) 
 
 That at the time of the filing of the said bill of complaint of 
 the said complainant neither of the parties in interest in the 
 subject matter of the said bill, either as defendants or com- 
 plainants, resided or now reside, in the said county of , 
 
 that is to say, the said defendant, C. D., then resided and still 
 
 resides in the countj' of in the state of Michigan, and 
 
 the defendant, E. F., then resided and still resides in the county 
 
 of , in the state of ; and the said complainant 
 
 then resided and still resides in the county of , in the 
 
 state of Michigan, and that the subject matter of the said bill 
 is not local and noes not in any manner relate to nor affect 
 
 any land or real estate situate in said county of , in 
 
 which the said bill of complaint is exhibited. 
 
 All which (conclusion as ante). 
 (Add certificate of counsel and affidavit.) 
 
 INFANCY OF COMPLAINANT. 
 (Commencement as ante to the *.) 
 
 That at the time of the filing of the said bill of complaint 
 the said complainant was, and still is an infant under the age 
 
 of twenty-one years, that is to say of the age of years 
 
 or under, and that no person has been appointed next friend of 
 the said complainant. 
 (Conclude as ante.) 
 
 NE UNQUES ADMINISTRATOR. 
 (Commencement as ante to the *.) 
 
 That he is not, and never has been administrator of the es- 
 tate which was of E. F., deceased, in the said bill named, as the 
 said complainant has in his said bill untruly alleged and charged. 
 (Conclude as ante.) 
 
 COMPLAINANT IS NON COMPOS MENTIS. 
 (Commencement as ante to the *.) 
 
 That the said complainant, who by himself alone has ex- 
 hibited his bill of complaint in this cause, was before and at 
 
92 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 the time of filing his said bill and still is an insane person, and 
 was adjudged and determined to be insane and mentally incom- 
 petent to have the charge and management of his property by 
 the probate court for the county of , which said ad- 
 judication still remains of full force, not reversed nor vacated 
 nor set aside, as in and by the records and files of the said 
 Probate Court, whereto reference is prayed, fully appears, 
 and this defendant avers that the said A. B. so adjudicated to 
 be incompetent as aforesaid and the said complainant are the 
 same person and not other or different persons. 
 (Conclude as ante.) 
 
 AN ALIEN ENEMY. 
 (Commencement as ante to the *.) 
 
 That the complainant, A. B., is an alien born of foreign par- 
 ents and in foreign parts, that is to say at Valencia, in the 
 Kingdom of Spain, (or as the case may he) and out of the 
 United States of America, and under the allegiance of the King 
 of Spain, (or as the case may be) who is an enemy of the United 
 States; and that the complainant before and at the time of the 
 filing his said bill of complaint was and still is a subject of the 
 said King of Spain and an enemy of the Unfted States, and has 
 not been made a citizen of the United States by naturalization or 
 otherwise. 
 (Conclude as ante.) 
 
 COMPLAINANT DOES NOT SUSTAIN THE CHARACTER 
 
 UNDER WHICH HE SUBS. 
 (Commencement as ante to the *.) 
 
 That the said complainant, A. B., is not the administrator of 
 S. Q., deceased as in the said bill alleged, and is not the legal 
 representative of S. Q., deceased, duly appointed and qualified 
 as therein untruly set forth. 
 (Conclude as ante.) 
 
 COMPLAINANT HAS PARTED WITH HIS INTEREST. 
 (Commencement as ante to the *.) 
 
 That before and at the time of the filing of the said bill and 
 
 on or about the day of , A. D. 19.., the 
 
 said complainant assigned, transferred and set over all and 
 singular his right, title and interest of, in and to all and sin- 
 gular the matters and things set forth and alleged in the said 
 bill, and all rights of action, as well equitable as legal, arising 
 or to arise therefrom, to one , and the said complainant, 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 93 
 
 had not at the time of the filing of the said bill and has not now 
 any interest whatever in the subject matter thereof. 
 (Conclude as ante.) 
 
 FORMER ADJUDICATION. 
 
 (Commencement as ante to the *.) 
 
 That after the occurrence of the matters amd things alleged 
 in the complainant's said bill and before the commencement of 
 
 this suit, that is to say on the day of , A. 
 
 D. 19 . . , in the Circuit Court for the county of : In 
 
 Chancery, the said complainant, E. F., filed his bill of com- 
 plaint against this defendant and one G. H., stating and charg- 
 ing (state suiject matter of that hill) and claiming such rights 
 and interests therein as he now prays by his present bill and 
 praying relief against this defendant in the same manner, and 
 for the same matters, and to the same effect, as the said com- 
 plainant now prays by his said present bill; and that this de- 
 fendant and the said G. H. appeared and put in their answer 
 (or their several answers) to the said former bill, and the com- 
 plainant replied thweto, and proofs were taken in said former 
 suit in relation to the matters in controversy, and the said former 
 suit came on to be heard before the said last mentioned court 
 
 and a final decree was, on the day of , A. D. 
 
 19 . . , rendered therein in form and effect as follows : (insert 
 decree), and that the said former bill and said several proceed- 
 ings and final decree in the said former suit still remain de- 
 termined and in full force and effect. 
 (Conclude as ante.) 
 
 FORMER SUIT PENDING. 
 (Commencement as ante to the *.) 
 That before the time of the filing of the bill of complaint 
 
 in this cause and on the day of , A. D. 19 . . , 
 
 the said complainant exhibited his bill of complaint in this 
 court against this defendant and one E. F., for an account 
 of the moneys raised by the goods and property in the com- 
 plainant's present bill mentioned, and claiming such shares and 
 proportions thereof and such rights and interests therein as he 
 now claims by his present bill, and praying relief against this 
 defendant in the same manner and touching the same matters 
 and to the same effect as the complainant now prays by his said 
 present bill; and this defendant and the said E. F. appeared 
 and put in their answer (or, their several answers) to the said 
 
94 stage's MICHIGAN CHANCEBY PEACTICE AND EOEMS 
 
 former bill and the said complainant replied thereto; and the 
 said former bill and the several proceedings in the said former 
 suit now remain depending and of record in this honorable 
 court, the said former suit being as yet undetermined and not 
 dismissed. 
 (Conclude as ante.) 
 
 ORDER OP REFERENCE TO PLEA OF FORMER 
 ADJUDICATION. 
 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 The defendant, C. D., having filed a plea in this cause aver- 
 ing that there was a former adjudication in this court (or, in 
 
 the Circuit Court for the county of : In Chancery, 
 
 between the same parties of the same matters which are involved 
 in the present suit) ; it is ordered that this cause be, and the 
 same is referred to J. M. 0., Esq., a circuit court commissioner 
 
 of said county of , to look into the bill and plea in this 
 
 cause and the said former bill in the said plea mentioned as hav- 
 ing been exhibited by the complainant against the defendant 
 (and one G. H.) and determined previous to the commencement 
 of this suit, and into the other pleadings and proceedings therein, 
 and to report his opinion whether or not the said plea is true. 
 
 Circuit Judge. 
 
 OP STATUTE OP LIMITATIONS. 
 
 (Commencement as ante to the *'.) 
 
 That if the complainant, either in his own right or as executor 
 of the last will and testament of E. P., deceased, in the said bill 
 named, ever had any cause of suit or complaint against him, this 
 defendant, for or concerning the matters, transactions or deal- 
 ings in the said bill of complaint mentioned or any thereof, 
 which this defendant doth not in any manner admit, the same 
 
 did accrue or arise more than years before the said bill 
 
 of complaint was exhibited in this honorable court; and this 
 defendant for a further plea in this behalf says and avers that 
 
 he did not, at any time within years before the filing 
 
 of the said complainant's said bill of complaint, ever promise 
 
 or agree to come to any account for, or to pay or in any way 
 
 satisfy the complainant any money or other valuable thing for 
 
 or concerning any of the matters, transactions or dealings in 
 
 the complainant's said bill of complaint set forth, charged or 
 
 alleged. 
 
 (Conclude as ante.) 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 95 
 
 PLEA TO PART OF BILL AND ANSWER TO THE 
 RESIDUE. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 A. B., Complainant, ] 
 
 C. D., Defendant. J 
 
 The plea of C. D., defendant, (or, one of the defendants) to 
 part and the answer of the same defendant to the residue of 
 the bill of complaint of A. B., complainant. 
 
 This defendant, by protestation, not confessing nor acknowl- 
 edging all or any of the matters and things in the complain- 
 ant's said bill mentioned to be true in such manner and form 
 as the same are therein and thereby set forth and alleged, to 
 all the relief sought by the said bill, and also to all matters 
 therein stated and charged, * except in respect to (state the 
 matters to which answer is to be made, and if interrogatories 
 as to such matters are inserted in the said bill, state them fully) 
 this defendant does plead in bar and for plea says : (set out the 
 plea). 
 
 All of which matters and things this defendant avers to be 
 true, and doth plead the same in bar to the whole of the said 
 bill, except such parts thereof as are above particularly men- 
 tioned, and this defendant prays the judgment of this honor- 
 able court whether he ought to be compelled or required to 
 make any further or other answer to so much of the said bill 
 as is hereby pleaded unto. 
 
 And for answer to such parts of the said bill as are above 
 excepted this defendant, answering, says : 
 
 1. (Anstver the matters not pleaded to in the same manner 
 as an ordinary answer, and conclude:) 
 
 All which this defendant is ready to aver, maintain and 
 prove as this court shall direct, not admitting nor confessing 
 that any matter or thing in the said bill contained, and not 
 herein or hereby well and sufficiently answered or pleaded unto, 
 is true to the knowledge or belief of this defendant, and this 
 defendant prays to be hence dismissed with his reasonable costs 
 and charges in this behalf sustained. 
 
 Y. Z. Solicitor for Defendant C. D. and Counsel. C. D. 
 
 (Add certificate also affidavit.) 
 
 PLEA TO PART OF BILL AND DEMURRER TO RESIDUE. 
 
 (Title of court and cause.) 
 
 (Commencement, changing "answer" to "demurrer" as in last 
 
 form to the *, then say:) 
 
 For plea to so much of the said bill as prays that this de- 
 fendant may answer and set forth whether qualified as 
 
96 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 the executor of the last will and testament of deceased 
 
 by filing the bond required by the Probate Court of the county 
 
 of , whereupon letters of administration were issued 
 
 to him with the will annexed, this defendant says : 
 
 That, as will more fully appear by the records and files of the 
 
 said Probate Court, on the day of , A. D. 
 
 19 . . , by its order of that date, the said Probate Court committed 
 the execution of the said will and granted the administration of 
 
 the estate of the said deceased to and 
 
 , and directed that upon their filing a bond in the penal 
 
 sum of dollars with sufficient sureties, duly approved, 
 
 letters testamentary be issued to them. 
 
 That afterwards, and on the day of , A. D. 
 
 19 . . , the said filed in the said Probate Court his 
 
 declination to act as executor of the said will, and on the same 
 
 day the said filed his bond in the penal sum of 
 
 dollars as set forth in the said bill of complaint, and thereupon 
 letters testamentary with the will annexed were granted to the 
 said by the said Probate Court without any prelim- 
 inary order other than the said order of the said Probate Court 
 made on the day of A. D. 19 . . , and with- 
 out notice of any kind to this defendant, and that the claim of 
 
 this defendant was afterwards allowed at the sum of 
 
 dollars by commissioners on claims appointed by the said Pro- 
 bate Court. 
 
 Therefore this defendant pleads the said matters of record 
 in the said Probate Court in bar to so much of the said bill 
 of complainant as is hereinbefore particularly mentioned, and 
 prays the judgment of this honorable court whether he ought to 
 be required to make any further answer to so much of the said 
 bill as is hereby pleaded unto. 
 
 And this defendant, not waiving his said plea, but insisting 
 thereon, as to the residue and remainder of the said bill of 
 complaint, doth demur thereto, and says that the said com- 
 plainant hath not thereby made or stated such a case as entitles 
 him to any relief against this defendant in a court of equity for 
 the following reasons: (state the reasons briefly and plainly 
 as well as to matters of form as to matters of substance, and 
 conclude as follows:) 
 
 Wherefore this defendant demurs to so much of the said bill 
 not hereinbefore pleaded unto, and prays the judgment of 
 this honorable court whether he shall be required to make any 
 further or other answer thereto, and he prays to be hence dis- 
 missed with his reasonable costs in this behalf sustained. 
 CD. 
 
 Solicitor for Defendant and of Counsel. 
 
 (Add certificate of counsel.) 
 (Also certificate of counsel and affidavit.) 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 97 
 
 PLEA OP KELEASE COUPLED WITH ANSWER. 
 (Title of court and cause.) 
 
 The plea of C. D., defendant, {or, one of the defendants) to 
 a part of the bill of complaint of A. B., complainant, and the 
 answer of the said defendant to the residue thereof. 
 
 This defendant by protestation, not confessing nor acknowl- 
 edging all or any of the matters and things in the said com- 
 plainant's said bill of complaint mentioned to be true in such 
 manner and form as the same are therein, and thereby set forth, 
 for plea to so much and such parts of the said bill of com- 
 plaint as seeks an account of the several dealings and trans- 
 actions between this defendant and the said complainant previ- 
 ously and up to the day of , A. D. 19.., 
 
 and prays the balance, if any, which shall be found due upon 
 taking such account from this defendant may be paid by him 
 to the complainant *, this defendant doth plead thereto, and 
 says that previous to the time of the filing of the said com- 
 plainant 's said bill, that is to say on the said day of 
 
 , A. D. 19 . . , the said complainant, in consideration of 
 
 the sum of dollars to him then paid by this defend- 
 ant, by a certain written instrument of release under his hand 
 and seal, now in the possession of this defendant ready to be 
 produced to this honorable court, did for himself, his executors 
 and administrators remise, release and forever quit-claim unto 
 this defendant, his heirs, executors and administrators, among 
 other things all the several matters and things in the com- 
 plainant's said bill mentioned and complained of, an account 
 where of is thereby sought against this defendant as aforesaid, 
 and all suits and demands whatsoever as well at law as in equity 
 which the said complainant then had or might thereafter have 
 in resp«ct of the several dealings and transactions, matters and 
 things in the said bill mentioned, or any of them; and this de- 
 fendant avers that the said release was freely, fairly and vol- 
 untarily given and executed by the said complainant on the day 
 the same bears date, and that the complainant well knew the 
 nature and effect thereof previously to giving and executing 
 
 the same^ and that the sum of dollars so paid by this 
 
 defendant to the complainant as aforesaid was a full and fair 
 equivalent for any demand which the complainant could or might 
 have against the defendant in respect of the several matters 
 therein and in the said bill also mentioned or any of them. 
 
 Therefore this defendant pleads the said release in bar to so 
 much of the complainant's bill as is hereinbefore particularly 
 mentioned, and prays the judgment of this honorable court 
 whether he ought to be required to make any further answer 
 to so much of the said bill as is hereinbefore pleaded unto. 
 
 And this defendant, not waiving his said plea, but insisting 
 
98 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 thereon, for answer to the residue of the said bill and in sup- 
 port of his said plea says : 
 
 He denies that the said release was unduly obtained by this 
 defendant from the complainant, and denies that the complain- 
 ant was ignorant of the nature and effect of such release at 
 the time of executing the same, and denies that the consideration 
 paid by this defendant to induce the complainant to execute the 
 same was inadequate to the just claims and demands of the 
 said complainant against this defendant in respect to the sev- 
 eral dealings and transactions in the said bill mentioned or any 
 of them. 
 
 And this defendant denies (answer the residue of the bill 
 not pleaded to and conclude with the conclusion of answer.) 
 
 CD. 
 Y. Z. 
 
 Solicitor for Defendant C. D. and of Counsel. 
 (Add certificate of counsel.) 
 
 Affidavit of truth, inserting the words "and answer" after 
 the word "plea" in each place where the same occurs, and in 
 the last clause instead of "that the same is true" say "that the 
 said plea and answer are true in point of fact." 
 
 ACCOUNT STATED COUPLED WITH ANSWER. 
 (As in last form to the *, then proceed:) 
 This defendant doth plead thereto and says that previously 
 
 to the filing of the said bill, that is to say on the said 
 
 day of , A. D. 19. ., the said complainant and the de- 
 fendant did make up, state and settle an account in writing, a 
 counterpart whereof was then delivered to the said complain- 
 ant, of all sums of money which this defendant had before that 
 time, by the order and direction and for the use of the complain- 
 ant received, and of all matters and things thereunto relating or 
 
 at any time before the said day of , A. D. 
 
 19 . . , being or depending between the complainant and this de- 
 fendant and in respect whereof the complainant's said bill of 
 complaint has been since filed; and the complainant after a 
 strict examination of the said account and every item and par- 
 ticular thereof, which this defendant avers, accordiag to the 
 best of his knowledge and belief to be true and just, did ap- 
 prove and allow the same, and then this defendant, paid to the 
 said complainant and the said complainant then actually re- 
 ceived from this defendant the sum of dollai's, the 
 
 balance of the said account then found by the said account to 
 be justly due to him from this defendant, and the said com- 
 plainant then gave to this defendant a receipt and acquittance 
 in writing under his hand for the same which receipt and ac- 
 quittance is in the words and figures following, that is to say: 
 (set out receipt verbatim,), as by the said receipt and acquit- 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 99 
 
 tance now in the possession of this defendant ready to be pro- 
 duced to this honorable court, will fully appear. 
 
 Therefore this defendant pleads the said stated account and 
 receipt and acquittance in bar to so much of the said bill of 
 complaint as is hereinbefore particularly mentioned, and prays 
 the judgment of this honorable court whether he ought to be re- 
 quired to make any further answer to so much of the said bill 
 as is hereby pleaded unto. 
 
 And this defendant not waiving his said plea, but insisting 
 thereon, for answer to the residue of the said bill and in sup- 
 port of his said plea says: 
 
 He denies that the assent of the complainant to said stated 
 account and the said receipt of acquittance were unduly obtained 
 by the defendant from the complainant, and denies that the 
 said complainant was then ignorant of the nature and effect 
 thereof, and denies that the said account- was unfairly or incor- 
 rectly stated, and denies that there were any other items not 
 included therein which ought to have been allowed to the said 
 complainant or charged to this defendant. 
 
 And he denies (proceed to answer the residue of the hill and 
 conclude). 
 
 (Adding certificate of counsel and affidavit as in last pre- 
 cedent.) 
 
 AMENDMENT TO PLEA. 
 (Title of court and cause.) 
 
 Amendment to the (first) plea of the defenadnt C. D. filed in 
 the above entitled cause, made in pursuance of an order of this 
 court made on the day of , A. D. 19 . . . 
 
 1. In the line of the folio of the said 
 
 plea after the words , insert the words following : (here 
 
 insert the amendment.) 
 
 2. Strike out the words in the . . . ." folio of the 
 
 said plea and insert instead of the words (And so 
 
 on pursuant to the order.) 
 
 Solicitor for the Defendant. 
 
 ORDER THAT PLEA STAND FOR ANSWER. 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 At a session of the said court held at the courthouse in the 
 of , said county of , on the 
 
100 stage's MICHIGAN CHANCEBY PEACTICB AND FOEMS 
 
 day of , in the year one thousand nine hundred and 
 
 .) 
 
 Present: The Hon, 
 
 Circuit Judge. 
 A. B., Complainant, 
 
 V. 
 
 C. D. and E. F., Defendants. 
 
 The plea of the defendant, C. D., to the bill of complaint in 
 this cause having come to be heard and having been argued, and 
 counsel as well on the part of the complainant as on the part 
 of the defendant, C. D., having been heard thereupon; it is or- 
 dered that the said plea do stand for an answer, with liberty 
 to the complainant, to except thereto. 
 
 Circuit Judge. 
 
 ORDER OVERRULING PLEA. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the plea of the defend- 
 ant, C. D., to the bill of complaint in this cause and was argued 
 by counsel. 
 
 And thereupon, after due consideration thereof, it is ordered 
 that the said plea be and the same hereby is overruled, and that 
 the said defendant answer the said bill of complaint within 
 (fifteen) days from the date of this order, and that in default 
 thereof that the said bill be taken as confessed by the said 
 defendant, C. D., for want of an answer. 
 
 And it is further ordered that the said defendant, C. D., pay 
 to the complainant the costs of the said plea and hearing thereof, 
 hereby taxed at the sum of dollars, and that the. com- 
 plainant have execution thereof. 
 
 Circuit Judge. 
 
 DECRETAL ORDER ALLOWING PLEA. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the plea of the defend- 
 ant, C. D., to the bill of complaint therein and was argued by 
 counsel. 
 
 And thereupon after due consideration thereof, it is ordered, 
 adjudged and decreed that the said plea be, and the same hereby 
 is allowed and adjudged to be well pleaded, and that the said 
 complainant pay to the said defendant the costs of the said plea 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 101 
 
 and hearing thereof, hereby taxed at the sum of (tweiity) ' 
 dollars, and that the said defendant have execution thereof. 
 
 And it is further ordered, adjudged and decreed that on pay- 
 ment of the said costs the said complainant may, within ten 
 days after notice of this order, take issue upon the said plea 
 or move for leave to amend his said bill, and that in default of 
 such motion for leave to amend and in default of taking issue 
 on such plea, the said bill of complaint be dismissed. 
 
 Circuit Judge. 
 
 REPLICATION TO PLEA. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 A. B., Complainant, 1 
 
 ^- I 
 
 C. D. and E. F., Defendants. J 
 
 The complainant says that notwithstanding the plea of the 
 said defendant, C. D., he is entitled to the relief prayed in his 
 bin of complaint. 
 
 ^ X. Y. 
 
 Solicitor for Complainant. 
 
 Disclaimer. 
 
 § 125. A disclaimer is an assertion by the defendant 
 that he has no right, title to, or interest in, the subject 
 matter in demand by the bill, and that he renounces all 
 claim thereto,^ and in order to entitle the defendant to 
 have the bill dismissed as to him with costs it should 
 aver that he does not and never did claim and that he 
 disclaims all right and title in the subject matter of the 
 suit.^ 
 
 Although a disclaimer is in substance distinct from an 
 answer, yet it cannot be put in without an answer in 
 those cases where the complainant is entitled to an an- 
 swer. As where the defendant has had all interest in 
 the subject matter, but has transferred it, he must an- 
 swer, giving the name of his transferree.^ A party to 
 
 1—1 Dan. Ch. PI. & Pr. 706; 3— Mitf. Eq. PI. 318; 1 Dan. Ch. 
 
 Story Eq. PI. See. 883 et seq. PI. & Pr. 706. 
 
 2 — Vale V. Merideth, 18 Jur. 992; 
 1 Dan. Ca. PI. & Pr. 707. 
 
102 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 an account cannot by disclaiming protect himself from 
 setting out the account in an answer and in a suit where 
 a deed or other instrument is sought to be set aside for 
 the fraud of the agent of the grantee, such agent cannot 
 avoid his liability by disclaiming* and an answer must 
 be made as to the alleged fraudulent transaction. 
 
 § 126. Where an answer on oath is required the dis- 
 claimer must be sworn to. It must be signed by the 
 defendant and by counsel and filed and served in the 
 same manner and within the same time as an answer, 
 which it is in point of form and the form books all show 
 forms of disclaimer and answer.^ 
 
 A defendant cannot disclaim in a demurrer.^ 
 
 § 127. When a disclaimer is filed to the whole bill the 
 course of the complainant is not to reply but to discon- 
 tinue further proceedings against that defendant or 
 amend his bill,^ but^a pure disclaimer without any fur- 
 ther answer is rarely permissible except in those cases 
 wherein the bill merely alleged that the defendant has 
 an interest without defining what that interest consists of. 
 
 The general allegation in a foreclosure bill that a 
 defendant has, or claims to have, rights or interests in 
 the mortgaged premises as subsequent purchaser, in- 
 cumbrancer or otherwise is not sufficient to vput in issue 
 the rights of a defendant who claims by title paramount 
 to the mortgage and in such cases a disclaimer of being 
 such subsequent purchaser or incumbrancer is all that 
 is necessary to protect the paramount rights of such 
 defendant.^ 
 
 A disclaimer filed in a bill to quiet title must be accom- 
 panied by a release to be effective.^ 
 
 § 128. A defendant may demur to one part of a bill, 
 
 4r— Laprad v. Sherwood, 79 Mich. 8— Comstock v. Comstock, 24 
 
 520; 1 Dan. Ch. PI. & Pr. 707. Mich. 39. 
 
 5—1 Dan. Ch. PI. & Pr. 708. 9— C. L., Sec. 448; ElHson v. 
 
 6-^Proctor v. Plumer, 112 Mich. Kittredge, 45 Mich. 475; Blodgett 
 
 ^^3- V. Dwight, 38 Mich. 596. 
 
 7—1 Dan. Ch. PI. & Pr. 708. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 103 
 
 plead to another, disclaim as to another and answer the 
 remainder, but each defence must be to a separate and 
 distinct part of the bill." 
 
 § 129. A disclaimer must be full and explicit and if 
 necessary accompanied by an answer fuU and complete 
 as to the facts necessary to be answered in support of 
 the disclaimer.^i If the answer be insufficient in this 
 respect the complainant may move for a further answer.^* 
 
 ANSWER AND DISCLAIMER. 
 (Title of court and cause.) 
 
 The answer and disclaimer of C. D., one of the defendants, to 
 the bill of complainant of A. B., complainant. 
 
 (Proceed with answer in usual form to every part of the Mil 
 requiring an answer, and after the last averment of fact insert:) 
 
 And this defendant further says that he never had or claimed 
 or pretended to have any right, title or interest of, in or to (state 
 the matter disclaimed), or any part thereof, and this defendant 
 disclaims all right, title and interest of, in or to the same. 
 
 (Conclude as in answer.) 
 
 DISCLAIMER. 
 
 (Title of court and cause.) 
 
 The disclaimer of C. D., one of the defendants, to the bill of 
 complaint of A. B., complainant. 
 
 This defendant, saving and reserving to himself all right and 
 benefit of exception to the said complainant's said bill for answer 
 thereto says : 
 
 1. That he fully and absolutely disclaims all and all manner 
 of right, title and interest whatever in and to the (here insert 
 legacy or land or whatever matter is in dispute) in the said bill 
 of complaint, mentioned and each and every part thereof. 
 
 2. And this defendant, not admitting any matter or thing in 
 said bill contained to be true as therein stated and set forth, 
 denies that the said complainant is entitled to any relief against 
 him by reason of anything in the said bill contained, and prays 
 to be hence dismissed with his reasonable costs in this behalf 
 
 sustained. 
 
 CD. 
 
 Soiicitor and of Counsel for Defendant, C. D. 
 (If answer on oath is required, add jurat.) 
 
 10— Mitf. Eq. PI. 319-320; Story 11—1 Dan. Ch. PI. & Pr. 706-707. 
 
 Bq. PI. Sec. 436, 437 and 839. 12— Chancery Bule lOf. 
 
104 stage's MICHIGAN CHANCBEY PEACTICE AND FOBMS 
 
 Answer, 
 
 § 130. TTie most usual as well as the most satisfactory 
 defence to a bill in chancery, showing equitable rights in 
 the complainant, is by an answer, which goes to the en- 
 tire merits of the controversy. 
 
 Under the ancient practice all answers were required 
 to be on the oath of the defendant, but it was at a very 
 early day provided by statute in this state that, "When 
 a bill shall be filed in chancery, other than for discovery 
 only, the complainant may waive the answer being made 
 on the oath of the defendant, and in such cases the an- 
 swer may be made without oath and shall have no other 
 or greater force as evidence than the bill,i and in all 
 divorce cases the answer may be without oath. ' ' ^ 
 
 By rule, ''Whenever in a cause a sworn bill of com- 
 plaint is filed and a sworn answer demanded, the de- 
 fendant shall be required to file such sworn answer. But 
 neither a sworn bill nor a sworn answer shall have the 
 force of evidence except as to admissions and except on 
 the hearing of motions and petitions. Provided, how- 
 ever, that when a cause is heard on bill and answer, the 
 allegations of the answer shall be taken as true."* 
 
 Under the provisions of this statute and rule it is held 
 that in order to enforce an answer on oath the bill must 
 be on oath,* although until the adoption of this rule in 
 1896 an answer on oath might have been required to an 
 unsworn bill. 
 
 § 131. An answer consists of such statements as con 
 stitute a reply by way of admission or denial of the aver- 
 ments of the bill, and of answer to the interrogatories, 
 if any, therein and also of such other averments as the 
 defendant may deem neeessary or advisable to set forth 
 in his defence. 
 
 § 132. It is provided by rule that ' ' Every answer sh?ill 
 contain an explicit admission or denial of each allega- 
 
 1— C. L., Sec, 443. 4_World Mfg. Co. v. Cir Judge, 
 
 2— C. K, 8626. 115 jUch. 652. 
 
 3 — Chancery Eule 10a. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 105 
 
 tion in the bill of complaint of wMcli the defendant has 
 knowledge or belief. But as to matters charged in the 
 bill, as to which the defendant avers he has no knowledge 
 sufficient to form a belief, he shall not be required to 
 admit or deny the same, but shall state his want of such 
 knowledge. And every material allegation in the bill to 
 which the defendant shall not make answer shall be taken 
 as admitted by the defendant.® 
 
 Previous to 'the adoption of this rule it had been held 
 that any material fact alleged in the bill not expressly 
 admitted by the answer must be proved by the complain- 
 ant ' and it had become common for a defendant to say 
 in his answer that he neither admitted nor denied a par- 
 ticular allegation in the bill but left the complainant to 
 his proof, without giving any excuse by way of want of 
 knowledge, information or belief in the matter. Of 
 course in cases where an answer on oath was required 
 the complainant might have excepted to the answer for 
 insufficiency on account of evasion or equivocation, but 
 no such exception could have been taken to an answer 
 where the oath was waived.'" 
 
 The present rule declariug all allegations in the bill 
 that are not answered and no excuse for the failure to 
 answer given, as being admitted, tends to compel the de- 
 fendant to fully apprise the complainant of the nature 
 of his defence and to avoid the necessity and expense of 
 introducing evidence to prove such matters * as no proof 
 is required of facts admitted by the answer.® 
 
 Under this rule also matters which are neither ad- 
 mitted nor denied are taken as admitted where the an- 
 swer does not aver a want of knowledge or belief as to 
 such matters.'" 
 
 5 — Chancery Eule lOd. 8 — Hoock v. Sloman, 145 Mich. 19; 
 
 6 — Morris v. Morris, 5 Mich. 171; Nolan v. Garrison, 151 Mich. 138. 
 Morris v. Hoyt, 11 Mich. 9; Young 9 — Chapoton v. Prentis, 144 Mich. 
 
 V. McKee, 13 Mich. 552; Hardwick 283; Nolan v. Garrison, 151 Mich. 
 
 V. Bassett, 25 Mich. 149. 138. 
 
 7 — Morris v. Morris, 5 Mich, 171. 10 — Hoock v. Sloman, 145 Mich. 
 
 See Cununings v. Corey, 58 Mich. 19. 
 494. 
 
106 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 § 133. The answer must be full and explicit and must 
 apprise the complainant of the nature of the defence and 
 the defendant cannot avail himself of any matter of de- 
 fence not stated in the answer although appearing by 
 the evidence." Thus a general assertion in answer to a 
 judgment creditor's bill that a co-defendant (the judg- 
 ment debtor) had property liable to execution is too gen- 
 eral and is insufficient, the answer should specify what 
 the property is and where it is located/^ and an answer 
 alleging fraud must set forth the facts which constitute 
 the alleged fraud,^* and an answer seeking to impeach 
 a tax deed on which the complainant's bill is founded 
 must set forth specifically the facts which invalidate the 
 deed." 
 
 § 134. When a defendant who might by demurrer or 
 plea to the whole bill have protected himself from a 
 particular discovery, answers the bill, he thereby waives 
 the right to demur or plead and must answer as fully as 
 in any other case.^^ 
 
 Many matters which might have been taken advantage 
 of by demurrer or plea may be alleged as a defence by 
 the answer with equal effect, such as the statute of limi- 
 tations ^® or the statute of frauds.^^ So, if a defendant 
 has no reason to protect himself from any discovery and 
 can offer circumstances which would be favorable to his 
 case which he could not offer with a plea, he may set up 
 the matter of the plea with the circumstances in his an- 
 swer,^ ^ and it is often preferable to do this notwithstand- 
 ing that the plea might be a complete bar. But Judge 
 Story has said, "It is very far from being generally true 
 as is sometimes alleged in the books, that a defendant 
 
 11 — Reed v. Jourdan, 109 Mich. 15 — Gilkey v. Paige, Walk. Ch. 
 
 128 ; Chapoton v. Prentis, 144 Mich. 520. 
 
 283. 16 — Highstone v. Franks, 93 Mich. 
 
 12 — Eankin v. Bothachild, 78 Mich. 52. 
 
 10- 17—1 Dan. Ch. PI. & Pr. 712. 
 
 13— And. Gen. v. Stiles, 83 Mich. 18 — 1 Dan. Ch. PI. & Pr. 714. 
 460. 
 
 14 — ^Wagar v. Bowley, 104 Mich. 
 38. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 107 
 
 may by answer, avail himself of and insist upon, every 
 ground of defence which he could use by way of demurrer 
 or plea to the bill."!" 
 
 Thus an answer waives the right to object to a bill for 
 multifariousness,^" or because the • complainant has a 
 sufficient remedy at law.^^ 
 
 § 135. The point that the bill does not state such a 
 case as entitles the complainant to any relief, being the 
 ground of a general demurrer for want of equity, may 
 be taken by answer as well as by demurrer,^ ^ but the 
 law does not favor the raising of technical questions by 
 answer and will not permit the dismissal of a bill upon 
 a demurrer clause in the answer unless the bill is fatally 
 defective and past remedy by amendment.^* 
 
 If the defendant relies on an equitable estoppel in 
 pais he must set it forth fully in his answer.^* 
 
 A general allegation, in a creditor's bill against stock- 
 holders of an insolvent corporation, "that a large num- 
 ber of the subscriptions to the capital stock were not paid 
 at aU, while others were paid in worthless patent rights 
 and others in goods at fictitious prices," is sufficiently 
 answered by an individual stockholder against whom no 
 fraud was charged, by an averment "that he has fully 
 paid for the stock subscribed by him. ' ' ^^ 
 
 Demurrer Clause in Answer. 
 
 § 136. It is a common practice to insert in an answer 
 a clause claiming the benefit of a demurrer to the whole 
 bill or to some part thereof on account of defects therein. 
 This is only of any benefit where the bill fails to make a 
 case on which any relief can be granted and the clause 
 must point out the defect with as much precision as a 
 
 19— story Eq. PI. Sec. 847. 23— Smith v. Blake, 96 Mieh. 542. 
 
 20 — Wales v. Newbauld, 9 Mich. 24 — Moran v. Palmer, 13 Mich. 
 
 81; Payne v. Avery, 21 Mich. 537; 367. 
 
 Lyon V. Clark, 137 Mich. 438. 25 — American Mirror, etc. Co. v. 
 
 21— Lyon v. Clark, 137 Mich. 438. Bulkely, 107 Mich. 447. 
 
 22 — Atty. Gen. v. Thompson, 167 
 Mich. 507. 
 
108 stage's MICHIGAN CHANCERY PEAOTICE AND FOEMS 
 
 demurrer;** as above stated it is of no avail for mere 
 technicalities which can be cured by amendment. 
 
 § 137. Form of Answer. An answer begins with its 
 title specifying the defendant or defendants who make 
 the answer and stating the names of the complainants in 
 the suit. It may be made by one defendant alone or by 
 more than one. If by more than one it is entitled "The 
 joint and several answer of the defendants," naming 
 them. The body of the answer is usually prefixed by a 
 clause reserving the benefit of exception to the defects 
 in the bill, but it is diflBcult to see the effect of this general 
 clause under the present rule ; then follows the categori- 
 cal answer to each specific allegation of the bill, and to 
 each interrogatory, if any are included in the bill, and all 
 other matters in which the defendant relies in his defence. 
 It concludes with a general denial that anything not 
 answered in the bill is admitted thereby, (which general 
 denial although effective under the former practice, is 
 rendered useless by the present rule) an offer to prove 
 the allegations and averments therein and a prayer that 
 the bill be dismissed with costs. 
 
 When a clause in an answer admits of more than one 
 construction, it will be construed in accordance with the 
 intent of the pleader as gathered from the entire 
 answer." 
 
 "An answer shall be divided into paragraphs num- 
 bered consecutively, and each paragraph shall contain 
 as near as may be a separate and distinct allegation, 
 admission or denial. An answer not complying with this 
 rule shall be stricken from the files on motion, unless the 
 court shall deem it proper to allow amendments thereto 
 to cure the defect. ' '** 
 
 This is a rule of convenience and is similar to a rule 
 of the Federal Courts of the sixth circuit, in which Michi- 
 gan is placed save that the Federal Court rule also re- 
 
 26— Hint Land Co. v. Godkin, 28^Chancery Eule lOo. 
 
 136 Mich. 668. 
 
 27 — Newaygo County Mfg. Co. t. 
 Stevens, 79 Mich. 398. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 109 
 
 quires that the paragraphs of the answer shall be in the 
 same order as numbered in the bill before the answer 
 enters upon any statement of the defendant's case,^® and 
 an adherence to this provision in the state courts, while 
 not obligatory, will be found to be of great convenience 
 at the hearing. 
 
 "An answer may be sworn to before the persons and 
 in the manner specified in the rule governing verification 
 of bills of complaint. ' ' ** 
 
 In cases where an answer on oath .is waived it is never- 
 theless frequently advisable to put it in on oath as it may 
 then be used as an affidavit in opposition to motions for 
 injunction, receiver, alimony, etc., as well as on a motion 
 to dissolve an injunction granted ex parte on filing the 
 bill. 
 
 "An answer shall be signed by the defendant, or by 
 his agent or solicitor."'^ 
 
 Under the former practice all answers must have been 
 signed by the defendant if sui juris, but under this rule, 
 where an answer on oath is waived, signature by solicitor 
 is sufficient.*^ 
 
 § 138. Answer to Amended Bill. In answering an 
 amended bill if "the defendant has not answered the origi- 
 nal bill he should answer the entire bill as amended in the 
 same manner as if the amendment had been made before 
 filing the bill. If he has answered the original bill he 
 should answer to the amended bill only those matters 
 which were introduced by the amendment,^* as it would 
 be impertinent to repeat what already appears in the 
 answer to the original bill, unless by such repetition the 
 defence is materially varied. 
 
 § 139. Answers of infants and insane persons or idiots 
 must be made by their guardians ad litem. Nothing that 
 is alleged in the bill can be admitted by the infant nor by 
 his guardian ad litem for him, but every allegation in 
 
 29— Harsha's Federal Rules p. 99. 32— O'Donnell v. Circuit Judge, 
 
 30— Chancery Eule 10b. 146 Mich. 442. 
 
 31— Chancery Eule lOe. 33—1 Barb. Ch. Pr. 159. 
 
110 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 the bill must be strictly proved so far as the infant is 
 concerned and it is irregular for a guardian ad litem to 
 join with other defendants in an answer.?* The usual 
 answer of a guardian ad litem is to submit the rights and 
 interests of the infant to the consideration and protec- 
 tion of the court, without setting forth any special matter 
 of defence. 
 
 § 140. An answer may be amended without leave of 
 the court in any matter of form, or by filling up a blank 
 or correcting a date or reference to a document and may 
 be re-sworn at any time before a replication is put in or 
 the cause is set down for a hearing upon bill and answer.?" 
 
 But after replication, or such setting down for a hear- 
 ing, it shall not be amended in any material matters, as 
 by adding new facts or defenses or qualifying or alter- 
 ing the original statements except by leave of the court 
 upon cause shown after due notice to the adverse party." 
 
 § 141. Exceptions to Answer. The ancient practice of 
 excepting to answers for insufficiency or impertinence 
 had well nigh become obsolete, because useless, except 
 perhaps in some exceptional cases of judgment creditor 's 
 suits, and exceptions for scandal are very rare, and the 
 method of taking exceptions including a reference to a 
 Circuit Court commissioner for examination and report 
 was tedious and cumbersome. By rule it is now provided 
 that "All objections to an answer heretofore raised by 
 exceptions shall be disposed of by the court on special 
 motion. ' ' ?^ 
 
 It is provided by statute tha:t no answer to any bill filed 
 by a judgment creditor for a discovery as to frauds 
 charged in the bill shall be read in evidence against the 
 defendant on the trial of any indictment for the fraud 
 charged in the bill.?? 
 
 34 — Cooper v. Mayhew, 40 Mich. 35 — Chancery Eule 16f. 
 
 528; Sheahan v. Judge, 42 Mich. 69; 36 — Chancery Eule 16g. 
 
 Thayer v. Lane, Walk. Ch. 200; 37 — Chancery Eule lOf. 
 
 Chandler v. MeKinney, 6 Mich. 217; 38 — C. L., Sec. 440. 
 Wood V. Truax, 39 Mich. 628. 
 
stage's MICHIGAN CHANCBEY PKACTICE AND FOBMS 111 
 
 § 142. Ansivers Claiming Affirmative Relief. By the 
 ancient practice in cases where the defendant was entitled 
 to some affirmative relief against the complainant he 
 could have obtained such relief only by crossbill, which 
 he was allowed to file after answering the complainant's 
 bill, but in 1884 a rule was adopted allowing a defendant 
 to practically embody his cross bill in his answer, thus 
 avoiding the necessity of repetition in pleading. The rule 
 as it now stands is as follows : 
 
 "In any case in equity where a defendant shall claim 
 from the complainant any relief which, according to the 
 established course and practice of courts of chancery, 
 might be had by cross bill, such defendant shall be at 
 liberty by his answer to present the facts upon which his 
 equity rests, and to claim by such answer the benefit of 
 a cross bill, and the court shall have power to give relief 
 upon such answer to the same extent that it might have 
 given it had a cross bill been filed. But if the cause be 
 such that if a cross bill had been filed the practice of the 
 court would have required it to be sworn to, the answer 
 claiming such relief shall be under oath, notwithstanding 
 an oath thereto may be waived by the bill. 
 
 In such case the defendant shall first answer the alle- 
 gations of the bill in accordance with the foregoing rule 
 before entering upon an allegation of additional matters 
 upon which he shall claim affirmative relief. And his 
 allegations of additional matters and his prayer for 
 affirmative relief shall comply with the rule governing 
 the form of bills of complaint. 
 
 The complainant shall, within fifteen days after service 
 of such answer in the nature of a cross bill, file and serve 
 a demurrer, plea or answer to the matters therein con- 
 tained upon which the defendant prays affirmative relief, 
 which pleading and the practice thereon shall comply 
 with the rules governing similar pleadings. But the de- 
 fendant shall not be required to file a replication to any 
 such plea or answer. ' '^® 
 
 It has been held that, where all the facts entitling the 
 
 39 — Chancery Rule 11 a. b. c. 
 
112 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 defendant to affirmative relief were set up in the answer 
 without any prayer for such relief, the prayer might be 
 considered as inserted by amendment and relief might 
 be granted, the proofs showing him to be entitled 
 thereto." 
 
 As to what is proper to be shown in such an answer 
 will be treated of under the head of Cross Bills. 
 
 TITLES OF ANSWERS. 
 
 [By a sole defendant.] 
 The answer of C. D., defendant to the bill of complaint of 
 A. B., complainant. 
 
 [By one of several defendants.] 
 The answer of C. D., one of the defendants to the bill of com- 
 plaint of A. B., complainant. 
 
 [By several defendants jointly.] 
 The joint and several answer of C. D. and E. F., defendants, 
 {or, two of the defendants) to the bill of complaint of A. B., 
 complainant. 
 
 [By husband and wife jointly.] 
 The joint answer of C. D. and M. D., his wife, defendants {or, 
 two of the defendants) to the bill of complaint of A. B., com- 
 plainant. 
 
 [By an infant.] 
 The answer of C. D., an infant under the age of twenty-one 
 years, by G. H., his guardian ad litem, defendant {or, one of the 
 defendants) . 
 
 [By several defendants, adults and infants.] 
 The joint and several answer of C. D. and M. D., his wife, and 
 of E. F., and of Gr. H. and J. H., infants under the age of twenty- 
 one years, by K. L., their guardian ad litem, to the bill of com- 
 plaint of A. B., complainant. 
 
 [It will only be in very rare cases that infants can join with 
 adults in answering.] 
 
 [By a lunatic or person under guardianship.] 
 
 The answer (several answer) of C. D., a lunatic, (or, idiot, or 
 
 habitual drunkard, or other person under guardianship), by 
 
 T. W., his guardian ad litem, the defendant, {or, one of the 
 
 defendants) to the bill of complaint of A. B., complainant. 
 
 [To amended bill.] 
 The answer of C. D., defendant to the amended bill of A. B;, 
 complainant. 
 
 [To supplemental bill.] 
 
 40 — Cooley v. Harris, 92 Mieh. 
 126; Miller v. Steele, 146 Mieh. 123. 
 
stage's MICHIGAN CHANCERY PRACTICE AND J-ORMS 113 
 
 The answer of C. D., defendant to the supplemental bill of 
 A. B., complainant. 
 
 [Title of amended answer.] 
 The amended answer of C. D., defendant, to the bill of com- 
 plaint of A. B., complainant. 
 
 [Answer claiming benefit of cross bill.] 
 The ansM'er claiming the benefit of a cross bill of C. D., de- 
 fendant, [or, one of the defendants) to the bill of complaint of 
 A. B., complainant. 
 
 COMMENCEMENT OF ANSWERS. 
 
 (Protestation clause preceding answer.) 
 
 This defendant {or, these defendants), now and at all times 
 hereafter saving and reserving to himself {or, themselves) all, 
 and all manner of benefit and advantage of exception which 
 can or may be had or taken to the many errors, uncertainties, 
 insufficiencies, inconsistencies and other imperfections in the said 
 bill contained, for answer thereto, or unto so much and such 
 parts thereof as this defendant is {or, these defendants are) 
 advised is or are material or necessary for him {or, them) to 
 make answer unto *, this defendant answering, says: {or, these 
 defendants each for himself and not the one for the other answer- 
 ing say:) 
 
 1. He admits (or they admit, or deny, as the case may he, 
 etc.). 
 
 SHORT FORM. 
 This defendant {or, these defendants), saving and reserving 
 to himself {or, themselves) all benefit and right of exception to 
 the said bill of complaint *, for answer thereto says: {or, each for 
 himself and not the one for the other, say), etc. 
 
 BY INFANT. 
 As above in either form to the *, this defendant answering by 
 his said guardian ad litem, says that he is an infant of the age 
 
 of years and under the age of twenty-one years, and 
 
 he therefore submits his rights and interests in the matters in 
 question in this cause to the protection of this honorable court, 
 without this, that any matter, cause or thing in the said bill 
 contained and not herein sufficiently answered, is true to the 
 knowledge or belief of this defendant; {or after the *, by pro- 
 testation, not confessing nor admitting that any matter, cause or 
 thing in the said bill stated or charged is true to the knowledge 
 or belief of this defendant, this defendant answering, etc.) 
 
114 stage's MICHIGAN CHANCEEY PKACTICE AND FORMS 
 
 BY SOLE DEFENDANT. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 The answer of C. D., defendant, to the bill of complaint of 
 A. B., complainant. 
 
 This defendant, now and at all times hereafter saving and 
 reserving to himself all manner of benefit and advantage of ex- 
 ception which can or may be had or taken to the many errors, 
 uncertainties, insufSciencies, inconsistencies and other imperfec- 
 tions in the said bill contained, for answer thereto, or to so much 
 and such parts thereof as this defendant is advised is or are 
 material to make answer unto, this defendant answering, says : 
 
 1. He admits (or denies as the case may he) that on the! 
 day of , 19 . . , or at any time (proceed admit- 
 ting or denying the matters charged in the bill, the most con- 
 venient practice being to number the paragraphs of the answer 
 to correspond with the paragraphs of the bill to which they an- 
 swer respectively.) 
 
 (The saving and reservation in the above form is now in most 
 cases useless, and may be omitted and a short form used as fol- 
 lows:) 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 In answer of C. D., defendant, to the bill of complaint of 
 A. B., complainant. 
 He admits, etc. 
 
 COMMENCEMENT OP JOINT AND SEVERAL OF TWO 
 
 OR MORE DEFENDANTS. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 The joint and several answer of C. D. and E. F., defendants, 
 (or, two of the defendants) to the bill of complaint of A. B., 
 complainant (filed against these defendants and 6. H. and I. K., 
 as defendants).* 
 
 These defendants, saving and reserving to themselves all and 
 all manner of benefit and advantage of exception that can or 
 may be had or taken to the many errors, uncertainties, insuffi- 
 ciencies and other imperfections in the said bill contained, for 
 answer thereto, or unto so much and such parts thereof as these 
 defendants are advised is or are material or necessary for them 
 or either of them to make answer unto, these defendants each 
 for himself {or, herself) and not the one for the other (and 
 
stage's mCHIGAN CHANCERY PRACTICE AND FOEMS 115 
 
 not for or on behalf of the other defendants hereto or either or 
 any of them) answering, say : 
 
 1. They admit (or deny, as the case may he). 
 (Short form omitting unnecessary verbiage.) 
 (Venue.) 
 (Title of court.) 
 (Title of answer as last above.) 
 
 These defendants each for himself (and herself), and not the 
 one for the other (and not for or on behalf of the other defend- 
 ants or either or any of them), answering the said bill of com- 
 plaint say : 
 
 1. They admit (or deny), etc. 
 
 COMMENCEMENT BY ONE OF SEVERAL DEPENDANTS. 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 In several answer of C. D., one of the defendants, to the bill 
 of complaint of A. B., complainant, filed against this defendant 
 and E. F. and G. H., as defendants. 
 
 This defendant, now and at all times hereafter saving and 
 reserving to himself all manner of benefit and advantage which 
 can or may be had or taken to the many errors, uncertainties, 
 insufficiencies, inconsistencies and other imperfections in the 
 said bill contained, for answer thereto, or to so much and such 
 parts thereof as this defendant is advised is or are material for 
 him to make answer unto, this defendant for himself alone and 
 not for or on behalf of the other defendants or any or either 
 of them, answering, says : 
 
 1. He admits, etc. 
 (Short form omitting superfluous verbiage.) 
 
 The several answer of C. D., one of the defendants, to the 
 bill of complaint of A. B., complainant, filed against this de- 
 fendant and E. F. and G. H., as defendants. 
 
 This defendant for himself alone and not for or on behalf 
 of the other defendants or any or either of them, answering 
 the said bill of complaint, says : 
 
 1. He admits, etc. 
 
 BY FORMAL PARTY. 
 (Title of answer.) 
 
 This defendant, saving and reserving to himself all right and 
 benefit of exception to the said bill, answering for himself, says 
 that he is a stranger to all and singular the matters and things 
 stated and set forth in the said complainant's said bill of com- 
 plaint, and therefore leaves the complainant to make such proof 
 thereof as he shall be advised, this defendant not confessing nor 
 
116 stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 
 
 admitting that any matter, cause or thing in the said 'bill con- 
 tained is true to the knowledge or belief of this defendant. 
 
 And this defendant prays to be hence dismissed with his rea- 
 sonable costs and charges in this behalf most wrongfully sus- 
 tained. 
 
 C. D. 
 
 Solicitor and of Counsel for Defendant, C. D. 
 
 CONCLUSION OLD FORM. 
 And this defendant denies {or, these defendants deny) all 
 and all manner of combination and confederacy in the said bill 
 sharged, without this, that any other matter, cause or thing 
 in the said complainant's said bill of complaint contained, 
 material or necessary for this defendant {or, these defendants 
 or either of them) to make answer unto, and not herein well 
 and sufficiently answered, confessed and avoided, traversed or 
 denied, is true to the knowledge or belief of this defendant {or, 
 these defendants or either of them). All of which matters and 
 things this defendant {or, these defendants) is or are ready to 
 aver, maintain, and prove as this court shall direct, and humbly 
 prays {or, pray) to be hence dismissed with his {or their) rea- 
 sonable c»sts and charges in this behalf most wrongfully sus- 
 tained. 
 
 C. D. 
 
 Solicitor and of Counsel for Defendant. 
 
 SHORT FORM. 
 And this defendant {or, these defendants), not confessing nor 
 admitting that any matter, cause or thing in the said bill con- 
 tained and not hereby sufficiently answered, is true to his {or, 
 their) knowledge or belief, denies {or, deny) that the said com- 
 plainant is entitled to any relief against hjm {or, them or either 
 of them) by reason of anything in the said bill contained, and 
 prays {or, pray) to be hence dismissed with his {or, their) costs 
 in this behalf sustained. 
 
 C. D. 
 
 Solicitor for Defendant and of Counsel. 
 
 DEMURRER CLAUSES IN ANSWER. 
 REMEDY COMPLETE AT LAW. 
 And this defendant submits unto the court that all and every 
 of the matters in the said complainant's bill of complaint con- 
 tained are matters which may be tried and determined in a 
 court of common law, and in respect to which the said com- 
 plainant is not entitled to any relief in a court of equity; and 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 117 
 
 of this defence this defendant hopes that he shall have the same 
 benefit, as if he had demurred to the said bill for that cause. 
 
 FOR WANT OP EQUITY. 
 And this defendant submits unto the court that the said com- 
 plainant hath not in or by his said bill of complaint made or 
 stated such a case as doth or ought to entitle him to any relief 
 in a court of equity, because by the said bill it is stated (state 
 ground of demurrer as fully as in a demurrer), and of this 
 defence this defendant hopes that he may have the same benefit 
 as if he had demurred to the said complainant's bill for that 
 cause. 
 
 CLAUSES IN ANSWER CLAIMING BENEFIT OF STAT- 
 UTE OF FRAUDS. 
 And this defendant says that by the statute of this state, 
 being section 9511 of the Compiled Laws of thisi state, it is 
 among other things provided that every contract for the leas- 
 ing for a longer period than one year, or for the sale, of any 
 lands, or any interest in lands, shall be void, unless the con- 
 tract, or some note or memorandum thereof, be in vn-iting, and 
 signed by the party to whom the lease or sale is to be made, 
 or by some person thereunto by him lawfully authorized in 
 writing (giving the language of the statue relied on), and this 
 defendant insists upon the said statute, and claims the same 
 benefit as if he had pleaded the same. 
 
 CLAIMING BENEFIT OF PLEA. 
 And this defendant, further answering, says that the said 
 complainant ought not to have any relief against this defendant 
 on account of any matters in the said bill stated and charged, 
 because this defendant says and avers (state the matter which 
 might have been pleaded as fully as in a plea). And this de- 
 fendant hopes that he may have the same benefit of this defence 
 as if he had pleaded the same to the said complainant's said 
 bill. 
 
 ANSWERS. 
 
 SHORT FORM. 
 (Title of court and cause and title of answer.) 
 
 This defendant, reserving to himself all benefit of exception 
 to the said bill of complaint, for answer thereto, says : 
 
 1. He admits the statements in the first paragraph of the said 
 bill to be true. 
 
 2. He denies the statements made in the second paragraph 
 of the said bill. 
 
 (Proceed to admit or deny the material averments in each 
 
118 stage's MICHIGAN CHANCEBY PBACTICE AND FORMS 
 
 paragraph of the hill, inserting the true facts where necessary, 
 and inserting all matters of defence and avoidance as the nature 
 of the case may require; and conclude with short form of con- 
 clusion.) 
 (Add jurat, if answer on oath is required.) 
 
 TO BILL OP INTERPLEADER. 
 (Title of court.) 
 
 The several answer of the defendant, C. D., to the bill of com- 
 plaint of A. B., complainant, filed against this defendant and 
 E. F., defendants. 
 
 This defendant for himself alone and not for or on behalf of 
 the other defendant, answering the said bill of complaint, says: 
 
 1. He admits the matters stated in the first paragraph of 
 the said bill to be true, and avers that all and singular the state- 
 ments, representations and insistencies stated therein to have 
 been made by this defendant were and are true in substance and 
 matter of fact, and that at the time of the sale mentioned in 
 said first paragraph this defendant was in truth and in fact 
 the owner of the said (horses) and property in his own right, 
 
 and that he now is entitled to receive the said sum of 
 
 dollars, the purchase price thereof. 
 
 2. This defendant is informed and believes, and therefore on 
 said information and belief admits that the defendant, E. F., 
 applied to the said complainant and made the claim and in- 
 sisted and still insists that at the time of such sale he, the said 
 E. F., was the real owner of the said property, and that this 
 defendant was not the owner thereof, but was merely the agent 
 of the said E. F. in making such sale, and also then claimed that 
 he, the said E. F., was then solely entitled to the said sum of 
 dollars, the purchase price aforesaid, biit this defend- 
 ant avers that all and singular the said claims and statements of 
 the said B. F. were and are absolutely false and untrue, and 
 avers that the said E. F. was not then the owner of the said 
 property, nor of any part thereof, and had no interest whatso- 
 ever therein, and that the said E. F. is not entitled to the said 
 sum of dollars, nor to any part thereof. This defend- 
 ant admits, on like information and belief, that the said E. F. 
 gave to the said complainant the notice mentioned in the said 
 second paragraph of the said bill. 
 
 He admits, on like information and belief, that the said B. F. 
 has commenced {or, threatens to commence) a suit as stated in 
 the third paragraph of the said bill against the complainant for 
 
 the recovery of the said sum of dollars, purchase 
 
 money, and he admits that he has threatened to commence a 
 similar suit himself against the said complainant, and admits 
 that unless speedily paid such purchase money it was the inten- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 119 
 
 tion of this defendant to commence suit for the same against the 
 complainant. 
 
 4. Answering the fourth paragraph of the said bill, this de- 
 fendant says he has no knowledge of the matters therein stated 
 and has no information thereof save the statement in the said 
 bill, and therefore neither admits nor denies the same, but he 
 avers that the said complainant ought of right to pay the said 
 sum to this defendant. 
 
 5. He admits the allegations in the fifth paragraph of the 
 said bill to be true so far as they refer to this defendant, but 
 as to whether or not there is any collusion or agreement between 
 the said complainant and the said defendant, E. P., this defend- 
 ant does not know and has not sufficient information thereof 
 whereon to form any belief, and therefore neither admits nor 
 denies the same, but leaves the complainant to make such proof 
 thereof as he shall be advised. . 
 
 6. And this defendant further answering, says that his said 
 claim to the ownership of the said (horses) and property men- 
 tioned in the said bill of complaint is founded upon the follow- 
 ing facts : (state facts fully), and that therefore he claims, and 
 he is advised that such claim is weU founded in law and in 
 equity, that he, this defendant, is entitled to the said sum of 
 money and to the whole thereof, and that in justice and in right 
 the same ought to be paid to him. 
 
 '7. All which this defendant is ready to aver, maintain and 
 prove as this court shall direct, and prays the benefit of a cross 
 bill against the defendant, E. F., and that this court may decree 
 that the said sum of dollars, the purchase money afore- 
 said, may be paid to this defendant, and that the said defend- 
 ant, E. F., may be decreed to have no right, title nor interest 
 therein nor in any part thereof, and that the said E. F. may be 
 decreed to pay all and singular the costs of this suit, as well 
 those taxed in favor of the complainant, as those of this defend- 
 ant in this behalf sustained. 
 
 C. D. 
 O.P., 
 
 Solicitor for Defendant, C. D., and of Counsel. 
 (Add verification jurat.) 
 
 TO BILL FOR SPECIFIC PERFORMANCE. 
 
 [Verbal contract.] 
 Title of Court. 
 The answer of C. D., defendant, to the bill of complaint of 
 A. B., complainant. 
 
 This defendant, now and at all times hereafter saving and 
 reserving to himself all manner of benefit and advantage of 
 exception which can or may be had or taken to the many errors, 
 uncertainties, insufficiencies, inconsistencies and other imperfec- 
 
120 stage's MICHIGAN CHANCEKY PRACTICE AND FOBMS 
 
 tions in the said bill of complaint contained, for answer thereto, 
 or unto so much and such parts thereof as this defendant is 
 advised is or are material or necessary for him to make answer 
 unto, answering, says: 
 
 1. He admits that on the day of , A. D. 
 
 19 . . , Tie was the owner in his own right in fee simple of the 
 land and premises described in the first paragraph of the said 
 bill of complaint, but he denies that then or at any time, he made 
 a verbal' agreement or any agreement whatever with the said 
 complainant, whereby he agreed to sell or convey to the said 
 
 complainant all the said land for the sum of dollars, 
 
 or any other sum, to be paid in the manner stated in the said 
 first paragraph of the said bill of complaint or in any manner 
 whatever, and denies that the said complainant then or at any 
 time agreed to purchase the said land or to pay for the same 
 in the manner stated in the said first paragraph of the said bill or 
 in any manner whatever, and he denies that then or at any time 
 he agreed to give the said complainant immediate possession 
 of the whole of the said land, he, the said complainant, to pay 
 all taxes and assessments that should thereafter be assessed 
 thereon, and denies that the said complainant then agreed to pay 
 such taxes and assessments, but on the contrary thereof this de- 
 fendant avers the truth to be that on or about the said 
 
 day of , A. D. 19 . . , this defendant made a verbal agree- 
 ment with the said complainant whereby this defendant agreed 
 to sell and the said complainant agreed to purchase the west 
 half of the said land, at and for the said sum and purchase price 
 
 of dollars, to be paid as follows : dollars 
 
 thereof in one year from that day and dollars 
 
 thereof, in two years from that day and the balance and re- 
 mainder thereof, being dollars, in three years from that 
 
 day, with interest thereon payable annually on all sums from 
 time to time unpaid, and that the said complainant might have 
 immediate possession of the said west half of the said land and 
 should pay all taxes and assessments thereafter assessed thereon. 
 He admits that no written agreement nor memorandum thereof 
 was made.- 
 
 2. This defendant denies that, in pursuance of the agree- 
 ment alleged in the SEiid bill or otherwise, on or about the 
 day of , A. D. 19 . . , or at any time, this de- 
 fendant delivered possession of the said land and premises de- 
 scribed in the said bill of complaint to the complainant, and 
 denies that the said complainant then or at any time entered 
 into possession or occupation of the whole thereof, and denies 
 that ever since that time the said complainant has been or still 
 is, in such possession or occupation; but on the contrary, this 
 
 defendant avers the fact to be that on or about the day 
 
 of , A. D. 19.., he let the said complainant into 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FORMS 121 
 
 possession of the said west half of the said land described in 
 the said bill, and that the said complainant has ever since been 
 and still is in possession and occupation of the said west half 
 thereof. He further avers that at the time last aforesaid the 
 whole of the said land described in the said bill of complaint 
 was wild and unenclosed, and that the east half thereof still 
 remains unenclosed and wild, and that the said complainant 
 has never had possession of the said east half nor occupation 
 thereof, except so far as his cattle running at large in the un- 
 enclosed land in that vicinity may have strayed and pastured 
 thereon. 
 
 3. This defendant admits that the said complainant has paid 
 him the several sums mentioned in the third paragraph of the 
 said bill of complaint, but he denies that such several sums were 
 paid by the complainant or accepted by this defendant upon or in 
 accordance with the verbal agreement set forth in the said bill, 
 but on the contrary, he avers the truth to be that such pay- 
 ments and each and all of them, were made by the complainant 
 and accepted by the defendant upon and in accordance with the 
 said agreement stated in the first paragraph of this answer. He 
 denies that the complainant has paid the taxes assessed on the 
 land described in the said bill since the time of the mating of 
 the alleged agreement, but he admits that the complainant has 
 paid the taxes assessed on the west half thereof. 
 
 4. This defendant denies that during the time that the com- 
 plainant has been in possession of the lands described in the 
 said bill he has, at his own expense or otherwise, relying on said 
 alleged agreement, erected a valuable (dwelling house) or any 
 (dwelling house) thereon, and denies that he has made other 
 improvements thereon, and denies that he has treated, managed 
 and used the said land as his own property with the knowledge 
 or consent of this defendant. But this defendant admits that 
 
 since the said day of , A. D. 19 . . , the said 
 
 complainant has been in the possession and occupation of the said 
 west half of the said land described in the said bill and has 
 erected a (dwelling house) and other improvements, thereon, 
 but as to the expense thereof, this defendant does not know and 
 has not sufficient information whereon to found any belief, and 
 therefore neither admits nor denies the same and leaves the 
 complainant to make such proof thereof as he shall be advised. 
 He admits that the said complainant has treated, managed and 
 used the said west half of the said land as his own property, 
 with the knowledge and consent of the defendant ever since the 
 said day of , A. D. 19. .. 
 
 5. This defendant admits that at the expiration of three 
 
 years from the said day of , A. D. 19 . . , the 
 
 said complainant applied to this defendant and then offered 
 to pay this defendant the sum of dollars, being the 
 
122 stage's MICHIGAN CHANCEKY PEAOTICB AND FOBMS 
 
 remainder of the purchase money then remaining unpaid on 
 the agreement in the first paragraph of this answer set forth, 
 
 and also the sum of dollars, being the accrued interest 
 
 thereon, but denies that such offer was an unconditional tender, 
 and avers the truth to be that such offer was made upon the 
 express condition that this defendant should then with M. D., 
 his wife, make and execute to the said complainant a warranty 
 deed of conveyance of all the land described in the said first 
 paragraph of the said bill. And he admits that the said com- 
 plainant then presented to this defendant the draft of a deed 
 of conveyance of all the said last mentioned land in fee simple, 
 and in presence of a notary public, whose presence was pro- 
 cured by the complainant, requested this defendant to execute 
 the same and acknowledge the same before the said notary, and 
 he avera that the said complainant also then and there requested 
 this defendant to procure his wife, the said M. D., to execute 
 the same. This defendant admits that he then refused to execute 
 the said deed so prepared and presented to him, and he avers 
 that the true and only reason for such refusal was that the said 
 deed as prepared purported to convey to the said complainant 
 the whole of the land mentioned and described in said bill of 
 
 complaint, viz : (describe the land as in the bill}, 
 
 whereas the land actually agreed to be conveyed to the said 
 
 complainant for the sum of . ." dollars as aforesaid was 
 
 and is the west half of the said last described land and not 
 the whole thereof, and this defendant has always been and still 
 is ready and willing, and hereby offers to make and execute and 
 deliver to the said complainant a warranty deed of conveyance 
 of the said west half of the said land and to procure his said 
 wife to join him in the conveyance thereof upon the payment 
 
 to him of the said sum of dollars, the balance of the 
 
 purchase price aforesaid, and the interest thereon, according to 
 the terms of the actual and true agreement between this defend- 
 ant and the said complainant as hereinbefore stated. He admits 
 that he still holds the title to the said land in his own name and 
 is able to convey the same. But he avers that he is not willing 
 to convey more than the west half (describe land) to the com- 
 plainant for the price aforesaid, and avers that such west half 
 is all that he agreed so to convey for the price aforesaid, and 
 that the same west half of (describe land) is and was at the 
 time of making the said verbal contract well worth the said 
 
 purchase price of dollars. 
 
 6. This defendant denies that the said complainant has always 
 or ever been or now is ready or willing to perform his part of the 
 actual agreement made by him with this defendant on the said 
 
 .... day of , A. D. 19 . . , fully or specifically, and 
 
 denies that he has performed his part thereof, or any part 
 thereof, save making the payments hereinbefore mentioned, and 
 
stage's MICHIGAN CHANCEKY PEACTICE AND FOEMS 123 
 
 admitted, and he denies that the said complainant has specifically 
 performed his part of the said agreement, so far as he was not 
 prevented by the refusal of this defendant to accept the said 
 money, and he denies that he has ever prevented or hindered 
 the said complainant in any manner from specifically perform- 
 ing his part of the said agi-eement and denies that he ever re- 
 fused to accept the said money mentioned in the said fifth and 
 sixth paragraphs of the said bill, but on the contrary he avers 
 that the same was offered to him conditionally on his making a 
 conveyance of all the said (describe land), and avers that he, 
 this defendant, then offered to accept the said money and to 
 convey the said west half of the said land according to the true 
 and actual agreement between the parties and requested the said 
 complainant to pay him said money and accept such deed for 
 the said west half, but so to do the said complainant absolutely 
 refused, and still continually refuses. 
 
 7. And this defendant avers that in truth and in fact the 
 actual agreement made by and between this defendant and the 
 
 said complainant on the day of , A. D. 19 . ., 
 
 was, that in consideration of the sum of dollars to be 
 
 paid as follows, dollars in one year therefrom, and 
 
 dollars in two years therefrom, and the balance and 
 
 remainder in three years therefrom, with interest payable an- 
 nually on all sums from time to time unpaid, this defendant 
 would convey to the complainant the west half of (describe 
 land), and that there was no agreement nor understanding that 
 any more land than the said west half should be conveyed, and 
 this defendant shortly after the time of the said agreement put 
 the said complainant in possession of the said west half, and 
 the said complainant has been and continues in the possession 
 of the said west half from thence hitherto, and until about the 
 
 day of , A. D. 19 . . , the time when the last 
 
 installment of the said purchase price became due, the said com- 
 plainant never claimed nor pretended that any more land then 
 the said west half was included in the said agreement, and has 
 never to the knowledge or belief of this defendant exercised any 
 act of ownership or occupation of any more land than the said 
 west half. 
 
 8. And this defendant further shows that there is now due 
 
 and unpaid to him on the said agreement the sum of 
 
 dollars, being the balance of the principal remaining unpaid, 
 with interest thereon at the rate established by law from the 
 
 day of , A. D. 19 . . , and that this defendant 
 
 has often requested the said complainant to pay the same to him, 
 this defendant being ready and willing and offering upon such 
 payment to convey to the said complainant by a good and suffi- 
 cient deed of conveyance a perfect title in fee simple to the said 
 west half of (describe land), and to fully perform his part of 
 
124 stage's MICHIGAN CHANCEEY PBACTIOE AND FOEMS 
 
 the said agreeaAent, but so to do the said complainant has 
 hitherto refused and still refuses. 
 
 I. This defendant therefore prays that he may by this his 
 answer have the same benefit as if he had filed a cross bill in 
 this cause, and that the said eomplaiaant may come to an 
 account with this defendant as to the amount due to this de- 
 fendant for principal and interest on such agreement, and that 
 the said complainant may he decreed to pay the same to him 
 forthwith, together with his reasonable costs and charges in this 
 suit sustained, this defendant being ready and willing and 
 hereby offering to convey the said last described lands to the 
 said complainant on such payment by a good and sufficient deed 
 of conveyance according to the said contract, 
 
 II. And this defendant further prays that he may have such 
 further or such other relief in the premises as shall be agree- 
 able to equity and good conscience. 
 
 And this defendant will ever pray, etc. 
 
 CD. 
 Defendant. 
 
 Solicitor and of Counsel for Defendant. 
 
 STATEMENT IN ANSWER CLAIMING BENEFIT OP 
 CROSS-BILL. 
 
 And this defendant further answering and claiming the 
 benefit of a cross bill says that the said complainant ought in 
 eqtuty andJgood conscience to surrender the said note and mort- 
 gage mentioned in his bill of complaint and to discharge the 
 same of record, because he says and avers the truth to be that 
 after the giving of the said note and mortgage and before the 
 
 commencement of this suit, and on or about the day of 
 
 , A. D. 19 . . , this defendant and the said complain- 
 ant became co-sureties on the official bond of one N. 0., as city 
 
 treasurer of the city of , in the penal sum of 
 
 dollars, and that afterwards and before the commencement of 
 
 this suit and on or about the day of , A. D. 
 
 19 . . , the said city of as plaintiff recovered a judg- 
 ment in the circuit court for thg county of against the 
 
 said N. 0., and this defendant and the said complainant as joint 
 defendants, in a suit brought upon the said bond for the sum of 
 
 dollars damages, and the costs of that suit taxed at 
 
 the sum of , . dollars, as by the record of the said judg- 
 ment now remaining in said court, and whereto reference is 
 prayed, fully appears, and that afterwards and before the com- 
 mencement of this suit and on or about the day of 
 
 , A. D. 19. ., a writ of fieri facias was issued out of the 
 
 said court on the said judgment and delivered to the sheriff of 
 the said county of , to be exec'vited ip due form pf law, 
 
stage's MICHIGAN CHANCEEY PHACTICE AND FOEMS 125 
 
 and thereupon the said sheriff did by virtue thereof levy upon 
 certain property of this defendant of sufficient value to satisfy 
 the amount of the said judgment, and thereupon this defendant 
 was compelled to and did, before the commencement of this suit 
 
 and on the day of , A. D. 19 . . , pay to the 
 
 said sheriff with his own proper money, the full amount of the 
 said judgment with interest and costs amounting to the sum of 
 dollars. 
 
 And this defendant avers that the said N. 0. is wholly irre- 
 sponsible pecuniarily and has no property whatsoever within 
 this state to the knowledge or belief of this defendant, and has 
 absconded and this defendant has no knowledge or information 
 as to his present abode, and that this defendant and the said 
 complainant are the only sureties on the said bond and were 
 equally liable thereon, and that by reason thereof and of the 
 said payment by this defendant, the said complainant ought in 
 equity to contribute and pay one-half of the amount of the said 
 judgment so paid by this defendant. 
 
 And that the equal one-half of the said judgment so paid by 
 
 this defendant amounts to dollars, and exceeds the 
 
 amount due to the complainant from this defendant on his said 
 note and mortgage and that in equity this defendant is entitled 
 to set-off the same against the amount due to the complainant 
 on the said note and mortgage, and that the said note and mort- 
 gage should be surrendered to this defendant to be cancelled 
 and that the said mortgage should be discharged of record. 
 
 And this defendant further says that after making the said 
 payment as aforesaid and before the commencement of this suit 
 he applied to the said complainant, and in a friendly manner 
 requested him to contribute his share to the amount of the said 
 judgment, and to apply so much thereof as was sufficient for 
 that purpose as payment of the amount due on the said note 
 and mortgage, and to surrender the said note and mortgage to 
 this defendant as paid and satisfied and to discharge the said 
 mortgage, but so to do the said complainant refused, and shortly 
 thereafter filed his bill of complaint in this cause. 
 
 All which this defendant is ready to aver, maintain and prove, 
 and prays that he may have the same benefit of this answer as 
 if he had filed a cross bill. ' 
 
 And that an account may be taken of the amount paid by 
 this defendant on the said judgment and that one-half thereof, 
 or so much thereof as shall be sufficient for that purpose, may 
 be applied to the satisfaction of the said note and mortgage, 
 and that the complainant be decreed to pay the balance thereof 
 to this defendant, this defendant being ready and willing and 
 hereby offering to pay to the complainant whatever sum, if any- 
 thing, shall be found to be due to him on the said note and 
 mortgage if the amount which the complainant ought to con- 
 
126 stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 
 
 tribute to the payment of the said judgment be found to be 
 insufficient to satisfy the said note and mortgage. 
 
 And that the said note and mortgage may be decreed to be 
 paid and satified and to be delivered up to be cancelled, and 
 that the complainant discharge the said mortgage of record. 
 
 And that this defendant have leave to cause such decree or 
 a certified copy thereof to be recorded in the office of the register 
 
 of deeds of said county of , as and for a discharge of 
 
 the said mortgage. 
 
 And that this defendant may have such further or other relief 
 as shall be agreeable to equity, together with his reasonable costs 
 and charges in this behalf sustained. 
 
 (Signature.) 
 
 (Solicitor ior Defendant C. D. and of Counsel.) 
 (Add verification.) 
 
 •PETITION FOR LEAVE TO AMEND ANSWER. 
 (Title of court and cause.) 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 The petition of the above named defendant, C. D., respect- 
 fully shows unto the court that he filed his answer to the bill 
 
 of complaint in this cause on the day of 
 
 A. D. 19 . . , and that a replication has been filed thereto *, and 
 
 that since that time and on or about the day of 
 
 , A. D. 19 . . , he was for the first time informed and 
 
 believes it to be true (state the new facts proposed to be in- 
 troduced), and that he is advised by his solicitor, and believes 
 that it is essential to the rights of your petitioner, that his 
 answer should be amended by adding thereto (or inserting, 
 therein) the following statements, that is to say: (insert matter). 
 And your petitioner further shows that he had no knowl- 
 edge nor information of the said facts above set forth nor was 
 he aware of the necessity of inserting the same in his answer 
 until after the same was filed. He therefore prays that he may 
 be permitted to amend his answer by inserting the said state- 
 ment or, to file a supplemental answer containing the same. 
 
 (Signature.) 
 (Verification.) 
 
 TO AMEND ANSWER BY CORRECTING MISTAKE. 
 (As in last form to the *, then proceed:) 
 
 And that in the said answer by the mistake and inadvertence 
 of the copyist who engrossed the same (or, who copied the same 
 by typewriting), your petitioner is made to state (set forth the 
 erroneous matter to le corrected); whereas in truth and in fact 
 (state the actual facts); and your petitioner shows that he 
 
STAGE S MICHIGAN CHANCEBY PRACTICE AND FOEMS 127 
 
 stated the actual facts to his solicitor who prepared such answer, 
 and that he verily believed and supposed that the said actual 
 facts were truly stated therein, and signed (and verified) the 
 said answer in that belief,, and that he did not discover such 
 mistake until after the same had been filed nor until after the 
 said replication thereto had been filed, nor until the 
 
 day of , A. D. 19... 
 
 Your petitioner therefore prays that he may be allowed to 
 amend his said answer by striking out the said statement that 
 (state the erroneous matter), and inserting in place and stead 
 thereof (insert statement setting forth actual facts), according 
 to the true facts in the case, and that thereby the said mistake 
 may be corrected. 
 (Jurat.) 
 
 (Signature.) 
 (Signature of Solicitor, etc.) 
 
 ORDER FOR LEAVE TO AMEND ANSWER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and filing the petition of the defendant, C. D., for 
 leave to amend his answer to the bill of complaint in this cause, 
 
 on motion of , Esq., solicitor and of counsel for said 
 
 defendant, and , Esq., of counsel for complainant hav- 
 ing been heard in opposition thereto {or, and on filing due proof 
 of service of notice of the hearing of such petition on the solic- 
 itor for the complainant and no one appearing in opposition 
 thereto). It is ordered that the said defendant, C. D., have 
 leave to amend his said answer in accordance with the prayer 
 of his said petition (or if the amendment asked be only allowed 
 in part say, have leave to amend his said answer by (state amend- 
 ment permitted), upon payment to the complainant of costs 
 hereby taxed at the sum of dollars. 
 
 Circuit Judge. 
 
 AMENDMENT TO ANSWER. 
 
 (Title of court and cause.) 
 
 Amendment to the answer of the defendant, C. D., heretofore 
 filed in this cause, made pursuant to an order of the said court 
 entered on the day of , A. D. 19 . . . 
 
 First Amendment. In the line of the par- 
 agraph of the original answer on file after the word , 
 
 insert the following : (here insert the words to be added.) 
 
 Second Amendment. In the line of the 
 
 paragraph of the original answer on file, strike out the words 
 (state the entire matter to he stricken out), and insert 
 
128 stage's MICHIGAN CHANCBEY PEACTICB AND FOBMS 
 
 in place and stead thereof the words (insert the words to "be 
 substituted). 
 
 (And so on until all amendments are made.) 
 
 It seems the better practice to place on file an entire answer 
 as amended in which case the title will be : 
 
 Title of court and cause. 
 
 Amended answer of the defendant, C. D., made and filed in 
 
 accordance with the order of this court, entered on the 
 
 day of , A. D. 19... 
 
 This defendant, etc., (proceed as if it were am original an- 
 swer). 
 
 MOTION THAT DEFENDANT MAKE FUETHBR ANSWER. 
 
 (Title of court and cause.) 
 
 Of the day of , A. D. 19. .. 
 
 Now comes tlie above named complainant by , . , his 
 
 solicitor, and moves the court now here that the above named 
 defendant, C. D., may be required to put in a further and better 
 answer to the bill of complaint in this cause, for the following 
 reasons : 
 
 1. For that the said defendant, C. D., has not in his answer 
 to the said bill according to the best and utmost of his knowl- 
 edge, remembrance, information and belief answered and set 
 forth whether (state first matter to which further answer is re- 
 quired.) 
 
 2. For that the said defendant, C. D., has not in manner 
 aforesaid in his said answer answered and set forth whether (set 
 forth specifically each matter to which further answer is re- 
 quired); and that he, the said C. D., may be required to answer 
 the said several matters specifically according to the best of his 
 knowledge, remembrance, information and belief. 
 
 This motion is founded on the bill of complaint in this cause 
 and on the answer of the defendant, C. D., on file and on the 
 rules and practice of this court. 
 
 X. Y. 
 Solicitor for Complainant. 
 
 ORDER FOR FURTHER ANSWER. 
 
 (Title of court and caption.) 
 (Title of cause.) 
 
 In this cause, on motion of , Esq., solicitor for the 
 
 above named complainant, and , Esq., solicitor for the 
 
 above named defendant, C. D., having been heard in opposition 
 thereto {or and on filing due proof of service of notice of this 
 
 motion on , solicitor for the defendant, C. D., and no 
 
 one appearing in opposition thereto) : It is ordered that the 
 said defendant, C. I)., put in a further answer to the said bill 
 as to whether (state first matter to which further answer is re- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 129 
 
 quired), and as to whether (and so on stating each ^natter sepa- 
 rately to whicli further answer is required). 
 
 And that the said defendant, C. D., pay to the complainant 
 or his solicitor costs of this motion hereby taxed at the sum of 
 
 dollars, and that the said complainant have execution 
 
 thereof. 
 
 Circuit Judge. 
 
 ORDER DENYING MOTION FOR FURTHER ANSWER. 
 
 (Title of court and caption.) 
 (Title of cause.) 
 
 In this cause the motion of the above named complainant that 
 the defendant, C. D., put in a further and better answer to the 
 bill of complaint came on to be heard, and having heard counsel 
 for complainant as well as counsel for the defendant in rela- 
 tion thereto: It is ordered that the said motion be, and the 
 same hereby is denied and that the complg,inant pay to the 
 
 defendant, CD., dollars costs of the said motion, and 
 
 that said defendant, C. D., h&ve execution thereof. 
 
 FURTHER ANSWER BY ORDER OF COURT. 
 
 (Title of court and cause.) 
 
 The further answer of the defendant, C. D., to the bill of 
 complaint in this cause. 
 
 This defendant, saving and reserving to himself the same 
 benefit of exception to the said bill as by his former answer is 
 saved and reserved, for further answer thereto, made pursuant 
 
 to the order of this court made on the day of , 
 
 A. D. 19 . . , further answering, says : 
 
 As to the first matter mentioned in the said order, he says, 
 etc. 
 
 As to the second matter mentioned in said order, he says, etc. 
 
 (And so on as to each matter as to which a further answer is 
 ordered, and conclude:) 
 
 All which this defendant is ready to aver, maintain and prove 
 as this court shall direct, and prays to be hence dismissed with 
 his reasonable costs in this behalf most wrongfully sustained. 
 
 C. D. 
 W. Z. 
 
 Solicitor for Defendant and of Counsel. 
 (Add verification.) 
 
 AFTER AMENDMENT OF BILL. 
 (Title of court and cause.) 
 
 .The further answer of C. D., defendant, {or, one of the de- 
 fendants) to the original and amended bill of complaint in this 
 cause. 
 
130 stage's MICHIGAN CHANCEEY PBACTIOB ANP FOBMS 
 
 This defendant, saving and reserving to himself all benefit of 
 exception to the said bill, as amended, for answer to the said 
 original and amended bill says : 
 
 1. He avgrs that his answer to the original bill in this cause 
 is true, as to all matters therein stated and averred and prays 
 to refer thereto, and that the same may be taken as his answer 
 to all matters stated and charged in the said original bill. 
 
 2. As to the matters stated and charged by way of amend- 
 ment in the said amended bill this defendant, answering, says, 
 etc., (answer the new matter stated in the amendments and 
 conclude as in form for answer). 
 
 MOTION TO EXPUNGE SCANDAL FROM ANSWER. 
 
 (Title of court and cause.) 
 
 Of the day of , A. D. 19. .. 
 
 Now comes the said complainant by , Esq., his solic- 
 itor and moves the court now here that the allegation in the 
 
 paragraph of the answer of the defendant, C. D., in the 
 
 words following: (set out the allegation), be expunged from the 
 said answer, because the same is scandalous and impertinent. 
 
 This motion is founded on the bill of complaint and the answer 
 of the said C. D. thereto. 
 
 Solicitor for Complainant. 
 
 ORDER EXPUNGING SCANDALOUS MATTER FROM 
 ANSWER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on motion of E. F., Esq., solicitor for complain- 
 ant and J. K., Esq., of counsel for defendant, C. D. having been 
 heard in opposition thereto (or, and on due proof of service of 
 notice of such motion and no one appearing in opposition there- 
 to) : It is ordered that the allegation in the paragraph 
 
 of the answer of the -defendant, C. D., in the words following: 
 (insert allegation), is scandalous and impertinent, and that the 
 same be, and hereby is expunged from the sai.d answer. 
 
 And that the said defendant, C- D., pay to the complainant 
 or his solicitor costs of the said motion, hereby taxed at the sum 
 
 of dollars, and that the complainant have execution 
 
 thereof. 
 
 Circuit Judge. 
 
stage's michigak chanceby practice and poems 131 
 
 Gross Bills. 
 
 § 143. A cross bill is for the purpose of enabling a 
 defendant to avail himself of some defense which can 
 only be made complete by granting him some relief 
 against the complainant or against some other defend- 
 ant.^ It is properly filed where the defendant could get 
 no relief if the complainant's bill should be dismissed.^ 
 Whenever a defendant seeks to bring all the rights of all 
 the parties fully before the court so that equity may be 
 done as well by affirmative relief to the defendant as well 
 as to the complainant, the only means of accomplishing 
 this is by way of a cross bill.^ 
 
 The defendant must answer the original bill and must 
 in his answer state the ground of defence on which he 
 relies and on which his cross bill is founded.^ The cross 
 bill may be filed at the same time as the answer but can- 
 not as a general rule be filed before the original bill is 
 answered.^ It should be filed promptly and before issue 
 is joined in the original case in order that there may be 
 no delay in bringing it on to hearing at the same time 
 with the original bill. If he desires further time he must 
 seek it by special motion as matter of indulgence." 
 
 § 144. A cross bill can be sustained only on matters 
 growing out of the original bill and contained in it, and 
 it cannot be sustained in any case where the complainant 
 therein could not have maintained an original bill for the 
 same purpose.'' 
 
 Where a cross bill introduces other distinct matters 
 from those involved in the original bill, it becomes an 
 original bill in a distinct and separate -suit.® 
 
 A cross bill cannot be maintained if the defence stated 
 
 1 — Andrews v. Kibbee, 12 Mich. 5 — Allen v. Allen, Hemp. 58. 
 
 94. 6 — Beauehamp v. Putnam, 34 111. 
 
 2^-Wileox V. Allen, 36 Mich. 160. 378; Youngs v. Overseers, etc., 2 
 
 3— Andrews t. Kibbee, 12 Mich. Green Ch. (N. J.) 521. 
 
 94; Wisner v. Farnham, 2 Mich. 7 — Haekley v. Mack, 60 Mich. 591. 
 
 472; Schwarz v. Sears, Walk. Ch. 8 — Andrews v. Kibbee, 12 Mich. 
 
 170; Bank v. Bronson, 14 Mich. 361. 94; Bank v. Bronson, 14 Mich. 361. 
 
 4—2 Barb. Ch. Pr. 129. 
 
132 stage's MICHIGAN CHANCEEY PEACTIOB AND FOEMS 
 
 in the answer to the original bill fails when both are 
 based on the same alleged f acts.*" 
 
 § 145. A cross bill or answer claitning the benefit of a 
 cross bill may be maintained in all cases where the de- 
 fence, if true, would evidently entitle the defendant to 
 affirmative relief touching the subject matter of the bill 
 which he could not otherwise obtain. Thus it is proper 
 to establish an agreement or conveyance which the 
 original bill seeks to set aside.*" To compel the surren- 
 der and cancellation of a contract sought to be enforced 
 by the original bill." To vacate an inequitable judgment 
 which the original bill seeks to collect.*^ To determine 
 the validity of municipal bonds, action upon which the 
 bill seeks to restrain.*' To determine the priority of 
 equities.** To determine the rights of the parties to 
 water power,*' etc. 
 
 In a suit to enforce a trust a defendant may maintain 
 a cross bill against a co-defendant for contribution and 
 after two suits concerning the same trust are consoli- 
 dated, might still obtain leave of the court to file such 
 cross bill.*^ 
 
 Where material men have asserted a mechanic's lien 
 against the owner of a building and filed a bill to fore- 
 close such lien, making the owner and other lienors 
 against the same building defendants, another lienor be- 
 ing one of the defendants, may file a cross bill to assert 
 and foreclose his lien on the same building.*^ 
 
 Where a cross bill is brought for relief as well as for 
 defence and shows that persons not parties to the original 
 bill are necessary parties to the cross bill, they may prop- 
 erly be made such, the new party being shown to be in 
 
 9— Hall V. Harrington, 41 Mich. 14 — ^Bank v. Bronson, 14 Mich. 
 
 146. . 361. 
 
 10 — Camochan v. Christie, 11 15 — ^Powers v. Hibbard, 114 Mich. 
 
 Wheat. 446. 533. 
 
 11— Crosse v. De VaUe, 1 Wall. 5; 16— Miller v. Walker, 141 Mich. 
 
 Hurd V. Case, 32 111. 45. 433. 
 
 12— Jones v. Smith, 14 111. 229. 17— Smalley v. Terra Cotta Co., 
 
 13— Frankfort v. Schmid, 151 113 Mich. 141; Smalley v. Ashland 
 
 Mich. 85. Brownstone Co., 114 Mich. 104. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 133 
 
 privity with the complainant, and the allegation of the 
 cross bill relating to the identical matters upon which 
 the original bill is based.'^ 
 
 § 146. Under the rule allowing an answer to have the 
 effect of a cross bill, the answer must set forth the facts 
 on which relief is claimed as clearly and circumstantially 
 as would be required in a formal cross bill and if not so 
 stated the answer will not have such effect.^® 
 
 The rule that a cross bill must be confined to the sub- 
 ject matter of the original bill does not preclude the intro- 
 duction of new facts bearing on the subject matter. The 
 meaning of the rule is that new facts wholly foreign to 
 the subject matter of the bill cannot be introduced.^'' 
 
 It will be observed that the rule giving an answer the 
 effect of a cross bill applies in terms only to cases where 
 the affirmative relief sought is from the complainant; 
 whereas a cross bill proper might be filed against a co- 
 defendant. The law in this respect appears unchanged 
 and proceedings by cross bill against a co-defendant 
 must be conducted in the same manner as before the rule 
 was adopted. 
 
 § 147. There are some cases in which the court may 
 decree affirmative relief to a defendant without a cross 
 bill. Thus on a bill for a mutual accounting if a balance 
 is found to be due from the complainant to the defendant 
 the court may decree its payment without a cross bilP' 
 and in a foreclosure case where a part of the mortgaged 
 premises had. been conveyed to a grantee who had ex- 
 pressly agreed as part of the consideration to pay the 
 entire mortgage debt the court will admit evidence of 
 that fact, and decree that that part be first sold, on an- 
 swer without any cross bilP^ and will in like manner 
 exempt by its decree a homestead from the operation of 
 a mortgage not signed by the wife.^^ 
 
 18— Griffin V. Griffin, 112 Mich. 21— Wyatt v. Sweet, 48 Mieh. 539. 
 
 87. 22 — Carruthers v. Hall, 10 Mich. 
 
 19 — McGuire v. Cir. Judge, 69 40. 
 
 Mieh. 593. 28— Dye v. Mann, 10 Mich. 291. 
 
 20 — Powers v. Hibbard, 114 Mich. 
 533. 
 
134 stage's MICHIGAN CHANCEKY PBAOTICB AND FOEMS 
 
 § 148. Frame of Cross Bill. A cross bill proper should 
 recite the filing of the original bill the substance of its 
 material allegations and the substance of the answers of 
 the defendant thereto. It should state fully and com- 
 pletely the facts on which reliance is placed for affirma- 
 tive relief as circumstantially as if in an original bill apd 
 should pray for the relief desired as well as for general 
 relief. Like an original bill it must where necessary offer 
 to do equity, thus it has been held that a cross bill, to have 
 usurious securities surrendered, must offer to pay what 
 is equitably due.^* 
 
 A cross bill being a defence to a bill filed in equity by 
 the complainant; the complainant cannot usually object 
 that the relief sought by the cross bill may be obtained 
 by suit at law.^^ 
 
 Where answer on oath is waived the answer claiming 
 the benefit of a cross bill may be sufficiently signed by 
 the solicitor for the defendant,^® unless required to be 
 on oath by some statute or rule. 
 
 On filing a cross bill proper a subpoena must be taken 
 out and served and the same practice had as in original 
 suits, but on filing and serving an answer in the nature 
 of a cross bill no process appears to be necessary, the 
 complainant being already in court, must, according to 
 rule, demur, plead or answer that part of the answer 
 claiming affirmative relief as by cross bill, as if it were 
 a cross bill filed under the former practice. 
 
 Allowing an answer claiming the benefit of a cross bill 
 to be taken as confessed for want of an answer, would be 
 an admission that the matters therein stated are true and 
 a mere replication to the defendant's answer will not 
 obviate this effect. 
 
 The complainant in the original case is not compelled 
 in any way to delay his proceedings therein on the filing 
 of a cross bill except by the special order of the court. 
 
 24 — Mason v. Gardiner, 4 Bro. C. 26 — O'Donnell v. Cir. Judge, 146 
 
 C. 437. Mich. 442. 
 
 25— Babcoek v. McCamant, 53 III. 
 215; Eobins v. Swain, 68 111. 197. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 135 
 
 but on filing an answer in the nature of a cross bill it 
 would seem under the rule that he must answer that 
 answer at all events or suffer default, so that the case 
 would be necessarily delayed until that is done. 
 
 The cross case is at issue on filing an answer to the 
 answer no replication being necessary and the whole case 
 will then be heard as one cause at the hearing, proofs 
 being taken as in other cases. 
 
 CEOSS BILL BETWEEN PARTNBES. 
 Address. 
 
 Complaining, your orator, A. B., of the of , 
 
 in the county of and State of Michigan, respectfully 
 
 shows unto the court : 
 
 1. That heretofore and on the day of , 
 
 A. D. 19 . . , one C. D., one of the defendants hereinafter named, 
 exhibited his bill of complaint in this court against one E. P., 
 another of the defendants hereinafter named and your orator, 
 for a dissolution of the partnership theretofore existing between 
 your orator and the said C. D. and E. P., as dry goods mer- 
 chants doing business at in said county of , 
 
 and praying that your orator account to the said C. D. and to the 
 said partnership as to all moneys received by him as managing 
 partner thereof in the store of the said copartnership at 
 
 aforesaid, and that your orator might be decreed to 
 
 pay to him, the said C. D., whatever might be found to be due 
 to him on such accounting, and that your orator has appeared 
 in the said cause and answered the said bill, but the said bill has 
 not yet been brought to hearing, as by the said bill and answer 
 and other proceedings in the said cause of record and on file 
 in this court, and whereto reference is prayed, will fully appear. 
 
 2. Your orator further shows, that in addition to the said 
 dry goods business carried on by the said co-partnership as men- 
 tioned in the said bill at aforesaid, the said co-partner- 
 ship also carried on a grocery store at the said which 
 
 said grocery was under the exclusive management of the said C. 
 D. and E. P., and has been carried on by the said co-partnership 
 
 under such management ever since the day of , 
 
 19. ., when the said co-partnership was formed, and during all 
 that time the said co-partnership has done a large business in 
 the said grocery business and has acquired a large number of 
 valuable good accounts against a large number of persons for 
 groceries furnished to them, and has a large stock in trade. 
 
 3. That the said grocery business has always, during said 
 co-partnership, been under the exclusive management of the 
 said C. D. and E. P., and that a separate set of books of ac- 
 
136 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 count has, during all that time, been kept for the same, and that 
 such books are in the exclusive possession and control of the said 
 C. D. and E. F., and all moneys of the said co-partnership re- 
 ceived in the said grocery business were received by the said 
 
 C. D. and B. F. 
 
 4. And that your orator has requested the said C. D. and 
 B. F. to come to an account with him touching the said grocery 
 business, and to allow him to inspect the said books of ac- 
 count, and your orator believes and charges the fact to be that 
 on a just and fair accounting between the said C. D. and B. 
 F. and your orator in the said grocery business of the said co- 
 partnership, it would appear that the said C. D. and E. F. 
 are justly indebted to your orator in a large sum of money, 
 
 exceeding dollars, and exceeding any sum which can 
 
 be found due from your orator to the said C. D. and E. F. on 
 account of the said dry goods business. 
 
 5. And that the said E. F. during the continuance of the 
 said co-partnership did, on the part and behalf of the said 
 co-partnership and with the funds thereof, on or about the 
 day of , 19 ■ • , purchase a stock of merchan- 
 dise of one X. Y. in his store at , and afterwards and 
 
 during the six months following such sale, sold out the said last 
 mentioned stock of merchandise at a large profit, that is to say, 
 
 at a profit of dollars over and above all expenses, as 
 
 nearly as your orator has been able to ascertain the amount, 
 and that your orator has requested the said B. F. to come to 
 an account with him and with such partnership for the same, 
 but so to do the said B. F. has hitherto utterly refused. 
 
 6. And your orator shows, that in a just and fair account- 
 ing between your orator and the said C. D. and E. F. as co- 
 partners, the said C. D. and B. F. ought to account fully for 
 and concerning all matters relative to the said grocery busi- 
 ness, and the said E. F. ought also to account for the profits of 
 the said stock purchased of the said X. Y. 
 
 I. Forasmuch, therefore, as your orator is without remedy 
 in the premises except by exhibiting this, his crosa bill in the 
 proceedings commenced by the said C. D. against your orator 
 and the said B. F., and to the end, therefore, that the said C. 
 
 D. and E. F., who are made defendants to this cross bill may, 
 without oath all answer upon oath being hereby waived, full, 
 true, direct and perfect answex make to all and singular the 
 matters herein stated and charged. 
 
 II. And that an account may be taken, under the direction 
 of this court, of all and singular the partnership dealings and 
 transactions, as well in the said grocery business as in the said 
 dry goods business, and including the said stock of merchan- 
 dise purchased of the said X. Y., and of all moneys received 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 137 
 
 and disbursed by the said C. D. and E. P. respectively in rela- 
 tion thereto, as well as by your orator. 
 
 III. And that the said stock of groceries and books of ac- 
 count, and all debts due the said co-partnership in relation 
 thereto, and the profits of the purchase and sale of the said 
 stock of merchandise of the said X. Y., may be decreed to be 
 assets of the co-partnership to be equitably divided between 
 such partners, after payment of all debts and liabilities. 
 
 IV. And that the said defendants, C. D. and E. P., may 
 be decreed to pay to your orator, whatever sum or sums of 
 money that shall be found to be due to your orator from them 
 respectively upon such accounting, your orator being ready 
 and willing and hereby offering to pay to the said C. D. and 
 E. P. respectively whatever, if anything, shall be found to be 
 due from him to them or either of them thereon. 
 
 y. And that your orator may have such further or other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 (Add prayer for process.) 
 
 (If injunction is sought, insert prayer for injunction; and 
 the bill must in that case he sworn to, and add verification.) 
 
 CROSS BILL IN THE NATURE OP A PLEA PUIS 
 
 DARREIN CONTINUANCE. 
 
 Address. 
 
 Complaining, your orator, A. B., of , respectfully 
 
 shows unto the court: 
 
 1. That heretofore and on the day of , 
 
 A. D. 19.., C. D., the defendant hereinafter named, filed his 
 bill of complaint against your orator, thereby praying (state 
 prayer of hill), and your orator having been duly served with 
 
 process, appeared and put in his answer thereto on the 
 
 day of , A. D. 19 . . , to which answer the said C. D. 
 
 filed a replication, and issue being then joined, testimony was 
 taken on -both sides and the proofs have been closed, but the said 
 cause has not yet been brought on to be heard as by- the said 
 biU, answer, replication and other proceedings in the said cause 
 now remaining on file and of record in this court, and whereto 
 reference is prayed, will fully appear. 
 
 2. And that afterwards and on the day of , 
 
 A. D. 19. ., the said C. D. by a certain instrument in writing 
 under his hand of that date did remise, release and forever 
 quit claim unto your orator, his heirs, executors and adminis- 
 trators, all and singular the several matters whereof he, the 
 said C. D., complained in and by his said bill and in question 
 in the said suit, and all sums of money then due and owing or 
 thereafter to become due or owing, together with all and all 
 manner of actions, causes of action, suits and demands what- 
 
138 stage's MICHIGAN CHANCEKY PEACTICE AND FOBMS 
 
 soever, both at law and in equity or otherwise howsoever, which 
 he, the said C. D., then had, or which he should or might at 
 any time or times thereafter have, claim, allege or demand 
 against your orator, for or by reason or means of any mat- 
 ter, cause or thing whatsoever, up to the day of the date of the 
 said written instrument, as in and by the said written instru- 
 ment now in the possession of your orator ready to be pro- 
 duced and proved as this court shall direct, and a copy whereof 
 marked "Exhibit A" is hereto attached, and made a part of 
 this bill, and whereto reference is prayed, will fully appear. 
 
 3. And your orator well hoped that by reason of the said 
 release and quit claim the said C. D. would not have proceeded 
 in his said suit against your orator, but notwithstanding the 
 same the said C. D. now threatens and intends to proceed in 
 the said suit, and to bring the same on for hearing in due 
 course, and pretends that no such written instrument was ever 
 executed by him, or if so, that the same was obtained by fraud 
 and surprise and without consideration and is therefore void; 
 whereas your orator charges tha,t the same was in every re- 
 spect fairly and properly obtained by your orator for a suffi- 
 cient consideration, and was duly executed by the said C. D., 
 and is in all respects valid and of full force and effect. 
 
 4. And that under the circumstances aforesaid your orator 
 is unable to put the said release and quit claim in issue or to 
 use the same as a plea in bar of the said suit. 
 
 In consideration whereof your orator prays : 
 
 I. That the said C. D., the defendant to this cross bill of 
 your orator, may, without oath, all answer on oath being hereby 
 waived, full, true, direct and perfect answer make to the same. 
 
 II. And that until such answer be filed all proceedings in 
 the said suit of the said C. D. against your orator may be 
 stayed. 
 
 III. And that the said release and quit claim may be es- 
 tablished and declared by this court to be a sufficient bar to 
 any further proceedings by the said C. D. in his said suit. 
 
 IV. And that the said bill of the said C. D. therein may 
 be forthwith dismissed with costs. 
 
 v. And that your orator may have such further or other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B. 
 
 Solicitor for Complainant and of Counsel. 
 
 (Affix "Exhibit A.") 
 (To obtain stay of proceedings this bill should be sworn to, 
 and affix verification and certificate of counsel.) 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 139 
 
 CERTIFICATE OP COUNSEL. 
 ATTACHED TO CROSS BILL. 
 I certify that I have carefully perused and examined the 
 within cross bill as well as the original bill in this cause, and I 
 am of the opinion that the within cross bill is not intended 
 for delay, and that a stay of proceedings in the original suit is 
 necessary for the attainment of justice in this cajuse. 
 Dated this day of , 19 . . . 
 
 Counsel. 
 
 MOTION FOR STAY OF PROCEEDINGfS 
 IN ORIGINAL BILL. 
 
 (Title of court.) 
 
 C. D., Complainant, 1 
 
 V. } ss. 
 
 A. B., Defendant. J 
 
 Original Bill. 
 A. B., Complainant, 1 
 
 V. \ ss. 
 
 C. B., Defendant. J 
 
 Cross Bill. 
 
 Of the day of ,19... 
 
 Now comes the said A. B., complainant in the above n»en- 
 
 tioned cross bill and defendant in the original bill, by , 
 
 his solicitor, and moves the court now here for an order that 
 aU proceedings in the original suit commenced by the above 
 named C. D. be stayed, until the said C. D. shall have put in 
 his answer to the cross bill filed against him by the said A. B., 
 and for such further or other relief as shall be agreeable to 
 equity. 
 
 This motion is founded on the said cross bill and certificate 
 of counsel thereto annexed {if any affidavits add and affidavits 
 thereto annexed), as well as on the records and files of this 
 court in the original cause in this court, and the rules and 
 practice of this court. 
 
 Solicitor for A. B. 
 
 ORDER TO STAY PROCEEDINGS. 
 
 (Title of court.) 
 
 (Caption.) 
 
 (Title of cause as in last form.) 
 
 On reading and filing the cross bill of A. B., duly verified, 
 to the bill of complaint of C. D. and the (affidavits, if any) 
 
 certificate of counsel thereto annexed, and on motion of 
 
 solicitor for the said A. B., and after hearing , of 
 
 counsel for the said C. D., in opposition thereto (or, if unop- 
 
140 stage's MICHIGAN CHANOEEY PRACTICE AND FOEMS 
 
 posed say), and on reading and filing due proof of service of 
 notice of such motion on the solicitor for the said C. D., and 
 no person appearing in opposition thereto: It is ordered that 
 all further proceedings in the original cause commenced by the 
 said C. D. against the said A. B. be stayed until the said C. D. 
 shall have put in his answer to the cross bill filed against him 
 by the said A. B. 
 
 Circuit Judge. 
 
 ORDER TO HEAR ORIGINAL AND CROSS 
 BILL TOGETHER. 
 
 (Title of court.) 
 (Caption.) 
 
 (Title of cause as in last form.) 
 It appearing by affidavit on file that the above cases are at 
 
 issue and ready for hearing : On motion of , solicitor 
 
 for A. B., the complainant, in the cross bill: It is ordered that 
 the said causes be brought on for hearing together provided, 
 that the hearing on the original bill shall not be delayed by any 
 delay or neglect to proceed on the part of the complainant in 
 the cross bill. 
 
 Circuit Judge. 
 
 AFFIDAVIT THAT BOTH CAUSES ARE AT ISSUE 
 (Title of court.) 
 
 (Title of cause as in last form.) 
 County of , ss : 
 
 , of the of , in the county of 
 
 , being duly sworn, says that he is the solicitor for the 
 
 above named A. B., the defendant in the original cause and the 
 complainant in the cross bill, and that both the said causes are 
 now at issue and ready for hearing. 
 
 (Signature.) 
 (Jurat.) 
 
 Replication. 
 
 § 149. If the complainant is satisfied that the answer 
 of the defendant is true and sufficient, leaving nothing to 
 be supplied by evidence, he may notice the case for final 
 hearing on bill and answer, in which case the averments 
 in the answer are to be taken as true ^ as well as the alle- 
 
 1 — Hardwick v. Basaett, 25 Mieh. 
 149. 
 
stage's MICHIGAN CHAKCEEY PEACTICE AND FORMS 141 
 
 gations in the bill which are admitted by the answer. But 
 if he desires to controvert any of the material aver- 
 ments of the answer, of if he deems it necessary to 
 adduce proof of any allegation of the bill of which the 
 defendant has said in his answer that he has no knowl- 
 edge or belief, he must file and serve a replication to the 
 answer within fifteen days after service of the answer,^ 
 which has the effect of making an issue between himself 
 and the defendant as to all matters alleged in the bill and 
 not admitted by the answer, and also as to all other mat- 
 ters alleged in the answer as a defence to the bill. 
 
 Eeplications in equity are general and consist of an 
 assertion that notwithstanding the answer of the defend- 
 ant the complainant is entitled to the relief prayed in 
 his bill of complaint.* 
 
 Special replications are not admissible in equity ex- 
 cept by special leave of the court,* of which there is not 
 ia this state any recorded instance. 
 
 The filing of a replication is waived by the defendant 
 by proceeding with the taking of proofs in the same man- 
 ner as if it had been filed ' and where such proofs have 
 been taken without objection, the court may permit the 
 filing of a replication at the hearing nunc pro tunc " and 
 where the filing of a replication in due time is omitted 
 through inadvertence or mistake, the court may, on spe- 
 cial motion, permit one to be filed.'' 
 
 § 150. Effect of Replication. By filing a replication 
 to an unsworn answer in a case where an answer on oath 
 was demanded by the bill, the answer is allowed to stand 
 as an unsworn pleading,* and the want of a signature of 
 the defendant to an answer is waived by replication.* 
 
 By filing a replication the complainant asserts his bill 
 to be sufiicient and he cannot afterwards amend it with- 
 
 2 — Chancery Rule 12a. 7 — Hardwiek v. Bassett, 25 Mich. 
 
 3— Chancery Eule 12b. 149. 
 
 4 — Chancery Eule 12c. 8 — Adair v. Cummin, 48 Mich. 
 
 5— Brooks v. Mead, Walk. Ch. 389. 375. 
 
 6— Daly v. Circuit Judge, 102 9 — ^Berner v. Berner, 72 Mich. 43. 
 Mich. 392. 
 
142 stage's MICHIGAN CfiANCERY PRACTICE AND POEMS 
 
 out obtaining leave of the court by special motion to 
 witbdraw his replication for that purpose on showing 
 by affidavit that the proposed amendment is material and 
 could not with reasonable diligence have been soojier 
 introduced into the bill.*" This does not apply to amend- 
 ments merely adding parties.^ ^ 
 
 § 151. The form of a replication is prescribed by rule 
 as follows : 
 (Title of court and cause.) 
 
 "The complainant says that notwithstanding the answer of 
 the defendant, he is entitled to the relief prayed in his bill of 
 Complainant." (^^) 
 
 The replication should be signed by the soJicitor for 
 the complainant. 
 
 Proceedings After Cause is At Issue. 
 
 §152. "Every cause shall be deemed at issue of fact 
 or law on filing a plea or demurrer or on filing a replica- 
 tion to the answer or in a case where an answer in the 
 nature of a cross bill is filed, when a replication and a 
 demurrer, plea or answer is filed to such answer in the 
 nature of a cross bill." 
 
 "If there be more than one defendant the cause shall 
 be deemed at issue when replications have been filed to 
 all answers filed, and when an order pro confesso has 
 been filed or entered as to all those defendants who have 
 not answered, or when the cause is discontinued or dis- 
 missed as to such defendants. ' ' ^ 
 
 It is to be remarked that the rules make no mention of 
 a replication to take issue on the truth of a plea. The 
 practice thereon is, however, the same as on a replication 
 to an answer. 
 
 "In causes where there are more than one defendant 
 the complainant shall, when the cause is at issue, serve 
 upon the solicitors for such defendant or defendants who 
 
 10—1 Dan. Ch. PI. & Pr. 417 and 12— Chancery Eule 12a. 
 
 834; 1 Barb. Ch. Pr. 253. 1— Chancery Eule 13a, b. 
 
 11 — ^Brattle v. Waterman, 4 Sim. 
 125. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND EOEMS 143 
 
 have appeared and answered, and whose answers have 
 been replied to, a notice that such cause is at issue, or 
 the solicitor for any defendant may serve like notice 
 upon the complainant and the other defendants who have 
 appeared and the time for either party to give notice of 
 intention to claim the right to examine witnesses in open 
 court shall commence from the time such notice is given. 
 In cases Where the notice of such intention is given by a 
 defendant he shall serve the same upon the solicitors of 
 all co-defendants who have answered as well as upon the 
 complainant's solicitor. Proof of service of such notice 
 shall be filed with the register in chancery. ' ' ^ 
 
 This rule by its terms limits the necessity of giving 
 notice to the defendants who have answered and been 
 replied to, but under the statute ^ it would seem necessary 
 to give the notice to all defendants who have appeared, 
 whether they have answered or not. 
 
 § 153. ' ' If either party shall elect to have the testi- 
 mony taken in open court under the statute, and the cause 
 is at issue as to all the parties, the cause may thereafter 
 be noticed for trial, and hearing in open court by either 
 party. Such notice may be countermanded in the same 
 manner and with like effect as a notice of trial in an 
 action at law. ' ' * 
 
 The statute referred to provides that either party to 
 a cause in chancery shall have the right to an examina- 
 tion of aU the witnesses in the case in open court as in a 
 suit at law if within ten days after the cause is at issue 
 he gives notice in writing to the opposite party of his 
 intention to claim such right, in which case no examina- 
 tion of witnesses shall be had before a Circuit Court 
 commissioner ; but the cause shall be heard in its course 
 on the calendar by examination of witnesses in open court, 
 unless the court on cause shown otherwise directs, as in 
 a suit at law.^ 
 
 2 — Chancery Eule 14a. 5 — C. L., Sec. 10188 as am. by Act 
 
 3— C. L., Sec. 458; see Eule 5a. 129 Pub. Acts of 1905. 
 
 4 — Chancery Rule, 14b. 
 
144 stage's michigak chanceey peactice and forms 
 
 NOTICE THAT CAUSE IS AT ISSUE. 
 (Title of court and cause.) 
 
 To P. Q., Esq., Solicitor for the Defendant, C. D., and to B. 
 S., Esq., Solicitor for the Defendant, B. F. 
 (Address the solicitors of each defendant who has appeared.) 
 Gentlemen : 
 
 Please take notice that this cause is now at issae as to all 
 the defendants therein. 
 
 Dated this day of A. D. 19. .. 
 
 Tours, etc., 
 N. 0. 
 Solicitor for Complainant. 
 
 The clause "unless the court on cause shown otherwise 
 directs" limits the power to direct otherwise to a special 
 order of the court on cause shown.^ An order made at 
 chambers is invalid'' and a subsequent order made in 
 open court nunc pro tunc after testimony has been taken 
 under the chambers order will not validate it nor the 
 testimony taken thereunder.^ 
 
 The demand is of no force unless made within the ten 
 days® and a demand properly made by a defendant as 
 to whom the bill was dismissed before trial cannot be 
 insisted upon by a defendant who has made no such 
 demand.^" 
 
 The demand cannot be made until the case is at issue 
 as to all the defendants or until all who have not an- 
 swered are defaulted." 
 
 Such a demand does not deprive the court of the power 
 to direct an accounting before a Circuit Court Commis- 
 sioner in a proper case.^^ 
 
 §154. The statute also provides "That such notice 
 of hearing in open court shall not deprive the court, on 
 application by either party of the right to make an order 
 directing a commission to take depositions of witnesses 
 
 6— Stebblns v. Circuit Judge, 27 11— S. C. Hall Lumber Co. v. Gus- 
 
 Mieh. 170. tin, 54 Mich. 624; Kelly v. Or. 
 
 7 — Eslow V. Albion, 27 Mich. 4. Judge, 90 Mich. 264. 
 
 8— Eslow V. Albion, 32 Mich. 163. 12— Shouler v. Bonander, 80 Mich. 
 
 9 — Gray v. Franks, 86 Mich. 382. 521. 
 
 10 — Gray v. Franks, 86 Mich. 
 382. 
 
STAGE S MICHIGAN CHANCERY PRACTICE AND FORMS 145 
 
 outside of the jurisdiction of the court, or in case where 
 a party njay be deprived of material testimony or rights 
 if such a commission is not issued; and depositions so 
 taken under the order of the court may be read tipon the 
 hearing in open court." ^^ 
 
 Under this statute however, parties would not, it seems, 
 be precluded from taking depositions under section 10136 
 of the Compiled Laws. 
 
 § 155. The rules further provide, "If neither party so 
 elects, the testimony shall, without further order, be 
 taken before a Circuit Court Commissioner, unless the 
 parties shall stipulate to take it before some other person 
 authorized to administer oaths. The complainant shall 
 put in his testimony in chief within thirty days after the 
 time limited by law for electing to take the proofs in 
 open court: the defendant shall put in his testimony 
 within forty days thereafter and the complainant shall 
 have ten days thereafter in which to put in his rebutting 
 testimony. At least four days notice shall be given by 
 each party of the time and place of taking such testimony. 
 Each party shall pay in the first instance the fees for 
 taking down and transcribing his own examinations or 
 cross-examinations. ' ' 
 
 "The time for taking testimony may, on motion for 
 cause shown, be extended, but the party making applica- 
 tion for such extension shall be required to show under 
 oath the specific character of the testimony desired." 
 
 "Process of subpoena to compel the attendance of 
 witnesses before a commissioner shall issue of course, 
 and the time and place of attendance shall be specified 
 in the writ : and such witnesses may be punished by the 
 court as for contempt if they fail to attend and submit 
 to examination. But no witness shall be compelled to 
 appear before a commissioner more than one hundred 
 miles from his place of residence unless by special order 
 of the court." 
 
 "The testimony shall be taken as near as practicable 
 
 13 — C. L., Sec. 10188 as am. Pub- 
 lic Acta 1905 No. 129 first proviso. 
 
146 stage's MICHIGAN CHANCEKY PRACTICE AND FOBMS 
 
 in the manner provided by statute for the taking of depo- 
 sitions and the commissioner may adjonm the same from 
 day to day as may be deemed proper. ' ' ** 
 
 These rules dispense with the former technical pro- 
 ceedings of entering an order to take proofs and obliges 
 the parties to proceed to take proofs as soon as the cause 
 is in condition to do so and to take such pjoofs in an 
 orderly manner. Under the former practice each party 
 might examine witnesses in any order that he saw fit 
 within tiie sixty days allowed by the old rule, thus en- 
 abling a complainant to defer the examination of his 
 most material witnesses until nearly the end of the time 
 allowed and in this manner surprising the defendant by 
 introducing unexpected evidence which he had no oppor- 
 tunity to meet. The present rule, prescribing the order 
 of introducing proofs, is calculated to prevent such unfair 
 surprises. 
 
 These rules also omit the former requirement that the 
 names and residences of the witnesses proposed to be 
 examined must be stated in the notice. 
 
 § 156. The court may, in its discretion, on special mo- 
 tion and for good cause shown, extend the time for taking 
 testimony where there has been no demand for examina- 
 tion of witnesses in open court ; ^'^ but it is an abuse of 
 discretion to re-open a case to admit proof of facts not 
 alleged in the pleadings in such a manner as to entitle 
 the party to make proof thereof.^® 
 
 The application must state what facts are expected to 
 be proved" and must show a sufficient excuse for the 
 delay ^^ and should not be granted after the testimony has 
 been taken in open court without special reasons and 
 then only to admit formal or documentary evidence or 
 such as has been omitted by excusable inadvertence.'* 
 
 14^-Chancery Eule 14c, d, e, f. ' 17— Thayer v. Swift, Walk. Ch. 
 
 statute referred to is in Chap. 282 384; Slater \. Breeze, 36 Mieh. 77. 
 
 C. L. p. 3071 being Sec. 10139. 18— Thayer v. Swift, Walk. Ch. 
 
 15— Barker v. Cir. Judge, 117 384; McClung v. McClung, 40 Mich. 
 
 Mich. 328. 493. 
 
 16— Wagar v. Bowley, 104 Mich. 19— Wendell v. Highstone, 52 
 
 38. Mich. 552. 
 
Stage's Michigan chancery practice and poems 147 
 
 The application to extend the time may be made on 
 special motion to the court or the circuit judge or to a 
 Circuit Court Commissioner.^o But of course the parties 
 may stipulate that the time may be extended, in which 
 case it would be good practice to file the stipulation and 
 enter a consent order. 
 
 No motion is necessary to suppress testimony unwar- 
 rantably taken after the proofs are closed.^* 
 
 §157. The rules further provide, "Within five days 
 after the testimony shall be concluded, the commissioner 
 on being applied to for that purpose, by either party, 
 shall cause the testimony and exhibits taken or produced 
 before him to be returned and filed with the register of 
 the court." 
 
 "At the expiration of the time for taking testimony 
 the testimony shall be considered closed without order, 
 and either party may thereupon notice the cause for hear- 
 ing at the next term of court. Such notice shall be given 
 at least ten days before the first day of the next term. 
 But if the cause is not in readiness for hearing in time 
 to so notice it, it may be noticed for a subsequent day in 
 term, not less than ten days after such notice and placed 
 at the foot of the calendar. ' ' 
 
 "If the complainant shall fail to take any testimony 
 within the forty days above specified, or within the time 
 allowed him by extension, the defendant may notice the 
 cause for hearing on pleadings. ' ' ^^ 
 
 Notice of hearing for a subsequent day in term should 
 specify the day.^^ Notice of hearing must be served on 
 all the defendants who have appeared,^* but a defendant 
 who has not appeared is not entitled to such notice.*' 
 
 § 158. Talcing Testimony Before a Circuit Court Com- 
 missioner. As provided by the above mentioned rules the 
 
 20 — Chancery Eule 6; Abbott v. 23 — Munch v. Shabel, 37 Mich. 
 
 Alsdorf, 19 Mich. 157. 166. 
 
 21— Abbott V. Alsdorf, 19 Mich. 24— C. L., Sec. 458. Ch. Eule 5a. 
 
 157. 25— Warner v. Juif, 38 Mich. 662. 
 
 22 — Chancery Eule 14g, h, i. 
 
148 stage's MICHIGAIf CHANCERY PKACTICE AND FORMS 
 
 testimony of witnesses must be taken by a Circuit Court 
 Commissioner in conformity to the manner of taking de- 
 positions de bene esse by statute,^* whereby it is required 
 that each witness shall be sworn or affirmed to tell the 
 truth, the whole truth, and nothing but the truth con- 
 cerning the matter at issue in the cause. Every witness 
 may be examined, cross-examined, and re-examined, 
 orally. 
 
 Examinations may be adjourned from time to time. 
 Testimony may be written or taken stenographically and 
 transcribed under direction of the officer taking the same 
 and shall be signed by the witness and certified as correct 
 by the official by whom it is taken, but signatures of wit- 
 nesses may be waived in writing by agreement of 
 parties.^^ 
 
 The testimony should be taken by question and answer 
 and the record should show who attended the taking of 
 the testimony as counsel or solicitor for the respective 
 parties, the name of the witness, the party on whose part 
 he is called and stating the questions and answers to be 
 respectively on direct examination, cross-examination or 
 re-examination and it is better to state the name of each 
 examining counsel. 
 
 The testimony of each witness should be read over to 
 him for correction if necessary before signature, and this 
 should not be waived except in cases of absolute 
 necessity.^* 
 
 § 159. A Circuit Court Commissioner has no power to 
 rule upon the admissibility of evidence. It is his duty to 
 take all that is offered on the part of either party, leaving 
 it to the court to determine its propriety. Where objec- 
 tions are made to any question he should record the ob- 
 jection and take the answer ^^ although where the testi- 
 mony is clearly inadmissible and illegal and tends to the 
 prejudice of other parties not connected with the suit the 
 commissioner may decline to receive it, at any rate until 
 
 26 — Chancery Eule 14f. 
 
 29 — Brown v. Brown, 22 Mich. 
 
 27— C. L., Sec. 10139. 
 
 242; Collins v. Jackson, 42 Mich. 
 
 28 — Looker v. Looker, 46 Mich. 68. 
 
 558. 
 
STAGE S MICHIGAN CHANCEKY PBACTICE AND FOEMS 149 
 
 he has taken the opinion of the circuit judge. And he 
 may and ought to decline to take evidence excluded by- 
 express provision of a statute as where it is sought to 
 draw from a physician facts which came to his knowledge 
 through his treatment of a patient^" and he ought to 
 decline to record unprofessional statements or scandalous 
 objections by counsel.^^ 
 
 The better practice is that the direct, cross and re- 
 examination of the witness should each be signed by him. 
 The fact of his signing and swearing to his testimony 
 must be certified by the commissioner : 
 
 N. B. Where testimony is taken in open court the 
 court should receive all that is offered, notwithstanding 
 objection, and reserve its decision as to its aldmissibility 
 until the hearing.^^ 
 
 Circuit Court Commissioners. 
 
 §160. A Circuit Court commissioner is an auxiliary 
 judicial officer. One Circuit Court commissioner is elected 
 in each county and two in counties having over twenty 
 thousand inhabitants.^ 
 
 Circuit Court commissioners are authorized and re- 
 quired to perform all the duties, and execute every act, 
 power and trust which a circuit judge may perform and 
 execute out of court according to the rules and practice 
 of such court and pursuant to the provisions of any stat- 
 ute in all civil cases, except as otherwise provided by 
 statute, and except that when any power is given by 
 statute to a circuit judge without naming Circuit Court 
 Commissioners, such commissioners shall not be author- 
 ized to exercise such power.^ 
 
 The statute above referred to applies principally to 
 suits and proceedings at law, but Circuit Court Commis- 
 sioners have very extensive powers and duties in cases 
 
 30 — Storra v. Scougale, 48 Mich. 1 — C. L., Sec. 1064. 
 
 387; Page v. Page, 51 Mich. 88. 2— <3. L., Sec. 1068. 
 
 31 — Eea v. Eea, 53 Mich. 40. 
 
 32 — Collins v. Jackson, 43 Mich, 
 558. 
 
150 stage's MICHIGAN CHANOEEY PRACTICE AND FOEMS 
 
 in chancery. They discharge in their respective counties 
 all the duties formerly performed by masters in chancery 
 according to the practice in chancery proceedings, and all 
 such other powers as may be conferred upon them by 
 the several Circuit Courts according to law, and are 
 amenable to the Circuit Courts within the jurisdiction 
 and under the orders of which they respectively act.' 
 
 Each Circuit Court Commissioner is authorized to do 
 and perform the duties heretofore performed by injunc- 
 tion masters under such restrictions and regulations a? 
 the Supreme Court may prescribe.* 
 
 § 161. If any Circuit Court Commissioner be disquali- 
 fied to act in any case, a Circuit Court Commissioner of 
 an adjoining county may act, and in any proceeding 
 pending in any Circuit Court the circuit judge may ap- 
 point a special commissioner to act.^ In counties where 
 there are two commissioners it is evident that this pro- 
 vision would not apply unless both are disqualified, as 
 in the next section it is provided that before any Circuit 
 Court Commissioner of an adjoining county shall enter 
 upon the performance of any such duties, proof shall be 
 made and presented to him by affidavit that there is no 
 Circuit Court Commissioner, of the proper county com- 
 petent and qualified to discharge such duties, and stating 
 the ground of disqualification : and siich proof shall in all 
 cases accompany the acts and form part of the proceed- 
 ing of the commissioner discharging such duties.® 
 
 Whenever any process shall have been issued by, or 
 any matter shall have been referred to any Circuit Court 
 Commissioner, and on any day set for the return or hear- 
 ing thereof, such commissioner shall be absent or other- 
 wise disqualified from acting therein, any other Circuit 
 Court Commissioner, or other officer having authority to 
 perform the like duty in the same county, may assume 
 jurisdiction thereof and proceed therein, and hear, try 
 and determine the same and make all orders, certificates, 
 
 3— C. L., Sec. 1079. 5— C. L., Sec. 1084. 
 
 4— C. L., Sec. 1082; see "Injunc- 6— C. L., Sec. 1085. 
 
 tions" aodCb. Bule 21. 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 151 
 
 reports and returns, and take and approve all bonds and 
 recognizances, and make and issue all further papers or 
 process therein with like effect in all respects as if the 
 original process had been issued by, or the matter had 
 originally been referred to him, or he may, in his discre- 
 tion, adjourn the same from time to time and on the 
 adjourned day proceed therein, or on said adjourned day 
 the Circuit Court Commissioner who issued said process 
 or to whom said matter was referred, if not then dis- 
 qualified, may assume jurisdiction of the said matter or 
 proceeding and proceed in all respects therein as if the 
 said adjournment or adjournments had been made by 
 himself/ 
 
 Whenever any such commissioner shal^ have advertised 
 property for sale in pursuance of a decree of a court and 
 on the day when the sale is so advertised to take place, 
 or on any day to which the same may be adjourned the 
 said commissioner shall be absent or otherwise disquali- 
 fied from acting in the premises, the other Circuit Court 
 Commissioner of the county, if there be one who is not 
 disqualified from acting and if not, then a Circuit Court 
 Commissioner of an adjoining county may proceed and 
 make the sale ; and thereafter make and execute the deed 
 or deeds for the property sold, and make his report of 
 the same to the proper court, and may proceed in all 
 respects as if he had originally advertised the said prop- 
 erty for sale; or he may in his discretion adjourn the 
 sale from time to time and publish notices of adjourn- 
 ment in his own name and make the sale on the adjourned 
 day, unless the commissioner who advertised the same 
 shall then be present and competent to proceed therewith, 
 in which case he shall be entitled at his election to do so.^ 
 In all cases where any Circuit Court commissioner shall 
 have advertised real estate for sale under and by virtue 
 of any decree or order of any court of this state, and his 
 term of office shall expire before the sale shall be con- 
 summated, he may proceed to complete the sale and re- 
 port thereof and do all things necessary to perfect the 
 
 7— C. L., Sec. 1086, 8— C. L., Sec 1087, 
 
152 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 same, as if Ms term of office had not expired: and for 
 such purpose his power and authority shall continue until 
 all such business is fully closed.' 
 
 § 162. A Circuit Court commissioner may appoint a 
 next friend for an infant complainant ^^ or a guardian 
 ad litem for an infant defendant.^^ He may make orders 
 of publication for the appearance of non-resident, absent 
 or concealed defendants ^^ or unknown heirs.^^ It is his 
 duty to make sales of mortgaged premises on fore- 
 closure,^* also on foreclosures of mechanic's liens ^^ and 
 when a sale is ordered in partition suits. '^ To take 
 proofs in suits to bar dower of insane wife ^'^ and on 
 application f or^ voluntary dissolution of corporations ** 
 and to take proofs in all chancery cases referred to him 
 by the court or wherein the parties have not elected to 
 take proofs in open court.^' 
 
 He must also examine and take proofs on all matters 
 referred to him by the court. It would be impossible here 
 to specify all the matters which may thus be referred to 
 him, among the more usual are, the cornputation of the 
 amount due on a mortgage or other lien, the examination 
 into the estate of a husband in divorce cases to determine 
 the alimony which should be decreed, to examine into 
 assignments for the benefit of creditors when fraud is 
 charged,^'' to take accounts between partners or other 
 parties when an accounting is ordered and other matters 
 too numerous to mention. 
 
 § 163. In matters of accounting it is provided by rule 
 
 that "All parties accounting before a commissioner shall 
 bring in their accounts in the form of debtor and creditor : 
 and any of the other parties who shall not be satisfied 
 with the accounts so brought in shall be at liberty to 
 
 9— C. L., Sec. 1088. 16— C. L., Sec. 11050. 
 
 10--C. L., Sec. 10456. 17— C. L., See. 8950. 
 
 11— C. L., Sec. 10462-4. 18— C. L., See. 10857. 
 
 12— C. L., See. 485 19— Ch. Eule 14c; see "Evi- 
 
 13— C. L., Sec. 10446. dence." 
 
 14— C. L., See. 522. 20— C. L., Sec. 9544. 
 
 15— C. L., See. 10723. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 153 
 
 examine the accounting party upon interrogatories, as 
 ike commissioner may direct. On any reference to take 
 or state an account, the commissioner shall be at liberty 
 to allow interest as shall be just and equitable, without 
 any special direction for that purpose, unless a contrary 
 direction is contained in the order of reference. And 
 every charge, discharge or state of facts brought in be- 
 fore a commissioner shall be verified by oath as true, 
 either positively or upon information and belief.^ ^ 
 
 The proper course on accounting, is for parties to ap- 
 pear before a commissioner with charge and discharge 
 accounts and after full hearing before him that his re- 
 port shall show what items are allowed and what dis- 
 allowed to each party. Either party dissatisfied may file 
 exceptions to the report, which exceptions should state 
 clearly the reasons why exception is taken to the allow- 
 ance or disallowance of each item respectively.^^ Either 
 party may desire the commissioner to follow this prac- 
 tice and a failure to do so may be deemed a waiver to 
 the right to raise such questions on appeal.^^ 
 
 One not a party to the suit is not bound by the ac- 
 counting.^* 
 
 The court may direct an accounting before a Circuit 
 Court Commissioner although the parties have elected 
 that all the witnesses should be examined in open court.^® 
 
 § 164. The duties of a Circuit Court Commissioner on 
 the sale of real estate under any order or decree of the 
 court of chancery are the same as those mentioned on the 
 sale of land in foreclosure of mortgages.^o 
 
 No Circuit Court Commissioner can purchase directly 
 or indirectly or be interested in the purchase of any real 
 estate sold by him: 
 
 27 
 
 21— Chancery Eule, 18a. 24— Eyeraon v. Eldred, 18 Mich. 
 
 22 — Bamabee v. Beckley, 43 Mich. 12. 
 
 613; Crawford v. Osmun, 90 Mich. 25— Shouler v. Bonander, 80 Mich. 
 
 77; Loveland v. Peter, 108 Mich. 531. 
 154_ 26 — See Foreclosure of Mortgagei 
 
 23— Loveland v. Peter, 108 Mich. C. L., Sees. 9246-7-8-9. 
 154. 27— C. L., Sec. 9251. 
 
154 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 It is the duty of every Circuit Court Commissioner to 
 procure and keep in his office a register, which shall be 
 delivered over to his successor in office, in which he shall 
 enter the title of each cause or proceeding in which he 
 shall make any order and a complete memorandum of 
 his doings therein. And every commissioner shall file 
 with the register of the court all orders made by him, 
 together with all papers on which the same are based, 
 immediately upon the making of such order. ^* 
 
 § 165. The caption of an order of a Circuit Court Com- 
 missioner is as follows : 
 
 State of Michigan. 
 
 Judicial Circuit in Chancery. 
 
 A. B., Complainant, ^ 
 
 C. D., Defendant. J 
 
 Suit Pending in the Circuit Court for the County of 
 
 In Chancery. 
 
 At in said county of , on the 
 
 day of , A. D. 19... 
 
 The rules prescribe that "In all matters referred to a 
 commissioner he shall be at liberty upon the application 
 of any party interested, to make a separate report or 
 reports from time to time as he shall deem expedient, the 
 costs of such separate reports to be in the discretion of 
 the court. And where the commissioner shall make a 
 separate report of debts or legacies, he shall be at liberty 
 to make such certificate as he thinks fit with respect to 
 the state of assets ; and any person interested shall there- 
 upon be at liberty to apply to the court as he shall be 
 advised. 
 
 "After the report is filed either party may file or enter 
 an order of course to confirm the same unless cause to 
 the contrary thereof be shown in eight days after notice 
 of its being filed ; and if no exceptions are filed and served 
 within that time the order shall become absolute of course 
 without further order; or either party may file exceptions 
 and hare an order of course to confirm the report so 
 far as the same is not excepted to and with like effect." 
 
 28— Chancery Eule 18b. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 155 
 
 "If either party shall file exceptions to a commis- 
 sioner's report such exceptions shall be determined by 
 the court on motion of either party and the costs thereon 
 shall be in the discretion of the court. "^^ 
 
 §166. "Any person conceiving himself aggrieved by 
 an order made by any Circuit Court Commissioner in any 
 suit in chancery, may appeal therefrom to the Circuit 
 Court of the county in which such suit is pending: Pro- 
 vided (1) that such appeal shall be claimed and entered 
 within fifteen days from the time of making such order : 
 and (2) that the appellant shall, within that time execute 
 a bond to the appellee in such penal sum, not less than 
 $100, as the commissioner shall prescribe, with sufficient 
 surety, to be approved by the commissioner, conditioned 
 to pay, satisfy and perform the order which by the Cir- 
 cuit Court may be made in the premises, and to pay all 
 costs in case the order appealed from shall be affirmed. 
 But no such appeal shall operate as a stay of proceedings, 
 unless a special order to that effect shall be made by the 
 circuit judge or by such Circuit Court Commissioner on 
 proper cause shown." 
 
 "The appeal bond mentioned in the preceding rule 
 shall be filed with the Circuit Court .Commissioner ap- 
 proving the same, and shall be returned with the appeal 
 papers. ' ' 
 
 "It shall be the duty of the appellant under these rules 
 to file with the Circuit Court Commissioner within the 
 time above limited for claiming and entering his appeal, 
 his reasons for such appeal. Whereupon it shall be the 
 duty of such commissioner, within twenty days there- 
 after, to transmit to the clerk of the Circuit Court said 
 bond and all papers upon which the motion or proceed- 
 ing may have been founded, or which may have been used 
 on such motion or proceeding unless already so filed, cer- 
 tified by him, or in case the original pleadings or files 
 shall have been used, he shall certify such fact to the court 
 with a description of the original papers so used."^" 
 
 39 — Chancery Eule 19a, b, c. 30 — Chancery Eule 20a, b, c. 
 
156 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 §167. The commissioner should give notice to each 
 party of his proposed report with a draft thereof before 
 it is made, so as to give each party opportunity to pro- 
 pose amendments or objections thereto to enable the com- 
 missioner to correct it if he thinks proper to do so. 
 Should he not correct it in conformity to the objections, 
 the party objecting should file his exceptions according 
 to the above rule. 
 
 Exceptions to a report are in the nature of an appeal 
 from the decision of the commissioner ^^ and should state 
 specifically those parts of the report which are intended 
 to be excepted to and point out wherein the alleged errors 
 consist.^^ 
 
 It has been held that no exceptions can be taken to a 
 report unless the objection be made to the Circuit Court 
 commissioner before the report is signed.^^ 
 
 The report proper of the commissioner to whom it is re- 
 ferred to ascertain any facts in a case should not embody 
 the evidence but should state his conclusions only. It is 
 irregular to set forth the evidence unless so directed in 
 the order of reference. If either party excepts he can 
 obtain copies of the evidence or the original minutes for 
 use at the hearing of the exceptions.^* It is usual, how- 
 ever, in many parts of the state to return the evidence 
 annexed to the report. 
 
 Where no exceptions are taken the report of the com- 
 missioner is taken as true as to the facts ^' but if the facts 
 found do not sustain his conclusiofis of law the court will 
 decide as the facts warrant even if no exception is taken 
 to the conclusions of law.^" The safer and better practice 
 is however to except to conclusions of law as well as to 
 findings of fact. 
 
 31— Baton v. Trueadail, 40 Mich. 34— Prince v. Cutler, 69 111. 267 j 
 
 1- In Ee. Hemiup, 3 Paige 306. 
 
 32— Emerson v. Atwater, 12 Micli. 35— Butterfield v. Beardley, 28 
 
 314; Crawford v. Osmun, 90 Mich. Mich. 412; Thome v. Hilliker, 12 
 
 77. Mich. 215. 
 
 33— Methodist Ch. v. Jaques, 3 36 — Kingsbury v. Kingsbury, 20 
 
 Johns. Ch. 77; Pennell v. Lamar Mich. 212. 
 Ins. Co., 73 m. 303. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 157 
 
 NOTICE OF RBFERENCE TO TAKE PROOF BY CIRCUIT 
 
 COURT COMMISSIONER. 
 (title of court and cause.) 
 
 To , Solicitor for the above named Complainant and 
 
 To , Solicitor for the above named Defendant. 
 
 Take notice, that in pursuance of an order of the said court 
 
 made in the above entitled cause on the day of 
 
 , A. D. 19. ., whereby it was referred to me, the un- 
 dersigned, a circuit court commissioner of the said county, 
 to take the proofs of the respective parties in this cause touch- 
 ing (state subject matter on which proofs are to be taken), 
 that I shall proceed to take such proofs at my office in the 
 
 of , in the said county, on the day 
 
 of , A. D. 19. ., at o'clock in the 
 
 noon of that day, at which time and place you are hereby sum- 
 moned to appear before me and produce such proofs as you 
 may desire. Dated this day of , A. D. 19 . . . 
 
 Circuit Court Commissioner. 
 county, Michigan. 
 
 SUMMONS OF CIRCUIT COURT COMMISSIONER. 
 (Title of court and cause.) 
 
 In pursuance of the authority and directions contained in an 
 order made by the above named court in the above entitled 
 cause on the day of , A. D. 19. ., I, the sub- 
 scriber, a circuit court commissioner of the county of , 
 
 do hereby summon you, C. D., E. F., and G. H., to appear be- 
 fore me at my ofiSce in the of , in said county, 
 
 on the day of , A. D. 19. ., at o'clock 
 
 in the jioon, to attend a hearing before me, the said 
 
 circuit court commissioner, of the matters in reference in the 
 said cause to be had by virtue of the said order. 
 
 Hereof fail not at your peril. 
 Dated this day of , A. D. 19. .. 
 
 Circuit Court Commissioner. 
 
 Underwriting. 
 
 To proceed to an accounting between the parties to this cause. 
 
 I direct the above summons to be served at least 
 
 days previous to the day of appearance therein mentioned. 
 
 > 
 
 Circuit Court Commissioner. 
 
 NOTICE BY CIRCUIT COURT COMMISSIONER. 
 OF PREPARATION OF REPORT. 
 (Title of court and cause.) . 
 
 To , Solicitor for the above named Complamant and 
 
 To ........', Solicitor for the above named Defendant. 
 
158 Stage's mIciiigan cSAifcfiBY f&AcliCE and S-okms 
 
 Please take notice that I, , the circuit court com- 
 missioner to whom this cause was referred by an order of the 
 
 said court dated the day of , A. D. 19 . . , to 
 
 take proofs therein, have prepared a draft of my report of the 
 matters referred to me by the said order, which report will be 
 
 open for your inspection at my office in the of , 
 
 in said county, on the day of , A. D. 19 . . , 
 
 after which day the same will be filed in the said court. Dated 
 
 this day of , A. D. 19. .. 
 
 Yours, etc., 
 
 Circuit Court Commissioner. 
 
 REPORT OF CIRCUIT COURT COMMISSIONER. 
 IN PARTITION. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 In pursuance of an order of this court made in the above 
 
 entitled cause on the day of , A. D. 19 . . , 
 
 whereby it was referred to me, a circuit court commissioner of 
 
 said county of , to inquire into the situation of the 
 
 premises described in the bill of complaint in this cause, to-wit : 
 (describe the premises), and to report as to whether the said 
 premises or any part thereof are so circumstanced that a par- 
 tition and division thereof amongst the parties can or cannot 
 be made without great prejudice to the owners. 
 
 I, the said circuit court commissioner, do hereby respect- 
 fully report that I have inquired into the situation of the said 
 
 land and premises and have taken the testimony of 
 
 and ., witnesses produced before me thereon, and that 
 
 I have personally gone upon and examined and inspected the 
 said land and premises and that in my opinion the said land 
 and premises and the whole thereof are so circumstanced * that 
 a partition and division thereof can be made amongst the parties 
 entitled thereto without any prejudice to the owners. 
 
 And I herewith return the testimony of the several witnesses 
 taken before me in this behalf. 
 
 All which is respectfully submitted. 
 
 Circuit Court Commissioner. 
 
 (If the report is that the premises cannot he divided without 
 prejudice after the asterisk *, proceed as follows:) that a par- 
 tition and division thereof amongst the parties entitled thereto 
 cannot be made vsdthout great prejudice to the owners thereof 
 for the following reasons : (state reasons fully.) 
 
 And I herewith return the testimony of the several witnesses 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 159 
 
 taken before me in this behalf; all which is respectfully sub- 
 mitted. 
 
 Circuit Court Commissioner. 
 
 REPORT ON DISSOLUTION OP CORPORATION. 
 (Title of court.) 
 
 In the matter of the petition of A. B., etc., (naming all the 
 petitioners) for the dissolution of the company, a cor- 
 poration. 
 
 I, the undersigned, , a circuit court commissioner 
 
 of the county of , do respectfully report that, in pur- 
 suance of an order of this court, made in the above entitled 
 
 cause on the day of , A. D. 19 . . , wherein 
 
 among other things it was ordered that all persons interested in 
 the above named corporation should show cause, if any they 
 had, before me at my office (state street and number, if any), 
 
 in the of , in said county, on the day 
 
 of , A. D. 19 . . , at 'clock in the 
 
 noon, why the said corporation should not be dissolved, I at- 
 tended at the time and place aforesaid and that the said peti- 
 tioners then and there appeared before me by , Esq., 
 
 their solicitor and counsel, * and that one 0. P., a stockholder 
 
 of the said corporation by , his solicitor, and one R. 
 
 S. and one S. T., also stockholders of the said corporation, by 
 
 , their solicitor, also appeared before me in opposition 
 
 to the said petition and showing cause why the said corporation 
 should not be dissolved, and thereupon I proceeded to hear the 
 allegations and proofs of the said parties and took testimony 
 of witnesses produced by the said parties respectively in rela- 
 tion thereto, such proceedings and hearing and the taking of 
 testimony having been adjourned and continued before me 
 
 from day to day until the day of , A. D., 
 
 19 . . , when the same was concluded, and I herewith' return all 
 the testimony taken by me in relation to the subject matter of 
 the said petition, together vsdth a statement of all the property, 
 effects, debts, credits and engagements of the said corporation 
 and of all other matters and things pertaining thereto which 
 were made to appear before me by such testimony and proofs. 
 
 All which is respectfully submitted. 
 Dated this day of , A. D. 19. .. 
 
 Circuit Court Commissioner. 
 (If no opposition were made to the petition, after the *, in- 
 stead of the recital of parties appearing in opposition thereof, 
 insert, and that no person appeared before me in opposition to 
 the said petition, and no cause was shown or attempted or of- 
 
160 stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 
 
 fered to be shown why the said corporation should not be dis- 
 solved.) 
 
 REPORT OF PROOFS. 
 
 (Title of court cmd cause.) 
 
 In pursuaaice of an order made in the above entitled cause 
 
 on the day of , A. D. 19 . . , whereby it was 
 
 referred to the undersigned, a circuit court commissioner of 
 
 said county of ; to take the proofs of the respective 
 
 parties touching (state subject matter on which order of refer- 
 ence to take proofs was made) and report the same to this court. 
 
 I, , the said circuit court commissioner, do hereby 
 
 respectfully report that, having first summoned the said parties 
 and notified them of the time and place when and where the 
 said proofs would be taken, and having caused to come before 
 me all such witnesses as the said several parties desired or made 
 known to me, and having been attended by the solicitors of each 
 
 of the respective parties, I did on the day of , 
 
 A. D. 19 . . , at my ofiSce in the of in said 
 
 county, proceed to take the proofs of the respective parties, and 
 the several witnesses attending having been by me severally 
 duly sworn and examined, I reduced (or, caused to be reduced) 
 their respective testimony to writing and have attached the 
 same hereto, and make the same a part of this report. 
 
 I do further report that from the said proofs I find the fol- 
 lowing as conclusions of fact, that is to say: (here insert con- 
 clusions of facts). 
 
 And I therefore give my opinion and recommend that (here 
 insert such opinion and recorrixmendation as the facts appear to 
 warrant). 
 
 All which is respectfully submitted. 
 
 Circuit Court Commissioner. 
 
 county, Michigan. 
 
 Dated this day of , A. D. 19 . . . 
 
 REPORT IN CASE PRO CONFESSO. 
 (Title of court and cause.) 
 County of , ss : 
 
 I, , circuit court commissioner in and for said county 
 
 of , do hereby certify and report that, in pursuance 
 
 of an order of this court, heretofore made in the above entitled 
 
 cause, and dated the day of , A. D. 19 . . , by 
 
 which it was referred to me, said circuit court commissioner, to 
 take proofs of all the material facts charged in the bill of com- 
 plaint filed in said cause, and to report such proofs to this court, 
 together with my opinion thereon, with all convenient speed. 
 
 I, the subscriber, , the said circuit court commis- 
 
stage's MICHIGAN CHANCEET PRACTICE AND FORMS 161 
 
 sioner, residing in the of , in said county of 
 
 , to whom the execution of said order was confided, do 
 
 hereby certify and report that I have taken proofs in this cause, 
 on the part of said complainant, and that such proofs are hereto 
 annexed and made a part of this, my report; that such proofs 
 consist of the depositions of (name witnesses), witnesses pro- 
 duced before me on the part of said complainant, that said 
 
 depositions were taken before me, at my office, in the 
 
 of , in said county of , commencing on the 
 
 day of , in the year one thousand nine hun- 
 dred and at in the noon, and end- 
 ing on the day of , in the year one thousand 
 
 nine hundred and ; that each and all of said witnesses 
 
 before giving their testimony, were first duly sworn by me to 
 testify the truth, the whole truth and nothing but the truth, 
 in relation to said cause ; that the testimony of each and all of 
 said witnesses was reduced to writing by me, and was by me 
 read over to said witnesses, and by them subscribed in my pres- 
 ence; that said complainant attended said examination by 
 , h... solicitor, that said witnesses were orally ex- 
 amined by said , solicitor for the complainant. 
 
 And I do further report, as required by said order, that in 
 my opinion, all the material facts charged in the bill of com- 
 plaint in this cause, are true, and have been 
 
 sufficiently proved before me. 
 
 AH of which is respectfully submitted. 
 
 Circuit Court Commissioner. 
 
 county, Michigan, 
 
 Dated, 19... 
 
 EEPORT IN DIVORCE. 
 (Title of court.) 
 
 To the Hon., the Circuit Court for the county of : 
 
 In Chancery. 
 , Complainant, ] 
 
 V- \ 
 
 , Defendant. J 
 
 In pursuance of an order of reference heretofore made in 
 the above entitled cause, by which it was referred to me, the 
 subscriber, a circuit court commissioner of said county, to take 
 proofs therein of aU the material facts charged in the bill of 
 complaint in said cause, and to report the same to said court, 
 with my opinion thereon, with all convenient speed. 
 
 I, the subscriber, a circuit court commissioner of said county, 
 
 residing in the of , in said county, to whom the 
 
 execution of said order was confided, do hereby certify and re- 
 port: 
 
162 stage's MICHIGAN CHANCEET PRACTICE AND FORMS 
 
 That I have taken proofs of all the material facts charged in 
 the said bill of complaint, on the part of said complainant, 
 
 and the same are hereto subjoined and made a part 
 
 of this, my report. 
 
 I do further certify and report, as required by said order, 
 that in my opinion all the material facts charged in the said 
 bill of complaint, on the part of said complainant, are true and 
 have been sufficiently proved before me. And further report 
 that I find that the said defendant has been guilty of (state 
 cause of divorce proved), as charged in the said bill, and that 
 he is not a proper person to have the care, custody or education 
 
 of the minor child , named in the said bill and that 
 
 the complainant is a proper person to have such care, custody 
 and education. 
 
 All of which is respectfully submitted. 
 
 Witness my hand at , this day of , 
 
 A. D. 19... 
 
 Circuit Court Commissioner. 
 county, Michigan. 
 
 DEPOSITIONS AND PROOFS. 
 
 BEFORE CIRCUIT COURT COMMISSIONER. 
 (Title of court and cause.) 
 
 Depositions and proofs taken on the part of the complain- 
 ant in the above entitled cause by and before me, , a 
 
 circuit court commissioner of the said county of , at my 
 
 office in the of , in said county, on the 
 
 day of , A. D. 19... 
 
 Esq., appeared as counsel for the complainant. 
 
 , Esq., appeared as counsel for the defendant. 
 
 (If more than one defendant and they appear hy different 
 counsel, state the name of each counsel and the name of each 
 defendant for whom they respectively appear.) 
 
 John Doe, a witness produced, sworn and examined on the 
 part of the complainant, testified as follows : 
 
 (Insert testimony which may be in narrative form or hy ques- 
 tion and answer. When an objection is made, state the question 
 and then add:) to which question counsel for the ob- 
 jected as (stating ground of objection.) (If continued from 
 day to day, note that fact thus:) whereupon the further taking 
 
 of depositions and proofs was adjourned until the day 
 
 of , A. D. 19. ., at o'clock in the 
 
 noon at my said office, (and state the resumption on the follow- 
 ing day thus:) And at the time and place last named the said 
 parties appeared before me by their said counsel respectively, 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 163 
 
 and the taking of depositions and proofs was resumed, and 
 thereupon the said witness, John Doe, further testified as fol- 
 lows: (After the direct examination the best prac- 
 tice is for it to he read over to the witness and for him to sign it, 
 and to have the jurat of the commissioner then affixed thus:) 
 
 ■Subscribed and sworn to before me this day of 
 
 , A. D. 19... 
 
 Circuit Court Commissioner. 
 
 (And begin the cross examination thus:) 
 
 And on cross examination by , counsel for , 
 
 the said witness, John Doe, testified as follows : (The 
 
 cross examination should be signed and jurat affixed in like man- 
 ner, and so with redirect and recross examination, if any.) 
 
 CERTIFICATE OF CIRCUIT COURT COMMISSIONER 
 TO PROOFS. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 I hereby certify that the annexed are all the proofs and 
 depositions of the witnesses produced, sworn and examined be- 
 fore me on the part of the complainant in the above entitled 
 
 Dated this of , A. D. 19. .. 
 
 Circuit Court Commissioner. 
 
 County, Michigan. 
 
 (A similar certificate may be annexed to_ the proofs and 
 depositions of the defendant or defendants and if convenient, 
 one certificate may be framed, including all proofs as well of 
 the defendant as of the complainant, in which case, after thB 
 word complainant add, and on the part of the defendant.) 
 
 TESTIMONY BEFORE CIRCUIT COURT COMMISSIONER 
 
 ON NOTICE UNDER RULE 14. 
 (Title of court and cause.) 
 
 Depositions, testimony and proofs taken on the part of the 
 complainant in chief in the above entitled cause, by and before 
 
 me , a circuit court commissioner of the county of 
 
 , at my office in the of , in said 
 
 comity, commencing on the day of , A. D. 
 
 19. ., at o'clock in the noon. 
 
 N. O., Esq., appeared as solicitor and counsel for the com- 
 plainant. 
 
 P. Q., Esq., appeared as solicitor and counsel for the defend- 
 ant, C. D. (if more than one defendant, state appearance of each 
 who appeared). 
 
164 stage's MICHIGAN CHAN-CEKY PEACTICE AND FORMS 
 
 John Doe, a witness produced, sworn and examined on the 
 part of the complainant, testified as follows : 
 
 Question, What, etc. 
 
 Answer, 
 
 (State each question and answer and all objections to testi- 
 mony and other proceedings; at the close of the direct examina- 
 tion the witness should sign it.) 
 
 John Doe. 
 
 Sworn to and subscribed before me this day of 
 
 A. D. 19... 
 
 Circuit Court Commissioner. 
 On cross-examination by counsel for defendant, C. D., the 
 said witness, John Doe, testified: 
 
 Q 
 
 A 
 
 (Signature and jurat as tefore.) 
 On redirect examination the said witness, John Doe, testi- 
 fied as follows : 
 
 Q 
 
 A 
 
 (Signature and jurat as before; and so of recross exam- 
 ination, if any.) 
 
 (In case of an adjournment it should be stated thus:) 
 Whereupon the further taking of testimony was by me ad- 
 journed until the day of , A. D. 19 . . , at 
 
 o'clock in the noon at my said office. 
 
 Circuit Court Commissioner. 
 
 At the time and place last above mentioned the said parties 
 appeared before me, that is to say the said complainant by N. 
 0., Esq., his solicitor and counsel, and the said defendant C. D. 
 by P. Q., Esq., his solicitor and counsel, and the taking of tes- 
 timony was thereupon resumed, and thereupon. 
 
 Richard Roe. a witness produced, sworn and examined on 
 the part of the complainant, testified as follows: {or, the said 
 witness, John Doe, on his direct or, cross examination further tes- 
 tified as follows:) 
 
 (Should any documents be introduced in evidence, the cir- 
 cuit court commissioner should mark them respectively, com- 
 plainant's Exhibit 1, etc., and defendant's Exhibit 1, etc., sign- 
 ing each exhibit as circuit court commissioner below each mark. 
 Letters of the alphabet may be used instead of numerals to 
 designate exhibits. Regularly all exhibits should be annexed to 
 the testimony and returned to the court with it.) 
 
 Certificate of Circuit Court Commissioner to Proofs. 
 (Title of court and cause.) 
 
 I hereby certify that the foregoing are the depositions and 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 165 
 
 testimony of the witness . . produced, sworn and examined on 
 the part of the complainant in his testimony in chief {or, in re- 
 buttal) in the above entitled cause, and that the annexed are the 
 exhibits produced before fae as evidence for the complainant 
 therein. 
 Dated this day of , A. D. 19. .. 
 
 » 
 
 Circuit Court Commissioner. 
 , County, Michigan. 
 
 OBJECTIONS TO REPORT OP CIRCUIT COURT 
 COMMISSIONER. 
 (Title of court and cause.) 
 Objections taken by the above named complainant, A. B., (or, 
 
 defendant, C. D. as the case may be) to the report of 
 
 Esq., the circuit court commissioner to whom this cause stands 
 referred to take proofs. 
 
 First. For that the said circuit court commissioner has (state 
 ground of first objection) . 
 
 Second. For that, etc., (and so on). 
 
 In all which particulars the said complainant (or defendant) 
 objects to the said report and submits that the same ought to be 
 
 varied and altered. 
 
 Solicitor for Complainant, 
 (or, defendant, as the case may be.) 
 
 EXCEPTIONS TO REPORT OP CIRCUIT COURT 
 COMMISSIONER. 
 (Title of court and cause.) 
 
 Exceptions taken by the above named, complainant (or de- 
 fendant) to the report of , Esq., the circuit court com- 
 missioner to whom this cause was referred to take proofs, by an 
 
 order made herein on the day of , A. D. 19 . . , 
 
 and which report bears date the day of , 
 
 A. D. 19... 
 
 First Exception. For that the said circuit court commissioner 
 has (insert first matter excepted to and ground of exception). 
 
 Second Exception. For that, etc., (and so on). 
 
 Wherefore the said complainant (or defendant) doth except 
 to the said report, and appeals therefrom to the judgment of 
 this honorable court. 
 
 Dated this day of , A. D. 19. . . 
 
 Solicitor for Complainant, 
 (or, defendant, as the case may be.) 
 
166 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 NOTICE OF HEARING. 
 
 FOR FURTHER DIRECTIONS. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Defendant. 
 
 Sir: 
 Please take notice that this cause will be brought on to a 
 
 hearing for further directions upon the report of , 
 
 Esq., the circuit court commissioner to whom the said cause was 
 heretofore referred (state object of reference), at the next term 
 
 of this court to be held at , in said county of , 
 
 at the opening of the court on the first day of that term, or so 
 soon thereafter as counsel can be heard. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 
 Solicitor for Complainant. 
 
 ON EXCEPTIONS TO REPORT. 
 (Same as in foregoing, changing the words:) for further direc- 
 tions upon, to the words upon the exceptions taken by the de- 
 fendant C. D. to 
 
 ORDER CONFIRMING REPORT TO UNEXCBPTED PART. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On filing the report of , Esq., the circuit court com- 
 missioner to whom this cause was heretofore referred (state 
 matter referred), and on reading and filing the exceptions taken 
 by C. D., one of the defendants (^or, by the complainant) to 
 certain parts thereof, and more than eight days having elapsed 
 
 since the filing of such report, on motion of , Esq., 
 
 solicitor for the above named complainant: It is ordered that 
 the said report be confirmed so far as the same is not excepted 
 
 to. 
 
 » 
 
 Circuit Judge. 
 
 ORDER OVERRULING EXCEPTIONS. 
 
 (Title of court and caption.) 
 
 This cause having come on to be heard on the exceptions of 
 the above named complainant (or, defendant) to the report of 
 
 Esq., a circuit court commissioner of said county, to 
 
 whom it was referred to take proofs in this cause, which report 
 
 bears date the day of , A. D. 19. ., and having 
 
 been argued by counsel as well for the complainant as for the 
 defendant : 
 
 Thereupon, upon due consideration thereof, it is ordered and 
 
stage's MICHIGAN CHANCERY PEACTICE AND TOEMS 167 
 
 adjudged * that the said exceptions and each and all of them 
 be, and the same hereby are overruled, and that the said report 
 be, and the same hereby is, in all respects ratified and con- 
 firmed 
 
 Circuit Judge. 
 
 ORDER ALLOWING EXCEPTIONS. 
 
 (As in the preceding form to the *, then proceed:) that the 
 said exceptions and each and all thereof be, and the same hereby 
 are allowed, and that the said report of the said circuit court 
 commissioner be modified and amended as follows: (state modi- 
 fication), and that as so modified and amended the said report 
 be ratified and confirmed. 
 
 Of if part be allowed and part overruled insert that the first, 
 third and fourth (or as the case may he) of the said exceptions 
 be, and the same hereby are allowed; and that the second, fifth 
 and sixth (or as the case may be) of the said exceptions be, 
 and the same hereby are disallowed and overruled, and that the 
 said report of the said circuit court commissioner be modified 
 and amended as follows: (state modification), and that as so 
 modified the said report be ratified and confirmed. 
 
 Circuit Judge. 
 
 NOTICE TO TAKE TESTIMONY OF WITNESSES 
 BEFORE CIRCUIT COURT COMMISSIONER. 
 (Title of court and cause.) 
 To P. Q., Esq., 
 
 Solicitor for Defendant. 
 Sir: Please take notice that the following named witnesses, 
 viz.: 
 
 , who resides at , county of , state of 
 
 , who resides at county of , state 
 
 of (naming each witness and the residence of each) will 
 
 be examined, and their testimony taken on behalf of the above 
 named complainant, before , Esq., a circuit court com- 
 missioner of the said county of at his office in the 
 
 of , in the said county of , such ex- 
 amination to commence on the day of , A. D. 
 
 19. ., at o'clock in the noon, and to proceed 
 
 thereafter as shall suit the convenience of the said circuit court 
 commissioner. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 N. 0. 
 Solicitor for Complainant. 
 [If more than one defendant, this notice should be addressed 
 
168 stage's MICHIGAN CHANCBBY PBACTICE AND POEMS 
 
 to and served on the solicitor of each defendant who has ap- 
 peared.] 
 
 (Like notice by defendant.) 
 
 (Sfime as in the preceding notice, swve that it is addressed 
 to the complainant's solicitor, and if more than one defendant 
 has appeared it should be also addressed to, and served upon the 
 solicitors for each of the defendants who have appeared, sub- 
 stituting the word defendant, naming him, for complainant.) 
 
 NOTICE OF APPLICATION FOR EXTENSION OF TIME 
 
 FOR TAKING TESTIMONY. 
 (Title of court and cause.) 
 To P, Q., Esq., Solicitor for Defendant, C. D. 
 (If more than one defendant has appeared, address this notice 
 to the solicitor of each.) 
 
 Please take notice that on the day of , A. 
 
 D. 19. ., at o'clock in the noon, I shall make 
 
 an application and motion before the Hon , circuit 
 
 judge of the said court, at his chambers at , in the 
 
 county of , Michigan, {or, before , Esq., a cir- 
 cuit court commissioner of the said county of , at his 
 
 office in the of in said county) for an order 
 
 that the time for putting in and taking the testimony in chief 
 (or, in rebuttal) on the part of the complainant be extended 
 for days. 
 
 The reasons for such application and motion and the specific 
 character of the testimony desired are shown in the aflSdavit of 
 
 , with a copy whereof you are herewith served, and 
 
 such application and motion will be founded on the said affi- 
 davit and on the records and files of the court in this cause, and 
 on the rules and practice of this court. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 N. O., 
 Solicitor for Complainant. 
 
 AFFIDAVIT FOR EXTENSION OF TIME TO TAKE 
 TESTIMONY. 
 (Title of court and cause.) 
 County of , ss : 
 
 A. B., the above named complainant, being duly sworn says 
 that notice that this cause was at issue was duly served on the 
 
 day of , A. D. 19. ., and that neither party 
 
 thereto has given notice of his intention to claim the right to 
 an examination of the witnesses therein in open court as in a 
 suit at law, and that the taking of testimony of witnesses on the 
 part of this deponent, the complainant therein, has been com- 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 169 
 
 menced before , Esq., a circuit court commissioner of 
 
 said county of , and that the taking of such testimony 
 
 on the part of the complainant in chief cannot be completed 
 within the time allowed by the rules of this court for the fol- 
 lowing reasons, viz. : (state reasons), and that the specific char- 
 acter of the testimony desired to be taken by this deponent is as 
 follows, viz.: (state specific character fully), and that this 
 deponent verily believes he will be able to take such testimony 
 
 within days from this date, and therefore prays an 
 
 extension of the time for taking such testimony. 
 
 A. B. 
 (Jurat.) 
 
 ORDER EXTENDING TIME TO TAKE TESTIMONY. 
 State of Michigan. 
 
 Judicial Circuit : 
 
 In Chancery. 
 
 Suit pending in the Circuit Court for the county of : 
 
 In Chancery. 
 
 At my office in the of , in said county of 
 
 on the day of , A. D. 19 . . . 
 
 (Title of cause.) 
 
 In this cause an order for the extension of the time for the 
 taking of the testimony of witnesses therein having been ap- 
 plied for before me by the said complainant {or, defendant, C. 
 D.), on reading and filing the affidavit of the said complainant 
 for that purpose, and it appearing to me by the said affidavit 
 that sufficient cause is shown for such extension, and that the 
 time for the taking of the testimony on the part of the said 
 complainant in chief as allowed by the rules of the said court 
 has not yet expired. It is ordered and adjudged that the time 
 for the taking of the testimony of witnesses on the part of the 
 complainant in chief be, and the same is hereby extended for 
 
 the period of days from the time limited therefor by 
 
 the rules of the said court. 
 
 Circuit Court Commissioner. 
 
 , County, Michigan. 
 
 (If the order ie made hy the circuit judge substitute the cap- 
 tion of the judge at chambers.) 
 
 ORDER CONFIRMING REPORT NISI. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the report of a 
 
 circuit court commissioner of the said county of of 
 
 the (state nature of report), on motion of , Esq., solic- 
 
170 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 itor for complainant, it is ordered that the said report be and 
 the same is, in all respects, confirmed, unless cause to the con- 
 trary thereof be shown within eight days from the date of the 
 entry of this order. 
 
 Evidence. 
 
 § 168. The rules of evidence as to its competency and 
 admissibility are substantially the same in chancery as at 
 law, and under the present rules the order of proof is also 
 the same, although as above stated the court will not rule 
 on the admissibility of testimony, until the final hearing. 
 
 All incompetency of witnesses on account of interest, 
 relationship to the parties or infamy because of crime 
 is removed by statute in this state, but such interest, re- 
 lationship or conviction of crime may be shown as affect- 
 ing the credibility of the witness.^ 
 
 A witness may be cross e xamined as to his having been 
 convicted of crime '^ and if he refuses to answer, as he 
 may, his conviction of a crime may be shown by the record 
 of such conviction but not by parol evidence.^ 
 
 Parties to the record as well as parties in interest are 
 competent witnesses on their own behalf.* 
 
 No person shall be deemed incompetent as a witness on 
 account of his religious opinions, and no witness shall be 
 questioned on that subject before or after being sworn.' 
 
 § 169. No minister of the gospel, or priest of any de- 
 nomination whatsoever shall be allowed to disclose any 
 confessions made to him in his professional character, in 
 the course of discipline enjoined by the rules or practice 
 of such denomination.* 
 
 "No person authorized to practice physic or medicine 
 shall be allowed to disclose any information which he may 
 have acquired in attending any patient in his professional 
 character, and which information was necessary to enable 
 
 1— C. L., Sec 10210. 4— C. L., Sec. 10211. 
 
 2— People V. Hall, 48 Mich. 482. S— C. L., Sec. 10207; People v. 
 
 3 — People V. Maunausau, 60 Mich. Jenness, 5 Mich. 305. 
 15; Helwig v. laskowski, 82 Mich. 6 — C. X,., Sec. 10180. 
 
 619. 
 
stage's MICHIGAN OHANCEBY PBAOTICE AND FOBMB 171 
 
 him to prescribe for such patient as a physician, or to do 
 any act for him as a surgeon. Provided that after the 
 decease of such patient, in a contest upon the question of 
 admitting the will of such patient to probate, the heirs 
 at law of such patient whether proponents or contestants 
 of his will, shall be deemed to be personal representa- 
 tives of such deceased person for the purpose of waiving 
 the privilege hereinbefore created. ' ' '' 
 
 The purpose of this statute is to enable persons to 
 secure medical aid without betrayal of confidence * and 
 where there is no confidential relation there is no 
 privilege.^ 
 
 The privilege is that of the patient and not of the 
 physician," and continues indefinitely." It may be 
 waived by the patient and by no one else during his lif e- 
 time,^^ and after his death by his personal representatives 
 including the assignee of a beneficiary in a policy of life 
 insurance.^* 
 
 All disclosures made by the patient as to his ailments 
 at the time of making them are privileged whether 
 actually necessary to enable the physician to prescribe 
 or not if the patient supposed them necessary." 
 
 The privilege extends to all information and knowledge 
 acquired by the physician in his attendance on the patient 
 in whatever manner disclosed, or through the medium 
 of any of the senses,^^ but not to matters wholly unneces- 
 sary to enable the physician to prescribe for the patient,'^ 
 
 « 
 
 7 — C. L., Sec. 10181 as am. by Act 41 Mich. 667 ; Fraser v. Jennison, 
 
 No. 234, Pub. Acts of 1909 p. 418. 42 Mich. 206; Storrs v. Scougale, 48 
 
 8— G. R. & I. E. Co. V. Martin, 41 Mich. 387. 
 
 Mich. 667; Storrs v. Scougale, 48 13 — Fraser v. Jennison, 42 Mich. 
 
 Mich. 387; Perry v. Life Ins. Co., 206 — Briesenmeister v. Kts. of 
 
 143 Mich. 290; Cooley v. Poltz, 85 Pythias, 81 Mich. 525. 
 
 Mich. 47. 14 — Briesenmeister v. Kts. of 
 
 9 — Scripps V. Foster, 41 Mich. Pythias, 81 Mich. 525. 
 
 742; People v. Glover, 71 Mich. 303. 15— Briggs v. Briggs, 20 Mich. 34; 
 
 10 — Lincoln v. Detroit, 101 Mich. Lammiman v. St. Ey. Co., 112 Mich. 
 
 245. 602; Slater v. Sorge, 166 Mich. 173; 
 
 11 — Storrs V. Scougale, 48 Mich. Cotton v. Albion, 57 Mich. 575. 
 
 387. 16 — ^Campau v. North, 39 Mich. 
 
 12— G. E. & I. E. Co. V. Martin, 
 
172 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 nor to the fact that the patient was attended and treated 
 by the physician ; " who may state the number of visits 
 and the dates of each and whether or not he was the fam- 
 ily physician of the patient.^* 
 
 The privilege must be claimed by objection when the 
 testimony is offered and before it is admitted or it \frill be 
 deemed to have been waived, as the party privileged can- 
 not stand by and experiment on the result of permitting 
 the testimony to be taken without objection and then 
 move to strike it out if it proves to be unfavorable to 
 him.i* 
 
 A dentist is not a surgeon within the statute.*" 
 
 A husband shall not be examined as a witness against 
 his wife without her consent, nor a wife against her hus- 
 band without his consent except in cases of personal in- 
 jury by one to the other or in cases where the husband 
 or wife shall be a party to the record in suits concerning 
 property in which their respective interests are antag- 
 onistic to each other, and neither husband nor wife shall 
 during the marriage or afterwards, without the consent 
 of both, be examined as to any communications made by 
 one to the other during the marriage. In any action or 
 proceeding instituted by the husband or wife, in conse- 
 quence of adultery the husband or wife shall not be com- 
 petent to testify.''^ 
 
 That a husband cannot be a witness against his wife 
 without her consent or a wife agaiust her husband with- 
 out his consent is well established ^^ and where a com- 
 plainant brings a suit against husband and wife to vacate 
 a deed he cannot call the husband as a witness without 
 the wife's consent.** 
 
 606; People V. Glover, 71 Mich. 303; 245; Briesenmeister v. Kts. of 
 Lincoln v. Detroit, 101 Mich. 245. Pythias, 81 Mich. 525. 
 
 17— Brown v. Ins. Co., 65 Mich. 20— People v. De France, 104 
 
 306; Cooley v. Foltz, 85 Mich. 47; Mich. 563. 
 Dittrick v. Detroit, 98 Mich. 245; 21 — C. L., Sec. 10123. 
 
 Bullock V. Life Ins. Co., 166 Mich. 22— Bice v. Rice, 104 Mich. 371; 
 
 M'Kenzie v. I/autenschlager, 113 
 Mich 
 23- 
 19 — Lincoln v. Detroit, 101 Mich. 380. 
 
 240 
 
 18 — ^Briesenmeister v. Kts. of Mich. 171 
 Pythias, 81 Mich, 525. 23— Blanchard v. Moore, 85 Mich, 
 
stage's MICHIGAN CHANCERY PEACTICE AND EOKMS 173 
 
 Under the exception. Husband and wife may testify 
 against each other in cases where their rights to property 
 are antagonistic to each other,^* also in favor of an 
 assignee of the separate property, of one in a suit by the 
 assignee against the other.^^ 
 
 Confidential communications cannot be divulged with- 
 out consent of both and a divorce does not change or 
 affect the situation. ^^ 
 
 But where confidential communications between hus- 
 band and wife have been overheard or confidential letters 
 have escaped the custody of the parties they may be re- 
 ceived although not on the testimony of either husband 
 or wif e.^^ 
 
 The prohibition as to confidential communications is 
 merely declaratory of the common law and does not apply 
 to a case where a wife entrusted property to her husband 
 to be delivered to another after her death, as such a trans- 
 action involves the intention that it should be disclosed.^* 
 Nor to business transactions between husband and wife.^* 
 
 The privilege is the personal privilege of the parties 
 and may be waived.^" 
 
 § 170. It is also provided by statute that "When a suit 
 or proceeding is prosecuted or defended by the heirs, 
 assigns, devisees, legatees or personal representatives of 
 a deceased person, the opposite party, if examined as a 
 witness in his own behalf, shall not be admitted to testify 
 at all to matters which, if true, must have been equally 
 within the knowledge of such deceased person : and when 
 any suit or proceeding is prosecuted or defended by any 
 surviving partner or partners, the opposite party, if ex- 
 amined as a witness in his own behalf, shall not be ad- 
 
 24 — ^Dowling v. Bowling, 116 27 — O 'Toole v. Ohio German Fire 
 
 Mich. 346. Ins. Co., 159 Mich. 187. 
 
 25 — Hunt V. Eaton, 55 Mich. 362. 28— Hagarman v. Wigent, 108 
 
 26 — Maynard v. Vinton, 59 Mich. Mich. 192. 
 
 139; Hitchcock v. Moore, 70 Mich. 29— Ward v. Oliver, 129 Mich. 300. 
 
 112; Derham v. Derham, 125 Mich. 30— O 'Toole v. Ohio German Tire 
 
 109; Pierson V. 111. Cent. E. Co., 159 Ins. Co., 159 Mich. 187; Maynard 
 
 Mich. 110; Carter v. Hill, 81 Mieh. v. Vinton, 59 Mich. 139. 
 275., 
 
174 stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 
 
 mitted to* testify at all in relation to matters which, if 
 true, must have been equally within the knowledge of the 
 deceased partner, and not within the knowledge of any 
 one of the surviving partners. No person who shall have 
 acted as an agent in the making or continuing of a con- 
 tract with any person who may have died, shall be a com- 
 petent witness in any suit involving such contract, as to 
 matters occurring prior to the death of such decedent, on 
 behalf of the principal to such contract,, against the legal 
 representative or heirs of such decedent, unless he shall 
 be called by such heirs or legal representatives. And 
 when any suit or proceeding is prosecuted or defended by 
 any corporation, the opposite party, if examined as a 
 witness in his own behalf shall not be admitted to testify 
 at all in relation to matters which, if true, must have been 
 equally within the knowledge of a deceased officer or 
 agent of the corporation, nor when any suit or proceed- 
 ing is prosecuted or defended by the heirs, assigns, dev- 
 isees, legatees or personal representatives of a deceased 
 person against a corporation (or its assigns) shall any 
 person who is or has been an officer or agent of any such 
 corporation be allowed to testify at all in relation to mat- 
 ters which, if true, must have been equally within the 
 knowledge of such deceased person: Provided that 
 whenever the words "the opposite party" occur in this 
 section it shall be deemed to include the assignors or as- 
 signees of the claim or any part thereof in controversy. 
 And provided further, that whenever the deposition, affi- 
 davit or testimony of such deceased party, taken in his 
 lifetime shall be read in evidence in such suit or proceed- 
 ing, that the affidavit or testimony of the surviving party 
 shall be admitted in his own behalf on all matters men- 
 tioned or covered in such deposition, affidavit or testi- 
 mony. And provided further that when the testimony or 
 deposition of any witness has once been taken and used 
 (or shall have heretofore been taken and used) upon the 
 trial of any cause, and the same was, when so taken and 
 used, competent and admissible, under this act, the sub- 
 sequent death of such witness or of any other person, 
 shall not render such testimony incompetent under this 
 
stage's MICHIGAN CHANCEBY tEACTICE AND FOEMS 175 
 
 act, but such testimony shall be received upon any sub- 
 sequent trial of such cause.*^ 
 
 The principal object of this prohibition seems to have 
 been to prevent a living party from obtaining an unequal 
 advantage from his own testimony upon matters known 
 only to himself and the deceased.^^ 
 
 The words "Equally within the knowledge" do not re- 
 fer to the degree of knowledge possessed by the deceased. 
 If the deceased had any knowledge whatever of the facts 
 the testimony of the survivor is prohibited.^* 
 
 Assignees and Assignors. The clause as to assignees 
 and assignors was introduced into the statute by amend- 
 ment in 1885 to prevent the common practice of a claim- 
 ant against an estate from assigning his claim to another 
 for the purpose of making himself eligible as a witness 
 thus defeating the intent and spirit of the statute ; ** an 
 assignor of an account against the estate of a decedent 
 may be asked on cross examination if the purpose of the 
 assignment was to make him a witness and if answered 
 affirmatively he cannot testify to the account,'* and the 
 statute is broad enough to cover successive transfers.** 
 
 To exclude the testimony the case should be brought 
 fairly within the statute and the matter must be distinctly 
 shown to have been within the knowledge of the de- 
 ceased.*^ 
 
 § 171. Waiver. The prohibition may be waived, when 
 
 31— <3. 1.., Sec. 10212 as am. by 192; Fox y, Barrett's Est., 117 
 
 Act No. 30, Pub. Acts of 1903, p. Mich. 162; M'Hugh v. Dowd's Est., 
 
 36; Wright v. Wilson, 17 Mich. 192; 86 Mich. 412. 
 
 Downey v. Andrews, 43 Mich. 65 33 — Kimball v. Kimball, 16 Mich, 
 
 and cases cited in opinion pp. 70 to 211. 
 
 75; Connolly v. Keating, 102 Mich. 34 — Stackable v. Stackable's 
 
 1; O'Neal v. Greenwood, 106 Mich. Estate, 65 Mich. 515; Insurance Co. 
 
 572; Bailey v. Holden, 113 Mich. v. O'Brien, 92 Mich. 584. 
 
 402; Franken V. Supreme Court Ind. 35 — ^Buck v. Haynes Estate, 75 
 
 Order of Foresters, 152 Mich. 502; Mich. 397. 
 
 Goebel v. Look, 153 Mich. 204; 36— Eipley v. Seligman, 88 Mich. 
 
 Beadle v. Anderson, 158 Mich. 483; 177. 
 
 Great Camp K. O. T. M. Savage 37 — Howard v. Patrick, 43 Mich. 
 
 135 Mich. 459; In Ee Beidys Estate, 121; Jones v. Beeson, 36 Mich. 214; 
 
 162 Mich. 154. Webster v. Sibley, 72 Mich. 630. 
 
 32 — ^Wright v. Wilson, 17 Mich. 
 
176 stage's MICHIGAN CHANCEKY PBACTICE AND FOBMS 
 
 the party entitled to insist on the prohibition of the 
 statute calls the surviving party as a witness, or asks 
 him on cross examiuation questions concerning facts 
 which were within the knowledge of the deceased either 
 directly or by way of questioning him concerning admis- 
 sions which he may have made as to such facts he waives 
 the prohibition in the statute and the witness may testify 
 fully as to such facts.^* 
 
 The surviving party is not prohibited from testifying 
 that he was not present at the time or place where a note 
 was alleged to have been signed and delivered by him 
 to the deceased, nor that he never signed the note ^* and 
 a co-tenant in common may testify that he had no per- 
 sonal dealing with deceased ia respect to a lease from 
 both co-tenants to him and that he signed the lease by 
 direction of his co-tenant who transacted the entire busi- 
 ness with deceased *" nor does it prevent a husband from 
 testifying in relation to contracts made by his wife with 
 deceased in which he had no interest*^ nor a wife from 
 testifying to her husband's contract with deceased in 
 which she had no interest,*^ but if she had an interest as 
 incipient or prospective dowress she cannot testify.'** 
 
 The statute does not apply when the suit is between 
 third persons.** 
 
 § 172. A witness is sworn by the uplifted right hand,** 
 but when a person has a particular mode of swearing 
 which he deems more solemn or obligatory he may be 
 
 38— Fox V. Barrett's Estate, 117 40— Schmitz v. Beale, 115 Mieh. 
 
 Mich. 162; Cady v. Burgess, 144 112. 
 
 Mich. 523 ; Chamberlain v. Eddy, 154 41 — Slack v. Norton, 111 Mich. 
 
 Mich. 593; Harper v. Corcoran, 166 213. 
 
 Mieh. 474; Smith's appeal, 52 Mich. 42 — Dunn v. Dunn's Est., 127 
 
 419; Lilley v. Insurance Co., 92 Mich. 385. 
 
 Mich. 153; Savings Bank v. Butler 43 — Chaddoek v. Chaddock, 134 
 
 Est., 98 Mich. 381 ; Eipley v. Selig- Mich. 48 ; Laird v. Laird, 115 Mich, 
 
 man, 88 Mich. 177; Beardslee v. 352. 
 
 Eeeves, 76 Mieh. 661; Dunlap v. 44 — ^Latourette v. McKeon, 104 
 
 Dunlap, 94 Mich. 11. Mich. 156. 
 
 39- Pillard v. Dunn, 108 Mich. 45— C. L., Sec. 10204. 
 301. 
 
stage's MICHIGAN CHANCERY PEACTICE AND POEMS 177 
 
 sworn in that mode,**' and any person conscientiously 
 opposed to taking an oath may be permitted to solemnly 
 and sincerely affirm under the pains and penalties of 
 perjury.*^ 
 
 A witness is not excused from answering a question 
 on the ground that his answer may subject him to a civil 
 suit but he may refuse if his answer may tend to convict 
 him of crime, or subject hitn to a penalty.** 
 
 § 173. By a statute passed in 1909 it is enacted that 
 "Hereafter in any suit or proceeding in any court of law 
 or equity in this state, either party, if he shall call as a 
 witness in his behalf the opposite party, employe or agent 
 of said opposite party, or any person who at the time of 
 the happening of the transaction out of which such suit or 
 proceeding grew, was an employe or agent of the oppo- 
 site party, shall have the right to cross-examine such 
 witness the same as if he were called by the opposite 
 party ; and the answers of such witness shall not interfere 
 with the right of such party to introduce evidence upon 
 any issue involved in such suit or proceeding, and the 
 party so calling and examining such witness shall not be 
 bound to accept such answers as true."*® 
 
 When testimony is taken in open court it is the duty 
 of the court to receive all testimony offered without rul- 
 ing on its admissibility unless it be scandalously improper 
 or violates the privilege of witnesses.^" 
 
 § 174. Genuineness of Documents. Either party may 
 exhibit to the other or to his solicitor, at any time before 
 the trial, any paper material to the suit, and request an 
 admission in writing of its genuineness. If the adverse 
 party or his solicitor fail to give the admission within 
 four days after the request, and the delivery to him of a 
 copy thereof, if such copy be required, and if the party 
 exhibiting the paper be afterward put to expense in order 
 
 46^C. L., Sec. 10205. 50 — Meraort v. Merson, 101 Mich. 
 
 47— C. L., See. 10206. 55; Meech v. Lee, 82 Mich. 274. 
 
 48— C. L., Sec. 10179. 
 49— Act No. 307, Public Acts of 
 1909, p. 753. 
 
178 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 to prove its genuineness, and the same be finally proved 
 or admitted on the trial, such expense, to be ascertained 
 and summarily taxed at the trial, shall be paid by the 
 party refusing the admission, unless it shall appear to the 
 satisfaction of the court that there were good reasons for 
 such refusal; and an attachment or execution may be 
 granted to enforce payment of such expenses.^^ 
 
 It is to be remarked that the expenses are not limited 
 to the taxable costs for a witness to prove the signatures 
 but all actual expenses are to be allowed. 
 
 Depositions and Objections Thereto. "When a dep- 
 ositiou has been taken by either party it may at any time 
 be read by the other party at the trial. 
 
 Objections to notices of, and objections to the maimer 
 of taking, certifying or returning depositions shall be 
 noticed for hearing before the court by motion to sup- 
 press or otherwise by the party making the same, within 
 five days after such objections are made, and if not so 
 noticed for hearing the same shall be considered 
 waived. ' ' ^^ 
 
 §175. Pleadings as Evidence. Formerly when all 
 answers were required to be on oath the answer on oath 
 of the defendant was evidence in the case on the theory 
 that the complainant having called upon the defendant to 
 answer upon oath had thereby made the defendant a wit- 
 ness in the case. This reasoning failed, when the practice 
 arose of permitting a complainant to waive a sworn 
 answer, as to all answers whether on oath or not, if not 
 called for on oath, and it is now provided by rule that 
 "neither a sworn bill nor a sworn answer shall have the 
 force of evidence except as to admissions and except on 
 the hearing of motions and petitions. Provided, however, 
 that when a cause is heard on bill and answer the allega- 
 tions of the answer shall be taken as true." ^* 
 
 Under this rule and the subsequent subdivision "that 
 
 51 — Law Rule 23, adapted to 53 — Chancery Eule 10a. 
 
 chancery by Ch. Eule 15. 
 
 52-7-Law Rule 41, adapted to 
 chancery by Ch. Eule 15. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 179 
 
 every material allegation in the bill to which the defend- 
 ant shall not make answer shall be taken as admitted by 
 the defendant,"^* the only manner in which the plead- 
 ings can be used as evidence, in a case heard on pleadings 
 and proofs, is by the admissions therein contained. The 
 complainant is bound to admit as true the allegations of 
 his own bill and the defendant admits all the statements 
 made in his answer and all the allegations in the bill 
 which he does not answer. 
 
 CLAIM OF EXAMINATION OF WITNESSES 
 IN OPEN COURT. 
 (Title of court and cause.) 
 To P. Q., Esq., Solicitor for the Defendant, C. D., and to R. S., 
 
 Esq., Solicitor for the Defendant, B. F. 
 (Address the solicitor for each defendant who has appeared.) 
 Gentlemen : 
 
 Please take notice that the complainant intends to claim and 
 hereby does claim the right to examine all the witnesses in this 
 cause in open court as in a suit at law. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 N. 0. 
 Solicitor for Complainant. 
 
 SUBPOENA. 
 
 For "Witnesses. 
 State of Michigan, I 
 County of , | 
 
 In the name of the people of the state of Michigan. 
 
 To (naming uritnesses). Greeting: 
 
 You and each of you are hereby commanded that, all and 
 singular your business and excuses being laid aside, you do 
 personally be and appear and attend before * the Circuit Court 
 
 for the county of , in chancery, at the of 
 
 in said county, on the day of , A. 
 
 D. 19 . . , at o 'clock in the noon, then and 
 
 there, to give evidence in a certain cause now pending in the said 
 
 court wherein complainant and defendant 
 
 on the part of the ** and for a failure so to do you 
 
 will be guilty of a contempt of court and liable to pay all loss 
 and damage occasioned thereby to the party aggrieved tegether 
 with fifty dollars in addition thereto. 
 
 Witness, the Hon , circuit judge at the of 
 
 54 — Chancery Kule lOd. 
 
 SS. 
 
180 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 . . . . , in said county, this day of A. 
 
 D. 19... 
 
 I 
 
 Register in Chancery. 
 
 FOR WITNESS BEFORE CIRCUIT COURT 
 COMMISSIONER. 
 
 (As in the foregoing to the asterisk * then proceed) me the 
 undersigned, a circuit court commissioner for the county of 
 
 , at my office at number in street, in 
 
 the in said county on the day of , 
 
 A. D. 19. ., at o'clock in the noon, then and 
 
 there, to give evidence in a certain cause now pending in the 
 
 Circuit Court for the county of , in chancery, wherein 
 
 complainant and defendant and referred to 
 
 me to take proofs therein, on the part of the ** and 
 
 for failure so to do you will be guilty of contempt of court and 
 be liable to pay all loss and damage to the party aggrieved 
 thereby, together with fifty dollars additional thereto. 
 
 Given under my hand this day of , A. 
 
 D. 19... 
 
 Circuit Court Commissioner. 
 
 DUCES TECUM. 
 (As in either of last two forms as the case may he to the 
 double asterisk *• then insert) and have you then there with 
 you to be used in evidence in the said cause that certain (de- 
 scribe each document, hook or other article to be produced by 
 the witness fully and with certainty and then proceed) and for 
 failure, etc. 
 
 STIPULATIONS. 
 
 TO TAKE DEPOSITION OF WITNESS. 
 (Title of court and cause.) 
 
 In this cause it is hereby stipulated and agreed that the depo- 
 sition of M. O., a witness for the in this cause, may 
 
 be taken before G. H., Esq., a notary public, of the county of 
 
 , in the state of , at his ofSce, in the 
 
 of , in said last named county, on the day of 
 
 , A. D. 19 . . , at o'clock, in the noon 
 
 in the same manner as if the same were taken by notice under 
 the statute in like case provided. 
 
 Dated this day of , A. D. 19. .. 
 
 Solicitor for Complainant. 
 Solicitor for Defendant. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 181 
 
 TO TAKE TESTIMONY OF WITNESSES ON 
 INTERROGATORIES. 
 (Title of court and cause.) 
 
 In this cause it is hereby stipulated and agreed by and be- 
 tween the parties thereto that the deposition of G. H., of 
 
 , in the state of , a witness for the above 
 
 named (complainant or, defendant, as the case may ie), may 
 be taken by and before P. Q., Esq., a notary public of the 
 
 of , in the state of , at such time and 
 
 place as shall be appointed by the said P. Q. upon the written 
 interrogatories and cross-interrogatories hereto annexed to be 
 used at the trial and hearing of the said cause subject to ob- 
 jections as to relevancy, competency and materiality, but to no 
 other objections, and all notice of the taking of such deposition 
 is hereby waived. 
 
 Said deposition shall be taken upon oath and transmitted by 
 
 mail to , register of the said court. 
 
 Dated the day of , A. D. 19. .. 
 
 Solicitor for Complainant. 
 Solicitor for Defendant. 
 
 NOTICE OF TAKING DEPOSITION OF ABSENT, 
 SICK OR INFIRM WITNESS. 
 State of Michigan. 
 (Title of court and cause.) 
 To N. 0., Esq., Solicitor for Complainant. 
 
 Sir : Please take notice that the deposition of , a 
 
 witness on behalf of the defendant, C. D. in the above entitled 
 
 cause, will be taken before , Esq., a notary public of, 
 
 in and for the county of and state of who is 
 
 duly authorized by the laws of said last mentioned state to ad- 
 minister oaths, and is not of counsel or solicitor for either of the 
 parties to said cause nor interested in the event thereof, at his 
 
 office at No street, in the of , in 
 
 the county of and state of , commencing at 
 
 o'clock in the noon of the .■ day of 
 
 , A. D. 19 . . . The reason for taking of such deposition 
 
 is that the said witness resides out of the state of Michigan and 
 
 resides in the state of (or, is about to go out of the 
 
 state of Michigan, or, resides more than fifty miles from the. 
 place of trial of the said cause, or, is so sick, aged or, infirm that 
 there is reasonable cause for apprehension that his testimony 
 cannot be had at the trial of this cause, or as the case may be). 
 And that you are invited to be present at the time and place 
 
182 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 above named for the taking of such deposition and to cross- 
 examine the said witness. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 
 Solicitor for Defendant, C. D. 
 
 [It is probable that the omission of the statement that the 
 officer is not of counsel nor solicitor for either of the parties 
 in this cause nor interested in the event thereof would not in- 
 validate the notice, and the statute does not state that the rea- 
 son for taking the deposition should be given, but it would seem 
 good practice to include both statements.] 
 
 [The statute does not prescribe the length of time required 
 for the notice. It says reasonable notice, and what is reason- 
 able must vary with circumstances. 
 
 DEPOSITION OP WITNESS. 
 (Title of court and cause.) 
 
 Deposition of M. 0. of in the county of 
 
 and state of a witness produced, sworn and examined 
 
 before me, a notary public (or as the case may he) of the 
 
 county of , in the state of , at on 
 
 the day of A. D. 19 . . , pursuant to the an- 
 nexed notice {or commission, or stipulation, as the case may he) 
 to be used in the above entitled cause now pending in the Cir- 
 cuit Court for the county of in chancery in the steite 
 
 of Michigan, wherein complaiuant and de- 
 fendant on the part of the said complainant (or defendant as 
 the case may be). 
 
 The said witness, M. 0., being duly sworn (or affirmed) that 
 the evidence he should give in the said cause should be the 
 truth, the whole truth and nothing but the truth and being ex- 
 amined by , Esq., of counsel of the said (complainant), 
 
 testified as follows: 
 
 Question. What is your name, age, residence and oocupa- 
 *tion? 
 
 Answer. My name is M. 0. ; my age years ; my resi- 
 dence is , and I am a by occupation. 
 
 Question. What , etc., taking the deposition by 
 
 question and answer to the end of the direct exatmination, then 
 state. 
 
 On cross examination by , Esq., of counsel for (defend- 
 ant), the said witness testified. 
 
 Question, etc. 
 
 Answer, etc. 
 
 On re-direct examination the said witness testified. 
 
 Question, etc. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FOEMS 183 
 
 and so on until the deposition is concluded, when it should ben 
 read over to the witness and signed by him. 
 
 [It is a great convenience to have each question numbered 
 and such is the practice in the federal courts.] 
 
 [The deposition may be taken stenographically if the parties 
 so agree and transcribed and signed afterwards.] 
 
 CERTIFICATE TO DEPOSITION. 
 State of Michigan, ) 
 County of , ] 
 
 I, the undersigned, a notary public (or as the case 
 
 may he), in and for the said county and state, being duly author- 
 ized to administer oaths by the laws of the said state, do hereby 
 
 certify unto the circuit court for the county of , in 
 
 chancery, in the State of Michigan, that the annexed deposi- 
 tion of was taken before me at (state the place, which 
 
 should he the same as that named in the notice), on the 
 
 day of , A. D. 19 . . , in the cause entitled in the caption 
 
 to the said deposition, pursuant to the notice and proof of 
 service thereof hereto attached, and that at the taking of the 
 
 said deposition the complainant represented by 
 
 , Esq., (his or her) counsel, and the defendant 
 
 by , Esq., (his or her) counsel. That the said witness 
 
 {or witnesses) was by me first duly sworn (or affirmed under 
 the pains and penalty -of perjury) that the evidence (he or she) 
 should give concerning the matter at issue in the said cause 
 should be the truth, the whole truth and nothing but the truth, 
 and was then examined by counsel as appears in the said 
 deposition. That the testimony of the said witness was by me 
 written (or was written in my presence and under my direction 
 by a disinterested person or was stenographically taken and 
 transcribed under my direction) and was signed by the said 
 witness or "the signature of the witness {or of each witness) 
 was waived by the parties by the writing hereto attached" 
 and I certify that the testimony is correctly written (if exhibits 
 are referred to insert and that the exhibits referred to by the 
 said witness were marked by me Exhibits A, B and C respect- 
 ively for identification and are herewith returned). I further 
 certify that I am not of counsel or attorney for either of the 
 parties in the said cause and am not interested in the event of 
 the said cause. 
 
 Witness my hand (and seal) this day of , 
 
 A. D. 19... 
 
 Notary Public (or as the case may be). 
 
184 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 PETITION TO EEGISTER. 
 
 THAT COMMISSION ISSUE TO TAKE DEPOSITION. 
 (Title of court and cause.) 
 To E. P., Esq., Register in Chancery of the said Court: 
 
 Your petitioner, C. D., of (state residence) respectfully shows 
 that he is the (defendant) in the above entitled cause, and that 
 the said cause is now pending and at issue in the said court, 
 and that the proofs therein have not been closed. 
 
 And that the testimony of , who resides at (state hit- 
 residence), is material and necessary to your petitioner in (his 
 
 defence in) the said cause, and that the said is a non 
 
 resident of this state (or as the case may be). 
 
 Your petitioner therefore prays that a commission may be 
 
 issued to , Esq., a notary public in and for the county 
 
 of , in the state of , who resides at 
 
 (give street and number), in the said last named county 
 and state, authorizing him to take the examination and 
 
 deposition of the said upon oath and upon written 
 
 interrogatories to be annexed to such commission, and to return 
 the same when taken to the register of this court, to be read 
 upon the hearing of this case. 
 
 C. D. 
 
 Solicitor for Petitioner. 
 
 (Add verification.) 
 
 [It is conceived that this practice of taking depositions by 
 commission is superseded in ordinary cases by the more recent 
 statutes.] 
 
 NOTICE OF APPLICATION FOR COMMISSION. 
 (Title of court and cause.) 
 To , Esq., 
 
 Solicitor for 
 
 Sir: Please take notice that the annexed is a true copy of 
 
 a petition which I shall present to , Esq., register of 
 
 the said court, at his office in the of in said 
 
 county, on the day of , A. D. 19 . . , at 
 
 'clock in the noon. 
 
 You are at liberty to join in such commission if you desire. 
 Dated this day of , A. D. 19. . . 
 
 Solicitor for 
 
 NOTICE AND INTERROGATORIES. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for the : 
 
 Sir : Please take notice that on the day of 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 185 
 
 A. D. 19. ., the will sue out of the office of the reg- 
 ister of this court a commission, to be directed to , 
 
 Esq., a notary public of the county of and state of 
 
 , residing at (state residence), to take the deposition 
 
 of a witness for the who resides at (state 
 
 residence), upon oath upon interrogatories to be annexed to the 
 said commission to be used at the hearing of the cause. And 
 that copies of the interrogatories to be propounded to the said 
 
 witness on the part of the ai'e hereto annexed, and 
 
 you are at liberty to file such cross interrogatories thereto as 
 you shall be advised. 
 
 Dated this day of , A. D. 19. . . 
 
 Yours, etc., 
 
 * • I 
 
 Solicitor for 
 
 (Title of court and cause.) 
 
 Interrogatories to be propounded to , a witness to 
 
 be produced, sworn and examined in this cause on the part of 
 
 the , under a commission to be issued pursuant to the 
 
 foregoing notice. 
 
 1st. Interrogatory. "What is your name, age, residence and 
 occupation ? 
 
 2nd. Interrogatory. Do you know the parties, complainant 
 and defendant in this cause or either or which of them? And 
 how long have you known them respectively ? 
 
 (Insert such interrogatories as will by the answers elicit the 
 desired testimony, conclude with the following:) 
 
 Lastly. Do you know any other matter or thing of benefit 
 or advantage to the touching the matters in con- 
 troversy in this cause in addition to what you have already 
 stated ? If yea, state the same fully as if you had been thereto 
 particularly interrogated. 
 
 Solicitor for 
 
 COMMISSION TO TAKE TESTIMONY. 
 (Title of court and cause.) 
 State of Michigan, } 
 
 County of , ) 
 
 In the Name of the People of the State of Michigan : 
 (SEAL.) 
 
 To G. H. of , in the State of 
 
 Greeting : Whereas, it appears herein that is a 
 
 material witness in the above cause and that the par- 
 ties thereto are entitled to take the testimony of said witness 
 
 by deposition, de bene esse; you are therefore hereby 
 
 appointed commissioner for the taking of such testimony. We 
 
186 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 coinmand you that at a certain time and place, to be by you 
 appointed, you do cause the said witness to come be- 
 fore you, and to be then and there examined on the part of the 
 on oath or affirmation, touching the matters in con- 
 troversy in said cause. That you cause the testimony of said 
 
 witness to be reduced to writing, and subscribed by 
 
 the witness , and certified by you to be correct, . and 
 
 annexed to this commission with any exhibits produced and 
 proved before you, and that you return the same into said court 
 
 at , county of , Michigan, with all convenient 
 
 speed. And you are to be governed in the premises by the 
 laws of the state of Michigan, hereto annexed. 
 
 Witness the honorable , judge of said court, this 
 
 day of , A. D. 19... 
 
 FORM FOR CAPTION OF DEPOSITION. 
 
 Deposition of witness taken before me (name and 
 
 official title) pursuant to the notice (and commission) hereunto 
 attached. 
 
 At the time and place named therein I attended for the said 
 examination. 
 
 APPEARANCES. 
 
 , appeared as solicitor for 
 
 , appeared as solicitor for 
 
 The said witness was first sworn (or affirmed) to 
 
 tell the truth, the whole truth and nothing but the truth, con- 
 cerning the matter at issue in the cause (said affirmation being 
 under the pains and penalties of perjury), and said witness 
 then testified as follows : 
 
 Examined by N. 0., Esq., solicitor for the 
 
 Question 
 
 Answer 
 
 FORM OF CERTIFICATE TO DEPOSITION. 
 I do hereby certify and report that the foregoiag deposition 
 of (name of, each witness) was taken before me at the time and 
 place stated in the notiqe therefor hereto attached, and at the 
 adjournments thereof as the same dotb appear therein. That 
 each said witness was first duly sworn by me (or affirmed 
 under the pains and penalties of perjury) to testify the truth, 
 the whole truth and nothing but the truth, concerning all mat- 
 ters at issue in said cause. He was then examined as in the 
 body of said deposition appears. That the said testimony, being 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 187 
 
 the several direct interrogatories and cross interrogatories and 
 the answers of said witness, was written out \inder my direction, 
 and I certify the same is correct. 
 
 The said testimony was then subscribed by said witness (or 
 the signature of said witness was waived by the parties in writ- 
 ing which waiver is hereto attached). 
 
 Amendments — To the Bill. 
 
 § 176. By rule the complainant may amend his bill, if 
 not required to be on oath, without leave of the court and 
 without costs at any time before a demurrer, plea or 
 answer is put in, and, also within fifteen days after an 
 answer is put in if no new or further answer is rendered 
 necessary by the amendment. Bills required to be sworn 
 to may be amended in like manner by sworn amendments 
 which are merely in addition to and not inconsistent with, 
 the statements in the original bill. The complainant may 
 also amend without leave and without costs within ten 
 days after service on him of a copy of a demurrer for 
 want of parties, or for any defect not going to the equity 
 of the entire bill, or at any time before such demurrer 
 is noticed for argument. Also within ten days after the 
 demurrer or plea shall have been overruled.^ 
 
 It will be observed that this rule does not allow an 
 amendment of course or without costs after the filing of 
 a demurrer to the whole bill for want of equity. 
 
 It has been held that this rule applies to a case where 
 the bill has been taken pro. confesso, the supreme court 
 saying "The defendant, in making default, does so with 
 knowledge that the rule permits the amendment. ' ' ^ 
 
 If a demurrer be sustained the court will allow an 
 amendment to the bill on terms ^ and may also do so after 
 the allowance of a plea.* 
 
 § 177. The court may also in its discretion allow the 
 bill to be amended at any stage of the proceedings with 
 
 1 — Chancery Rule, 16 a. b. c. d. e. 3 — Chancery Kule, 9 e. 
 
 2 — Bowers v. Cir. judge, 136 Mich. 4 — Chancery Rule, 8 e. 
 
 367. 
 
188 stage's MICHIGAN CHANCERY PKACTICE AND FOEMS 
 
 or without terms,^ even at the hearing ® and in some cases 
 where the amendment is merely to correct clerical or in- 
 advertent errors or omissions whei'e no injury can be 
 done to the defendant, after the hearing.'' But no matter 
 inconsistent with or repugnant to, the substantial allega- 
 tions of the original bill can be introduced by amend- 
 ment * but an amendment is proper to state correctly and 
 circumstantially the cause of action insufficiently set 
 forth in the original bill.* 
 
 § 178. Necessary parties may be added by amendment 
 at any stage of the case but an amendment will not be 
 allowed after the proofs are partly taken to brin^ in 
 unnecessary, although proper, parties." 
 
 A divorce bill cannot be amended by substituting a 
 prayer for the annulment of the marriage for a prayerf 
 for a divorce." 
 
 Occurrences which have taken place since the filing of 
 the original bill cannot be set forth by amendment ; a sup- 
 plemental bill is the proper practice in such cases.^* 
 
 Mere clerical errors such as inadvertently misstating 
 the name of a person, or a date may be corrected as soon 
 as pointed out.^* 
 
 5 — Briggs V. Briggs, 20 Mich. 34 
 Church V. Holcomb, 45 Mich. 29 
 Bank of Mich. v. Nilea, Walk. Ch. 
 398; Bronson v. Green, Walk. Ch, 
 486; Jenks v. Hathaway, 48 Mich, 
 536; Livingston v. Hayes, 43 Mich. 
 129 ; Eugg V. Bassett, 101 Mich. 441 
 Dodson V. McKelvey, 93 Mich. 263 
 Eaile V. Cir. Judge, 92 Mich. 285, 
 
 6 — Gorham v. Wing, 10 Mich. 486 
 Goodenow v. Curtis, 18 Mich. 298 
 Palmer v. Rich, 12 Mich. 414 
 Munch V Shabel, 37 Mich. 166; Ed- 
 inger v. Heiser, 62 Mich. 598 
 Smith V. Sherman, 52 Mich. 627 
 Kunze v. Solomau, 26 Mich. 290 
 Babcock v. Twist, 19 Mich. 516 
 Eberle v. Heaton, 124 Mich. 205 
 Slater v. Breese, 36 Mich. 77. 
 
 7 — Harrison v. Harrison, 94 Mich. 
 559; Glutton v. Glutton, 108 Mich. 
 368; Daly v. Cir. Judge, 102 Mich. 
 392. 
 
 8 — Ogden v. Moore, 95 Mieh. 290; 
 Freeman v. Bank Harr. Ch. 311. 
 
 9— Smalley v. Terra Gotta Co., 118 
 Mich. 141. 
 
 10 — Johnson v. Shepard, 35 Mich. 
 115. 
 
 11 — Schafberg v. Schafberg, 52 
 Mieh. 429. 
 
 12 — Hammond v. Place, Harr. Ch. 
 438. 
 
 13 — Weaver v. Van Akin, 77 
 Mich. 588. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 189 
 
 § 179. To a Plea. A plea may be allowed to be 
 amended by adding a fact unknown to the defendant at 
 the time of filing the plea " or by supplying omission of 
 averment that the dismissal of a former bill for the same 
 cause of action was on the merits.'* 
 
 § 180. Of the Answer. By rule an answer may be 
 amended without leave of the court and without costs in 
 any matter of form or by filling out a blank or by cor- 
 recting a date or reference to a document and may be 
 sworn at any time before replication is filed or the case 
 set down for hearing on bill and answer. But after repli- 
 cation or the setting down for hearing on bill and answer 
 the answer shall not be amended in any material matter, 
 as by adding new facts or defences or qualifying or alter- 
 ing the original statements except by leave of the court 
 upon cause shown.'® 
 
 § 181. The court may in its discretion allow the amend- 
 ment of an answer at any time during the progress of 
 the cause " and may permit the filing of an answer at the 
 hearing.'* But the facts proposed by the defendant to 
 be inserted by amendment must usually be consistent with 
 the original defence.'^ If the defendant has without fault 
 of his own mistaken his defence the court has power on a 
 proper showing to allow him to change it. 
 
 Practice by Rule. No rule or order need be entered on 
 the filing of amendments which are authorized to be made 
 without leave of the court. In every case of amendment 
 without leave of the court, the party making it shall either 
 file a new engrossment of the pleadings or an engrossed 
 or printed copy of the amendment containing proper 
 references to the pages and lines in the original plead- 
 
 14 — Freeman v. State Bank, Harr. son, 90 Mich. 523; Mason v. Detroit 
 
 ch. 311. City Bank, Harr. ch. 222; Balen v. 
 
 15 — ^Detroit L. & N. E. Co. v. Mereier, 75 Mich. 42. 
 
 McCammon, 108 Mich. 368. 18 — Balen v. Mereier, 75 Mich. 42. 
 
 16 — Chancery Eule, 16 f. g. 19 — ^Freeman v. Bank, Harr. ch. 
 
 17 — ^Van Voorhis v. Van Voorhis, 311. 
 94 Mich. 60; And. Gen. v. Jenkin- 
 
190 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 ing on file where such amendments are to be inserted or 
 made.^"- 
 
 § 182. No amendment shall be considered as made 
 until the same is served on the adverse party if he has 
 appeared in the case.^^ 
 
 § 183. If at the time the complainant amends his bill 
 without leave of the court the answer has not been filed, 
 or if a further answer is necessary, the defendant shall 
 have the same time to answer after such amendment as 
 he originally had.^^ 
 
 This rule will not preclude the defendant from demur- 
 ring or pleading if is deemed that a demurrer or plea to 
 the bill as amended would be proper. 
 
 § 184. Leave of the court to amend when not au- 
 thorized as of course is to be obtained by petition or spe- 
 cial motion setting forth the proposed amendment and 
 the manner in which it is to be inserted and the reasons 
 why it should be allowed and also the reasons why it was 
 not in the original pleading together with the excuse for 
 the delay if necessary.''* Applications for leave to 
 amend should be made at the first opportunity after the 
 discovery of the defects in the pleading.^* 
 
 The original and amended bill constitute one record 
 and the answer to an amended bill constitutes together 
 with the answer to the original bill but one record.^* 
 
 The court may in its discretion permit a demurrer to 
 be amended,^® 
 
 AMENDMENTS TO BILL. 
 (Title of court and cause.) 
 
 Amendments to the bill of complaint in this cause, 
 
 made on this day of , A. D. 19. . ; no 
 
 plea, answer or demurrer having been filed in this cause. 
 
 20— Chancery Rule 17 a. b.; Ma- 24r— Bank v. Niles Walk. Ch. 398. 
 
 son V. Detroit City Bank, Harr. ch. 25— Munch v. Shabel, 37 Mich. 
 
 222. 166; 2 Dan. Ch. PI. & Pr. 840. 
 
 21 — Chancery Rule 17 c. 26 — Phillips v. Jacobs, 145 Mich. 
 
 22 — Chancery Rule 17 d. 108. 
 
 23 — Hammond v. Place, Harr. ch. 
 438; Freeman v. Bank, Harr. Ch. 
 311; Bank v. Niles Walk. Ch. 398. 
 
stage's MICHIGAN CHANCEEY PBACTICB AND FORMS 191 
 
 First Amendment. In the line of the 
 
 paragraph of the said bill after the word {or, phrase) , 
 
 insert the words 
 
 Second Amendment. In the line of the 
 
 paragraph of the said bill after the word {or, phrase) , 
 
 insert the words 
 
 (And so on until the bill is amended as desired.) 
 
 A. B. 
 N. 0. Complainant. 
 
 Solicitor and of Counsel for Complainant. 
 [The better practice in case of any amendment to a bill, un- 
 less very brief or merely formal, is to file an entire amended 
 bill, incorporating the amendment with the original bill. This 
 should be entitled as follows:] 
 (Title of court and cause.) 
 
 Amended bill of complaint of the above named com- 
 plainant, filed pursuant to Rule 16 of this court, {or, by 
 leave of this court, as the case may ie, then proceed:) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 Complaining, etc., as in original bill. 
 
 UNDER CHANCERY RULE 16 (b). 
 (Same as above except the caption will be:) 
 Amendments to the bill of complaint in this cause, made on 
 
 this day of , A. D. 19 . . , being within fifteen 
 
 days after the filing of the answer of the defendant, and no new 
 or further answer being rendered necessary. 
 
 PETITION FOR LEAVE TO AMEND SWORN BILL. 
 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of A. B., the complainant in the above entitled 
 cause, respectfully shows unto the court : 
 
 1. That the bill of complaint in this cause, duly verified cai 
 the oath of your petitioner, was filed in this court on the 
 
 day of , A. D. 19 . . , for the purpose of (state 
 
 general purpose of the bill), and that upon the filing thereof 
 
 an order was made by the Hon , judge of this court, 
 
 (or, by , Esq., a circuit court commissioner of said 
 
 county of ) , that an injunction issue restraining the 
 
 defendant in the said cause from (state matter of injunction), 
 pursuant to the prayer of the said bill, as in and by the said 
 bill of complaint and order for injunction now of record in this 
 court will fully appear, and whereto reference is prayed. 
 
 2. And that thereupon a subpoena to appear and answer 
 the said biU, and a writ of injunction commanding the defend- 
 
192 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 ant to refrain from (state matters restrained), pursuant to the 
 said order were duly issued out of this court, and afterwards 
 and on the day of , A. D. 19 . . , the said sub- 
 poena and writ of injunction were duly served on the said de- 
 fendant, as appears by due proof of such service on file. 
 
 3. And that afterwards and on the day of 
 
 , A. D. 19 . . , the said defendant, C. D., having entered 
 
 his appearance in the said cause by K. L., his solicitor, filed his 
 (demurrer, plea or answer) to the said bill of complaint, but 
 no further proceedings have been had in the said cause. 
 
 4. And that since the filing of the said bill and since the 
 filing of the said (plea, answer or demurrer) by the said de- 
 fendant your petitioner has learned and been informed of the 
 existence of the following facts and circumstances, viz: (state 
 facts which are desired to be incorporated in the bill by way 
 of amendment), and he prays leave to refer to the affidavit of 
 S. T., hereto annexed, and your petitioner verily believes and 
 charges the truth to be that the said facts and circumstances 
 are true in substance and in fact as stated in the said affidavit, 
 and your petitioner is advised and submits unto the court 
 that the said facts and circumstances are not inconsistent with 
 the facts and circumstances stated in the said bill, but are merely 
 additional thereto. 
 
 5. And your petitioner further shows that at the time of 
 the filing of the said bill of complaint the said facts and cir- 
 cumstances were unknown to your petitioner, and that your 
 petitioner could not have ascertained or discovered the same 
 by reasonable diligence, and that he first learned of the existence 
 thereof on or about the day of , A. D. 19 . . . 
 
 6. And your petitioner is advised by N. O., his counsel in 
 this cause, to whom he has fully and fairly stated the facts in 
 this case, and verily believes, that an amendement of the said 
 bill of complaint by the insertion therein of the said newly dis- 
 covered facts and circumstances is essential and necessary for 
 the rights of your petitioner. 
 
 I. Your petitioner therefore prays that he may have leave 
 to amend his said bill of complaint by inserting therein after 
 the .... paragraph thereof the words : (set out the amendments 
 proposed to be made in full, stating each place where such 
 amendment should respectively be inserted). 
 
 II. And that the injunction heretofore issued in this cause 
 shall remain in full force, not affected by the said amendments. 
 
 III. And that your petitioner may have such further or such 
 other relief as shall be agreeable to equity. 
 
 And your petitioner will ever pray, etc. 
 N. 0. A. B. 
 
 Solicitor and of Counsel for Petitioner. 
 (Add verification.) 
 
stage's MICHIGAN CHANCERY PEACTIGE AND FOEMS 193 
 
 PETITION TO WITHDRAW REPLICATION AND AMEND 
 
 BILL. 
 
 (Title of court and cause.) 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 The petition of A. B., the complainant in the above entitled 
 cause, respectfully shows unto the court : 
 
 1. That the defendant, C. D., has filed his answer to the 
 bill of complaint of your petitioner, and your petitioner has 
 filed his replication thereto, but no witnesses have been examined 
 nor proof taken in the said cause (or as the facts may he). 
 
 2. And your petitioner is advised by his counsel and verily 
 believes that it is essential to his rights in this cause that the 
 bill of complaint should be amended by (state the amendments 
 proposed) . 
 
 3. And that your petitioner had no knowledge of the facts 
 and circumstances stated in the foregoing proposed amend- 
 ments, nor was he aware of the necessity of inserting them in 
 the said bill, until after said replication had been filed. 
 
 I. Your petitioner therefore prays that he may have leave 
 to withdraw his said replication and amend his bill by insert- 
 ing the facts and circumstances above mentioned. 
 
 A. B. 
 N. 0., 
 
 Solicitor and of Counsel for Petitioner. 
 (Add verification.) 
 
 ORDER ALLOWING AMENDMENT TO SWORN BILL. 
 
 {Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard on the petition of the 
 above named complainant for leave to amend the bill of com- 
 plaint in this cause, and thereupon on reading the said petition 
 and the afiidavits in support thereof, and having heard the 
 arguments of counsel for the defendant in opposition thereto 
 {or, and on reading and filing due proof of the service of copies 
 of the said petition and affidavits upon the solicitor for the 
 defendant, with notice that the same would be brought on for 
 
 hearing at this time, more than days before this same 
 
 was brought on for hearing, and no one appearing in opposi- 
 tion thereto) : On motion of N. 0., Esq., solicitor and of 
 counsel for the complainant, it is ordered and adjudged, and 
 the court now here doth hereby order and adjudge, that upon 
 (state terms on which amendment is allowed such as payment 
 of costs, etc.), the said complainant have leave to amend' his 
 said bill of complaint by (insert manner of amendment), as 
 prayed ia the said petition, and that the injunction heretofore 
 
194 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 issued in this cause remain of full force, not affected by such 
 amendment. 
 
 And it is further ordered, that the complainant file the said 
 amendments with the register of this court and serve a copy 
 
 thereof on the solicitor for the defendant within days 
 
 after the date of this order, and that the said defendant {or, 
 each of the said defendants), have fifteen days after such service 
 to demur, plead or answer to the said bill as amended, as he 
 shall be advised. 
 
 X.Y., 
 Circuit Judge. 
 
 AMENDMENTS TO SWORN BILL. 
 (Title of court and cause.) 
 
 Amendments to the bil^ of complaint in this cause, made by 
 leave of the court first had and obtained, pursuant to an order 
 
 of this court, made on the day of , A. D. 
 
 19... 
 
 First Amendment. After the paragraph of the said 
 
 bill insert the words : 
 
 Second Amendment. At the end of the paragraph 
 
 of the said bill, insert the words : 
 
 (And so on with all the amendments following the direc- 
 tions in the order.) 
 
 A. B. 
 N. 0., 
 
 Solicitor and of Counsel for Complainant. 
 (Add verification.) 
 
 ORDER FOR LEAVE TO AMEND BILL 
 AFTER DEMURRER IS FILED BUT NOT ARGUED. 
 
 (Title of court and caption.) 
 (Title of cause.) 
 
 In this cause the defendant, C. D., having filed a demurrer 
 to the bill of complaint therein for want of equity : On motion 
 
 of N. 0., Esq., of counsel for the complainant, and 
 
 Esq., of counsel for the defendant, C. D., having been heard 
 in opposition thereto, it is ordered that the complainant have 
 leave to amend his bill of complaint as he may be advised, upon 
 payment of the costs of said defendant to be taxed {or, hereby 
 
 taxed at the sum of dollars). And it is further 
 
 ordered that such amendment be filed with the register of this 
 court and a copy thereof served on the solicitor for the defend- 
 ant within days from the date of this order. 
 
 X. Y., 
 Circuit Judge. 
 
stage's MICHIGAN CHANCEEY PEAOTICE AND FOBMS 195 
 
 ORDERS ALLOWING AMENDMENT TO BILL 
 AFTER DEMURRER IS SUSTAINED. 
 (Title of court and caption.) 
 (Title of cause.) 
 
 In this cause the demurrer of the defendant, C. D., for want 
 of equity having been sustained : On motion of N. 0., Esq., of 
 counsel for the complainant, it is ordered that the complainant 
 have leave to amend his bill of complaint as he shall be ad- 
 vised, upon payment of the costs of the said defendant to be 
 
 taxed {or, hereby taxed at the sum of dollars). It is 
 
 further ordered that such amendments be filed with the register 
 of this court and a copy thereof served on the solicitor for the 
 
 defendant within days from the date of this order. 
 
 X. Y., 
 Circuit Judge. 
 
 AFTER PLEA TO PART IS ALLOWED. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 The plea of the defendant, C. D., to the bill of complaint in 
 this cause having been allowed as to part of the said bill, on 
 
 motion of , Esq., of counsel for the complainant, (and 
 
 , Esq., of counsel for the defendant, having been heard 
 
 in relation thereto) : It is ordered that the complainant have 
 leave to amend his said bill by (state the manner in which the 
 amendment is permitted to he made; see Rule 17 (b), upon pay- 
 ment of costs to be taxed {or, hereby taxed at the sum of 
 dollars). 
 
 It is further ordered that such amendment be filed with the 
 register of this court and a copy thereof served on the solicitor 
 for the defendant within days from the date hereof. 
 
 Circuit Judge. 
 
 AMENDMENT TO PLEA. 
 (Title of court and cause.) 
 
 Amendment to the (first) plea of the defendant, C. D., filed 
 in the above entitled cause, made in pursuance of an order of 
 this court made on the day of , A. D. 19 . . . 
 
 1. In the line of the folio of the said plea 
 
 after the words , insert the words following : (here in- 
 sert the amendment.) 
 
 2. Strike out the words in the folio of 
 
 the said plea and insert instead of the words (And 
 
 so on, pursuant to the order.) 
 
 Solicitor for the Defendant. 
 
196 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 Hearing. 
 
 § 185. The hearing is the submission of the cause to 
 the court for adjudication. 
 
 Hearings are either interlocutory or final, an inter- 
 locutory hearing is that which is had upon motions or 
 petitions during the progress of the suit, the final hear- 
 ing is that upon which the entire case is submitted for 
 final adjudication after the proofs are all taken. 
 
 A final hearing may be on the bill taken as confessed as 
 to all the defendants, upon the bill and demurrer, on the 
 bill and plea, on the bill and answer or on pleadings and 
 proofs as the case may be. 
 
 Notice of Hearing. 
 
 § 186. If none of the defendants have appeared in the 
 case and the bill is taken pro conf esso no notice of hear- 
 ing need be served but the case may be put on the calen- 
 dar at request of the complainant.^ 
 
 If the hearing is on demurrer or on the pleadings or on 
 pleadings and proofs notice of hearing must be served at 
 least ten days before the first day of the term, but if the 
 cause is not in readiness for hearing in time to so notice 
 it, it may be noticed for a subsequent day in term not 
 less than ten days after such notice and placed at the 
 foot of the calendar.^ 
 
 The rules do not in terms prescribe the time for giving 
 notice of the argument of a plea but the rule as to plead- 
 ings will undoubtedly govern. 
 
 If either party has elected to take the examination of 
 witnesses in open court as in a suit at law the cause may 
 be noticed for trial and hearing in open court. Such 
 notice may be countermanded by the party giving it in 
 the same manner as in a suit at law.» The notice must be 
 served on the opposite party at least fourteen days before 
 the first day of the term.* 
 
 1— Warner v. Juif, 38 Mich. 662. 3— Ch. Rule 14b. 
 
 2 — Chancery Eule 9d and 14i. i — C. L., Sec. 10220. 
 
stack's MICHIGAN CHANCEKY PRACTICE AND FOEMS 197 
 
 § 187. Notices of hearing of petitions and motions, ex- 
 cept motions for continuance and to strike causes from 
 the calendar must be served at least four days before the 
 time set for hearing.^ 
 
 When neither party has claimed an examination of 
 witnesses in open court and the complainant fails to take 
 any testimony within the forty days allowed by the rule 
 or within the time, if any, allowed him by extension, the 
 defendant may notice the cause for hearing on pleadings.' 
 
 A notice for hearing for any time after the opening of 
 the term but specifying no particular day is irregular and 
 would not authorize a hearing ex parte, but the irregular- 
 ity may be waived.'' 
 
 After the expiration of the time for answering amend- 
 ments to the bill, if no answer to such amendments has 
 been put in, the case may be noticed for hearing.^ 
 
 §188. Calendar. How Made Up. Circuit Rule 18 
 provides that previous to each term the clerk shall pre- 
 pare a calendar of causes for the term. The same shall 
 be made up in the following order: 1, criminal cases. 
 2, jury civil cases. 3, non jury civil cases. 4, issues of 
 law. 5, chancery cases including issues of law in such 
 cases. Criminal cases shall have precedence. Jury and 
 non jury and chancery cases shall have precedence in the 
 order of their respective dates of joining issue. 
 
 This rule controls only the order of the cases on the 
 calendar but not the order of their trial which is con- 
 trolled by the court. It is provided by statute that "the 
 equity calendar at any regular term of the court shall 
 not be taken up until the issues of fact upon the calendar 
 have first been disposed of unless by the special order of 
 the court. ' ' ® 
 
 § 189. A note of issue giving the title of the cause, the 
 names of the solicitors, the date of 'joining issue and the 
 
 5 — Law Kule 19b made applicable 7 — Munch v. Shabel, 37 Mich. 166. 
 
 to Chancery by Chancery Rule 15. 8— Munch v. Shabel, 37 Mich. 166. 
 
 6— Chancery Eule 14j. 9— C. L., Sec. 450. 
 
198 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 cause of action must be filed with the register of the court 
 at least twelve days before the first day of the term." 
 
 Although as a general rule causes come on to be heard 
 in the order in which they stand on the calendar yet the 
 court may in its discretion hear eases out of their ordi- 
 nary course. 
 
 § 190. Where there are cross suits the original and 
 the cross suit should be heard together and where there 
 are two causes between the same parties involving the 
 same points in dispute and where it is proper that both 
 causes should be heard together if both are on the calen- 
 dar at a distance from each other the court will allow 
 them to be placed together so that both may come on at 
 the same time, and where necessary will order that dep- 
 ositions taken in the one cause may be read in both.^^ 
 Depositions taken in a cross suit may be read in the 
 account directed in the original suit although the cross 
 bill was dismissed ^^ and a cross bill taken pro conf esso 
 will be ordered on motion to be read at the hearing of the 
 original cause.^* 
 
 § 191. Course of Proceedings. The party having the 
 affirmative of the issues has the opening and the close. 
 Thus upon demurrer or plea the defendant has the 
 affirmative and opens and closes. Where the cause is 
 heard upon pleadings and upon pleadings and proofs the 
 complainant opens and closes. The order of proceeding 
 is usually that the substance of the bill is stated or the 
 bill itself read, then the defendant's answer in like man- 
 ner, the matters in issue are pointed out and the equities 
 that are claimed and then the testimony taken on the part 
 of complainant with guch parts of the answer as are 
 favorable to complainant's case are read by complain- 
 ant's solicitor. Then the defendant's solicitor reads the 
 
 10— C. L., Sec. 10221 ; Law Eule 12— Loubiere v. Genou, 2 Ves. 579. 
 
 16 made applicaWe by Chancery 13 — Casey v. Gertaken, 2 Mad. 4; 
 
 Kule 15. 1 Barb. Ch. Pr. 320. 
 
 11 — Nevil V. Johnson, 2 Vernon 
 447; Wilford v. Beasley, 3 Atkins 
 501. 
 
stage's MICHIGAN CHANCEEY PRA.CTICE AND FOEMS 199 
 
 evidence on Ms part followed by the rebutting evidence 
 on the part of complainant. 
 
 The argument follows being opened by complainant's 
 counsel. Defendant's counsel being heard in reply and 
 complainant's counsel closes the argument. 
 
 When an original bill and cross bill are heard together 
 the complainant in the original suit is entitled to open 
 and close. 
 
 Where there are two or more defendants who set up 
 adverse claims the usual practice is for the complainant 
 to open ; followed by the defendant who sets up a claim 
 against the other and then the other defendant, there 
 being no reply between the defendants." But in all such 
 cases the court may direct the order of the proceedings 
 and of the arguments. 
 
 In cross suits the court may and usually does, in its 
 discretion postpone the hearing of the original case until 
 the cross bill is ready for hearing so that both may be 
 heard together, but in cases of unwarrantable and 
 unnecessary delay on the part of the complainant in the 
 cross bill this will be refused.^^ 
 
 § 192. Former Orders. At the final hearing all de- 
 cretal orders previously rendered are before the court and 
 may be affirmed, changed, modified or vacated as justice 
 and equity may require. 
 
 NOTICE OF HEAEING. 
 (Title of court and cause.) 
 
 To , Solicitor for Defendant {or, Complainant). 
 
 Sir: 
 
 Please take notice, that the above entitled cause will be 
 brought on for hearing on pleadings and proofs {or, on bill 
 and answer or, on the demurrer filed therein or, on the bill and 
 
 the plea of the defendant thereto) at the next term of 
 
 the said court to be held in the court house in the 
 
 o± , in said county of , on the first day thereof 
 
 14^1 Barb. Ch. Pr. 317. 
 15 — ^Beauchamp v. Putnam, 34 
 lU. 378. 
 
200 STAGE ''S MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 at the opening of the court on that day, or so soon thereafter 
 
 as counsel can be heard. 
 
 Dated this day of , A. D. 19. .. 
 
 Solicitor for Complainant (or Defendant). 
 
 NOTICE OF HEARING AND EXAMINATION OF 
 WITNESSES IN OPEN COURT. 
 (Title of court and cause.) 
 
 To P. Q., Esq., Solicitor for Defendant, C. D., and R. S., 
 Esq., Solicitor for Defendant, E. P. 
 (Address the solicitors for each defendant who has appeared.) 
 
 Gentlemen : Please take notice, that this cause will be brought 
 on for examination of witnesses in open court and for trial and 
 hearing on pleadings and proofs on the first day of the next 
 
 term of this court, to be held at the court house in 
 
 the of , in said county, at the opening of the 
 
 court on that day, or so soon thereafter as counsel can be heard. 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 Solicitor for Complainant. 
 [If this notice is given by a defendant it should be addressed 
 to and served on the solicitor for each of the other defendants 
 who have appeared, as well as on the solicitor for the com- 
 plainant.] 
 
 AFFIDAVIT OF SERVICE OF NOTICE. 
 (Title of court and cause.) 
 
 (Venue) , A. B. of , being duly sworn, 
 
 says that on the day of , A. D. 19 . . , at the 
 
 of , in the county of and state of 
 
 Michigan, he served the notice of which the annexed is a copy, 
 (together with copies of the affidavits of which copies are hereto 
 annexed), upon ......... Esq., solicitor for the above named 
 
 in this cause, by then and there delivering the same 
 
 to him personally {or, by leaving the same in his oflSce in the 
 
 said of with his clerk, or with 
 
 a person having charge thereof, or, by leaving the 
 
 same in his office in said of , between the 
 
 hours of six in the morning and nine in the evening, that is to 
 
 say : at o 'clock in the noon ; the said office 
 
 being then open and no person being found therein, or, by 
 
 leaving the same at his residence in the said of 
 
 at o'clock in the noon with 
 
 a person of suitable age and discretion, his office 
 
 not being then open so as to admit of service therein, or, by 
 depositing the same enclosed in an envelope with postage fully 
 prepaid by postage stamps to the amount of cents 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 201 
 
 thereto aflSxed, in the postoffice at plainly addressed 
 
 to the said at (state address fully as on envelope), that 
 
 being the business address of the said , solicitor for 
 
 as aforesaid, and that the said (place of deposit) is 
 
 distant not more than miles from the said (place of 
 
 address). 
 (Jurat.) 
 
 (Signature.) 
 (If the service was iy mail and the solicitor served resides in 
 the same city, village or town with the attorney making the 
 service, the last clause stating the distance between place of 
 deposit and address may be omitted.) 
 
 Note of Issue. 
 
 § 193. The rule provides that the party noticing a case 
 for trial or hearing shall, at least twelve days before the 
 first day of the term, file with the register of the court a 
 note of issue giving the title of the cause, the names of 
 the solicitors, the date of joining issue, and the cause of 
 action. Provided that, in the courts discretion, for cause 
 shown, the court may, not later than the first day of the 
 term, add to the term calendar a cause which has been 
 regularly noticed for trial or hearing although a note of 
 issue was not filed.^ 
 
 The statute provision by its terms appears to provide 
 for the filing of notes of issue in law cases only. By its 
 terms a note of issue shall be served on the clerk of the 
 court before each term as provided by rule and if there 
 be no rule then it shall be served four days before the 
 first day of term.^ In many counties there are special 
 rules relative to filing notes of issue still unrepealed the 
 practitioner must consult the special rules of his own 
 county. 
 
 Note of Issue to file with Register. 
 (Insert calendar number of cause.) 
 (Title of court and cause.) 
 To the Register of Said Court. 
 
 Sir: The above entitled cause has been noticed for hearing 
 on pleadings and proofs {or as the case may be, or, for examina- 
 tion of witnesses in open court as in a suit at law and for trial 
 
 1— Law Rule 16a; applicable by 2— C. L., Sec. 10221. 
 
 Ch. Rule 15; Mutatis Mutandis. 
 
202 STAGE "S MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 and hearing in open court on pleadings and proofs), on the part 
 
 of the complainant (or defendant) at the next term 
 
 of the said court, and you will please place the same on the 
 calendar for that term. 
 
 Issue was joined , A. D. 19 . . . 
 
 Cause of action Foreclosure (or as the case may he). 
 
 Solicitor for Complainant, 
 
 Solicitor for Defendant, C. D., 
 
 Solicitor for Defendant, B. F., 
 
 Dated this day of , A. D. 19. .. 
 
 Yours, etc., 
 
 Solicitor for 
 
 AGREEMENT TO SUBMIT CASE ON WRITTEN 
 ARGUMENTS. 
 (Title of eourt and cause.) 
 
 It is hereby stipulated and agreed that this cause be sub- 
 mitted to the court upon written arguments. The complain- 
 ant's counsel is to serve his argument within days 
 
 from this date and the defendant's counsel to answer the same 
 
 within days after service of complainant's argument, 
 
 and the complainant's counsel to reply within days 
 
 after the defendant's argument shall have been served. 
 Dated this day of , A. D. 19 . . . 
 
 Solicitor for Complainant. 
 
 Solicitor for Defendant. 
 (N. B. The word "Briefs" is now often substituted for 
 "Written Arguments.") 
 
 § 194. Term Calendar. How Made Up. Previous to 
 each term the clerk shall prepare a calendar of causes for 
 the term to be made up in the following order : 1. Crimi- 
 nal cases. 2. Jury Civil Cases. 3. Non Jury Civil 
 Cases. 4. Issues of Law. 5. Chancery cases includ- 
 ing issues of law in such cases. Criminal cases shall have 
 precedence. Jury, non jury and chancery cases shall 
 have precedence in the order of their respective dates of 
 joining issue.^ 
 
 By statute the clerk shall procure the term calender to 
 be printed.'* 
 
 1— Law Bule 18. 2 — C. L., Sec. 2574. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FORMS 203 
 
 The above rule does not govern the order of the trial 
 of the eases. That is under the control of the court. 
 
 Decree. 
 
 § 195. A decree is the judgment of a court of equity 
 made after the hearing of the cause. 
 
 A decree may be interlocutory or final. 
 
 It is interlocutory when pronounced during the prog- 
 ress of a cause usually on some petition or motion for 
 the purpose of ascertaining some fact or proposition of 
 law preparatory to a final decree. Interlocutory decrees 
 are sometimes styled decretal orders, they do not fully 
 determine the equities of the parties but usually relate 
 to some proceedings in the progress of the cause and are 
 often made for the protection of such equities until the 
 final hearing and disposition of the case. 
 
 A final decree settles the matter in dispute according 
 to the equities of the several parties, and has the same 
 effect as res adjudicata, as a judgment at law,^ but a 
 decree dismissing a bill not on the merits but because of 
 the existence of a remedy at law is not an adjudication 
 and does not bar an action at law.^ 
 
 The decree must, if for complainant, be in conformity 
 to the allegations in the bill, and if for aflSrmative relief 
 to defendant must conform to his cross bill or answer in 
 the nature thereof.^ 
 
 And as already stated, a decree pro confesso must con- 
 form strictly to the case made by the allegations in the 
 bill, and a complainant cannot obtain a decree for more 
 
 1 — Bates V. Gir. Judge, 82 Mich. Ford v. Loomis, 33 Mich. 121; liv- 
 91; More v. Luther, 153 Mich. 206; ingston v. Hayes, 43 Mich. 129; Mo- 
 D. L. & N. E. Go. V. MeGammon, 108 ran v. Palmer, 13 Mich. 367 ; Peck- 
 Mich. 368 ; Moran v. Letourneau, 118 ham v. Buffum, 11 Mich. 529 ; Payne 
 Mich. 159. V. Avery, 21 Mich. 524; Le Baron 
 
 2 — Peters v. Hanson, 55 Mich. v. Shepherd, 21 Mich. 263; Dart v. 
 
 276; Gamble V. E. Saginaw, 43 Mich. Barbour, 32 Mich. 267; Converse v. 
 
 467. Blumrieh, 14 Mich. 109; Hayward 
 
 3'— Thayer v. Lane, Walk. Ch. v. National Bank, 96 V. S. 611; 
 
 200; McMahon v. Eooney, 93 Mich. Crockett v. Lee, 7 Wheat. 522. 
 390; Smith v. Eumsey, 33 Mich. 183; 
 
204 stage's MICHIGAN CHANCEKY PWA.CTICE AND FORMS 
 
 than is warranted by Ms bill,* although under the prayer 
 for general relief the complainant will be entitled to any 
 relief warranted by the stating part of the bill, not incon- 
 sistent with the specific relief prayed.® 
 
 § 196. Interlocutory Decrees. The adjudication upon 
 a demurrer or on the argument of a plea is not fijial but 
 interlocutory as if against the complainant he may amend 
 his bill or take issue on the plea, and if against the de- 
 fendant he may answer over.® And a reference to a Cir- 
 cuit Court Commissioner to ascertain the facts is inter- 
 locutory.'' 
 
 Any adjudication which does not finally dispose of the 
 rights of the parties but leaves something more to be 
 done by the court before such rights are determined is 
 interlocutory.* 
 
 An order dissolving an injunction is interlocutory,* 
 so is an order allowing temporary alimony.^" An order 
 granting leave to file a bill of review is interlocutory 
 but an order denying such leave is final. ^^ 
 
 An interlocutory decree is not evidence of anything on 
 the merits of the case.'^ 
 
 § 197. Final Decree. A final decree is one which deter- 
 mines the rights and equities of the parties to the suit, 
 reserving no further questions for future adjudication by 
 
 4 — Creasey v. St. George's Society, Wing v. Warner, 2 Douq. Mich. 288; 
 
 34 Mich. 51. XJ. S. Heater Co. v. Iron Moulders 
 
 5—1 Dan. Ch. PI. & Pr., 379 et Union, 129 Mich. 354; Sehuffert v. 
 
 seq. Grote, 83 Mich. 263; Simmons v. 
 
 6 — Ch. Eules 8d and 9e; Bennett Supervisors, 144 Mich. 591. 
 
 V. Nichols, 12 Mich. 22; Moody v. 10 — Cooper v. Mayhew, 40 Mich. 
 
 Maeomber, 156 Mich. 76. 528 ; Eoss v. Boss, 47 Mich. 185. 
 
 7 — Enos V. Sutherland, 9 Mich. 11 — Maxfield v. Freeman, 39 Mich. 
 
 48; Caswell v. Comstoek, 6 Mich. 64; Johnson v. Shepherd, 35 Mich. 
 
 391; Perkins v. Perkins, 10 Mich. 115; Scriver v. Hirsh, 39 Mich. 98; 
 
 525. Leggett v. City of Detroit, 137 Mich. 
 
 8— Colgate v. Mich. L. S. R. Co., 247 ; Bescher v. Rolling Mill Co., 40 
 
 28 Mich. 288; Patterson v. Hopkins, Mich. 307; Frieske v. Frieske, 138 
 
 23 Mich. 541. Mich. 458. 
 
 9— Boinay v. Coats, 17 Mich. 411 ; 12 — G. E. L. & Detroit E. Co. t. 
 
 Spencer v. Stefirns, 28 Mich. 463; Cheesebro, 74 Mich. 466. 
 
stage's MICHIGAN CHAJSTCEKY PBACTICE AND FOEMS 205 
 
 the court. It is none the less final because some further 
 proceedings may be necessary to carry the same into 
 effect the report of which may come before the court in 
 the same case.^^ Thus a decree in a foreclosure case 
 which ascertains the amount due and orders payment 
 within a certain time and in default of payment a sale 
 of the mortgaged premises is a final decree although it 
 may be and usually is, necessary for a Circuit Court Com- 
 missioner to sell the property and to bring the matter 
 again before the court by his report of the sale and dis- 
 position of the proceeds which report may be confirmed 
 or vacated by the court.** So a reference to a Circuit 
 Court Commissioner to ascertain the amount of a debt 
 will not make the decree interlocutory.*^ 
 
 A decree in favor of complainant on condition thai 
 complainant should himself perform some act or pay a 
 sum of money as in suits for specific performance is a 
 final decree.*^ 
 
 The test as to whether a decree or decretal order is 
 interlocutory or not is its effect upon the rights and in- 
 terests of the parties rather than the stage of the pro- 
 ceedings at which it is made and whenever an order or 
 decree divests a legal right from one party and vests it 
 in another it is in its nature final.*'^ Thus an order strik- 
 ing a bill from the files is a final order,** and so is an 
 order pimishing a party for contempt,*^ and also an order 
 refusing to set aside a decree for irregularity.^" 
 
 Where an injunction pendents lite operates to give all 
 
 13 — ^Dameuth v. Klock, 28 Mich. Mich. 73 ; Eomeyn v. Caplis, 11 Mich. 
 
 163; Webber v. EandaJl, 89 Mi(;h. 448; Williams v. Olson, 151 Mich. 
 
 531; Hunt V. Hunt, 109 Mich. 399. 265. 
 
 14 — ^Benedict v. Thompson, 2 18 — Webster v. Hitchcock, 11 
 
 Doug. Mich. 299 ; see Bullard v. Mich. 56. 
 
 Green, 9 Mich. 222; Miles v. Hoag, 19— Haines v. Haines, 35 Mich. 
 
 7 Paige 19. 138; Carnahan v. Carnahan, 143 
 
 15 — Damouth v. Klock, 28 Mich. Mich. 390; Steller v. Steller, 25 
 
 163. Mich. 159; Potts v. Pptts, 68 Mich. 
 
 16— Turner v. Crebill, 1 Ham. 368. 492. 
 
 17 — Webber v. Eandall, 89 Mich. 20 — Michigan Ins. Co. v. Whitte- 
 
 531; Tucker v. Stone, 91 Mich. 298; more, 12 Mich. 311. 
 Garth Lumber Co. v. Johnson, 150 
 
206 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 the relief prayed in the bill it is a final order and may be 
 appealed from.^^ 
 
 § 198. The decree is often spoken of as divided into 
 three or sometimes four parts, viz., The Title, Caption 
 and The Recitals, The Declaratory part and the Order. 
 Of these the declaratory part is in most cases useless and 
 omitted. 
 
 The caption and titie consists of the title of the court, 
 a statement of the place and time at which it was held 
 and the decree pronounced, the name of the presiding 
 judge and the title of the cause. 
 
 The recitals consist of a statement of the manner in 
 which the cause came on to be heard whether on the bill 
 taken as confessed, or on the pleadings, or on pleadings 
 and proofs in open court or proofs taken before a comr 
 missioner or on the report Of a Circuit Court Commis- 
 sioner on any subject referred to him, the names of the 
 counsel who appeared for the respective parties, a brief 
 statement of the allegations and objects of the Ijill and, 
 if necessary to the understanding of the decree, a brief 
 statement of the grounds of defence, and also of the facts 
 found by the court on which its adjudication of relief is 
 based. 
 
 The declaratory part declares the respective rights and 
 equities of the parties. It is seldom essential but is some- 
 times useful. 
 
 The ordering or mandatory part contains the terms of 
 the adjudication of the court upon the matter before it. 
 
 "Wlien the decree is interlocutory it states what is to be 
 done, as the references to a commissioner, the appoint- 
 ment of a receiver or special directions as to any matter 
 not decisive of the entire controversy. It often contains 
 a reservation of the further matters to be decided and 
 frequently also of the question of costs until the final 
 hearing. When the decree is final it states the determina- 
 tion of the court with explicit directions as to what is to 
 
 21 — Bailway Co. v. Railroad Co., Mich. 426; Garth Lumber Co. v. 
 ei Mjeh. 9; Smith v. Walker, 57 Johnson, 150 Mich. 73. 
 Mich. 486; Witbeck v. Chittenden, 50 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 207 
 
 be done with regard to the subject matter of the suit and 
 the costs of the litigation. 
 
 When a decree or order is made by consent it should 
 be so stated in the recital.^ A decree or order made by 
 consent cannot be set aside, except by consent of parties, 
 or upon a showing of fraud or mistake.^^ 
 
 § 199. Nunc pro tunc clause. When a complainant or 
 a defendant has died after the hearing and before the 
 decree has been pronounced by the court, the decree may 
 be made to relate back to the time of the hearing by en- 
 tering a clause to that effect therein. And decrees have 
 been entered nimc pro tunc after a long period after pro- 
 noxmcing the decree "* and where the original decree has 
 been lost the court has permitted a new decree to be made 
 from the solicitor's office copy after the lapse of over 
 twenty years and filed nunc pro tunc, but this must be 
 considered as the restoration of a lost decree rather than 
 the making of a decree nimc" pro tunc. 
 
 A decree cannot be entered in a divorce case after the 
 death of a party so as to relate back to the time before 
 such death.^^ 
 
 § 200. The decree should be prepared by the solicitor 
 for the prevailing party and submitted to the solicitor 
 for the opposite party who is entitled to reasonable notice 
 of the time and place when it will be presented to the 
 judge for signature and to be heard as to its contents 
 before the judge. It must be signed by the judge who 
 heard the cause. 
 
 By statute when any judg-e shall have omitted to sign 
 any decree by him passed, any record or journal of a 
 court held by him, his successor, or any other judge hold- 
 
 22 — First N. Bank v. Circuit Lawrence v. Eichmond, 1 Jae. & W. 
 
 Judge, 100 Mich. 67. 241; Donne v. Lewis, 11 Vesey 601; 
 
 23 — Hammond v. Place, Harr. Ch. Jesson v. Brewer, 1 Diek. 371; 1 
 
 488 ; see Eussell v. White, 63 Mich. Barb. Ch. Pr. 342. 
 
 409; Wyatt v. Sweet, 48 Mich. 539. 25— Wilson v. Wilson, 73 Mich. 
 
 24 — CampbeU v. Meaier, 4 Johns. 620; Zoellner v. Zoellner, 46 Mich. 
 
 Ch. 334; Vroom v. Ditmas, 5 Paige 50. 
 528; Wood v. Keyes, 6 Paige 478; 
 
208 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 ing the same court, may sign such decree, record or jour- 
 nal and with like force and effect as if the same had been 
 signed by the judge who passed the decree or held the 
 court to which said record or journal belongs.^" 
 
 Any decree of the former Court of Chancery, or of the 
 Circuit Court in Chancery, that may have been duly 
 passed and signed and not reversed, vacated or annulled, 
 and which may have failed to be recorded or enrolled, 
 may be directed by the court having the legal custody of 
 the files in the case in which such decree was pronounced, 
 in its discretion, to be recorded and enrolled by the regis- 
 ter of the court nunc pro tunc and when so recorded and 
 enrolled the same shall be as effectual as if recorded and 
 enrolled at the end of thirty days after its allowance.^'' 
 
 By statute also the circuit judges sitting in chancery 
 are directed to render opinions in all cases within six 
 months after the final hearing and submission.^* 
 
 § 201. Enrollment of Decree. After the expiration of 
 thirty days from the time a final decree shall be entered 
 in the minutes of the court, if no appeal therefrom shall 
 have been entered on the minutes of the court and no 
 petition for a rehearing shall have been presented, upon 
 being required by either party, the register by whom such 
 final decree shall have been entered shall attach together 
 the bill, pleadings and such other papers filed in the cause 
 as may from time to time by general rules be directed, 
 together with the taxed bill of costs therein and shall 
 annex thereto a fair engrossed copy of the decretal order, 
 signed by the circuit judge and countersigned by the 
 register Avho entered the same.^' 
 
 The register shall then annex to the papers so attached 
 together his certificate under the seal of the court wherein 
 he shall certify according to the fact, the time when the 
 papers were so attached for the purpose of enrollment 
 and the name or names of the parties at whose instance 
 the same was done, and thereupon the said papers so 
 
 26 — Detroit Pire & Ins. 
 
 Co. 
 
 V. 
 
 28— C. L., Sec. 558. 
 
 Eeney, 33 Mich. 298. 
 
 
 
 29— C. L., Sec. 463. 
 
 27— C. L., Sec. 556-557. 
 
 
 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 209 
 
 attached, annexed and signed, together with said certifi- 
 cate, shall be filed with the register and remain a record 
 in his ofiice ; and such certifying and filing shall be deemed 
 an enrollment of the decree and proceedings for all pur- 
 poses whatsoever.^"* 
 
 "No process shall be issued or other proceedings had 
 on any final decree to enforce the same until the same is 
 duly enrolled pursuant to statute. 
 
 The register shall include in such enrollment all papers 
 filed in the cause. 
 
 If the decree authorizes the sale of real estate, notice 
 of such sale may be given in advance of such enrollment, 
 but no conveyance shall be executed by a commissioner or 
 other officer on such sale until such enrollment is had." *^ 
 
 Although neither rule nor statute mention a precipe 
 for the enrollment it will be good practice to serve one on 
 the register. 
 
 § 202. The enrollment is important in its. effects as no 
 action can be taken on the decree until it is made.^'' Be- 
 fore enrollment the defeated party may apply for a re- 
 hearing by petition,^* after enrollment his only method 
 of obtaining such rehearing is by bill of review.^* The 
 decree cannot be recorded in the office of the register of 
 deeds until after it is enrolled, but after enrollment it 
 may be so recorded and when so recorded shall have the 
 same effect as the original decree and if the decree directs 
 the execution of a conveyance or other instrument affect- 
 ing the title to real estate, such record will have the same 
 effect as the record of such conp^eyance or other instru- 
 ment would have if duly executed pursuant to such 
 decree.^^ 
 
 Nor can the decree be amended on motion or petition 
 after enrollment, but only on bill of review,^^ although 
 
 3Q — C. L., Sec. 464. 34 — Maynard v. Pereault, 30 
 
 31 — Chancery Rule 24. Mich. 160. 
 
 32— Wilkie v. Cir. Judge, 52 Mich. 35 — C. L., Sec. 557 ; also C. L., 
 
 641. Sec. 9044 and Sec. 9046. 
 
 33 — ^Benedict v. Thompson, Walk. 36 — Reynolds v. Reynolds, 115 
 
 Ch. 446; Barnes v. Cir. Judge, 97 Mich. 378; Cadotte v. Cadotte, 120 
 
 Mich. 212. Mich. 667. 
 
210 stage's MICHIGAN CHANCERY PKACTICE AND FOKMS 
 
 after enrollment the court may by order modify the time 
 for the enforcement of the decree.*^ 
 
 § 203. Orders Common and Special. Every order to 
 which a party would, according to the practice of the 
 court be entitled, of course without showing special cause, 
 is denominated a common order and every other order is 
 called a special order. All common orders and all orders 
 by consent of parties shall be entered with the register 
 in a book called the common order book and may be 
 entered at any time in vacation as well as in term: the 
 day on which the order shall be entered shall be noted 
 and the party may enter such order as he may conceive 
 himself entitled to but at his peril. 
 
 Except as required by statute such orders may be filed 
 with the register with like effect as if entered.** 
 
 § 204. All decrees and special orders in chancery must 
 be signed by the judge or Circuit Court Commissioner as 
 the case may be, whether made in court or at chambers. 
 
 GENERAL FORM OF DECREE. 
 State of Michigan. 
 
 The Circuit Court of the Comity of : 
 
 In Chancery. 
 At a session of the said court, held at the court house in the 
 
 of , in said county, on the day of 
 
 , in the year of our Lord one thousand niae hundred 
 
 and 
 
 Present : the Hon , 
 
 Circuit Judge. 
 A. B., Complainant, 
 
 V. 
 
 C. D., Defendant. 
 
 This cause having come on to be heard upon the pleadings 
 
 and proofs taken therein (and on the report of , Esq., 
 
 a circuit court commissioner of said county, to whom it was 
 referred to (state subject of reference), was argued by coun- 
 sel for the respective parties, and the court being fully advised 
 in the premises: 
 
 37 — Cadotte v. Cadotte, 120 Mieh. to Chancery mutatis mutandis by 
 667. Chancery Eule 15. 
 
 38 — Law Eule 11 made applicable 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 211 
 
 Now, therefore, on due consideration thereof, it is ordered, 
 adjudged and decreed, and the court now here doth hereby 
 order, adjudged and decree that, etc. 
 
 INTERLOCUTORY DECREE ON BILL OP 
 INTERPLEADER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the bill of com- 
 plaint filed therein and the several answers of the respective 
 defendants thereto and the replications to the said answers, and 
 the court having heard the arguments of counsel for the parties 
 respectively : 
 
 Upon due consideration thereof, it is ordered, adjudged and 
 decreed by the court now here, that the said bill of interpleader 
 is properly filed, and that the defendants (naming them) do in- 
 terplead and settle the matters in controversy between them- 
 selves; and it appearing to the court that the said complainant 
 has deposited with the register of this court the fund in con- 
 troversy in this cause, it is further ordered, adjudged and de- 
 creed that the said complainant be dismissed with his costs in 
 
 this cause to be taxed (including a solicitor's fee of 
 
 dollars), and that such costs be paid out of the fund so paid 
 into this court.* 
 
 (If the cause be referred to a circuit court commissioner to 
 take proofs as between the defendants, add the following:) 
 
 And it is further ordered adjudged and decreed, that this 
 
 cause be, and the same hereby is referred to , Esq., a 
 
 circuit court commissioner of the said county of to 
 
 inquire and report which of the said defendants is entitled to 
 the said fund in controversy and which has been deposited with 
 the register of this court; and if the said circuit court com- 
 missioner shall be of the opinion that any two or more of the 
 defendants are equitably entitled to share in the same, that he 
 also ascertain and report what portion of the said fund belongs 
 to each; and it is further ordered that before the examination 
 of any witness before the said circuit court commissioner, each 
 or either of the said defendants maj' present to the said circuit 
 court commissioner, a statement in writing of his claim and of 
 the facts and circumstances whereon the same is founded, which 
 statement may be answered by each and all of the other de- 
 fendants, and such statements and the answer thereto shall con- 
 stitute an interpleader between the said defendants. And that 
 upon such reference either of the said defendants, shall be at 
 liberty to summon witnesses and proceed to prosecute their re- 
 spective claims before the said circuit court commissioner in 
 
212 stage's MICHIGAN CHANCEBY PKACTICE AND FOKMS 
 
 such manner as the said circuit court commissioner shall direct, 
 and that the solicitors of each of the said defendants have notice 
 of all proceedings before the said circuit court commissioner. 
 
 And this court reserves the consideration of all questions of 
 costs as between the defendants and all other questions and di- 
 rections until the coming in of the circuit court commissioner's 
 report, but with liberty to either party to apply for such fur- 
 ther or other instructions or directions to the said circuit court 
 commissioner, pending the reference, as occasion may require. 
 
 (In case, as is now more usual, the case is not referred hut 
 is taken up in open court, instead of the foregoing reference the 
 following may he inserted after the *). 
 
 And it is further ordered, adjudged and decreed, that the 
 answers of the several defendants on file be taken as and for an 
 interpleader between them and as statements of their respective 
 claims, and that the said defendants proceed to present and 
 prosecute before the court their several and respective claims 
 to the said fund so deposited with the register of this court, ac- 
 cording to the rules and practice of this court, in the same man- 
 ner as if each answer were a cross bill as to each of the other 
 defendants and also an answer to the claims of each of the 
 other defendants. 
 
 DECREE FOR FORECLOSURE OF MECHANIC'S LIEN. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the pleadings and proofs 
 and was argued by counsel for the respective parties, and the 
 court upon due consideration thereof finds that the matters 
 stated in the bill of complaint in this cause are true, and that 
 
 there is now due to the complainant the sum of dollars, 
 
 for which he is entitled to a lien on the premises mentioned in 
 the said bill, that is to say: (Describe the premises on which a 
 lien is decreed), in accordance with the statute in like case pro- 
 vided. 
 
 It is therefore ordered, adjudged and decreed, and the couri 
 now here doth hereby order, adjudge and decree, that the said 
 complainant has a lien on the said above described land and 
 
 premises to the said amount of dollars so found to 
 
 be due to him as aforesaid, and that the defendants above named, 
 or some of them, pay to the said complainant the said sum of 
 
 dollars, with interest from the date of this decree, on 
 
 or before the day of , A. D. 19 . . , together 
 
 with the costs of this suit to be taxed, and that in case default 
 be made in such payment that thereupon at any time after the 
 said last mentioned day the said premises, or such part or parts 
 thereof as may become necessary to raise the amount aforesaid 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 213 
 
 with the expenses of such sale and the costs aforesaid and which 
 can be sold without damage to the whole, be sold by a circuit 
 
 court commissioner of the said county of , at public 
 
 auction or vendue to the highest bidder for cash, after having 
 first given public notice of the time and place of such sale and 
 the terms thereof in the manner provided by law for sales under 
 decree for the foreclosure of a mortgage, and that upon the 
 making of such sale the said circuit court commissioner make 
 and execute to the purchaser at such sale a deed of conveyance 
 of the land and premises so sold with an endorsement thereon 
 that the same will become operative after the expiration of 
 fifteen months from the time of the filing of the bill of com- 
 plaint in this cause, unless sooner redeemed according to law; 
 and that from the proceeds of such sale the said circuit court 
 commissioner first pay the expenses of such sale and his fees for 
 making the same and the costs of this suit, and second pay to the 
 
 complainant the said sum of dollars herein decreed 
 
 to be due to him and the interest thereon, and that he bring the 
 surplus, if any, into this court with his report to be disposed of 
 as equity shall require, and that the said circuit court commis- 
 sioner make due report to this court of all and singular his do- 
 ings in the premises. 
 
 DECREE FOR SPECIFIC PERFORMANCE VENDEE V. 
 
 VENDOR. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the pleadings on file and 
 the proofs taken therein and was argued by counsel, and there- 
 upon it appears to the court by such pleadings and proofs that 
 the agreement mentioned iu the bill of complaint in this cause 
 made by and between the said complainant and the said de- 
 fendant and bearing date the day of , A. D. 
 
 19 . . , and whereby the said defendant agreed to sell to the said 
 complainant the land and premises described in the said agree- 
 ment, as foUows: (describe the land and premises), for the sum 
 
 of dollars, has been fully proved, and that the said 
 
 complainant has fully performed his part thereof and has paid 
 to the said defendant the full amount of the purchase money 
 thereof (except the sum of dollars, which last men- 
 tioned sum the said complainant has paid in to the register of 
 this court) : 
 
 Now, therefore, in consideration thereof, it is ordered, ad- 
 judged and decreed, and this court doth hereby order, adjudge 
 and decree, that the said agreement be specifically performed, 
 and that the said defendant do forthwith make, execute and de- 
 liver to the said complainant a good and sufficient deed of con- 
 
214 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 veyance of the said land and premises described in the said 
 agreement as hereinbefore set forth, such deed to be approved 
 
 by , Esq., a circuit court commissioner of said county 
 
 of , or by this court, in case the parties differ in re- 
 lation thereto. 
 
 And it is further ordered, adjudged and decreed, that the 
 said land and premises and the whole thereof, is the property 
 of the said complainant in fee simple, to have and to hold the 
 same to himself, his heirs and assigns forever, and that the said 
 complainant have leave to cause this decree, or a certified copy 
 thereof, to be recorded in the ofSce of the register of deeds of 
 the said county of 
 
 And it is further ordered, adjudged and decreed, that the 
 costs of the complainant in this cause be taxed by the register 
 of this court and that the amount thereof be paid to the said 
 complainant by the said register from the moneys heretofore 
 deposited in his hands by the said complainant as and for the 
 balance of the purchase money of the said land, being the sum 
 of dollars, if the said moneys so deposited shall Ije suf- 
 ficient for that purpose, and if insufficient therefor that the said 
 register pay the whole sum so deposited to the said complainant 
 and that the said defendant pay to the complainant the amount 
 of such deficiency, and that the complainant have execution there- 
 for, and that upon the execution and delivery of the said deed 
 as aforesaid the said register pay to the said defendant the bal- 
 ance and remainder of the said sum so deposited with him as 
 aforesaid, if any there be, after the payment of the said costs 
 as aforesaid. (If no deposit has been made and the complaivr 
 ant is decreed to have fully paid up the purchase money to the 
 defendant, instead of the last paragraph insert, And it is further 
 ordered, adjudged and decreed that the said defendant pay to 
 the complainant his costs in this cause to be taxed, and that the 
 said complainant have execution thereof.) 
 
 And it is further ordered that either of the parties to this 
 cause be at liberty to apply to this court as occasion may require. 
 
 Circuit Judge. 
 
 SAME VENDOR V. VENDEE. 
 (Title of court.) 
 (Title of cause.) 
 
 (Caption.) ' 
 
 This cause came on to be heard for further directions on 
 
 the report of , Esq., the circuit court commissioner to 
 
 whom the same was referred, which said report is hereby in all 
 things approved and confirmed; and the said report and the 
 pleadings and proofs in this cause having been read and the 
 counsel for the respective parties having been heard and the 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 215 
 
 court being fully advised in the premises, and it appearing to 
 the court that a good title can be made by the complainant to 
 the land and premises comprised in the agreement between the 
 parties to this cause, mentioned in the pleadings therein, and 
 dated the day of , A. D. 19 . . : Now, there- 
 fore, on consideration thereof, it is ordered, adjudged and de- 
 creed, and this court doth hereby order, adjudge and decree, that 
 the said agreement so made and entered into by and between 
 the said complainant and the said defendant has been duly 
 proved in this court and that the same be specifically performed. 
 
 And it is further ordered, adjudged and decreed, that the 
 said complainant execute and deliver to the said defendant a 
 proper and sufficient deed of conveyance in fee simple of the 
 land and premises described in the said agreement, and described 
 therein as follows : (insert description), such deed to be approved 
 
 by , Esq., a circuit court commissioner of said county 
 
 of , or by this court in case the parties differ about the 
 
 same. And it is further ordered, adjudged and decreed that the 
 said defendant upon the tender or delivery to him of such deed 
 
 of conveyance, to pay to the complainant the sum of 
 
 dollars, the balance of the purchase money of the said land and 
 premises reported by the said circuit court commissioner to be 
 still due and owing, together with interest thereon at the rate 
 of per cent per annum, from the date of the said re- 
 port of the said circuit court commissioner. 
 
 And it is further ordered, adjudged and decreed that the 
 defendant pay to the complainant his costs in this suit to be 
 taxed. And it is further ordered, adjudged and decreed that 
 the said complainant have execution against the said defend- 
 ant for the said sum of dollars, the balance of the pur- 
 chase money so reported due as aforesaid with interest as afore- 
 said, and for the said costs to be taxed as aforesaid, according 
 to the course and practice of this court. And that either party 
 to this suit be at liberty to apply to this court as occasion may 
 require. 
 
 DECREE THAT COMPLAINANT'S CLAIM BE PAID 
 FROM FUND IN HANDS OF RECEIVER. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the pleadings 
 and proofs taken therein and the report of the receiver here- 
 tofore appointed in this cause and the report of the circuit 
 court commissioner to whom it was referred to examine the 
 defendant and other witnesses in this cause, which said reports 
 are each and both of them hereby approved and confirmed, and 
 
216 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 this cause having been argued by counsel for the respective 
 parties and the court being fully advised in the premises : 
 
 It is ordered, adjudged and decreed, and this court doth 
 hereby order, adjudge and decree, that out of the moneys now 
 in the hands of the said receiver collected and held by him as 
 shown by his said report, the said receiver, after deducting his 
 charges for disbursements and commissions, do pay the costs 
 of this suit to be taxed by the register of this court, and that 
 out of the residue of the said moneys he pay to the complain- 
 ant the amount of his judgment mentioned in the bill of com- 
 plaint in this cause, viz. : the sum of dollars with 
 
 interest thereon from the date of the rendition of the said judg- 
 ment, namely the day of A. D. 19 . . , at the 
 
 rate of per cent per annum, and that he take from 
 
 the complainant an acknowledgment of satisfaction of the said 
 judgment and deliver the same to the defendant, C. D., to the 
 end that said judgment may be canceled and discharged of 
 record (if there are other lawful claimants on the fund insert 
 clauses ordering the payment thereof and conclude:) 
 
 And it is further ordered, adjudged and decreed that the 
 said receiver do pay over to the defendant, C. D., the residue of 
 the moneys so remaining in his hands if any there shall be, or 
 account with him for the same, and deliver all and singular 
 the property and effects, books of account, evidences of debt 
 and other papers and documents relating to the said estate on 
 demand to the said C. D., and also if the said C. D. shall so 
 require, that the said receiver execute back and deliver to him 
 a general release and assignment of all and singular the prop- 
 erty, equitable interests, effects and assets of the said estate 
 remaining in his hands not disposed of. And it is further 
 ordered, adjudged and decreed that on such payments, assign- 
 ment and delivery being made, that the said receiver be dis- 
 charged from his said trust. 
 
 [If amount in receiver's hands be insufficient to pay in full 
 the decree will merely direct him to pay the amount in his 
 hands after payment of costs to the complainant and take his 
 receipt therefor.] 
 
 [In some cases where there are intervening claims, the court 
 will order surplus to be paid into court instead of being turned 
 over to the defendant.] 
 
 DECREE VACATING DEED IN BILL IN AID OF 
 EXECUTION. 
 
 (Title of court.) 
 (Title of cause.) ' 
 (Caption.) 
 
 This cause having come on to be heard upon the pleadings 
 and proofs, the evidence of the witnesses thereia having been 
 
stage's MICHIGAN CHANCERY PKACTICE AND EOEMS 217 
 
 taken in open court as in a suit at law, (or, and the report of 
 
 , Esq., the circuit court commissioner to whom the 
 
 same was referred to take proofs of the matters alleged in the 
 said bill, which report is hereby ratified and confirmed), and 
 the court having heard the arguments of the counsel of the 
 respective parties and having had due consideration thereof 
 and being fully advised in the premises : 
 
 It is ordered, adjudged and decreed, and the court doth 
 hereby order, adjudge and decree, that the deed of conveyance 
 
 bearing date the day of , A. D. 19 . . , made 
 
 and executed by the defendant, C. D., to the defendant, G. H., 
 of the premises described therein, as follows, to-wit: (describe 
 the premises), be, and the same hereby is set aside and vacated 
 and declared to be null and void and of no effect whatever as 
 against the said complainant. 
 
 And it is further ordered, adjudged and decreed that the 
 said complainant be, and hereby is authorized to proceed upon 
 his writ of fieri facias issued upon the judgment rendered in 
 
 the circuit court for the county of , mentioned and 
 
 described in the said bill of complaint, wherein he is plaintiff 
 and the said defendant, C. D., is defendant, for dol- 
 lars damages and dollars costs, or issue another writ 
 
 of fieri facias thereon if it be necessary, and that the sheriff of 
 
 the said county of , thereupon proceed to levy upon, 
 
 advertise and sell the said lands and real estate for the payment 
 and satisfaction of the said judgment, interest and costs and 
 the cost-s of this suit unless the same be sooner paid to the com- 
 plainant. 
 
 And it is further ordered, adjudged and decreed that the de- 
 fendants, C. D. (and G. H.), pay the costs of this suit, to be 
 taxed by the register of this court, to the said complainant, 
 and if the proceeds of the sale of said premises be not suffi- 
 cient to pay the said judgment with interest and the costs of 
 this suit that the complainant have further execution for the 
 same against the defendant, C. D., (and also as to the costs of 
 this suit against the defendant, G. H.) 
 
 [There shoiild be no personal decree against the grantee for 
 anything above the costs of this suit, and the court will not 
 decree such costs against the grantee unless he shall have par- 
 ticipated actively in the fraud.] 
 
 DECREE TO QUIET TITLE AND CANCEL DEED. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard on the pleadings 
 therein and the proofs taken in said cause, and having been 
 
218 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 argued by counsel for the respective parties, and the court hav- 
 ing duly considered the same and being fully advised thereof: 
 
 And thereupon, upon due consideration thereof, it is ordered, 
 adjudged and decreed, and the court doth hereby order, ad- 
 judge and decree, that the deed of conveyance from E. F. and 
 C. F. to the defendant, J. K., mentioned in the said bill, and 
 
 bearing date the day of , A. D. 19 . ., of the 
 
 following described land and premises: (describe premises), 
 and recorded in the office of the register of deeds for the county 
 
 of , in liber of deeds at page , be, 
 
 and the same is hereby set aside, vacated and declared null and 
 void as against the said complainant, his heirs and assigns as 
 a cloud upon the title of the complainant and that the said 
 defendant, J. K., deliver up to the said deed to be cancelled by 
 the register of this court. 
 
 And that the said complainant is the owner of the said land 
 and premises in fee simple by a title, perfect as against the 
 defendant in this suit. 
 
 And that the said complainant have leave to cause this 
 decree, or a certified copy thereof, to be recorded in the office 
 of the register of deeds of the said county of 
 
 And it is further ordered, adjudged and decreed that the 
 defendant, J. K., pay to the complainant or his solicitor the 
 costs in this suit to be taxed, and that the complainant have 
 execution for the same. 
 
 Circuit Judge. 
 Examined, Countersigned and Entered by me: 
 
 Register in Chancery. 
 
 DECREE DISSOLVING CORPORATION AND APPOINT- 
 ING RECEIVER. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 This cause came on to be heard, and on reading and filing 
 
 the report of , Esq., the circuit court commissioner 
 
 before whom it was ordered that all persons interested in the 
 
 above named company, a corporation organized under 
 
 the laws of this state, should show cause, if any, why the said 
 corporation should not be dissolved, and on reading the tes- 
 timony taken by and before the said circuit court commissioner, 
 and it appearing to the court that the said corporation is in- 
 solvent (or, that a dissolution of the said corporation will be 
 beneficial to the stockholders thereof, for the reason (state rea- 
 son in full), and that a dissolution thereof will not be injurious 
 to the public interests, on motion of , Esq., solicitor 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 219 
 
 for the petitioners, (and , Esq., solicitor for 
 
 contestants having been heard in opposition thereto:) It is 
 ordered, adjudged and decreed, and the court now here doth 
 hereby order, adjudge and decree, that the said com- 
 pany, the corporation aforesaid be and the same hereby is dis- 
 solved. 
 
 And it is further ordered, adjudged and decreed that N. 0. 
 
 of , in the county of , be, and he hereby is 
 
 appointed receiver of all the estate, effects and assets of the 
 said corporation, and that the said N. 0., before entering upon 
 his duties as such receiver, shall execute a bond in the penal 
 
 sum of dollars with sufficient sureties to be approved 
 
 by the court to the People of the State of Michigan, condi- 
 tioned for the faithful discharge of his duties as such receiver, 
 and for the due accounting for all moneys, effects and assets 
 received by him as such receiver. 
 
 And that the offilcers of the said corporation do forthwith 
 turn over and deliver to such receiver all moneys and property 
 real and personal, and all the estate, effects and assets of the 
 said corporation, and all books of account, notes, bonds and 
 other securities, evidences of indebtedness, papers and docu- 
 ments of every name and nature whatsoever of the said corpo- 
 ration. 
 
 And that the said receiver exercise all the usual powers and 
 authority and perform the usual duties, and be under the usual 
 directions of receivers in courts of equity, and that the said 
 receiver from time to time report his doings to this court. 
 
 And that the said receiver be at liberty to apply to this court 
 for further directions from time to time, as he shall be advised. 
 
 DECREE FOR IIBDEMPTION AND REFERENCE. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the pleadings and 
 proofs taken therein, and was argued by counsel for the re- 
 spective parties, and the court, being fully advised in the 
 premises, doth find that the material allegations in the bill of 
 complaint in this cause are true as therein stated, and that 
 the equities in this cause are with the complainant: 
 
 Therefore, on consideration therepf, it is ordered, adjudged 
 and decreed, and this court doth hereby order, adjudge and 
 decree, that this cause be, and the same hereby is referred to 
 
 , Esq., a circuit court commissioner of the said county 
 
 of , to take an account of what is due to the defend- 
 ant for principal and interest on the note and mortgage in 
 the said bill of complaint mentioned, and also to take an 
 account of the rents and profits of the mortgaged premises 
 
220 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 described in the said bill which have come into the hands of 
 the said defendant or of any other person or persons by his 
 order or to his use, or which he, without his wilful default or 
 negligence, might have received; and that he deduct that 
 amount of rents and profits from what shall be found to be 
 due to the said defendant for principal and interest as afore- 
 said. And for the better taking of the said account it is 
 further ordered that the parties to this cause produce before 
 and leave with the said circuit court eomissioner all deeds, 
 books of account, papers, documents, tax receipts and writings 
 in their possession or power respectively relating thereto, and 
 that the said circuit court commissioner examine the said parties 
 and such witnesses as they may respectively produce before 
 him upon oath, in such manner and at such times as the said 
 commissioner may direct, and that the said circuit court com- 
 missioner cause to come before him such witnesses as either 
 party may desire and examine them on oath as aforesaid. And 
 that the said circuit court commissioner do ascertain and certify 
 what balance, if any thing, shall be found to be due to the 
 defendant for his principal and interest and costs, and that 
 he report the same together with the account as found and 
 stated by him and the proofs taken by him to this court with 
 all convenient speed. 
 
 And it is further ordered, adjudged and decreed that upon 
 the coming in and confirmation of the said report the said 
 complainant do, within days after the order con- 
 firming the said report shall have become absolute, pay to 
 the said defendant the amount of the balance so reported to 
 be due to him (if any) with interest there6n at the rate of 
 
 per cent per annum from the date of such report, 
 
 and that upon such payment being made the said defendant 
 do surrender the said mortgaged land and premises, to- wit: 
 (describe the premises) unto the complainant or to such per- 
 son or persons as the said complainant shall direct, free and 
 clear of all encumbrances done by him or by any person claim- 
 ing by, through or under him, and deliver to the complain- 
 ant all deeds and writings in his custody or power relating to 
 the said mortgaged premises, and that the said defendant 
 make, execute and deliver to the complainant a good and 
 siifficient deed of conveyance and release of all right, title and 
 interest to him, the said defendant, in and to the said mort- 
 gaged premises and each and every part thereof free from 
 all encumbrances placed thereon by the said defendant or by 
 any person claiming through or under him. But if the com- 
 plainant make default in such payment to the defendant of 
 what shall be so certified and reported to be due to him for 
 principal and interest as aforesaid, after such deductions made 
 thereon as aforesaid at the time above mentioned, it is ordered. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOKMS 221 
 
 adjudged and decreed that in that case the complainant's said 
 bill of complaint do from thenceforth stand dismissed out of 
 this court "with costs to be taxed. 
 
 DECREE FOR REDEMPTION ON PROOFS IN OPEN 
 
 COURT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the pleadings and 
 proofs taken in open court as in a suit at law and was argued 
 by counsel for the respective parties, and it appearing to this 
 court from the said pleadings and proofs that the material 
 allegations in the bill of complaint in this cause are true, and 
 that the equities in this cause are with the complainant, and 
 that there is at the date of this decree due and owing to the 
 said defendant upon the note and mortgage mentioned in the 
 said bill of complaint for principal and interest the sum of 
 
 dollars, and that the said defendant has had the use 
 
 and occupation and the rents, issues and profits of the mort- 
 gaged land and premises mentioned and described in the said 
 
 bill of complaint for years now last past and is still 
 
 in the possession and occupation thereof, and that the net 
 amoimt and value of the said rents, issues and profits which 
 has come into the hands of the said defendant or of soms 
 other person or persons by his order or for his benefit, or which 
 he might have received but for his own wilful neglect and de- 
 fault, is the sum of dollars, and that the said last 
 
 mentioned sum ought to be deducted from the said sum of 
 dollars which is due to the defendant for his prin- 
 cipal and interest aforesaid, and that the balance justly and 
 equitably owing to the said defendant at the date of this decree 
 is the sum of dollars, and that before the commence- 
 ment of this suit the said complainant offered and tendered to 
 the said defendant a sum equal to the said last mentioned sum 
 for the redemption of the said mortgaged premises and re- 
 quested the said defendant to accept the same and release said 
 mortgaged premises to him, and that the said defendant then 
 wrongfully refused to comply with such request. 
 
 Now, therefore, in consideration thereof, it is ordered, ad- 
 judged and decreed, and the court now here doth hereby order, 
 adjudge and decree, that the said complainant do vsdthin 
 
 days from the date of this decree pay to the said 
 
 defendant the sum of dollars, being the balance justly 
 
 and equitably due and owing to him as aforesaid, together with 
 
 interest thereon at the rate of per cent per annum 
 
 from the date of this decree, and that, upon such payment, 
 the said defendant do forthwith surrender to the said com- 
 
222 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 plainant or to such person or persons as he may direct the said 
 mortgaged land and premises which are described as follows, 
 to-wit: (describe the premises), free and clear of all encum- 
 brances done by him or by any person claiming through or 
 under him, and deliver to the said complainant all deeds, writ- 
 ings and documents in his custody or power relating to the 
 said mortgaged premises and that he, the said defendant, make, 
 execute and deliver to the said complainant a good and sufScient 
 deed of conveyance and release of all right, title and interest 
 of him, the said defendant, of, in and to the said mortgaged 
 premises and each and every part thereof, free and clear of all 
 encumbrances thereon caused by the said defendant or any 
 person claiming by, through or under him, and that all such 
 right, title and interest be, and the same hereby is, on such 
 payment, conveyed to and vested in the said complainant, his 
 heirs and assigns forever, and that in that case the complainant 
 have leave to cause this decree or a certified copy thereof to be 
 recorded in the office of the register of deeds of said county 
 
 of , as and for such conveyance and release. But if 
 
 the said complainant shall make default in such payment of 
 the said balance as aforesaid at the time when the same is here- 
 by decreed to be paid as aforesaid, then and in that case it is 
 ordered, adjudged and decreed that the said complainant's said 
 bill of coraplaint be dismissed out of this court with costs to be 
 taxed, and that the defendant should have execution thereof. 
 
 DECREE FOR ACCOUNTING BETWEEN PARTNERS. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the bill of complaint 
 therein, the answer of the defendant thereto, and the replica- 
 tion of the complainant to such answer, and was argued by 
 counsel for the respective parties; and thereupon: It is 
 ordered, adjudged and decreed that this cause be referred to a 
 
 circuit court commissioner of the said county of , to 
 
 take an account of all and singular the partnership dealings 
 between the said complainant and the said defendant, and 
 that the parties hereto respectively produce before the said 
 circuit court commissioner, and leave with him until otherwise 
 directed, all books, papers and writings in their custody or 
 under their control relating thereto, and that the said parties 
 each of them be examined upon oath in relation thereto as the 
 said circuit court commissioner shall direct, and that the said 
 circuit court commissioner cause to come before him aU such 
 witnesses as the parties shall respectively produce before him 
 and whose testimony he may deem necessary and examine them 
 upon oath touching such accounts, and that the said circuit 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 223 
 
 court commissioner state a true and correct account between 
 the said parties and report the same, together with the proofs 
 taken before him in relation thereto, to this court with all con- 
 venient speed ; and that upon the coming in and confirmation 
 of such report whatever sum shall be found to be due from 
 either party to the other on the balance of such account be paid 
 by such party from whom such balance shall be found to be due. 
 And it is further ordered that the said circuit court com- 
 missioner or either of the parties to this cause be at liberty 
 to apply to this court for further directions, and this court 
 reserves the consideration of costs until after such report shall 
 have been made and confirmed. 
 
 Circuit Judge. 
 
 DECREE FOR DISSOLUTION OF PARTNERSHIP. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the bill of complaint 
 therein, the answer of the defendant thereto, the replication 
 of the complainant to such answer, and the report of the cir- 
 cuit court commissioner to whom this cause was referred to 
 take proofs of the matters in issue in this cause and to state 
 an account of the partnership dealings betwen the parties to 
 this cause, and was argued by counsel for the respective 
 parties; and thereupon: It is ordered, adjudged and decreed, 
 and the court now here doth hereby order, adjudge and decree, 
 that the said report and all matters therein contained be, and 
 the same hereby is, in all things approved and confirmed, and 
 that (state any matter of fact specially found by the court); 
 and that the allegations of the said bill are substantially true, 
 and that upon the statement of the account between the said 
 parties in respect to their partnership dealings and trans- 
 actions there is now due and owing from the defendant to the 
 eomplainant the sum of dollars. 
 
 And it is further ordered, adjudged and decreed that the 
 co-parfcnership heretofore existing between the said complain- 
 ant and the said defendant be, and the same hereby is dis- 
 solved, and that the said defendant pay to the complainant 
 
 ■v^rithin days from the date hereof the said sum of 
 
 dollars, so found and decreed to be due as afore- 
 said with lawful interest thereon from this day until paid, 
 and also the costs of this suit to be taxed, and that in default 
 of such payment the said complainant have execution therefor 
 (if necessary add claim for division of assets as the case may 
 
 require). A-'-:t"a 
 
 Circuit Judge. 
 
224 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 DECREE DISMISSING BILL AT HEARING. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the pleadings 
 and proofs taken therein, and having been argued by counsel 
 for the respective parties, and the court having had the same 
 under advisement: 
 
 Now, therefore, upon due consideration thereof, it is ordered, 
 adjudged and decreed, and the court now here doth order, 
 adjudge and decree, that the complainant's bill of complaint 
 be, and the same is hereby dismissed *, and that the said de- 
 fendant recover of and from the complainant his costs to be 
 taxed, and that the said defendant have execution thereof. 
 
 Circuit Judge. 
 Examined, Countersigned and Entered by me: 
 
 Register in Chancery. 
 
 (If without prejudice at the *, insert: But without preju- 
 dice to such further action or proceeding to be taken by the 
 complainant touching the subject matter of the said bill, as he 
 shall be advised.) 
 
 NUNC PRO TUNC CLAUSE IN DECREE. 
 
 And it appearing to the satisfaction of the court that the 
 
 complainant, A. B., (or the defendant, C. D.,) has departed 
 
 this life since the time of the argument of this cause: It is 
 
 further ordered that this decree be entered nunc pro tunc as of 
 
 the day of , A. D. 19 . . , the day on which 
 
 this cause was argued. 
 
 ORDERS FOR CAUSE TO STAND OVER. 
 TO ADD PARTIES. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause coming on to be heard this day and counsel for 
 both parties having been heard in part, and it appearing to 
 the court now here that *, 0. K. and J. K., his wife, are neces- 
 sary parties to this cause, it is ordered that this cause do stand 
 over to the end that the complainant may make the said 0. K. 
 and J. K., his wife, parties thereto, either by amendment or 
 supplemental bill as he may be advised. 
 
 Circuit Judge. 
 
stage's MICHIGAN CHANCEBY PKACTICE AND FOEMS 225 
 
 TO SUPPLY PROOFS. 
 (As in above to the *, then proceed:) 
 
 The complainant has omitted to produce proof of the death 
 of J. K., his alleged intestate. It is ordered that this cause do 
 stand over to the end that the complainant may examine wit- 
 nesses to prove the death of the said J. K. 
 
 Circuit Judge. 
 
 ORDER RETAINING BILL WITH LEAVE TO BRING 
 ACTION AT LAW. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having been brought to hearing upon pleadings 
 and proofs, and having been argued by counsel for the com- 
 plainant as well as by counsel for the defendant : It is ordered, 
 adjudged and decreed, and the court now here doth order, 
 adjudge and decree, that the biU in this cause be retained for 
 months with liberty to the complainant in the mean- 
 time to take proceedings at law touching the matters in ques- 
 tion in this cause as he shall be advised. 
 
 And it is further ordered, adjudged and decreed that if the 
 complainant shall commence an action at law within the time 
 specified and prosecute such action with due diligence to effect, 
 this court reserves the consideration 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, within 
 the time aforesaid and prosecute such action at law with due 
 diligence to effect, his bill is from thenceforth to stand dis- 
 missed out of this court with costs to the defendant 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. 
 
 MOTION TO RECTIFY DECREE BEFORE ENTERING. 
 
 (Title of court and cause.) 
 
 Of the day of , A. D. 19. .. 
 
 Now comes the above named complainant by , his 
 
 solicitor and moves the court now here that the decree here- 
 tofore and on the day of A. D. 19 . . , mad? 
 
 in this cause be rectified and corrected as follows, that is to 
 say, that instead of the following (state the mistake sought 
 to be corrected) as now in said decree, that the same may be 
 rectified so as to read as follows : (state the language asked for 
 as corrected), and that the said decree so rectified and cor- 
 rected may be entered nunc pro tunc as of the time when the 
 same was originally pronounced. 
 
 This motion is founded on the affidavit of on file 
 
226 STACe's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 and on the said decree as signed by the eourt, and on the rec- 
 ords and files of this court in this cause. 
 
 Solicitor for Complainant. 
 
 Rehearing. 
 
 § 205. After a cause has been heard and decided, but 
 before the decree has been enrolled, either party may 
 apply for a rehearing.* 
 
 The rules provide that "A petition for a rehearing 
 shall state the special matter or cause on which such re- 
 hearing is applied for, and the particular points in which 
 the decree or order is alleged to be erroneous, but it shall 
 not be necessary to state the proceedings anterior to 
 such decree or order sought to be reversed ; and the facts, 
 if they do not appear from the records of the court, shall 
 be verified by affidavit of the party or of some other 
 person. It shall also be accompanied by the certificate 
 of two counsel that they have examined the case, and that 
 in their opinion the decree or order is erroneous in the 
 particulars mentioned in the petition. And a copy of the 
 petition, with the usual notice of presenting the same, 
 shall be served on the adverse party, but the rehearing 
 shall not be considered as a matter of course in any case. ' ' 
 
 "If a rehearing is granted, the petitioner shall lose the 
 benefit thereof unless he shall, within ten days thereafter, 
 deposit with the register fifty dollars to answer the costs 
 and damages of the opposite party, if the decree or order 
 shall not be materially varied."^ 
 
 § 206. A rehearing will be granted in cases where 
 there has been some assumption or defect on the first 
 hearing by which the court and the parties have been 
 misled, and it is evident that injustice has been done to 
 the petitioner thereby.' Or where there has been such 
 irregularity as to deprive a defendant of the opportunity 
 
 1— Barnes v. Cir. Judge, 97 Mich. 3 — Frieske v. Prieske, 138 Mieh. 
 
 213. 458; Barnes v. Cir. Judge, 97 Mich. 
 
 2— Oh. Rule 25 a. b; Manley t. 213. 
 Cir. Judge, 114 Mich. 525. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 227 
 
 of being heard.* Or for evidence newly discovered since 
 the first hearing and decision.' 
 
 § 207. But a rehearing will not be granted on the same 
 facts and legal controversy as at the first hearing unless 
 under very peculiar circumstances where the court has 
 been misled by erroneous assumptions of fact or law,® 
 nor when no error appears and no new equity than such 
 as were considered at the first hearing is made out by the 
 application.^ 
 
 Where a previous application has been granted on 
 terms which were not complied with and which had not 
 been acted upon, a subsequent application will be denied.® 
 A rehearing will be denied of a decree entered by consent 
 in the absence of fraud.' 
 
 Where an application for rehearing is made on the 
 grounds of newly discovered evidence it will be denied if 
 the petitioner knew of the existence of the evidence at 
 the former hearing.^'* 
 
 A petition for rehearing may be made at any time be- 
 fore the enrollment of the decree, even after the time to 
 appeal has elapsed if the delay be excused." 
 
 § 208. After a decree has been affirmed in the Supreme 
 Court an application for rehearing cannot be made in the 
 court below but must be made in the Supreme Court.^^ 
 
 PETITION FOR RE-HEARING BEFORE ENROLLMENT. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of C. D., the above named defendant, {or, one 
 of the above named defendants), respectfully shows. 
 
 4 — ^Harris v. Deidrich, 29 Mich. 9 — Hodges v. McDufif, 76 Mich, 
 
 366. 303. 
 
 5 — Sheldon v. Hawes, 15 Mich. 10 — Sherwood v. Bank, 104 Mich. 
 
 519. 65; Eoelofs v. Weaver, 119 Mich. 
 
 6 — ^Brown v. Brown, 64 Mich. 82; 334; Detroit Sav. Bk. v. Truesdail, 
 
 Nichols Shepard & Co. v. Marsh, 62 38 Mich. 430. 
 
 Mich. 439. 11 — Barnes v. Cir. Judge, 27 
 
 7 — ^Eyerson v. Bldred, 18 Mich. Mich. 213. 
 
 490. , 12 — ^Byerson v. Eldred, 18 Mich. 
 
 8— Bope V. Ferris, 77 Mich. 299. 490. 
 
228 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 1. That on the day of , A. D. 19.., a 
 
 decree was made in the above entitled cause by this court, 
 wherein and whereby it was, among other things, ordered, ad- 
 judged and decreed (state part of decree complained of). 
 
 2. That so much of the said decree above recited is erro- 
 neous, because (state reasons in full). 
 
 3. That the said decree has been settled and entered, but 
 not yet enrolled. 
 
 Whereupon your petitioner prays that the court will grant a 
 rehearing of the said cause, he submitting to pay such costs as 
 the court shall award in case his complaint shall be found to 
 be groundless. 
 
 And your petitioner will ever pray, etc. C. D. 
 
 Solicitor for Petitioner. 
 
 (Verification.) 
 (Certificate of two counsel.) 
 
 We certify that we have examined the case referred to in the 
 foregoing petition and are of the opinion that the decree (or 
 decretal order) therein mentioned is erroneous in the partic- 
 ulars mentioned in the said petition. 
 
 (Signatures.) 
 
 ORDER FOR RE-HEARING BEFORE ENROLLMENT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the petition duly verified 
 of the above named defendant, C. D., with the certificate of 
 
 and counsel of this court thereto attached : 
 
 On motion of , Esq., solicitor and of counsel for the 
 
 said defendant, and counsel for the complainant having been 
 heard in opposition thereto, it is ordered that a rehearing be 
 had of the said cause as to the matters complained of in the 
 
 said petition in this court, on the day of . , , 
 
 A. D. 19. ., {or, at the next term of this court), and that in 
 the meantime all proceedings in the said cause against said 
 defendant, C. D. on the said decree be stayed. 
 
 Circuit Judge. 
 
 PETITION TO RECTIFY CLERICAL ERROR IN DECREE 
 
 AFTER ENROLLMENT. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of the above named complainant respectfully 
 shows unto the court: 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 229 
 
 That a decree was made in the above entitled cause in this 
 
 court on the day of , A. D. 19. ., whereby 
 
 the defendant, C. D., in this cause was ordered and decreed 
 to pay to your petitioner the sum of five hundred dollars to- 
 gether with the costs of the suit and that such decree was 
 founded on the report of ., Esq., a circuit court com- 
 missioner of said county of , to whom it had been re- 
 ferred to take an account between the parties to this suit, and 
 that the said circuit court commissioner in and bj' his report 
 found the amount due to your petitioner from the said defend- 
 ant, C. D., to be five hundred and fifty dollars, which report 
 was duly confirmed, yet that in drawing the said decree the 
 words "and fifty" were by mistake and clerical error and in- 
 advertence omitted in stating the sum so reported to be due 
 your petitioner. Your petitioner further shows that the said 
 decree has been entered and enrolled, and that the said mistake 
 an.d clerical error was not discovered by your petitioner until 
 after the enrollment of tlie said decree. 
 
 Your petitioner therefore prays that the enrollment of the 
 said decree may be opened and the said mistake and clerical 
 error corrected so that it may conform to the report of the 
 said circuit court commissioner in stating the sum to be paid 
 by the said defendant, C. D., to your petitioner. 
 
 And that your petitioner may have such other or further 
 relief as shall b0 agreeable to equity. 
 
 And your petitioner wiU. ever pray, etc. 
 
 (Signature.) 
 (Signature of solicitor for complainant.). 
 
 (Verification.) 
 
 ORDER ALLOWING AMENDMENT TO DECREE. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard on the motion of the com- 
 plainant by , Esq., his solicitor, to amend the decree 
 
 heretofore and on the day of , A. D. 19 . . , 
 
 rendered in this cause, and this court now here having looked 
 into and examined the records in this cause and heard the 
 allegations, proofs and arguments of counsel for both parties 
 respectively thereon, and being fully advised in the premises; 
 
 It is ordered, adjudged and decreed, and the court now here 
 doth hereby order, adjudge and decree, that the said decree so 
 
 rendered in this cause on the said day of , . . , 
 
 A. D. 19 . . , be, and the same hereby is amended to read as 
 follows: (insert the decree in full as amended). 
 
230 stage's MICHIGAN CHANCEBY PBAOTICE AND FOBMS 
 
 ENROLLMENT OF DECREE. 
 (Title of court and cause.) 
 
 I, the undersigned, register of said court, do hereby certify 
 that at the instance of the solicitor for the complainant, I this 
 day attached together for the purpose of enrollment, the bill of 
 complaint, subpoena, pleading, proofs, taxed bill of costs, a 
 fair engrossed copy of the final decree, signed by the honor- 
 able , circuit judge, and coimtersigned by the register 
 
 of this court, together with the other papers filed in this cause, 
 and annexed thereto this certificate, according to the statute in 
 such case made and provided. 
 
 In testimony whereof, I have hereunto set my hand, and 
 
 affixed the seal of said court, this day of 
 
 A. D. 19... 
 
 Register. 
 
 Bills of Review. 
 
 § 209. After a decree has been enrolled it may be 
 modified, vacated or reversed by bill of review,* it beiag 
 then too late to apply for a rehearing by petition. 
 
 A bill of review will lie on two grounds, viz., for errors 
 apparent on the face of the decree and record, and for 
 new facts material to the cause, discovered since the de- 
 cree and which it was impossible for the party to produce 
 at the time the decree was made. These last are properly 
 termed bills in the nature of bills of review when such 
 new matter presents an issuable proposition and there- 
 fore admits an answer and the formation of an issue. 
 
 The purpose of a bill of review as well as that of a bill 
 in the nature of a bill of review is to have the decree of 
 the court in the original case reviewed altered or re- 
 versed.^ Neither can be filed without leave of the court, 
 and neither can be filed except under the rule which pro- 
 vides that "on filing a bUl of review, or other bill in the 
 nature of a bill of review, the complainant shall make the 
 like deposit, or give security to the adverse party in the 
 same amoimt which is or would be required on an appeal 
 
 1 — Maynard v. Pereault, 90 Mieh. 2— Dodge v. Northrop, 85 Mich. 
 
 160; Eeynolds v. Beynolds, 115 Mich. 243; 2 Dan. Ch. PI. & Pr. 1575. 
 378. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FORMS 231 
 
 from an order or decree complained of; and no such bill 
 shall be filed, either upon the discovery of new matter or 
 otherwise, without special leave of the court first ob- 
 tained, nor unless the same is brought within the time 
 allowed for bringing an appeal, except upon newly dis- 
 covered facts or evidence, unless upon reasons satisfac- 
 tory to the court. ' ' * 
 
 § 210. The granting of leave to file such a bill is dis- 
 cretionary with the court, and unless such discretion is 
 abused, will not be reviewed on appeal to the Supreme 
 Court.* 
 
 An order granting leave to file a bill of review cannot 
 be made at chambers, nor ex parte without notice to the 
 'adverse party.' 
 
 After an appeal has been taken to the Supreme Court 
 and a decision made in that court, the Circuit Court in 
 chancery has no power to grant leave to file a bill of re- 
 view. The application must in that case be made to the 
 Supreme Court.® 
 
 § 211. It has been held in England that a bill of re- 
 view wiU not lie when the original decree has been 
 affirmed by the Appellate Court on writ of error or ap- 
 peal, but in Michigan a bill of review on the ground of 
 newly discovered evidence will be allowed by the Supreme 
 Court after it has itself given judgment in the cause on 
 appeal.'' A review in the Supreme Court of its own de- 
 cisions in matters of law is obtained by an application 
 for a re-hearing in that court.* 
 
 § 212. For Errors of Law. It was also held in Eng- 
 land that a bill of review for errors in law would only 
 
 3 — Chancery Eule 27; Eveland v. 6 — Mosher v. Mosher, 108 Mich. 
 
 Stephenson, 45 Mich. 394; Dodge v. 612; Eyerson v. Eldred, 18 Mich. 
 
 Northrop, 85 Mich. 243; Sanford v. 490. 
 
 Haines, 71 Mich. 116. 7 — Mosher v. Mosher, 108 Mich. 
 
 4— Stockley v. Stoekley, 93 Mich. 612. 
 
 307; Eobarge v. De Lisle, 158 Mich. 8 — See Supreme Court Rule 51. 
 16; Bank v. Quick, 71 Mieh. 534. 
 
 5 — Clark v. Circuit Judge, 40 
 Mich. 166. 
 
232 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 lie where the error appeared on the face of the decree and 
 that the court would not at the hearing of such a bill, look 
 beyond the pleadings and decree in the original suit. 
 But the practice in England was then to embody in the 
 decree the substance of the bill and answer or other 
 pleadings of the defendant with the facts as found by the 
 court from the proofs adduced. This has been stated as 
 the general rule in some American text books, but the 
 American practice is usually to omit all such recitals in 
 the decree and to state therein merely the conclusion and 
 decision of the court on the entire case as presented at 
 the hearing, all the proceedings being, however, shown 
 by the papers included in the enrollment. The English 
 practice in this respect is much relaxed in many of the 
 United States, and in Michigan a bill of review may be 
 allowed for errors of law in the proceedings anterior to 
 the decree and not appearing therein except as shown by 
 the papers included in the enrollment. 
 
 § 213. Thus a bill of review may be alloAved in a case 
 where, by an irregularity, a defendant was precluded 
 from making a meritorious defence at the hearing of the 
 original case.^ Also when a decree in a foreclosure case 
 declared certain defendants personally liable for the debt 
 contrary to the underwriting in the subpoena," and where 
 a foreclosure decree has been made contrary to the terms 
 of the mortgage." In a partition suit where fraud is 
 charged upon the commissioners in making the parti- 
 tion.i2 And where the mortgagee in a foreclosure case 
 had been in possession of the mortgaged premises as 
 trustee to manage the business and apply proceeds to 
 the payment of the debt, which fact was not brought to 
 the attention of the court at the hearing of the original 
 case, the mortgagor having died and his heirs being 
 infants.^* 
 
 9 — Cook V. French, 96 Mich, 525; 12 — ^Adair v. Cummins, 48 Mich. 
 
 Kinsel v. Kinsel, 126 Mich. 693. 375. 
 
 10— Vaughan v. Black, 63 Mich. 13— Pomeroy v. Noud, 145 Mich. 
 
 215; Gies v. Green, 42 Mich. 107. 37. 
 
 11 — Mickle V. Maxfield, 42 Mich. 
 304. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 233 
 
 § 214. For Newly Discovered Facts. Where, after the 
 making of the decree, a party has learned new facts of 
 which he was ignorant and could not have learned by 
 reasonable diligence before that time, which facts are 
 relevant and materially affect the merits of the case aiid 
 tend to prove the issue made in the original ease and not 
 to make a new case but to establish the old one, a bill of 
 review may be allowed to be filed,** but evidence which is 
 merely cumulative is not sufficient.*^ Where the newly 
 discovered evidence might have been discovered in due 
 time, leave will be denied.*® 
 
 Laches or unexcused delay in the petitioner will prevent 
 the granting of leave to file a bill of review.*^ 
 
 The failure to perfect an appeal is not a ground that 
 will support a bill of review.** 
 
 That the party consented to a decree believing a de- 
 cision of another state to be the law in this state is no 
 ground for leave to file a bill of review after a contrary 
 decision in this state.** 
 
 § 215. The Petition. The petition for leave to file a 
 bill of review should state the nature of the original suit 
 with a brief summary of its averments, object and prayer, 
 as weU as of the defense if any, the decree, the errors of 
 law relied on or the newly discovered matters of fact as 
 the case may be on which the application is based and in 
 case of newly discovered evidence should show what such 
 evidence consists of and its bearing upon the merits of 
 the case, when and how it was discovered and why it could 
 not have been ascertained before the hearing in the orig- 
 inal case. If there has been any delay or apparent laches 
 the petition should also state facts excusing the delay,"" 
 
 20 
 
 14— Mosher v. Mosher, 108 Mich. Eyerson v. Eldred, 23 Mich. 537; 
 
 612; Eyerson v. Eldred, 18 Mich. Day v. Cole, 65 Mich. 154; Stockley 
 
 490.' V. Stockley, 93 Mich. 307. 
 
 15 Taylor v. Boardman, 25 Mich. IS^Murphy v. Schoder, 126 Mich. 
 
 527. 607. 
 
 16— Eobarge v. De Lisle, 158 19— Ingles v. Bryant, 117 Mich. 
 
 Mich. 16. 113- 
 
 17— Hall V. Miller, 150 Mich. 300; 20— Sanford v. Haines, 71 Mich. 
 
 Daniel v. Ins. Co., 149 Mich. 626; 116; Eyerson v. Eldred, 23 Mich. 
 
234 stage's MICHIGAN CHANCEBY PEACTIOE AND FORMS 
 
 The better practice is to annex a copy of the proposed 
 bill of review to the petition, as a part thereof. The 
 petition must be on oath, if the material facts are sworn 
 to on information and belief it should be accompanied by 
 affidavits of persons having knowledge of the facts. 
 
 Notice of the presentation of the petition must be given 
 in the usual manner with copies of the petition and 
 affidavits, if any, served. 
 
 § 216. At the hearing of the petition affidavits may be 
 presented by the adverse party in opposition to the peti- 
 tion,"^ and the petition will not be granted unless the 
 court has some reason to believe that the charges and 
 facts therein alleged can be sustained by competent 
 proof."" 
 
 § 217. If the petition be granted an order to that effect 
 is made and the bill of review is then filed which should 
 state that it is filed by leave of the court. It should state 
 the original bill, the defence made thereto and all the pro- 
 ceedings under it with the decree and the points in which 
 the complainant in the bill of review deems himself 
 aggrieved thereby and the alleged error in law whereby 
 he seeks to impeach it, or the newly discovered evidence, 
 the time and manner of its discovery, and that it could 
 not have been discovered in time to be used in the original 
 suit, and the bearing which it has on the merits of the 
 cause, as the case may be ; "^ a mere synopsis of the plead- 
 ings in the original case has been held insufficient."* It is 
 better and safer to set out such pleadings in full. 
 
 Error in law and newly discovered evidence may be 
 both set out in the same bill if the circumstances so 
 authorize."^ 
 
 537; Hall t. Miller, 150 Mich. 300; 111. 296; Story Bq. PI. Sec. 420; 
 
 Daniel v. Ins. Co., 149 Mich. 626. Brutschke v. Verein, 145 111. 433; 2 
 
 21— Loth V. Loth, 116 Mich. 634; Dan. Ch. Pr. & PI. 1580. 
 
 see Day v. Cole, 65 Mich. 154. 24— Aholz v. Durfee, 122 111. 286; 
 
 22— Day v. Cole, 65 Mich. 154. Cox v. Lynn, 138 lU. 195. 
 
 23 — Clark v. Circuit Judge, 40 25— Griggs v. Gear, 3 Gilm. 2. 
 Mich. 166; Gardner v. Emerson, 40 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOEMS 235 
 
 § 218. A bill of review filed after a foreclosure sale 
 and allowed on the ground that the property has been 
 sold for far less than it was worth to a purchaser who 
 really represents the complainant should, it seems, be 
 accompanied by security and should contain an offer to 
 redeem or procure a higher bidder.^" 
 
 The bill should either deny the justice of the demand 
 established by the decree to be reviewed or allege that it 
 has been paid with the costs or show some sufficient 
 reason for not having done so.^'^ 
 
 If the decree has not been carried into execution the 
 bill may simply pray that it be reviewed and reversed, 
 or modified as the case may be. K it has been executed, 
 the bill may also pray that the complainant in the bill of 
 review be put into the same situation in which he would 
 have been if that decree had not been carried into effect. 
 If the bill is to review the reversal of a former decree the 
 prayer may be that such former decree may stand.^® 
 
 § 219. A bill of review as well as a bill in the nature 
 of a bill of review should be verified on oath, especially 
 if it be on the ground of the discovery of new matter.^ 
 
 A bill of review may be allowed to be amended in the 
 same manner and under the same circumstances as other 
 sworn bills. 
 
 § 220. Defences. The usual defence to a bill of review 
 for error of law is by pleading the decree in bar and de- 
 murrer against opening the enrollment, but as the decree 
 is already set out in the bill, a demurrer would seem to 
 be the proper defence. If any matter beyond the decree 
 is offered as a defence it should be pleaded.^" 
 
 Where the bill is filed for newly discovered matter the 
 
 t- 
 
 26 — Thomas v. Burt, 52 Mich. 489. 29 — Sanford v. Haines, 71 Mich. 
 
 27 — Horner v. Zimmerman, 45 111. 116. 
 
 14; 2 Adams Eq. 418. 30—2 Dan. Oh. PI. & Pr. 1583; 
 
 28—2 Dan. Oh. PI. & Pr. 1580; Hartwell v. Townsend, 2 Bro. P. C. 
 
 Story Eq. PI. Sec. 420. 107; Livingston v. Noe, 1 Lea 66. 
 
236 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 defence may be by answer denying tbe alleged new mat- 
 ter or avoiding its effect or by demurrer or plea.^* 
 
 Where a demurrer to a bill grounded on error of law 
 is overruled the decree may be reversed or modified with- 
 out further hearing.^* 
 
 If defendant deems the new matter irrelevant or im- 
 material he may raise the question by demurrer,** but 
 as such a bill can only be filed by leave of the court the 
 relevancy and materiality of such new matter is usually 
 determined on the hearing of the petition for leave to 
 file, consequently the bill will not often be demurrable on 
 that ground. 
 
 If an issue is formed on plea or answer, proofs may 
 be taken as in other chancery cases ** and the court on 
 final hearing will decide the cause on its merits. 
 
 § 221. A bill of review will not be allowed where it is 
 intended to take the place of an appeal.*'^ 
 
 On filing a bill of review a party has the same rights 
 that he would have had on a re-hearing and the results 
 are substantially the same.*® 
 
 By answering a bill in the nature of a bill of review a 
 party waives the right to appeal from the order allowing 
 it to be filed." 
 
 An answer in the nature of a cross bill attacking a de- 
 cree granted in another case is within the rule and should 
 not be filed without leave, of the court.** 
 
 It has been held in England and elsewhere, that a bill 
 of review attacking a decree for errors of law might be 
 filed without leave of the court, but the rule has made it 
 
 31—2 Dan. Ch. PI. & Pr. 1583-4 
 Mitf Eq. PI. 292-3. 
 
 32—2 Dan. Ch. PI. & Pr. 1583 
 Cook V. Bamfield, 3 Swanst 607. 
 
 33—2 Dan. Ch. PI. & Pr. 1583 
 Mitf Eq. PI. 204, 205, 212. 
 
 34 — Thomas v. Burt, 52 Mich. 489 
 
 35 — Simmons v. Conklin, 129 
 Mich. 190. 
 
 36— Mickle v. Maxfield, 42 Mich. 
 304; Stockley v. Stoekley, 93 Mich. 
 307. 
 
 37— Leggett v. Detroit, 137 Mich. 
 247. 
 
 Dailey v. Building & Loan Assn. 133 38 — Salliotte v. Williams, 130 
 
 Mich. 403; Pomeroy v. Noud, 145 Mich. 36. 
 Mich. 37 ; Lowes v, Lowes, 127 Mich. 
 307. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 237 
 
 necessary to obtain such leave in Michigan and the same 
 may be said of bills to impeach a decree for fraud, such 
 bills being in the nature of bills of review. 
 
 All the parties to the original bill are proper parties 
 to the bill of review. If other persons have in the mean- 
 time acquired rights and are therefore necessarily made 
 parties, the bill is, as to them, an original bill. 
 
 PETITIONS FOR LEAVE TO PILE BILL OP REVIEW. 
 
 POR ERRORS OF LAW. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of A. B., the above named defendant respect- 
 fully shows unto the court : 
 
 1. That heretofore and on or about the day of 
 
 , 19.., the above named complainant, C. D., of 
 
 , filed his bill of complaint in this court against your 
 
 orator as defendant, for the purpose of (state generally the 
 object of the bill), and therein stated (set forth the substance 
 of the stating part of the bill), and therein prayed (state the 
 prayer). 
 
 2. And that your petitioner having been served with pro- 
 cess in that behalf, duly appeared and filed his answer to the 
 said bill in substance as follows: (state substance of answer) 
 and that the said C. D. filed his replication to the said answer, 
 and thereafter the said cause being at issue proofs were taken 
 therein in substance as follows : (state substance of proofs) and 
 that afterwards the proofs were closed and the said cause was 
 brought to hearing on pleadings and proofs in this court on 
 
 the day of , 19 . . , whereupon a decree of 
 
 this court was pronounced, made and rendered in this cause 
 as foUows: (set forth decree), which said decree was after- 
 wards and on or about the day of , 19 . . , 
 
 enrolled in this court as in and by the records and files of 
 this court in this cause, whereto reference is praved, will fully 
 and at large appear.* 
 
 3. And your petitioner is advised that the said decree is 
 erroneous and ought to be reviewed and reversed and set aside 
 for and on account of many apparent and manifest errors and 
 imperfections, among which are the following : (set forth errors 
 complained of). 
 
 4. And that such errors and imperfections apparent on the 
 face of the said decree render the said decree inequitable and 
 injurious to your petitioner iu this : (state the manner in which 
 the petitioner is injured), and that on accoimt thereof your 
 
238 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 petitioner is desirous of bringing his bill of review to be re- 
 lieved in the premises. 
 
 I. Your petitioner therefore prays that he may have the 
 leave of this honorable court granted to him to file and exhibit 
 his bill of review against the said C. D. for the purpose of 
 having the said decree reviewed, reversed and set aside, and 
 that no further proceedings be had thereon. 
 
 And your petitioner will ever pray, etc. 
 
 A. B. 
 
 X. y. 
 
 Solicitor and of Counsel for Petitioner. 
 
 Business address 
 
 (Add verification.) 
 
 FOR NEW MATTER. 
 (As in the last farm to the * and then:) 
 
 3. And your petitioner further shows that since the rendi- 
 tion and enrollment of the said decree, your petitioner has dis- 
 covered new matter of consequence in the said cause, particu- 
 larly that (set forth the newly discovered facts and evidence 
 distinctly and specifically); which new matter your petitioner 
 did not know and could not by reasonable diligence have dis- 
 covered or known so as to make use thereof in the said cause 
 previous to and at the time of the pronouncing and making 
 of the said decree for the reason (state reason for inability to 
 discover previously). 
 
 4. And that your petitioner first learned of the said newly 
 
 discovered facts and evidence about (state generally 
 
 the time and manner of discovery so as to avoid imputation of 
 laches), and that your petitioner verily believes the said newly 
 discovered facts and evidence to be true; and he is advised 
 that such new matter (state its bearing on the decree). 
 
 5. And your petitioner prays leave to refer to the affidavits 
 of G. H. and K. L., hereto annexed, marked respectively, Ex- 
 hibits A. and B., in relation to the said new matter, and prays 
 that the same may be taken as a part of this petition. 
 
 I. Your petitioner therefore prays that he may have leave 
 granted him by this honorable court to file a bill of review 
 against the said C. D. for the purpose of having the said de- 
 cree reviewed, reversed and set aside, and that no further pro- 
 ceedings may be had under the same. 
 
 A. B. 
 
 Solicitor for Petitioner and of Counsel. 
 (Add verificdtion.) 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 239 
 
 ORDER FOR LEAVE TO FILE BILL OF REVIEW. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this caiise on reading and filing the petition of the above 
 named defendant, A. B., praying, for reasons therein stated, 
 leave to file a bill of review in this cause, and on motion of 
 
 , solicitor and of counsel for the said petitioner and 
 
 of counsel for the said complainant having been 
 
 heard in opposition thereto, it is ordered that the said defend- 
 ant, on giving security (state condition on which order is 
 granted), be at liberty to file a bill of review touching the 
 several matters in the said petition mentioned and for relief 
 in the premises as he may be advised. 
 
 Circuit Judge. 
 
 BILL OF REVIEW APPARENT ERROR IN LAW. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19 . . , one C. D., of , exhibited his original 
 
 bill of complaint in this honorable court against your orator 
 and therein stated and set forth that (set forth substance of 
 stating part of original hill), and praying that (state the 
 prayer), and that your orator having been served with process, 
 appeared in the said cause and filed his answer to the said 
 original bill therein in substance as follows: (state substance 
 of answer), and the said C. D. filed his replication to the said 
 answer, and the said cause being at issue, proofs were taken 
 therein in substance as follows : (state substance of proofs), and 
 the proofs having been closed the said cause was brought to 
 hearing on pleadings and proofs before this honorable court 
 
 on the day of , 19 . . , whereupon a decree 
 
 was pronounced and made therein as follows: (state decree) 
 
 which said decree was afterwards and on the day of 
 
 19 . . , duly enrolled in this court as in and by the said 
 
 bill, answer, replication, proceedings and decree now on record 
 and on file in this honorable court, and whereto reference is 
 prayed, will fully and at large appear.* 
 
 2. And by leave of this honorable court first had and 
 obtained, your orator further shows that the said decree is 
 erroneous and ought to be reviewed, reversed, vacated and set 
 aside, for and on account of many apparent and manifest errors 
 and imperfections, inasmuch as it is thereby decreed that (set 
 forth erroneous part of decree), whereas it is stated in your 
 orator's said answer that (state the matter in the answer rel- 
 ative thereto), which said answer is sustained and not con- 
 tradicted by the proofs or any part thereof, and no such decree 
 
240 stage's MICHIGAN CHANCEEY PBACTICB AND FOEMS 
 
 ought to have been made or grounded thereon, but the said 
 bill ought to have been dismissed for the reason aforesaid. For 
 and on account of all vrhich said errors and imperfections in 
 the said decree appearing upon the face thereof your orator 
 hath been and is injuriously affected in this, that (state in what 
 manner the errors injure the complainant), and hath therefore 
 by leave of this honorable court brought this bill of review. 
 Your orator therefore prays: 
 
 I. That the said C. D., the defendant hereto, may, with- 
 out oath, all answer upon oath being hereby waived, full, true, 
 direct and perfect answer make to all and singular the matters 
 herein stated and charged. 
 
 II. And that the said decree may be reviewed, reversed, 
 vacated and set aside, and that no other or further proceedings 
 be taken thereon. 
 
 III. And that your orator may have such further or such 
 other relief as shall be agreeable to equity. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 
 Solicitor for Complainant and of Counsel. 
 (Add verification.) 
 
 ON DISCOVERY OP NEW MATTER. 
 
 (Address and introduction.) 
 
 (As in preceding form to * and then:) 
 
 2. And by leave of this honorable court first had and 
 obtained, your orator further shows that since the making (and 
 enrollment) of the said decree, your orator has discovered new 
 evidence of matters of fact of consequence and material in the 
 said cause, and particularly that (set forth fully the new mat- 
 ter discovered as in petition), which new matter, your orator 
 did not know and could not by reasonable diligence have 
 known, so as to make use of in the said cause, previous to and 
 at the time of the hearing and the making of the said decree 5 
 and that your orator first learned of the existence of the said 
 newly discovered (facts and) evidence about (state time of dis- 
 covery), and your orator is advised that the said new matter 
 has an important and controlling bearing upon the decree in 
 this suit (state its bearing on the decree). 
 
 3. And that your orator is advised and insists that imder 
 the circumstances aforesaid and in consequence of the discovery 
 of the said new matter as aforesaid the said decree ought to 
 be reviewed and reversed {or, reversed in part, stating the 
 modifications, if only modification is desired). 
 
 Your orator therefore prays: 
 
 I. That the said C. D., the defendant hereto, may, without 
 oath, all answer on oath being hereby waived, full, true, direct 
 
STAGE S MICHIGAN CHANCERY PRACTICE AND FORMS 241 
 
 and perfect answer make to all and singular the matters in 
 this hill stated and charged. 
 
 II. And that the said decree and all proceedings thereon 
 may be reviewed and reversed, set aside and vacated and no 
 further proceedings taken thereon. 
 
 And that your orator may have such further or such other 
 relief as shall be agreeable to equity and good conscience. 
 (Add conclusion and verification.) 
 (Add affidavit as to new matter.) 
 
 AFFIDAVIT ANNEXED TO BILL OF REVIEW. 
 FOR NEW MATTER. 
 State of Michigan, ) 
 County of , f'*- 
 
 A. B. of , the complainant in the foregoing bill of 
 
 complaint, being duly sworn on his oath says : that he has heard 
 the said bill of complaint read and knows and understands the 
 contents thereof and that the matters therein set forth as new 
 matter are true in substance and in fact (if affiant does not 
 know this of his own knowledge insert as, this affiant is in- 
 formed and verily believes the truth to be) and that they were 
 first discovered by this affiant since the making and rendition 
 of the decree in the foregoing bill mentioned, that is to say 
 about the time therein mentioned, and that the same could not 
 possibly be had, known or used at the time when the said cause 
 was heard or the said decree made. 
 
 Subscribed and sworn to, etc. 
 
 A. B. 
 
 (If the truth of the matter is not known to complainant of 
 his own knowledge, add affidavit of the person ivho has knowl- 
 edge thereof as follows:) 
 State of Michigan, I 
 County of , f*' 
 
 M. N., of , being duly sworn, says that he makes 
 
 this affidavit on behalf of A. B., the complainant in the fore- 
 going (or annexed) bill of complaint, and that he has heard 
 the said bill read and understands the contents thereof, and 
 that he knows of his own knowledge that the new matters (stat- 
 ing them) therein mentioned are true in substance and in fact. 
 
 Subscribed and sworn to, etc. 
 
 PETITION FOR LEAVE TO FILE BILL OF REVIEW AND 
 
 SUPPLEMENT. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of A. B., the above named complainant respect- 
 fully shows unto the court 
 
242 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 1. That heretofore and on the day of , 
 
 A. D. 19 . . , your petitioner filed his bill of complaint in this 
 court against the above named defendant, C. D., for the purpose 
 of (state generally the object of the bill), and therein stated 
 in substance that (set forth substance of stating part of the 
 bill), and therein prayed that (set forth substance of prayer). 
 
 2. And that the said defendant duly appeared and filed his 
 answer to the said bill in substance as follows: (state substance 
 of answer), and your petitioner filed his replication to the said 
 answer and thereafter the said cause being at issue proofs were 
 taken therein in substance as follows: (state substance of 
 proofs), and that afterwards the proofs were closed and the 
 said cause was brought on to hearing on pleadings and proofs 
 
 in this court on the day of , A. D. 19 . . , and 
 
 that thereupon a decree of this court was pronounced, made 
 and rendered in this cause as follows (set forth decree), which 
 
 said decree was afterwards and on the day of 
 
 , A. D. 19 . . , enrolled in this court as in and by the 
 
 records and files of this court in this cause, whereto reference 
 is prayed, will fully and at large appear. 
 
 3. And your petitioner further shows that since the time of 
 the rendition and enrollment of the said decree he has learned 
 that since the filing of his said original bill (state here fully the 
 matters which are desired to he incorporated in the hill as sup- 
 plemental matter) and your petitioner is advised that such 
 matters are material to your petitioner and should be con- 
 sidered by this court and when so considered would cause the 
 said decree to be vacated and set aside and a new decree entered 
 therein (state substance of new decree prayed for, or if modifica- 
 tion only is required), modified as follows (state modification 
 desired). 
 
 4. And your petitioner has also since the rendition and en- 
 rollment of the said decree discovered new matters of conse- 
 quence in the said cause, particularly that (set forth the newly 
 discovered evidence distinctly and specifically), which new mat- 
 ter your petitioner did not know and could not by reasonable 
 diligence have discovered or known so as to make use thereof 
 in the said cause previous to or at the time of the making and 
 enrollment of the said decree for the reason (state reason for 
 inability to make discovery earlier). 
 
 5. And that your petitioner first learned of the existence 
 of the said newly discovered evidence (state time and circum- 
 stances of the discovery so as to avoid imputation of laches), 
 and that your petitioner verily believes the said newly dis- 
 covered facts and evidence to be true; and is advised that such 
 new matter (and the said supplemental matter), has an impor- 
 tant and controlling influence on the equities of your petitioner 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 245 
 
 and on the decree in this suit, and prays that the same may be 
 taken as a part of this petition. 
 
 6. And your petitioner is also advised that the said decree 
 is erroneous and ought to be reviewed and reversed and set 
 aside (or modified), for and on account of many apparent and 
 manifest errors and imperfections among which are the follow- 
 ing: (set forth errors complained of), and that such errors and 
 imperfections apparent on the face of the said decree render 
 the said decree inequitable and injurious to your petitioner in 
 this (state the manner in which the petitioner is injured). 
 
 Prayer. Your petitioner therefore prays that he may have 
 the leave of this honorable court granted to him to file and Ex- 
 hibit his Bill of Review and Supplement against the said C. D., 
 for the purpose of having the said decree vacated and set aside 
 and the said supplemental matter and newly discovered 
 evidence introduced and that a new decree may be made and 
 entered in this cause that (state the substance of the decree 
 prayed for), and that your petitioner may have such further 
 or such other relief as shall be agreeable to equity. 
 
 And your petitioner will ever pray, &c. 
 
 V. C. 
 N. 0., 
 
 Solicitor for Petitioner and of Counsel. 
 
 Business address, 
 
 State of Michigan, ? 
 County of , \ ' 
 
 On this day of , A. D. 19 . . , before me a 
 
 Notary Public of, in and for said county, personally came the 
 above named petitioner, A. B., and made oath that he has 
 
 read the foregoing petition by him subscribed, 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 in- 
 formation and belief, and as to those matters he believes it to 
 be true. 
 
 Notary Public. 
 
 My commission wiU expire 
 
 [Annex affidavits of persons knowing the facts as to such 
 newly discovered evidence and as to such supplemental matter.] 
 
 ORDER FOR LEAVE TO FILE BILL. 
 (Title of court and cause.) 
 
 In this cause on reading and filing the petition of A. B., the 
 above named complainant and the affidavits of G. H. and K. L. 
 thereto annexed, praying for reasons therein stated for leave 
 to file a BUI of Review and Supplement in this cause, and on 
 motion of , solicitor, and of counsel for the said peti- 
 tioner and of counsel for the above named defend- 
 
244 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 ant having been heard in opposition thereto (or, and on filing 
 proof of due service of notice of said motion with a copy of said 
 petition and affidavits on the solicitor for the defendant and no 
 one appearing in opposition thereto). 
 
 It is ordered that the said complainant, on (state condition 
 if any, on which the order is made), be at liberty to file a bill 
 of review and supplement in this cause touching the several 
 matters in the said petition set forth and for relief in the prem- 
 ises as he may be advised. 
 
 Circuit Judge. 
 
 BILL OF REVIEW AND SUPPLEMENT. 
 (As in preceding form for till of review to end of stating part, 
 then add:) 
 
 4. And your orator further shows also, by leave of this 
 court, that (state the supplemental matter), and that in con- 
 sequence of the newly discovered matter aforesaid (or, of the 
 said errors apparent on the face of the said decree, as the case 
 may he), your orator is advised and insists that he is entitled 
 to have the said cause heard thereon by this honorable court, 
 in the same manner as if the said supplemental matter had 
 been put in issue in the original suit. 
 (Prayer.) 
 
 (If supplemental matter requires special relief, insert a 
 prayer for the same.) 
 
 BILL TO VACATE A DECREE FOR FRAUD IN 
 NATURE OF BILL OF REVIEW. 
 (Address.) 
 
 Complaining, your orator, A. B., of , respectfully 
 
 shows unto the court: 
 
 1. That heretofore and on or about the day of 
 
 , 19.., E. B., the father of your orator, then of 
 
 , was the owner in fee simple in his own right of all 
 
 that certain piece or parcel of land, situate (describe the land), 
 
 which said land was then of the value of dollars or 
 
 thereabout, and being such owner the said E. B. then became 
 indebted to one C. D., of , in the sum of dol- 
 lars, and being so indebted the said E. B. then made and de- 
 livered to the said C. D. his certain promissory note in writing 
 unler his hand, bearing date the same day and year last afore- 
 said, and therein and thereby the said E. B. promised to pay to 
 the said C. D. the sum of dollars (state terms of pay- 
 ment of principal and interest). 
 
 2. And that to secure the payment thereof to the said C. D., 
 the said E. B. then made, executed and delivered to the said 
 C. D. a certain indenture of mortgage under bis hand and seal, 
 
stage's MICHIGAN- CHANCEEY PRACTICE AND FORMS 245 
 
 bearing date the same day of , 19.., and 
 
 therein and thereby did grant, convey and mortgage to the said 
 C. D. all and singular the said land, which said mortgage was 
 upon the express condition that if the said E.'B. should well 
 and truly pay or cause to be paid to the said C. D. the said 
 
 sum ,of dollars to be paid to the said C. D., (state 
 
 terms of payment of principal and interest), according to the 
 provisions of the said promissory note, then that the said in- 
 denture of mortgage and the said promissory note should cease 
 and become null and void, otherwise to remain .in force. 
 
 3. And that afterwards and on or about the day 
 
 of , 19 . . , the said indenture of mortgage was duly 
 
 recorded in the office of the register of deeds of the said county 
 
 of , in liber of mortgages, at page , 
 
 as in and by the said record now remaining in the said reg- 
 ister's office and whereto reference is prayed, will fully and at 
 large appear. 
 
 4. And that afterwards and on or about the day 
 
 of , 19. ., the said E. B. died, seized and possessed of 
 
 all the said land, and leaving your orator then an infant under 
 
 the age of twenty-one years, and being then between 
 
 and years of age, his only son and sole heir at law, 
 
 and that thereby your orator as such heir became the owner 
 of all the said land by inheritance subject only to the said in- 
 denture of mortgage. 
 
 5. And that afterwards and as yet during the minority of 
 
 your orator and on or about the day of , 
 
 19. ., the said C. D. filed his bill of complaint in this honor- 
 able court against your orator (and divers other persons) as 
 defendants, for the foreclosure of the said mortgage, but in 
 the said bill it was not shown nor intimated that your orator 
 was then an infant, but on the contrary the minority of your 
 orator was fraudulently concealed and not mentioned therein, 
 and after the filing of the said bill the said C. D. fraudulently 
 procured one G. H., who is since deceased, who was then a 
 solicitor of this court, who had formerly and during the life- 
 time of the said E. B. acted in the management of some matters 
 for the said E. B., the father of your orator, to appear and file 
 an answer to the said bill in the name of your orator, all with- 
 out informing your orator or any of his friends or relations 
 thereof, and without the knowledge of your orator, and that 
 in the said answer it was fraudulently stated and admitted 
 
 that there then was dollars due to the said C. D. and 
 
 unpaid on the said note and mortgage, whereas (your orator 
 is informed and believes and charges the truth to be that), 
 
 in truth and in fact there was then not more than 
 
 dollars due and owing thereon, and also it was in the said 
 answer untruly admitted that the said mortgaged lands were a 
 
246 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 slender and scanty security for the payment of the said in- 
 debtedness and interest, and that in the said answer it was 
 not stated nor intimated that your orator was then an infant, 
 but the said answer was prepared and filed in form as the 
 answer of an adult person, whereas in truth and in fact your 
 
 orator was then an infant under years of age ; by 
 
 means whereof the said C. D. afterwards and on the 
 
 day of , 19 . . , as yet during the minority of your 
 
 orator, fraudulently obtained and procured to be made and 
 entered a decree that there was then due and owing to the 
 
 said C. D. for principal and interest the sum of 
 
 dollars, and (state substance of decree) as in and by the said 
 bill, answer, and proceedings in said cause and decree now of 
 record and on file in this court, and whereto reference is 
 prayed, will fully appear. 
 
 6. And that afterwards and on or about the day 
 
 of , 19 . . , as yet during the minority of your orator, 
 
 the said C. D. fraudulently procured the said land to be sold 
 by color of the said decree by a circuit court commissioner 
 of the said county of , for the sum of dol- 
 lars, at which sale the said C. D. became the purchaser of the 
 said land, as by the report of sale made by the said circuit court 
 commissioner on file in this court, whereto reference is prayed, 
 will fully appear. 
 
 7. And that afterwards and on or about the day 
 
 of , 19 . . , still during the minority of your orator, 
 
 the said C. D. by color of such purchase by him of the said 
 land at such sale entered into possession and actual occupation 
 of all, and singular the said land, and the said C. D. ever since 
 that time has been and still is in the actual occupation and 
 enjoyment of the said land, and has during all that time re- 
 ceived and still continues to receive all and singular the 
 rents, issues and profits thereof to his own sole use and bene- 
 fit, and that the said land is now worth far more than 
 
 dollars, the amount for which the same was sold at the said 
 
 sale, and is worth at least dollars, and that the rents, 
 
 issues and profits thereof during the time that the said C. D. 
 has been in possession thereof have been of the value of at 
 
 least dollars per year, as nearly as your orator is 
 
 able to ascertain or estimate the same. 
 
 8. And that afterwards and on the day of 
 
 , 19 . . , your orator attained the age of twenty-one 
 
 years, and shortly afterwards he discovered and learned that 
 such proceedings had been had in the said suit instituted by the 
 sa,id C. D., as hereinbefore stated and set forth, during the 
 minority of your orator as aforesaid, and thereupon your orator 
 applied to the said C. D. and requested him to come to an 
 account with your orator touching the amount due and owing 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 247 
 
 to him upon the said note and mortgage, and to surrender 
 possession of the said land to your orator, and to vacate and 
 set aside the said decree and all proceedings subsequent thereto, 
 and to permit your orator to redeem the said land from the 
 said mortgage on payment to Mm, the said C. D., of the amount 
 due and owing to him on the said note and indenture of mort- 
 gage, which amount your orator is and ever since attaining his 
 said majority has been ready and willing to pay and offered 
 and still offers to pay, and which would have been paid dur- 
 ing the minority of your orator by K. L., administrator of the 
 estate of the said B. B., deceased, out of the personal assets of 
 the said estate, had application been made to him for that 
 purpose, or had he, the said K. L., as such administrator, been 
 made a party to the said foreclosure suit or been informed there- 
 of. But so to do the said C. D. did absolutely refuse and still 
 doth on divers frivolous pretexts refuse, and sometimes the 
 said C. D. pretends that the said foreclosure proceedings were 
 fair, just and equitable and that your orator had a day in court 
 thereon after he became of full age, whereas your orator charges 
 the contrary to be true, and that the said decree was obtained 
 by fraud and deceit as aforesaid, and that your orator did not 
 attain the age of twenty-one years until the ........ day of 
 
 , 19 . . , aforesaid and has never had his day in court 
 
 since arriving at his majority. 
 
 9. And that your orator is advised and insists that the 
 said decree so fraudulently obtained as Eiforesaid and all the 
 proceedings in the said cause subsequent thereto ought to be 
 vacated, set aside and held for naught, and that the said C. D. 
 ought to come to a just and true account with your orator, 
 touching the amount due and owing on the said note and mort- 
 gage, and that in such aceountiag the said C. D. should be 
 charged with the rents, issues and prpfits of the said land dur- 
 ing the time he has had possession thereof, your orator being 
 ready and willing and hereby offering to pay to the said C. D. 
 whatever shall be found to be due to him on such accounting. 
 
 Your orator therefore prays: 
 
 I. That the said C. D., the defendant hereto, may, without 
 oath, all answer upon oath being hereby waived, full, true, 
 direct and perfect answer make to all and singular the matters 
 herein stated and charged. 
 
 II. And that the said decree and all and singular the pro- 
 ceedings subsequent thereto may be vacated, set aside and held 
 for naught. 
 
 III. And that the answer, aforesaid purporting to be the 
 answer of your orator to the said bill of complaint be stricken 
 from the files, and that your orator have leave to file a new 
 answer thereto and to redeem the said land from the said 
 mortgage. 
 
248 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 IV. And that the said defendant, C. D., may come to a 
 just and equitable accounting with your orator touching the 
 amount due and owing to him on the said note and mortgage 
 and that, in such aceountiag, the said C. D. account for and 
 be charged with the rents, issues and profits of the said land 
 during the time that he has had the possession and use there- 
 of, your orator being ready and willing and hereby offering 
 to pay to the said C. D. whatever if anything may be found 
 to be due or owing to him thereon. 
 
 V. And that upon such payment the said defendant, C. D., 
 be decreed to surrender possession of the said land and prem- 
 ises to your orator, and by a good and sufficient deed of con- 
 veyance to convey the said land and premises to your orator 
 together with all right, title and interest, which he has or claims 
 or appears to have thereto under or by virtue or color of the 
 said foreclosure sale, and to surrender the said note and in- 
 denture of mortgage to your orator and to cancel and dis- 
 charge the said mortgage of record; and that upon such pay- 
 ment your orator have leave to cause such decree to be recorded 
 in the ofSce of the register of deeds for the county of 
 
 VI. And that your orator may have such further and such 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 (Signature.) 
 
 Supplemental Bills. 
 
 § 222. A supplemental bill is a bill filed by leave of 
 the court in a suit pending for the purpose of bringing 
 before the court matters which have occurred after the 
 filing of the original bill affecting the rights of the parties, 
 or to make persons who have acquired interests in the 
 subject matter of the suit since the commencement of 
 the suit, parties thereto, also to supply some irregularity 
 or defect discovered in the fra^tte of the original bill when 
 the original bill cannot be amended.^ But where the 
 original bijl shows no ground for equitable relief, a sup- 
 plemental will not avail to cure that defect by setting up 
 
 1— story Eq. PI. 332; Goodwin v. Dodge, 29 N. H. 177; Veazie v. Wil- 
 Croodwip, 3 Atk. 370; Dodge v. liams, 3 Story 54, 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FOEMS 249 
 
 matters which have occurred since the commencement of 
 the siiit.2 
 
 Matters which existed before the filing of the original 
 bill, but not stated therein, should be brought into the 
 cause by amendment of the original bill, but all matters 
 which have arisen subsequent to the commencement of 
 the suit must be brought in by supplemental bill.^ 
 
 Such a bill may be not only for the purpose of putting 
 new matter in issue which may vary the relief prayed in 
 the original bill, but may be also for the purpose of bring- 
 ing into the case matters tending to prove the complainant 
 to be entitled to the relief originally prayed.* 
 
 §223. A supplemental bill can only be filed by leave 
 of the court obtained for that purpose by petition ^ and 
 in ordinary cases it may be granted ex parte without 
 notice to defendant of the application,® but in the Federal 
 Courts notice of the application must be given.'' 
 
 The petition for leave to file a supplemental bill should 
 show that the matter has arisen since the commencement 
 of the original suit, or that the facts have become known 
 to the complainant at such a time and in such a manner 
 that he could not make use of them when the cause was 
 in such a stage in which he might have had leave to amend, 
 or that he had been prevented by mistake or some other 
 cause satisfactorily shown to the court from making use 
 of the facts proposed to be introduced, at an earlier stage 
 of the case and must show of what the matter proposed 
 as supplementary consists and the supplemental bill 
 must be confined to the matters mentioned in the petition, 
 which petition must be verified or supported by affidavit.* 
 
 2 — Candler v. Pettit, 1 Paige Schneder, 162 Mieh. 690; Miller v. 
 
 168; Story Eq. PI. 339; Hughes v. Cook, 135 III. 190. 
 
 Came, 135 111. 519; Miller v. Cook, 5— Graves v. Niles, Harr. Ch. 332. 
 
 135 111. 190. 6 — Eager v. Price, 2 Paige 323; 
 
 3 — Hammond v. Place, Harr. Ch. Lawrence v. Bolton, 3 Paige 294. 
 
 438 ; Graves v. Nilea, Harr. Ch. 332 ; 7— U. S. Equity Eule 57. 
 
 Fisher v. Holden, 84 Mich. 494; 8— Story Eq. PI. Sec. 233; Mitf. 
 
 Hess V. Final, 32 Mich. 515; Stafeord Eq. PI. 55-61; Pedrick v. White, 1 
 
 V. Hewlett, 1 Paige 200. Met. 76; Bowie v. Winter, 2 Ala. 
 
 4 — Story Eq. PI. 332; Long v. 406; Veazie v. Williams, 3 Story 54. 
 
250 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 Matters which occurred prior to the filing of the orig- 
 inal bill may be stated in the supplemental bill where such 
 matters are necessary for the proper elucidation and un- 
 derstanding of the matters which occurred subsequent 
 thereto.® 
 
 § 224. When properly before the court a supplemental 
 bill is an addition to the original bill and becomes a part 
 of the same record and if the original bill be not answered 
 when the supplemental bill is filed the defendant may 
 make one answer to the original and supplemental bills 
 and but one replication need be filed. ^^ 
 
 A supplemental bill may also be proper to bring new 
 parties before the court.'* In such a case it is said that 
 the original defendants need not be made parties, unless 
 they have an interest in the supplemental matter, or may 
 be affected by the interest of such new parties,'* but as it 
 is evident that as to such new parties the bill is original,'* 
 the supplemental bill should in that case state the original 
 bill, such a case being within the exception of the rule 
 which provides that it shall not be necessary in any bill 
 of revivor or supplemjental bill to set forth any of the 
 statements in the original bill unless the special circum- 
 stances of the case require it.'* 
 
 § 225. One who was not a party to the original suit, but 
 who claims an interest in the subject matter thereof, may 
 be allowed to file a bill in the nature of a supplemental 
 bill to make himself a party thereto.'^ 
 
 § 226. The filing of a supplemental bill after taking 
 
 9 — Gravea v. Niles, Harr. 332. 369; Ensworth v. Lambert, 4 Johns. 
 
 10— Gillett V. Hall, 13 Conn. 426; Ch. 605; Jones v. Jones, 2 Atk. 217; 
 
 Potier V. Barclay, 16 Ala. 439 ; Cun- N. A. Coal Co. v. Dyett, 2 Edw. Ch. 
 
 ningham v. Eogers, 14 Ala. 147; 115. 
 
 Harrington v. Slade, 22 Barb. (N. 13— Morgan v. Morgan, 10 Geo. 
 
 y.) 161; Cotton v. Carlisle, 5 Madd. 297. 
 
 427; Greenwood v. Atkinson, 4 Sim. 14— Ch. Rule 26. 
 
 628; Choteauv. Bice, 1 Minn. 106. 15 — Cooper v. Bigley, 13 Mich. 
 
 11— Griggs V. Detroit & M. By. 463; Watt v. Crawford, 11 Paige 
 
 Co., 10 Mich. 117. 470; Livingston v. Freeland, 3 Barb. 
 
 12— Bignall v. Atkins, 6 Madd. Ch. 510, 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 251 
 
 an order pro confesso as to the original bill has been held 
 to vacate the order and to permit the defendant to an- 
 swer.*® 
 
 § 227. A bill in the nature of a bill of revivor and 
 supplement may be filed in a case where the original party 
 is deceased and the interest of such deceased party has 
 passed to one who was not a party to the original bill by 
 means other than by operation of law." 
 
 § 228. A supplemental bill for the purpose of adding 
 new matter or of bringLng new parties before the court 
 may be permitted to be filed in some cases after the de- 
 cree in the original suit if the court is satisfied that the 
 new matter is relevant and material and such as might 
 probably have occasioned a different determination ** or 
 for the purpose of obtaining directions not prayed in the 
 original bill but which the proceedings under the decree 
 render proper.*® But it cannot be filed after a decree 
 dismissing the bill.*" 
 
 ORIGINAL BILL IN NATURE OF SUPPLEMENTAL BILL. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19.., one C. D., became and was justly in- 
 debted to one Y. Z. in the sum of dollars, and being 
 
 so indebted the said C. D. did then make, execute and deliver to 
 the said Y. Z. his certain promissory note in writing, bearing 
 date the same day and year aforesaid, and therein and thereby 
 promised to pay to the said Y. Z. or to his order the said sum 
 
 of doUars (state terms of payment of principal and 
 
 interest), as in and by the said promissory note now in the pos- 
 session of your orator ready to be produced and proved as this 
 court shall direct, and whereto reference is prayed, will fully 
 and at large appear. 
 
 2. And that, in order to secure the payment of the said 
 sum of dollars and the interest thereon according to 
 
 16 — Gibson v. Eeaa, 50 111. 383. 19 — Dormer v. Fortescue, 3 Atk. 
 
 17 — ^Bamett v. Powera, 40 Mich. 124. 
 
 317. 20— Burke v. Smith, 15 111. 158. 
 
 18—2 Dan. Oh. Pr. & PI. 1537; 2 
 Barb, Cb. Pr. 62. 
 
252 stage's MICHIGAN CHANCERY PEACTICE AND EQEMS 
 
 the terms of the said promissory note, the said C. D. with B. 
 D., his wife, did then make and execute under theiri hands and 
 seal^ and deliver to the said Y. Z., a certain indenture of mort- 
 gage bearing date the ?ame day and year last aforesaid, and 
 therein and thereby they, the said C. D. and B. D., did grant, 
 bargain, convey and mortgage unto the said Y. Z., his heirs, ex- 
 ecutors, administrators and assigns forever, all that certain piece 
 
 or parcel Qf land, situated and being in the of 
 
 county of and state of Michigan, known and described 
 
 as follows, viz. r (describe land as in mortgage), together with 
 all and singular the hereditaments, and appurtenances thereunto 
 belonging, or in any wise appertaining, to have and to liold tha 
 same to the said Y. Z., his heirs, executors, andministrators and 
 assigns for ever; provided always, and the said indenture of 
 mortgage was on the express condition, that if the said C. D. 
 and B. D. should well and truly pay or cause to be paid to the 
 said Y. Z., his heirs, executors, administrators or assigns, the 
 said sum of dollars (state t^rms of payment of prin- 
 cipal and interest), according to the provisions of the said 
 promissory note, then the said indenture of mortgage and the 
 said promissory note should cease and become null and void, 
 otherwise to remain in full force, as in and by the said indenture 
 of mortgage now in the possession of your orator ready to be 
 produced and proved as this court shall direct, and whereto ref- 
 erence is prayed, will fully appear. 
 
 3. And on the day of , A. D. 19. ., the 
 
 said C. D. and B. D. duly acknowledged the execution of the 
 said indenture of mortgage as their free act and deed before 
 then a , duly authorized to take such ac- 
 knowledgement. 
 
 4. And that afterwards and on or about the day 
 
 of , 19 • • , the said indenture of mortgage with the cer- 
 tificate of acknowledgment thei-eof was duly recorded in the 
 
 offlce of the register of deeds of the said county of , in 
 
 liber of mortgages, at page , to which record 
 
 your orator prays leave to refer. 
 
 5. And that default has been made in the payment of the 
 
 said sum of dollars and of the interest thereon secured 
 
 by the said note and indenture pf moi'tgage, and that on the 
 (day when the original bill was filed), there was due and owing 
 
 to the said Y. Z. the sum of dollars or thereabout 
 
 thereon, and that no suit or proceeding at law had then nor has 
 yet been instituted to recover the said sum of money or any 
 part thereof. 
 
 6. And that one F. Q. and H. I. then had, or claimed to 
 have, rights or interests in the said mortgaged property or in 
 some part thereof as subsequent purchasers or incumbrancers, 
 or otherwise. 
 
stage's MICHIGAN CHANCEBY PEACTICE AND F0BM8 253 
 
 7. And that on or about the said day of 
 
 19.., the said Y. Z. filed his bill of complaint in ihis honor- 
 able court for the foreclosure of the said mortgage, setting forth 
 therein the facts above stated and making the said C. D., E. D., 
 P. G,, and H. I. parties defendant thereto, and therein and 
 thereby prayed, that the said defendants come to an account 
 with him touching the said note and indenture of mortgage, 
 and that they or some of them be decreed to pay the same to the 
 said Y. Z., together with the costs of the said suit by a short day 
 to be named in such decree, and that in default thereof the said 
 mortgaged lands and premises should be sold as this court should 
 direct, and that the proceeds of such sale should be applied to 
 satisfy the said indebtedness and costs after paying the expenses 
 of such sale, and that in case of such sale the said C. D., E. D,, 
 F. G., and H. I., the defendants in said suit, and all persons 
 claiming throij-.'h or under thorn or any of them after the com- 
 mencement of the said suit, should be forever barred and fore- 
 closed of and from all equity of redemption of the said mort- 
 gaged property unless the same should be redeemed according 
 to law ; and that in case such sale should fail to produce a suf- 
 ficient sum to satisfy the said indebtedness with interest and 
 costs' and the expenses of such sale, then that the said defendant, 
 C. D., should be decreed to pay to the said Y. Z. the amount of 
 such deficiency forthwith, and that the said Y. Z. should have 
 execution for the same, and that the said Y. Z. should have such 
 •further or siich other relief as should be agreeable to equity 
 and good conscience. 
 
 8. And that the said C. D., E. I>., F. G. and H. I. were 
 each and all of them duly served with a subpoena to appear 
 and answer, issued out of this court on the filing of the said 
 bill, and that the said C. D. and E. D. appeared and filed their 
 answer thereto, and the said Y. Z. replied to the said answer, 
 and that the said F. G. and H, I. failed to appear in the said 
 cause, and that the said bill was taken as confessed by them for 
 want of an appearance (if any further proceedings were had 
 gtate them fully), as by the said bill, answer, replication and 
 proceedings now remaining on file and of record in this hon- 
 orable court, and whereto your orator prays leave to refer, will 
 fully appear, 
 
 9. And that afterwards and before any further proceedings 
 
 were had in the said cause and on or about the day 
 
 of , 19 . . , the said Y, Z. did, by an instrument in 
 
 writing under his hand and seal, bearing date the same day and 
 year last aforesaid, sell, assign, transfer and set over unto your 
 orator all and singular the said note and indenture of mort- 
 gage and all moneys due and to become due thereon, and all 
 and singular his right, title and interest in the said foreclosure 
 suit, as in and by the said last mentioned instrument in writing 
 
254 STAGE *S MICHIGAN CHANCfiftY fBACTICE AND B'ORMS 
 
 now in th§ possession of your orator ready to be produced and 
 proved as this court shall direct, and whereto reference is prayed, 
 will fully appear. 
 
 10. And that by virtue of the said last mentioned instru- 
 ment in writing your orator has become entitled to the said 
 principal sum and interest so due as aforesaid on the said note 
 and indenture of mortgage, and the said Y. Z. has ceased to 
 have any interest whatever therein, and the said suit so in- 
 stituted by him as aforesaid has become defective thereby, but 
 that your orator as assignee of the said Y. Z. as aforesaid is 
 entitled to have the benefit of such suit and of the proceedings 
 therein and to prosecute the same against the said C. D., E. D., 
 F. G., and H. I., the defendants thereto, from the time when 
 it becajne so defective as aforesaid and that for that purpose 
 your orator is further entitled that this bill be taken as sup- 
 plemental to the said bill of the said Y. Z. 
 
 Your orator therefore prays : 
 
 I. That the said C. D., E. D., F. G., and H. I., who are 
 made defendants hereto, may, without oath, all answer upon 
 oath being hereby waived, full, true, direct and perfect an- 
 swer make to all and singular the matters stated and charged 
 in this bill of complaint. 
 
 11. And that it may be decreed that your orator as such 
 assignee as aforesaid, is entitled to have the benefit of the said 
 original suit and the proceedings therein. 
 
 III. And that your orator may be at liberty to prosecute the 
 said original suit against the defendants therein from the time 
 when the said original suit became defective by the assign- 
 ment by the said Y. Z. to your orator as aforesaid, and that for 
 that purpose this bill may be taken as supplemental to the said 
 biU of the said Y. Z. 
 
 IV. And that your orator may have the same relief against 
 the said defendants as the said Y. Z. might have had if he had 
 not made the said assignment to your orator. 
 
 V. And that your orator may have such further or other 
 relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and Counsel.) 
 (Add verification.) 
 
 PETITION FOR LEAVE TO FILE SUPPLEMENTAL BILL. 
 
 (Title of court and cause.) 
 
 (Address.) 
 
 The petition of A. B., the above mentioned complainant, re- 
 spectfully shows unto the court that heretofore and on the 
 day of , 19 . . , your petitioner filed and ex- 
 hibited his bill of complaint in this honorable court against 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 255 
 
 the above named defendant, C. D., for the purpose of (state the 
 object and purpose of the Mil), and praying that (state substance 
 of the prayer). 
 
 2. And that upon filing the said bill a subpoena to appear 
 and answer was duly issued out of this court and served on the 
 said defendant, and that thereafter (state briefly the proceed- 
 ings in the case to the time of the filing the petition). 
 
 3. And that afterwards and before any further proceedings 
 were had, (state the supplemental matter) wherefore your peti- 
 tioner is advised that it is necessary to file a supplemental bill 
 in this said cause, (and if new defendants are made necessary 
 insert:) and to bring the said E. F. before this court as a party 
 defendant to this suit. 
 
 I. Your petitioner therefore prays that leave may be granted 
 to him to file a supplemental bill in this cause for the purpose of 
 bringing the said supplemental matter before this court therein 
 (and if new defendants necessary inserts), and to bring the 
 said E. F. before this court as a party defendant in the said 
 suit with apt and proper words to charge him as such, and with 
 such prayer for relief as may be proper, and that your petitioner 
 may have such further or other relief as shall be agreeable to 
 equity. 
 
 And your petitioner wiU ever pray, etc. 
 
 A. B. 
 K. L. 
 
 Solicitor for Petitioner and of Counsel. 
 (Add verification.) 
 
 ORDER FOR LEAVE TO FILE SUPPLEMENTAL BILL. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this cause on reading and filing the petition of the above 
 named complainant for leave to file a supplemental bill therein : 
 (// notice has been given insert and on filing due proof of 
 service of notice of the hearing of said petition together with a 
 copy thereof on the solicitor for the defendant ; if contested say, 
 and after hearing J. K., Esq., of counsel for the defendant, if 
 not contested insert, and no one appearing m opposition thereto-). 
 On motion of L. M., Esq., solicitor for the complainant, it is or- 
 dered that the prayer of the said petition be and the same is 
 hereby granted, and that the complainant have leave to tile a sup- 
 plemental bill in accordance therewith. 
 
 f 
 
 Circuit Judge. 
 
256 stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 
 
 SUPPLEMENTAL BILL. 
 
 (Address and introduction.) 
 
 1. That on the day of , A. D. 19 . . , your 
 
 orator exhibited his bill of complaint in this court as complain- 
 ant against one C. D., as defendant, praying that the said C. D. 
 might be decreed specifically to perform his contract with your 
 orator to convey to your orator certain lands, tenements and 
 hereditaments with the appurtenances in the said bill mentioned, 
 your orator being ready and willing and offering to do every- 
 thing on his part to be done and performed by him in accordance 
 with the said contract, and that the said C. D. afterwards and 
 
 on the day of , A. D. 19 . . , filed his answer to 
 
 the said bill and afterwards and on the day of , 
 
 A. D. 19 . . , your orator filed his replication thereto, all of which 
 fully appears by the records and files of this court in the said 
 cause, whereto reference is prayed, which cause is still pend- 
 ing and undetermined in this court. 
 
 2. And your orator further shows by way of supplement to 
 his said bill, and by leave of this court first had and obtained, 
 that since the commencement of the said suit the said defend- 
 ant, C. D., has commenced an action of ejectment against your 
 orator on the common law side of this court for the recovery 
 of the possessiou of the said land and premises, which action 
 of ejectment is still pending and undetermined, and that your 
 orator has requested the said C. D. to desist from prosecuting 
 his said action of ejectment, but so to do the said C. D. upon 
 divers frivolous pretexts has hitherto refused and still does re- 
 fuse, and still continues to prosecute the same. 
 
 Your orator therefore prays: 
 
 I. That the said C. D., the defendant hereto, may upon his 
 corporal oath {or, without oath, all answer upon oath being 
 hereby waived) full, true and perfect answer make to the mat- 
 ters stated and charged in this supplemental bill. 
 
 II. And that the said defendant may be restrained by the 
 order and injunction of this honorable court from prosecuting 
 or proceeding with the said action of ejectment, and from com- 
 mencing any other action or proceeding at law for the purpose 
 of evicting your orator from the said land and premises or of 
 disturbing your orators possession thereof during the pendency 
 of this suit. 
 
 III. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and Counsel.) 
 (Add verification.) 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 257 
 
 TO JUDGMENT CREDITOR'S BILL. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D. 19 . . , your orator exhibited his bill of complaint in this 
 court, as complainant, against C. D. and E. F., as defendants, 
 therein stating among other things that your orator had before 
 
 then and on or about the day of , A. D. 19 . . , 
 
 recovered a judgment at law against the defendant, C. D., for 
 
 the sum of dollars damages and dollars costs, 
 
 and that an execution issued on the said judgment against the 
 property of the said 0. D. had been returned unsatisfied, and 
 that there was then still due and unpaid to your orator thereon 
 
 the sum of dollars, and praying among other things for 
 
 a discovery of any property or things in action belonging to the 
 said C. D., and of any property or things in action due to him 
 or held in trust for him, as in and by the said original bill of 
 complaint now on file in this court, and whereto reference is 
 prayed, will fully appear. 
 
 2. And that the said defendant, E. F., appeared and filed his 
 answer to the said bill and your orator filed his replication 
 thereto, but that the subpoena to appear and answer issued at 
 the time of the filing thereof could not be served upon the said 
 C. D. by reason of his continued absence from this state, and that 
 the said suit is still pending and undetermined in this court, all 
 of which appears by the records and files of this court in the 
 said cause, whereto your orator prays leave to refer. 
 
 3. And by leave of this court first had and obtained, your 
 orator further shows by way of supplement, that he is informed 
 and believes and charges the truth to be that the said C. D. re- 
 mained out of this state since the time of the filing of the said 
 
 original bill until about the day of 19 . . , and 
 
 your orator is further informed and believes to be true and 
 charges the fact to be that since the time of the filing of the said 
 original bill the said C. D. has accumulated and become the 
 owner of a considerable amount of property of the value of 
 
 dollars and upwards, and that during the year 
 
 , he has formed a partnership with one G. H., and one 
 
 J. K., and that the said partnership is now carrying on business 
 
 at , in this state, under the firm name and style of 
 
 , and that he, the said C. D., has a large interest in 
 
 the said partnership business and that the value of such interest 
 is dollars and upwards over and above all claims. 
 
 4. And your orator further shows that the said judgment is 
 and remains due and unpaid and that your orator is still the 
 owner thereof, and that there is now due and owing to your 
 orator thereon from the said C. D dollars and up- 
 wards. 
 
 Your orator therefore prays : 
 
258 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 I. That the said C. D., the defendant to this supplemental 
 bill of complaint, may upon his corporal oath full, true, direct 
 and perfect answer make to all and singular the matters in 
 said original bill stated and charged, as well as all and singular 
 the matters stated and charged in this supplemental bill, and that 
 as fully and particularly, sentence by sentence, and paragraph 
 by paragraph, as if the same were here repeated and he thereto 
 specifically interrogated, and particularly that he shall answer 
 as to what property or things in action he is now the owner of, 
 or wherein he has any right, title or interest, and the amount 
 and value thereof, and as to whether or not the said E. F. holds 
 any property or things in action in trust for him, the said C. D., 
 and the amount and value thereof ; and as to the right, title and 
 interest which he, the said C. D., has in the said partnership 
 
 firm of , and in the business and property of the said 
 
 partnership and the amount and value of such interest (add 
 whatever inquiry is desired as in judgment creditor's bill.) 
 
 (Add prayer for relief as in judgment creditor's bill.) 
 (Add usual conclusion and verification.) 
 
 TITLE OP PROPBETY CHANGED FROM DEFENDANT. 
 (Address and introduction.) 
 
 1. That on or about the day of , A. D. 
 
 19.., your orator exhibited his bill of complaint in this court 
 against C. D., praying (state substance of relief prayed), and 
 that the said C. D. having been served with process appeared 
 and put in his answer to the said bill, and your orator replied 
 to the said answer, as in and by the records and files of this 
 court in the said cause, whereto your orator prays leave to refer, 
 fully appears. 
 
 ■2. That before any further proceedings were had in the 
 said cause the said C. D. was by the district court of the United 
 
 States in and for the district of adjudged a 
 
 bankrupt, and one E. F. was thereupon duly chosen and ap- 
 pointed assignee of the estate and effects of the said C. D., bank- 
 rupt, and the estate and effects late of the said C. D., bank- 
 rupt, were and have been thereupon duly conveyed to the said 
 
 B. P. as such assignee, and thereupon your orator is advised 
 and submits unto the court that he is entitled to the same relief 
 against the said E. P. as such assignee as he would have been 
 entitled to against the said C. D. if he had not become bankrupt. 
 
 Your orator therefore prays: 
 
 I. That the said E. P., assignee in bankruptcy of the said 
 
 C. D., who is made a defendant hereto, may, without oath, all 
 answer on oath being hereby waived, full, true, direct and per- 
 fect answer make to this supplemental bill and to all matters 
 therein stated and charged. 
 
 II. And that your orator may have tiie full benefit of the said 
 
stage's MICHIGAN CHANCERY PEACTIOE AND FORMS 259 
 
 suit and proceedings therein against the said E. F., as such 
 assignee in bankruptcy, and may have the same relief against 
 him as your orator might or could have had against the said C. 
 D. if he, the said C. D. had not become bankrupt. 
 
 III. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 Revivor. 
 
 § 229. In case of the death of one of the parties to a 
 suit in equity the suit is said to abate and can proceed 
 no further until revived.^ Marriage of a female com- 
 plainant who was a party to a suit also formerly caused 
 the abatement of the suit,^ but this is no longer the case 
 in Michigan as a married Avoman can now prosecute or 
 defend all suits concerning her own property without 
 joining her husband.* 
 
 It may be observed here that the term "abatement of 
 the suit" when applied to a «uit in chancery signifies that 
 the suit is suspended for the time being and that no pro- 
 ceedings can be taken therein until it is revived,* whereas. 
 when applied to a suit at common law it means that the 
 suit is wholly destroyed and ended.^ This distinction 
 should be borne in mind. 
 
 §230. Formerly the only method of reviving a suit 
 which had abated by the death of a party was by bill of 
 revivor which followed the original bill stating the sub- 
 stance thereof, the parties, complainant and defendant, 
 the prayer or object thereof, the proceedings had in the 
 suit, the abatement and its cause and the right of the 
 complainant to revive. Stating also so much new matter, 
 
 l_5tory Eq. PI., See. 354; Mitf. 4— Story Eq. PI. Sees. 238, 239, 
 
 Eq. PI. 57; Barnett v. Powers, 40 349; Zoellner v. Zoellner, 46 Mieh. 
 
 Mich. 317. 511; see Barnett v. Powers, 40 Mieh. 
 
 2— Story Eq. PI., Sec. 354; Mitf. 317. 
 
 Eq. PI. 57. 5—3 Bl. Comm. 168. 
 
 3— C. L., Sec. 8692. 
 
260 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 and no more, as would be necessary to show how the com- 
 plainant is entitled to revive and who the new parties 
 are, against whom the suit is sought to be revived and 
 reasons why they are to be made parties and charging 
 that the cause ought to be revived, and stand in the same 
 condition with respect to the parties to the original bill 
 as it was at the time the abatement occurred : and pray- 
 ing that it be revived accordingly.® 
 
 §231. The rule in Michigan provides that "It shall 
 not be necessary in any bill of revivor or supplemental 
 bill to set forth any of the statements in the original suit 
 unless the special circumstances of the case require it." '' 
 
 A pure bill of revivor never was the proper method of 
 bringing in new parties claiming otherwise than by opera- 
 tion by law.^ 
 
 § 232. Bills of revivor are rarely, if ever, necessary in 
 Michigan as the statutes provide for a summary revival 
 in case of the death of a party. 
 
 "When the cause of action shall survive, no suit in 
 chancery shall abate by the death of one or more of the 
 complainants or defendants: but upon satisfactory sug- 
 gestion to the court the suit shall proceed in favor of, or 
 against, the surviving parties. ' ' ^ 
 
 "When one or more of the complainants or defendants 
 shall die, and the cause of action shall not survive, the 
 suit shall abate only as to the person or persons so dying, 
 and the surviving parties may proceed without reviving 
 the suit."" 
 
 "No bill of revivor, or supplemental bill in the nature 
 of a bill of revivor, shall be necessary to revive a suit 
 against the representatives of a deceased defendant, or 
 other person or persons interested in the subject of such 
 suit : but the court may by order direct the same to stand, 
 revived upon the petition of the complainant. ' ' " 
 
 6— story Eq. PI., See. 374. 9— C. L., Sec. 469. 
 
 7 — Chancery Kule 26; see XJ. S. 10 — C. L., Sec. 470. 
 
 Equity Rule 58 to same effect. 11 — C. L., Sec. 471. 
 
 8 — ^Barnett y. Brown, 40 Mich. 
 317. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 261 
 
 "A copy of sucli order shall be served on the repre- 
 sentative or other person or persons interested as afore- 
 said against whom the revivor is ordered, if residents of 
 this state : but if not residents of this state, then an order 
 of publication of notice may be had from the proper court 
 or officer as to the said petition to revive, in the same 
 manner and to be published with the same effect as is 
 now provided in relation to absent, concealed or non- 
 resident defendants in original bills; in the case of per- 
 sonal service of such order, the person so served shall 
 be allowed sixty days after such service to appear, an- 
 swer or disclaim." *^ 
 
 "If they shall not, in the case of personal service within 
 that time, or in case of publication, within the time pre- 
 scribed by the order of publication, appear and answer, 
 or disclaim, the court upon due proof of the service of 
 such order or publication of notice of the same, may cause 
 their appearance to be entered, and in such case the an- 
 swer of the deceased party shall be deemed the answer 
 of such representatives, or other person or persons as 
 aforesaid ; and after such order of appearance, the same 
 proceedings may be had, and with like effect as to absent 
 or non-resident representatives or other person or per- 
 sons aforesaid, so brought in on publication of notice, as 
 is now provided as to representatives of a deceased party 
 brought in on personal service of an order of revivor. ' ' ^^ 
 
 "If no answer shall have been filed by the deceased 
 party, the court may, in its discretion, order the bill to 
 be taken as confessed against such representatives, or 
 compel them to answer by attachment or otherwise."^* 
 
 "If the deceased party shall have answered and the 
 complainant deem it necessary to obtain a further an- 
 swer from the representatives, the petition for revival 
 shall state the matters as to which a further answer is 
 required and a copy of such petition shall be annexed to 
 
 12 — C. L., S«c. 472; Brown v. 13 — C. L., Sec. 473. 
 
 Thompson, 29 Mich. 72. 14— C. L., Sec. 474. 
 
262 stage's MICHIGAN CHANCEBY PRACTICE AND EOBMS 
 
 a copy of the order to be served on such representa- 
 tiyes.'"* 
 
 "In such ca.se, if the representatives shall not appear 
 and put in such further answer, or disclaim, within eighty 
 days, or such further time as the court may aUow, after 
 the service of the petition and order, upon due proof of 
 such service, the court may order the petition to be taken 
 as confessed or compel such further answer by attach- 
 ment or otherwise." " 
 
 "When, the complainant shall die, and the cause of ac- 
 tion shall not survive, his representatives, may, on affi- 
 davit of such death, and on motion in court, be made com- 
 plainants in the suit and be permitted to amend the bill 
 if necessary. ' ' ^'' 
 
 "The defendant shall be compelled to answer such 
 amended bill, and the cause shall proceed to issue and 
 hearing as in ordinary cases." ^* 
 
 "When the representatives shall not cause themselves 
 to be made complainants within eighty days after the 
 death of the deceased complainant, the surviving com- 
 plainant may proceed to make them defendants in the 
 suit, as in cases where the representatives of deceased 
 defendants are made parties." ^® 
 
 "If there be no surviving complainant, or he shall ne- 
 glect or refuse to proceed against the representatives 
 of the deceased complainant as defendants, the court, 
 upon the petition of the original defendants, may order 
 such representatives to. show cause at a certain day named 
 in such order, why the suit should not stand revived in 
 their names, or the bill be dismissed as far as the in- 
 terests of such representatives are concerned. ' ' ^^ 
 
 ' ' If no such cause be then shown, the court upon proof 
 of the reasonable service of a copy of the order upon such 
 representatives, may order the revival of the suit in their 
 
 15— C. L., See. 475. 18— C. L., Sec. 478. 
 
 16— C. L., Sec. 476. 19— C. L., Sec. 479. 
 
 17— C. L., Sec 477. 20— C. L., See. 480. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 263 
 
 names, or the dismissal of the bill with costs or other- 
 wise." ^^ 
 
 "If a defendant shall die, and the cause of action shall 
 not survive, and the complainant shall neglect or refuse 
 to procure an order for the revival of the suit, the court 
 may order it to stand revived upon the petition of a sur- 
 viving defendant, against the representatives of the de- 
 ceased party. ' ' ^^ 
 
 "In such case the survi^dng defendant may proceed 
 against such representatives in the same manner as a 
 complainant to compel them to appear, abide the answer 
 of the deceased party, or answer, if an answer be re- 
 quired, or to have the bill or his petition, taken as con- 
 fessed against them ; and the court may, in its discretion 
 stay the suit as against him until such proceedings shall 
 have been had. " ^* 
 
 § 233. The foregoing statutory provisions were evi- 
 dently intended to cover and have practically covered 
 every case of the death of a party to a suit in chancery, 
 but a question arose in a case where a decree in a fore- 
 closure suit was made payable in instalments and the 
 first instalment had been paid and the mortgagor, hav- 
 ing previously conveyed the land to another had died, 
 whether or not the above provisions applied or whether 
 it was necessary to file a bill in the nature of a bill of 
 revivor .2* 
 
 The petition should state clearly the abatement by the 
 death of the party and the condition of the suit at the 
 time of the abatement and the relation which the party 
 as to whom revival is sought bears to the estate of the 
 deceased and the facts showing the right of the petitioner 
 to a revival of the suit. 
 
 It should be verified and when a suggestion of the death 
 of a party is made, such suggestion should be accom- 
 panied by an affidavit of the fact of the death. 
 
 21 c. Ii. Sec. 481. 24 — Brown v. Thompson, 29 Mich. 
 
 22— C. L., Sec. 482. 72. 
 
 23— C. L., Sec. 483. 
 
264 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 AFFIDAVIT OF DEATH OF ONE OF SEVERAL 
 
 COMPLAINANTS WHERE CAUSE OF 
 
 ACTION SURVIVES. 
 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 A. B. of (state residence), one of the complainants in the 
 above entitled cause, being duly sworn, says that C. D., one of 
 
 the said complainants, departed this life on the day 
 
 of , A. D. 19 . . , and that no proceedings have been 
 
 taken in said cause on the part of said complainants since said 
 decease of the said C. D., and that this deponent is advised that 
 the cause of action in this suit survives to this deponent and E. 
 F., the other surviving complainant therein, against the defend- 
 ant. 
 (Jurat.) 
 
 AFFIDAVIT OF DEATH OF ONE OF SEVERAL 
 DEFENDANTS "WHERE CAUSE OF ACTION 
 SURVIVES AGAINST OTHERS. 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 A. B. of (state residence), being duly sworn, says that he is 
 the complainant {or, one of the complainants) in the above en- 
 titled cause, and that since the last proceeding was taken in said 
 
 cause and on the day of , A. D. 19. ., C. D., 
 
 one of the defendants in the above entitled cause, died and that 
 this deponent is advised that the cause of action in this suit 
 survives against the surviving defendants, G. H. and H. K. 
 
 A. B. 
 (Jurat.) 
 
 ORDER SUGGESTING DEATH OF A PARTY AND THAT 
 SUIT PROCEED. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the affidavit of A. B., show- 
 ing the death of C. D., one of the complainants (or, defendants), 
 in this cause', and it appearing to the court from the pleadings 
 on file that the cause of action survives in favor of the surviv- 
 ing complainants {or, against the surviving defendants) : It is 
 ordered that the death of the said complainant {or, defendant), 
 C. D., be, and the same hereby is suggested on the record of this 
 cause, and that thjs cause proceed in favor of the surviving com- 
 plainants against the defendant {or, against the surviving de- 
 fendants (naming them) in favor of the complainant). 
 
stack's MICHIGAN CHANCEBY PBACTICE AND FOEMS 265 
 
 PETITION THAT CAUSE BE REVIVED AGAINST 
 REPRESENTATIVES OP DECEASED 
 DEFENDANTS. 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of A. B., the above named complainant, respect- 
 fully shows unto the court : 
 
 1. That the bill of complaint was filed in this court in this 
 cause by your petitioner as complainant against C. D., E- P- 
 and G. H., as defendants, for the purpose of (state object of hill, 
 e. g., foreclosing a certain mortgage made by the defendant, C, 
 D., to your petitioner on certain lands and premises, wherein the 
 said defendants, E. P. and G. H., were interested, that is to 
 say, the said E. P. as subsequent incumbrancer and mortgagee, 
 and the said G. H. as tenant in possession at the time of filing 
 the said biU) . 
 
 2. And that the said defendant, E. P., appeared and an- 
 swered the said bill and your petitioner filed his replication to 
 said answer, and that afterwards and before any further pro- 
 ceedings were had in said suit as against the said defendant, E. 
 
 P., and on the day of , A. D. 19 . . , the said 
 
 defendant, E. P., departed this life leaving a last will and testa- 
 ment, wherein one N. 0. is named as executor, and that the 
 said will have been duly admitted to probate in the Probate 
 
 Court for the county of , that being the county wherein 
 
 the said E. P. resided at the time of his death, and letters testa- 
 mentary thereon have been duly issued by the said Probate 
 Court to the said N- 0. as such executor, and the said N. 0- is 
 now acting as such executor. 
 
 3. And your petitioner further shows that the said N. 0. 
 is now as such executor the sole representative of the said de- 
 fendant, B. P., deceased, and is the only person legally entitled 
 to the interest of the said deceased in the subject matter of this 
 suit. 
 
 I. Your petitioner therefore prays that the death of the said 
 defendant, E. P., be suggested on the record of this cause, and 
 that this cause stand revived against the said N. 0., the executor 
 of the last "will and testament of the said E. P., deceased, in 
 place and stead of the said E. P. as co-defendant with the said 
 defendants, C. D. and G. H. 
 
 II. And that the said cause then proceed pursuant to the 
 statute in such case made and provided. 
 
 III. And that your petitioner may have such other and fur- 
 ther relief in the premises as shall be agreeable to equity. 
 
 And your petitioner will ever pray, etc. 
 
 (Signature.) 
 
 (Signature of Solicitor and of Counsel.) 
 
266 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 PETITION FOR REVIVOR BY REPRESENTATIVE OF 
 DECEASED COMPLAINANT. 
 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of C. R. and M. B. of (state residence), executors 
 of the last will and testament (or, administrators of the estate of 
 as the case may be ) of J. M., late of (state his residence), de- 
 ceased, respectfully shows: 
 
 1. That the said J. M. in his lifetime and on or about the 
 
 day of , A. D. 19 . . , exhibited his bill of 
 
 complaint in this court against B. Z. and A. C, as defendants, 
 stating that (state substance of statements of the bill briefly), 
 and praying that (insert prayer of bill); and that the said de- 
 fendants, B. Z. and A. G., appeared in said cause and filed their 
 joint and several answers to the said bill and (state all proceed- 
 ings in the suit up to the time of the death of J. M.), and that 
 before any further proceedings were had in the said cause the 
 said J. M. departed this life, having first made and published his 
 last will and testament aecordiag to law, which said last will and 
 
 testament was afterwards and on the day of , 
 
 A. D. 19. ., duly admitted to probate in the Probate Court for 
 
 the county of , that being the court having jurisdiction 
 
 thereof, and letters testamentary were thereupon issued by the 
 said Probate Court to your petitioners as such executors {or, 
 
 intestate, and afterwards and on the day of , 
 
 A. D. 19. ., your petitioners were by the Probate Court of the 
 
 county of , that being the court having jurisdiction 
 
 thereof, duly appointed administrators of the estate of the said. 
 J. M., deceased, and letters of administration were duly issued 
 by the said Probate Court to them as such administrators), and 
 that your petitioners thereupon entered upon their duties as such 
 executors (or, administrators) and are now acting aa such. 
 
 2. And your petitioners are advised that the said cause has 
 become abated by the death of the said J. M. and that they are 
 entitled to revive the same as his representatives. 
 
 I. Your petitioners therefore pray that they may be made 
 cotaplainants in the above entitled cause in place and stead of 
 the said J. M., deceased, and that the said suit and the proceed- 
 ings had therein may stand revived and be in the same plight 
 and condition as they were at the time of the death of the said 
 J. M. 
 
 II. And that your petitioners may have silch further or 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your petitioner will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
stage's MICHIGAN CHANOEBY PEACTIOE AND POBMS 267 
 
 PETITION OP COMPLAINANT FOR REVIVOR AGAINST 
 REPRESENTATIVE OF DECEASED CO-COMPLAINANT. 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of A, B. of (state residence), one of the above 
 named complainants, respectfully shows unto the court: 
 
 1. That the bill of complaint in this cause was filed by the 
 above named complainants against the defendants therein, stat- 
 ing that (state substance of stating part of bill), and praying 
 that (state prayer in full); and that the defendants have ap- 
 peared and answered thereto (state all proceedings had in the 
 case), and that before any further proceeding was had in the 
 
 said cause and on the day of , A. D. 19 . . , 
 
 the said complainant, L. M., departed this life, leaving a last 
 will and testament wherein 0. P. of (state his residence), was 
 named as sole executor, and that the said will was afterwards 
 
 and on the day of ,' A. D. 19 . . , duly admitted 
 
 to probate in the Probate Court of the county of , that 
 
 being the court having jurisdiction in that behalf, and letters 
 testamentary were thereupon issued to the said 0. P. as such 
 executor, and the said 0. P. is now acting as such executor and 
 is the sole personal representative of the said L. M., deceased. 
 
 2. And that the said 0. P., although well informed of this 
 cause and of the nature and object thereof, has not caused 
 himself as such executor to be made a complainant in the said 
 cause in the place and stead of the said L. M., deceased, but so 
 to do has hitherto utterly neglected and refused and still does 
 neglect and refuse, and that the representative of the said L. 
 M. is a necessary party to this cause without whom complete 
 justice and equity cannot be decreed. 
 
 I. Tour petitioner therefore prays that the said 0. P. may 
 be as such executor made a party defendant to the said bill, and 
 that he appear in this cause and answer the said bill, and stand 
 to, abide and perform such order and decree therein as the 
 court shall deem to be in accordance with equity. 
 
 II. And that your petitioner may have such further or 
 other relief as shall be agreeable to equity and good conscience. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 ORDER TO REVIVE AGAINST REPRESENTATIVE OF 
 DECEASED DEFENDANT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and filing the petition of the above named com- 
 plainant duly verified, praying that this suit may be revived 
 
268 stage's MICHIGAN CHANCEEY PEACTIOE AND FOEMS 
 
 against N. 0., as the executor {or, administrator) of the defend- 
 ant, E. P., now deceased, and on motion of , Esq., solic- 
 itor for the said complainant: It is ordered that this suit do 
 stand revived against the said N. 0., executor {or, administrator) 
 as aforesaid, and that the said suit and proceedings therein be 
 in the same plight and condition, as they were in at the time of 
 the death of the said E. F. And that the said N. 0. do appear 
 and answer or disclaim withia sixty days after service of a copy 
 of this order upon him, or that in default thereof his appear- 
 ance be entered by this court (if an answer has been put in by 
 the deceased, add) and that the answer of the said B. P. filed 
 in his lifetime be taken and deemed to be the answer of the said 
 N. 0. as his representative (if no answer has been put in by the 
 deceased, say), and that the bill of complaint in this cause be 
 taken as confessed by the said N. 0. as such executor {or, ad- 
 ministrator). 
 
 And it is further ordered that a copy of this order, together 
 with a copy of the said petition, be served upon the said N. 0. 
 
 if he can be found within this state, within days from 
 
 the date hereof. 
 
 (If the petition contains a statement of matters requiring a 
 further answer to that already put in by the deceased, add:) 
 And that, if the said N. 0. does not appear and put in a further 
 answer to the matters to which a further answer is required by 
 the said petition within sixty days after service of a copy of this 
 order and of said petition on him, the said petition be taken as 
 confessed as to the matters to which such further answer is re- 
 quired. 
 
 ORDER TO REVIVE IN FAVOR OF REPRESENTATIVE 
 OF DECEASED COMPLAINANT. 
 
 (Title of court.) 
 (Title of cause,) 
 (Caption.) 
 
 In this cause on reading and filing the petition of C. R. and 
 M. B., executors of the last will and testament {or, administrators 
 of the estate) of J. M., the complainant in this cause, deceased, 
 duly verified, stating the abatement of this suit by the death 
 of the said J. M. ; and on reading and filing due proof of serv- 
 ice of notice of such petition and of the hearing thereof on all 
 
 parties entitled to such notice : On motion of , Esq., 
 
 solicitor for the said petitioners, it is ordered that the said C. iR. 
 and M. B., as such executors {or, administrators) be, and they 
 hereby are made complainants in the said cause, and that the 
 said cause be revived and continued in the names of the said C. 
 R. and M. B. as executors {or, administrators) of the said J. M., 
 and that the said suit stand in the same plight and condition 
 as it was at the time of the death of the said J. M. ; and further, 
 
stage's MICHIGAN CHANCEKY PEACTIOE AND TOEMS 269 
 
 that they be allowed to amend the bill of complaint filed in this 
 cause as they shall be ad"vised. 
 
 Circuit Judge. 
 
 ORDER THAT REPRESENTATIVE OP DECEASED 
 COMPLAINANT BE MADE DEFENDANT. 
 (Title of court.) 
 (Title of cause.} 
 (Caption.) 
 
 In this cause it appearing by the petition of A. B.., one of 
 the abo¥e named complainants, that L. M., one of the com- 
 plainants in this suit, died on or about the day of 
 
 ...,...., A. D. 19 . . , and that 0. P. has been duly appointed 
 and is acting as executor of his last will and testament, and that 
 the said 0. P. has not caused himself to be made a complainant 
 in this suit as such executor, but so to do has neglected and re- 
 fused, and therefore upon reading and filing the said petition, 
 duly verified, and on reading and filing proof of due service of 
 a copy and notice of hearing thereof on the said 0. P., and also 
 upon each of the solicitors of each and all of the defendants who 
 
 have appeared in this suit, and on motion of , Esq., 
 
 solicitor for the said petitioner, the complainant A. B., it is or- 
 dered that the said 0. P., executor of the last will and testa- 
 ment of the said L. M., be and he hereby is made a party de- 
 fendant in this cause, and that he enter his appearance in 
 this cause as such defendant and answer the said bill within 
 sixty days after service on him of a copy of this order, and that 
 in default thereof that the said bill of complaint be taken as 
 confessed by him, the said 0. P. 
 
 And it is further ordered that a copy of this order be served 
 on the said 0. P. within days from the date thereof. 
 
 Circuit Judge. 
 
 ORIGINAL BILL IN NATURE OF BILL OF REVIVOR. 
 (Address and introduction.) 
 
 L That heretofore and on or about the day of 
 
 , 19 . . , one E. F. of , filed his bill of com- 
 plaint in this court as complainant against one 0. D. of ., 
 
 as defendant, thereby stating (set forth substance of prayer), 
 and that the said C. D. having been duly served with process, 
 appeared and filed his answer to the said bill, and the said E. 
 F. replied thereto, and (state all proceedings in the case prior 
 to the death of E. F.), as by the said bill, answer., replication 
 and proceedings in the said cause now on file and of record in 
 this court, and whereto reference is prayed, fully appear. 
 
 2. And that befpre any further proceedings were had in the 
 
270 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 said cause and on or about the day of , 19 • • , 
 
 the said E. P. died, leaving a last will and testament in writing, 
 duly made and executed by hira, the said B. F., prior to his 
 
 said death and bearing date the day of , 19. ., 
 
 and duly attested, whereby the said E. F. devised to your orator, 
 his heirs and assigns forever, the said land and premises so con- 
 tracted to be purchased by him of and from the said C. D. as 
 aforesaid, and wherein your orator was named as sole executor 
 thereof, as in and by the said last will and testament when pro- 
 duced and proved, and whereto your orator prays leave to refer, 
 will fully appear. 
 
 3. And that the said last will and testament was afterwards 
 
 and on the day of , 19 . . , duly admitted to 
 
 probate in the Probate Court for the county of , and let- 
 ters testamentary thereon were duly issued to your orator as 
 sole executor thereof, whereby your orator became the legal per- 
 sonal representative of the said E. F., deceased, as in and by 
 the records of the said Probate Court, and by the said letters 
 testamentary, now in the possession of your orator ready to be 
 produced and proved as this court shall direct, will fully appear, 
 to which said Probate Court records and letters testamentary 
 your orator prays leave to refer. 
 
 4. And that by virtue of the said devise your orator is now 
 entitled to stand in the place of the said B. F. with respect to 
 the said contract, and to have the same specifically performed 
 and to have the said land and premises therein mentioned con- 
 veyed by the said C. D. to your orator upon payment of the 
 amount due and owing on the said contract, in the same manner 
 as the said E. F. would be entitled if living, and your orator 
 hereby offers to pay whatever sum shall be found to be due 
 thereon. 
 
 5. And that by the death of the said B. F. the said suit and 
 proceedings became abated, but your orator is, as he is advised, 
 entitled to have the same revived against the said C. D., and to 
 have the same relief against him as the said E. F. would be en- 
 titled to if still living. 
 
 6. And that the said E. F. left surviving him one son, D. 
 F., and one daughter, G. F., his only heirs at law, and that the 
 said D. F. and G. F. sometimes, but without any ground ques- 
 tion the validity of the said devise to your orator and are there- 
 fore, as your orator is advised, necessary and proper parties 
 defendants to this suit. 
 
 Your orator therefore prays: 
 
 I. That the said C. D., D. F., and B. F., the defendants to 
 this bill, may, without oath, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to this your 
 orator's bill of complaint and to all matters herein stated and 
 charged. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 271 
 
 II. And that the said defendants may, if they can, show 
 why the said suit and proceedings should not be revived and 
 your orator have the relief hereby prayed. 
 
 III. And that it may be decreed that your orator as such 
 devisee of the said E. F., as aforesaid, is entitled to revive the 
 said suit and proceediags so abated as aforesaid and to have 
 the benefit thereof. 
 
 IV. And that the said suit and proceedings may be decreed 
 to stand and to be revived accordingly and to be in the same 
 plight and condition as they were at the time of such abate- 
 ment. 
 
 V. And that your orator may have the same relief against 
 the said defendant, C. D., as the said E. F. would be entitled 
 to if he were still living, and that for that purpose, the said 
 will of the said E. F. and the right of your orator thereunder be 
 established. 
 
 VI. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 Appeals to the Supreme Court and Practice Thereon. 
 
 § 234. Any complainant or defendant who may think 
 himself aggrieved by the order overruling a general de- 
 murrer, or by the decree or final order of a Circuit Court 
 in chancery in any cause may appeal therefrom to the 
 Supreme Court. ^ 
 
 The Supreme Court has no original jurisdiction in 
 chancery cases, its jurisdiction in such cases being only 
 appellate ^ and it vsdll not assume jurisdiction by consent 
 of parties where the statute has not given it.^ The right 
 of appeal is a statutory right and absolute.* The Su- 
 
 1 — C. L., Sec. 549 repealed and 3 — Demaray v. Little, 17 Mich, 
 
 reenacted by Act No. 299 Pub. Acts 386 ; Mich. Ins. Co. v. Whittemore, 
 
 of 1909, Sec. 1 (p. 701.) 12 Mich. 312; Waterman v. Bailey, 
 
 2— Bank of Mich. v. Niles, Walk. Ill Mich. 571. 
 
 Ch. 398; King v. Carpenter, 37 Mich. 4.— Ward v. Lyon, Walk. Ch. 77; 
 
 363; Bailey v. De Graff, 2 Doug. Demaray v. Little, 17 Mich. 386; 
 
 Mich. 169; E. E. Co. v. Seymour, 81 Hewlett v. Shaw, 9 Mich. 347; Mich. 
 
 Mich. 378 ; Constitution Art. VII, Ins. Co. v. Whittemore, 12 Mich. 312. 
 Bee. 4. 
 
272 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 preme Court acts upon the case by what is equivalent to 
 a re-hearing or a trial de novo.^ 
 
 §235. Order Overruling Demurrer. Prior to the 
 amendment in 1883 no appeal was allowed to such an 
 order *' and no appeal is now allowed unless the demurrer 
 is general^ 
 
 Decrees. Appeals can only be taken from such decrees 
 as are final in their action upon the rights of the parties. 
 No appeal can be taken from a decree which is merely 
 interlocutory.® 
 
 § 236. Whether or not a decree or final order is appeal- 
 able depends upon its effect rather than upon the stage of 
 the case at which it was made. If it is conclusive of any 
 right of the parties it is appealable.* 
 
 All final decrees disposing of the entire cause are ap- 
 pealable by the terms of this statute. 
 
 § 237. The statute further provides that when the 
 Supreme Court decides the appeal taken from an order 
 overruling a demurrer, the case shall be remanded to the 
 Circuit Court in chancery and the complainant may 
 amend his bill or the defendant -may file his answer as the 
 
 5 — Hewlett v. Shaw, 9 Mich. 347; Mich. 2X2; Patterson v. Hopkins, 23 
 
 Detroit Kre & Marine Ins. Co. v. Mich. 241; Webber v. Eandall, 80 
 
 Eenz, 33 Mich. 298; Eosecrance v. Mieh. 58; Brooks v. Hargrave, 162 
 
 Eosecrance, 127 Mich. 322; Trout v. Mich. 599; TJ. S. Heater Co. v. Iron 
 
 Thorp, 152 Mich. 363. Moulder's Union, 129 Mich. 354. 
 
 6 — ^Bennett v. Nichols, 12 Mich. 9 — ^Barry v. Briggs, 22 Mich. 201 ; 
 
 22; Kirchner v. Wood, 48 Mieh. Lewis v. Campau, 14 Mich. 458 ; Cas- 
 
 199." well V. Comstock, 6 Mich. 391 ; Tay- 
 
 7 — Shaw V. Chase, 77 Mich. 436; lor v. Sweet, 40 Mich. 736; Candler 
 Babcock v. McJury, 76 Mich. 316; v. Stange, 58 Mich. 479; Enos v. 
 Turck v. Soule, 55 Mich. 128; Eobin- Sutherland, 9 Mich. 148; Witbeck v. 
 son M. Kunkleman, 117 Mieh. 193; Crittenden, 50 Mich. 426; Baker v. 
 Greenley v. Hovey, 115 Mich. 504; Pierson, 5 Mich. 456; Bullard v. 
 Ideal Clothing Co. v. Hazle, 126 Green, 9 Mich. 222 ; Eomeyn v. Cap- 
 Mich. 262; Taylor v. Taylor, 87 lis, 17 Mich. 449; Haines v. Haines, 
 Mich. 64; Daschke v. Schellenberg, 35 Mich. 138 ; In re. Bissell, 40 Mich. 
 124 Mich. 6. 63 ; Eoss v. Boss, 47 Mich. 185 ; 
 
 8 — ^Demaray v. little, 17 Mieh. Webber v. Eandall, 89 Mich. 531; 
 
 386; Caswell v. Comstock, 6 Mich. Ladd v. Plynn, 90 Mich. 181; 
 
 391; Kingsbury v. Kingsbury, 20 Tucker v. Stone, 92 Mich. 298; Per- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 273 
 
 case may be, and for that purpose the parties shall have 
 such reasonable time as the Supreme Court may pre- 
 scribe and the cause shall then be heard and disposed 
 of the same as cases in which no interlocutory appeal has 
 been taken. Where there are two or more defendants, 
 a portion of whom only demur, all proceedings shall be 
 stayed as to the other defendants except filing and serv- 
 ing pleadings until such demurrer is finally disposed of.^" 
 This statute as far as it applies to appeals from over- 
 ruling a demurrer is not mandatory so as to make the 
 giving the complainant an opportunity to amend his bill 
 obligatory in all cases, but such leave to amend will be 
 granted in proper cases, where it appears possible that 
 by doing so a case for equitable relief may be stated.^^ 
 
 § 238. Any party desiring to appeal from the order 
 or decree of the Circuit Court in chancery shall, within 
 forty days after the entry of such order or decree, or in 
 cases where the cause is heard upon proofs and pleadings 
 taken in open court, or before a Circuit Court Commis- 
 sioner or by deposition, then within forty days after the 
 settlement of the case, upon such appeal, file or cause to 
 be filed a claim of appeal in writing with the register of 
 the court where such decree or order was entered and 
 shall also within the said forty days pay a fee of five 
 dollars to the register in chancery: Provided that on 
 appeal from an order sustaining or overruling a general 
 demurrer, the time for taking an appeal shall be computed 
 from the expiration of the time granted by the court to 
 amend or defendant to answer the bill of complaint. 
 Provided further that when any order or decree is en- 
 tered in vacation the time for taking an appeal shall be 
 computed from the time of the service of notice of such 
 decree as provided by law. 
 
 rin V. Lepper, 72 Mich. 454; Brown Circuit Judge, 118 Mich. 354; Moran 
 
 V. Eing, 77 Mich. 159 ; Hall v. Cir- t. Wayne Circuit Judge, 125 Mich. 6. 
 
 cuit Judge, 111 Mich. 395; Glutton 10— Act No. 299 Pub. Acts of 
 
 y. Glutton, 106 Mich. 690; Hake v. 1909 Sec. 1 (p. 701). 
 
 Coach, 105 Mich. 425; Mardian v. 11 — Macomber v. Cottrell, 162 
 
 Circuit Judge, 118 Mich. £53; In Mich. 718. 
 
 re. Angell, 129 Mich. 302; Devine v. 
 
274 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 The Circuit Court in which such a decree or order was 
 rendered or the judge of such court at chambers, or any 
 justice of the Supreme Court may, upon cause shown and 
 notice to the opposite party, extend the time for making 
 and perfecting any appeal. Provided that the time for 
 perfecting an appeal shall not be extended for more than 
 one year from the entry of the order or decree appealed 
 from; Provided further that the time in which appeals 
 may be taken may be extended not exceeding six months 
 from the expiration of the time herein specified by the 
 Supreme Court, or one of the Supreme Court justices at 
 chambers where any party has been prevented from tak- 
 ing such appeal by circumstances beyond his control. 
 Such extension shall only be made on special motion and 
 after a proper showing.^^ 
 
 § 239. No appeal shall operate to stay proceedings in 
 said cause, unless the party taking such appeal file with 
 the register of said court a bond to the appellee or ap- 
 pellees with sufficient surety or sureties to be approved 
 by the circuit judge or a Circuit Court Commissioner of 
 said county or a justice of the Supreme Court and with 
 such penalty as such judge or commissioner shall approve 
 conditioned for the performance or satisfaction of the 
 decree or final order of the Supreme Court in the cause, 
 and payment of all costs of the appellee or appellees in 
 the matter of the appeal. When the appeal is taken from 
 a decree of foreclosure of a mortgage or land contract, 
 the further condition of the bond shall be to pay to the 
 appellee the damages which may result to the appellee 
 from the stay of the proceedings, in which damages the 
 appellant shall be held to have contemplated the fair 
 rental value of the premises affected, which damages in 
 the case of foreclosure of land contract shall be computed 
 as starting within six weeks from the date of the decree 
 which may be appealed from and in foreclosure of mort- 
 gages as starting seven months and two weeks from the 
 date of said decree: 
 
 12— Act No. 299 Public Acts of • 
 
 1909, Sec3. 2 and 3 (pp. 701-2). 
 
stage's MICHIGAIT CHANCERY PRACTICE AND FORMS 275 
 
 Provided, however, that in no event shall such damages 
 be awarded the appellee in said cause under such a bond 
 in a greater amount than the amount of the deficiency 
 reported by the Circuit Court Commissioner on the final 
 sale of said premises if the order of sale be affirmed by 
 the Supreme Court: Notice of the application for the 
 approval of such bond shall be given to the appellee or 
 appellees as on other motions, which notice shall contain 
 the penalty and the names of the sureties of the proposed 
 bond and upon the hearing of said application, such ap- 
 pellee or appellees shall be heard as to the sufficiency of 
 the penalty named in, and the responsibility of the sure- 
 ties proposed to such bond. Provided that in case such 
 bond be approved by a Circuit Court Commissioner, the 
 Circuit Court in which such decree or final order was 
 rendered or the judge of such court at phambers may, 
 on motion, order an additional bond and fix the penalty 
 therein and approve the sureties thereto : 
 . Provided further that the Supreme Court or any jus- 
 tice thereof, may, qn special motion and proper showing 
 after such appeal has been perfected, order an additional 
 bond and fix the penalty thereof and approve the sureties 
 thereto.^^ 
 
 "The evidence, if any, taken on the hearing of said 
 cause in open court or before a Circuit Court Commis- 
 sioner, or by deposition, or in any other manner, shall be 
 settled for review as provided by the rules of the 
 court." " 
 
 §240. "No stay of proceedings upon any final order 
 or decree rendered in any Circuit Court in chancery shall 
 hereafter be granted or allowed for the purpose of set- 
 tling a case therein and taking and perfecting an appeal 
 therefrom for a longer period than forty days from the 
 entry of such decree or order, unless the party applying 
 for such stay, if a decree shall have been rendered against 
 him, shall execute to the adverse party a bond with suffi- 
 
 13— Sep. 4 of Act No. 299 Pub. 14— Sec. 5 of Act No. 299 Pub. 
 
 Acts of 1909 as amended by Act No. Acts of 1909 (p. 702;. 
 160 Pub. Acts of 1911 (p. 257). 
 
276 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 cient surety or sureties in such sum as the circuit judge 
 before whom the case was tried shall designate, con- 
 ditioned for the performance and satisfaction of such 
 decree or final order if the same be not set aside or re- 
 versed,, and that if an appeal be taken from such decree 
 or order, the appellant shall prosecute such appeal to 
 effect, and shall perform and satisfy such decree as shall 
 be rendered against him thereon. When the appeal ia 
 taken from a decree of foreclosure of a mortgage or land 
 contract the further condition of the bond shall be to pay 
 to the appellee the damages which may result to the ap- 
 pellee from the stay of proceedings in which damages the 
 appellant shall be held to have contemplated the fair 
 rental value of the premises affected, which damages in 
 the case of foreclosure of land contract, shall be com- 
 puted as starting within six weeks from the date of the 
 decree which may be appealed from and in the foreclosure 
 of mortgages as starting seven months and two weeks 
 from the date of said decree : Provided, however, that 
 in no event shall such damages be awarded the appellee 
 in said cause under such a bond in a greater amount than 
 the amount of the deficiency reported by the Circuit Court 
 Commissioner on the final sale of said premises if the 
 order of sale be affirmed by the Supreme Court. Notice 
 of the time and place when such bond will be presented to 
 the circuit judge for approval shall be served upon the 
 adverse party as on other motions : Provided that in case 
 the party applying for such stay of proceedings shall be 
 unable to give such bond by reason of poverty, the judge 
 may, upon due proof of inability for such reason, grant 
 such stay without requiring such bond, for such reason- 
 able time as the judge may determine : Provided, further, 
 that no other or further bond shall be required to stay 
 proceedings upon any appeal from such decree or final 
 order by or on behalf of the party filing such bond.^** 
 It shall be the duty of the register of such court, upon 
 
 15— Sec. 6 of Act No. 299 Public 
 Acta of 1909 as amended by Act No. 
 160 Pub. Acts of 1911 (p. 258). 
 
STAOa's MICHIGAN CHANCERY PRACTICE AND FORMS 277 
 
 payment to him of the sum of five dollars as his fees 
 by the appellant, to attach together the original bill, proc- 
 ess, answer, replication and all other proceedings, proc- 
 esses, motions, notices, orders and decrees which have 
 been filed in said canse, together with the testimony as 
 settled in the said cause and also a copy of all journal 
 and calendar entries and all other proceedings of record 
 in the cause not embraced in the original papers herein- 
 before mentioned, and transmit the same together with 
 his certificates of the genuineness of the said originals 
 and the correctness of said copies of such journal and 
 calendar entries and records, to the Supreme Court within 
 fifteen days after such appeal shall be perfected.'* 
 
 §241. This statute, which lias greatly modified the 
 former practice on appeals, prescribes every step neces- 
 sary to be taken to make and perfect an appeal. It will 
 be observed that all that is absolutely necessary is to 
 make, file and serve a copy of a claim for appeal within 
 the time limited and pay the register of the court five 
 dollars for his fee for transmitting the papers and copies 
 of the court records to the Supreme Court. 
 
 This must be done within the statutory time as the 
 court has no power except as given in the statute to ex- 
 tend the time for taking an appeal.' '' 
 
 If the bond mentioned in the statute is not given there 
 will be no stay of proceedings and therefore the prevail- 
 ing party may in that case proceed to enforce the decree 
 notwithstanding the appeal in the same manner as if no 
 appeal had been taken, but of course he does this at the 
 risk of having all such proceedings set aside if the appel- 
 lant shall prevail in the Supreme Court. 
 
 The next proceeding by the appellant is to give notice 
 of his appeal and of the time when the appeal bond, if 
 any, was filed. This notice must be given to all of the 
 other parties, whether joint or adverse, who have ap- 
 
 16— -See. 7 of Act No. 299 Pub. of Erie, 21 Mich. 160 ; Waterman v. 
 
 Acts of 1909 (p. 703). Bailey, 111 Mich. 571; Ward v, 
 
 17 — Portage Lake, etc. Co. v. Lyon, Walk. Ch. 77. 
 Haas, 20 Mich. 326; Canfield v. City 
 
278 stage's MICHIGAN CHANCEBY PRACTICE AND POBMS 
 
 peared in the cause by serving a copy thereof on such 
 parties or their solicitors in the court below, within twenty 
 days after perfecting the appeal and a copy of such notice 
 with proof of service must be filed in the office of the 
 clerk of the Supreme Court within ten days after such 
 service.'* 
 
 N. B. Supreme Court rule 15 provides that the register 
 shall transmit the record to the clerk of the Supreme 
 Court within forty days after the filing of the appeal bond 
 and rule 16 provides that this time may be extended for 
 good cause shown by one of the justices of the Supreme 
 Court; these rules were made in 1896, before the enact- 
 ment of the statute of 1909 above quoted and are appar- 
 ently rendered of no force by that statute. 
 
 The case being now in the Supreme Court the record 
 must be printed and for that purpose copies of all ma- 
 terial papers and records should be procured before the 
 transmission of the record to the Supreme Court. 
 
 § 242. The printed record must contain all the testi- 
 mony as settled by the court and so much of the pleadings, 
 record and proceedings (and no more) as are necessary 
 to present the questions raised. The date of the official 
 filing of each pleading must be stated. The record must 
 be printed in small pica type, twenty-four pica "ems" to 
 a line, thirty-five lines to a page, leaded with four-to-pica 
 leads with cover containing title of court and cause and 
 the court from which the appeal is made, the size of the 
 pages to be nine and one-quarter by six and one-quarter 
 inches.'^ 
 
 The record must contain printed in the front of it a 
 complete index of the names of witnesses whose testi- 
 mony appears therein and the pages whereon their ex- 
 amination, cross-examination or re-examination is found, 
 also the pages where any exhibit appears and in brief 
 form the substance of each exhibit.^" 
 
 The appellant must cause the record to be printed as 
 soon as practicable after the transmission of the record 
 
 18 — Supreme Court Rule 14. 20 — Supreme Court Eule 36. 
 
 19 — Supreme Court Eule 35. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOKMS 279 
 
 and as soon as completed shall serve at least two copies 
 on the appellee and before the first day of the term at 
 which the cause is noticed for argument, must file eighteen 
 copies thereof with the clerk of the Supreme Court and 
 in any ease the appellant shall serve such record on the 
 appellee within thirty days after the filing of the record 
 in the Supreme Court and within the time allowed by rule 
 for the service of the first brief (i. e., at least twenty days 
 before the first day of the term for which the cause is 
 noticed), unless further time is granted. If the appellant 
 fail to print and serve the record within the time pre- 
 scribed, or within such further time as may be granted, 
 the court may, on motion of the appellee, dismiss the 
 appeal with costs to the appellee or grant further time on 
 such terms as shall be proper. If the appellant fail to 
 have the printed record filed before the first day of the 
 term for which it is regularly noticed, it will be stricken 
 from the calendar on the first day of term and further 
 dealt with as justice shall require.^ ^ 
 
 Books of account and similar exhibits need not be 
 printed in the printed record.*^ Failure to make an index 
 is severely censured.^ ^ 
 
 § 243. After the record of an appealed case has been 
 filed and the time for filing the same has elapsed, either 
 party may notice the cause for hearing, said notice shall 
 be given at least thirty days before the first day of the 
 term at which the argument is desired.^* 
 
 §244. The case is heard in the Supreme Court on 
 printed briefs furnished by each party and oral argu- 
 ments, or on such briefs without oral argument. The 
 rules provide that the brief of the appellant shall contain 
 a clear and concise statement of the facts in the case, dis- 
 tinct from the argument and of the errors on which he 
 relies, the questions involved and the manner in which 
 they are raised. The court will consider such statement 
 
 21 — Supreme Court Eule 38. 23 — Pease v. Munro, 83 Mich. 475. 
 
 22 — Univeraity of Mich. v. Eoae, 24— Sup. Ct. Eule 34. 
 
 45 Mich. 284. 
 
280 stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 
 
 sufficient and accurate unless the opposite party shall 
 point out in his brief wherein the statement is insufficient 
 or inaccurate.^^ 
 
 § 245. Where the complainant is the appellant or when 
 the defendant appeals from an order overruling a de- 
 murrer, two copies of the appellant's brief shall be served 
 upon the appellee as soon as printed and at least twenty 
 days before the first day of the term at which the cause 
 is regularly noticed for hearing. Two copies of the ap- 
 pellee's brief shall be served upon the appellant as soon 
 as printed and at least five days before the first day of 
 such term, provided that if the printed record and appel- 
 lant's brief shall be served thirty days before the first 
 day of the term the appellee's brief shall be served at 
 least fifteen days before the first day of the term. In 
 other chancery appeals when the complainant is appellee 
 his brief shall be served upon the defendant at least fif- 
 teen days before the first day of such term (or within ten 
 days after service of the printed record by appellant if 
 the same be not served within twenty-five days before the 
 first day of the term) and the appellant's brief shall be 
 served at least five days before the first day of the 
 term (or within ten days after the service of com- 
 plainant's brief). Such briefs shall fairly present the 
 cause on each side. Supplemental briefs may be printed 
 and served at any time before the cause is placed upon the 
 call for argument, but subsequently only by special per- 
 mission of the court. If the brief of either party be not 
 served within the time above required the opposite party 
 may, at bis option, on the first day of the term, have the 
 cause placed at the foot of the calendar or continued and 
 the court may in proper cases, order the payment of a 
 counsel fee by the party in default.^'' 
 _ Eighteen copies of all briefs shall be filed at least forty- 
 eight hours before the case has been placed on call and no 
 oral argument will be heard on behalf of a party failing 
 to comply with this provision.^'^ 
 
 25— Sup. Ct. Eule 40. 27 — Sup. Ct. Rule 42. 
 
 26^-Supreme Court Eule 41. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 281 
 
 Only such points as are made and relied on by the 
 parties in their briefs will be considered by the court, 
 consequently it is important that the briefs should state 
 clearly all the matters relied upon by each party. 
 
 The statement of facts in appellant's brief should con- 
 tain references to the record to support it. The state- 
 ment in the brief of the appellee should be confined to 
 corrections of, or additions to, that of appellant, pointing 
 out the errors and omissions, an independent statement 
 will be disregarded.^* 
 
 Six copies of all records and briefs must be served on 
 the attorney general in all cases in which the state is a 
 party or interested.^* 
 
 § 246. The calendar is made up by the clerk, the order 
 of placing cases thereon depending on the date of filing 
 notice of hearing with the clerk. The party noticing a 
 case for hearing shall, at least twenty days before the 
 first day of the term for which it is noticed, give notice to 
 the clerk to place such cause on the calendar for the term. 
 No cause shall be entered on the calendar until the record 
 is filed nor without such notice to the clerk. Upon filing 
 stipulation with the clerk not later than the Saturday 
 before the first day of the term cases may be placed lower 
 down on the calendar and grouped to suit convenience of 
 counsel. After such re-arrangement by the clerk, no fur- 
 ther changes can be made by counsel except to continue 
 or place at the foot of the calendar. In cases where 
 counsel are not present in court, notice of motions for 
 continuance, to be heard on the first day of the term, shall 
 be given at least twenty-four hours previous thereto and 
 if for any subsequent day two days notice shall be given.^" 
 
 The causes will be called up for hearing in the order 
 in which they stand on the re-arranged calendar, com- 
 mencing on the first day of term and from day to day 
 thereafter. Fifteen cases only being put on call for any 
 one day. If the parties or either of them are ready when 
 
 28— See Shinglemeyer v. Wright, 29— Sup. Ct. Eule 39. 
 
 124 Mich. 230. 30— Sup. Ct. Eule 44. 
 
282 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 the case is called it will be heard, if neither are ready it 
 will be regarded as submitted on briefs. No cause after 
 being placed on call shall be withdrawn therefrom except 
 to continue it and no continuance will be allowed except 
 for the sickness or death of counsel. No cause will be 
 heard out of its order nor set down for a particular day 
 except under special and peculiar circumstances to be 
 shown to the court. On motion days (i. e., Tuesday of 
 each week), motions take precedence of calendar causes.*^ 
 
 § 247. In the oral argument two counsel may be heard 
 on a side. The time allowed for argument shall not ex- 
 ceed one hour on each side unless by special permission 
 of the court on cause shown, granted before argument 
 begins.*^ 
 
 Any cause may be submitted on briefs by stipulation 
 at any time.** 
 
 Causes where the record fails to shoy that the amount 
 involved, exclusive of costs, is more than five hundred 
 dollars and all motions shall be submitted on briefs un- 
 less otherwise ordered by the court.** 
 
 § 248. If the decree of the court below be affirmed the 
 decree of the Supreme Court is briefly that such decree be 
 in all respects affirmed. 
 
 If the defendant is the appellant and the decree of the 
 court below is wholly reversed and the bill dismissed, the 
 decree is briefly to that effect. 
 
 If the decree of the court below is modified, the practice 
 is for the party in whose favor the decision is ma^e to 
 prepare a decree and serve a copy on the other party with 
 notice that it will be settled before the justice who wrote 
 the opinion on a certain day at a certain hour, such notice 
 should be the same as for special motions (i. e., four days 
 and one day additional for every one hundred miles or 
 fraction thereof of distance between the residence of the 
 opposing solicitor and the city of Lansing). If the oppo- 
 site solicitor concedes that the draft of decree is in ac- 
 
 31— Sup. Ct. Eule 45. 33— Sup. Ct. Eule 47. • 
 
 32— Sup. Ct. Eule 46. 34— Sup. Ct. Eule 55. 
 
STAGE S MICHIGAN CHANCEEY PBACTICE AND FOEMS 283 
 
 cordance with the opinion and so states in writing, no 
 notice will be necessary. The decree when settled will be 
 entered by the clerk. 
 
 § 249. Costs. The fee of the clerk in filing and enter- 
 ing the appeal is six dollars in full of all fees in such case 
 (except for motions), to be paid by the appellant at the 
 time the record is transmitted.^^ 
 
 The taxable costs are the necessary expenses of print- 
 ing the record and briefs,^" and a counsel fee on calendar 
 causes of thirty dollars, also on motions which do not 
 dispose of the case, ten dollars and on motions which 
 finally dispose of the case, twenty dollars ^'^ on denial of 
 rehearing, fifteen dollars.^* 
 
 § 250. All costs in chancery appeals are in the discre- 
 tion of the court ^^ and in special cases much larger coun- 
 sel fees have been awarded.*" Counsel fees are not al- 
 lowed where counsel has filed no brief.*^ Deductions 
 from the expense of printing will be made where the 
 record is unduly prolix.*^ 
 
 The cost of preparing a copy of the record for the 
 printer has been allowed as a necessary disbursement,*^ 
 but not the preparation of the original.** 
 
 § 251. Costs are taxed by the clerk upon notice of not 
 less than four days with one day additional added for 
 every hundred miles or fraction thereof of distance of 
 
 35 — Supreme Court Bule 2. 41 — Sawtelles v. Howard, 104 
 
 36 — Sup. Ct. Bule 48. Mich. 54; Case v. Dewey, 55 Mich. 
 
 37— Sup. Ct. Eule 49. 116. 
 
 38— Sup. Ct. Eule 51. 42— Turner v. Machine Co., 97 
 
 39— See v. Dorr, 57 Mich. 369; Mich. 166; Maxted v. Fowler, 94 
 
 Kent Agricultural Society v. House- Mich. 106; Davison v. Shanahan, 93 
 
 man, 81 Mich. 609; Lambert v. Mich. 486; Merriman v. Hall, 131 
 
 Weber, 83 Mich. 395; Newkirk v. Mich. 406. 
 
 Newkirk, 56 Mich. 525; Fredeuburg 43 — Inkster v. Carver, 17 Mich. 
 
 V. -Turner, 37 Mich. 402; McKenna 64; Botsford v. Murphy, 48 Mich. 
 
 V. Kirkwood, 50 Mich. 544; McCurdy 642. 
 
 V. Clark, 27 Mich. 445. 44 — Thurston v. Luce, 61 Mich. 
 
 40 — Perrin v. Lepper, 72 Mich. 486. 
 
 454; Great Camp K. O. T. M. M. 
 
 V. Deem, 143 Mich. 652. 
 
284 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 the residence of the party on whom notice is served from 
 the city of Lansing, provided that not more than ten days 
 notice need be given in any case. The notice must be 
 accompanied by a copy of the proposed bill of costs and 
 of the affidavit to be read in support thereof.*^ 
 
 The bill of costs must be itemized and supported by an 
 affidavit showing that all copies or exemplifications of 
 documents or records were necessarily obtained and used 
 or obtained for use and that all charges for expenses and 
 disbursements were necessarily incurred and are reason- 
 able in amount.*'^ 
 
 If either party objects to the taxation of, or failure to 
 tax any item, a retaxation may be had by special motion 
 to the court, setting forth the particular matter objected 
 to and the reasons for such objection. Objections to the 
 taxation of any item with the reasons for the same should 
 be filed with the clerk at or before the time for which the 
 taxation is noticed. 
 
 § 252. Rehearing. If either party, after the decision 
 of a case, desires a rehearing, he must move for such re- 
 hearing at as early a date as may be practicable, and must 
 cause any papers upon which such motion is based, to- 
 gether with his reasons why the same should be granted, 
 to be printed and twelve copies thereof to be filed with the 
 clerk and a copy thereof served upon the counsel for the 
 opposite party and proof of such service to be filed with 
 the clerk, and the court after four days will examine the 
 papers, and without further argument unless specially 
 ordered, will pass upon the application. The party op- 
 posing may file with the clerk his objections to the appli- 
 cation either printed or typewritten as he may prefer, at 
 any time before the motion is decided. If denied the 
 opposing party is entitled to tax as costs the expense of 
 printing his brief, if one has been made, and a motion fee 
 of fifteen dollars.*^ 
 
 By statute, whenever there shall be filed a dissenting 
 
 45 — Supreme Court Eule 50. 47 — Sup. Ct. Eule 51. 
 
 46— C. L., Sec. 11297. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 285 
 
 opinion in a case heard by a quorum of five judges only : 
 the parties therein shall have a right to a rehearing be- 
 fore the entire bench upon making a proper application 
 therefor.** 
 
 Also, after the argument of any cause, or when the 
 same is submitted on briefs, if the court is of opinion that 
 a certain point or legal proposition is involved which is 
 material to the decision of the case, and which has not 
 been raised or argued by counsel on either side, the case 
 shall not be decided on such point or proposition until 
 both counsel have had an opportunity to argue the same 
 before the court.*® 
 
 §253. Except as provided by the above mentioned 
 statutes a re-hearing is seldom allowed unless where some- 
 thing contained in the record or briefs of counsel has been 
 inadvertently or otherwise overlooked or omitted which 
 is material to be considered in making a proper disposi- 
 tion of the case or where there has been a misapprehen- 
 sion of the law,^" or unless there has been some peculiar 
 assumption or defect in the first hearing by which the 
 court and parties have been misled.^ ^ 
 
 § 254. Final process, to which any party may be en- 
 titled upon a decree of the Supreme Court, will be issued 
 by the clerk and made returnable not less than twenty 
 nor more than ninety days from the date of its issue.^^ 
 
 CLAIM OF APPEAL. 
 (Title of court and cause.) 
 
 Now comes the above named defendant, C. D., {or, complain- 
 ant) and hereby claims the benefit of an appeal to the Supreme 
 Court of this state from the decree (or, final order or, the or- 
 der overruling his general demurrer) made and rendered in 
 
 48 — C. L., See. 185 as amended by 51 — ^Brown v. Brown, 64 Mich. 
 
 Act No. 250 Public Acts of 1903 (p. 82; People v. Cotteral, 115 Mich. 
 
 414). 43-46. 
 
 49— C. L., Sec. 193. 52— Sup. Ct. Eule 52. 
 
 50 — Smith v. Walkei, 57 Mich. 
 456-488. 
 
286 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 this cause by the above entitled court on the day of 
 
 , A. D., 19... 
 
 Dated this day of , A. D., 19. .. 
 
 Solicitor for 
 
 To the Register of the said Court. 
 
 NOTICE OP APPEAL AND APPLICATION FOR 
 APPROVAL OF BOND. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Complainant. 
 
 Sir: Please take notice that C. D. the defendant (or, one of 
 the defendants) in the above entitled cause has appealed to the 
 Supreme Court of this state from the decree {or, final order or, 
 order overruling his general demurrer) made therein on the 
 
 day of , A. D., 19 . . , by the Circuit Court 
 
 for the county of : In Chancery, and that a bond for 
 
 costs and damages and to stay proceedings upon such appeal 
 
 in the penal sum of ■ . '. dollars, vsdth and 
 
 both of the of in said county of 
 
 as sureties, a copy whereof is hereto annexed, has been 
 
 duly executed, and that application will be made to the Hon. 
 
 , circuit judge, at his chambers (or, to , Esq., 
 
 a circuit court commissioner of the said county of at his 
 
 office) in the of in said county on the 
 
 day of , A. D., 19. ., at o'clock in the 
 
 noon, for the approval of the said bond and the penalty thereof 
 and the sureties thereto. 
 
 Dated this day of , A. D-, 19 . . . 
 
 Yours, etc., 
 
 Solicitor for Defendant, C. D. 
 
 BOND ON APPEAL. 
 
 Know all men by these presents: that we, A. B., of the 
 
 in the county of and state of as 
 
 principal, and C. D. and E. F. of the of 
 
 county of and state of Michigan as sureties, are held 
 
 and firmly bound unto G. H. of in the sum of , 
 
 dollars lawful money of the United States, to be paid to the 
 said G. H. or to his certain attorneys, executors, administrators 
 and assigns, to which payment well and truly to be made we 
 bind ourselves and our heirs, executors, administrators and 
 each and every of them, jointly and severally, firmly by these 
 presents. 
 
 Sealed with our seals and dated this day of , 
 
 A. D., 19... 
 
 Whereas, the above bounden A. B., has appealed to the Su- 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 287 
 
 preme Court of the state of Michigan from a decree (or, final 
 order or, an order overruling his general demurrer) made by 
 
 the Circuit Court for the county of in Chancery, in 
 
 a cause in the said court, wherein the said G. H. is complainant 
 and the above bounden A. B. is defendant {or, A. B. and I. 
 K. and M. M. are defendants) : Now, therefore, the condition 
 of this obligation is such, that if the above bounden A. B. sh&U 
 diligently prosecute his said appeal to eifeet, aiid shall perform 
 and satisfy such decree or order as the said Supreme Court 
 shall make in said cause, and shall pay all costs of the said G. 
 H. therein that the said Supreme Court shall award to be paid 
 by him, the said A. B., then this obligation shall be void, other- 
 wise to remain in force. A. B. (L. S.) 
 
 CD. (L.S.) 
 E.L. (L.S.) 
 
 APPROVAL OF BOND ON APPEAL BY CIRCUIT JUDGE. 
 Due proof of service of notice of application for the approval 
 of the within bond having been filed: The within bond and 
 the penalty thereof and the sureties thereto are hereby approved. 
 Dated this day of , A. D., 19 . . . 
 
 Circuit Judge. 
 
 BY CIRCUIT COURT COMMISSIONER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 The within bond having been this day presented to ine and 
 application having been made to me to approve the same, and 
 it appearing by affidavit on file that due notice of such applica- 
 tion has been duly served on the solicitor for the : 
 
 On motion of , Esq., solicitor for the (and 
 
 , Esq., of counsel for the having been heard 
 
 in opposition thereto), I do hereby approve the within bond and 
 the penalty thereof and the sureties thereto. 
 
 Circuit Court Commissioner. 
 County, Michigan. 
 
 TRANSCRIPT OF SUBSTANCE OF EVIDENCE. 
 (Title of court and cause.) 
 At a session of the said court held at the court house in 
 
 the of in said county on the day of 
 
 , A. D., 19. .,■ before the Hon , judge of the 
 
 said court, this cause came on for the examination of witnesses 
 in open court as in a suit at law, and thereupon the said com- 
 plainant appeared by , his counsel, and the defendant 
 
288 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 also appeared by, his counsel, (if several defendants 
 
 appear by different counsel, name each defendant and the coun- 
 sel who represented them respectively): 
 
 And thereupon the counsel for the complainant called as a 
 witness, who, having been duly sworn, testified in sub- 
 stance as follows : I reside at and am years 
 
 of age, etc. (State substance of testimony in narrative form, ex- 
 cept in such particular instances where a statement by question 
 and answer is necessary to a full understanding of the meaning 
 of the witness. Where a question is asked which was objected 
 to at the time, and it is desired to preserve the benefit of the 
 objection, state as follows:) and thereupon the counsel for the 
 complainant asked the said witness the question following: 
 Question — (state question verbatim). 
 
 To which question counsel for the defendant objected, because 
 (state reasons for objection as given at the time). 
 
 And the witness answered — (state answer, and so on as to 
 all evidence objected to). 
 
 (After the direct examination, say:) 
 
 On cross examination the said witness testified in substance 
 (state manner as in the direct); after the cross, if any redirect 
 examination was had proceed) : 
 
 On redirect examination the said witness testified in substance 
 (and sa on with each witness for complainant, then say) : 
 The complainant thereupon rested, and the counsel for the 
 
 defendant called as a witness one , who, having been 
 
 duly sworn, testified in substance as follows; etc. 
 
 (If any exhibits, such as letters or other documents, are in- 
 troduced in evidence they should be recited in the case at the 
 proper places respectively as follows:) 
 
 Whereupon the counsel for the complainant offered and read 
 in evidence complainant's Exhibit A., which reads as follows: 
 (insert copy of exhibit). 
 
 (In case where exhibits are long and only a small part is 
 important to the case it is not usually necessary to set out more 
 than the important part, and where an exhibit contains many 
 mere formal parts such formalities may usually he omitted. For 
 example; if the record of a judgment be introduced all that is 
 usually necessary is to recite that the Exhibit consists of the 
 
 records and files of the Circuit Court in the county of 
 
 in a cause where is plaintiff and is defend- 
 ant, showing that said cause is an action of (assumpsit) com- 
 menced on the day of , A. D., 19 . . , and that 
 
 on the day of , A. D.' 19. ., a judgment was 
 
 rendered therein in favor of the said and against the 
 
 said (stating the amount of the judgment.) 
 
 (If any objection was made to the introduction of any ex- 
 hibit such objection and the reasons for it should be stated im- 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 289 
 
 mediately after the recital of the exhibit, and an exhibit that 
 is objected to should usually be set out verbatim.) 
 (Conclude as follows:) 
 
 And thereupon the day of , A. D., 19. ., 
 
 the testimony and proofs in this cause were closed. And after- 
 wards and on the day of , A. D., 19. ., this 
 
 cause having been in the meantime argued by counsel and the 
 court having taken the same into consideration, the said Circuit 
 
 Court made its decree therein in favor of the said and 
 
 against the said (the substance of the decree may be 
 
 briefly stated but this is not essential), which said decree was on 
 
 the day of , A. D., 19 . . , entered in this cause. 
 
 (If further time for settling the case has been allowed by the 
 court say:), and the time for settling a case containing the sub- 
 stance of all the evidence in this cause having been extended for 
 
 (stating time of extension). At the request of 
 
 , Esq., solicitor for the said defendant {or, complain- 
 ant as the case may be) and the solicitor for the complainant (or 
 defendant) having been heard in relation thereto; I, the un- 
 dersized, the circuit judge before whom the said evidence 
 was taken and this cause was tried, do hereby certify that the 
 foregoing case and transcript contains the substance of all the 
 evidence given in the said cause, and that in that part thereof 
 wherein the testimony of witnesses is set forth by question and 
 answer, the setting forth of such questions and answers is nec- 
 essary to a fuU upderstanding of the evidence and the questions 
 involved. 
 
 Wherefore I have duly settled and signed this transcript con- 
 taining the substance of all the evidence in this cause this 
 day of , A. D., 19... 
 
 Circuit Judge. 
 
 NOTICE OP SETTLING TRANSCRIPT. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Complainant {or defendant, as 
 
 the case may be). 
 Sir: 
 
 Take notice that the annexed is a copy of a transcript of the 
 substance of the evidence taken in this cause, and that applica- 
 tion will be made to the Hon , judge of the said court 
 
 before whom this cause was tried, at his chambers in the 
 
 of , county of , Michigan, on the 
 
 day of , A. D., 19 . . , at o 'clock in 
 
 the noon, to settle and sign the same. 
 
 Dated this day of , A. D., 19. .. 
 
 Solicitor for Defendant, C. D. 
 (or, Complainant, as the case may be) 
 
290 stage's MICHIGAN CHANCEET PBACTICE AND FORMS 
 
 NOTICE OF AMENDMENTS PROPOSED TO TRANSCRIPT 
 
 OF EVIDENCE. 
 (Title of court and cause.) 
 To , Esq., Solicitor for 
 
 Sir: Please to take notice that I shall propose the follow- 
 ing amendments to the proposed transcript of the substance of 
 the evidence in this cause, that is to say: 
 
 First Amendment. On line , page , of the 
 
 said proposed case, strike out the words , and insert 
 
 instead the words 
 
 Second Amendment. On line of page , 
 
 after the words , insert the words, 
 
 Third Amendment. On line of page , 
 
 strike out the words , and aU thereafter to and in- 
 cluding the word on line 
 
 (And so on, designating all changes desired.) 
 
 Dated this day of , 19 . . . 
 
 Yours, etc., 
 
 Solicitor for 
 
 NOTICE OP APPEAL. 
 
 (Title of court and cause.) 
 
 Appeal in Chancery. 
 
 To , Esq., • 
 
 Solicitor for Complainant and Appellee. 
 
 Sir : Please take notice that on the day of 
 
 A. D., 19- . , a claim of appeal was filed with the register of 
 
 the Circuit Court for the county of , In Chancery, 
 
 whereby the defendant and appellant, A. B., claimed the benefit 
 of an appeal to the Supreme Court from the decree {or, final 
 order or, order overruling his demurrer) made and rendered in 
 
 the said cause by the Circuit Court for the county of , . . , 
 
 In Chancery, on the day of , A. D., 19. ., and 
 
 that upon the day of , A. D., 19. ., a bond 
 
 as required by the statute in like case provided, duly approved 
 
 by the Hon , circuit judge (or by , Esq., a 
 
 circuit court commissioner of the said county of ), 
 
 was filed with the register of the said Circuit Court for the 
 
 county of , In Chancery, in his offlce in the 
 
 of in said county of 
 
 Dated this day of , A. D., 19. .. 
 
 Yours, etc., 
 
 Solicitor for Defendant and Appellant, A. B. 
 
'stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 291 
 
 AFFIDAVIT OF SERVICE OF NOTICE OF APPEAL. 
 
 State of Michigan. 
 
 In the Supreme Court. 
 
 Appeal in Chancery. 
 
 (Title of cause.) 
 
 County of , ss. : of , being duly 
 
 swom, says that he resides in the of in the 
 
 county of in the state of Michigan, and that he is 
 
 • ; years of age, and is personally acquainted with J. B., 
 
 the solicitor for the above named complainant and appellee, and 
 
 that on the day of , A. D., 19. ., at 
 
 o'clock in the noon, at the of in the 
 
 county of and state of Michigan, this deponent served 
 
 a notice of appeal of which the annexed is a true copy upon the 
 said J. B., by delivering the same to him personally. 
 
 Deponent further says that the said J. B. is the solicitor of 
 record for the said complainant in the said cause in the court 
 below. 
 (Jurat.) 
 
 (Signature.) 
 
 Costs. 
 
 § 255. In chancery cases costs are always in the discre- 
 tion of the court and in some cases the prevailing com- 
 plainant is required to pay costs, in others costs are or- 
 dered to be paid out of the fund in dispute, and in others 
 each party is required to pay his own costs. Costs may 
 be awarded against one defendant and in favor of an- 
 other ; in fine, costs are awarded as the court shall deem 
 just and equitable in each case. 
 
 Usually, however, the prevailing party recovers his 
 costs against the unsuccessfully contesting party. 
 
 It is provided by rule that the following costs shall be 
 allowed to the prevailing parties, viz. : 
 
 In all cases determined by final decree on pleadings 
 and proofs, thirty dollars. 
 
 In all cases determined by bill and answer, plea or de- 
 murrer, twenty dollars. 
 
 In all cases where the decree is taken on the bill taken 
 as confessed, or where the bill is voluntarily dismissed 
 by the complainant after appearance and before the cause 
 is at issue, fifteen dollars. 
 
 Upon all special motions such sum not exceeding ten 
 
292 stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 
 
 dollars, as the court shall deem just. When a bill is 
 dismissed for default at the hearing, or for want of prose- 
 cution, or voluntarily by the complainant, after the same 
 is at issue, the defendant shall be entitled to the same 
 costs as if the issue had been heard. 
 
 When the bill is dismissed upon payment of the claim 
 or performance of the relief sought, before decree, the 
 complainant shall be entitled to the same costs as if the 
 case had been heard. If such payment or performance 
 be made before plea, demurrer, or answer the costs shall 
 be as on bill taken pro confesso. If, after any pleading 
 is put in and before proofs, they shall be as on a hearing 
 upon pleadings : and if proofs are taken, the costs shall 
 be as on a hearing upon pleadings and proofs. 
 
 In divorce cases the costs shall be under the direction 
 of the court. 
 
 Where there are several defendants entitled to costs, 
 the costs granted by this rule shall be apportioned among 
 them as the court may deem proper.^ 
 
 Aside from the costs mentioned in this rule, which are 
 usually termed solicitor's fees, the prevailing party is 
 entitled to tax as costs the expenses he has been to for 
 the payment of officers and witness fees and the actual 
 expense of obtaining exemplifications of records of courts 
 or officers when necessary for use in the case, those which 
 are most usual are the following : 
 
 §256. Fees of Register in Chancery. Drawing any 
 common order, order by consent, special order or decree 
 when requested, thirteen cents for each folio. 
 
 Entering any order, decree, or proceeding in the min- 
 utes, ten cents for each folio. 
 
 Engrossing every decree to be signed by the court, ten 
 cents for each folio. 
 
 Exemplifying, upon request, under seal of the court any 
 paper or proceedings, six cents for each folio. 
 
 Examining and signing every final decree and attend- 
 ing the court with the same, and obtaining the judge 'tf" 
 signature thereto, fifty cents. 
 
 1 — Chancery Eule 22, 
 
stage's MICHIGAN CHANCERY PBACTICE AND FORMS 293 
 
 IHling any paper, six cents : and no additional charge 
 shall be made for reading or marking any paper filed by 
 him. 
 
 For reading and marking any paper not filed by him, 
 six cents. 
 
 Certified copies of papers or proceedings for every 
 folio, sis cents. 
 
 Every other certificate, fifteen cents : but no certificate 
 to be allowed that a paper is a copy, f orthe copying which 
 he shall be paid. FUing note of issue in each cause, and 
 entering the cause on the calendar for hearing, for the 
 court and the parties, fifteen cents. 
 
 Entering any attachment or other process awarded by 
 the court or any amercement, twelve cents. 
 
 Entering by order of the court, every appearance . on 
 process for contempt, ten cents. 
 
 Searching the minutes, files, dockets or decrees, or 
 accounts of the court, for each year, six cents; but no 
 search to be allowed for when the pleading, entry or pro- 
 ceeding searched for, is to be engrossed or filed, or copied 
 at the request of a party and paid for, or to perfect the 
 proceedings of a court. 
 
 Entering the receipt of moneys deposited in court, put- 
 ting the same in a bank when required by the court and 
 entering the same in his bank book and in his account 
 with the court, fifty cents. 
 
 Purchasing stock, procuring a transfer thereof, and 
 entering the same to the credit of the cause or of the 
 party, for a sum not exceeding two hundred dollars, one 
 per cent and for any excess one-quarter of one per cent. 
 
 Making a transfer of stock by order of the court, one 
 dollar. 
 
 Receiving the interest on stock, entering it to the credit 
 of the cause or party, placing it in bank when required by 
 the court and entering it in his bank book, one per cent. 
 
 Putting out money by order of the court on mortgage 
 or any security other than stock, and examining into the 
 validity of the security, for every sum not exceeding two 
 hundred dollars, one per cent, and for any excess one- 
 quarter of one per cent. 
 
294 stage's MICHIGAN CHANCEKY PEACTICE AND ¥OBMS 
 
 Transferring a bond and mortgage, or security other 
 than stock, and entering the same in his accounts, one 
 dollar to be paid by the party to whom the transfer is 
 made. 
 
 Paying interest to a party and entering the same in 
 his accounts for any sum not exceeding two hundred dol- 
 lars, one-half of one per cent, and for any excess, one- 
 quarter of one per cent to be retained out of the interest 
 ' money. 
 
 For any other services relative to the receipt, safe 
 keeping, putting out, or taking any security, for money, 
 under the direction of the court not herein provided for, 
 stich allowance and compensation, and from such of the 
 parties as the cdurt may consider just and shall direct, 
 by an order for that purpose, after notice to the party to 
 be charged therewith. 
 
 For sealing evefy writ twelve cents. 
 
 Drawing every writ or process when required fifty 
 cents. 
 
 Entering the appearance of every defendant six cents. 
 
 For issuing a commission to take testimony fifty cents. 
 
 Entering every rule to produce witnesses, or to show 
 cause against publication twenty cdnts. 
 
 Receiving and marking every book, deed or paper car- 
 ried to his office by order of the court or agreement of the 
 pa,rties, for inspection or safe keeping thirteen cents. 
 
 Eeceiving and entering the return of any commission 
 thirteen cents. 
 
 For every notice given to the solicitor of a party of the 
 return of a commission to take an answer or to take 
 testimony twenty-five cents. 
 
 For docketing every decree on request twenty-five cents. 
 
 Attending court with the pleadings and papers or any 
 of them in any cause, by direction of the court, or on the 
 request of a party twenty-five cents. 
 
 For filing acknowledgment of satisfaction of any decree 
 and entering the same in the docket thereof twelve cents. 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FOBMS 295 
 
 Provided ttat in any suit not contested the register 's fees 
 shall not exceed ten dollars.^ 
 
 To the above must be added. 
 
 For taxation of a bill of costs twenty-five cents. 
 
 For swearing each witness where testimony is taken 
 in open court six cents. ^ 
 
 § 257. Sheriff's Fees in Chancery Cases. Serving sub- 
 poena to appear and answer seventy-five cents on one de- 
 fendant and twenty-five cents for each additional de- 
 fendant. 
 
 Travel to make service of any process or writ on usual 
 travelled route ten cents per mile going only to be com- 
 puted from the court house. 
 
 Taking bond of a defendant on arrest or in other cases 
 where authorized to take bond fifty cents. 
 
 For copy of every writ twenty-five cents. 
 
 Serving an attachment or execution for the payment 
 of money for two hundred and fifty dollars or less two 
 and one-half per cent and for the excess one and one 
 quarter per cent. 
 
 Advertising property for sale on execution if sale be 
 made one dollar, if execution stayed or settled after ad- 
 vertising and before sale fifty cents, but if there be sev- 
 eral executions against the same party in the hands of 
 the same sheriff but one advertising fee shall be allowed 
 and the sheriff shall elect on which execution he will re- 
 ceive it. 
 
 Certificate of sale of real estate fifty cents and for each 
 copy thereof twenty-five cents. 
 
 For drawing and executing deed on sale of real estate 
 one dollar. 
 
 Serving writ of possession putting any person in pos- 
 session of real estate and removing the occupant one dol- 
 lar besides travel fee. 
 
 For serving subpoena on witnesses fifteen cents for 
 each witness and travel for going only, where two or more 
 
 a— C. L., See. 11218. 3-r-C. L., Sec. 11215. 
 
296 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 witnesses live in the same direction travel fee shall be 
 charged only for the furthest.* 
 
 § 258. Fees of Circuit Court Commissioners in Chan- 
 cery Cases. For issuing a summons warrant or attadi- 
 ment for a party or witness to attend before him fifty 
 cents. 
 
 For adjourning a cause or proceeding assigned for 
 hearing on request fifty cents. If upon cause shown one 
 dollar. 
 
 For attending and hearing a motion for an injunction, 
 habeas corpus, special motion or any other matter re- 
 ferred to him, and making his decision and order on the 
 same, when contested three dollars : if not contested two 
 dollars. 
 
 For taking an account of what is due on every mort- 
 gage, and the security accompanying the same, if any, 
 and making his report thereof to the court when con- 
 tested six dollars, when not contested three dollars. 
 
 For drawing every report, and all schedules to be there- 
 to annexed in pursuance of an order of reference to him 
 (except in case of reference to compute amount due on 
 mortgage) twenty cents for each folio. 
 
 For copies of reports and all other proceedings fur- 
 nished on request ten cents for each folio. 
 
 For examining into circumstances of sureties, and oer- 
 tifying his opinion to the court, two dpUars. 
 
 For appointing any person to appear as next friend for 
 an infant fifty cents. 
 
 For inspecting and examining an infant or infants who 
 want guardians appointed, inquiring who are willing to 
 become guardians and into their competency, the pro- 
 posed security and the competency thereof and certify- 
 ing the facts to the court, three dollars. 
 
 For taking depositions of witnesses twenty cents for 
 each folio. 
 
 4 — C. L., Sec. 11222 as am. by 
 Act No. 181 Pub. Acts of 1903 p. 
 254. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND POEMS 297 
 
 For drawing every advertisement of public notice of 
 the sale of property to be sold by him, two dollars. 
 
 For attending at the time and place of sale and adjourn- 
 ing the same two dollars and ten cents per mile travel fees 
 both ways. 
 
 For attending and making the sale three dollars and 
 ten cents per mile travel fees both ways. 
 
 For executing the deed or deeds of real estate sold two 
 doUars for each deed necessarily executed. 
 
 For making his report of such sale, when required to 
 be made, and filing the same fifteen cents for each folio. 
 
 For settling the form of a deed to be executed under his 
 direction by a third person, under a decree or order one 
 dollar. 
 
 For superintending and certifying the payment of 
 money, when paid under his direction by order, and hav- 
 ing the same properly accepted two dollars ; but no fees 
 to be allowed for the payment of money arising from sales 
 to a party in the suit, or into court. 
 
 For taxing every bill of costs including the bill of the 
 officers of the court and reporting the amount taxed, if 
 approved, one dollar, if not approved fifty cents. 
 
 For every notice to any party, officer or person required 
 by law to be given twenty-five cents. 
 
 For administering an oath twenty-five cents. 
 
 For certifying each exhibit shown to a witness twenty- 
 five cents. 
 
 For every order for a commission to take testimony 
 fifty cents. 
 
 For settling and certifying interrogatories to be an- 
 nexed to a commission one dollar. 
 
 For every order for the examination of witnesses con- 
 ditionally or upon proceedings to perpetuate testimony 
 fifty cents. 
 
 For eadi day's attendance in taking such testimony 
 three dollars and for each folio, ten cents. 
 
 For making any order in any cause not particularly 
 specified fifty cents. 
 
 All legal rates for advertising in a newspaper paid by 
 bim ; and when money is ordered to be put out by a com- 
 
298 stage's MICHIGAN CHANCEET PBACTICE AND FORMS 
 
 missioner, and when an estate is sold by a commissioner 
 imder an order, the commissioner shall be allowed all 
 necessary disbursements actually paid by him and such 
 further allowance by way of commission as the court 
 shall direct after notice thereof to the party to be 
 charged therewith. This shall not apply to sales of mort- 
 gaged premises. 
 
 When a commissioner shall take an account of the 
 estate or of any administration thereof, or any account 
 between parties in trade, or any other account (except 
 upon mortgage) under any decree or order not included 
 in the foregoing provisions or when extra services shall 
 be rendered by a commissioner in taking or stating an 
 account, the court may make such further allowance be- 
 yond the fees herein specified as under the circumstances 
 may be just and reasonable ; upon notice to the party to 
 be charged therewith. 
 
 When any other person is authorized to perform any 
 of the duties hereinbefore mentioned to be done or per- 
 formed by a Circuit Court commissioner such person 
 shall be entitled to and receive the same fees as are here- 
 inbefore allowed to Circuit Court commissioners for like 
 services.* 
 
 § 259. Fees of Witnesses. For attending in any suit 
 or proceeding pending in a court of record one dollar for 
 each day and fifty cents for each half day. For attending 
 before any officer, person or board authorized to take the 
 examination of witnesses seventy-five cents for each day 
 and thirty-seven and one-half cents for each half day and 
 for traveling at the rate of ten cents per mile in coming 
 to the place of attendance to be estimated from the resi- 
 dence of the witness if within this state and from the 
 boundary line of the state which such witness passed in 
 coming if his residence be out of the state. 
 
 The secretary of state, auditor general, state treasurer, 
 attorney general, commissioner of the land office, any 
 clerk, register of deeds, county surveyor, or judge of pro- 
 bate attending on a subpoena requiring the same with 
 
 5— C. L., See. 11219. 
 
stage's MICHIGAN CHANOEEY PRACTICE AND FOBMS 299 
 
 bills, records or other written evidence shall be entitled 
 to one dollar per day and for traveling at the rate of six 
 cents per mile in coining and returning.^ 
 
 § 260. Fees of Register of Deeds. For entering and 
 recording any deed or other instrument eleven cents for 
 each folio. 
 
 For copies of any records or papers when required 
 seven cents for each folio. 
 
 Seal to exemplification twenty-five cents. 
 
 Searching the records and files in his oflSce six cents 
 for each year. 
 
 For filing notice of the pendency of a suit in chancery 
 and entering the same six cents. (This does not include 
 the recording.)^ 
 
 § 261. Fees for publishing legal notices, etc., in news- 
 papers. 
 
 For publishing notices of an application of any insol- 
 vent for six weeks and furnishing the evidence of such 
 publication, one dollar and sixty-seven cents, if published 
 ten weeks, two dollars.® 
 
 For publishing any other legal notice, or any order, 
 citation summons, or any other proceedings or advertise- 
 ment required by law to be published in any newspaper 
 the costs of publishing shall not exceed the rate of seventy 
 cents per folio for the first insertion, and thirty-five cents 
 per folio for each subsequent insertion.® 
 
 § 262. The term "folio" when used as a measure for 
 computing fees or compensation shall be construed to 
 mean one hundred words. Counting every figure neces- 
 sarily used as a word : and any portion of a folio, when 
 in the whole draft or paper there shall not be a complete 
 folio and when there shall be any excess over the last 
 folio shall be computed as a folio.*" 
 
 § 263. Prospective costs may be charged and taxed for 
 filing decree and for one execution." 
 
 6— C. L., Sec. 11221. 9— C. L., Sec. 11235. 
 
 7— C. L., Sec. 11227. 10— C. L., Sec. 11239. 
 
 8— C. L., Sec. 11233. 11— C. L., Sec. 11244. 
 
300 stage's MICHIGAN CHANCERY PBACTICB AND FOEMS 
 
 Whenever any allowance is made for drafting any 
 process, pleading or proceeding, it shall he made for only 
 one draft of the same although several may have been 
 issued and used.^^ 
 
 No record, writ, return, pleading, instrument or other 
 writing copied into any proceeding, entry, process or sug- 
 gestion, shall be computed as any part of the draft of 
 such proceeding, entry, process or suggestion." 
 
 The legal fees paid for certified copies of the deposi- 
 tions of witnesses, filed in any clerk's office, and of any 
 documents or papers, recorded or filed in any public 
 office, necessarily used on the trial of a cause or on the 
 assessment of damages shall be allowed in the taxation 
 of costs." 
 
 No attorney, solicitor or counsel in any cause shall be 
 allowed any fee for attending as a witness in such 
 
 Award and Taxation. 
 
 § 264. If the complainant in chancery shall dismiss his 
 bill or petition, or if the same shall be dismissed for want 
 of prosecution, the defendant shall recover his costs, ex- 
 cept in those cases where according to the practice of the 
 court costs would not be awarded against such complain- 
 ant or petitioner, upon a decree rendered on hearing the 
 cause.^® 
 
 In all other cases where no special provision shall be 
 made by law the costs of aU suits and proceedings in 
 chancery shall be paid by such party as the court shall 
 direct. ^^ 
 
 The register of the court shall have power to tax the 
 costs in a cause including his own fees therein, subject 
 to re-taxation by the court on motion of either party. 
 
 12— C. L., Sec. 11245. ford, 10 Mich. 454; Covell v. Moaely, 
 
 13— C. L., Sec. 11246. 15 Mich. 514; Port Huron v. Chad- 
 
 14— C. L., Sec. 11247. wick, 52 Mich. 320; Clark v. Eay- 
 
 15—0. L., Sec. 11248. mond, 27 Mich. 456; In Be. Col- 
 
 16— C. L., 11255. burn's Est., 153 Mich. 206. 
 17— C. L., 11256; Daniels v. Eisen- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 301 
 
 But on such re-taxation, no affidavit or objection which 
 was not presented to the register shall be heard or 
 allowed.^® 
 
 Notice of taxation must be the same as is required in 
 the supreme court,^* which must be a notice of not less 
 than four days with the addition of one day for every 
 hundred miles or fraction thereof of distance when the 
 solicitor resides in a different township, village or city 
 and the service is by maU.^* A notice is not invalid be- 
 cause given before the formal entry of the decree.^ ^ 
 
 § 265. A party dissatisfied with the taxation before 
 the register should specially object and except to his 
 decisions and must file objections and exceptions in writ- 
 ing thereto as the hearing on re-taxation must be con- 
 fined to those objections. No amendment to the bill of 
 costs can be made on re-taxation, all defects must be sup- 
 plied when the matter is before the register who may 
 grant an adjournment for that purpose, or the bill may be 
 withdrawn and a new bill afterwards presented on a new 
 notice.^ 
 
 § 266. "When there shall be charges in a bUl of costs 
 for the attendance of any witness, or for copies or exem- 
 plifications of documents or papers, or for any other dis- 
 bursements, except to officers for services rendered, such 
 charges for witnesses shall not be taxed without an affi- 
 davit stating the distance they respectively traveled and 
 the days they actually attended: and such charges for 
 copies shall not be taxed without an affidavit that such 
 copies were actually and necessarily used or necessarily 
 obtained for use nor shall such disbursements be allowed 
 without an affidavit specifying the items thereof par- 
 ticularly, nor unless they appear to have been necessary 
 and reasonable in amount; when in any case a party is 
 
 18 — Ch. Eule 23; See C. L., Sec. 22 — Sanford v. Eowley, 93 Mich. 
 
 205. 509 ; Sherman v. Cir. Judge, 52 Mich. 
 
 19— C. L., Sec. 11292. 574; Schmidt v . Cir. Judge, 136 
 
 20 — Supreme Court Eule 50. Mich. 658; JefErey v. Hursch, 58 
 
 21 — Murphy v. Mulvina, 108 Mich. Mich. 246; see opinion p. 263. 
 
 S47. 
 
302 stage's MICHIGAN CHANCEEY PEACTICE AND FOfiMS 
 
 entitled to charge Tsdtness fees and his bill of costs shall 
 contain an item or items for the attendance and travel of 
 the party himself as a witness, such item or items shall 
 be tax«d upon affidavit that the party was in attendance 
 upon the court for the time charged for the purpose of 
 being sworn as a witness and not to assist in the manage- 
 ment of the cause, and that the travel was for the pur- 
 pose of giving his evidence."^* 
 
 §267. "Every officer authorized to tax costs in any 
 court for services re-ndered in any proceeding authorized 
 by law, shall examine the bills presented to htm for taxa- 
 tion whether such taxation be opposed or not, and shall 
 be satisfied that the items charged in such bill are correct 
 and legal: and shall strike out all charges for services 
 which in his judgment were not necessary to be per- 
 formed."** 
 
 Costs in the Supreme Court are taxed by the clerk 
 thereof,^ ^ subject to motion for retaxation by the court.^^ 
 
 Notice of taxation must be accompanied by a copy of 
 the bill proposed to be taxed.*^ 
 
 BILL OF COSTS. 
 (Title of court and cause,.) 
 Bill of costs. 
 
 Solicitor's fee by rule $ 
 
 Sheriff's fees , serving subpoena . . . , 
 
 Sheriff's fees , serving injunction 
 
 Register fees as per itemized bill annexed 
 
 hereto 
 
 Witnesses: Residence. Days attendance Miles traTeled, 
 
 John Doe, Monroe, Mich. 3 44 7.40 
 
 (and so on with each witness.) 
 Circuit court commissioner, , see 
 
 items on report 
 
 Printer's bill , . . . 
 
 Register of deeds, ; search of records, 
 
 ; filing lis pendens, 
 
 23— C. L., Sec. 11297. 27— Supreme Court Rule 50, made 
 
 24^-C. L., Sec. 11296. applicable liy C. L., See. 11292 
 
 25 — Supreme Court Eule 50. 
 26 — Sanford v. Eowley, 93 Mich. 
 509. 
 
stage's michigak chancery practice and forms 303 
 
 Disbursements and expenses (giving items) 
 
 Total $ 
 
 AFFIDAVIT ANNEXED TO BILL OF COSTS. 
 State of Michigan, I 
 County of ^ **• 
 
 , of the of , in the county of 
 
 ., being duly sworn, says that he is , the com- 
 plainant (or defetidant), in the above entitled cause and that the 
 several items of disbursements charged in the annexed bill of 
 costs were actually and necessarily incurred and are reasonable 
 in amount and that the copies and exemplifications of documents 
 and papers therein mentioned were actually and necessarily used, 
 or actually and necessarily in good faith obtained for use and 
 that the witnesses therein mentioned respectively traveled the 
 distances set opposite their respective names and actually at- 
 tended court as such witnesses for the number of days mentioned 
 in the said bill (and that the said {complainant or defendant, 
 naming him] was in attendance upon the Court for the time 
 charged for the purpose of being sworn as a witness and not to 
 assist in the manatgement of the cause and that the travel was for 
 the purpose of giving his evidence). 
 
 (Jurat.) (Signature.) 
 
 To , 
 
 Solicitor for 
 
 Take notice, that the foregoing is a copy of the bill 
 
 of costs, proposed to be taxed, and that application will be made 
 to the register of said court to tax the same at his ofSee, on the 
 
 day of , A. D. 19. ., at o'clock 
 
 m. 
 
 Dated this day of , A. D., 19. .. 
 
 Solicitor for 
 icnigan, ( „„ 
 
 County of 
 
 State of Michigan, ] 
 
 . , being duly sworn, says that on the day of 
 
 , A. D. 19.., at o'clock m., he 
 
 served a copy of the above bill of costs, and notice of application 
 
 for taxation upon , solicitor for the , by 
 
 delivering the same to him personally (or, as the case 
 
 may be). 
 
 Sworn and subscribed before me, this day of 
 
 , A. D. 19... 
 
 County, Michigan. 
 
 I hereby tax the foregoing bill of costs at the sum of 
 
 dollars. , 
 
 Register in Chancery. 
 Dated, , Mich., , 19. .. 
 
304 stage's MICHIGAN CHANCEBY PEACTIOE AND FOEMS 
 
 RE&ISTER'S ITEMIZED BILL OP COSTS. 
 
 (Title of court and cause.) 
 
 Register's Itemized Bill of Costs. 
 
 Subpoena 50 
 
 Seal 12 
 
 Return 
 
 copies, each 
 
 Injunction 50 
 
 Seal 12 
 
 Return 
 
 copies, each 
 
 Docketing cause 25 
 
 Indexing same 10 
 
 Issuing commission to take testimony 50 
 
 Entering return to commission 13 
 
 Entering rules, each 20 
 
 Filing papers, each 06 
 
 Entering appeaz'ance of defendant 06 
 
 Drawing order of reference 
 
 Entering order of reference 
 
 Certified order of reference 
 
 Drawing folios, orders, decrees, 
 
 per folio 13 
 
 Entering folios, orders, decrees, 
 
 per folio 10 
 
 Examining and signing decree 50 
 
 folios, copies of papers and proceedings, 
 
 per folio 06 '. 
 
 certificates, each 15 
 
 affidavits, each . . , 25 
 
 Entering cause on calendar term, 
 
 , each 15 
 
 Entering process 12 
 
 Papers to court, terms, each 25 
 
 Docketing decree 25 
 
 Entering satisfaction of decree 12 
 
 Entering order for subpoena 
 
 Entering order, pro eonfesso 
 
 Entering order confirming report of sale 
 
 Enrollment 
 
 Taxing costs 25 
 
 Total 
 
stage's MICHIGAN CHANCEKY PRACTICE AND FORMS 305 
 
 Security for Costs. 
 
 §268. By Non-Resident Complainant. "In all cases 
 where the complainant is not a resident of this state, be- 
 fore process shall issue, a bond in the penal sum of one 
 hundred dollars, with one or more sufficient sureties, shall 
 be filed with the register, to be approved by him, condi- 
 tioned to pay all such costs as shall be decreed against 
 the complainant in such case ; or there shall be endorsed 
 on the bill a general undertaking, by one or more respon- 
 sible sureties, to pay all costs for which the complainant 
 may become liable, and the register shall indorse his ap- 
 proval of such surety or sureties. ' ' ^ 
 
 Foreign corporations must give security under this 
 rule.^ 
 
 The approval by the register is not a condition pre- 
 cedent to the liability of the sureties.^ 
 
 If the case is actually commenced and process issued 
 without such security being given the proper practice >is 
 to move the court that the case be dismissed in which 
 case if the security be furnished before the motion is 
 heard the motion will be denied, it being the usual prac- 
 tice to allow such security to be subsequently filed nunc 
 pro tune * but in such cases the court may impose costs of 
 the motion on the complainant. 
 
 § 269. In Other Cases. "The court in which any civil 
 action shall be pending, may in all cases, when it shall 
 appear reasonable and proper, require the plaintiff to 
 give suflScient security for all such costs as may be 
 awarded against him therein. ' ' ^ 
 
 Although this statute by its terms applies to cases at 
 law, the court of chancery has the same power under like 
 circumstances and in fact it is often so exercised without 
 question. To obtain such an order the defendant must 
 make a special motion supported by affidavit including 
 facts showing a complete defence on the merits. 
 
 1 — Ch. Rule 3. 4 — Parks v. Goodwin, 1 Doug. 
 
 2— C. L., See. 10466. Mich. 56; McGill v. Beitner, 114 
 
 3 — Skinner v. Lucas, 68 Mich. Mich. 646. 
 
 424. 5— C. L., Sec. 9992. 
 
306 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 The action of the court as to requiring security for 
 costs from resident complainants is purely discretionary 
 and the court will rarely dismiss a complainant's bill for 
 the sole reason that he is unable to furnish such security 
 especially where it appears from the bill and answer that 
 there is a probability that he is entitled to some relief if 
 not to the entire relief prayed. After having made such 
 an order the court may in its discretion for cause shown 
 modify or rescind it. 
 
 The court in making the order will specify the manner 
 in which the security is to be given and the order must be 
 followed in this respect. If not filed pursuant to the 
 order the defendant may move to dismiss the bill, which 
 motion also appeals to the discretion of the court. 
 
 MOTION FOR SECURITY FOR COSTS. 
 (Title of court and cause.) 
 
 Of the day of , A. D., 19. .. 
 
 Now comes the above named defendant, C. D., by , 
 
 his solicitor, and moves the court now here for an order that 
 the complainant file security for costs in this cause by a short 
 day to be fixed by this court, and that in default thereof the 
 said bill be dismissed with costs to the said defendant for the 
 reason that the said complainant is a non-resident of this state 
 of Michigan and was such non-resident at the time when the said 
 bill was filed and this suit was commenced. 
 
 This motion is founded on the affidavit of here- 
 with filed, and on the records and files of this court in this cause, 
 and the rules and practice of this court. 
 
 Solicitor for Defendant, C. D. 
 
 OTHER CASES. 
 (Title of court and cause.) 
 
 Of the day of , A. D. 19. .. 
 
 Now comes the above named mentioned defendant, C. D., by 
 
 , his solicitor, and moves the court now here for an order 
 
 that the above named complainant file security for costs in this 
 cause by a short day to be fixed by the court, or !n default thereof 
 that his bill of complaint be dismissed with costs to this de- 
 fendant, for the reason that the said complainant has since the 
 commencement of this suit removed out of the state of Mich- 
 igan and has ceased to reside therein, (or, is pecuniarily irre- 
 sponsible and has no property within this state liable to execu- 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 307 
 
 tion), and that this defendant has a good, equitable defence to 
 the said bill on the merits thereof. 
 
 This motion is founded on the affidavit of on file, 
 
 and on the records and files of this court in this cause and on 
 the rules and practice of the court. 
 
 Solicitor for Defendant, C. D. 
 
 AFFIDAVIT FOR SECURITY FOR COSTS. 
 (Title of court and cause.) 
 County of , ss. : 
 
 C. D., the defendant, {or, one of the defendants) in the above 
 entitled cause, being duly sworn, says that he knows the com- 
 plainant in the said cause and that the said complainant * does 
 
 not reside in the state of Michigan, but resides at , in 
 
 the state of , and that the said complainant did not 
 
 reside in this state at the time of the commencement of this suit. 
 
 CD. 
 (Jurat.) 
 
 (In case the complainant has removed from this state since 
 the commencement of the suit after the * proceed as follows:) 
 has since the commencement of this suit removed from the state 
 of Michigan and ceased to be a resident of this state, and has, 
 as this deponent is informed and believes, become a resident of 
 
 , in the state of 
 
 CD. 
 (Jurat.) 
 
 AFFIDAVIT TO OBTAIN SECURITY FOR COSTS IN 
 OTHER CASES. 
 (Title of court and cause.) 
 County of , ss. : 
 
 C D., of , the defendant (or, one of the defendants) 
 
 in the above entitled cause, being duly sworn, says that he 
 
 has fully and fairly stated the case in this cause to , 
 
 his counsel therein, who resides at , and that he has 
 
 a good and equitable defence to the bill of complaint filed in 
 this cause, as he is advised by his said counsel after such state- 
 ment so made as aforesaid and verily believes to be true, (if an 
 answer has ieen filed state, and as set forth in the answer of 
 this defendant to the said bill; if no answer has been filed state 
 generally in what equities such defence consists). 
 
 And this deponent further says that he has made diligent 
 search and inquiry as to the pecuniary circumstances of the said 
 complainant, and that from such search and inquiry he has 
 been unable to ascertain that the said complainant has any 
 property, real or personal, within this state subject to execu- 
 tion, or from which a decree or judgment for costs could be 
 
308 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 collected, and he verily believes that the said complainant has 
 no such property liable to execution within this state. 
 
 CD. 
 (Jurat.) 
 
 NOTICE OP MOTION. 
 (Title of court and cause.) 
 To , Esq., Solicitor for Complainant. 
 
 Sir : Please take notice that on the day of , 
 
 A. D., 19 . . , at o'clock in the noon, {or, at the 
 
 opening of the court on that day, or as soon thereafter as 
 counsel can be heard), a motion whereof the annexed {or, fore- 
 going) is a copy, will be brought on to be heard in the said 
 
 court at the court house in the city of , in said county 
 
 of , and that copies of all the affidavits whereon said 
 
 motion is founded are hereto annexed and herewith served. 
 
 Dated this day of , 19 . . . 
 
 Yours, etc. 
 
 J 
 
 Solicitor for Defendant. 
 
 ORDER FOR SECURITY FOR COSTS. 
 (Title of court.) 
 (Title of cause.) 
 (Gaptiori.) 
 On this cause on reading and filing the affidavit of C. D., 
 
 the above named defendant, and on motion of , Esq., 
 
 solicitor for the said defendant, and , Esq., of counsel 
 
 for the complainant, having been heard in opposition thereto: 
 
 It is ordered that the said complainant do, within 
 
 days from the date hereof, file with the register of this court 
 
 a bond in the penal sum of dollars, with sufficient 
 
 surety to be approved by the said register, conditioned to pay 
 on demand all costs that may be adjudged to be paid by the 
 complainant to the defendant in this cause, and in default there- 
 of that the bill of complaint in this cause be dismissed with costs. 
 
 Circuit Judge. 
 
 SECURITY FOR COSTS— GENERAL UNDERTAKING. 
 
 We, W. D. M., as principal, and T. J. L. and W. B. B., as 
 sureties, undertake and agree to pay to the defendants named 
 in the within bill of complaint and to each of them all such 
 costs as may be ordered or decreed to be paid by the complain- 
 ant in the said bill to the defendants therein or to any of them, 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 309 
 
 ipectively, in the cause commenced by tl 
 Dated this day of , 19 . 
 
 respectively, in the cause commenced by the filing of the said 
 biU. 
 
 W. D. M., 
 T. J. L., 
 W. B. B. 
 I hereby approve of the sureties in the foregoing undertaking. 
 
 Dated this day of , 19 . . . 
 
 H. T., 
 Register in Chancery. 
 
 BOND FOR SECURITY FOR COSTS. 
 
 Know all men by these presents that we, A. B., of (state 
 residen<:e), as principal, and C. D., of (state residence), as 
 surety, are held and firmly bound unto E, F. in the sum of one 
 hundred dollars, lawful money of the United States, to be paid 
 to the said E. F., his executors, administrators, or assigns, to 
 which payment well and truly to be made we bind ourselves, 
 our heirs, executors and administrators, jointly and severally, 
 firmly by these presents. 
 
 Sealed with our seals, and dated this day of 
 
 , A. D., 19.,. 
 
 Whereas, the above bounden A. B. has filed his bill of com- 
 plaint in the circuit court for the county of : In Chan- 
 cery, against the said E. F., as defendant: 
 
 Now therefore the condition of this obligation is such, that 
 if the said A. B. shall weU and truly pay to the said E. F. on 
 demand aU costs that may be decreed to be paid by him to the 
 said E. F. in the suit commenced by the filing of the said bill, 
 then this obligation to be void, otherwise of force. 
 
 A. B. (S. L.) 
 C. D. (S. L.) 
 
 I approve the foregoing bond in form and substance and the 
 surety thereto. 
 
 Dated this day of , 19. .. 
 
 Register in Chancery. 
 
 NOTICE OF FILING BOND. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Defendant. 
 
 Sir: Please take notice that a bond in the penal sum of 
 dollars for security for costs in the cause has this day 
 
310 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 been filed with the register of this court with and 
 
 as sureties. 
 
 Dated 19... 
 
 Yours, etc., 
 
 ■•) 
 
 Solicitor for Complainant. 
 
 EXCEPTION TO SURETIES ON BOND. 
 (Title of court and cause.) 
 
 Now comes the above named defendant, C. D., by 
 
 hi& solicitor, and excepts to the sufELcieney of the sureties in the 
 bond for costs filed in this cause. 
 
 Dated this day of , 19 . . . 
 
 J 
 
 Solicitor for Complainant. 
 
 NOTICE OF EXCEPTION TO SURETIES. 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Complainant. 
 
 Sir: Please take notice that the sufSciency of the sureties in 
 
 the bond for costs filed in this cause is excepted to 
 
 Dated ,19... 
 
 Yours, etc., 
 
 > 
 
 Solicitor for Defendant. 
 
 AFFIDAVIT OF JUSTIFICATION BY SURETIES. 
 (Title of court and cause.) 
 (Venue.) 
 
 W. L., of and D. C. L., of , being severally, 
 
 duly sworn, depose and say each for himself and not the one for 
 the other, that is to say, the said W. L. for himself says that he 
 
 is a resident of the of , in the county of 
 
 , and state of Michigan, and that he is worth the sum 
 
 of dollars (should be double the penalty of bond) in 
 
 property liable to execution in this state over and above all 
 just debts, liabilities and exemptions, and the said D. C. L. for 
 himself says (same form as above). 
 
 (Signatures.) 
 (Jurat.) 
 
 CD. 
 
 Motions and Petitions. 
 
 §270. Motions and petitions are interlocutory appli- 
 cations made to the court or the judge thereof, for inter- 
 ference in matters arising during the progress of a cause 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOKMS 311 
 
 and may relate to the process of the court, or to the 
 proceedings in the cause, or to the protection of the prop- 
 erty which is the subject matter of the suit pendente lite, 
 or to any matter in which the interference of the court 
 or of a judge is required before a decree or order or in 
 consequence of a decree or order. Such applications are 
 extremely various and numerous and it would be impos- 
 sible in this work to specify all the occasions for them that 
 might arise. Such applications may be made to the court, 
 or, except where otherwise provided by statute or rule, 
 to the judge at chambers and in some cases to a Circuit 
 Court commissioner.^ 
 
 There is no very distinct line of demarkation between 
 matters which should be brought before the court by 
 petition and those in which a motion is sufficient. As a 
 general rule it may be said that where a long or intricate 
 statement of facts is required or where the order sought 
 to be obtained is of considerable importance the applica- 
 tion should be by petition while in other cases a motion 
 is sufficient.* 
 
 In some cases a petition is made necessary by statute 
 or rule, thus an application for the appointment of a next 
 friend for an infant complainant in a suit to be com- 
 menced must be by petition ^ and also an application for 
 a guardian at litem for an infant defendant,* and so must 
 any application by one not a party to the suit but who is 
 interested therein for leave to intervene for any purpose.'' 
 
 § 271. Motions are said to be general or special. Gen- 
 eral, when the order applied for is one to which the party 
 is entitled to as a matter of course and to which no oppo- 
 sition can be made which is called a common order. And 
 special when the. order applied for is one which the court 
 may either grant or refuse in the exercise of its 
 discretion,* 
 
 1—2 Dan. Ch. PI. & Pr. 1587; 2 4— C. L., See. 10462. 
 
 Barb. Ch. Pr. 564. 5— Brien v. Paul, 3 Tenn. Ch. 361 ; 
 
 2—2 Dan. Ch. PI. & Pr. 1587-8; Delglish v. Jarvie, 2 Mae. & G. 231; 
 
 Jones V. Eoberts, 12 Sim. 189. Speak v. Eausom, 2 Tenn. Ch. 210. 
 
 3— C. L., Sec. 10457. 6—2 Dan. Ch. PI. & Pr. 1589; see 
 
312 stage's MICHIGAN CHANCEKY PRACTICE AND FOKMS 
 
 Common orders may be entered in the common order 
 book and signed by the solicitor for the moving party, or 
 may be filed with the register of the court except in cases 
 where a statute requires them to be entered^ Such 
 orders are entered or filed by the moving party "without 
 previous notice to the adversary but at the peril of the 
 mover that he is absolutely entitled to the order. 
 
 § 272. It is also provided by rule that all petitions and 
 special motions (except motions for continuance and mo- 
 tions to strike from calendar) shall be in writing and 
 signed by the solicitor or counsel of the moving party 
 and shall set forth briefly but distinctly the grounds on 
 which the same are founded, and, with the affidavits sup- 
 porting the same, shall be filed in the office of the register 
 of the court on or before the day on which they are noticed 
 for argument.^ 
 
 § 273. Notice of the time and place of the argument 
 of petitions and special motions (except motions for con- 
 tinuance and to strike cases from the calendar) together 
 with a copy thereof and copies of all the affidavits on 
 which they are based or supported, shall be served on the 
 solicitor for the opposite party at least four days before 
 the time noticed for hearing the same. Provided that for 
 good cause the court may hear such argument on shorter 
 notice.® 
 
 The copies must be true and complete. The omission 
 of the jurat renders the copies essentially defective.^" 
 
 Motions and petitions shall be argued on the day for 
 which they are noticed, if the party has an opportunity 
 to be heard on that day, unless the court, (or Circuit 
 Court commissioner in a matter pending before him) 
 
 Law Eule 11 as made applicable to also made applicable to Chancery 
 
 chancery by Ch. Bule 15. requiring an additional day's notice 
 
 7 — Law Eule 11 made applicable for every 100 miles or fraction there- 
 to Chancery by Ch. Eule 15. of of distance when service is made 
 
 8 — ^Law Eule 19a made applicable by mail, 
 
 to Chancery by Ch. Eule 15. ' 10— Cheesebro v. Cheesebro, 21 
 
 9 — Law Eule 19b made applicable Mich. 506. 
 by Ch. Eule 15; see Law Eule 29b, 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 313 
 
 shall otherwise direct. If there is not sufficient time to 
 finish the business noticed for any day it may be con- 
 tinued from day to day until it is completed; or it may be 
 adjourned to some subsequent day. And motions and 
 petitions which cannot be heard on the day for which they 
 are noticed shall, in the absence of special order stand 
 continued from day to day without any special con- 
 tinuance. 
 
 Not more than one counsel on each side shall be heard 
 on the argument of any motion or petition, the mover 
 being entitled to open the argument and to reply to the 
 argument of the opposite counsel." 
 
 A deposition taken under the general statute for taking 
 depositions may be used on the argument of a motion.^^ 
 
 Whenever a stay of proceedings may be necessary in 
 order to make a special motion, the judge may grant an 
 order for that purpose; and service of such order, with 
 copies of the affidavits on which it is grounded, and notice 
 of the motion, shall operate as a stay of proceedings until 
 the order of the court is had in the premises, unless the 
 judge shall in the meantime supersede or set aside such 
 order. But the proceedings shall not be stayed for a 
 longer time than to enable the party to make his motion 
 according to the practice of the court and if made, until 
 the decision of the court thereon.^ ^ 
 
 § 274. Motions for continuance must be made on the 
 first day in term and not afterward unless a sufficient 
 excuse for the delay is shown. On a second application 
 for a continuance the moving party must state the facts 
 which he expects to prove by the absent witness and, with 
 particularity, the diligence which he has used to procure 
 his attendance. If the opposite party admits that the 
 absent witness would, if sworn, testify to the facts stated 
 in the affidavit the motion for a continuance shall be 
 denied unless the court, for the furtherance of justice, 
 shall deem a continuance necessary. 
 
 11 — ^Law Eule 19c, d, made appli- 13 — Law Eule 20 made applicable 
 
 cable to Chancery by Ch. Eule 15. by Chancery Eule 15. 
 12— C. h., Sec. 10136. 
 
314 stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 
 
 If the party receiving notice of trial shall serve a notice 
 on the opposite party that he will move for a continuance 
 of the cause at the term for which it is noticed together 
 with a copy of the affidavits on which he intends to found 
 his motion he shall not be liable to such party for any 
 costs of preparing to try the cause accruing after the 
 service of such notice and aflfidavits in case a continuance 
 is granted thereon, excepting such as may be unavoidable. 
 
 When a continuance is granted on payment of costs 
 such costs may be taxed summarily by the court, and on 
 being taxed shall be paid on demand of the party, his 
 agent or solicitor, and if not so paid on affidavit of the 
 fact such continuance may be vacated, or the court may 
 grant an attachment therefor with the accruing costs.^* 
 
 This rule only applies to such chancery cases in which 
 the parties have elected that the witnesses should be 
 examined in open court as in a suit at law. 
 
 The granting of a motion for a continuance is wholly 
 within the discretion of the trial court.^" 
 
 Counter affidavits in opposition to a motion or petition 
 may be read at the hearing and argument without copies 
 having been previously served.^* 
 
 § 275. Affidavits. Affidavits to be used in a cause must 
 be entitled in the court and cause or they cannot be read.^'' 
 But if it be attached to a properly entitled paper to which 
 it refers it will be deemed to have adopted the title of the 
 one properly entitled.^* It was formerly held that an 
 affidavit must be entitled with all the names of all the 
 complainants and defendants if more than one of either,^' 
 but the new rule appears to have changed this by provid- 
 ing that in cases where there are two or more complain- 
 ants or two or more defendants it shall be sufficient in 
 entitling papers to name the first named complainant and 
 
 14 — Law Eule 22 applicable to Mich. 223; lioth v. Loth, 116 Mich. 
 
 Chancery by Ch. Eule 15. 634. 
 
 15 — ^Bussey v. Bussey, 71 Mich. 17 — Whipple v. Williams, 1 Mich. 
 
 504; WiBkelmair v. Daiber, 92 Mich. 115. 
 
 621 ; Geddis v. Wayne Cir. Judge, 18 — King v. Harrington, 14 Mich. 
 
 151 Mich. 122. 532 ; Beebe v. Morrell, 76 Mich. 114. 
 
 16 — Lathrop v. Hicka, 2 Doug. 19— Arnold v. Nye, 11 Mich. 456. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 315 
 
 the first named defendant with the usual indication of 
 other parties provided there be added the official number 
 of the cause, provided further that in all orders and 
 notices required to be published the full names of all par- 
 ties shall appear in the title of the cause.^" 
 
 §276. The venue of an affidavit is an essential part 
 thereof,^^ it consists of the name of the county in which 
 the affidavit is sworn to. The word " sworn to before me ' ' 
 should appear in the jurat.^^ The affidavit should first 
 be entitled with the title of the court and the title of the 
 cause then follows the venue, then the name and residence 
 of the affiant, then the stating part of the affidavit contain- 
 ing the matters sworn to followed by the signature of the 
 affiant and lastly the jurat signed by the officer before 
 whom it is sworn. 
 
 An affidavit cannot be sworn to before the solicitor of 
 the party on whose behalf it is made nor before the solici- 
 tor of record of either of the parties to the cause ^^ but 
 the defect may be waived.^^ 
 
 The form of the oath administered is "you do solemnly 
 swear that the contents of this affidavit by you subscribed 
 are true, so help you Grod." 
 
 Affidavits may be sworn to before any justice, judge 
 or clerk of any court of record, Circuit Court commis- 
 sioner, notary public, or justice of the peace or any regis- 
 ter in chancery or before any commissioner appointed by 
 a court of record to take affidavits or depositions in any 
 cause.^^ 
 
 § 277. In cases where by law the affidavit of any per- 
 son residing in another state of the United States or in 
 any foreign country is required, or may be received in 
 judicial proceedings in this state to entitle the same to be 
 read it must be authenticated as follows : 
 
 20 — Law Eule 37c made applicable 23 — G. L., See. 2640 j Bradley v. 
 
 by Ch. Eule 15. Andrews, 51 Mich. 100. 
 
 21— Cook Y. Staats, 18 Barb. 407; 24 — Germaine v. City of Muske- 
 
 Lane v. Moss, 6 How. 394; see SuUi- gon, 105 Mich. 213. 
 
 van V. Hall, 86 Mich. 7. 25— C. L., Sees. 10208-10209. 
 
 22— Smart v. Howe, 3 Mich. 590. 
 
316 stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 
 
 First. It must be certified by the consul general, 
 deputy consul general or some consul or deputy consul 
 of the United States resident in such foreign country, to 
 have been taken and subscribed before him specifying 
 the time and place where taken and have the consular 
 seal attached, or 
 
 Second. It must be certified by some judge of a court 
 having a seal to have been taken and subscribed before 
 him specifying the time and place where taken. 
 
 Third. The genuineness of the signature of such 
 judge, the existence of the court and the fact that such 
 judge is a member thereof must be certified by the clerk 
 of the court under the seal thereof. 
 
 Fourth. If such affidavit be taken in any other of the 
 United States or in any territory thereof it may be taken 
 before" a commissioner duly appointed and commissioned 
 by the governor of this state to take affidavits therein, or 
 before any notary public or justice of the peace autho- 
 rized by the laws of such state or territory to administer 
 oaths therein. The signature of such notary public or 
 justice of the peace, and the fact that at the time of the 
 taking of such afiidavit the person before whom the same 
 was taken was such notary public or justice of the peace, 
 shall be certified by the clerk of any court of record in 
 the county where such affidavit shall be taken under the 
 seal of said court.^^ 
 
 § 278. It has been held that an affidavit showing on its 
 face by whom it was made and that it was duly sworn to 
 is valid even if it was not actually signed by the affiant *'' 
 and when the signature of the officer to the jurat is 
 omitted he may be allowed to sign the jurat nimc pro 
 tunc.^^ 
 
 Where an affidavit is made for the purpose of giving 
 
 26 — C. L., Sec. 10144, as am. by hue, 40 Mich. 196; Wynkoop v. Cir. 
 
 Act No. 191 Pub. Acts of 1909 p. Judge, 113 Mich. 381. 
 
 365. 28 — ^Dickinson v. SimondBon, 25 
 
 27 — Dickinson v. Simondson, 25 Mich. 113; Bradley v. Andrews, 51 
 
 Mich. 113; Bloomingdale v. Chitten- Mich. 100. 
 den, 75 Mich. 305; Merrick v. Ma- 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 317 
 
 the court jurisdiction to issue process or make an order 
 it should state the necessary facts positively and circum- 
 stantially. 
 
 §279. Petitions are motions in more formal shape. 
 In a petition all the facts necessary to enable the court to 
 distinctly ascertain from its perusal exactly the circum- 
 stances on which its intervenHon is required and to deter- 
 mine what order should be made thereon, should be fully 
 set forth, such facts as are not within the actual knowl- 
 edge of the petitioner should be stated on information and 
 belief as in a bill and the petition in that case should be 
 accompanied by affidavit or affidavits of persons know- 
 ing the facts. Petitions should be verified in the same 
 manner as sworn biUs and answers. 
 
 In all cases where it is to be apprehended that the 
 prayer of the petition will be contested it is advisable 
 that it should be supported by affidavit of persons having 
 knowledge of facts material to the subject matter thereof. 
 
 § 280. A petition is entitled in the court and cause is 
 addressed to the court, states the name of the petitioner 
 the facts upon which the prayer is founded. With a 
 prayer for the order to which the petitioner deems him- 
 self entitled and it is usually good practice to add a 
 prayer for general relief as in a bill. It should be signed 
 and sworn to by the petitioner and in good practice is also 
 signed by his solicitor or counsel. 
 
 It has been held, however, that a petition which refers 
 to affidavits annexed thereto which it prays may be 
 taken as a part of the petition, need not itself be sworn 
 to but the better practice is that all petitions should be 
 verified by the petitioner. 
 
 FORM OF PETITION. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of A. B., the complainant (or, C. D., the defend- 
 ant, or, one of the defendants, as the case may be) in the above 
 entitled cause, respectfully shows unto the court : 
 
318 stage's michigabt chancery peactice and poems 
 
 That (state the facts on which the prayer of the petition is 
 founded). 
 
 (If the petition he lengthy it should be divided into para- 
 graphs, numbered as in the case of a bill.) 
 
 Prayer. Youp petitioner therefore prays (state' the special 
 relief prayed for). 
 
 And that your petitioner may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your petitioner will ever pray, etc. 
 
 Solicitor for Petitioner and of Counsel. 
 
 (Add verification in the same form as to a bill.) 
 
 NOTICE OF MOTION. 
 (Title of court and cause.) 
 Of the day of 19. .. 
 
 Now comes the above named complainant (or, defendant or^ 
 if one of several complainants or defendants, A. B., one of 
 the above named complainants, or, defendants, as the case may 
 be), and moves the court now here for an order that (state 
 the order applied for). 
 
 This motion is founded upon the records and files of this 
 court in this cause, and upon the affidavit (or affidavits of L. M. 
 and N. 0.) herewith filed, and upon the rules and practice of 
 this court (if upon any provision of statute, add and upon the 
 statute in like case provided). 
 
 Solicitor for Complainant. 
 
 (or, for Defendant, or as the case may be.) 
 
 NOTICE OF MOTION OR PETITION. 
 
 (Title of court and cause.) 
 To , 
 
 Solicitor for Complainant {or, Defendant, or as the case may 
 he). 
 
 Sir : Please take notice that on the day of .• , 
 
 A. D. 19 . . , at the coming in of the court on that day, or so 
 
 soon thereafter as counsel can be heard {or, at o'clock 
 
 in the noon of that day), at the court house in the 
 
 of , in said county of , I shall make 
 
 and submit unto the above named court the motion {or, petition) 
 whereof the annexed is a copy, and that annexed hereto and 
 
stage's MICHIGAN CHANCEEY PRA.CTICE AND FOBMS 319 
 
 herewith served are copies of all the affidavits filed in support 
 of the said motion (or petition). 
 
 Dated this day of , 19. .. 
 
 Yours, etc., 
 
 Solicitor for Defendant, C. D. 
 (or as the case may he.) 
 
 ORDEK ON MOTION OR PETITION NOT CONTESTED. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the motion (or, petition) 
 of the above named complainant (or, defendant, as the case 
 may be) for an order that (state object of motion or petition), 
 and the court having heard the said motion {or, petition) and 
 the affidavits filed in support thereof, and on reading and filing 
 due proof of the service of a copy of said motion {or, petition) 
 and copies of the said affidavits, together with due notice of 
 
 the hearing thereof, upon , solicitor for the above 
 
 named defendant, {or, complainant, as the ease may be): 
 
 On motion of , solicitor for the above named com- 
 plainant {or petitioner, or, defendant, as the case may be), and 
 no person appearing iu opposition thereto: It is ordered and 
 adjudged, and the court now here doth order and adjudge, that 
 the said motion {or, the prayer of the said petition) be granted, 
 and that (state the relief granted; and if costs are awarded add), 
 and that the said complainant (or, petitioner, or, defendant, 
 
 as the case may be) recover of the said costs of this 
 
 motion to be taxed {or, hereby taxed at the sum of 
 
 dollars), and that the said complainant {or, petitioner, etc.) 
 have execution thereof. 
 
 7 
 
 Circuit Judge. 
 
 ORDER ON MOTION OR PETITION CONTESTED. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the motion {or, petition) 
 of the above named complainant {or, defendant, as the case 
 may be) for an order that (state object of motion or petition), 
 and the court having heard the said motion {or, petition) and 
 the affidavits filed in support thereof, and also the affidavits in 
 opposition thereto, and , of counsel for the said com- 
 plainant {or, petitioner, or defendant, as the case may be) hav- 
 iag been heard in support thereof, and , of counsel 
 
320 stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 
 
 for defendant (or complainant, as the case may be) having been 
 heard in opposition thereto : 
 
 And upon due consideration thereof: It is ordered and ad- 
 judged, and the court now here doth hereby order and adjudge, 
 that the (if the motion or petition he granted in whole or in 
 part, state the relief granted; and if denied state that the sard 
 motion (or, petition) be denied, and if costs are awarded add), 
 
 and that the said pay to the said costs of 
 
 the said motion (or, petition) to be taxed (or, hereby taxed at 
 
 the siun of dollars) , and that the said have 
 
 execution thereof. 
 
 f 
 
 Circuit Judge. 
 
 OEDER BY CONSENT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard on the motion (or petition) 
 of the above named complainant (or, defendant, as the case 
 may be) for (state object of motion or petition), and the said 
 complainant and defendant being present in court by their re- 
 spective solicitors: 
 
 On motion of , Esq., solicitor for the above named 
 
 complainant (or, petitioner, or, defendant, as the case may be), 
 
 and , Esq., solicitor for the above named defendant (or, 
 
 complainant) being present and consentiag thereto : It is 
 ordered and adjudged, and the court now here doth order and 
 adjudge (state the matter of the order). 
 
 • ) 
 
 Circuit Judge. 
 
 MOTION THAT COMPLAINANT ELECT BETWEEN LAW 
 AND CHANCERY. 
 
 (Title of court and cause.) 
 
 Now comes the above named defendant, C. D., and moves the 
 court now here for an order that the complainant in this cause 
 elect whether he will proceed in this court in the above entitled 
 cause*, or in the suit at law comemnced by the said complainant, 
 as plaintiff, against the said defendant in the circuit court for 
 
 the county of , and that if he shall elect to proceed in 
 
 this court that the proceedings in the said suit in the circuit 
 
 court for the county of , be stayed by injunction, and 
 
 that in default of such election within the time limited by 
 the court, or if the said complainant shall elect to proceed in 
 the said suit at law, then that this cause be dismissed with costs 
 t (as to the defendant, C. D.), and for such other order or relief 
 as shall be agreeable to equity. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 321 
 
 This motion is founded on the affidavit of , on file, 
 
 and on the pleadings in the causes above mentioned respectively. 
 
 Solicitor for Defendant, C.'d. 
 
 AFFIDAVIT FOR MOTION. 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 C. D., the defendant in the above entitled cause, being duly 
 sworn, says that the said complainant is prosecuting this de- 
 ponent in a suit at law in the circuit court for the county of 
 
 , for the same matter and cause of action as that set 
 
 forth in his bill of complaint against this deponent in the above 
 entitled cause, whereby this deponent is doubly vexed, and this 
 deponent further says that he has filed his answer in the above 
 
 entitled cause in this court on the day of 
 
 A. D. 19... 
 
 (Signature.) 
 (Jurat.) 
 
 ORDER THAT COMPLAINANT ELECT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and filing the affidavit of , on file, and 
 
 the pleadings in the case of A. B., plaintiff, v. C. D., defend- 
 ant, in the suit at law commenced in the Circuit Court for the 
 
 county of , and the bill and answer in this cause : On 
 
 motion of , Esq., solicitor and of counsel for the above 
 
 named defendant, C. D., and Esq., of counsel for the 
 
 complainant, having been heard in opposition thereto (or, and 
 on filing due proof of service of notice of such motion on the 
 solicitor for the complainant and no one appearing in opposition 
 thereto) : It is ordered that the complainant in this case do, 
 
 within days from the date of this order, elect whether 
 
 he wiU proceed in the present suit in this court (conclude as 
 in the motion from the * to the tj. 
 
 Circuit Judge. 
 
 PETITION BY DEFENDANT FOR PRODUCTION OF 
 DOCUMENTS. 
 (Title of court and cause.) 
 
 The petition of C. D., the defendant (or, one of the defend- 
 ants) in the above entitled cause, respectfully shows imto the 
 court, that he has entered his appearance in this cause by 
 , his solicitor, and that a copy of the bill of complaint 
 
322 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 therein was delivered to the solicitor for this defendant on 
 the day of , A. D. 19. .. 
 
 And that on inspection and examination of the said biU it 
 appears that the said complainant is in the possession of a cer- 
 tain document in writing (describe it), and this defendant is 
 advised and verily believes that he cannot make a full answer 
 to the said biU without an inspection of the said (describe the 
 document), and that he has applied to the said complainant for 
 leave to inspect and examine the same and has been refused per- 
 mission so to do. 
 
 And this defendant avers that he has no copy of the said 
 (document) and does not know the contents thereof, and has 
 no means of ascertaining the same (if he ever saw it, state and 
 
 that he has not seen the same since about the day of 
 
 , A. D. 19 . . , and does not fully recollect the contents 
 
 thereof), and this defendant is advised by his counsel, , 
 
 Esq., who resides at , to whom he has fully and fairly 
 
 stated the case in this cause, and verily believes that it is 
 essential and n.ecessary for the preservation of the rights and 
 equities of this defendant in this cause that he should inspect 
 and know the contents of the said (document) before answer- 
 ing the bill of complaint in this cause, and that he cannot fully 
 answer the said bill without such inspection. 
 
 And your petitioner expressly avers that this applicjation is 
 not made for delay merely but that he may be enabled fully 
 and understandingly to answer the sajd bill of complaint. 
 
 Your petitioner therefore prays that the said complainant 
 may be required by an order of this court to produce the said 
 (document) and place the same in the custody of the register 
 of this cpurt, or in some other convenient place, and that your 
 petitioner have leave and opportimity to inspect the same, and 
 
 that he be not required to answer the said bill until 
 
 days, or such other reasonable time as the court shall direct, 
 after such iuspection shall have been afforded. 
 
 And your petitioner will ever pray, etc. 
 
 CD. 
 
 Solicitor and of Counsel for Petitioner. 
 State of Michigan, 
 Caunty of , 
 
 On this day of , A. D. 19. ., before me, 
 
 a not-ary public of, in and for said county, personally came the 
 
 above named petitioner, , and made oath that he has 
 
 heard read the foregoing petition by him subscribed and knows 
 the contents thereof, and that the same is true of his own khowl- 
 
STAGE S MICHIGAN CHANCEEY PRACTICE AKD FORMS 323 
 
 edge, except as to the matters therein stated to be on information 
 and belief, and as to those matters he believes it to be true. 
 
 Notary Public, 
 
 County, Mich. 
 
 My commission will expire , A. D. 19 . . . 
 
 ORDER FOR PRODUCTION OF DOCUMENTS. 
 (Title of court and caption.) 
 (Title of cause.) 
 
 On reading and filing the petition of C. D., defendant (or, 
 one of the defendants) in this cause, duly verified, and on fil- 
 ing due proof of service on the solicitor for the complainant of 
 notice of this motion and no one appearing in opposition thereto 
 {or, and on hearing , Esq., of counsel for the said com- 
 plainant in opposition thereto) : It is ordered that the said 
 
 complainant do, within days from the date of this 
 
 order {or, after service of a copy of this order), produce to and 
 leave with the register of this court the (describe the document), 
 and that the said defendant, his solicitor, agent and counsel, 
 or any of them, may be at liberty to inspect and peruse the 
 same and take a copy or copies thereof or of any part thereof 
 or extracts therefrom, as the said defendant may be advised, 
 
 at his own expense, at any time within days after the 
 
 said defendant shall have notice of such production, and that 
 
 the said defendant have days from and after the time 
 
 when he shall receive notice of such production wherein to 
 answer the said complainant's said bill of complaint. 
 
 And that in case the said complainant shall refuse or neglect 
 to produce the said (document) as herein required, the said 
 defendant may have an order that the complainant's said bill 
 be dismissed as to him. 
 
 Circuit Judge. 
 
 THAT DEFENDANT PAY MONEY INTO COURT. 
 (Title of court and cause.) 
 Of the day of , A. D. 19. .. 
 
 Now comes the above named complainant, by , Esq., 
 
 his solicitor, and moves the court now here for an order that 
 the above named defendant, C. D., pay into the hands of the 
 register of this court in trust in this cause on or before the 
 day of , A. D. 19 . . , the sum of dol- 
 lars, admitted by the defendant to be due from him. And that 
 the said money so paid in be held in trust by the said register 
 subject to such order and decree as this court shall hereaftei* 
 make in this cause ; and that in the meantime during the pend- 
 ency of this cause that the said register deposit the same in 
 
324 stage's MICHIGAN CHANCEBY PBAOTIOE AND FORMS 
 
 such bank or invest the same in such securities as shall be 
 
 directed by the court, and that the defendant, , pay 
 
 the costs of this motion; and for such further or other order 
 as shall be agreeable to equity in the premises. 
 
 This motion is founded on the bill and (answer or, answers) 
 on file in this cause. 
 
 Solicitor for Complaiaant. 
 
 [Notice of motion.] 
 
 ORDER THAT DEPENDANT PAT MONEY INTO COURT. 
 
 (Title of court and catise.) 
 (Caption.) 
 On reading the bill and answer on file in this cause and on 
 
 motion of , Esq., solicitor for the complainant, and on 
 
 hearing , Esq., solicitor for the defendant, C. D., in 
 
 opposition thereto {or, on reading and filing due proof of service 
 of notice of such motion upon the solicitor for the defendant, 
 CD.). It is ordered that the defendant, C. D., do, on or before 
 
 the day of , A. D. 19 . . , pay into the hands 
 
 of the register of this court in trust in this cause the sum of 
 
 dollars, admitted by the answer of the said defendant, 
 
 C. D., to be due from him, and that when such money shall 
 be so paid in that it be deposited by the said register in trust 
 
 in the bank of , {or, invested in in 
 
 trust), to the credit of this cause, there to remain until the 
 further order of this court. 
 
 , Circuit Judge. 
 
 Proceedings by and Against Infants. 
 
 \§281. Where an infant is a complainant in a suit, 
 some proper person of full age, who will be responsible 
 for costs, must be appointed as next friend of such infant 
 before the commencement of the suit,^ as an infant is 
 incapable of appointing an agent or solicitor to act for 
 him.^ 
 
 The general guardian of an infant is not "ex officio" 
 entitled to act as such next friend without special appoint- 
 ment as such.^ It is not necessary that the person ap- 
 pointed should be financially responsible, the meaning of 
 
 1— C. I>., Sec. 10455; Haines v. 3— Kinney v. Harrett, 46 Mich. 87. 
 
 Oatman, 2 Doug. Mich. 430. 
 
 2 — ^Aimitage v. Widoe, 36 Mich. 
 124. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 325 
 
 the statute is that he shall be liable for costs as if he 
 were the party in interest.* 
 
 § 282. The appointment may be made by any judge of 
 the court whereru the suit is proposed to be commenced 
 or by a circuit court commissioner." It will be made on 
 the petition of the infant and the written consent of the 
 person proposed as next friend, acknowledged or proved 
 before the officer making the appointment.® 
 
 § 283. In a suit to recover money, the person named 
 as next friend must before his appointment execute a 
 bond to the infant in a penalty at least double the amount 
 claimed with such sureties as shall be approved by the 
 appointing officer, conditioned to account to the infant 
 for all moneys recovered,'^ which bond shall be filed with 
 the judge of probate of the county wherein the infant 
 resides by the officer making the appointment, the fee for 
 filing to be paid by the next friend,* 
 
 § 284. The order appointing the next friend must be 
 filed with the register of the court before the bill is 
 filed.8 
 
 § 285. Where an infant is a defendant, after the issu- 
 ing and service of process the suit shall not be any further 
 prosecuted against such infant until a guardian ad litem 
 shall have been appointed," which appointment shall be 
 made upon the request of such infant defendant and the 
 written consent of the proposed guardian by any judge 
 of the court or circuit court commissioner of the county.^' 
 
 The infant's co-defendant is not a proper guardian ad 
 litem unless their interests are identical, nor is any one 
 having interests adverse to the infant.'^ 
 
 § 286. If the infant defendant neglect for twenty days 
 
 4— EaWdon v. Oir. Judge, 110 9— C. L., Sec. 10460. 
 
 Mieh. 297. 10— C. L., Sec. 10461. 
 
 5— C. L., Sec. 10456. 11— C. L., Sec. 10462. 
 
 6— C. L., Sec. 10457. 12— Damouth v. Klock, 29 Mich. 
 
 7— C. L., Sec. 10458. 289. 
 
 8— C. L., Sec. 10459. 
 
326 stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 
 
 after the return day of the process to procure the appoint- 
 ment of a guardian ad litem the complainant may obtain 
 an order from the judge or circuit court commissioner 
 requiring such infant to procure the appointment of a 
 guardian within ten days after service of such order" 
 and if a guardian he not appointed within the time speci- 
 fied in such order, the judge or circuit court commis- 
 sioner granting the same shall appoint some discreet 
 person to be such guardian ad litem for such infant.^* 
 
 A person appointed as guardian ad litem shall not be 
 liable for any costs unless specially charged by the court 
 for some personal misconduct in the cause.^** 
 
 § 287. Where the infant persistently neglects to pro- 
 cure the appointment of a guardian ad litem, thus com- 
 pelling such appointment by the judge or circuit court 
 commissioner, the person appointed is usually the register 
 of the court. 
 
 PETITION BY INFANT COMPLAINANT FOR APPOINT- 
 MENT OF NEXT FRIEND. 
 State of Miehigan. 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 To the Hon. A. M., judge of the said court {or, to K. L., Esq.. 
 
 a circuit court commissioner of the county of ) . 
 
 The petition of A. B., respectfully shows that he is an in- 
 fant under the age of twenty-one years, and is of the age of 
 
 years, and , and that he resides in the 
 
 of , in the county of , and that a 
 
 suit is about to be brought in the above entitled court by and 
 on behalf of your petitioner (and others, if any, naming them) 
 against C. D. (and others, if any, naming therni). 
 
 Your petitioner therefore prays that 6. F., of , in 
 
 the county of , and state of , may be appointed 
 
 the next friend of your petitioner, to appear and act for him as 
 such in such suit. 
 
 And your petitioner will ever pray, etc. 
 
 A. B. 
 (Add verification jurat.) 
 (Consent to he appended to above petition:) I hereby consent 
 
 13— C. L., Sec. 10463. 15— C. L., Sec. 10465. 
 
 14— C. L., Sec. 10464. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 327 
 
 to be appointed the nest friend of the within named petitioner, 
 A. B., and to appear and act for him as such in the suit men- 
 tioned in the within petition. 
 Dated this day of A. D. 19. .. 
 
 G. F. 
 State of Michigan, ) 
 
 County of , f^' 
 
 On this day of , A. D. 19. ., before me, 
 
 the subscriber, a in and for said county, personally 
 
 appeared G. F., to me known to be the same person who signed 
 the foregoing consent to become next friend for A. B., an in- 
 fant, and acknowledged that he signed and executed the same 
 for the purpose therein stated and as his free act and deed. 
 
 ORDER APPOINTING NEXT FRIEND. 
 
 BY CIRCUIT JUDGE. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 Before me, , judge of the said court, at my cham- 
 bers in the of , county of , Michigan, 
 
 this day of , A. D. 19. .. 
 
 In the matter of the petition of A. B., an infant, for the 
 appointment of a next friend. 
 
 On reading the petition of A. B., an infant, praying for the 
 
 appointment of G. F., of , as his next friend, in a suit 
 
 to be brought in the above entitled court by him (and others, if 
 any, naming them) against C. D. (and others, if any, naming 
 them), and the written consent of the said G. F. to accept such 
 appointment, and the said G. F-., having personally acknowl- 
 edged the execution of such consent before me {or, it having 
 been duly proved before me that the said G. F. duly executed 
 and acknowledged the said consent) : 
 
 It is ordered that he, the said G. F., be and is hereby 
 appointed the next friend of the said petitioner, A. B., to appear 
 and act for him as such in the suit mentioned in the said peti- 
 tion, upon his executing a bond to the said infant in the penal 
 
 sum of dollars, with sufficient sureties to be approved 
 
 by me (conditioned that he will duly account to such infant 
 for all moneys which may be recovered in such suit) . 
 
 Circuit Judge. 
 (The same by a circuit court commissioner, changing only the 
 caption to) the th judicial circuit : In Chancery. Be- 
 fore me, a circuit court commissioner of the county of , 
 
 at my office in the of , county of 
 
 Michigan, this day of , A. D. 19 . . . 
 
328 stage's MICHIGAN CHANCERY PEACTICE AND POEMS 
 
 BOND TO INFANT BY NEXT FRIEND. 
 
 Know all men by these presents, that we, G. F., of , 
 
 as principal, and L. M., of , and N. 0., of , as 
 
 sureties, are held and firmly bound unto A. B., of , in 
 
 the sum of dollars, to be paid to the said A. B., his 
 
 certain attorney, executors, administrators or assigns, for which 
 payment well and truly to be made we bind ourselves, our heirs, 
 executors and administrators, jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals and dated this day of , 
 
 A. D. 19... 
 
 The condition of this obligation is such, that whereas the 
 above bounden G. P., has been appointed the next friend of 
 the said A. B., an infant, in a suit to be brought in the Circuit 
 
 Court for the county of : In Chancery, by the said 
 
 A. B. (and others, if any, naming them) against C. D. (and 
 others, if any, naming them); now, therefore, if the said G. F. 
 shall well and faithfully duly account to the said infant, A. B., 
 for all moneys which may be recovered in the said suit for 
 the said A. B. or for his use, then this obligation to be void, 
 otherwise of force. 
 
 G. F. 
 L. M. 
 N. O. 
 (Justification of Sureties.) 
 State of Michigan, ) 
 County of , P'' 
 
 L. M., of , and N. 0., of , the sureties in the 
 
 annexed bond, being severally duly sworn, say, each for him- 
 self, and not the one for the other, the said L. M. for himself, 
 
 says that he is worth the sum of dollars and upwards 
 
 in property liable to execution in this state, over and above all 
 exemptions, debts, obligations and liabilities; and the said N. 
 
 0. for himself, says that he is worth the sum of dollars 
 
 and upwards in property liable to execution in this state, over 
 and above all exemptions, debts, obligations and liabilities. 
 
 L. M. 
 N. 0. 
 
 Subscribed and sworn to, etc. 
 
 (Approval by Bond.) 
 
 I do hereby approve the annexed (or, within) bond and the 
 sureties thereof. 
 Dated this day of , A. D., 19 . . . 
 
 Circuit Judge (or Circuit Court Commissioner as the case 
 may be.) 
 
 (By changing the words "next friend" to "guardian ad 
 litem" and "complainant" to defendant," the foregoing form 
 will apply to security of a guardian ad litem.) 
 
stage's MICHIGAN CHANCBBY PEACTICE AND FORMS 329 
 
 PETITION BY COMPLAINANT FOR APPOINTMENT OF 
 
 GUAEDIAN AD LITEM FOR INFANT DEFENDANT. 
 (Title of court and cause.) 
 
 To the Circuit Court for the Comity of : 
 
 In Chancery. 
 The petition of A. B., the complainant in the above entitled 
 cause, respectfully shows unto the court : 
 
 1. That the bill of complaint in this cause was filed on the 
 
 day of , A. D. 19 . . , against the defendants 
 
 for the purpose of (state general object of the hill and the man- 
 ner in which the interest of the infant defendant is affected.) 
 
 2. And that the said defendant, C. D., resides at , 
 
 in the county of , in this state, and is an infant under 
 
 the age of twenty-one years, and your petitioner is informed 
 and believes and charges the truth to be, that his age is 
 
 3. And that upon the day of , A. D. 19 . . , 
 
 a subpoena to appear and answer the said bill, issued out of 
 this court in this cause, was duly served upon the said defend- 
 ant, C. D., as appears by the return of , sheriff of said 
 
 county of , endorsed on said subpoena and on file in 
 
 this court, and that the return day of the said subpoena was the 
 day of , A. D. 19... 
 
 4. And that more than twenty days have elapsed since the 
 said service and since the return day of the said subpoena, and 
 that no guardian ad litem has as yet been appointed for the said 
 infant defendant, nor has any application for the appointment 
 of any such guardian ad litem been made by the said infant de- 
 fendant or by any one on his behalf, to the knowledge or belief 
 of your petitioner. 
 
 I. Your petitioner therefore prays that an order may be 
 made by this court that the said infant defendant procure the 
 appointment of a guardian ad litem to appear and defend this 
 suit on his behalf, within ten days after service on him of a 
 copy of such order. 
 
 [And that if a guardian ad litem be not appointed within 
 such ten days, then that this court appoint some discreet person 
 to be such guardian ad litem.] 
 
 A. D. 
 M. N., 
 
 Solicitor for Petitioner. 
 
 (Verification ly jurat.) 
 
 ORDER NISI ON FOREGOING PETITION. 
 
 (Title of court and caption.) 
 (Title of cause.) 
 
 On reading and filing the petition of the complainant in the 
 ab6ve entitled cause, duly verified, showing that the defendant, 
 
330 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 0. D., therein, is an infant under the age of twenty-one years, 
 and that a subpoena to appear and answer in this cause, the re- 
 turn day whereof was the day of , A. D. 19 . . , 
 
 has been duly served on the said defendant, C. D., and that more 
 than twenty days have elapsed since the return day of the Raid 
 subpoena, and that no guardian ad litem has been appointed for 
 the said infant defendant nor applied for by him or by any one 
 on his behalf. Now, therefore, on motion of M. N., solicitor for 
 the said complainant, it is ordered that the said infant defend- 
 ant, C. D., procure the appointment of a guardian ad litem to 
 appear and defend this suit on his behalf within ten days after 
 service on him of a certified copy of this order. 
 
 And it is further ordered that if a guardian ad litem be not 
 appointed for the said infant defendant within such ten days 
 then that ^. G., the register of this court, be appointed such 
 guardian ad litem. 
 
 Circuit Judge. 
 
 AFFIDAVIT THAT NO'GUAEDIAN AD LITEM HAS BEEN 
 
 APPOINTED ON APPLICATION OF INFANT 
 
 DEFENDANT. 
 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 M. N., of (state residence), the solicitor for the above named 
 complainant, being duly sworn, says that although more than 
 ten days have elapsed since the service on the infant defendant, 
 C. D., of a certified copy, of the order heretofore, and on the 
 
 day of , A. D. 19 . . , made in this cause, that 
 
 the said infant, C. D., should procure the appointment of a 
 guardian ad litem to appear and defend this suit on his behalf, 
 he has received no notice of the appointment of any guardian ad 
 litem for such infant defendant, and that there is no such ap- 
 pointment appearing in the records or files of this court in the 
 said cause. 
 (Jurat.) 
 
 M.N. 
 
 FURTHER ORDER FOR APPOINTMENT OF GUARDIAN 
 ■^ AD LITEM. 
 
 (Title of court and caption.) 
 (Title of cause.) 
 
 An order having been heretofore, on the day of 
 
 , A. D. 19 . . , made in this cause that the infant de- 
 fendant, C. D., should procure the appointment of a guardian 
 ad litem to appear and defend this suit on his behalf, within ten 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 331 
 
 days after service upon him of a certified copy of such, order, 
 and that if a guardian ad litem should not be appointed for the 
 said infant defendant within such ten days, then that F. G., the 
 register of this court should be appointed such guardian ad litem. 
 
 On reading and filing the affidavit of W. L., showing that on 
 
 the day of , A. D. 19. ., a certified copy of 
 
 the said order was duly served upon the said C. D. personally, 
 and on reading and filing the affidavit of M. N., solicitor for the 
 said complainant, showing that although more than ten days 
 have elapsed since such service, he has received no notice of the 
 appointment of any guardian ad litem for such infant defend- 
 ant; and that there is no such appointment appearing in the rec- 
 ords or files of this court in the said cause. 
 
 On motion of M. N., solicitor for the complainant, it is ordered 
 that the said order be and the same is hereby confirmed and 
 made absolute, and that the said F. G., the register of this court, 
 be and hereby is appointed guardian ad litem of the said infant 
 defendant, C. D., to appear for and defend this suit on his behalf. 
 
 Circuit Judge. 
 
 PETITION OP INFANT DEFENDANT FOE GUARDIAN 
 
 AD LITEM. 
 (Title of court and cause.) 
 
 To the Circuit Court for- the County of : 
 
 In Chancery. 
 
 The petition of C. D., of the of , in the 
 
 county of and State of Michigan, respectfully shows 
 
 unto the court : 
 
 1. That your petitioner is an infant under the age of twenty^ 
 
 one years, that is to say, of the age of years and 
 
 , and is the (or, a) defendant in the above entitled 
 
 cause. 
 
 2. That the bill of complaint in the said cause is filed agamst 
 your petitioner (and others) for the purpose (state generally 
 the purpose of the bill), and your petitioner is advised that he 
 is interested therein as follows (state generally the interest of 
 the petitioner affected iy the suit). 
 
 3. And that on the day of , A. D. 19. ., 
 
 your petitioner was served with a subpoena to appear and an- 
 swer in the said cavise, the return day whereof is the , . 
 
 day of , A. D. 19... 
 
 I. Your petitioner therefore prays that J. D., of ., 
 
 in this state, who is the (general guardian or friend or relative, 
 stating relationship) of your petitioner, may be appointed 
 
332 stage's MICHIGAN CHANCEBY PBACTICE AND POEMS 
 
 guardian ad litem of your petitioner to appear and defend this 
 suit on his behalf. 
 And your petitioner will ever pray, etc. 
 
 CD. 
 (No verification needed.) 
 (Consent of guardian annexed to petition.) 
 
 I hereby consent to become guardian ad litem of the above 
 named petitioner, C. D., in the above entitled cause, mentioned 
 in the said petition. 
 
 J. D. 
 
 AFFIDAVIT OF SIGNATURE. 
 (Title of court and cause.) 
 
 County of , ss. : 
 
 W. M., of in said county of , being duly 
 
 sworn, says that he personally knows the above named peti- 
 tioner, C. D., and also the above named J. D., and that on the 
 
 day of , A. D. 19 . . , he saw the said C. D. 
 
 sign the petition hereto annexed, and that on the day 
 
 of , A. D. 19 . . , he saw the above named, J. D., sign 
 
 the consent to act as guardian ad litem annexed to the said 
 petition. 
 
 W.M. 
 Subscribed and sworn to, etc. 
 
 ORDER APPOINTING GUARDIAN AD LITEM ON 
 PETITION OF INFANT. 
 
 (Title of court and cause.) 
 (Caption.) 
 
 On reading and filing the petition of C. D. the (or a) defend- 
 ant in this suit, praying for the appointment of J. D. as guar- 
 dian ad litem for the said C. D., who is an infant of the age of 
 
 years and under the age of twenty-one years, together 
 
 with the consent of the said J. D. to act as such guardian ad 
 litem. 
 
 On motion of 0. T., of counsel for the said petitioner, it is 
 ordered that the said J. D. be and hereby is appointed guar- 
 dian ad litem of the said C. D., to appear and defend this suit 
 on his behalf. 
 
 Circuit Judge. 
 
 PETITION BY RELATIVE OF INFANT FOR APPOINT- 
 MENT OF GUARDIAN AD LITEM. 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of I. K., of the of , in the 
 
 county of and state of Michigan, respectfully shows 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 333 
 
 onto the court that he is (general guardian or relative, stating 
 relationship) of C. D., the {or a) defendant in the above en- 
 titled cause, and that the said C. D. is an infant under the age 
 
 of twenty-one years and under the age of years, being 
 
 of the age of , and by reason of his tender age is in- 
 
 c^able of petitioning this court in his own behalf. 
 
 2. That the bill of complaint in the said cause is filed against 
 the said C. D. (and others) for the purpose (state purpose 
 generally), and that the interest of the said C. D. is affected 
 thereby as follows: (state how). 
 
 3. And that the said C. D., was on the day of 
 
 , A. D. 19 . . , served with a subpoena to appear and 
 
 answer in the said cause, and that the return day named in the 
 said subpoena is the day of , A. D. 19 . . . 
 
 4. Your petitioner further shows and avers that he has no 
 interest in this suit nor^ the subject matter thereof adverse 
 to that of the said infant, C. D., and that he is not connected 
 in business with the solicitor or counsel for the complainant 
 (or either or any of them), and that he makes this petition 
 for and on behalf of the said infant defendant, C. D. 
 
 Your petitioner therefore prays that he may be appointed 
 guardian ad litem of the said infant defendant, C. D., to appear 
 and defend this suit on his behalf. 
 
 I. K. 
 N. 0., 
 Solicitor for petitioner and of counsel. 
 (Add verification.) 
 
 Service of Papers Pendente Lite. 
 
 § 288. "When the solicitor for the adverse party resides 
 or has his office in the same city, village or township as 
 the solicitor making the service, papers shall be served 
 by delivering the same to the solicitor personally, or by 
 leaving the same in his office with his clerk, or with a per- 
 son having charge thereof, or when no person is to be 
 found in his office, by leaving the same between the hours 
 of six in the morning and nine in the evening in some 
 suitable and conspicuous place in such office, or if the 
 office be not open so as to admit of service therein then 
 by leaving the same at the residence of the solicitor with 
 some person of suitable age and discretion, or by deposit- 
 ing the same in the post office of the city, village or town- 
 
334 stage's MICHIGAN CHANCEKY PBACTICE AND FORMS 
 
 ship, inclosed in an envelope, plainly addressed to sudi 
 solicitor, with postage fully prepaid.^ 
 
 § 289. When the solicitor resides or has his office in a 
 different city, village or township than the solicitor mak- 
 ing the service, papers shall be served by delivering the 
 same to the solicitor personally, or by leaving the same 
 in his office with his clerk or with a person having charge 
 thereof, or by depositing the same in some post office 
 directed to the solicitor at his business address, with 
 postage fully prepaid, such address to be ascertained 
 according to the best information and belief of the person 
 making such service, and in such case the time of service 
 must be increased one day for evgry one hundred miles 
 distance or fraction thereof between the place of deposit 
 and the place of address.^ 
 
 The usual route of travel governs the distance com- 
 puted under this rule.^ 
 
 In cases where there are two or more defendants, who 
 appear by different solicitors, service of all papers on 
 behalf of the complainant must be made on the solicitors 
 for each of the defendants, and in such case service of all 
 lepers in behalf of any defendant shall be made on the 
 solicitor for each of the other defendants and upon the 
 solicitor for the complainant. In case two or more 
 solicitors appear for the same party or parties, service 
 on any one of such solicitors, whether they be partners 
 or not, shall be sufficient. But this shall not apply to 
 solicitors appearing as counsel only.* 
 
 § 290. When a party prosecutes or defends his cause 
 in person, service of papers may be made on him in the 
 manner hereinbefore provided for service on solicitor 
 whether such party be a licensed solicitor or not.* 
 
 The constitution of the state provides that "any suitor 
 
 1 — Law Eule 28 applicable by Ch. 4 — ^Law Eule 30 applicable by Ch. 
 
 Eule 15. Eule 15. 
 
 2 — ^Law Eule 29 applicable by Ch. 5 — Law Eule 31 applicable by Ch. 
 
 Eule 15. Eule 15. 
 
 3 — ^Eaymond v. Hinkson, 15 Mich. 
 517. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 335 
 
 in any court of this state shall have the right to prose- 
 cute or defend his suit, either in his own proper person 
 or by an attorney or agent of his choice. ' ' « But a party 
 cannot appear in a Court of Chancery, which is a court of 
 record, by an agent who is not a solicitor duly admitted 
 to practice in that courtJ 
 
 In all cases where service of papers cannot reasonably 
 be made on account of the lack of a solicitor of record, or 
 the inability to find a party, or for any other reason, the 
 court in which such cause is pending, or judge thereof 
 at chambers, upon an ex parte application on cause 
 shown, may direct in what manner, and on whom, service 
 may be made.^ 
 
 § 291. When the object is to bring the party into con- 
 tempt for disobeying any rule or order of the court, the 
 service shall be on such party personally, unless other- 
 wise specially ordered by the court.® 
 
 §292. No service of papers shall be necessary on a 
 defendant who has not regularly appeared, except as 
 specially provided by rule or statute. But a defendant 
 who has appeared by notice of retainer or appearance 
 shall be entitled to notice in advance of all future pro- 
 ceedings in the cause, although he may not have followed 
 his appearance by plea, demurrer or answer.'" 
 
 If the complainant or defendant shall have appeared 
 by a solicitor, the service of the pleadings or proceedings 
 shall be on or by such solicitor.'^ 
 
 When a party has appeared by a solicitor papers must 
 be served on the solicitor and service on the party would 
 be a nullity ^^ except in cases where the object is to bring 
 the party into contempt. 
 
 Law rule 35 above quoted requires notice in advance 
 
 6 — Const. Art. II, Sec. 12. 10 — Law Eule 35 applicable by 
 
 7 — Cobb V. Superior Court Judge, Ch. Eule 15; C. L., Sec. 458. 
 
 43 Mich. 289. 11— C. L., Sec. 460. 
 
 8 — ^Law Eule 32 applicable by Ch. 12 — Finnegan v. Supervisors, 18 
 
 Eule 15. Mich. 9. 
 
 9 — Law Eule 34a applicable by 
 Ch. Eule 15. 
 
336 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 to be given of all proceedings wherein the defendant has 
 a right to be present and to be heard such as notices of 
 taking proofs, of special motions, of hearing, of intention 
 to move for decree after default, of taxation, of costs and 
 the like. It does not require notice to be given in advance 
 of the entry or filing of common orders, nor of applica- 
 tions which may be made ex parte nor of the filing of 
 afiBdavits on which such common orders or ex parte appli- 
 cations are based, but subsequent notice of such common 
 orders and of the filing of such afiBdavits and of the result 
 of such ex parte applications must be given.^^ 
 
 § 293. Computation of Time on Service of Papers. 
 The day on which any rule shall be entered or any order, 
 notice, pleading or paper served shall be excluded in the 
 computation of the time for complying with the exigency 
 of such rule, order or notice, pleading or paper, and the 
 day on which a compliance therewith is required shall be 
 included except where it should fall on Sunday, in which 
 case the party shall have the next day to comply there- 
 with." 
 
 Intervening Sundays and holidays are included in the 
 computation of time for serving notices.^" 
 
 "" "™°^ Entitling Papers. 
 
 §294. It is provided by rule that all papers except 
 process and pleadings by which the cause is commenced, 
 shall be entitled in the court and cause and the complain- 
 ant's name shall be placed first. Provided that affidavits 
 annexed to and referring to another paper which is prop- 
 erly entitled in the court and cause need not be entitled. 
 
 In cases where there are two or more complainants or 
 two or more defendants, it shall be sufficient in entitling 
 
 13— Ketchum v. Cir. Judge, 115 15 — ^Anderson v. Baughman, 6 
 
 Mich. 60. Mich. 298; Corey y. Hilliker, 15 
 
 14 — Law Eule 36a applicable by Mich. 314; lickley v. Bishop, 150 
 
 Ch. Eule 15; Chaddock v. Barry, 93 Mioh. 256. 
 Mich. 542; Port Huron v. Wright, 
 150 Mich. 279; Lemon v. Hampton, 
 128 Mich. 182. 
 
stage's MICHIGAN CHANCEKY PBACTICE AND FORMS 337 
 
 papers to name the first named complainant and the first 
 named defendant with the usual indication of other par^ 
 ties, provided there be added the official number of the 
 ease. Pro\ided further that in all orders and notices re- 
 quired to be published the full names of all parties shall 
 appear in the title of the cause. 
 
 All papers for filing qr service shall also contain on the 
 outside an abbreviation at least of the title of the court 
 and cause and the character of the paper. ^ 
 
 The title of the court is 
 
 The Circuit Court for the county of In Chan- 
 cery. 
 
 The title of the cause is 
 
 N. B., Complainant, 
 
 or 
 
 C. D., Defendant, 
 A. B. et al., Complainants, 
 
 V. 
 
 C. D. et al., Defendants. 
 
 The register is forbidden to file any papers which are 
 
 not fairly and legibly written or printed and indorsed as 
 
 directed by the foregoing rule, papers for service must 
 
 also be fairly and legibly written and properly indorsed.^ 
 
 Agreements to be in Writing. 
 
 §295. No private agreement or consent between the 
 parties to a cause or their solicitors respecting the pro- 
 ceedings in a cause which shall be denied by either party, 
 shall be binding unless the same shall have been made in 
 open court, or unless evidence thereof shall be in writing 
 subscribed by the party or his solicitor against whom the 
 same is alleged.' 
 
 This rule is strictly enforced as otherwise the court 
 might have its time greatly taken up in trying disputes 
 
 1 — Law rule 37b, c, d applicable 1 — Law Eule 39 applicable by Gh. 
 
 to chancery by Ch. Eule 15. Eule 15. 
 
 2 — Law rule 37a applicable by 
 Ch. Eule 15. 
 
338 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 between parties or solicitors of no moment to the merits 
 of the cause.^ 
 
 Court Files. 
 
 § 296. The register shall indorse on every paper the 
 day on which the same is filed, and shall not suffer or per- 
 mit any suit, pleading, affidavit, or other paper whatever, 
 on file in his office to be taken therefrom without the order 
 of the court or a judge thereof ; but parties interested in 
 any such may inspect the same in his office and take copies 
 thereof.^ 
 
 The filing placed upon the papers by the register be- 
 comes a part of the records of the court and cannot be 
 contradicted by parol.^ 
 
 Original files should not be altered, even by consent 
 of parties, without leave of the court. If an addition is 
 desired it should be made by a separate paper without 
 changing the original.* 
 
 Eemoving papers from the files to be used as copy for 
 printing should not be permitted.* 
 
 Parties to suits under the direction of the court may 
 lawfully withhold the records and papers in a cause from 
 being made public until proceedings are taken in open 
 court.^ Until the case is before the court for judicial 
 action the files are not subject to inspection by any but 
 the parties or their representatives.* 
 
 The register must permit parties or their representa- 
 tives to examine and make copies or memoranda of the 
 files during business hours and must afford them proper 
 and reasonable facilities for so doing, but may prohibit 
 use of pen and ink in making copies or notes of records 
 or files.'' 
 
 2 — Snyder v. Pequindre, Walk. Ch. 4 — Iiamb v. Hinman, 46 Micl^, 112. 
 
 23; Brooks v. Mead, Walk. Gh. 389. 5— Sehmedding v. County Clerk, 
 
 1— Law Rule 38 applicable to 85 Mich. 1. 
 
 Chancery by Ch. Rule 15, 6 — Park v. Free Press Co., 72 
 
 2 — Sweet V. Gibson, 123 Mich. 699; Mich. 560; Burton v. Eeynolds, 110 
 
 Holmes v. King, 158 Mich. 445. Mich. 354, 
 
 3 — Faprand v^ Collins, 8 Mich. 7— Act No. 92, Public Acts of 
 
 135. 1899 p. 133. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 339 
 
 Assignment of Cause of Action by Complainant. 
 
 § 297. "When, during the progress of a suit in chancery 
 the complainant transferred his interest in the subject 
 matter of the suit to another the suit thereupon became 
 defective and abated and the only manner in which the 
 person to whom the transfer was made could obtain the 
 benefit of the suit was by a bill in the nature of a bill of 
 revivor.^ This caused great unnecessary expense and 
 delay to remedy which in 1893 the following rule was 
 adopted. 
 
 "Whenever the complainant in an equity suit, wherein 
 the right is under existing rules of law and equity assign- 
 able, shall have transferred his interest in the subject 
 matter of the litigation either voluntarily or by process 
 of law, the suit shall not thereby be abated, but the trans- 
 ferree may present his petition to the court in which said 
 suit is pending, setting up the fact of such transfer and 
 asking to be substituted as complainant in said suit. The 
 facts, if they no not appear from the records of the court, 
 shall be verified by the affidavit of the party or some other 
 person. If at the hearing it appears to the court that 
 such transfer has been made, an order shall be made sub- 
 stituting the transferree as complainant in said suit, and 
 said suit shall continue for the benefit of said transferree 
 as though no transfer had been made. A copy of the 
 petition and affidavit, with the usual notice of presemting 
 the same shall be served on the defendant or his solicitor, 
 and in making such order the court may in its discretion, 
 require the transferree to file security for costs." ^ 
 
 Notice of the petition should it seems be served as well 
 on the defendants who have not appeared in the case as 
 upon the solicitors of those who have appeared:^ 
 
 The rule applies to a case where after decree the com- 
 plainant died and the decree was assigned by his adminis- 
 trator * and also to a case where a junior mortgagee paid 
 
 1 — Webster v. Hitchcock, 11 Mich. 2 — Chancery Rule 34. 
 
 56; Brewer v. Dodge, 28 Mich. 359; 3 — Brewer v. Landis, 111 Mich. 
 
 Niles V. Eanusford, 1 Mich. 338; 217. 
 
 Griggs V. Ey. Co., 10 Mich. 117. 4— Brand v. Smith, 99 Mich. 395. 
 
340 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 to a senior mortgagee the amount of his decree on the 
 foreclosure of the senior mortgage.® 
 
 PETITION OF ASSIGNEE TO BE SUBSTITUTED AS 
 COMPLAINANT. 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of B. F., of (state residence), respectfully shows 
 unto the court: 
 
 1. That on the day of , A. D. 19 . . , one 
 
 A. B., of , exhibited his bill of complaint in this court 
 
 against C. D. (and E. D.), as defendant therein, stating (set 
 forth substance of foreclosure bill), and praying (set forth sub- 
 stance of prayer of foreclosure bill). 
 
 2. And that a subpoena in the said cause was duly issued 
 
 on the day of , A, D. 19 . . , and served on 
 
 the said C. D. (and E. D.), who appeared and put in his (their) 
 answer thereto, {or, that the said bill was duly taken as con- 
 fessed by the said C. D. (and E. D.) for want of an appear- 
 ance) . 
 
 3. And that afterwards and before any further or other 
 proceedings were had in said cause and on the ......... day of 
 
 , A. D. 19 . . , the said A. B. did for a good and valu- 
 able consideration assign and transfer the subject matter of the 
 said suit, that is to say the note ^nd indenture of mortgage 
 in the said bill mentioned, and the indebtedness thereby secured, 
 to your petitioner, who is now the sole owner thereof tad of 
 the whole thereof, and that the said A, B. has now no interest 
 whatever In the same. 
 
 4. Your petitioner therefore prays that he max I'C sub- 
 stituted as complainant in the suit and that he may be allowed 
 to prosecute the same for his own benefit in the same manner 
 and with the same effect as the said A, B. might have done if 
 no transfer had been made. 
 
 And your petitioner will ever pray, etc. 
 
 E. F. 
 
 Solicitor for Petitioner and of Counsel. 
 
 ORDER SUBSTITUTING ASSIGNEE AS COMPLAINANT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 This cause came on to be heard on the petition of E. F,, 
 
 5— Coda V. Cir. Judge, 109 Mich. 
 120. 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 341 
 
 duly verified, heretofore filed herein, and it appearing to the 
 
 court flow here that on the day of , A. D. 
 
 19.., the complainant, A. B., exhibited his bill of complaint 
 in this court against C. D. (and E. D.) to be relieved toueh-> 
 ing the matters and things therein contained, and that the 
 said C. D. (and E. D.) appeared and put in his (their) answer 
 to the said bill {or, that the said bill has been taken as con- 
 fessed by the said defendant, C. D. (and E. D.), for want of 
 an appearance), and that afterwards and before any- further 
 
 proceedings had ben had in the said cause and on the 
 
 day of , A. D. 19 . . , the said complainant did, for a 
 
 valuable consideration, assign and transfer the subject matter 
 of the said suit, that is to say, the "note and indenture of mort- 
 gage in the said bill mentioned and the indebtedness thereby 
 secured, to the said petitioner, B. F., and that the said E. P. 
 is now the owner thereof and of the whole thereof, and that 
 the said complainant, A. B., has now no interest whatever 
 therein or in any part thereof, and that a copy of the said 
 petition and of the afiBdavits accompanying the same with 
 notice of the time and plaee of the presentation of the said 
 petition has been duly served on (each of) the defendants in 
 this cause : 
 
 On motion of , Esq., solicitor for the said petitioner, 
 
 it is ordered, adjudged and decreed that the prayer of the 
 said petition be granted, and that the said petitioner, E. P., 
 be, and he hereby is, substituted as the complainant in this 
 cause, and that he be allowed to prosecute the same for his 
 own benefit the same as though the said E. P. had been the 
 original complainant. 
 
 Circuit Judge. 
 
 Injunctions. 
 
 §298. An injunction is a remedial writ issued by a 
 Court of Chancery addressed to individual parties to a 
 suit, commanding them to do, or to refrain from doing 
 some particular act or acts. 
 
 It is a purely equitable remedy and cannot be issued, 
 even by the Supreme Court except in a suit in a court of 
 equity.^ 
 
 Injunctions are mandatory when the writ commands 
 the performance of some act or acts, prohibitory or pre- 
 
 1— Traverse City K. & G. E. Co. v. 
 Seymour, 81 Mich. 378. 
 
342 stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 
 
 ventive when the commission pf some contemplated act or 
 acts is forbidden. The latter form is that most com- 
 monly in use. 
 
 Injunctions are either permanent, when ordered to con- 
 tinue forever, which can only be done by a final decree; 
 or temporary when ordered to continue for a limited time 
 or until the happening of some future eyent. Temporary 
 injunctions may be issued by order of the court at any 
 time during the progress of a cause as well as by the 
 final decree. 
 
 An injunction issued during the progress of a cause is 
 often called an interlocutory or preliminary injunction, 
 and is usually issued for the purpose of preserving the 
 subject matter of the suit in its then present condition 
 until the final disposition of the case. A mandatory in- 
 junction will not be granted as interlocutory or prelimi- 
 nary except in very rare eases where the necessity is 
 great and urgent and the rights of the parties are free 
 from doubt, as where a railroad company filed a bill to 
 compel another railroad company to receive from it and 
 deliver to it interstate freight.* 
 
 § 299. Prohibitory or preventive injunctions are often 
 issued as interlocutory during the pendency of a suit and 
 may be issued in cases of urgency and necessity imme- 
 diately upon the filing of the bill without previous notice 
 to the party whose acts are thereby forbidden. 
 
 § 300. The granting of a preliminary writ of injimc- 
 tion is a discretionary power vested in Courts of Chan- 
 cery of original jurisdiction. A complainant is not en- 
 titled to such an injunction as a matter of right, espe- 
 cially in cases in which he might obtain full relief and 
 protection by the final decree or by a suit at law,^ and the 
 granting or refusing the same rests in the sound discre^ 
 
 2 — Toledo etc. By. Co. v. Penn- Co. v. Cir. Judge, 98 Mich. 141; 
 
 sylvania etc. E. R. Co. 54 Fed. 730; Edwards v. Allouez Mining Co., 38 
 
 J9 L. E. A. 395; In Ee. Lennon 166 Mich. 46; G. R. Eleeirie E. Co. v. 
 
 U. S. 543; Ladd v. Mynn, 90 Mich. Cir. Judge, 156 Mich. 419; Campau 
 
 181 ; Arnold v. Bright, 41 Mich. 207. v. National Film Co. 159 Mich. 169. 
 
 3^-Detroit & Birmingham P. E. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 343 
 
 tion of the court in considering the particular state of 
 facts in each case and the Supreme Court Avill not inter- 
 fere unless such discretion has been plainly and grossly 
 abused or where the court has exceeded its powers,* or 
 when the question involved is one of law merely.^ 
 
 § 301. One court cannot enjoin another court.® Chan- 
 cery will not attempt to restrain the prosecution of a 
 suit or proceeding in a sister state or in a Federal Court '^ 
 nor interfere with proceedings commenced and already 
 pending in this state in a court of equity of co-ordinate 
 jurisdiction.* 
 
 Possession of lands cannot be changed or disturbed 
 pendente lite by injunction.^ 
 
 The directors of a corporation cannot be deprived of 
 the management of the corporate business by injunc- 
 tion.^" Nor can a railroad company be restrained from 
 operating its road except on condition of its carrying lum- 
 ber at a certain rate.^^ 
 
 A Court of Chancery has no jurisdiction to enjoin the 
 threatened violation of a municipal ordinance unless the 
 act threatened would constitute a nuisance if per- 
 formed.^^ 
 
 Nor to issue a mandatory injunction to remove a high 
 fence alleged to have been erected maliciously and for 
 
 4 — ^Detroit & Bir. Plank Eoad Co. 8 — ^Barnum etc. Works v. Speed, 
 
 V. Cir. Judge, 98 Mich. 141 ; Harbor 59 Mich. 272 ; McLean v. Cir. Judge, 
 
 Springs Lumber Co. v. Cir. Judge, 52 Mich. 257. 
 
 160 Mich. 497; Geo. N. Fletcher & 9 — People v. Simonson, 10 Mich. 
 
 Sons V. Cir, Judge, 136 Mich. 511; 335; Arnold v. Bright, 41 Mich, 207; 
 
 Dowd V. Cir. Judge, 118 Mich. 86; Toledo etc. E. Co. v. Detroit L. & 
 
 Briggs V. Cir. Judge, 118 Mich. 200; N. E. Co., 61 Mich. 9; Hemingway 
 
 Strenglein v. Cir. Judge, 128 Mich. v. Preston, Walk. Ch. 528; Tawas 
 
 440; Central etc. Paving Co. v. Cir. etc. E. Co. v. Cir. Judge, 44 Mich. 
 
 Judge, 132 Mich. 126; Blain v. Cir. 479. 
 
 Judge, 145 Mich. 59. 10— Port Huron C. G. E, Co. v. 
 
 5 — Ionia etc. Insurance Co. v. Cir. Judge, 31 Mich. 456. 
 
 Cir. Judge, 100 Mich. 606. 11 — Tawas & Bay City E. Co. v. 
 
 6 — Mabley v. Superior Court Cir. Judge, 44 Mich. 479. 
 
 Judge, 41 Mich. 31. 12— St. Johns v. MfiParlan, 33 
 
 7 — Carroll v. Farmers etc. Bank, Mich. 72; see Micks v. Mason, 145 
 
 Harr. Ch. 197. Mich. 212. 
 
344 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 mere spite, until the final hearing; and such an injunction 
 pendente lite is invalid.'* 
 
 Nor to restrain a trespass upon land the title to .which 
 is in dispute." 
 
 Nor to enjoin a misuser of corporate franchises, not 
 constituting a nusance, nor to compel the performance 
 of corporate duties.'® 
 
 Nor to enjoin the prosecution of a criminal case.'* 
 Nor to restrain the prosecution of an action at law where 
 the defendant (the plaintiff in the suit at law) has, by 
 the well settled rules of law, a cause of action ; because in 
 the individual case a hardship would be- suffered by the 
 complainant." 
 
 §302. Courts of Chancery have general jurisdiction 
 and power to grant preliminary injunctions when neces- 
 sary and proper to preserve the rights and equities of 
 the parties. 
 
 They have jurisdiction to enjoin the action of town- 
 ship boards of health in establishing cemeteries where 
 such action is illegal and injurious to others '^ and to 
 enjoin the fraudulent execution of a trust.'* Also to en- 
 join the ultra vires act of a corporation to the injury of 
 the complainant.^" 
 
 And to restrain the cutting of timber on mortgaged 
 land whereby the security of the mortgagee is im- 
 perilled,^' or on land conveyed in trust for the creditors 
 of the grantor,^^ or by tenant for life,^^ or, at the suit 
 
 13— Ladd v. Flynn, 90 Mich. 181. 18— Upjohn v. Board of Health, 
 
 14— Andries v. Detroit G. H. & M. 46 Mich. 542. 
 
 E. Co., 105 Mich. 557; Dolan v. 19 — Morrison v. Meyer, 63 Mich. 
 
 Smith, 147 Mich. 276; Nichols v. 238. 
 
 Boyne City Lumber Co., 157 Mich. 20 — Alpena v. Cir. Judge, 97 Mich. 
 
 234; see Campbell v. Cir. Judge, 111 550; Cnrtenius v. E. E. Co.. 37 Mich. 
 
 Mich. 575; F. H. Wolf Brick Co. v. 588; Dodge v. Cir. Judge, 118 Mich. 
 
 Lonyo, 132 Mich. 162. 189 ; Atty. Gen. v. Detroit, 148 Mich. 
 
 15 — Erin Township v. Detroit & E. 71. 
 
 P. E. Co., 115 Mich. 465. 21— Sherwood v. Cir. Judge, 105 
 
 16— Osborn v. Cir. Judge, 114 Mich. 540. 
 
 Mich. 655. 22— Webster v. Peet, 97 Mich. 326. 
 
 17— Wierengo v. Mason, 115 Mich. 23— Duncombe v. Felt, 81 Mich. 
 
 646. 332. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 345 
 
 of a township treasurer, upon wild lands.^* And to re- 
 strain waste generally.2^ Also to restrain public ofificers 
 from proceeding illegally or improperly under claim of 
 right or color of office to do any act prejudicial to individ- 
 ual rights.^" 
 
 § 303. Also to restrain inequitable interference with 
 water rights or diversion of water ^^ and from erecting 
 dams or obstructions to the natural flowing of streams so 
 as to cause the lands of another to be injuriously flooded,^* 
 and from draining one's own land by artificial drains so 
 as to throw the water, in greater volume than the natural 
 flowage, upon the land of another.^* It may, at the suit 
 of the purchaser of a mill on a mortgage foreclosure, 
 restrain the former owner from interfering with the 
 dam and race to the injury of the supply of water to run 
 the Tnill.^o 
 
 Also to restrain misapplication of public money by pub- 
 lic officers at the suit of a taxpayer.*^ 
 
 And to restrain a threatened injury to land ^^ and a 
 continuous trespass.^* 
 
 24 — C. L., Sec. 3979 as am. No. ferson Township, 114 Mich. 357; 
 
 34 Pub. Acts of 1901 p. 55; Eoss- Hyatt v. Albro, 121 Mich. 638. 
 
 man v. Adams, 91 Mich. 69; Cald- 28— Treat v. Bates, 27 Mich. 390; 
 
 well V. Ward, 83 Mich. 13. Stone v. Eosoommon Lumber Co., 59 
 
 25— Chapel v. Hull, 60 Mich. 167; Mich. 24; Pluehak v. Crawford, 137 
 
 Drake v. McLean, 47 Mich. 102. Mich. 508. 
 
 26— Cooper v. Alden, Harr. Ch. 72 ; 29— Gregory v. Rich, 64 Mich. 37 ; 
 
 Everett v. Marquette, 53 Mich. 450; Cranson v. Snyder, 137 Mich. 340; 
 
 Atty. Gen. v. Detroit, 71 Mich. 92; Page v. Huckins, 150 Mich. 103. 
 
 Eyan v. Brown, 18 Jlich. 196; De- 30 — Curtis v. Norton, 58 Mich, 
 
 yaux V. Detroit, Harr. Ch. 98; Zabel 411; Smith v. Dresselhouse, 152 
 
 T. Harshman, 68 Mich. 270; Vander- Mich. 451. 
 
 lip V. Grand Eapida, 73 Mich. 522 ; 31~Alpena v. Cir. Judge, 97 Mich. 
 
 Detroit v. Cir. Judge, 79 Mich. 384; 550. 
 
 Detroit v. Cir. Judge, 127 Mich. 604. 32— Newaygo Mfg. Co. v. Chicago 
 
 27_Hall V. Ionia, 38 Mich. 493; & West Mich. K. Co., 64 Mich. 114; 
 
 Turner v. Holland, 54 Mich. 300; Stone v. Eoscommon Lumber Co., 
 
 Treat v. Bates, 27 Mich. 390; Hoxsie 59 Mich. 24. 
 
 V. Hoxsie, 38 Mich. 77; Koopman v. 33— Wilmarth v. Woodcock, 58 
 
 Blodgett, 70 Mich. 610; Hilliker v. Mich. 482; Campbell v. Kent Cir. 
 
 Coleman, 73 Mich. 170; Rummell v. Judge, 111 Mich. 575; F. H. Wolf 
 
 Lamb, 100 Mich. 424; Stock v. Jef- Brick Co. v. Lonyo, 132 Mich. 162; 
 
346 stage's MICHIGAN CHANCERY PBACTICE AND FOKMS 
 
 Also to restrain the commission of any act which would 
 create a nuisance.** 
 
 Also to restrain proceedings in a suit in ejectment- 
 brought against the equitable owner of land by one who 
 claims under a conveyance or succession of conveyances 
 made in bad faith for the purpose of defrauding credit- 
 ors,*^ also as to part of premises where complainant has 
 a right to file a bill to quiet title to the whole thus sav- 
 ing a multiplicity of suits.** 
 
 § 304. Chancery will also restrain the making of con- 
 veyances of real estate or transfers of notes or other 
 instruments during the pendency of a suit La cases where 
 the equities of the complainant would be thereby im- 
 perilled.*^ 
 
 And will also restrain the erection of obstructions in a 
 public alley or private right of way.*^ And will at the 
 suit of a highway commissioner restrain a plank road 
 company from using other material than that required 
 by statute.*^ 
 
 An injunction will be granted to restrain members of 
 a parish from interfering with the management of the 
 church property by the proper officers.*" 
 
 Also to prevent interference with the construction of 
 an electric street railway*^ and to restrain the collec- 
 tion or negotiation of a note obtained by fraud *^ and to 
 
 Ehoades v. McNamara, 135 Mich. Mich. 336; Sherman v. American 
 644; Sag. Salt & Lumber Co. v. Gif- Stove Co., 85 Mich. 169. 
 fore, 145 Mich. 287; Harbor Springs 38 — Mineral Bath Co. v. Brewery 
 Lumber Co. v. Cir. Judge, 160 Mich. Co., 151 Mich. 555; Mt. Clemens v. 
 497; CuUen v. Ksiaszkiewiez, 154 Sanitarium Co., 127 Mich. 115; La- 
 Mich. 627. throp v. Eisner, 93 Mich. 599. 
 
 34— White v. Fobes, Walk. Ch. 39— Plank Eoad Co. v. Cir. Judge, 
 
 112; Treat v. Bates, 27 Mich. 390; 109 Mich. 371. 
 
 Robinson v. Baugh, 31 Mich. 290; 40 — Eichter v. Kabat, 114 Mich, 
 
 see "Nuisance." 575; Foley v. Kleibuseh, 123 Mich. 
 
 35— McKibbin v. Bristol, 50 Mich. 416. 
 
 319. 41— Detroit City By. Co. v. Mills, 
 
 36 — Woods V. Monroe, 17 Mich. 85 Mich. 634; but see Nicholls v. 
 
 238. St. By. Co., 87 Mich. 361. 
 
 37 — Smith v. Waalkes, 109 Mich. 42 — Henriques v. Savings Bank, 84 
 
 16; McLean v. Fitzsimmons, 80 Mich. 168. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 347 
 
 restrain the violation of the covenants in a lease *^ and 
 to restrain a person from carrying on a particular busi- 
 ness in violation of his express contract.** 
 
 § 305. An injunction will also he granted to prevent 
 unlawful interference with the business of the complain- 
 ant by what is known as "boycotting" or "picketting" by 
 iadividuals or combinations of individuals such as 
 "trades unions" so called.*^ 
 
 An interlocutory injunction will be granted, in the dis- 
 cretion of the court to restrain the commission of any 
 threatened, or reasonably to be apprehended, wrongful 
 act of a defendant which will operate inequitably to the 
 injury of the complainant or tend to imperil the fund or 
 property in dispute whenever the exigency of the par- 
 ticular case requires the exercise of the power to use this 
 harsh remedy. 
 
 § 306., The court will enjoin the commencement or 
 prosecution of suits or proceedings at law in cases where 
 it would be inequitable to prosecute such suits ** and to 
 enjoin the enforcement or collection of inequitable judg- 
 ments." 
 
 In such cases the injunction does not operate against 
 the tribunal but restrains the parties from proceeding and 
 
 43 — Wertheimer v. Circuit Judge, Cooley, 44 Mich. 14; Woods v. Mon- 
 83 Mich. 56. roe, 17 Mich. 238; Shaw v. Cham- 
 
 44— Doty V. Martin, 32 Mich. 462 
 Hubbard v. Miller, 27 Mich. 15 
 Beal V. Chase, 31 Mich. 490; Tim- 
 merman V. Dever, 52 Mich. 34 
 Thompson v. Andrus, 73 Mich. 551 
 Thum Co. V. Tloczynski, 114 Mich, 
 
 bers, 48 Mich. 355; Detroit & M. E. 
 Co. y. Brown, 37 Mich. 533 ; MeKib- 
 bin V. Bristol, 50 Mich. 319; Wright 
 V. Hake, 38 Mich, 525; Teed v. Mar- 
 vin, 41 Mich. 216; Innes v. Stewart, 
 36 Mich. 285 ; Haessig v. Brown, 34 
 
 149; TJp Eiver Ice Co. v. Denier, 114 Mich. 503; Chicago & Q. T. E. Co. v. 
 
 Mich. 296. Turner, 79 Mich. 133 ; John Hancock 
 
 45 — ^Beck v. Teamsters Protective Mut. Life Ins. Co. v. Dick, 114 Mich. 
 
 Union, 118 Mich. 497; Ideal Mfg. 337. 
 
 Co. V. Ludwig, 149 Mich. 132; Bald- 47— Burpee v. Smith, Walk. Ch. 
 
 win V. Eseanaba Liquor Dealers 327; Eoberts v. Miles, 12 Mich. 297; 
 
 Assn. 165 Mich. 98, and eases cited Soriven v. Hurseh, 39 Mich. 98 ; Kal- 
 
 on p. 110. lender v. Neidhold, 98 Mich. 517; 
 
 46 — Wyehoff v. Victor Sewing Ma- Child v. Emerson, 99 Mich. 38. 
 chine Co., 43 Mich. 309; Seager v. 
 
348 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 the current of authority supports the proposition that 
 a judgment of such court is not void because of dis- 
 obedience of the injunction.** 
 
 § 307. It is provided by statute that no injunction shall 
 issue to stay the trial of any general action in a court 
 of law until the party applying shall execute a bond with 
 one or more sufficient sureties to the plaintiff in such 
 action in such sum as the judge or officer allowing the 
 injunction shall direct, conditioned for the payment to the 
 plaintiff or his legal representatives of all moneys which 
 may be recovered by such plaintiff or his representatives 
 or the collection of which may be stayed by such injunc- 
 tion, in such action at law for debt and damages and 
 for costs therein ; and also for the payment of such costs 
 as may be awarded to them in the Court of Chancery in 
 the suit in which such injunction shall issue.** The giv- 
 ing of this bond is imperative.^" 
 
 § 308. No injunction shall issue to stay proceedings at 
 law in any personal action after verdict and before judg- 
 ment, unless a sum of money equal to the amount of the 
 judgment be first deposited with the court from which 
 the injunction issued by the party applying for such in- 
 junction, or a bond for the payment thereof given.'^ 
 
 No injunction shall issue to stay proceedings at law in 
 any personal action after judgment unless a sum of 
 money equal to the amount of such judgment including 
 costs be first deposited by the party applying for such 
 injunction, or a bond in lieu thereof given nor unless 
 such party shall in addition execute a bond with one or 
 more sufficient sureties to the plaintiff in such judgment 
 in such sum as the. judge or officer allowing the injunction 
 shall direct condititjned for the payment to the plaintiff 
 or his legal representation of all such damages and costs 
 
 48— Burpee v. Smith, Walk. Oh. 50— Carroll v. Bank, Harr. Ch. 
 
 327; Geddis v. Circuit Judge, 151 197; Jenness v. Smith, 58 Mich. 280. 
 Mich. 122. 51— C. L., Sec. 503. 
 
 49— C. L., See. 502. 
 
stage's MICHIGAN CHANCERY PEACTICE AND POKMS 349 
 
 as may be awarded to them by the court at the final hear- 
 ing of the case.^* 
 
 §309. No injunction shall issue to stay proceedings 
 at law in any action for the recovery of lands or the 
 possession thereof, after verdict unless the party apply- 
 ing therefor shall execute a bond with one or more suffi- 
 cient sureties to the plaintiff in such action at law in such 
 sum as the judge or officer allowing the injunction shall 
 direct conditioned for the payment to such plaintiff or his 
 legal representatives of all such damages and costs as 
 may be awarded to them in case of a decision against the 
 party obtaining such injunction.^ ^ 
 
 The damages to be paid upon the dissolution of such 
 injunction shall be ascertained by reference to a circuit 
 court commissioner or in such manner as the court shall 
 direct, and shall include not only the reasonable rents 
 and profits of the land recovered by such verdict but 
 all waste committed thereon after the granting of the. 
 injunction.^* 
 
 §310. The circuit judge may dispense with any de- 
 posit of money above mentioned and may in lieu thereof 
 direct the execution of a bond with at least two sureties 
 conditioned to pay the amount so required to be deposited 
 or to enlarge the penalty and condition of the bond re- 
 quired in addition to the deposit as may be requisite.'® 
 
 When an injunction is applied for to stay proceedings 
 at law in an action after judgment or verdict, on the 
 ground that such judgment or verdict was obtained by 
 fraud the judge or officer granting the injunction may 
 dispense with the deposit of any money and with the 
 execution of any bond.^® 
 
 The sufficiency of the sureties on any of the above 
 bonds shall be ascertained either by the certificate of a 
 circuit court commissioner that he has inquired into 
 
 52— C. L., Sec. 504; see Hinkler 54— C. L., See. 508. 
 
 V. Baldwin, 93 Mich. 422; Hatha- 55— C. L., Sec. 509. 
 
 way V. Weeks, 34 Mich. 237. 56— C. L., Sec. 510. 
 
 53— C. L., Sec. 507. 
 
350 stage's MICHIGAN CHANCEBY PRACTICE AND POEMS 
 
 the circumstances of the sureties and is satisfied of their 
 suflSciency or by the affidavit of the surety that he is a 
 householder resident within this state and worth a sum 
 equal to the amount of the penalty of the bond over and 
 above all debts and demands against him.*^ 
 
 The bond when required must be filed with the register 
 of the court before the issuing of the injunction.^* 
 
 Whenever the condition of the bond is broken or the 
 circumstances require such delivery the circuit judge 
 shall direct the delivery thereof to the person entitled 
 to the benefit thereof.'^* 
 
 §311, The circuit judge and circuit court commis- 
 sioner of their respective counties have power to grant 
 injunction to stay proceedings at law.*" But by a later 
 statute it is provided that "No circuit court commis- 
 sioner shall be authorized to grant any order to stay pro- 
 ceedings before judgment in any cause in which a verdict 
 shall have been rendered.®^ 
 
 § 312. A circuit court commissioner cannot grant any 
 injunction to stay proceedings at law unless reasonable 
 notice of the time and place of hearing the applifcation 
 therefor shall have been previously given to the adverse 
 party. Nor can he grant injunction without such notice 
 in any case, unless the judge of the Circuit Court in which 
 the application is made shall be absent from the county 
 at the time of such application, or is disqualified from 
 granting an injunction in the cause, nor unless in the 
 opinion of such commissioner the peculiar exigencies of 
 the case require it for manifest reasons to be shown by 
 affidavit of the facts and circumstances. Nor can he 
 grant any injunction restraining the execution or per- 
 formance of any public improvement, nor to compel a de- 
 fendant to refrain from doing any act where the injunc- 
 tion will necessarily produce great and irreparable injury 
 to the defendant if the claim of the complainant is not 
 
 57—0. L., See. 511. 60— C. L., Sec. 514. 
 
 58— C. L., Sec. 512. 61— C. L., Sec. 1069. 
 
 59— C. L., Sec. 513. 
 
stage's MICHIGAN OHANCEEY PRACTICE AND FOKMS 351 
 
 sustained. Nor can he grant any injunction in any case 
 where no special provision is made by law for security 
 except where the injunction prayed for is against a judg- 
 ment debtor who is made defendant in a creditor's bill 
 unless he shall take from the complainant or his agent 
 a bond to the party enjoined in such sum as shall be 
 deemed sufficient and in not less than five hundred dollars 
 with sufficient surety or sureties to be approved by him, 
 conditioned to pay the party enjoined such damages as 
 he may sustain by reason of the injunction if the court 
 shall eventually decide that the complainant was not 
 equitably entitled to such injunction, such damages to be 
 ascertained by a circuit court commissioner or by the 
 court having jurisdiction of the cause in which the injunc- 
 tion issued, as such court shall direct. Such circuit court 
 commissioner shaU, before the register shall issue the 
 writ, file such bond with such register in chancery who 
 shall carefully preserve the same for the benefit of the 
 obligee therein named.®" 
 
 No circuit court commissioner shall be empowered 
 to vacate any order or decree of the Circuit Court or 
 any order made by any circuit judge, nor to suspend or 
 in any manner affect any order of the Supreme Court.** 
 
 K an application for any order made to any justice 
 of the Supreme Court, judge of a Circuit Court or circuit 
 court commissioner, be refused in whole or in part or 
 granted conditionally or on terms, no subsequent applica- 
 tion in reference to the same matter and in the same 
 stage of the proceedings shall be made to any other cir- 
 cuit court commissioner ; and if upon a subsequent appli- 
 cation any such order be made by a circuit judge or cir- 
 cuit court commissioner, it shall be revoked by suchtjudge 
 or commissioner or by any justice of the Supreme Court, 
 upon due proof of the facts.** 
 
 § 313. When any circuit court commissioner shall 
 have granted or refused to grant any injunction, or shall 
 have made or refused to make any order in reference to 
 
 62— Ch. Eule 21. 64— C. L., Sec. 1075. 
 
 63— Gil. Enle 21, C. L., Sec. 1074. 
 
352 stage's MICHIGAN CHANCEEY PEACTICB AND FOEMS 
 
 any matter or proceeding such injunction or order shall 
 not be affected by any order or proceeding in relation 
 thereto, made by any other circuit court commissioner 
 ■while the commissioner making or refusing such order, 
 or granting or refusing such injunction, shall be com- 
 petent to act in the premises. And any commissioner re- 
 fusing to grant any order or injunction, shall indorse his 
 refusal upon the application for the order or bill of com- 
 plaint, as the case may be.^^ 
 
 A party making such subsequent application after the 
 first has been disposed of is guilty of contempt and liable 
 to be punished by fine and imprisonment.^* 
 
 §314. Although the Supreme Court has no original 
 jurisdiction in equity yet after a case has been brought 
 into that court by appeal, and an exigency arises, not 
 contemplated by the bill, the Supreme Court has authority 
 to issue a temporary injunction pendente lite for the 
 preservation of the property and its retention within the 
 jurisdiction of the court.^^ 
 
 § 315. The Bill. If the bill merely prays for an injunc- 
 tion as a part of the relief to be granted on final hearing 
 and is not to be used as the ground of an application for 
 a preliminary injunction it need not be on oath unless 
 it is founded on grounds which call for a verified bill.*^ 
 
 But a bill praying for a preliminary injunction must be 
 on oath and the facts and circumstances which are relied 
 upon as ground for the injunction must be sworn to upon 
 positive personal knowledge.®^ If the complainant can 
 only state such facts upon information and belief he 
 should obtain the affidavits of persons having personal 
 knowledge of the facts and annex such affidavits to his 
 bill and refer to them therein ; and it is good practice to 
 
 65— C. L., Sec. 1082. 69— Toledo A. A. & N. Mich. B. 
 
 66— C. L., Sec. 1076. Co. v. Detroit L. & N. R. Co., 61 
 
 67 — Patek t. Patek, 166 Mich. Mich. 9; Manistique Lumber Co. v. 
 
 443. Lovejoy, 55 Mich. 189; Cicotte v. 
 
 68 — EoMnBon v. Baugh, 31 Mich. Anciaux, 53 Mich. 227; Allen v. CSr. 
 
 290; Glidden v. Norvell, 44 Mich. Judge, 159 Mich. 612. 
 202. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 353 
 
 have corroborative affidavits of persons who know the 
 facts annexed to the bill in every case when there is any 
 reason to expect that a motion will be made to dissolve 
 the injunction. 
 
 The prayer of the bill should state clearly and distinctly 
 the acts which are sought to be restrained and the names 
 of the defendant or defendants who are sought to be en- 
 joined and should pray that he or they be so restrained 
 in the meantime during the pendency of the suit. 
 
 §316. In cases of extreme urgency where any delay 
 whatever would imperil the rights of the complainant or 
 when there is reason to believe that the giving of the 
 notice of an application for an injunction would induce 
 the opposite party to do the act sought to be restrained 
 before the application could be heard, a preliminary in- 
 junction may be granted ex parte without notice on filing 
 the biU in which case the circuit judge, if the application 
 be made to him, will endorse on the bill an order substan- 
 tially as follows : "On filing the within (or annexed) bill 
 of complaint let an injunction issue pursuant to the 
 prayer thereof." If any conditions such as the filing of 
 a bond or the like are prescribed such conditions should 
 be stated clearly in the order. 
 
 § 317. In many cases the practice has been followed of 
 making an order upon the filing of the bill, that the de- 
 fendant show cause at a certain time and place why an 
 injunction should not issue as prayed in the bill, and that 
 a copy of the bill and affidavits, if any, thereto annexed 
 and of such order be served on the defendant a certain 
 length of time before the day set for showing cause. In 
 emergency cases the order to show cause may include a 
 restraining order restraining the commission of the act 
 sought to be enjoined in the meantime until such order 
 to show cause can be heard. Such restraining order is in 
 effect, and may be in form, a temporary injunction. 
 
 A bill sworn to entirely on information and belief is 
 sufficient to support an order to show cause and may be 
 
354 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 supported by proof of the facts at the hearing of the 
 showing of cause.'"' 
 
 When there is no immediate urgency the complainant 
 should give notice to the defendant of his intention to 
 apply by motion for an injunction as in ordinary motions 
 and the notice should be accompanied by a copy of the bill 
 (if such copy has not already been served) and copies of 
 all affidavits to be used on such motion. Such a motion 
 may be made at any time during the progress of the cause 
 and will be heard and disposed of in the same manner as 
 other motions. It will be remembered that, as before 
 noted, no second application can be made after the dis- 
 position of the motion. 
 
 §318. "In case the circuit judge of any circuit, and 
 the other officers of any county authorized to grant in- 
 junctions are absent, sick or in any manner disqualified 
 from ordering or allowing an injunction in any case 
 pending or about to be commenced in such circuit or 
 county, upon due proof of such facts by affidavit, the cir- 
 cuit judge of any judicial district adjoining the judicial 
 district in which said circuit or county is situated, shall 
 have authority at chambers or at any place where he may 
 be, to grant or deny such injunction the same as if he 
 were the circuit judge of the circuit in which such suit is 
 pending or about to be commenced, and after such injunc- 
 tion is allowed as aforesaid the judge ordering the same 
 shall have concurrent jurisdiction to modify or dissolve 
 the same, with the presiding judge of the circuit wherein 
 such suit is pending. " ''^ 
 
 § 319. Dissolution. As the granting of a preliminary 
 injunction rests in the sound discretion of the court so 
 also does the continuance or dissolution thereof. 
 
 If the dissolution of an injunction will probably deprive 
 the complainant of all benefits he might derive from 
 succeeding in his suit the injunction will not bg dissolved 
 as a matter of course on the coming in of an answer detiy- 
 
 70— Allen v. Cir. Judge, 159 Mich. 71— C. L., See. 555. 
 
 612. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 355 
 
 ing all the equity of the bilF^ although it was formerly 
 the general rule that if the answer was positive, full and 
 satisfactorily met and denied the equity of the bill, the 
 injunction would be dissolved.''* An injunction will be 
 dissolved before answer as improvidently granted if 
 there is no equity in the bill or if granted contrary to 
 lawJ* 
 
 § 320. A motion to dissolve an injunction is made and 
 heard like any other motion in chancery. If made before 
 answer it may be shown by plea that there is no equity 
 in the bill ''^ and by aflSdavit that the injunction was irreg- 
 ularly issued or that the officer issuing it was misled and 
 induced to grant it contrary to law.''*' In cases of waste 
 or irreparable mischief and partnership suits affidavits 
 may be used as substitutes for an answer on motions to 
 dissolve but the general rule is that a motion for the dis- 
 solution of an. injtmction must be founded on an answer 
 to the biU." 
 
 An answer which admits the facts on which the equity 
 of the bill Tests but sets up new matter in evidence and 
 defence is not sufficient for a dissolution of the injunc- 
 tion.''* Affidavits may be used by both parties in addition 
 to the pleadings on the hearing of the motion. Where the 
 complainant fails to appear and oppose the motion to dis- 
 solve after due notice the defendant may take an order 
 dissolving the injunction with costs.'"' 
 
 The notice of motion to dissolve the injunction should 
 
 72— Atty. Gen. v. Oakland Go. 75 — Eldred v. Camp, Harr. Ch. 
 
 Bank, Walk. Ch. 90; McTavish v. 162. 
 
 Kent Circuit Judge, 122 Mich. 242; 76 — Carroll v. Farmers etc. Bank, 
 
 Ctiera v. Cir. Judge, 97 Mich. 628; Harr. Ch. 197. 
 
 Krolik V. Cir. Judge, 112 Mich. 486. 77— Sacket v. Hill, 2 Mich. 182. 
 
 73— Eldred v. Camp, Harr. Ch. 162. 78— Atty. Gen. v. Oakland Co. 
 
 74_Cooper v. Alden, Harr. Ch. Bank, Walk. Ch. 90. 
 
 72; Carroll v. Farmers etc. Bank, 79— Kellogg v. Barnes, Harr. Ch. 
 
 Harr. Ch. 197; Supervisors v. Cir. 258. 
 Judge, 106 Mich. 166; Eddy v. Lee, 
 73 Mich. 123; Walsh v. King, 74 
 l£ich. 350. 
 
356 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 state the reasons for wMcli the injunction should be dis- 
 solved. 
 
 §321. Where the question is one of law merely or 
 there has been a gross abuse of discretion, the granting 
 and dissolution of an injunction may be reviewed in the 
 Supreme Court by mandamus.*" 
 
 AFFIDAVIT TO BILL FOR INJUNCTION OR NB EXEAT 
 State of Michigan, } 
 Comity of I **■•■ 
 
 of, etc,, , being duly sworn, says that he 
 
 has read (or heard read) the bill of complaint hereto annexed 
 and that he knows of his own kowledge that (here state fully 
 the facts within the knowledge of affiamt), and that he has no 
 interest whatever in the event of the suit commenced by the 
 filing of the said bill. 
 (Jurat.) (Signature.) 
 
 [Affidavits of different persons, each having knowledge of 
 different parts of the matters of fact, may be annexed to the 
 bill, to the end that all the material facts may be positively 
 sworn to.] 
 
 (Affida/uits of persons having an interest may he used although 
 not of the same weight on motion to dissolve; in such case omit 
 the clause, that he has no interest, etc.) 
 
 OfiDER EX PARTE FOR INJUNCTION ENDORSED ON 
 
 BILL. 
 On reading and filing the within bill of complaint, let a 
 preliminary injunction issue according to the prayer thereof. 
 
 Dated this day of , 19 . . . 
 
 X. Y. 
 Circuit Judge. 
 
 CONDITIONED ON FILING A BOND BY COMPLAINANT. 
 
 On reading and filing the' within bill of complaint, let a 
 preliminary injunction issue according to the prayer thereof; 
 provided that the complainant first file with the register of this 
 court a bond in the penal sum of dollars, with suffi- 
 cient surety or sureties to be approved by such register, con- 
 ditional that' (state condition). Dated this day of 
 
 ,A. D. 19... X. Y. 
 
 Circuit Judge. 
 
 80— Ionia Mut. F. Ins. Co. v. Cir. v. Cir. Judge, 79 Mich. 384; Steng- 
 Judge, 100 Mich. 606; Thomas v. lein v. Cir. Judge, 128 Mich. 440. 
 ar. Judge, 116 Mich. 106; Detroit 
 
stage's MICHIGAN CHANCEBY PRACTICE AND POEMS 357 
 
 OEDER TO SHOW CAUSE, 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and fil ing the bill of complaint in this cause and 
 on motion of N. 0., solicitor and of counsel for the complain- 
 ant: It is ordered that the above named defendant, C. D., 
 
 show cause before t^ court on the ^.u day of .Or:'.'.K ., 
 
 A. D. 19.., at .f7:7?rr. o'clock in the -j^aCT:. noon of that 
 day, {or, at the coming in of the court on that day or so soon 
 thereafter as counsel can be heard), at the court house in the 
 of , in said county of , why an in- 
 junction should not issue in the meantime and during the pend- 
 ency of the said suit according to the prayer of the said bill. 
 
 And it is further ordered that the said complainant cause 
 a copy of this order, together with a copy of the said bill (and 
 of the af5davitl thereto annexed) to be served upon the said 
 defendant, C. D., at least . . . .V. . . days before the said .■?.■??-:.. 
 day of C^C^. . . , A. D. 19 .% gfon which he is required to show 
 cause as aforesaid. 
 
 . X. T. 
 Circuit Judge. 
 
 Where a restraining order is allowed in the meantime, add 
 the following: 
 
 And it is further ordered that in the meantime and until the 
 farther order of the court, the said defendant, C. D., his agents, 
 employees and servants do absolutely desist and refrain from 
 (state acts which are to he restrained). 
 
 OEDER FOE INJUNCTION ON MOTION APTEE NOTICE. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In tms cause on motion of N. 0., Esq., of counsel for the 
 complainant, and 0. P., Esq., of counsel for the defendant, 
 having been heard in opposition thereto : It is ordered that an 
 injunction issue in this cause restraining the defendant, C. D., 
 from (state acts restrained) in the meantime during the pen- 
 dency of this suit and until the further order of the court (If 
 conditional insert): provided that the complainant do within 
 
 days, file with the register of this court a bond in 
 
 the penal sum of dollars, with sufficient surety or 
 
 sureties to be approved by such register, conditioned (state 
 condition). 
 
 Circuit Judge. 
 
358 stage's MICHIGAN CHAITCEBT PBACTICE AND FOBMS 
 
 AFFIDAVIT FOR INJUNCTION EX PARTE BEFORE 
 CIRCUIT COURT COMMISSIONER WITHOUT 
 NOTICE. 
 (Title of court and cause.) 
 County of , ss. : 
 
 A. B. of , being duly sworn says that he is the com- 
 plainant in the above entitled cause (or that he is the agent 
 of the complainant in the above entitled cause and makes this 
 affidavit for and on behalf of the said complainant), and that 
 the honorable X. Y., judge of the said circuit court for the 
 
 county of : In Chancery, is now at the time of this 
 
 application absent from the said county of , (or, is 
 
 disqualified from granting an injunction in this cause for the 
 reason (state reason), and therefore application cannot be made 
 to him for an i"n junction in this cause). 
 
 And that the peculiar exigencies of this case require that 
 an injunction issue in this cause forthwith and without previous 
 notice to the defendant, and that the facts constituting such 
 exigency are as follows: (state facts fully), whereby manifest 
 reasons are shown for the necessity for the issuing of such in- 
 junction. And this deponent (if not the complainant, insert on 
 
 behalf of said complainant) prays that , Esq., a circuit 
 
 court commissioner of the said county of , may grant 
 
 the injunction as prayed in the said bill of complaint. 
 
 A. B. 
 
 Subscribed and sworn to before me this day of 
 
 , A. D. 19... 
 
 Notary Public, 
 
 County, Mich. 
 
 My commission will expire 
 
 ORDER EX PARTE BY CIRCUIT COURT 
 COMMISSIONER. 
 State of Michigan. 
 
 th Judicial Circuit : 
 
 In Chancery. 
 
 Suit pending in the Circuit Court for the County of : 
 
 In Chancery. 
 
 At my office in , on the day of , 
 
 A. D. 19... 
 
 A. B., Complainant, ] 
 
 C. D. and E. F., Defendants. J 
 
 In this cause it appearing by the affidavit of A. B., the above 
 named complainant, that the honorable X. Y., judge of the cir- 
 cuit court for the county of : In Chalicery, is now 
 
 at the present time absent from the said county of , 
 
stage's MICHIGAN CHANCERY PBACTICE AND FORMS 359 
 
 {or, is disqualified from granting an injunction in this cause 
 foT the reason (state reason), and that the peculiar exigencies 
 of the case require that an injunction issue forthwith and with- 
 out notice to the defendants, and on reading the bill of com- 
 plaint in this cause (and accompanying affidavits) it is ordered 
 that an injunction be issued according to the prayer of the said 
 bill (if conditional on fling a bond add:) upon the complainant 
 filing with the register of said court a bond to the defendants 
 
 in the penal sum of dollars with sufficient surety or 
 
 sureties to be approved by , conditional (state condi- 
 tion fully). 
 
 • J 
 
 Circuit Court Commissioner. 
 
 County, Mich. 
 
 ORDER ON BILL OF INTERPLEADER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading the bill of interpleader duly verified on file in 
 this cause and the affidavit on file of non-collusion- on motion 
 
 of , Esq., solicitor for the complainant, it is ordered 
 
 that an injunction issue pursuant to the prayer of the said bill, 
 upon the complainant paying iato the hands of the register of 
 
 this court the sum of dollars, mentioned in the said 
 
 biU. 
 
 > 
 
 Circuit Judge. 
 
 NOTICE OP APPLICATION TO CIRCUIT JUDGE AT 
 CHAMBERS FOR INJUNCTION. 
 (Title of court and cause.) 
 To the above named defendants: 
 
 Take notice : that on the day of , A. D. 
 
 19 . . , at o 'clock in the noon, the above named 
 
 complainant will make application to the Hon. X. Y., circuit 
 
 judge of the above mentioned court, at his chambers in 
 
 (or, to G. H., Esq,, a circuit court commissioner of said county 
 of ,' at his office in ) , f or an order that an in- 
 junction be issued in the above entitled cause according to the 
 prayer of the bill of complaint filed therein; which applica- 
 tion will be founded on the said bill of complaint (and the affi- 
 davit of M. N. on file) with copies whereof you are herewith 
 served. 
 
 Dated this day of , A. D. 19 . . . 
 
 Yours, etc., 
 
 K. L. 
 Solicitor for Complainant, 
 
360 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 ORDER FOR INJUNCTION BY CIRCUIT JUDGE AT 
 
 CHAMBERS AFTER NOTICE. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 At chambers at , on the day of , 
 
 A. D. 19... 
 
 Present: the Hon. X. Y. 
 Circuit Judge. 
 A. B., Complainant, | 
 
 C. D. and E. F., Defendants. J 
 
 In this cause it appearing that due notice of the time and 
 place of the hearing of application for an injunction has been 
 given to the defendant, together with a copy of the bill of 
 
 complaint in this cause (and of the afiftdavit of in 
 
 support thereof) ; upon reading the said bill of complaint (and 
 accompanying affidavit), it is ordered that a writ of injunction 
 issue in this cause as prayed in the said bill, (if conditional on 
 giving hand add), upon the complainant filing with the regis- 
 ter of this court a bond to the defendant in the penal sum of 
 
 dollars with sufficient surety or sureties to be approved 
 
 by , conditional (state condition, which is usually that 
 
 the complainant will pay to the defendants such damages as they 
 may respectively sustain by reason of such injunction, if it 
 shall eventually be determined that the complainant was n«t 
 equitably entitled thereto). 
 
 X. Y., 
 Circuit Judge. 
 
 ORDER DENYING INJUNCTION ENDORSED ON BILL. 
 Having examined the within biU and the affidavit thereto 
 attached, I am of the opinion that the application for an in- 
 junction therein prayed ought not to be granted, and the same 
 is therefore denied. 
 
 (Circuit judge, or circuit court commissioner, as the case may 
 be.) 
 
 WRIT OF INJUNCTION. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 L. S. 
 
 To C. D- (name the defendants to be enjoined) and to his, 
 her or their counselors, attorneys, solicitors, officers, servants, 
 agents and workmen, and each and every of them — greeting: 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOSMS 361 
 
 Whereas, It has been represented to us, in our said Circuit 
 
 Court for the county of , in Chancery, on the part 
 
 of A. B., complainant, that he has lately exhibited his bill of 
 complaint, in our said court, against you, the said C. D. (if any 
 other defendants, name all of them whether to he enjoined or 
 not), praying therein to be relieved touching the matters therein 
 complained of; in which bill it is stated among other things, 
 that you are combining and confederating with others, to in- 
 jure the said complainant touching the matters set forth, in 
 the said bill, and that your actions and doings in the prem- 
 ises are contrary to equity and good conscience. We, therefore, 
 in consideration thereof, and of the particular matters in said 
 bill set forth, do hereby, in the name of the people of the state 
 of Michigan, strictly command you, the said C. D. (name the 
 defendants to he enjoined) and the persons before mentioned, 
 and each and every of you, under the penalty of ten thousand 
 doUars, to- be levied of your respective lands, goods and chattels, 
 to our use, that you do absolutely and entirely desist and refrain 
 from (state clearly the acts which they are enjoined from do- 
 ing), until the further order of this court in the premises. 
 
 Witness the Honorable circuit judge, and the seal 
 
 of our said court at the , in said county, this 
 
 day of , A. D. 19.. 
 
 Register in Chancery. 
 
 • > 
 
 Solicitor for Complainant. 
 
 RETURN OF SHERIFF, INJUNCTION PERSONALLY 
 
 SERVED. 
 State of Michigan, ) ^^ 
 County of , j 
 
 I, , sheriff of said county, do hereby certify that on 
 
 the day of , A. D. 19 . . , I personally served 
 
 the within injunction on the within named by deliver- 
 ing to a true and compared copy of the same, inscribed 
 
 "copy" at the same time I showed to this original, 
 
 with the seal of the court impressed thereon. 
 
 Sheriff. 
 My fees 
 
 BOND ON INJUNCTION RESTRAINING PROCEEDINGS 
 
 AT LAW. 
 Know aU men by these presents : that we, A. B. of (state resi- 
 dence) as principal, and J. K. of (state residence) and L. M. 
 (state residence) as sureties, are held and firmly bound unto 
 C. D. of (state residence) in the sum of dollars, law- 
 
362 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 ful money of the United States, to be paid to the said C. D., his 
 certaia attorney, executors, administrators or assigns; for which 
 payment well and truly to be made, be bind ourselves, our heira, 
 executors and administrators, jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals and dated this day of , 
 
 A. D. 19...* 
 
 "Whereas, the above bounden A. B. has filed his bill of com- 
 plaint in the Circuit Court for the county of : In 
 
 Chancery, as complainant aaginst the above named C. D. (and 
 others) as defendant {or defendants) praying among other 
 things for an injunction to restrain all further proceedings in 
 a certain personal action at law commenced in the Circuit Court 
 
 for the county of -, by the said C. D. as plaintiff against 
 
 the above bounden A. B. as defendant, which suit is now pend- 
 ing and at issue, but not yet brought to trial, and whereas the 
 Hon. X. Y., circuit judge of the said Circuit Court for the 
 
 county of In Chancery, has allowed an injunction 
 
 for that purpose according to the prayer of the said bill upon 
 the said A. R giving the security required by the statute in 
 like ease provided: 
 
 Now therefore the condition of this obligation is such that if 
 the above bounden A. B. shall well and truly, without fraud or 
 delay, pay or cause to be paid to the said C. D., plaintiff in the 
 said action at law, or his legal representatives, all moneys which 
 may be recovered by the said C. D., or his legal representatives 
 or the collection of which may be stayed by such injunction, in 
 the said action at law for debt or damages and for costs therein, 
 and shall also pay to the said C. D. or his legal representatives 
 all such costs as may be awarded to him or them in case of a 
 decision against him the said A. B. in the said suit in which 
 such injunction shall be issued, then this obligation shall cease 
 and be null and void, otherwise to remain in full force and 
 virtue. 
 
 A. B. (L. S.) 
 J. K. (L. S.) 
 L. M. (L. S.) 
 
 RESTRAINING PROCEEDINGS AT LAW AFTER 
 JUDGMENT. 
 (As in last form to the * then proceed.) 
 
 Whereas, the above bounden A. B. has filed his biU of com- 
 plaint in the Circuit Court for the county of In 
 
 Chancery, as complainant against the above C. D., as defendant, 
 praying among other things for an injunction to restrain a]l 
 further proceedings in a certain personal action at law in the 
 
 Circuit Court for the county of , commenced by the said 
 
 C. D. as plaintiff, against the said A. B. as defendant, in which 
 
stage's MICHIGAN CHANCEBT PRACTICE AND FORMS 363 
 
 said suit a judgment was recovered by the said C. D. against 
 
 the said A. B. on the day of , A. D. 19. ., 
 
 for the sum of dollars damages and the costs of that 
 
 suit, taxed at the sum of dollars; and whereas, the 
 
 Hon. X. Y., circuit judge of the said Circuit Court for fhS 
 
 county of : In Chaneeryj has allowed an injunction 
 
 for that purpose according to the prayer of the said bill • upon 
 the said A. B. giving security required by the statute iii like 
 case provided: 
 
 Now, therefore, the condition of this obligation is such, that 
 if the above bounden A. B. shall well and truly, without fraud 
 or delay, pay to the said C. D., the plaintiff in the said action at 
 law, or to his legal representatives, all such damages and costs 
 as shall be awarded to him or them by the court at the hear- 
 ing of the said cause ia which the said injunction shall have 
 been issued, then this obligation shall cease and be nuU and 
 void, otherwise to remain in full force and virtue. 
 
 A. B. (L. S.) 
 J. K. (L. S.) 
 L. M. (L. S.) 
 
 IN LIEU OF DEPOSIT. 
 
 (As in last form to *, then proceed:) 
 
 And whereas, also, the said X. Y., circuit judge as aforesaid, 
 has dispensed with the deposit of money as a condition for the 
 allowance of such injunction, and has directed a bond to be filed 
 in lieu of such deposit pursuant to the statute in such case made 
 and provided:** 
 
 Now, therefore, the condition of this obligation is such, that 
 if the above bounden A. B. shall well and truly, without fraud 
 Qr delay, pey to the said C. D. or his legal representatives the 
 
 sum of dollars, whenever ordered so to do by the said 
 
 Circuit Court for the county of in Chancery, then this 
 
 obligation shall cease and be null and void otherwise to remain 
 in full force and virtue. 
 
 (L. S.) 
 (L. S.) 
 
 TO STAY PROCEEDINGS AT LAW AFTER JUDGMENT. 
 (As in last form to the **, then proceed:) 
 
 Now therefore, the condition of this obligation is such that if 
 the above bounden A. B. shall, well and truly, without fraud 
 or delay, pay to the said C. D. or his legal representatives the 
 
 sum of dollars whenever ordered so to do by the court, 
 
 and shall also pay to the said C. D. or his legal representatives 
 all such damages and costs as may be awarded to him or them 
 by the said court at the final hearing of the cause in which 
 
364 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 such injunction shall have been issued, then this obligation 
 shall cease and be null and void, otherwise to remain in full 
 force and virtue. 
 
 (L. S.) 
 (L. S.) 
 (L.S.) 
 
 TO STAY PROCEEDINGS IN EJECTMENT. 
 (As in form to restrain proceedings at law to the * then proceed:) 
 Whereas, the above bounden A. B. has filed his bill of com- 
 plaint in the Circuit Court for the county of : In 
 
 Chancery, as complainant, against the above named C. D. as de- 
 fendant, praying among other things for an injunction to re- 
 strain all further proceedings in an action of ejectment brought 
 by the said C. D. against the said A. B. in the Circuit Court for 
 the county of , in which action a verdict has been ob- 
 tained by the said C. D., plaintiff, against the said A. B. for the 
 recovery of the lands in controversy; and whereas the Hon. 
 X. T., circuit judge of the said Circuit Court for the county of 
 
 : In Chancery, has allowed an injunction for that 
 
 purpose according to the prayer of the said bill, upon the said 
 A. B. giving security required by the statute in such case made 
 and provided : 
 
 Now, therefore, the condition of this obligation is such, that 
 if the above bounden A. B. shall well and truly, without fraud 
 or delay, pay to the said C. D., the plaintiff in the said action 
 of ejectment, or to his legal representative&, all such damages 
 and costs as shall be awarded to him or them in case of a 
 decision against him, the said A. B., in the suit in which such 
 injunction shall have been issued, then this obligation shall cease 
 and be null and void, otherwise to. remain in full force and 
 virtue. 
 
 (L.S.) 
 (L. S.) 
 (L. SO 
 
 MOTION TO DISSOLVE INJUNCTION. 
 
 (Title of court and cause.) 
 
 Now comes the above named defendant, C. D., by , 
 
 his solicitor and moves the court now here that the injunction 
 heretofore issued in this cause be dissolved, vacated and set 
 aside for the following reasons: 
 
 1. Because the said injunction was improvidently issued, 
 there being no equity on the face of the bill in this cause to 
 support the same. 
 
 2. Because all the material allegations in the said bill in 
 support of the said injimction, and whereon the same was al- 
 
stage's MICHIGAN CHANCERY PRACTICE AND PORMS 365 
 
 lowed, are denied by the answer of this defendant and the 
 
 affidavits of and on file. 
 
 3. (State any other reason, stating each reason separately.) 
 
 This motion is founded upon the bill of eomplaint ia this 
 
 cause, the answer of this defendant, C. D., and the affidavits 
 
 of and on file, and on the injunction issued 
 
 in this cause, and the rules and practice of the court. 
 
 Solicitor for Defendant, C. D. 
 
 ORDER DENTING MOTION TO DISSOLVE 
 INJUNCTION. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause the motion of the above named defendant, C. D., 
 to dissolve the injunction heretofore issued in this cause came 
 on to be heard, and was argued by counsel for the respec- 
 tive parties; and upon due consideration thereof, it is ordered 
 that the said motion be, and the same hereby is denied, and that 
 the said defendant, C. D., pay to the complainant costs of the 
 
 said motion hereby taxed at the sum of dollars, and 
 
 that the said complainant have execution therefor. 
 
 Circuit Judge. 
 
 ORDER DISSOLVING INJUNCTION. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this cause the motion of the defendant to dissolve the in- 
 junction heretofore granted in this cause came on to be heard, 
 and the court having heard read the pleadings in this cause and 
 the proofs offered upon the said motion and the arguments of 
 coimseL for the respective parties thereon, and having duly con- 
 sidered the same and being fully advised therein: On motion 
 of S. T., of counsel for the defendant, it is ordered and ad- 
 judged, and the court now here doth order and adjudge, that 
 the said injunction be, and the same hereby is dissolved and 
 vacated, and that the said defendant recover his Cpsts of said 
 motion against the complainant, to be taxed. . And that the de- 
 fendant have execution therefor. 
 
 Circuit Judge. 
 
366 stage's MICHIGAN CHANCfiEY PEACTICE AND FOBMS 
 
 ORDEE MODIFYING INJUNCTION. 
 (Tiile of court and caption.) 
 (Title of cause.) 
 
 In this cause the motion of the defendant to dissolve (or 
 modify) the injunction heretofore issued in this cause having 
 come on to be heard, and the court having heard the pleadings 
 in this cause and the proofs upon the said motion and the argu- 
 ments of counsel thereon ; and having duly considered the same : 
 
 It is ordered and adjudged, and the court now here doth or- 
 der and adjudge that as to (here state the matters wherein the 
 injunction should be dissolved), the said injunction be and the 
 same is hereby dissolved, and that as to all other matters the 
 said injunction be and remain in full force and effect, and that 
 
 the recover of and from the the costs of this 
 
 motion which are hereby taxed at the sum of and that 
 
 the said have execution therefor. 
 
 Circuit Judge. 
 
 Receivers. 
 
 § 322. A receiver is a disinterested person appointed 
 by the court during the pendency of a suit to collect and 
 preserve the property and effects of the parties ia ques- 
 tion, and the proceeds thereof and account to the court in 
 cases when it appears to the court that it would be im- 
 proper or dangerous to the fund that either party should 
 have the possession or control thereof. A receiver has 
 been called "the hand of the court" as the court, by the 
 receiver, lays bands upon the funds and property in- 
 volved in the controversy and assumes the control and 
 management thereof, protects it from fraud and mis- 
 management and holds it for such final disposition as 
 equity and justice shall require. The appointment of a 
 receiver is a harsh remedy as it takes the possession, 
 control and management of the property of the parties 
 from them and places it under the direction of court in 
 the hands of another to be managed and controlled as the 
 court shall order and finally disposed of as the court shall 
 in its decree direct. 
 
 §323. The appointment of a receiver is peculiarly 
 within the jurisdiction of the Court of Chancery, which 
 is the only court which can appoint a receiver except in 
 
stage's MICHIGAN CHANCERY PKACTICE AND FORMS 367 
 
 such cases as may be specially provided by statute. As a 
 general rule a receiver cannot be appointed except in a 
 suit pending in chancery. ^ 
 
 The appointment of receivers is governed in part by 
 discretion and ia part by rules of law. No court has un- 
 limited discretion to put private estates into the hands 
 of receivers who cannot be appointed except where such 
 appointment is allowed by law.^ The appointment of a 
 receiver is a harsh remedy and should be resorted to only 
 in extreme cases.* 
 
 A receiver cannot be appointed ex parte without notice 
 to the adverse party of the application and giving him an 
 opportunity to be heard.* 
 
 The cases in which a receiver may be lawfully ap- 
 pointed are so numerous and diversified that to attempt 
 to enmnerate them would be beyond the scope of this 
 work. A few of the more frequent instances only will 
 be mentioned. 
 
 § 324. Partnership Cases. In suits between partners 
 for a dissolution of the partnership where it clearly ap- 
 pears that the complainant is entitled to such dissolution 
 and that the partners cannot agree as to the disposition 
 of the firm property, a receiver will be appointed to take 
 possession of the partnership effects and wind up the 
 business.^ But a receiver will not be appointed to col- 
 lect accounts due to the firm when the partners have 
 agreed between themselves how they should be collected 
 and the defendant is responsible,® nor to take possession 
 of the partnership effects away from a surviving partner 
 who is engaged in closing up the partnership business 
 
 1— Bank V. Circuit Judge, 43 489; Port Huron & G. E. Co', v. Cir. 
 
 Mich. 292 ; Jones v. Schall, 45 Mich. Judge, 31 Mich. 456 ; Hall v. Circuit 
 
 379; see Cook v. Det. & Mil. K. Co., Judge, 111 Mich. 395; Goldman v. 
 
 45 Mich. 453. Cir. Judge, 15 Mich. 47. 
 
 2 — Barry v. Briggs, 22 Mich. 201 ; 5 — Kirby v. IngersoU, Harr. Ch. 
 
 Hazeltine v. Granger, 44 Mich. 503; 172; same case 1 Doug. Mich. 477; 
 
 C. L., Sec. 446; see M'Elroy v. Law v. Ford, 2 Paige 310; Sloan v. 
 
 Hatheway, 44 Mich. 399. Moore, 37 Pa. St. 217; see Kolfe v. 
 
 3 — ^Jenks v. Horton, 96 Mich. 13. Burnham, 110 Mich. 660. 
 
 4 — Sailing V. Johnson, 25 Mich. 6 — Simon v. Schloss, 48 Mich. 233. 
 
368 stage's MICHIGAN OHAITCEEY PEACTICE AND FOEMS 
 
 when no mismanagement, fraud, or danger to the part- 
 nership property is shown to existJ 
 
 Judgment Creditors' Suits. The court may appoint a 
 receiver in a creditor's bill during the pendency of the 
 suit when it shall be deemed necessary for the protec- 
 tion of the rights of the complainant.* 
 
 § 325. The powers and duties of such a receiver are 
 thus defined by rule, "Every receiver of the property 
 and effects of the debtor appointed in a suit upon a 
 creditor's bill shall, unless restricted by the special order 
 of the court, have general power and authority to sue for 
 and collect all the debts, demands and rents belonging to 
 such debtor and to compromise and settle such as are 
 unsafe and of a doubtful character. He may also sue 
 in the name of the debtor where it is necessary and 
 proper for him to do so, and he may apply for and ob- 
 tain an order of course that the tenants of any real 
 estate belonging to the debtor or of which he is entitled 
 to the rents and profits attorn to such receiver and pay 
 their rents to him. He shall also be permitted to make 
 leases from time to time as may be necessary, for terms 
 not exceeding one year. And it shall be his duty, with- 
 out unreasonable delay, to convert all the personal estate 
 and effects into money; but he shall not sell any real 
 estate of the debtor without the special order of the 
 court. He is not to be allowed for the costs of any suit 
 brought by him against an insolvent from whom he is 
 unable to collect his costs, unless such suit is brought 
 by order of the court, or by the consent of all persons 
 interested in the funds in his hands. But he may sell 
 such desperate debts, and all other doubtful claims to 
 personal property, at public auction, giving at least ten 
 days' notice of the time and place of such sale. 
 
 §326. Where several bills are filed by different 
 creditors against the same debtor, no more than one re- 
 
 7— Connor v. Allen, Harr. Ch. 371 ; 8— Ch. Eule 30d, C. L., Sec. 10841. 
 
 Barry v. Briggs, 22 Mich. 201; Corn- 
 stock V. M 'Donald, 113 Mich. 626. 
 
stage's MICHIGAN CHANCERY PEACTICE AND TOEMS 369 
 
 ceiver of Ms property and effects shall be appointed 
 unless the first appointment has been obtained by fraud 
 or collusion, or unless the receiver is an improper person 
 to execute the trust. The receiver shall give security 
 sufficient to cover the whole property and effects of the 
 debtor which may come into his hands by virtue of his 
 office; and he shall hold such property and effects for 
 the benefit of all creditors who have commenced or shall 
 commence similar suits during the continuance of his 
 trust, to be disposed of according to their legal or 
 equitable priorities. He shall not pay over the funds in 
 his hands to the parties, or to any other person, without 
 being specially authorized to do so by an order or decree 
 of the court; nor shall he be discharged from his trust 
 without special order, to be obtained upon a written con- 
 sent of all the parties interested in the property in his 
 hands, or upon notice of the application. 
 
 § 327. When another suit is commenced after the ap- 
 pointment of a receiver, the same person may be 
 appointed receiver of such subsequent suit, and shall give 
 such further security as the court shall direct. He shall 
 keep a separate account of any property or effects of 
 the debtor which may have been acquired since the com- 
 mencement of the first suit, or which may be assigned to 
 such receiver under the appointment in the last cause.^ 
 
 § 328. By statute, receivers may be appointed in pro- 
 ceedings to wind up mining or manufacturing corpora- 
 tions ; " fire and marine insurance companies ; " mutual 
 fire insurance companies ; ^^ and mutual fire insurance 
 companies limited;^* Michigan millers mutual fire in- 
 surance companies;^* manufacturers mutual fire insur- 
 ance companies ; ^® farm stock insurance companies ; ^^ 
 co-operative associations ; " building and loan associa- 
 
 9— Ch. Eule 31 ; see C. L., Sec. 13— C. L., Sec. 7301. 
 
 10842. 14— C. L., Sec. 7316. 
 
 10— C. L., Sec. 7091. 15— C. L., See. 7331. 
 
 11— C. L., Sec. 7249. 16— C. L., Sec. 7396. 
 
 12— C. L., Sec. 7282. 17— C. L., Sec. 7518. 
 
370 stage's MICHIGAN CHANCEBY PEACTICE AND POEMS 
 
 tions ; ^* for collections of labor debts ; ** to take charge 
 of the property of insolvent corporations,^" and of cor- 
 porations vacated on "scire facias ;"^^ or "quo war- 
 ranto ;"^^ of corporations upon the voluntary dissolu- 
 tion thereof; ^^ in partition proceedings;^* of husband's 
 estate to secure payment of alimony ; ^^ in cases of assign- 
 ments for the benefit of creditors ; ^® in proceedings to 
 enforce mechanic's liens ;^'^ in proceedings to close and 
 wind up the business of a bank; ^* or of a trust, deposit 
 and security company.^* 
 
 When receivers are appointed for the management of 
 partnership or corporate effects and property, it is often 
 ordered that the receiver continue the business of such 
 copartnership or corporation.^" 
 
 § 329. A receiver may be appointed in this state of 
 the effects of an insolvent corporation of a sister state 
 as ancillary to a receiver appointed by the court of that 
 state, but in such case provision should be made that the 
 creditors residing in this state should share equally in 
 the final distribution of assets with those of the other 
 state. ^^ 
 
 § 330. Proceedings. The bill should pray for the ap- 
 pointment of a reeeiver.^^ A petition or motion for such 
 appointment may be made at any time during the pend- 
 ency of the suit and if the bill be on oath it may be read 
 at the hearing of such petition or motion as well as any 
 affidavits which the complainant may produce provided 
 he has served copies thereof with his notice of hearing 
 of the petition or motion. If the defendant's answer 
 be upon oath, such answer, together with any affidavits 
 
 18— Sec. 22 of Act No. 17 Pub. 27— C. L., See. 10723. 
 
 Acts of 1901. 28— C. L., Sec. 6144 as am. by 
 
 19— C. L., Sec. 9552. Pub. Act No. 103 Pub. Acts 1909 p. 
 
 20— C. L., Sec. 9761 and 9765. 209. 
 
 21— C. L., Sec. 9938. 29— C. L., Sees. 6175, 6184. 
 
 22— C. L., Sec. 9963. 30— Taft v. Cir. Judge, 129 Mich. 
 
 23— C. L., Sec. 10859. 312. 
 
 24— C. L., Sec. 11099. 31— Baldwin v. Cir. Judge, 101 
 
 25— C. L., Sec. 8640. Mich. 119. 
 
 26— C. L., Sec. 9544. 32—2 Dan. Ch. PI. & Pr. 1734. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 371 
 
 which the defendant may produce, may be read in oppo- 
 sition thereto.^* 
 
 A receiver will not be appointed to take property from 
 the persons lawfully in possession unless there is dan- 
 ger to be apprehended of a depreciation of the property 
 or some fraudulent disposition thereof injurious to the 
 rights of the complainant.^* 
 
 The appointment may be made by the court in vaca- 
 tion or in term ^^ or by the circuit judge at chambers.^" 
 The order usually provides that the receiver shall give 
 security by bond with sufficient surety for the execution 
 of his trust.*'' 
 
 § 331. It was formerly held that a receiver would not 
 be appointed until the coming in of the answer, unless 
 in case of default, but by the modern practice such ap- 
 pointment may be made at any time after the commence- 
 ment of the suit, although it is said that there must be a 
 strong special ground to induce the court to appoint a 
 receiver before answer.** 
 
 In case of an insolvent corporation, an officer, stock- 
 holder or creditor may be appointed receiver.*" 
 
 §332. In creditor's suits, in cases where executions 
 have been returned unsatisfied, courts have a broad dis- 
 cretion in the appointment of receivers.*" 
 
 But a receiver will not be appointed in a foreclosure 
 case of the mortgaged property before sale,*^ except un- 
 der very extraordinary circumstances. 
 
 33 — 2 Dan. Ch. PI. & Pr. (Perkins 39— Moran v. Cir. Judge, 125 
 
 Ed.) 1448, 6 see Ch. Bule 10a. Maeh. 6; Gypsum Plaster Co. v. 
 
 34 — M 'Combs v. Merryhew, 40 Cir. Judge, 105 Mich. 497 ; se6 C. L., 
 
 Mich. 721; HaU v. Cir. Judge, 111 Sec. 10860. 
 
 Mich. 395. 40— Dutton v. Thomas, 97 Mich. 
 
 35 — C. L., See. 446. 93; Eankin v. Rothschild, 78 Mich. 
 
 36— C. L., Sec. 447. 10; Bagley v. Scudder, 66 Mich. 
 
 37—2 Dan. Ch. PI. & Pr. 1736. 97. 
 
 38 — Bloodgood v. Clark, 5 Paige 41 — Mich. Trust Co. v. Lansing 
 
 574; Osbom v. Heyer, 2 Paige 342; Lumber Co., 103 Mich. 392. 
 West V. Swan, 2 Edw. Ch. 420 ; Wil- 
 lis V. Corlies, 2 Edw. Ch. 281 ; Parker 
 T. Backus, 32 lU. 79. 
 
372 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 Nor of the property of a corporation covered by a 
 trust mortgage to secure bonds, at the suit of a bond- 
 bolder against tbe protest of the majority of tbe bond- 
 holders, unless it clearly appears that the fund is in 
 danger.*^ 
 
 OEDER FOR RECEIVER FOR INSOLVENT BANK 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 At a session of the said court, held at the court house in the 
 
 of , in said county of , on the 
 
 day of , in the year one thousand nine hun- 
 dred and 
 
 Present : the Hon , 
 
 Circuit- Judge. 
 G. H., 
 Commissioner of the Banking Department 
 of the State of Michigan. 
 
 V. 
 
 (Name of Bank.) 
 
 In the matter of the application of G. H., commissioner of the 
 Banking Department of the state of Michigan, for the appoint- 
 ment of a receiver for the (name of hank)^ 
 
 In this cause on reading and filing due proof of service of a 
 copy of the application of G. H., Esq., commissioner of the 
 banking department of the state of Michigan, for the appoint- 
 ment of a receiver for the (name of hank) for reasons therein 
 stated, together with notice of the hearing of said application 
 
 upon the said (name of tank), and on motion of , Esq., 
 
 solicitor for the said commissioner of the banking department, 
 and , Esq., of counsel for the said (name of hank), hav- 
 ing been heard (or, and no one appearing) in opposition thereto t 
 It is ordered, adjudged and decreed that A. B., of (state resi- 
 dence), be, and hereby is appointed receiver for the said (name 
 of hank), under the direction of this court, to take possession 
 of all and singular the books, records and assets of every de- 
 scription of the said (name of hank), and to coUect all debts, 
 dues and claims belonging to it, and to sell or compound all bad 
 or doubtful debts, and to sell all the real and personal property 
 of the said bank on such terms as this court shall direct, and, 
 if necessary to pay the debts of the said bank, to enforce all 
 individual liabilities of stockholders, and that the said receiver 
 pay over all moneys so collected or received by him to the state 
 
 42— Union Trust Co. v. Charlotte 
 Gen. Electric Co., 152 Mich. 668. 
 
stage's MICHIGAN CHAlTCEBY PKACTICE AND FOEMS 373 
 
 treasurer, and that he make report to the said commissioner of 
 banking ifrom time to time of all his acts and proceedings, and 
 that such receiver also make report from time to time and 
 whenever required to do so, to this court of all his doings and 
 proceedings. 
 
 And that before entering upon his duties as such receiver 
 that the said A. B. execute a bond to the people of the state of 
 
 Michigan in the penal sum of dollars, vrith sufficient 
 
 sureties, to be approved by this court, conditioned for the faith- 
 ful performance of his duties as such receiver, and file the same 
 with the register of this court. 
 
 Circuit Judge. 
 
 MOTION FOR APPOINTMENT OP RECEIVER. 
 (Title of court and cause.) 
 
 Of the day of , A. D. 19. .. 
 
 Now comes the above named complainant, by , his 
 
 solicitor, and moves the. court now here that a receiver be ap- 
 pointed to receive and collect the (state what he is to receive and 
 cDlL&ct), mentioned in the bill of complaint in this cause, with 
 the usual powers and upon the usual directions, and for such 
 other order and relief as the court may think proper to grant 
 in the premises. 
 
 This motion is founded upon the pleadings in this cause, and 
 
 upon the affidavit of , on file. 
 
 X. Y., 
 Solicitor for Complainant. 
 
 MOTION FOR ORDER OF REFERENCE TO APPOINT 
 RECEIVER. 
 (Title of court and cause.) 
 
 (Date.) 
 
 Now comes the above named complainant, by . . .' his 
 
 solicitor, and moves the court now h^ere that it be referred to 
 
 a circuit court commissioner of the said county of ., 
 
 to appoint a receiver of the rents and profits of the estate oiS'the 
 defendant, W. L., mentioned in the pleadings in this cause, with 
 the usual powers and upon the usual directions, and for such 
 further or other order as shall be agreeable to equity. This mo- 
 tion is founded upop the pleadings in this cause (and upon the 
 affidavits of G. H. and 0. K. on file). 
 
 Solicitor for Complainant. 
 
374 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 ORDER APPOINTING RECEIVER IN CREDITORS' SUIT. 
 (Title of cause.) 
 (Title of court.) 
 ■(Caption.) 
 
 This cause came on to be heard on the motion of the com- 
 plaintiff for the appointment of a receiver, and thereupon upon 
 reading the bill of complaint in this cause and the answer of the 
 
 defendant . ., thereto, (and the afSdavits of on 
 
 file'), and having heard the arguments of counsel for the re- 
 Bpective parties thereon {or if not opposed, on filing due proof 
 of due service of notice of such motion and no one appearing in 
 
 opposition thereto) : On motion of , Esq., solicitor for 
 
 the complainant, it is ordered that E. F. of , be, and 
 
 he hereby is appointed receiver of all and singular the estate 
 and property, real and personal, things in action, debts, equi- 
 table interests and other effects and assets of the defendant, C. 
 D., and which belonged to, or were held in trust for him at the 
 time oi the commencement of this suit, or in which he then had 
 any beneficial interest, (except such property as is by law ex- 
 empt from execution, and also except such trust property as 
 has in good faith been created by, or the fund held in trust has 
 proceeded from, some person other than the said C. D. himself) 
 and of the real estate mentioned in the said complainant's bill 
 of complaint described as follows: (describe it), and the rents, 
 issues, incomes and profits thereof, with the usual powers and 
 duties of receivers, upon the said receiver executing and filing 
 with the register of this court a bond in the usual form to the 
 
 people of the state of Michigan, in the penal sum of 
 
 dollars, with sufficient sureties to be approved by this court, con- 
 ditional for the faithful performance of his duties as such re- 
 ceiver, and that he will well and faithfully account for all 
 moneys, estate, real and personal, things in action, debts, equi- 
 table interests, effects and assets of the said C. D. which may 
 come into his hands as such receiver, and that he vrill make such 
 disposition thereof as shall be directed by the court. 
 
 And it is further ordered that the defendant, C. D., do forth- 
 with assign, transfer and deliver to the said receiver on oath 
 (under the direction of , Esq., a circuit court commis- 
 sioner of said county of ,) all and singular su-ch prop- 
 erty, real and personal, things in action, equitable interests, and 
 other effects and assets, (except, as aforesaid such property as 
 is by law exempt from execution, and trust property where the 
 trust has been created by, or trust fund proceeded from some 
 person in good faith other than the defendant, C. D., himself) ; 
 and that he the said defendant, C. D., deliver to the said re- 
 ceiver in like manner, all bills, notes, contracts, books and docu- 
 ments relating thereto, and that said C. D. execute and deliver 
 to the said receiver (under the direction of the said circuit 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FOKMS 375 
 
 court commissioner) a general assignment of all such property, 
 effects and assets, and also execute, acknowledge and deliver to 
 the said receiver a conveyance and assignment of the real es- 
 tate mentioned in the said bill and hereinbefore described, and 
 of the rents, issues and profits thereof, and that the defendant, 
 C. D., and his tenants, and all persons holding under him or 
 them, attorn to the said receiver and pay him the rents and 
 profits thereof, and that the said receiver have power to make 
 leases of such estate from time to time, not exceeding one year, 
 as he may deem expedient, and that the said defendant appear 
 before the said circuit court commissioner (or receiver) as he 
 shall be summoned or required to do from time to time, and 
 produce such books, papers and accounts and submit to such 
 examination as said circuit court commissioner (or receiver) may 
 require or direct in relation to any matter which he may be law- 
 fully required to disclose. 
 
 (The above may he varied according to the circumstances of 
 each case.) 
 (Any special directions may ie added.) 
 
 IN PARTNERSHIP SUIT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the bill of complaint, 
 the answer of the defendant thereto, the replication of the said 
 complainant to such answer, and the motion of the complainant 
 that a receiver be appointed; and thereupon oh motion of 
 
 , Esq., of counsel for the complainant, and , 
 
 Esq., of counsel for the defendant having been heard in opposi- 
 tion thereto. It is ordered that E. F. of be, and he 
 
 hereby is appointed a receiver to collect and receive all and 
 singular the outstanding debts and effects and property of the 
 late partnership firm of A. B. and C. D. in the pleadings in this 
 cause mentioned, and that the said E. F. before entering upon 
 his duties as such receiver enter into a bond, in the penal sum 
 of dollars with sufficient surety or sureties to be ap- 
 proved by a circuit court commissioner of said county of 
 
 , conditioned for the faithful performance of his duties 
 
 as such receiver, and that he will be answerable for what he shall 
 receive of such outstanding debts and effects, and will pay and 
 dispose of the same as this court shall from time to time direct. 
 
 And it is further ordered that the parties to this suit, each 
 and both of them, do deliver over to the said E. F. as such re- 
 ceiver all books of account, securities and evidences of indebted- 
 ness and effects belonging to the said partnership. 
 
 And that, in case it shall be necessary to bring suit for the 
 recovery of any of such indebtedness, the said receiver may 
 
376 stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 
 
 bring such suit, in the name of the said co-partnership or in the 
 names of the parties to this suit or either or any of them, as 
 shall be necessary for that purpose. 
 
 And it is further ordered that the said receiver shall from 
 time to time make report to this court of his doings in this be- 
 half, and that he be at liberty to apply to this court for fur- 
 ther directions as he may deem necessary. 
 
 Circuit Judge. 
 
 BOND OF RECEIVER. 
 
 Know all men by these presents : that we, I. K. of (state resi- 
 dence) and L. M. of (state residence) and N. 0. of (state resi- 
 dence), are held and firmly bound unto the people of the state 
 
 of Michigan in the sum of dollars, to be paid to the 
 
 said people of the state of Michigan or their assigns; for which 
 payment well and truly to be made we bind ourselves, our heirs, 
 executors and administrators, jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals and dated this day of , 
 
 A. D. 19'. .. 
 
 Whereas, by an order of the Circuit Court for the county of 
 
 : In Chancery, made on the day of , 
 
 A. D. 19. ., in a cause therein then pending wherein A. B. is 
 complainant and C. D. is defendant, it was, among other things, 
 ordered that the above bounden J. K. be, and he therein and 
 thereby was appointed receiver of all the debts, property, equi- 
 table interests and things in action (state purpose of appoint- 
 ment as in order) of the said defendant, C. D. 
 
 Now, therefore, the condition of this obligation is such, that 
 if the said J. K. shall well and faithfully and according to the 
 direction of the said court do and perform all and singular his 
 duties as such receiver, and whenever required so to do by the 
 said court duly account for all moneys and assets and what- 
 ever he shall receive or have in charge as such receiver, and shall 
 pay out, apply and dispose of the same as he may be from time 
 directed by the said court, and obey such orders as the court 
 may from time to time make in relation to the said trust, and 
 in all respects faithfully discharge the duties of the said trust, 
 then this obligation to be void, otherwise of force. 
 
 (Signature.) 
 (Justification of sureties as in security for costs.) 
 
 Contempt. 
 
 §333. Contempt of the Court of Chancery is Either 
 Criminal or Ordinary. Criminal contempt consists of 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 377 
 
 disorderly, contemptuous or insolent behavior committed 
 during the sitting of the court, in its immediate view and 
 presence, and tending to interrupt its proceedings or to 
 impair the respect due to its authority. Also of any 
 breach of the peace, noise or disturbance, directly tend- 
 ing to interrupt the proceedings of the court. Also of 
 wilful disobedience of any process or order lawfully 
 issued or made by the court, and of resistance wilfully 
 offered to the lawful order or process of the court, and 
 of the contumacious and unlawful refusal of any person 
 lawfully subpoenaed to be sworn as a witness : and when 
 so sworn, the like refusal to answer any legal and proper 
 interrogatory; and the publication of a false or grossly 
 inaccurate report of the proceedings of the court, and 
 every court of record has the power to punish persons 
 guilty of any of such acts as for a criminal contempt.' 
 
 Punishment for such contempt may be by fine or im- 
 prisonment in the jail of the county where the court may 
 be sitting, or both, in the discretion of the court, but the 
 fine shall in no case exceed the sum of two hundred and 
 fifty dollars, nor the imprisonment thirty days, and when 
 any person shall be committed to prison for the non- 
 payment of any such fine, he shall be discharged at the 
 expiration of thirty days.^ 
 
 Contempt committed in the immediate view and pres- 
 ence of the court may be punished summarily, in other 
 cases the party should be notified of the accusation and 
 have a reasonable time to make his defence.^ 
 
 §334. Ordinary contempt consists of the disobedience 
 of the process, orders or decrees of the court, usually to 
 the injury of the opposite party. 
 
 Every court of record has power to punish by fine and 
 imprisonment or either, any neglect or violation of duty 
 and any misconduct by which the rights or remedies of 
 
 1 — C. L., Sec. 1098 ; see Langdon 3 — C. L., Sec. 1100 ; see also C. L., 
 
 T. Cir. Judge, 76 Mich. 358; In Ee Sec. 10892; In Ee Wood, 82 Mich. 
 McHugh, 152 Mich. 505. 75. 
 
 2 — C. L., Sec. 1099 ; see Sloman v. 
 Cir. Judge, 95 Mich. 294. 
 
 ( 
 
378 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 a party in a cause or matter depending in such court or 
 triable therein, may be defeated, unpaired, impeded or 
 prejudiced, or the misbehavior in office of counsellors,- 
 solicitors, registers, sheriffs, coroners or any other per- 
 son in any manner elected or appointed to perform any 
 judicial or ministerial service, or any wilful neglect or 
 violation of duty therein, or disobedience of any process 
 of such court or any lawful order thereof or of any judge 
 of such court or of any officer authorized to perform the 
 duties of such judge, or any deceit or abuse of the process 
 or proceedings of the court. 
 
 Also for the non-payment of any sum of money or- 
 dered by such court to be paid in cases where, by law, 
 execution cannot be awarded for the collection of such 
 sum; the disobedience or refusal to comply with any 
 order of such court for the payment of alimony, either 
 permanent or temporary, made in any suit for divorce: 
 and any other disobedience to any lawful order, decree 
 or process of such court. 
 
 Also for assuming to be an officer, solicitor or coun- 
 sellor of any court and acting as such without authority : 
 for rescuing any property or person which shall be in 
 the custody of an officer by virtue of process issued from 
 such court, for unlawfully detaining any witness or party 
 to a suit while going to, remaining at, or returning from 
 the court where such suit shall be noticed for trial. And 
 for any other unlawful interference with the process or 
 proceedings in any action. 
 
 And all persons summoned as witnesses for refusing 
 or neglecting to obey such summons, or to attend, or to 
 be sworn, or answer as such witness. 
 
 And in all other cases where attachments and pro- 
 ceedings as for contempts have been usually adopted 
 and practiced in courts of record to enforce the civil 
 remedies of any party or to protect the rights of any 
 such party.* 
 
 4 — C. L., See. 10891 as am. by Act Montgomery v. Cir. Judge, 100 Mich. 
 No. 230 Pub. Acts of 1899 p. 360; see 436. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 379 
 
 § 335. AVTien the Circuit Court in chancery for one 
 county has jurisdiction of, and is acting in relation to, 
 the subject matter of a suit, it is a contempt of court to 
 file a bill in the Circuit Court in chancery in another 
 county to interfere with the execution of the orders of 
 the first mentioned court in relation to the matter in 
 controversy.® 
 
 § 336. Failure to pay alimony ordered in a divorce 
 case is a contempt ^ and so is the violation of an injunc- 
 tion "^ and the failure by a receiver to pay out moneys in 
 his hands as ordered by the court * and so is the failure 
 to perform any valid order made by the court, unless 
 performance has been rendered impossible without the 
 fault of the party. 
 
 § 337. A party cannot be held to be in contempt for 
 the non-payment of money until he has notice of the or- 
 der and a formal demand has been made and payment 
 refused or neglected.'' Nor for the failure to execute a 
 deed or other document pursuant to a decree unless the 
 deed or other document properly prepared has been 
 presented to him and he has been requested to execute 
 it, and has refused." 
 
 Contempt proceedings cannot be resorted to for the 
 collection of moneys (except for alimony) in any case 
 where an execution can be issued.^^ 
 
 § 338. Procedure. When any such misconduct pun- 
 ishable by fine or imprisonment is not committed in the 
 immediate view and presence of the court, the court shall 
 
 5 — Smith V. Cir. Judge, 84 Mich. 8 — Davis Colliery Co. v. Charlevoix 
 
 564. Sugar Co., 157 Mich. 102. 
 
 6 — Haiaes v. Haines, 35 Mich. 9 — Brown v. Brown, 22 Mich, 299 ; 
 
 138; Palmer v. Palmer, 45 Mich. Edison v. Edison, 56 Mich. 185. 
 
 150; Potts v. Potts, 68 Mich. 492. 10— Berry v. Innes, 35 Mich. 189. 
 
 7 — Wilcox Silver Plate Co. v. 11 — Swartout v. Lucas, 102 Mich. 
 
 Sehimmel, 59 Mich. 524; Chapel v. 493; Mast v. Cir. Judge, 154 Mich. 
 
 Hull, 60 Mich. 167 ; Ideal Mfg. Co. 488 ; Mayer v. Mayer, 154 Mich. 386 ; 
 
 V. Ludwig, 149 Mich. 133; Eummel Carnahan v. Carnahan, 143 Mich, 
 
 v. Lamb, 110 Mich. 685; In Be Ham- 390. 
 lyn, 149 Mich, 699. 
 
380 stage's michigak chanceky peacticb and foems 
 
 be^satisfied by due proof by affidavit, of the facts charged, 
 and shall cause a copy of such affidavit to be served on 
 the party accused a reasonable time to enable him to 
 make his defence, except in cases of disobedience to any 
 rule or order requiring the payment of money and of 
 disobedience to any subpoena.^* 
 
 When any rule or order of the court shall have been 
 made for the payment of costs or any other sum of money 
 and proof by affidavit shall be made of the personal dem 
 and of such sum of money and of a refusal to pay it, the 
 court may issue a precept to commit the person so dis- 
 obeying to prison until such sum and the costs and ex- 
 penses of the proceeding shall be paid.^* 
 
 But before a party can be imprisoned for the mere 
 non-payment of money he should have an opportunity 
 to be heard." 
 
 § 339. In all cases other than that specified in the last 
 section, the court shall either grant an order that the 
 accused party show cause, at some reasonable time 
 therein mentioned, why he should not be punished for 
 the alleged misconduct, or shall issue an attachment to 
 arrest such party and to bring him before the court at a 
 specified time to answer such charge of misconduct.^' 
 
 When a rule shall have been entered requiring an officer 
 to return any process delivered to him for service, an 
 attachment may issue without any ■special order of the 
 court for disobedience of such rule.^^ 
 
 In any case except that last mentioned, an attachment 
 issued by the register on filing of affidavits without any 
 order of the court is void.^^ 
 
 In making an or(Jer for an attachment the court shall 
 indorse thereon the amount of the bond to be given by 
 the defendant ^* and when an attachment may issue 
 
 12— C, I/., Sec. 10893. 16— C. L., See. 10896. 
 
 13 — C. L., See. 10894. 17 — Thompson v. Ellsworth, 39 
 
 14^-SteUer v. Steller, 25 Mich. Mich. 719. 
 159. 18— C. L., Sec. 10900, 
 
 15— C; L., Sec. 10895. 
 
STACE'S MICHIGAN CHANCERY PRACTICE AND FORMS 381 
 
 without such special order, may, on application of the 
 complainant, indorse such amount on the attachment.^' 
 
 § 340. On arresting a defendant on an attachment the 
 sheriff shall bring him before the court and keep him in 
 his actual custody until the court has made some order 
 in the matter,2» unless the defendant shall give a bond 
 in such penal sum and with such sureties as the court 
 shall have directed by such indorsement conditioned to 
 appear on such attachment and abide the order of the 
 court thereon.^* If no amount is endorsed on an attach- 
 ment issued without a special order the defendant may 
 give a bond for one hundred doUars.^^ But if a special 
 order for an attachment is not indorsed with any sum, 
 the register wiU so certify and the defendant will not be 
 entitled to release on giving a bond.^^ The bond, if any, 
 must be returned with the attachmeut.^* If the defend- 
 ant after being released on a bond make default, a second 
 attachment will issue returnable forthAvith on which no 
 bond wUl be accepted.^^ 
 
 §341. When the defendant shall have been brought 
 into court or shall have appeared, the court will order 
 interrogatories to be filed specifying the facts and cir- 
 cumstances alleged against the defendant and requiring 
 his answers thereto, to which the defendant shall make 
 written answers on oath within such reasonable time as 
 the court shall allow, and the court may receive any 
 affidavits or other proofs contradictory of such answers 
 or in eonflrmation thereof, and upon the original affidavits 
 such answers and the subsequent proof shall determine 
 whether the defendant has been guilty of the misconduct 
 alleged.^* 
 
 Where the answers to the interrogatories are not con- 
 troverted and show that the court had no jurisdiction to 
 issue the injimction for the violation of which the con-r 
 
 19-^. L., Sec. 10901. 2»^C. L., Sec. 10904. 
 
 20— C. L., See. 10902. 24r-C. U, Sec. 10906. 
 
 21— C. li., Sec. JQ90S, 25— C. L,, Sees. 10907-10908. 
 
 2S— C, 11, See. 10905, 36—0. L., See. 10909, 
 
382 stage's MICHIGAN CHANCEEY PEACTICE AND POEMS 
 
 tempt is charged, the defendant must be discharged with 
 his costs against the complainant.'''^ 
 
 § 342. The filing of interrogatories is a necessary part 
 of the proceedings, without which a defendant cannot be 
 convicted of contempt,^* but where the facts are ad- 
 mitted by the defendant in his answer to an order to 
 show cause and the sole question is one of law, interroga- 
 tories are not necessary.'** 
 
 In the case of criminal contempt the defendant is not 
 entitled to have interrogatories propounded.^" 
 
 A solicitor has no authority to make admissions for 
 his client (the defendant), who is only bound by his own 
 written answers which form part of the record.** 
 
 § 344. If the court shall adjudge the defendant to be 
 guilty of the misconduct alleged and that such miscon- 
 duct was calculated to, or actually did, defeat, impair, 
 impede or prejudice the rights or remedies of any party 
 in a cause or matter depending in such court, it shall 
 proceed to impose a fine, or imprison him or both^ as the 
 nature of the case shall require.^* 
 
 § 345. A sentence to imprisonment must be definite.^' 
 A sentence to imprisonment for a certain time in default 
 of the payment of a fine or the performance of a certain 
 act within a limited time is illegal it should be until the 
 fine is paid, or the act performed not exceeding a time 
 mentioned.** 
 
 A woman is not exempt from imprisonment under pro- 
 ceedings for contempt.*^ 
 
 27— People v. Kidd, 23 Mich. 440. 32— C. L., See. 10910. 
 
 28 — ^Latimer v. Barmore, 81 Mich. 33 — Scott v. Chambers, 62 Mich. 
 
 692; Metheany v. Cir. Judge, 142 532; see Carnahan v. Carnahan, 143 
 
 Mich. 628. Mich. 390. 
 
 29— Smith v. Waakes, 109 Mich. 34— Latimer v. Barmore, 81 Mich. 
 
 16. 592. 
 
 30— In Be Archer, 134 Mich. 408. 35— Carnahan v. Carnahan, 143 
 
 31 — Scott T. Chambers, 62 Mich. Mich. 390. 
 632. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FORMS 383 
 
 Imprisonineiit as a means of coercion for civil purposes 
 is not allowed by law until other means fail.^s 
 
 §346. If an actual loss or injury has been produced 
 to any party by the misconduct, the court shall order a 
 sufficient sum to be paid by the defendant to such party 
 to indemnify him and to satisfy his costs and expenses 
 instead of imposing a fine upon such defendant, and in 
 such a case the payment and acceptance of such sum 
 shall be an absolute bar to any action by such aggrieved 
 party to recover damages for such injury or loss-.^^ 
 
 As this payment is "instead of a fine" the addition 
 of a fine is erroneous and unwarranted.^* 
 
 Before an order of payment by way of indemnity can 
 be made the court must find positively that an actual loss 
 or injury has been sustained.^* 
 
 In aU other cases the fine shall not exceed two hun- 
 dred and fifty dollars over and above the costs and ex- 
 pense of the proceedings.*" 
 
 § 347. When the contempt consists of an omission to 
 perform some act or duty which is yet in the power of 
 the defendant to perform, he shall be imprisoned only 
 until he shaU have performed such act or duty and paid 
 such fine as shall be imposed and the costs and expenses 
 of the proceedings,*' in such case the order and commit- 
 ment shall specify the act or duty to be performed and 
 the amount of fine and expenses to be paid.*^ In all 
 other cases where no special provision is made by law 
 if imprisonment be ordered it shall not exceed six months 
 and until the expenses of the proceedings are paid and 
 if a fine is also imposed, until such fine be paid.** 
 
 36 — ^Atehison etc. E. Co. v. Jenni- 40 — C. L., 10912; Langdon v. Cir. 
 
 son, 60 Mich. 232. Judge, 76 Mich. 358. 
 
 37— C. li., Sec. 10911. 41— C. L., See. 10913; Langdon v. 
 
 38 — Haines v. Haines, 35 Mich. Cir. Judge, 76 Mich. 358. 
 
 138; Langdon v. Cir. Judge, 76 42— a L., Sec. 10914. 
 
 Mich. 358. 43— C. L., Sec. 10915. 
 
 39 — Holland v. Weed, 87 Mich. 
 584; Montgomery v. Booming Co., 
 104 Mich. 411. 
 
384 stage's MICHIGAN CHANOEBY PKACTICE AND EOBMS 
 
 If a defendant having given a bond fail to appear on 
 the return day of the attachment the court may award 
 another attachment or order the bond to be prosecuted 
 or both,** which order shall operate as an assignment of 
 the bond to the aggrieved party.*' 
 
 It will be remembered that process for contempt is a 
 harsh remedy and like all other harsh remedies a strict 
 compliance with the statutory provisions is required. It 
 is an extreme resort which cannot be justified if there be 
 any other remedy.*^ 
 
 §348. Contempt may be purged by performance of 
 the ofder or in most cases by showing that the defendant, 
 being without fault, is absolutely unable to perform it. 
 
 AFFIDAVIT TO OBTAIN ATTACHMENT FOR CONTEMPT 
 
 OTHER THAN NON-PAYMENT OF ALIMONY. 
 (Title of court a/nd cause.) 
 
 County of , ss. : 
 
 A. B. of etc., being duly sworn says that he is the complainant 
 in the above entitled cause {or that he makes this affidavit on 
 behalf of the complainant in the above entitled cause), and that 
 the injunction heretofore issued in the said cause was duly 
 
 served on the defendant, C. D., on the day of , 
 
 A. D. 19 . . , a« appears by the return of the sheriff of said 
 
 county of , on file in this court. Deponent further 
 
 says that he knows the said defendant, C. D., and that after the 
 
 service of the said injunction as aforesaid and on the 
 
 day of , A. D., 19. ., he saw the said C. D. (state fully 
 
 the act of the defendant in violation of the injunction giving all 
 facts and circumstances). 
 
 (Signature.) 
 
 (Jurat.) 
 
 ORDER TO SHOW CAUSE WHY ATTACHMENT SHOULD 
 
 NOT ISSUE FOR CONTEMPT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the affidavit of X. Y., set- 
 ting forth that the above named defendant, C. D., has been guilty 
 of a contempt Of this court by disobedience to the injunction of 
 this court as in the said affidavit set forth : 
 
 44 — C. L., Sec. 10917. 46— Haines v. Haines, 35 Mich. 
 
 , 45— C. L., Sec. 10918. 138; North v. North, 39 Mich. 67. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 385 
 
 On motion of , Esq., of counsel for the above named 
 
 complainant, it is ordered that the said defendant, C. D., appear 
 
 before this court on the day of , A. D. 19 . . , 
 
 at the opening of the court on that day, and show cause why a 
 precept of attachment should not issue against him and he be 
 punished for his alleged contempt aforesaid. 
 
 And it is further ordered that a copy of this order and of 
 the said aflSdavit be personally served upon the said C. D. at 
 
 least days before the said day of , 
 
 A. D. 19 . . , whereon he is required to appear and show cause 
 as aforesaid. 
 
 Circuit Judge. 
 
 ORDER FOR ATTACHMENT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause it appearing by affidavit on file that the injunc- 
 tion heretofore issued in this cause has been duly served on the 
 
 defendant, C. D., on the day of , A. D. 19 . . , 
 
 and that the said C. D. has since the time of such service and 
 
 in violation and contempt of the said injunction, on the 
 
 day of , A. D. 19. ., (state the acts with which the de- 
 fendant is charged in the affidavit), which said acts are in viola- 
 tion and contempt of the said injunction and of this court : 
 
 On motion of , Esq., solicitor for the complainant, 
 
 it is ordered that an attachment issue out of and under the 
 seal of this court directed to the sheriff of the said county of 
 , commanding him to attach the body of the said de- 
 fendant, C. D., and have him before this court on the 
 
 day of , A. D. 19 . . , at the opening of the court on 
 
 that day, to answer the said alleged misconduct, and that a copy 
 of the said affidavit be served upon the said C. D. at the time 
 of the service of such attachment, and that the said defendant, 
 
 C. D., be let to bail by the said sheriff in the sum of 
 
 dollars. 
 
 ORDER FOR INTERROGATORIES. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 In this cause the defendant, C. D., being in court in the cus.- 
 
 tody of the sheriff of the said county of , by virtue of 
 
 a vo-it of attachment issued against him, the said C. D., and re- 
 turnable this day, and denying that he is guilty of the miscon- 
 duct and contempt alleged against him: It is ordered that the 
 complainant do, within days from the date hereof, file 
 
386 stage's MICHIGAN CHANCEEY PEACTICE AND TOKMS 
 
 with the register of this court interrogatories specifying the facts 
 and circumstances alleged against him, the said C. D., and 
 serve a copy thereof upon the said C. D., and that the said C. 
 D. make written answers to such interrogatories upon oath and 
 
 file the same with the register o.f this court within 
 
 days after the service of such interrogatories upon him. (And 
 it is further ordered that it be referred to , Esq., a cir- 
 cuit court commissioner of said county of , to examine 
 
 the said C. D. on oath upon the said interrogatories and to 
 take such further proofs as either party may produce before him 
 in relation to the alleged contempt of the said G. D., and that 
 he report the same to this court.) 
 
 And it is further ordered that the said C. D. be let to bail 
 in the sum of dolla,rs, and that he, the said C. D., at- 
 tend before this court from day to day as this court shall direct 
 until the further order of the court. 
 
 INTERROGATORIES IN CONTEMPT PROCEEDINGS. 
 (Title of court and cause.) 
 
 Interrogatories to be exhibited on the part (if the complainant 
 
 for the examination of C. D., the defendant (or, one of the de- 
 
 .fendants) in this cause, pursuant to an order made in this 
 
 cause on the day of , A. D. 19 . . , relative to 
 
 the alleged contempt of the said 0. D. 
 
 First Interrogatory: Are you the defendant, C. D., in this 
 cause? 
 
 Second Interrogatory: "Was not an injunction issued out of 
 
 the Circuit Court for the county of : In Chancery, 
 
 served on you personally on the day of , A. 
 
 D. 19..? 
 
 Third Interrogatory: Did you, etc. 
 (and so on asking direct questions as to the contempt charged.) 
 Dated this day of , A. D., 19 . . . 
 
 Solicitor for Complainant. 
 
 ANSWERS TO INTERROGATORIES. 
 (Title of court and cause.) 
 
 The answers of the above named defendantj G. D., to the in- 
 terrogatories filed by the above named complainant on the 
 
 day of , A. D. 19... 
 
 To the first interrogatory he says 
 
 To the second interrogatory he says 
 
 (Answer each interrogatory categorically and fully.) 
 
 €. D., 
 Defendant. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 387 
 
 State of Michigan, I 
 Coimty of , 5 **• 
 
 C. D., the above named defendant, being duly sworn, says 
 that he_^ dictated each and every one of the foregoing answers 
 to the interrogatories filed against him in this cause, each after 
 the corresponding interrogatory had been read to him, and that 
 after the said several answers were written out this deponent 
 heard each and every one of them read and knows the contents 
 thereof, and that the said answers and each of them are true of 
 the knowledge of this deponent, except as to the matters which 
 are therein stated to be on information and belief, and as to those 
 matters he believes them to be true. 
 
 C. D., 
 Defendant. 
 
 Subscribed and sworn to before me this day of 
 
 , A. D. 19... 
 
 Notary Public, 
 
 , County, Michigan. 
 
 My commission Vidll expire 
 
 ORDER CONVICTING DEFENDANT OF CONTEMPT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause a writ of attachment having been heretofore is- 
 sued out of and imder the seal of this court against the defend- 
 ant, C. D., for his misconduct and contempt in the violation of 
 the injunction heretofore issued in this cause, which writ of at- 
 tachment was directed to the sheriff of the county of , 
 
 and was returnable on the day of , A. D. 
 
 19. ., and the said sheriff having returned that he had attached 
 the said C. D. and taken his body and had him in custody before 
 the court on said last mentioned day, and the said C. D. having 
 been personally before the court by virtue of the said attach- 
 ment on the said day of , A. D. 19. ., and 
 
 having denied the alleged misconduct and contempt, it was there- 
 upon ordered that the complainant in this cause should within 
 days file iu the office of the register of this court, inter- 
 rogatories specifying the facts and circumstances alleged against 
 the said C. D., and serve a copy thereof on the said C. D., and 
 that the said C. D. should make written answers to such inter- 
 rogatories upon oath and file the same with the register of this 
 court within days after the service of such interroga- 
 tories upon him (and that it should be referred to , 
 
 Esq., a circuit court commissioner of the said county of , 
 
 to examine the said C. D. on oath upon such intewogatories', 
 and to take such further proofs as either party might produce 
 
388 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 before him ip relation to the said alleged misconduct and con- 
 tempt, and the said circuit court commissioner having made and 
 filed his report thereon, and it now appearing to the court from 
 the report of the said circuit court commissioner and the an- 
 swers and proofs thereto annexed), or (and such interrogatories 
 having been filed and served in pursuance of the said order, 
 and the said C. D. having filed his answers thereto in writing 
 and on oath, and the said C. D. haviag been examined on oath 
 in open court in relation thereto, and the court having heard in 
 open court further proofs adduced by the parties in relation to 
 the said alleged misconduct and contempt, and it now appearing 
 to the court from the answers to the said interrogatories and the 
 proofs taken in open court as aforesaid), that the said C. D. is 
 guilty of, and has committed the misconduct and contempt 
 wherewith he is charged: It is ordered and adjudged by the 
 court that the said C. D. is guilty of the said miscoriduct and 
 contempt alleged, and that the said misconduct and contempt 
 was calculated to, and did injure, Impair and prejudice the 
 rights and equities of the complainant in this cause; and it is 
 
 therefore further ordered (that a fine of dollars be 
 
 imposed on the said C. D. for his said misconduct and contempt, 
 or, that the said C. D. do pay to the said complainant the sum 
 
 qf dollars as compensatidn for the injury done to him 
 
 by reason of the said misconduct and contempt). 
 
 And it is further ordered that the said C. D. do pay to the 
 said complainant the costs and expenses of the proceedings 
 taken to punish him for such misconduct and contempt and nqw 
 hereby taxed at the sum of dollars, 
 
 And it is further ordered that the said C. D. be, and he hereby 
 Js ordered to stand committed to the common jail of the county 
 of , there to remain charged with such eonterapt un- 
 til said sunis of money be fully paid and satisfied or until the 
 further order of the court, and that a warrant issue for that 
 purpose. 
 
 Particular Subjects of Equity Jurisdiction. 
 
 Foreclosure. 
 
 § 349. By the terms of a mortgage of land in the usual 
 form the mortgagee obtained the title to the land mort- 
 gaged subject only to be defeated by the performance 
 of a condition, usually the payment of a certain sum of 
 money, by a certain day, which condition was called the 
 "equity of redemption," and on default being made of 
 the strict performance of the condition the title of the 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 389 
 
 mortgagee became absolute and that of the mortgagor 
 was forever lost, and this was the doctrine of the com- 
 mon law/ which the judges were unable to mitigate, and 
 until courts of equity obtained jurisdiction upon this 
 subject, lands of great value were often unconscionably- 
 obtained by usurers for comparatively trifling amounts. 
 Equity, however, considers a mortgage of land as 
 merely a security for the payment of money, or the per- 
 formance of whatever condition is therein recited, and 
 not as a transfer of title. It allows the mortgagor a 
 reasonable time after the debt shall have fallen due to 
 redeem by payment of principal, interest and costs. In 
 Michigan, and in most, if not all the states, the reasonable 
 time is fixed by statute at one year from the time of com- 
 mencing foreclosure.^ Equity also decrees that the mort- 
 gaged land shall be sold and the proceeds applied, after 
 payment of costs and expenses, to the satisfaction of the 
 debt secured, the surplus to be paid over to the mortgagor 
 or owner of the equity of redemption, thus giving the 
 mortgagee what equitably he should have and no more. 
 
 §350. In Michigan foreclosure proceedings are the 
 subject of statute.^ 
 
 All bills for the foreclosure or satisfaction of mort- 
 gages must be filed in the Circuit Court in chancery in 
 the county where the mortgaged premises or some part 
 thereof are situated.* 
 
 The bill must show whether or not any proceedings 
 have been had at law for the recovery of the debt secured 
 by the mortgage or any part thereof and whether such 
 debt or any part thereof has been collected or paid,^ and 
 if it appears that any judgment has been obtained in a 
 suit at law for the moneys demanded by the bill or any 
 part thereof, no proceedings shall be had in such case 
 (upon the bill) unless to an execution against the prop- 
 erty of the defendant in such judgment the sheriff or 
 other proper officer shall have returned that the execu- 
 
 1—2 Bl. Com. 158. 3— C. L., Sees. 515 to 531. 
 
 2— C. L., See. 516, Act No. 200 4— C. L., Sec. 515. 
 
 Pub. Acts, 1899. 5— C. L., Sec. 520. 
 
390 STACe/s MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 tion is unsatisfied in whole or in part, and that the de- 
 fendant has no property whereof to satisfy such execu- 
 tion except the mortgaged premises.® 
 
 §351. It is provided hy statute that the court shall 
 not order the mortgaged premises to be sold at any time 
 within six months after the filing of the bill of foreclosure 
 and that the mortgagor, his heirs, executors, administra- 
 tors or any person lawfully claiming from or under him 
 or them may, within six months after the time of sale, 
 redeem the entire premises, or any parcel thereof sold 
 separately, by paying to the purchaser, his executors, 
 administrators or assigns, the amount of his bid with 
 interest from the time of sale as specified in the 
 mortgage, or by paying the same, with one dollar more 
 as fee, to the register of deeds, and that the deed made 
 to the purchaser on such sale shall, during such six 
 months, remain in the office of the register of deeds and 
 shall not become operative unless said lands remain un- 
 redeemed at the end of that term. After the expiration 
 of such six months such deed shall become operative and 
 shall vest the title in the purchaser.'' 
 
 § 352. It is also provided by statute that when a bill 
 shall be filed for the satisfaction of a mortgage the court 
 shall not only have power to decree and compel the 
 delivery of the possession of the premises to the pur- 
 chaser thereof, but on the coming in of the report of sale, 
 the court shall have power to decree and direct the pay- 
 ment by the mortgagor of any balance of the mortgage 
 debt that may remain unsatisfied after a sale of the mort- 
 gaged premises-, in the oases in which such balance is 
 recoverable at law, and for that purpose may issue the 
 necessary executions as in other cases, against other 
 property of the mortgagor. 
 
 And also that if the mortgage debt be secured by the 
 obligation or other evidence of debt of any oth«r person 
 besides the mortgagor, the complainant may make such 
 person a party to the bill and the court may decree pay- 
 
 6— C. L., Sec. 521. 7— Act No. 200 Pub. Acts 1899. 
 
stage's MICHIGAN CHANCERY PBACTICE AND POEMS 391 
 
 meat of the balance of such debt remaining unsatisfied 
 after a sale of the mortgaged premises, as well against 
 such other person as the mortgagor, and may enforce 
 such decree as in other cases.* 
 
 The proper parties to a foreclosure bill are the owner 
 of the mortgage as complainant and the mortgagor and 
 all those who have acquired rights or interests in the 
 land under or through the mortgagor sin-ce the giving of 
 the mortgage as defendants." The owner of the debt 
 secured by the mortgage is the owner of the mortgage." 
 
 § 353. The stating part of the bill should set forth the 
 parties to the indebtedness, the time when the indebted- 
 ness was incurred, the amount thereof, the note or bond, 
 if any, which was given, the rate of interest and terms 
 of payment, the parties to the mortgage, the date of the 
 execution and delivery of the mortgage with a statement 
 that it was made to secure the debt, the consideration 
 stated in the mortgage, the description of the land moi't- 
 gaged with a statement of the county wherein it is sit- 
 uated, the condition of the mortgage showing the terms of 
 payment fully, the acknowledgment of the mortgage, the 
 time and place of recording giving liber and page, that 
 default has been made in the condition of the mortgage 
 stating in what such default consists, the amount due and 
 unpaid to the complainant, and that no suit or proceeding 
 at law has been had for the recovery of the debt or any 
 part thereof or if any such suit at law has been com- 
 menced that it has been discontinued before trial, or if a 
 suit at law has been prosecuted to judgment that an execu- 
 tion on such judgment has been duly returned unsatisfied 
 in whole or in part and that the defendant in such judg- 
 ment has no property whereof to satisfy such execution 
 except the mortgaged premises. 
 
 The bill should also state the names of all persons, if 
 any, who have acquired rights or interests in the mort- 
 gaged premises under or through the mortgagor subse- 
 
 8 — C. L., Sec. 517 and See. 519, 9— Chamberlain v. Lyell, 3 Mich. 
 
 Mich. St. Bank v. Trowbridge, 92 448. 
 Mich. 217. 10— Lee v. Clary, 38 Mich. 223. 
 
392 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 quent to the making of the mortgage, it is not necessary 
 to set out their respective rights and interests at large, 
 but it is sufficient to state generally that they have or 
 claim some interest in the premises as subsequent pur- 
 chasers or incumbrancers or otherwise.^ ^ 
 
 § 354. The prayer should be that the defendants 
 should answer ihe bill (it is usually preferable to waive 
 an answer on oath), and come to an account with the 
 complainant as to the amount due to him, and that the 
 defendants, or some of them, be ordered to pay such 
 amount to the complainant with costs of suit, and that in 
 defaijlt of such payment that the defendants be fore- 
 closed and forever barred from all equity of redemption, 
 and that the mortgaged premises be sold at public auction 
 under the order of the court and the proceeds applied 
 towards satisfying the amount due the complainant with 
 interest and costs and the expenses of such sale, the sur- 
 plus, if any, to be paid to such of the defendants as may 
 be found to be entitled thereto, and that the purchaser 
 at such, sale be let into possession of the said mortgaged 
 premises at the expiration of six months from the time 
 of such sale unless the same shall have been sooner re- 
 deemed and that if the proceeds of such sale should fail 
 to produce sufficient to satisfy the said debt, costs and 
 expenses that the mortgagor who is personally liable in 
 a suit at law for the payment of such debt pay to the com- 
 plainant the amount of such deficiency and that the com- 
 plainant have execution therefor. To which is added the 
 usual prayer for general relief. 
 
 . § 355, If the complainant is the assignee of the mort- 
 gage the assignment must be alleged. A statement that 
 the debt and mortgage have been "duly sold, assigned 
 and set over by the said mortgagee" to the complainant 
 and that the complainant is the Qwper and holder thereof 
 and entitled to have and receive all moneys due thereon, 
 
 11 — Chancery Eule 28a. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FORMS 393 
 
 has been held sufficient,*^ but in cases where an assign- 
 ment has been made in writing, duly executed, acknowl- 
 edged and recorded, it would seem to be the better prac- 
 tice to set it forth according to its legal effect more fully 
 and to state when and where it is recorded. 
 
 An assignment of the debt must be shown as the mort- 
 gage is a mere security for the payment of the debt, and 
 an assignment of the debt carries the mortgage with it 
 even if the mortgage is not mentioned,** while an assign- 
 ment of the mortgage without the debt conveys no equit- 
 able interest to the assignee who in such case holds the 
 mortgage subject to the will and disposition of the owner 
 of the debt," but by an assignment of a mortgage with- 
 out mentioning the debt, in a case where it was evident 
 that an assignment of the debt was also intended, the 
 debt was held to have been assigned.*^ The assignment 
 need not have been recorded to authorize the assignee to 
 foreclose in chancery,*^ although such recording is neces- 
 sary in order to foreclose by advertisement. The assign- 
 ment need not even be in writing " as an equitable as- 
 signment is sufficient,** but in that case the person holding 
 the legal title should be made a party to the bill so that 
 the court, should have before it someone who can legally 
 discharge the mortgage in case of payment of the decree.** 
 
 § 356. A purchaser at a defective statutory foreclosure 
 by advertisement, although not taking title to the land 
 because pf the defects, acquires all the rights and interests 
 of the mortgagee and is entitled to foreclose in his own 
 name in chancery.*" 
 
 12 — Martin v. McEeynolds, 6 Mich. 17 — Dougherty y. Bandall, 3 Mich. 
 
 7u. 581. 
 
 13 — Martin v. McEeynolds, 6 Mich. 18 — Niles v. Kandall, 1 Mich. 338; 
 
 70; Babcock v. Young, 117 Mich. Hoffman v. Harrington, 33 Mich. 
 
 155. 392 ; Briggs v. Hannowald, 35 Mich. 
 
 14— Bailey v. Gould, Walk. Ch. 314. 
 
 478. 19 — Martin v. MoReynolds, 6 
 
 15 — Hilton V. Woodman's Estate, Mich. 70. 
 
 124 Mich. 329. 20 — Gilbert v. Cooley, Walk. Ch. 
 
 16 — Martin V. McEeynolds, 6 Mich. 494; Lariverre v. Kains, 112 Mich. 
 
 70; Babcock v. Young, 117 Mich. 276. 
 155. 
 
394 stage's MICHIGAN CHANCEEY PEACTICB AND FOBMS 
 
 § 357. A trustee, foreclosing a mortgage held by him 
 as part of the trust for the purpose of collecting the trust 
 fuiid, need not make his beneficiaries parties to the bill,** 
 but his character as trustee should be stated. 
 
 § 358. When a mortgage is made to two or more per- 
 sons to secure a single debt, and one or more of the mort- 
 gagees die, the surviving mortgagee may foreclose for 
 the entire debt without making the representatives of the 
 deceased parties.^* The fact of the death of the deceased 
 person or persons should be stated in the bill. But if the 
 mortgage was made for the purpose of securing the pay- 
 ment of certain several separate sums of money to qach 
 of the mortgagees respectively, and one or more of the 
 mortgagees should die, the survivor can only recover the 
 amount of the particular sum secured to be paid to him 
 individually and the doctrine of survivorship does not 
 apply.2^ 
 
 § 357. If the owner of a mortgage dies without having 
 specifically bequeathed the mortgage, his executor or ad- 
 ministrator is the person entitled to foreclose in his rep- 
 resentative capacity ** and in that case the bill must con- 
 tain statements showing the death of the mortgagee or 
 owner of the mortgage, the probate of the will, if any, 
 and the appointment of the complainant as executor or 
 administrator and profert should be made of the letters 
 testamentary or of administration, the mere statement of 
 the representative character of the complainant in the 
 introduction, although necessary, is insufficient.*^ 
 
 Where there are two or more executors named in a 
 will a foreclosure is not invalidated because of the fact 
 that all did not join where it did not appear that those 
 who did not join had ever qualified.** 
 
 21 — Sill V. Ketchum, Har. Ch. 423; 24^-C. L., Sec. 9359. 
 
 Cook V. Wheeler, Har. Ch.. 443; 25 — Middleworth v. Nixon, 2 Mich. 
 
 Snook V. Pearsall, 95 Miqh, 534. 425. 
 
 22 — Martin v. McEeynolds, 6 Mich. 26 — Alexander v. Rice^ 52 Mich. 
 
 70; C. L., Sec. 8837. 451; C. L., Sec. 9319. 
 
 23— Cooley v. Kinney, 109 Mich. 
 34. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 395 
 
 §358. When a mortgage has been specifically be- 
 queathed to a legatee and turned over to him by the 
 executor, the legatee may foreclose in his own name set- 
 ting forth the bequest, the probate of the will and the 
 delivery of the mortgage to him by the executor and 
 averring himself to be the owner thereof.^'' 
 
 §359. There is a class of mortgages made by large 
 corporations to trustees for the purpose of securing the 
 payment of bonds of the corporation which are usually 
 issued to the same trustees to be placed on the market 
 and sold for the purpose of raising money for the use of 
 the corporation. The trustee in such cases is more usually 
 a corporation, and by the terms of the bonds is usually 
 authorized upon default of payment, to foreclose the 
 mortgage for the benefit of the bondholders when a ma- 
 jority in amount of such bojidholders shall request. 
 
 § 360. A bill by the trustee to foreclose such a mort- 
 gage should state the incorporation of the trustee if such 
 trustee be a corporation, and the purpose for which it is 
 incorporated so that the court may see that it has power 
 to accept the trust, the incorporation of the mortgagor, 
 the purpose for which it was incorporated and the loca- 
 tion of its principal oflBce for the transaction of business 
 and that it was such corporation at the time when the 
 mortgage was made and the resolution to mortgage was 
 adopted. 
 
 It should also state the meeting of the directors or 
 stoctholders as the case may be at which it was resolved 
 to issue the bonds and make the mortgage, giving time 
 and place with an averment that the meeting was regu- 
 larly called and held, and should state the substance of 
 the resolution to issue the bonds and to execute the mort- 
 gage with averments of the lawful adoption of such reso- 
 lution and of the power of the corporation to adopt it; 
 this statement should he full and detailed so that the court 
 may be advised that the bonds were issued and the mort- 
 
 27 — Proctor v. Bobinson, S5 Mich. 
 284, 
 
396 stage's MICHIGAN CHANCERY PEAOTICE AND FORMS 
 
 gage executed in conformity therewith. The number, 
 denomination and description of the bonds authorized 
 and the description of the property authorized to be 
 mortgaged should be particularly set forth, as well as the 
 purpose for which they were to be issued. 
 
 The bill should also state the issuing of the bonds, stat- 
 ing numbers, denomination and description as well as 
 time of maturity and rate of interest ajid also the execu- 
 tion and delivery of the mortgage stating by whom exe- 
 cuted and acknowledged, the description of the land mort- 
 gaged and full particulars so that the court may see that 
 the resolution has been followed, the issuing of the bonds 
 and execution and delivery of the mortgage should be 
 averred to be in pursuance of the resolution and the pro- 
 visions of the mortgage and the recording thereof should 
 be stated as in ordinary foreclosure bills. The bill should 
 also state the sale of the bonds or of so many as were 
 sold, and the amount thereof and the names of the bond- 
 holders and the amount held by each so far as known, 
 and that the same are due and how much is due thereon 
 for principal and interest and that the same have been 
 presented for payment and that payment has not been 
 made and that no proceeding at law has been taken for 
 the collection thereof or of any part thereof, or, if any 
 proceedings have been taken at law by any of the bond- 
 holders, state the facts in relation thereto and the present 
 condition of the proceedings. 
 
 The bill should also state that a majority of the bond- 
 holders have requested the complainant to foreclose, or 
 whatever action is made necessary to authorize a fore- 
 closure as the case may be. 
 
 The bill should also contain the usual statement as to 
 subsequent purchasers or encumbrancers, etc., and the 
 usual prayer for payment or for sale in default of 
 payment. 
 
 The bondholders should not be made parties to the bill, 
 although they may be mentioned therein by name. 
 
 If the trustee refuse or neglect to foreclose the mort- 
 gage after being lawfully requested so to do, the bond- 
 holders may maintain a bill to foreclose ; the bill in that 
 
stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 397 
 
 case should show the request made to the trustee to fore- 
 close and the refusal and neglect to do so as well as the 
 matters required in a bill by the trustee. The trustee 
 should be made one of the defendants. 
 
 § 361. Foreclosure bills need not be sworn to unless 
 an injunction to stay waste or some other relief pendente 
 lite is desired. 
 
 §362. A defendant may show by his answer any 
 equitable defence which he may have to the bill either in 
 whole or in part. Thus he may show that the mortgage 
 was obtained by fraud practiced upon him by the mort- 
 gagee, setting forth the circumstances constituting the 
 fraud,^* but if the mortgage be given to secure the pay- 
 ment of a negotiable note which has been transferred 
 like other negotiable paper to a bona fide holder for value, 
 he can only interpose such defences as he might make to 
 the note in a suit at law,"^ except that the statute of limi- 
 tations is fifteen years in the case of the foreclosure of a 
 mortgage.^" It is a good defence against the mortgagee 
 that the mortgage was obtained by taking an undue ad- 
 vantage of the mortgagor's ignorance and necessities.^' 
 
 Payment in full is a complete defence, but the payment 
 must be made to the true owner of the debt or to one 
 authorized by the owner to receive it who has possession 
 of the securities.^^ Where the mortgagee in a purchase 
 money mortgage made false representations as to the 
 mortgagor to the productiveness of the land, whereby the 
 mortgagor was induced to buy it, may be shown in re- 
 duction of the amount equitably due.^^ It is, however, 
 no defence to a purchase money mortgage that there is 
 an outstanding paramount title to the whole or a part of 
 
 28— Aiken v. Morris, 2 Barb. Oh. 32— Bromley v. Lathrop, 105 
 
 140; Allen v. Shackelton, 15 Ohio Mich. 492; Babcock v. Young, 117 
 St. 105; Stebbins v. Timm, 96 Mich. Mich. 155; Joy v. Vance, 104 Mich. 
 55. 97. 
 
 29— Vinton v. King, 86 Mass. 562. 33— Harvey v. Perry, 82 Ind. 263. 
 
 30— C. L., Sec. 9725. 
 
 31 — Sackner v. Sackner, 39 Mich. 
 39. 
 
398 stage's MICHIGAN CHANCEBY PEACTICE AND FOKMS 
 
 the land unless the mortgagor has been evicted or suffered 
 some actual injury.** A mortgagor may not deny his own 
 title nor may a mortgagor corporation deny its corporate 
 existence,*® but a mortgage given on one tract of land to 
 secure the purchase price of another to which the mort- 
 gagee had no title, but had given a warranty deed to the 
 mortgagor, may be defended against.^^ 
 
 § 363. It is also a complete defence that the complain- 
 ant has no interest in the debt to secure which the mort- 
 gage was given,*'' but it is provided by rule that whenever 
 the complainant shall have transferred hi? interest in 
 the subject matter either voluntarily or by process of 
 law, the suit shall not thereby be abated but the trans- 
 feree may, on petition, be substituted as complainant in 
 the suit.** Where the complainant is the technical holder 
 of the mortgage but other parties are the owners of the 
 note who use the complainant's name for the purposes 
 of the suit, the defendants are entitled to the benefit of 
 any defence they might have against the real owners.** 
 A mortgage on a homestead without the signature of the 
 wife even if she be not living with her husband is void.*" 
 
 As a general rule the assignee of a mortgage (not be- 
 ing the endorsee of negotiable paper thereby secured) 
 takes it subject to all existing equities.*^ 
 
 § 364. By statute no suit or proceeding shall be main- 
 tained to foreclose a mortgage on real estate unless com- 
 menced within fifteen years from and after such mort- 
 gage became due and payable or within fifteen years 
 after the last payment was made on said mortgage/* 
 
 34 — N. Bank of SturgU v. Levan- 38 — Chancery Eule 34. 
 
 seler, 115 Mich. 372; Hulfish v. 39— Spear v. Hadden, 31 Mich. 
 
 O'Brien, 20 N. J. Eq. 230; Smith v. 265. 
 
 Fiting, 37 Mich. 148; Pfirrman ▼. 40 — Sherrid v. Southwick, 43 
 
 Wattles, 86 Mich. 254. Mich. 51S. 
 
 35 — Eaelne &c. E. Co. t. Farmers 41 — Cooper v. Smith, 75 Mich. 
 
 & Trust Co., 49 111. 331. 247; Castle v. Castle, 78 Mich. 29S; 
 
 36— Smith v. Newton, 38 111. 230. Cooley v. Harris, 92 Mich. 126. 
 
 37 — Wallace v. Dunning, Walk. 42 — C. L., See. 9725. 
 Ch. 416; Cooper v. Smith, 75 Mich. 
 247. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 399 
 
 The defence that the foreclosure is barred by this statute 
 may be made by answer as well as by demurrer.*^ 
 
 As a general rule a foreclosure suit can be defended 
 only on the grounds set up in the answer.** 
 
 § 365. An answer may pray affirmative relief as by 
 cross bill, such as thei discharge of the mortgage.*^ A 
 subsequent incumbrancer may, by cross bill, pray to have 
 complainant's mortgage postponed to his own,*^ and an 
 assignee of one of the notes secured by the mortgage 
 may obtain the benefit of the foreclosure as to the amount 
 due to him.*^ 
 
 An answer to a bill filed for the discharge of a mort- 
 gage may, after averring the validity of the mortgage, 
 pray for its forecloaure.** 
 
 If the bill is taken as confessed, or the right of the 
 complainant as stated in the bill is admitted in the an- 
 swer, the complainant may have an order of course re- 
 ferring it to a commissioner to compute the amount due 
 to ViiTn and to such of the defendants as are prior in- 
 cumbrancers of the mortgaged premises.** 
 
 If the defendant is an infant and has put in a general 
 answer by his guardian, or any of the defendants are 
 absentees and have not been personally served, the com- 
 plainant may have a similar order of course referring it 
 to a commissioner to take proof of the facts and circum- 
 stances stated in the complainant's bill and to compute 
 the amount due on the mortgage. But every such cause 
 shall be regularly brought to hearing at term after the 
 coming in of the commissioner's report before a final 
 decree is entered therein.^" 
 
 §366, The court may dispense with a reference to 
 
 43— Highstone v. Franks, 93 Mieh. 46— Farmer 's Bank v. Bronson, 14 
 
 52. Mieh. 362. 
 
 44— Hignian v. Stewart, 38 Mich. 47— Wilcox v. Allen, 36 Mich. 160. 
 
 513; Beed v. Jourdan, 109 Mich. 48-— Ward v. Munson, 105 Mieh. 
 
 128. 147. 
 
 45— Chancery Eule 11a, First IS'. 49— Chancery Rule 28b. 
 
 Bank v. Pierce, 117 Mich. 376.' 50 — Chancery Kule 28o. 
 
400 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 eompute the amotmt due and make its own computation,' ' 
 but no decree can be made against a defendant not per- 
 sonally served without proofs nor against an infant, 
 taken either before a circuit court commissioner or in 
 open court.^^ 
 
 § 367. If the bill has been taken as confessed, the com- 
 plainant shall show to the court at the hearing, by affi- 
 davit, that the proceedings to take the bill as confessed 
 have been regular according to the rules and practice of 
 the court, and whether the bill has been taken as con- 
 fessed against all of the defendants upon service of a 
 subpoena or after an appearance, or whether some of 
 them have been proceeded against as absentees.'* 
 
 § 368. On filing the bill a notice of the commencement 
 of the suit commonly called a notice lis pendens, setting 
 forth the title of the court and of the cause, giving the 
 names of all the parties and that the suit has been com- 
 menced for the foreclosure of the mortgage, giving t"he 
 date and names of the mortgagors and mortgagee with 
 time and place of recording and the assignment, if any, 
 and a description of the premises affected by the suit 
 and the county wherein situated signed by the solicitor 
 for the complainant, should be filed in the office of the 
 register of deeds of each county wherein the lands are 
 situated.'* The effect of such notice is to bind all per- 
 sons acquiring subsequent interests in the land under 
 any of the defendants by the decree. 
 
 The proceedings to the hearing are in other respects 
 similar to those in other chancery cases. 
 
 At the hearing the notes, bonds or other evidences of 
 debt as well as the mortgage must be produced or ac- 
 counted for by adequate reasons for non-production.'^ 
 
 51— Vaughan v. Wims, 36 Mich. Walk. Ch. 200; Chandler v. McKin- 
 
 297; Ireland v. Woolman, 15 Mich. ney, 6 Mich. ^17. 
 
 253. 53 — Chancery Eule, 28d. 
 
 52— C. L., Sees. 490, 491; Brown 54— C. L., Sec. 441. 
 
 y. Thompson, 29 Mich. 72; State Tai 55— Ward v. Munson, 105 Mich. 
 
 Cases, 54 Mich. 415; Thayer V. Lane, 647; George v. Ludlow, 66 Mich. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 401 
 
 § 369. Decree. A decree in favor of complainant 
 should adjudge the amount due and the rate of interest 
 which it bears, being the same as that borne by the mort- 
 gage debt, and that the amount be paid with interest and 
 costs to be taxed by a qisrtain day, not less than six 
 months from the time whern the bill was filed, and that in 
 default of such payment the mortgaged premises or so 
 much thereof as shall be sufficient to sartisfy the mort- 
 gage debt with interest and costs and expenses of sale, 
 and which can be sold separately without injury to the 
 remainder, be sold at public auction by a circuit court 
 commissioner to the highest bidder, and that from the 
 proceeds of such sale the commissioner pay the expenses 
 • of such sale, the costs of suit and the amount adjudged 
 due to the complainant with interest at the rate decreed, 
 naming it, or so much thereof as the amount realized from 
 such sale will pay and that he bring the surplus, if any, 
 into court for future disposition, that the commissioner 
 make deeds of the lands so sold to the purchaser and de- 
 posit the same with the register of deeds and that at the 
 expiration of six months from the time of such sa.]re the 
 defendants and all persons claiming under them be fore- 
 closed and barred of all interest in the said lainds so sold 
 and that they deliver possession thereof to the purchaser 
 or purchasers, unless sooner redeemed, on production of 
 the deeds and a certified e.opy of the order confirming the 
 report of sale. The decree should also adjudge which of 
 the defendants are personally liable for the debt secured 
 by the mortgage and that in case the sale fail to produce 
 sufficient to satisfy the debt with interest, costs and ex- 
 pense of sale, that complainant have execution for the 
 balance. 
 
 A decree may be given for everything that is due at the 
 time it is made, although the suit may have been begun 
 when only an instalment of the debt had matured.^* 
 
 176; Bassett v. Hathaway, 9 Mich, 296; Union Trjist Co, v. Motor Ca., 
 
 28; Bailey y. Gould, Walk. Ch. 478; 17 Mich. 631; Johnson v. Van Vel- 
 
 Hnngerford v. Smith, 34 Mich. 300; sor, 43 Mich. 208; Hanford v. Rob- 
 
 Mickle V. Maxfiel^, 42 Mich. 304. ertspn, 47 Mich. 100. 
 56 — ^Vaughn y. Nims, 36 Mich. 
 
402 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 Taxes and insurance paid by complainant may also be 
 included in the amount decreed to be due when the mort- 
 gage provides for their payment and that the amount so 
 paid shall be a lien,^^ and taxes paid by complainant for 
 the protection of the security may be included when not 
 mentioned in the mortgage.^ 
 
 § 370. Where subsequent to the giving of the mort- 
 gage, parcels of the land mortgaged have been conveyed 
 or encumbered, the decree should provide that the prem- 
 ises be sold in the inverse order of alienation or incum- 
 brance,^* but this rule will not apply to cases where a 
 sale was made expressly subject to the mortgage in suit.*" 
 Nor to cases where the paramount incumbrancer would 
 be delayed or inconvenienced in the collection of his debt.^'^ 
 
 A personal decree may be made against third persons 
 who have guaranteed the mortgage debt,^'^ but cannot be 
 made against a defendant not personally served with 
 process,*^ nor against a wife who joined in the mortgage 
 merely to bar her dower.^* 
 
 §371. It is provided by statute that no sale shall be 
 made until after six months from the time of filing the 
 bill, the deeds naade by the circuit court commissioner do 
 not become operative for six months after the sale, and 
 in the meantime the lands may be redeemed by payment 
 to the purchaser of the amount of his bid with interest 
 at the rate named in the mortgage, or the payment may 
 be made to the register of deeds in whose oflSce the deeds 
 are deposited for the purchaser, in which case a fee of 
 one dollar is to be added.^° 
 
 57 — JeUe v. Brooks, 112 Mich. 61 — F-aiwell v. Bigelow, 112 Mich. 
 
 131; Farwell v. Bigelow, 112 Mich. 285. 
 
 £85; Walton v. Hollywood, 47 Mich. 62 — Union Trust Oo. v. Motor Co., 
 
 3.85. 117 Mich. 631. 
 
 58— Vaughn v. Nims, 36 Mich. 63— Innei v. Stewart, 36 Mich. 
 
 296. 285. 
 
 59— Mason v. Payne, Walk. Ch. 64— Sows v. Lemon, 37 Mich. 
 
 459; Gray v. Lumbar Co., 128 Mich. 164; Kitchell v. MucLgate, 37 Mich. 
 
 427; Cooper v. Bigby, 13 Mich. 463. 81. 
 
 60 — Hills Adm. v. McCarter, 27 N. 65— C. L., Sec. 516, as. am. by Act 
 
 J- Eq. 41. No. 200 Pub. Acts of 1899, P. 319. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 403 
 
 By rule, sales under decree of foreclosure shall not be 
 ordered on less than six full weeks or forty-two days' 
 notice, and publication shall not commence until the time 
 fixed by decree for payment has expired nor within six 
 months after commencement of suit.^® 
 
 Until the amendment of the statute in 1899, the sale 
 could not take place until a year after the commence- 
 ment of suit and there was no redemption after the con- 
 firmation of the report of sale, the deed taking immediate 
 effect. The time for redemption after decree being one 
 year is therefore practically unchanged, although the 
 sale is made six months earlier than before, there being 
 now six months after the sale in which to redeem. 
 
 If a new defendant is added to the bill by amendment, 
 the time that must elapse before a sale can be made is 
 computed from the time when the amendment was made.^^ 
 
 § 372. The sale must be made by a circuit court com- 
 missioner of the county in which the decree was made or 
 the land or some part thereof is situated, or by some other 
 person duly authorized by the order of the court, and 
 such sales shall be at public vendue between the hour of 
 nine o 'clock in the morning and the setting of the sun, at 
 the courthouse or place of holding the Circuit Court in 
 the county in which such estate or some paTt thereof is 
 situated or at such other place as the court shall direct.®^ 
 
 The sale cannot regularly be made before the enroll- 
 ment of the decree,®* but the advertising and other pre- 
 liminaries may be before the enrollment.^" 
 
 §373. If the mortgaged premises consist of several 
 distinct parcels not occupied as one parcel they should 
 usually be sold separately and no more parcels should be 
 sold than sufficient to satisfy the amount due with costs 
 and expenses,^ 1 but it is within the discretion of the court 
 to direct the sale of all parcels together if it appears 
 
 66— Chancery Rule 28e. Gladwin, 40 Mich. 232; Dewey v. 
 
 67— Gray v. Bank, 83 Mich. 365. Dewey, 151 Mich. 586. 
 
 68 — C. L., Sec. 522. 71 — See C. L., See. 11139 ; Grover 
 
 69— Chancery Rule 24a. v. Fox, 37 Mich. 462; Clark v. Stil- 
 
 70 — Chancery Rule 24c; Taylor v. son, 37 Mich. 482. 
 
404 stage's MICHIGAN CHANCBEY PRACTICE AND FOEMS 
 
 more likely to bring a Mgher price than if sold in par- 
 cels/^ A sale of parcels is ordered in the interest of the 
 parties entitled to redeem and to protect their right to 
 redeem each parcel separately.''* 
 
 § 374. Notice of the sale must be given by posting up 
 in three public places in the city, village or township 
 where such real estate is to be sold, a written or printed 
 notice thereof six weeks previous to the sale, and by pub- 
 lishing a copy of such notice once in each week for six 
 successive weeks in a newspaper printed and circulating 
 in the county in which the real estate is to be sold, if 
 there be one. If there be no newspaper printed in the 
 county, then the publication shall be in some newspaper 
 nearest thereto.''* 
 
 The notice must contain a description of the property ^^ 
 as well as the time and place of sale and also the title of 
 the cause, names of the parties and the date of the de- 
 cree.'"' The statutory notices are indispensable to the 
 validity of the sale and strict proof thereof must appear 
 on record.'''' 
 
 The eommsisioner or other person authorized to make 
 such a sale may adjourn it from time to time for reason- 
 able cause. If such adjournment be for over one week 
 he shall give notice thereof by publication in the news- 
 paper in which the original notice was printed and imme- 
 diately following the same and continue such publication 
 up to the time of sale, but need not post any notice of the 
 adjournment except at the place where the sale is to be 
 made.'® 
 
 § 375. In case any person making the highest bid shall 
 neglect or refuse to make immediate payment, such officer 
 or person may immediately, or upon some other day, pro- 
 ceed to re-sell such real estate. If such adjournment be 
 
 72 — Macomb v. Prentis, 57 Mich, 76 — C. L., Sec, 9247. 
 
 225. 77— N. Y. Baptist Union v. At- 
 
 73— Clark v. Stilson, 37 Mich. 482. well, 95 Mich. 239. 
 
 74— C. L., Sec. 9246. 78— C. L., Sec. 9248 and see Sec. 
 
 75 — Griswold v. Fuller, 33 Mich. 1087. 
 268. 
 
stage's MICHIGAN OHANCEKY PEACTICE AND FOEMS 405 
 
 for a week or more notices must be published as above 
 mentioned.'® 
 
 This statute affords protection against straw bidding. 
 It does not contemplate that each bid shall be accom- 
 panied with the money, and it is not unusual to allow a 
 reasonable time to produce it. Nor does it contemplate 
 that the officer making the sale shall by an unreasonable 
 demand, prevent competition or a sale of the property 
 in parcels to the best advantage.^" 
 
 § 376. Proof of the publication of the notice may be 
 made by the affida"\T.t of the printer of the newspaper or 
 of his foreman or principal clerk attached to a printed 
 copy of such notice taken from the paper and specifying 
 the time when, and the paper in which it was published, 
 filed with the register of the court at any time within sis 
 months of the last publication.*^ Proof of posting the 
 notices may be made by affidavit of the person who did 
 the posting, stating times and places of pbsting and that 
 the places were public places in the city or village. 
 
 On making the sale the circuit court commissioner will 
 execute a deed or deeds to the purchaser or purchasers, 
 specifying the names of the parties to the Suit, the date 
 of the mortgage and when and where recorded, a descrip- 
 tion of the lands sold and the amount for which each par- 
 cel was sold, and shall endorse on each deed the time 
 when it will become operative if the premises are not 
 redeemed. Within twenty days after such sale such deed 
 or deeds must be deposited with the register of deeds, who 
 will endorse thereon the time when received and will 
 record them in a book kept for that purpose. If any 
 parcel shall be redeemed within six months from the 
 time of sale the register of deeds will mark the record 
 "redeemed" with the date and his signature. If not 
 redeemed within the six months the deeds will become 
 operative and will vest in the purchaser all the right, 
 title and interest of the mortgagor in the land.*^ 
 
 79— C. L., Sec. 9249. 81— C. L., Sees. 10163-10164. 
 
 80 — Converse v. Clay, 86 Mich. 82 — C. L., Sec. 523, as am. by Act 
 
 375. 200 Pub. Acts of 1899, p. 310. 
 
406 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 § 377. The circuit court commissioner will make a full 
 report of such sale and all his doings thereon, including 
 his disposition of the proceeds thereof, to the court. If 
 there be any surplus after satisfying the amount due on 
 the mortgage with interest, costs and expenses, he will 
 bring that money into court,^^ and if there be any de- 
 ficiency he will show the amount in his report. 
 
 Until the sale is confirmed by the court it is subject to 
 be opened or set aside for any cause.** After the report 
 has been filed either party may file or enter an order of 
 course that the sale be confirmed unless cause to the con- 
 trary be shown within eight days after notice of its being 
 filed and if no exceptions are filed within that time the 
 order shall become absolute of course without further 
 order, or either party may file exceptions and have an 
 order of course to confirm the report so far as the same 
 is not excepted to and with like effect.*^ 
 
 A foreclosure sale cannot be made absolute nor can a 
 purchaser demand possession so long as objections duly 
 taken to the report of the commissioner have not been 
 passed upon.*^ 
 
 § 378. The court may vacate the sale and order a reT 
 sale on exceptions to the commissioner's report.*^ 
 
 A petition for a resale made after the order of con- 
 firmation has become absolute will not be granted unless 
 the equities are very great.®* 
 
 Such a petition will be granted on a showing that the 
 amount for which the land was sold was grossly inade- 
 quate and that an unfair advantage had been taken of 
 the petitioner at the sale.*" To make inadequacy of price 
 a ground for a resale it must be so glaring as to raise 
 
 83— C. L., Sec. 524. 375. See Hook v. Sloman, 155 
 
 84 — Demaray v. Little, 17 Mich. Mich. 1. 
 
 386; Kichards v. Morton, 18 Mich. 88— Ledyard v. Phillips, 32 Mich. 
 
 255; Howard v. Bond, 42 Mich. 131; 13. 
 
 Hachgraef v. Hendrie, 66 Mich. 556. 89— Gilbert v. Haire, 43 Mich. 
 
 85— Chancery Rule 19b. 283; Demaray v. little, 19 Mich. 
 
 86— Howard v. Bond, 42 Mich. 268; Nug?nt v. Nugent, 54 Mjch. 
 
 :31. 557. 
 
 87 — Converse v. Clay, 86 Mich. 
 
stage's MICHIGAN CHANCEKY PEACTICE AND FORMS 407 
 
 the presumption of fraud, and the court will not disturb 
 the sale unless elements of unfairness exist.'" A peti- 
 tion for a resale on the ground of inadequacy of bid must 
 offer to materially increase the amount.'^ 
 
 It requires a much stronger case to set aside a sale 
 after confirmation than before,®^ but where there has 
 been an undue advantage taken and defendant has had 
 no actual notice of the sale or report the sale may be set 
 aside even after third persons have acquired interests 
 in the property.'^ The petition must be filed as soon as 
 the petitioner has an opportunity, or the delay must be 
 satisfactorily explained.®* The petition must also show 
 that the matters complained of have not arisen through 
 any fault or negligence of the petitioner.®^ 
 
 The granting of a resale is in the sound discretion of 
 the court.®® 
 
 § 379. At a foreclosure sale the complainant has the 
 same rights in bidding as any third person and takes the 
 same interest if he becomes a purchaser.®'^ 
 
 A purchaser at a defective sale, while he does not ob- 
 tain a title to the land, acquires all the. rights of the com- 
 plainant in the mortgage.®^ 
 
 §380. Writ of Assistance. The court has power to 
 decree and compel the delivery of the possession of the 
 premises to the purchaser,®® after the confirmation of the 
 sale, and the deed to the purchaser has become absolute, 
 a writ of assistance to put the purchaser in possession 
 will be granted on his motion or petition,"® but such a 
 
 90— BuUard v. Green, 10 Mich. 95— BuUard v. Green, 10 Mich. 
 
 268; Hook v. Sloman, 155 Mich. 1. 268. 
 
 91— Leonard v. Taylor, 12 Mich. 96— Nugent v. Nugent, 54 Mich. 
 
 398; Hook v. Sloman, 155 Mich. 1. 557. 
 
 92— Bullard v. Green, 10 Mich. 97— Ledyard v. Phillips, 47 Mich. 
 
 268. 305. 
 
 93— Brewer v. Landia, 111 Mich. 98— Eichards v. Morton, 18 Mich. 
 
 217; Nugent v. Nugent, 54 Mich. 255. 
 
 557. 99— C. L., Sec. 517. 
 
 94— Bullard v. Green, 10 Mich. 100— Baker v. Pierson, 5 Mich. 
 
 268; Leonard v. Taylor, 12 Mich. 456; Bamsdell v. Maxwell, 32 Mich, 
 
 398; Goodwin v. Burns, 21 Mich. 211. 285; Tucker v. Stone, 99 Mich. 419 j 
 
408 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 writ is not proper and will not issue when the possession 
 is withheld under claim of title not precluded by the de- 
 cree of foreclosure and sale.^ The writ cannot issue until 
 the order of confirmation has become absolute.^ 
 
 The petition, or affidavit, in support of the motion 
 should set forth the decree of the sale, the sale of the 
 premises, the deed to the purchaser and its deposit with 
 the register of deeds, the order confirming the sale, the 
 fact that the land has not been redeemed and that the 
 deed has become operative and has been delivered to the 
 purchaser, that the defendants, naming them, are in ac- 
 tual possession of the land and that the purchaser has 
 presented and exhibited to them, on a certain specified 
 day, the deed and a certified copy of the order of con- 
 firmation of the sale and demanded possession and that 
 the said defendants refused and continue to refuse to 
 deliver possession.^ 
 
 The writ is directed to the sheriff and commands him 
 forthwith to put the purchaser in full possession of the 
 premises and to remove the defendants therefrom. It is 
 issued by the register of the court by a special order of 
 the court made upon hearing the petition. The order may 
 be ex parte on the same day on which the demand of 
 possession was made.* 
 
 § 381. Surplus. If there be any surplus after pay- 
 ment of the amount due with interest, costs and expenses, 
 it shall be brought into court for the use of the defendant 
 or person entitled thereto subject to the order of the 
 court.^ 
 
 It is provided by rule that after the confirmation of 
 the sale, if there be any surplus, any defendant, upon 
 filing an affidavit that such surplus has been paid into 
 court and that he is entitled to it or to some part of it, 
 may have an order of course referring it to a commis- 
 
 Ball V. Eidge Copper Co., 118 2— Howard v. Bond, 42 Mich. 131. 
 
 Mich. 7. 3— Tucker -s. Stone, 99 Midh. 419. 
 
 1 — Summers v. Bromley, 28 Mieh. 4 — Tucker v. Stone, 99 Mich. 419. 
 
 125; Eamsdell v. Maxwell, 32 Mich. 5^C. L., See. 524. 
 285. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 409 
 
 sioner to ascertain and report the amount due to such de- 
 fendant or to any other person, and which is a lien upon 
 such surplus money; and to ascertain the priorities of 
 the several liens thereon, to the end that on the coming in 
 and confirmation of the report, such further order and 
 decree may be made for the distribution of such surplus 
 money as may be just and every defendant who has ap- 
 peared in the cause, and every person who has left a 
 written notice of his claim to such surplus moneys with 
 the register with whom the same are deposited, shall be 
 entitled to attend the commissioner on such reference. 
 Any person making a claim to such surplus who shall 
 fail to estabKsh his claim, may be charged with such costs 
 as the other parties have been subjected to by reason of 
 such claim ; and the parties succeeding on such reference 
 may be allowed such costs as the court may deem rea- 
 sonable; but no costs unnecessarily incurred on such 
 reference or previous thereto by any of the parties shall 
 be allowed on taxation or paid out of the surplus." 
 
 All the parties to the suit should have notice of an 
 application for the surplus money and if the owner of 
 the equity of redemption dies subsequent to the sale, his 
 personal representative should also have notice of the 
 application.'^ 
 
 A divorced wife, who is entitled to dower, is entitled 
 to dower in the surplus arising from the foreclosure of 
 a mortgage executed by her husband before marriage.* 
 
 If the surplus remain unclaimed for three months the 
 court may direct it to be put out at interest for the benefit 
 of those entitled thereto.* 
 
 § 382. Deficiency. The court has power to decree and 
 direct the payment by the mortgagor of any balance of 
 the mortgage debt that remains unsatisfied after a sale 
 of the mortgaged premises in the cases in which such bal- 
 ance is recoverable at law, and for that purpose may issue 
 
 6 — Chancery Rule 28f ; see More- 7— Smith v. Smith, 13 Mich. 258. 
 
 land V. Houghton, 96 Mich. 346 ; 8— Bowles v. Hoard, 71 Mich. 150. 
 
 Macomb v. LivingstoD, 83 Mich. 486. 9— C. L., Sec. 525. 
 
410 stage's MICHIGAN CHANCEKY PEACTICE AND FORMS 
 
 the necessary executions as in other cases against other 
 property of the mortgagor.^" 
 
 § 383. In order to give jurisdiction to make such de- 
 cree, the mortgage must either contain a covenant to pay 
 the amount secured or must be given to secure a written 
 obligation which is capable of enforcement in a suit at 
 law and is not outlawed. ^^ It is provided by statute that, 
 
 "No mortgage shall be construed as implying a cove- 
 nant for the payment of the sum thereby intended to be 
 secured, and when there shall be no express covenant for 
 such payment contained in the mortgage no bond or other 
 separate instrument to secure such payment shall have 
 been given the remedies of the mortgagee shall be con- 
 fined to the lands mentioned in the mortgage." ^^ 
 
 § 384. It is also provided that "If the njortgage debt 
 be secured by the obligation or other evidence of debt of 
 any other person besides the mortgagor, the complainant 
 may make such person a party to the bill, and the court 
 may decree payment of the balance of such debt remain- 
 ing unsatisfied after a sale of the mortgaged premises as 
 well against such other persons as the mortgagor and 
 may enforce such decree as in other cases." ^^ This 
 statute is permissive. It is not obligatory on the com- 
 plainant to make such other persons parties.^* 
 
 In order to charge such third parties the obligation 
 must be such that an independent action at law might be 
 maintained thereon.^^ 
 
 Thus a guarantor of collection, not being liable until 
 all remedies against the mortgagor are exhausted is not 
 a proper party to a foreclosure suit and no execution for 
 
 10— C. L., See. 517. 13— C. L., Sec. 519. 
 
 11 — Micli. Ins. Co. V. Brown, 11 14 — Steele v. Circuit Judg^ 109 
 
 Mich. 265; Sheldon v. Erskine, 78 Mich. 647. 
 
 Mich. 627; Johnson v. Shepard, 35 15— Vaughan v. Black, 63 Mich. 
 
 Mich, 115. 215 ; Windsor v. Ludington, 77 Mich. 
 
 12— C. L., See. 8960; Brown v. 215; Mich. St. Bank v. Trowbridge, 
 
 Phillips, 40 Mich. 264; Gage v. 92 Mich. 217. 
 Jenkinaon, 58 Mich. 169. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 411 
 
 deficiency can be decreed against Mm in such a suit,*® but 
 such an execution may be decreed against a guarantor 
 of payment if made a party to the bill." If the mort- 
 gagor dies during the pendency of the suit and it is re- 
 vived against his personal representatives, his estate may 
 be held for the deficiency.*^ 
 
 The authority to make a decree for the payment of the 
 deficiency is wholly statutory and cannot be enlarged.^* 
 
 § 385. A purchaser subsequent to the mortgage who 
 accepts a deed subject to the mortgage and containing a 
 clause that the grantee assumes and agrees to pay the 
 mortgage becomes personally liable in equity for the 
 debt and execution for deficiency may issue against him.^" 
 
 §386. Proceedings for a decree of persgnal liability 
 for the amount of deficiency and for execution therefor 
 is not a continuation of the original foreclosure but is 
 supplementary thereto.^* It is obtained on a special ap- 
 plication to the court by petition after the coining in and 
 confirmation of the report of sale showing the deficiency 
 and notice must be given to the person against whom such 
 personal decree is sought.^^ Such decree cannot be ob- 
 tained against any defendant who was not personally 
 served with process or voluntarily appeared,** but when 
 a non-resident defendant has been personally served with 
 a subpoena in the foreclosure suit the court may direct 
 substituted service of the notice of the petition for per- 
 sonal decree for deficiency.^* 
 
 16 — Johnson v. Shepard, 35 Mich. 115; Field v. Sag. Cir. Judge, 124 
 
 115. Mich. 68. 
 
 17— Miller v. McLaughlin, 141 22— Gies v. Green, 42 Mich. 107 
 
 Mich. 425. Howe v. Lemon, 37 Mich. 164 ; Pren- 
 
 18 — Shelden v. Warner's Est., 59 tis v. Richardson's Eat., 118 Mich, 
 
 Mich. 444. 259. 
 
 19— Shelden v. Erskine, 78 Mich. 23— Booth v. Ins. Co., 43 Mich, 
 
 627. 299; MeCrickett v. Wilson, 50 Mich, 
 
 20 — Taylor v. Whitmore, 35 Mich. 513. 
 
 97; Gage v. Jenkinson, 58 Mich. 24 — Ransom v-. Sutherland, 4 Mich, 
 
 169; Corning v. Burton, 102 Mich. 489; Field v. Cir. Judge, 124 Mich, 
 
 86; Jehle v. Brooks, 112 Mich. 131. 68. 
 
 21 — Johnson v. Shepard, 35 Mich. 
 
412 stage's MICHIGAN CHANCEKY PEACTICE AND FOBMS 
 
 § 387. The defendant may answer the petition, stating 
 his objection to the decree or issuance of execution. He 
 cannot in his answer deny the regularity of the proceed- 
 ings for the decree of sale nor the amount found due by 
 that decree ^^ nor the regularity of the sale nor the truth 
 of the report, but he may allege any matter which shows 
 that his personal liability has been discharged or waived. 
 A discharge in bankruptcy will bar a decree for personal 
 liability.^* A failure in the underwriting in the subpoena 
 to state that a personal decree is sought against the de- 
 fendant may be shown.*'^ It is discretionary with the 
 court and when inequitable may be denied.^® 
 
 The execution cannot be issued after the lapse of ten 
 years from the time of making the final decree in the fore- 
 closure case.^* 
 
 § 388. Instalments Subsequently Due. When any bill 
 shall be filed for the satisfaction or foreclosure of any 
 mortgage upon which thete shall be due any interest or 
 any portion or instalment of the principal, and there shall 
 be other portions or instalments to become due subse- 
 quently the bill shall be dismissed upon the defendant's 
 bringing into court at any time before the decree of sale, 
 the principal and interest due with costs.^" If, after a 
 decree for sale entered against a defendant in such case, 
 he shall bring into court the principal and interest due 
 with costs, the proceedings in the suit shall be stayed, but 
 the court shall enter a decree of foreclosure and sale, to 
 be enforced by a further order of the court upon a sub- 
 sequent default in the payment of any portion or instal- 
 ment of the principal, or of any interest thereafter to 
 grow due.^^ 
 
 25— Jehle v. Brooks, 112 Mich. 29— Smith v. Pegg, 111 Mich. 232; 
 
 131; Corning v. Burton, 102 Mich. Quinnin v. Quinnin, 144 Mich. 230. 
 
 96. 30— C. U, Sec. 526; Tucker v. 
 
 26 — Prentis v. Eiehardson'a Es- Tucker, 24 Mich. 426; Brown v. 
 
 tate, 118 Mich. 259. Thompson, 29 Mich. 72. 
 
 27 — Chancery Eule 4a; Vaughan 31 — C. L., Sec 527. 
 V, Black, 63 Mich. 215. 
 
 28— Shields v. Eiopelle, 63 Mieh. 
 468. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 413 
 
 § 389. Proceedings on a subsequent default to obtain 
 a further decree is essentially a new suit in all except 
 form and every one whose interests are to be affected is 
 entitled to be heard and to have notice of the application 
 and service of papers must be made as in the original 
 suit and any defence which a defendant may have can be 
 introduced and proofs may be taken on either side, the 
 issues being the same as in the original suit, except that 
 the execution of the mortgage and its terms are estab- 
 lished by the original decree, the rights of the parties 
 litigant can only be determined by lawful evidenee.^^ 
 
 § 390. "If the defendant shall not bring into court the 
 amount due with costs, or if for any other cause, a decree 
 shall pass for the complainant, the court may direct a 
 reference to a circuit court commissioner to as.certain 
 and report the situation of the mortgaged premises or 
 may determine the same on oral or other testimony, and 
 if it shall appear that the same can be sold in parcels, 
 without injury to the interests of the parties, the decree 
 shall direct so much of the mortgaged premises to be 
 sold as will be suiBcient to pay the amount then due on 
 such mortgage with costs and such decree shall remain 
 as security for any subsequent default. ' ' ^^ 
 
 If in the ease mentioned in the preceding section there 
 shall be a.ny default subsequent to such decree in the 
 payment of any portion or instalment of the principal 
 o.r of any interest due upon such mortgage, the court may 
 upon petition of the complainant by a further order 
 founded upon such first decree, direct a sale of so much 
 of the mortgaged premises to be made under such decree 
 with the costs of such petition and the subsequent pro- 
 ceedings thereon, and the same proceedings may be had 
 as often as a default shall happen.^^ 
 
 § 391. The petition under this statute should set forth 
 briefly all the facts necessary to enable the defendants 
 as well as the court, to understand its object. It should 
 
 32 — ^Brown v. Tiompson^ 29 Mieh. 33 — C. L., See. 528. 
 
 72; Brand v. Smith, 99 Mich. 395. 34— C. L., Sec. 529. 
 
414 stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 
 
 state when the bill was filed, the date of the decree, the 
 amount that had become due at that time and that the 
 whole or some part thereftf remained unpaid. A copy of 
 the petition with notice of the time it will be presented to 
 the court should be served on the mortgagor and upon 
 every other person whose rights or interests are to be 
 affected in order to afford an opportunity to show cause 
 why the prayer of the petition should not be granted. 
 If no cause is shown the amount due may be ascertained 
 by reference to a commissioner or by the court.^^ 
 
 § 392. If in any of the foregoinng eases it shall appear 
 to the court that the mortgaged premises are so situated 
 that a sale of the whole will be most beneficial to the 
 parties, the decree shall in the first instance be entered 
 for the sale of the whole premises a,ccordingly.^^ In such 
 case the proceeds of such sale shall be applied as well 
 to the interest, portion or instalment of the principal due, 
 as towards the whole or residue of the sum secured by 
 such mortgage, and not due and payable at the time of 
 such sale, and if such residue do not bear interest, then 
 the court may direct the same to be paid with a rebate of 
 the legal interest, for the time during which such residue 
 shall not be due and payable, or the court may direct the 
 balance of the proceeds of such sale, after paying the 
 s.um due with costs, to be put out at interest for the benefit 
 of the complainant, to be paid to him as the instalments 
 or portions of the principal or the interest may become 
 due, and the surplus for the benefit of the defendant, his 
 representatives or assigns, to be paid to them on the or- 
 der of the court. ^'^ 
 
 Vendor's Lien. 
 
 § 393. The vendor of land who has taken no security, 
 although he has made an absolute deed, reciting therein 
 an acknowledgment of the receipt of the purchase price, 
 
 35— Bank v. Stsven?, Wal. Ch. 6; 36— C. L., 9bc. 530; Disbrow v. 
 
 Brown v. Thompson, 29 Mich, 72; Jones, Har. Ch. 48. 
 Brand v. Smith, 99 Mich. 395. 37— C. L., Sea. 531. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 415 
 
 yet retains an equitable lien for the purchase money, un- 
 less there be an express or implied waiver or discharge 
 of it which lien will be enforced in equity against the 
 vendee and all persons claiming under him except bona 
 fide purchasers without notice of the lien.^* 
 
 Such a lien has priority over trustees in bankruptcy or 
 insolvency, or a general assignment for the benefit of 
 creditors.^* 
 
 § 394. A bill to establish and foreclose a vendor's lien 
 must state accurately a description of the land, the sale 
 and conveyance thereof, the purchase price, and terms 
 of payment, and that it is overdue and unpaid,*" and that 
 a lien is claimed. 
 
 Any subsequent purchaser or mortgagee of the land 
 from the vendee with notice of the lien is a proper party 
 to the bill as well as the vendee.*^ Tenants renting from 
 the vendee may also be made parties. 
 
 The prayer of the bill and the practice and proceedings 
 will be substantially the same as in the foreclosure of a 
 mortgage, the lien being in the nature of an equitable 
 mortgage. 
 
 Land Contract. 
 
 §395. Where a vendee in a contract for the sale of 
 the land has failed to make payments according to the 
 terms of the contract the vendor may maintain a bill for 
 the foreclosure of the vendees interest instead of the 
 harsh remedy of declaring the contract forfeited. And 
 where the vendee is in possession and a considerable part 
 of the purchase price has been actually paid, this is often 
 the preferable proceeding. 
 
 Equity will not decree a strict foreclosure, which would 
 be in effect a forfeiture of all the interest of the vendee, 
 
 38— Dunton v. Outhouse, 64 Mich. 419 ; Waterf ord v. Wilber, 64 Mich. 
 
 , 419; Carroll v. Van Eensaeller, Har. 642; Mowbrey v. Vandling, 9 Mieh. 
 
 Ch. 225; Curtis v. Clark, 113 Mich. 39. 
 
 458. 41 — Carroll v. Van Bensaeller, 
 
 39— Lyon v. Clark, 132 Mieh. 521. Har. Ch. -225. 
 
 40 — ^Dunton v. Outhouse, 64 Mich. 
 
416 stage's MICHIGAN CHANCERY PEACTICE AND EOEMS 
 
 but a sale of the land and the application of the proceeds 
 to the payment of the amount due to the vendor, in sub- 
 stantially the same manner as the foreclosure of a mort- 
 gage.*2 
 
 § 396. The bill should accurately set forth the con- 
 tract, the- true description of the land, tjie persops with 
 whom the contract was made, the assignment of the in- 
 terest of either party, if any, the purchase price and terms 
 of payment, the breach of the contract, the amount due 
 the vendor and the persons claiming an interest in the 
 land. All persons claiming under the vendee should be 
 made parties as well as the vendee himself, even though 
 he may have assigned away his interests. The prayer 
 should be similar in most respects to that in a bill to 
 foreclose a mortgage. 
 
 But the proceedings on the foreclosure of a land con- 
 tract are not bound by the statutory limitations as to 
 time in the case of mortgage foreclosure. A sale may be 
 decreed to take place in less than six months and no time 
 for redemption after the confirmation of the sale need be 
 given, but possession may be given to the purchaser im- 
 mediately after such confirmation.*^ The proceedings 
 are otherwise similar to those on foreclosure of a mort- 
 gage. 
 
 Mechanic's Lien. 
 
 §397. The mechanic's lien law** gives to every con- 
 tractor, subcontractor, laborer and material man who, 
 under any contract express or implied with any owner, 
 part owner or lessee of any land, shall furnish any labor 
 or materials for the building, altering, improving, repair- 
 ing or ornamenting any building, structure, basement, 
 cellar or wharf thereon or any sidewalk appurtenant 
 thereto, a lien upon all the interest of such owner, part 
 
 owner or lessee in the land upon which such improve- 
 
 • 
 
 42 — Fitzhugh v. Maxwell, 30 Mich. 43 — Jones v. Bowling, 117 Mich. 
 
 138; Walker v. Caagrain, 101 Mich. 283. 
 604. 44— C. h., Chapter 296. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 417 
 
 ment is made not exceeding a, quarter section in the coun- 
 try nor the lot or lots in any city or viUagie : provided that 
 subcontractors, laborers and material men shall give no- 
 tice in writing to such owner, part owner or lessee or his 
 agent, of the nature of the materials furnished or labor 
 performed or to be performed and a description of the 
 premises where furnished, which notice must be given 
 within thirty days after commencing to perform such 
 labor or to deliver such materials or before the principal 
 contractor shaU have furnished to such owner, part owner 
 or lessee his statement on oath and in writing of the 
 names of all subcontractors, laborers and material men 
 and the amount due each. The owner, part owner or 
 lessee is not made liable to the subcontractors, material 
 men or laborers for any greater amount in the aggregate 
 than that which he agreed to pay the original contractor, 
 and may recoup any damages sustained by reason of any 
 failure or omission in the performance of the contract. 
 The risk of all payments made to the original contractor 
 after receiving such notice or before the statement on 
 oath of the original contractor has been furnished to him 
 is upon the owner, part owner or lessee and no payment 
 to a contractor, made before the expiration of the sixty 
 days within which a lien must be filed, will defeat such 
 lien unless such payment has been distributed among 
 such subcontractors, material men and laborers, and if 
 distributed in part, pnly to the extent of such distribu- 
 tioii.*5 
 
 The lien reaches only the actual interest in the land 
 which is owned by the person making the contract.*^ It 
 extends to the statutory limit and the claimant need, aver 
 and prove no more than the quantity of land in which he 
 claims a lien is within that limit. In case of a factory on 
 a city block it may extend to the entire property selected 
 as a site for, and devoted to, the use of the f actory.*'^ 
 
 45 — C. L., Sec. 10710, as am. by 47 — Adams v. Central City Gran- 
 
 Act No. 121 Pub. Acts of 1909. ite, etc. Co., 154 Mich. 448. 
 
 46 — Peninsular Electric Co. v. 
 Shepard, 100 Mich. 496; Wagar v. 
 Briscoe, 38 Mich. 587. 
 
418 stage's MICHIGAN CHANCEEY PKACTICE AND FOEMS 
 
 The lien of a material man exists only for materials 
 actually used in the building, materials furnished the 
 contractor but not used furnish no basis for a lien.*® 
 
 Materials furnished to a building contractor on gen- 
 eral account without any understanding as to what build- 
 ing they are intended for furnish no basis for a material 
 man's lien.*^ 
 
 The owner may recoup his damages for breach of con- 
 tract, but to obtain a decree against the contractor for 
 the amount of such damages he must have set up the 
 claim for recoupment in his answer.^" 
 
 The service of the notice mentioned in this section is 
 for the protection of the subcontractor, material man or 
 laborer and is not a condition for the attachment of the 
 lien, as if the notice is not served the owner may act on 
 the sworn statement of the original contractor.'^ 
 
 The lien arises only on a contract with the owner, part 
 owner or lessee of the land, one who had no title at the 
 time of contracting cannot incur a lien on the land.'^ 
 
 §398. Fraud in furnishing defective materials pre- 
 vents the attaching of a lien, the lien law protects inno- 
 cent contractors, laborers and material men and not those 
 guilty of fraud.^* 
 
 A contractor must have performed his contract sub- 
 stantially according to its terms (unless excused by the 
 act or fault of the contractee) or he cannot maintain a 
 lien.'* 
 
 48 — North v. Globe Tenee Co., 52 — Wagar v. Briscoe, 38 Mich. 
 
 144 Mich. 557; Smalley v. Gearing, 587; Willard v. Magoon, 30 Mich. 
 
 121 Mich. 190; Battle Creek Lumber 273; Hall v. Erkfitz, 125 Mich. 332; 
 
 Co. V. Poland, 150 Mich. 690. Clark v. Raymond, 27 Mich. 456; 
 
 49 — Van Cleve Glass Co. v. Erratt, Knapp Electrical Works v. Mecosta 
 
 110 Mich. 689 ; Battle Creek Lumber Electric Co., 110 Mich. 547. 
 
 Co. V. Poland, 150 Mich. 690; J. E. 53— Frolich v. Klein, 160 Mich. 
 
 Greilick Co. v. Taylor, 143 Mich. 142. 
 
 704. 54— Boots v. Steinberg, 100 Mich. 
 
 50— J. W. Heedy Mfg. Co. v. Peck, 134; J. W. Reedy Mfg. Co. v. Peck, 
 
 149 Mich. 657. 149 Mich. 657; Frolich v. Klein, 160 
 
 51 — Smalley v. Ashland Brown Mich. 142. 
 Stone Co., 114 Mich. 104; Blitz v. 
 Fields, 115 Mich. 675. 
 
stage's MICHIGAN CHAiTCERY PEACTICE AND FOBMS 419 
 
 § 399. Payments made to the principal contractor af- 
 ter receiving the notice or before having received the 
 sworn statement of the contractor is no defence against 
 the lien of a subcontractor, laborer, or material man.^^ 
 
 The claim and right to claim a lien may be assigned be- 
 fore the claim of lien is filed.^® 
 
 § 400. When the contractor has no title to the land- the 
 lien may in some cases attach to the building if it can be 
 moved.''' 
 
 Mechanics Hens rest upon strict rights, not upon 
 equities.'* 
 
 §401. Where lands are held by husband and wife 
 jointly or are occupied as a homestead, no lien will attach 
 except on a contract in writing signed by both husband 
 and wife,"® but when the land occupied as a homestead 
 exceeds fifteen hundred dollars the excess over that 
 amount is subject to a lien without such contract."" 
 
 § 402. It is also provided that the owner, part owner 
 or lessee may retain from the contract price enough 
 money to pay the claim of any subcontractor, laborer or 
 material man who shall have served the above mentioned 
 notice, and that the original contractor, whenever any 
 payment falls due on the contract and whenever he de- 
 sires to draw any money thereon he shall make out and 
 give to the owner, part owner or lessee or his agent a 
 statement in writing and on oath of the number and names 
 of all subcontractors and laborers and of all material men 
 and the amount, if anything due or to become due to each, 
 and that the owner, part owner or lessee may retain 
 
 55 — ^J. E. Greilick Co. v. Bogers, 59 — C. L., 10711 ; Jossman v. Eice, 
 
 144 Mich. 313; Munroe v. Merritt, 121 Mich. 270; Eostriok Lumber Co. 
 
 113 Mich. 491. v. Wyrembolski, 164 Mich. 71; Bauer 
 
 56 — McAllister v. Des Eoehers, 32 v. Long, 147 Mich. 351; Frolieh v. 
 
 Mich. 381. Blackstock, 155 Mich. 604; Sheldon 
 
 57 — Jossman v. Eice, 121 Mich. Kamm & Co. v. Bremer, 166 Mich. 
 
 270; Holliday v. Mathewson, 146 578. 
 
 Mich. 336 ; C. L., Sec. 10712. 60— ^Lamont v. Le Fevre, 96 Mich. 
 
 58 — Shelden Kamm & Co. v. Bre- 175; McAllister v. Des Eoehers, 132 
 
 mer, 166 Mich. 578. Mich. 381. 
 
420 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 enough to pay and may pay such amounts which payment 
 shall be deemed payment to the contractor, and that such 
 statement may be required of the contractor at any time 
 during the progress of the work, and that any payments 
 made to the contractor before such statement is made 
 or without reserving enough to pay the amounts thereby 
 shown to be due or to become due shall be deemed illegal 
 as to the claimjs of such laborers, subcontractors and 
 material men and that the contractors shall have no right 
 of action nor lien for the amount owing to him on such 
 contract until such statement is made, failure to make 
 such statement within five days after demand subjects 
 the contractor to one hundred dollars penalty and all 
 damages.*^ 
 
 The making and serving of this statement is a neces- 
 sary pro-requisite to any action by the contractor who 
 cannot otherwise- maintain a lien and it matters not that 
 all demands have in fact been paid."^ 
 
 Even if the owner should waive such statement such 
 waiver would not affect a subsequent mortgagee of the 
 premises."^ 
 
 § 403. Every person who wishes to avail himself of 
 the provisions of this statute must within sixty days 
 after the last labor is performed or materials furnished, 
 file with the register of deeds of the county wherein the 
 land is situated, a true statement on oath of the demand 
 due to him over and above all set offs, stating the time 
 when and for whom such labor was performed or ma- 
 terials furnished, and the time when the last of such labor 
 was performed or materials furnished, together with a 
 description of the land on which a lien is claimed,®* and 
 every such person except the principal contractor must 
 also within ten days of such filing serve a copy of such 
 statement on the owner, part owner or lessee, and proof 
 
 61— C. L., Sec. 10713. 124 Mich. Ill; Martin v. Warren, 
 
 62— Sterner v. Haas, 108 Mieh. 109 Mich. 584. 
 488 ; Kerr Murray Mfg. Co. v. Kala- 63 — Dittmer v. Bath, 117 Mich, 
 
 mazoo Heat Power & Lighting Co., 571. 
 
 64— C. L., See. 10714. 
 
stage's MICHIGAN CHANCERY PEACTICE AND POEMS 421 
 
 of such service is directed to be filed in the office of such 
 register of deeds before any further proceedings shall be 
 taken for the enforcement of the lien."^^ 
 
 This claim of lien is an essential step towards obtain- 
 ing the benefit of the lien law. It is imperative and must 
 be strictly followed.®'^ 
 
 It must be filed within the sixty days after the last 
 labor was performed or the last materials that went into 
 the building were furnished, the date of furnishing ma- 
 terials to the contractor which were not actually used 
 cannot be considereS,''^ but an accidental erroneous state- 
 ment of the time in the claim will not defeat the lien when 
 the last item was in fact within the sixty days and no bad 
 faith exists.''^ 
 
 §404. The statement in the claim must be true. 
 Where it falsely claims an amount to be due grossly in 
 excess of the truth the bill will be dismissed."" But where 
 the excessive claim is made in good faith or by honest 
 mistake it does not invaKdate the lien.'^" 
 
 The true name of the owner of the property at the time 
 of the filing of the claim must be stated therein if known. 
 K unknown that fact should be stated. A misstatement 
 of the owner's name, unless caused by the owner as well 
 as a misstatement of the contractor's name invalidates 
 the lien.^^ 
 
 The claim must be on oath, but when made by a part- 
 
 es — 0. L., Sec. 10715. Mich. 704; Scheiber v. Cohnen, 108 
 
 66 — Sheridan v. Cameron, 65 Mich. Mich. 167; Lament y. Le Fevre, 96 
 
 680; Dittmer V.Bath, 117 Mich. 571; Mieh. 175; Gibbs v. Hanchette, 90 
 
 Battle Creek Lumber Co. v. Poland, Mich. 657. 
 
 150 Mich. 690; Wiltsie v. Harvey, 70— Vaughan v. Ford, 162 Mich. 
 
 114 Mieh. 131. 37; Frolich v. Ashton, 159 Mich. 
 
 67 — North v. Globe Fence Co., 144 265; Hulbert v. Just, 126 Mich. 337; 
 
 Mich. 557; Smalley v. Gearing, 121 McAffister v. Des Eochers, 132 Mich. 
 
 Mich. 190; Battle Creek Lumber Co. 381; Union Trust Co. v. Casserly, 
 
 V. Poland, 150 Mich. 690. 127 Mich. 183. 
 
 68— Union Trust Co. v. Casserly, 71— Waters v. Johnson, 134 Mich. 
 
 127 Mich. 236. 436; Lacy v. Piatt Power & Heat 
 
 69— Griff V. Clark, 155 Mich. 611; Co., 157 Mich. 544. 
 J. E. GreUick Co. v. Taylor, 143 
 
422 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 nership it may be signed and verified by one partner on 
 behalf of allJ^ 
 
 The lapse of a day between the verification and filing 
 does not invalidate it.'^^ 
 
 § 405. The notice of lien must be served in the manner 
 prescribed by the statute or the lien will be void, personal 
 service on agent of owner outside of the county is void. 
 If neither owner nor agent can be found in the county the 
 notice must be posted on the premises.''* Failure to file 
 proof of service with register of deeds before suit does 
 not invalidate the lien.''® The principal contractor need 
 not serve notice of lien.'"' 
 
 § 406. Every person claiming such lien must, when- 
 ever demanded, furnish to such owner part owner or 
 lessee a written statement of the labor and materials 
 furnished by him to the date of such statement and a 
 failure to do so for five days after demand forfeits the 
 lien,^'' and this is true even if the owner is not preju- 
 diced.''^ But when the demand is not made until after 
 the bill is filed such failure does not forfeit the lien.''^ 
 
 §407. Such liens continue for one year after filing 
 such claim and no longer unless proceedings are begun to 
 enforce the same. All liens for the same building are 
 deemed simultaneous mortgages and take priority to all 
 garnishments for the contract debt and to all other titles 
 or encumbrances given or recorded subsequent to the 
 commencement of the improvement, but subject to any 
 prior recorded title or encumbrance. Any person hold- 
 ing a lien for labor or materials subject to any prior en- 
 
 72 — Yeomans v. Parker, 105 Mich. 76 — Lament v. Le Fevre, 96 Mich. 
 
 323. 175. 
 
 73— Fairbarn v. Moody, 116 Mich. 77 — C. L., Seg. 10717. 
 
 61. 78— Prolieh v. Beecher, 139 Mich. 
 
 74 — ^Hannah Lay & Co. v. Mosser, 278. 
 
 105 Mich. 18 ; Wiltsie v. Harvey, 79— Eohije v. Weinberg, 156 Mich. 
 
 114 Mich. 131; J. B. Greiliek Gp. v. 318. 
 Rogers, 144 Mich. 313. 
 
 75— Smalley v. N. W. Terra Gotta 
 Co., 113 Mjch. 141. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOEMS 423 
 
 cumbranee may pay off such prior encumbrance and be 
 subrogated to the rights of the holder thereof.^" 
 
 A lien claimant, the original contractor who has agreed 
 with the owner as to the amount due to him but*Who has 
 not filed the statement as to subcontractors, laborers and 
 material men is not preferred to a subsequent mortgagee 
 although all such claims are in fact paid.*^ 
 
 § 408. Proceedings to enforce such lien are by bill in 
 chancery under oath. Notice lis pendens filed in the 
 register of deeds office has the effect to continue such 
 lien during the pendency of the suit. All persons having 
 rights in the property, and all holding like liens, and all 
 those who have filed notice of intention to claim a lien 
 must be made parties. And all persons holding like liens 
 or who have filed notice of intention to claim a lien or any 
 other persons having rights in such property may make 
 themselves parties thereto on motion to the court and 
 notice to the complainant and may file their intervening 
 or cross bills and notices lis pendens therein. Interven- 
 ing and cross bills must be on oath and all bills sworn 
 to shall be evidence of the matters therein charged unless 
 denied by answer under oath. Amendments may be made 
 to any bill or cross bill at any time before final order, and 
 if it shall appear that any party has had insufficient 
 notice of any such proceedings such further notice shall 
 be given as the court shall think just.^^ 
 
 The BiU. 
 
 § 409. The cause of action and jurisdiction of the 
 court being wholly statutory the bill must set forth every 
 essential fact showing the existence of the lien.^* 
 
 Thus it must set forth the contract whether written or 
 verbal if written a copy should be inserted, if verbal it 
 
 80— C. L., Sec. 10718; Kay v. 82— C. L., Sec. 10719. 
 
 Towsley, 113 Mich. 281; Mouat v. 83 — Wagar v. Briscoe, 38 Mich. 
 
 Fisher, 104 Mich. 262. 587; Willard v. Magoon, 30 Mich. 
 
 81— Adams v. Central City Granite 273 ; Clark v. Eaympnd, 27 Mich. 456. 
 Co., 154 Mich. 448. 
 
424 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 should be clearly and distinctly stated, if implied, the 
 circumstances creating it should be set forth. 
 
 The names of the contracting parties should be cor- 
 rectly stated. The title or interest of the person for 
 whom the work is done or materials furnished in the land 
 on which lien is claimed should be shown. 
 
 The fact that a notice of intention to claim a lien was 
 served on the owner, part owner or lessee by a s-ubcon- 
 tractor laborer or material man, if any such notice w^s 
 served, with the time and manner of service and also the 
 claim of lien filed in the office of the register of deeds with 
 the time and place of such filing and in case of any but 
 the original contractor the service of a copy thereof with 
 the time and manner of such service. 
 
 If the bill be filed by the original contractor it should 
 allege the performance of the contract in full according 
 to its terms and th-e time when it was so performed, the 
 making and delivery of the sworn statement as to sub- 
 contractors, laborers, and material men, that all such 
 claims have beep paid and the amount due and owing the 
 complainant, that payment has been demanded and that 
 the amount remains unpaid and every other fact neces- 
 sary to show that the contractor is entitled to immediate 
 payment. 
 
 It should also state the property on which the lien is 
 plaimed, the name of the owner at the time the claim of 
 lien was filed in the register of deeds office a§ well as the 
 names of all persons having any interest in the property 
 to be affected by such lien. 
 
 §410. The bill by a subcontractor should show the 
 original contract and his subcontract, with whom the 
 subcontract was made, the performance thereof with the 
 time when completed, the amount due to him and that 
 it is unpaid. 
 
 By a laborer should specify the work done, for whom 
 it was done and when, and the amount due and unpaid. 
 
 By a material man should state the materials fur- 
 nished, by whose order, the time when furnished, that 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 425 
 
 they were actually used in the building as well as the 
 amount due and unpaid. 
 
 Every bill should state the names of all persons inter- 
 ested in the property in any manner but need not set 
 forth at large the rights or interests claimed by each,^* 
 and should contain a prayer for a decree fixing the 
 amount due, that the same be paid, that the complainant 
 has a lien and that in default of payment that lien be 
 enforced by a sale as in other cases of foreclosure. 
 
 In a bill by a subcontractor, laborer or material man 
 the original contractor is a necessary party.®^ 
 
 A bill is fatally defective unless it shows that the de- 
 fendant is the owner or has some interest in the land.*^ 
 
 The receiver of the debtor is a necessary party but can- 
 not be made a party without leave of the court appoint- 
 ing him,®'' and the bill must show such leave or it will be 
 demurrable.®* 
 
 Objection for want of parties may be made by answer 
 or at the hearing.®^ 
 
 When the value for extra work (for which a lien was 
 claimed as well as for the contract price) was submitted 
 to arbitrators it was held that the bill could not be filed 
 imtil the arbitrators had made their reward.^" 
 
 The bill of a subcontractor, laborer or material man is 
 not defective if it fails to aver that the owner has paid 
 the principal contractor without exacting from him the 
 sworn statement as to subcontractors, laborers and ma- 
 
 84 — Siding Co. v. Machine & 616;. Prather Eng. Co. v. Detroit 
 
 Foundry Co., 98 Mich. 616; Chancery Flint & Sag. Ey., 152 Mich. 582. 
 
 Eule 28a. 88 — Siding Co. v. Machine & Foun- 
 
 85— Kema v. Flynn, 51 Mich. 5T3; dry Co., 98 Mich. 616; Burk v. Ma- 
 Godfrey Lumber Co. v. Kline, 160 chine & Foundry Co., 98 Mich. 614. 
 Mich, 565; Prather Eng. Co. y. De- 89— Kerns v. Flynn, 51 Mich. 573; 
 troit Hint & Sag. Ey., 152 Mich. Prather Eng. Co. v. Detroit Flint & 
 582. Sag. Ey. Co., 152 Mich. 582; God- 
 
 86 — Knapp Electric Works v. frey Lumber Co. v. Kline, 160 Mich. 
 
 Mecosta Electric Co., 110 Mich. 5.47. 565. 
 
 87— Burk v. Machine & Foundry 90— Boots v. Steinberg, 100 Mich. 
 
 Co., 98 Mich. 614; Siding Co. v. 134. 
 Machine & Foundry Co., 9g Mich. 
 
426 stage's MICHIGAN CHANCEKY PEACTICB AND FOKMS 
 
 terial men, or that he has not paid all that he contracted 
 to pay. These are matters of defense.®^ 
 
 The bill must be an oat}i, the objection that it is not 
 sworn to may be raised by demurrer. The verification 
 may be added by amendment.^^ 
 
 The bill may be amended by adding parties, even after 
 the expiration of the year from the time of filing claim 
 of lien, and the court has power to impose terms as a 
 condition for such amendments.®* 
 
 Where the ijame of the contractor is wrongly stated 
 in the claim of lien it cannot be corrected by the bill."* 
 
 The proceedings are commenced when the bill is filed 
 and the failure to file a notice lis pendens does not in- 
 validate the proceedings.®* 
 
 Answer. 
 
 § 411. Affirmative relief by way of recoupment should 
 be claimed by the owner In his answer.®^ If it is not so 
 claimed the court cannot make a decree for its payment 
 if the amount exceeds that equitably owing the con- 
 tractor.®'' 
 
 The answer of the owner should set up every matter 
 in defence of the claim. Under the statute it must be 
 on oath in order to destroy the effect of the bill as 
 evidence. 
 
 An answer by defendant claiming to have a lien on the 
 lands may assert such claim by claiming the benefit of a 
 cross bill in his answer setting forth his lien in the same 
 manner as if he had filed an original bill®^ and such 
 
 91 — Smalley v. Ashland Brown- 96 — Smalley v. Gearing, 121 Mich. 
 
 stone Co., 114 Mich. 104. 190. 
 
 92— Dashke v. Schellenberg, 137 97— J. W. Eeedy Mfg. Co. v. Peck, 
 
 Mich. 216. 149 Mich. 657. 
 
 93 — Casserly v. Circuit Judge, 124 98 — Smalley v. Ashland Brown- 
 
 Mleh. 157; Eugg v. Bassett, 101 stone Co., 114 Mich. 104; Smalley v. 
 
 Mich. 441. N. W. Terra Cbtta Co., 113 Mich. 
 
 94 — ^Lacy v. Piatt Power and Heat 141. 
 Co., 157 Mich. 544. 
 
 95 — Sheridan v. Cameron, 65 Mich. 
 680. 
 
stage's MICHIGAN CHANCEET PEACTICE AND FOBMS 427 
 
 answer may be amended after the expiration of the year 
 if it does not seek to introduce any new cause of action.'^ 
 
 An amendment to an answer was disallowed after de- 
 lay and after the principal contractor had been brought 
 in by amendment and had allowed the bill to be taken as 
 confessed.^"*® 
 
 Absent, concealed and non resident defendants may 
 be brought in by publication as in other cases.^ 
 
 §412. Every material question of fact may be sub- 
 mitted to a jury in the discretion of the court as in other 
 chancery cases ^ but the findings of the jury are merely 
 advisory and are not binding on the court.^ 
 
 Proof. Under a former statute it was held that the 
 failure to prove service of claim of lien and notice of 
 filing on defendant was fatal although the petition on 
 oath averred it,* but under the provisions of the present 
 statute the bill is evidence unless denied on oath. 
 
 § 413. The burden of proof is on complainant to show 
 the value of the labor and materials furnished.' 
 
 When the contract is oral the evidence of it must be 
 clear and must preponderate in favor of complainant.® 
 
 Material allegations in the bill not answered are 
 admitted.^ 
 
 The court shall examine all claims presented, and de- 
 termine the amount due each creditor who has a lien, and 
 every such claim that is owing absolutely and uncondi- 
 tionally, although not yet payable, shall be allowed with 
 a rebate of interest to the time when it would become 
 payable.* 
 
 Lienors are entitled to interest from the time of filing 
 
 99— SmaUey v. N. W. Terra Cotta 4^Eoberts v. Miller, 32 Mich. 289. 
 
 Co., 113 Mich. 141. 5— Doetsh v. Wetlaufer, 157 Mich. 
 
 100— Casseclj v. Circuit Judge, 124 202. 
 
 Mich. 157. 6— Clark v. Eaymond, 27 Mich. 
 
 1— C. L., Sec. 10737. 456. 
 
 2 — C. L., 10720. 7— J. E. Greilick Co. v. Rogers, 
 
 3— Willard v. Magoon, 30 Mich. 144 Mich. 313; Chancery Kule lOd. 
 
 273. 8— C. L., Sec. 10721. 
 
428 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 claim of lien, or if payment is not then due from the time 
 when it fell due.® 
 
 When by the fault of the owner, part owner or lessee, 
 the contractor shall, without his own fault, be prevented 
 from completing his part of the contract he shall be 
 allowed compensation for what he has done pro rata to 
 the contract price for the whole.'" 
 
 § 414. The court may by its decree order a sale of the 
 building or machinery separately, or of the land, build- 
 ings, structures, machinery and improvements together, 
 by a Circuit Court commissioner or receiver. Or may 
 order the property into the hands of a receiver to be 
 leased or rented until the liens are discharged, or make 
 such other order or disposition of the premises as justice 
 may require." 
 
 § 415. The decree should state the existence of the 
 contract and establishment of the lien.'^ The law does 
 not permit a sale of the building separate from the land 
 when a severance will damage either the building or the 
 land.^* A sale of equitable interests must be subject to 
 the rights of the legal owner.'* 
 
 If part of the premises can be separated from the resi- 
 due and sold without damage to the whole, and if the 
 value thereof shall be sufficient to satisfy all the claims 
 proved the court may order a sale of that part if it shall 
 appear to be most for the interest of all the parties 
 interested.'® 
 
 If the claims are all ascertained the court may at the 
 time of ordering the sale order the officer making the sale 
 to pay over and distribute the proceeds, after deducting 
 
 9 — ^Doetsh V. Wetlaufer, 157 Mich. 14 — Wagar v. Briscoe, 38 Mich. 
 
 202; Smalley y. Gearing, 121 Mich. 587. 
 190. 15— C. L., See. 10724; Peninsular 
 
 10— C. L., See. 10722. Electric Co. v. Norris, 100 Mich. 
 
 11— C. L., Sec. 10723. 496; Wagar v. Briscoe, 38 Mich. 
 
 12 — Willard v. Magoon, 30 Mich. 587. 
 473. 
 
 13 — Eaton v. Monroe, 63 Mich. 
 525. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 429 
 
 all lawful charges and expenses, to the several creditors 
 to the amount of their respective claims. Or if not suffi- 
 cient to pay in full then to pay them pro rata, provided 
 that subcontractors, material men and laborers of the 
 contractor shall be paid in full before any payment is 
 made to him, and that the material men and laborers 
 of each subcontractor shall be paid in full before any 
 payment to such subcontractor.^" 
 
 If the claims have not been ascertained when the sale 
 is ordered, or when for any reason it shall be deemed 
 proper to delay the order for distribution the court may 
 order the officer to bring the proceeds into court and if 
 for any cause the whole cannot be distributed at once the 
 court may make successive orders of distribution as cir- 
 cumstances may require.^'' Any surplus shall forthwith 
 be paid to the person entitled thereto.^* 
 
 In pro-rating the amount due on the contract price 
 among lien claimants payments made by the owner to the 
 contractor without having required the statement on oath 
 as to his subcontractors, material men and laborers re- 
 quired in Sec. 10713 are not to be credited to the owner,'* 
 And payments made upon such sworn statement must 
 have been distributed to the claimants to exonerate the 
 owner.^*' 
 
 §416. Where a contractor has made default and the 
 owner has been compelled to complete the building, in 
 determining the percentage to be allowed the owner can- 
 not include in the cost of the building unpaid bills for 
 labor or materials furnished to the contractor for which 
 no lien has been established.^^ 
 
 Sales are to be made in the same manner as mortgage 
 foreclosure sales unless otherwise directed by the court 
 
 16— C. L., See. 10725. 20— Frolich v. Carroll, 127 Mich. 
 
 17 — 0. L., Sec. 10726. 561; Hannah & Lay Mercantile Co. 
 
 18 — C. L., Sec. 10727. v. Hartzell, 125 Mich. 177 ; Falrbarn 
 
 19 — Godfrey Lumber Co. v. Cole, v. Moody, 116 Mich. 61. 
 151 Mich. 281; Delray Lumber Co. 21— Frolich v. Ashton, 164 Mich. 
 
 V. Keohane, 132 Mich. 17; Kotcher 132. 
 V. Perrin, 149 Mich. 690. 
 
430 stage's MICHIGAN CHANCEEY PKACTICE AND FORMS 
 
 and may be redeemed at any time within fifteen months 
 from the time of filing the bill.^^ 
 
 Lien creditors having equal rights between themselves 
 shall share the fund equally in proportion to their de- 
 mands if insufficient to pay in fuU.^^ 
 
 § 417. The costs in all cases shall be subject to the dis- 
 cretion of the court, to be paid out of the fund or by the 
 parties as justice shall require.^* The costs may include 
 a reasonable attorney fee as well as the actual disburse- 
 ments.^' 
 
 The complainant may have execution to enforce a 
 money decree in his favor without awaiting a sale.** 
 
 § 418. If any lien claimant shall die before the com- 
 mencement of proceedings to enforce it or during the 
 pendency of such proceedings, such proceedings may be 
 commenced or prosecuted by his executors or adminis- 
 trators.*'' 
 
 All liens or claims for liens are assignable and may be 
 maintained and prosecuted by the assignee in his own 
 name*" and may be assigned before the claim of lien 
 is filed.*^ 
 
 The lien will not be defeated or waived by the taking 
 by the lien claimant of any security for the debt other 
 than a mortgage upon the land itself in the absence of an 
 express agreement that the taking of such security is a 
 waiver of the lien.^'* 
 
 Parties entitled to liens whose claims are not due may 
 give notice of their intent to claim a lien, and may become 
 parties to- any suit to enforce a lien, or institute such suit 
 themselves and their claims shall be allowed subject to a 
 deduction of interest if not due at the time of the rendi- 
 
 22— C. h., Sec. 10728. 28— C. L., See. 10734. 
 
 23— C. L., Sec. 10729. 29— McAllister v. Des Bochers, 132 
 
 24— C. L., Sec. 10730. Mich. 381. 
 
 25— C. L., Sec. 10721; Wisniewski 30— C. L., Sec. 10734; Smalley v. 
 
 . Nawrocki, 153 Mich. 523. Gearing, 121 Mich. 190; Peninsular 
 
 26— Scott V. Keith, 152 Mich. 547. Electric Co. v. iSTorris, 100 Mieh. 
 
 27— C. L., Sec. 10733. 496. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 431 
 
 tion of decree but no process or proceedings shall be had 
 to enforce such claims until they mature.^^ 
 
 § 419. This act is declared to be remedial ^^ the court 
 holds that its provisions for the establishment of a lien 
 must be strictly followed but after the lien is established 
 it is to be liberally construed.^* 
 
 If the owner should waive proof of service of claim of 
 lien as required by statute, adverse lienors may never- 
 theless insist on it.** 
 
 A subcontractor is not bound by a stipulation in the 
 original contract not agreed to by himself, except as to 
 the amount of the contract price.^^ 
 
 BILLS OF FORECLOSURE, FULL FORM BY ASSIGNEE 
 
 OF MORTGAGE WITH INTEREST, INSURANCE 
 
 AND TAX CLAUSES. 
 
 State of Michigan. 
 
 In the Circuit Court for the County of : 
 
 In Chancery. 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 Complaining, your orator, A. B., of , in the county 
 
 of , and state of , respectfully shows unto the 
 
 court: 
 
 1. That on or about the day of , A. D. 
 
 19 . . , one C. D., then of , in the county of 
 
 and state of , became and was justly indebted to one 
 
 E. F., then of , in the county of and state of 
 
 , in the sum of dollars, and being so indebted 
 
 the said C. D., did then make and execute under his hand and 
 deliver to the said E. F., his certain promissory note in writing, 
 bearing date the same day and year last aforesaid, and therein 
 and thereby the said C. D., promised to pay to the said E. F. 
 or to his order {or to the bearer of said note, or as the case may 
 
 be) the said sum of dollars with interest as follows 
 
 (state the terms of payment of the note), as in and by the said 
 note now in the possession of your orator ready to be produced 
 
 31— C. L., Sec. 10735. Power & Heat Co., 157 Mich. 544. 
 
 32— G. L., Sec. 10736. 34 — Wiltsie v. Harvey, 114 Mich. 
 
 33— aark v. Eajmond, 27 Mich. 131. 
 456; Sheridan v. Cameron, 65 Mich. 35— Vaughan v. Ford, 162 Mich. 
 
 680; SmaUey v. N. W. Terra Gotta 37. 
 Co., 113 Mich. 141; Lacy v. Piatt 
 
432 stage's MICHIGAN CHANCERY PBACTICE AND FOKMS 
 
 and proved as this court may direct, and whereto when so pro- 
 duced and proved your orator for greater certainty prays leave 
 to refer, will fully and at large appear. 
 
 2. And that, in order to secure to the said E. P., his exe- 
 cutors, administrators and assigns, the payment of the said sum 
 of money above mentioned together with the interest thereon in 
 the manner aforesaid and the performance of the covenants here- 
 inafter mentioned, the said C. D. and G. D., his wife, on or 
 
 about the day of , A. D. 19 . . , did make and 
 
 execute under their hands and seals and deliver to the said E. 
 P. a certain indenture of mortgage, bearing date the same day 
 and year last aforesaid, and thereby for and in consideration of 
 
 the sum of lawful money of the United States to them 
 
 in hand paid, the receipt whereof was in and by said indenture 
 of mortgage duly confessed and acknowledged, the said C. D. 
 and G. D., the parties of the first part, in and to the said indent- 
 ure of mortgage, did grant, bargain, sell, remise, release, enfeoff, 
 confirm, warrant and mortgage unto the said E. P., the party 
 of the second part, in and to the said indenture of mortgage, 
 and to his executors, administrators and assigns forever, all that 
 certain piece and parcel of land situated and being in the 
 
 of , in the county of and state of 
 
 Michigan, and known and described as follows, to wit: (insert 
 description of land as descriied in the mortgage.) 
 
 3. And that it was in and by the said indenture of mortgage 
 expressly covenanted and agreed by and between the parties 
 thereto that the said parties of the first part thereto, their heirs, 
 executors and administrators, should keep the mortgage inter- 
 est of the said party of the second part, his executors, adminis- 
 trators and assigns, in the buildings erected and to be erected 
 upon the land therein conveyed, insured against loss and dam- 
 age by fire by insurers and in amount and manner approved by 
 the said party of the second part, and that in default thereof 
 it should be lawful for the said party of the second part, his 
 executors, administrators or assigns, to effect such insurance, and 
 that the premium or premiums paid for effecting the same should 
 be a lien upon the said mortgaged premises added to the amount 
 secured by the said mortgage and payable forthwith with in- 
 terest at the rate of per cpnt per annum. 
 
 4. And that it was in and by the said indenture of mort- 
 gage also expressly covenanted and agreed by and between the 
 parties thereto that the said parties of the first part, their heirs, 
 executors, administrators and assigns, should, so long as the said 
 principal and interest thereby secured, or any part thereof, 
 should remain unpaid, well and faithfully pay and discharge 
 within the time prescribed by law all such duties, taxes and 
 assessments, general and special, as should by any lawful au- 
 thority be imposed upon the said mortgaged premises, and that 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 43u 
 
 in default thereof it shoittld be lawful for the said party of the 
 second part, his executors, administrators or assigns, to pay 
 and discharge such duties, taxes and assessments, and that the 
 moneys thus paid should be a lien on the said mortgaged prem- 
 ises added to the amount secured by the said mortgage and 
 
 payable forthwith with interest at the rate of per cent 
 
 per annum. 
 
 5. And that it was in and by the said indenture of mort- 
 gage also expressly covenanted and agreed by and between the 
 parties thereto, that should any default be made in the pay- 
 ment of the said interest, or of any part thereof, or of any in^ 
 stalment of principal, or of any part thereof, or of the said 
 duties, taxes or assessments, or of any part thereof, or of such 
 insurance, or any part thereof, on any day whereon the same 
 was made payable as therein expressed, and should the same 
 
 remain unpaid and in arrear for the spaee of days, 
 
 then and from thenceforth, that is to say, after the lapse of the 
 
 said days, so much of the said principal sum as should 
 
 then remain unpaid with all arrearages of interest, duties, taxes, 
 assessments and insurance premiums should, at the option of the 
 said party of the second part, his executors, administrators or as- 
 signs, become and be immediately thereafter due and payable, 
 although the period above limited for the payment thereof might 
 not then have expired, anything thereinbefore or in the said 
 note contained to the contrary thereof notwithstanding. 
 
 6. And that it was in and by the said indenture of mort- 
 gage also expressly covenanted and agreed by and between the 
 parties thereto that the said parties of the first part, their heirs, 
 executors, administrators and assigns, would pay to the said 
 party of the second part, his executors, administrators and as- 
 signs, the said sum of money above mentioned, together with 
 the interest thereon, and would also pay interest on all overdue 
 interest or principal from the time of its maturity, at the rate 
 and according to the terms and conditions as in the said in- 
 denture of mortgage mentioned. 
 
 7. And that the said indenture of mortgage was upon the ex- 
 press condition that if the said parties of the first part thereto, 
 their heirs, executors, administrators or assigns, should and 
 did well and truly pay or cause to be paid to the said party of 
 the second part thereto, his executors, administrators or as- 
 signs, the said sum of money with the interest according to the 
 terms and conditions of the said promissory note, then the said 
 indenture of mortgage and the said note should cease and be- 
 come and be null and void, as in and by the said indenture of 
 mortgage now in the possession of your orator ready to be pro- 
 duced and proved as this court shall direct, and whereto refer- 
 ence is prayed, will fully and at large appear. 
 
 8. And that the due execution of the said indenture of mort- 
 
434 stage's MICHIGAN CHANCEKY PRACTICE AND FOBMS 
 
 gage was afterwards and on the day of , A. 
 
 D. 19. ., duly acknowledged by the said C. D. and G. D. before 
 I. K., a notary public, duly authorized to take such acknowledg- 
 ment, as in and by the certificate of the said notary public 
 annexed to the said indenture of mortgage and whereto refer- 
 ence is prayed, will fully and at large appear. 
 
 9. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , the said indenture of mortgage to- 
 gether with the certificate of acknowledgment thereof was duly 
 recorded in the office of the register of deeds for the said county 
 of , in the state of Michigan, in liber of mort- 
 gages, at page as in and by the said record now re- 
 maining in the said register's ofSce, and whereto your orator 
 prays leave to refer, will fully and at large appear. 
 
 10. And that afterwards and on or about the day 
 
 of , A. D. 19. ., the said E. P. did by an assignment in 
 
 writing under his hand and seal, bearing date the same day and 
 year last aforesaid, for a valuable consideration, the receipt 
 whereof was in the said assignment confessed and acknowledged, 
 sell, assign, transfer and set over unto your orator all and 
 singular the said note and indenture of mortgage together with 
 the indebtedness thereby secured, and afterwards and on or 
 
 about the day of A. D. 19. . , the said E. P. 
 
 duly acknowledged the execution of the said assignment before 
 S. T., then a notary public, duly authorized to take such acknowl- 
 edgment, as in and by the said assignment under the hand 
 and seal of the said E. P. and the certificate of the acknowledg- 
 ment thereof annexed to the said assignment and signed by the 
 said notary public now in the possession of your orator ready to 
 be produced and proved as this court shall direct, and whereto 
 reference is prayed, will fully and at large appear; and your 
 orator further shows that the said note and indenture of mort- 
 gage were delivered to your orator by the said B. P. with the 
 said assignment and that your orator is now the owner thereof 
 and of the indebtedness thereby secured. 
 
 11. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , the asid assignment of the said mort- 
 gage together with the certificate of the acknowledgment thereof 
 
 was duly recorded in the said register 's office, in liber 
 
 of mortgages, at page , as in and by the said last men- 
 tioned record now remaining in the sg,id register's office, and 
 whereto your orator prays leave to refer, will fully and at 
 large appear. 
 
 12. And your orator shows that default has been made in 
 the payment of the said interest and that the said interest, or a 
 large part thereof, is now long past overdue and unpaid and 
 that the same has been and remained overdue, unpaid and in 
 arrear for more than days, that is to say, for 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 435 
 
 days now last past, and still remains in arrear and unpaid, and 
 that your orator by reason thereof has elected and declared and 
 hereby does elect and declare, that the whole amount of prin- 
 cipal remaining unpaid with all arrearages of interest, taxes and 
 insurance premiums, have become and are due and payable im- 
 mediately. 
 
 13. And that default has been made in the keeping of the. 
 mortgage interest of your orator in the buildings erected on the 
 said land insured from loss or damage by fire, and that in or- 
 der to protect his said interest your orator has been compelled 
 to effect and has effected such insurance, and has been com- 
 pelled to pay and has paid, as premium or premiums for ef- 
 fecting the same, divers large sums of money, that is to say, 
 
 dollars on or about the day of , A. 
 
 D. 19 . . , and dollars on or about the day of 
 
 , A. D. 19. ., and that the said several sums have not, 
 
 nor has any part thereof, been repaid to your orator. 
 
 14. And that default has been made in the payment of 
 duties, taxes and assessments levied and assessed upon the said 
 land, and your orator, to protect his said mortgage interest 
 therein, has been compelled to pay and has paid from time to 
 time divers large sums of money for the same, that is to say, 
 
 dollars on or about the day of , 
 
 19 . . , for the taxes assessed thereon for the year 19 . . , and 
 
 dollars on or about the day of , 
 
 A. D. 19 . . , for a certain drain tax assessed thereon or on some 
 part thereof, before that day and that the said several sums 
 have not, nor has any part thereof, been repaid to your orator. 
 
 15. Ajid that there is now due and unpaid on the said prom- 
 issory note and indenture of mortgage for principal and interest 
 
 the sum of dollars and also a large sum, that is to 
 
 say dollars, for duties, taxes, assessments and insur- 
 ance which your orator has been compelled to pay as aforesaid, 
 together with the interest thereon, and your oratox has reason 
 to believe and does believe and charges the truth to be that he 
 will be obliged and compelled in order to protect his said inter- 
 est to pay out other large sums of money for taxes, assessments 
 and insurance premiums during the pendency of this suit. 
 
 16. And that no proceedings at law have been had or taken 
 to recover or collect the moneys or indebtedness, secured by the 
 said note and mortgage, or any part thereof, and that no part 
 thereof has been collected or paid. 
 
 17. And that your orator has caused examination to be made 
 of the records in the office of the register of deeds of the county 
 
 of , wherein the said mortgaged land and premises are 
 
 situated, and from such examination it appears, and your orator 
 charges the fact to be, that L. M., N. 0., and P. R. have or 
 claim to have rights and interests in the said lands and premises 
 
436 stage's MICHIGAN CHANCEllY PKACTICE AND FOEMS 
 
 or in some part thereof as subsequent purchasers or encum- 
 brancers or otherwise, and that one U. N. is in actual occupation 
 of the said lands, or of some part thereof, as tenant or other- 
 wise. 
 
 PRAYER. 
 
 I. Your orator therefore asks the aid of this court in the 
 premises that the said C. D., G. D., L. M., N. 0., P. R., and 
 U. N., the defendants hereto, may, if they can show why your 
 orator should not have the relief herein prayed, without oath, 
 all answer upon oath being hereby waived, full, true, direct and 
 perfect answer made to all and singular the matters herein be- 
 fore stated and charged, and that they may come to a fair and 
 just account touching the amount due to your orator on the 
 said note and indenture of mortgage. 
 
 II. And that they, or some of them, may be decreed forth- 
 with to pay to your orator the amount which shall be found to 
 be due to him on such accounting with the interest thereon and 
 your orator 's reasonable costs and charges in this suit sustained. 
 
 III. And in default of such payment that the said defend- 
 ants and each and all of them, and all persons claiming or to 
 claim from, through or under them, or any of them, may be 
 forever foreclosed and barred of and from all equity of redemp- 
 tion and claim of, in and to the said mortgaged land and prem- 
 ises, and each and every part and parcel thereof, with the 
 appurtenances. 
 
 IV. And that all and singular the said mortgaged land and 
 premises with the appurtenances may be sold at public auction 
 or vendue by the order and decree and under the direction of 
 this court, and that the moneys arising from such sale, so far 
 aa shall he necessary, or so far as the same shall extend, be 
 applied, after the payment of the expenses of such sale and the 
 costs of this suit, towards satisfying to your orator the full 
 amount of the moneys so as aforesaid found to be due to your 
 orator and secured by the said note and indenture of mortgage, 
 both principal and interest; the surplus, if any, to be paid to 
 such of the defendants as shall be found to be entitled thereto. 
 
 V. And that the said defendants and all persons claiming 
 and to claim by, through or under them, or either, or any of 
 them, or who may have come into possession of the said mort- 
 gaged land and premises, or any part or parel thereof, during 
 the pendency of this suit, yield and deliver up possession there- 
 of to whomsoever shall become the purchaser or purchasers 
 thereof at the said sale after the expiration of six months from 
 the time of such sale, on his, her or their producing to him, 
 her or them, or to the person or persons in possession of the 
 said mortgaged premises, or any part thereof, the deed or deeds 
 executed by the circuit court commissioner, or other person mak- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 437 
 
 ing such sale, pursuant to sueli sale as aforesaid, and a certified 
 copy of the order of this court confirming the report of such 
 sale after such order has become absolute ; unless the said lands 
 and premises shall have been in the meantime redeemed accord- 
 ing to law. 
 
 VT. And in case the proceeds of such sale shall not be suffi- 
 cient to pay and satisfy the whole amount due and owing to 
 your orator as aforesaid, together with your orator's reason- 
 able costs and expenses in this suit expended and the expenses 
 of such sale, that the said defendant, C. D., and such other of 
 the defendants as shall be found to have become personally 
 liable for the same, forthwith pay to your orator the amount 
 of such deficiency, and that in such ease your orator have the 
 writ of execution issued out of and under the seal of this court 
 for the collection thereof. 
 
 VII. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 VIII. May it please the court, the premises being considered, 
 to grant unto your orator the writ of subpoena of the people 
 of the state of Michigan, to be issued out of and under the seal 
 to this honorable court and directed to the said defendants, C. D., 
 L. M., N. 0., P. E., and U. N., therein and thereby com- 
 manding them and each of them, on a certain day and under 
 a certain penalty to be therein inserted, personally to be and 
 appear before this honorable court and answer the premises 
 and to stand to, abide and perform such order and decree there- 
 in as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B., 
 Complainant. 
 R. M. 
 
 Solicitor for Complainant and of Counsel. 
 
 Verification in case injunction is prayed. 
 
 (In case the mortgage is being foreclosed by the original 
 mortgagee, omit paragraphs 10 and 11 and change 'E P' to 'your 
 orator' in paragraphs 1 and 2. 
 
 If the principal is all due change paragraph 12 to read as 
 follows: "And your orator further shows default has been 
 made in the payment of the said principal sum and of the in- 
 terest thereon secured by the said indenture of mortgage and 
 that the said principal and interest is now long past due and re- 
 mains unpaid.") 
 
 (In case the party in possession intends to commit waste hy 
 cutting timber, and an injunction is prayed for, insert in the 
 stating part.) 
 
 18. And your orator further shows that the said mortgaged 
 
438 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 land and premises is a slender and scanty security for the pay- 
 ment of the said indebtedness now due to your orator on the 
 said note and indenture of mortgage, and that there is now 
 standing and growing upon the said land a large quantity of 
 
 timber and trees of great value, being of the value of 
 
 dollars as nearly as your orator can now estimate, and that 
 should the same be cut down and severed from the said land 
 the value of the land would be in that case greatly deteriorated 
 and depreciated and the security of your orator would be there- 
 by greatly diminished, and would be diminished to such an 
 extent that the same would thereby be rendered wholly insuffi- 
 cient to secure the payment of the said indebtedness. 
 
 19. And (your orator is informed and believes and charges 
 
 the truth to be) that the said , one of the defendants 
 
 to this bill, who is now in the actual possession of the said land, 
 or of that part thereof whereon the said timber and trees are 
 standing and growing, intends and threatens and is intending 
 to cut down and remove the said timber and trees, and your 
 orator has reason to believe and fear and does believe and fear 
 that, unless restrained by the order and injunction of this hon- 
 orable court, the said will carry his said threat and 
 
 intention into effect, and will cut down and remove the said 
 timber and trees, or some considerable part thereof; and your 
 orator avers that should he do so, the value of the said land will 
 be greatly depreciated and the security of your orator will be 
 thereby greatly deteriorated, diminished and impaired, and will 
 be so depreciated, diminished and impaired that it will be wholly 
 insufficient to secure the payment to your orator of the amount 
 so due and owing to him as aforesaid, and your orator would 
 thereby suffer irremediable injury. 
 
 (In the prayer of the hill in place of paragraph VII. insert:) 
 
 VII. And that the said defendant, , his attorneys, 
 
 solicitors, agents, workmen and servants, be restrained by the 
 order and injunction of this court from cutting down, felling 
 pr removing any timber or trees now standing and growing on 
 the said land, or any part thereof, and that they be so restrained 
 during the pendency of this suit, and until the further order 
 of this court. 
 
 (Then follows prayer for general relief to he numbered VIII 
 and prayer for subpoena to he numbered IX and then the fol- 
 lowing prayer for injunction to he numbered X.) 
 
 May it please the court to grant vmto your orator the writ 
 of injunction of the people of the state of Michigan to be issued 
 out of and under the seal of this honorable court and directed 
 to the said defendant, , and to his attorneys, counsel- 
 lors, solicitors^ agents, workmen and servants, therein and there- 
 by commanding him and them absolutely to refrain from cutting 
 down, felling or removing any timber or trees now standing 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 439 
 
 and growing on the said land, or any part thereof, during the 
 pendency of this suit and until the further order of the court. 
 (In case of waste by removing machinery, insert:) 
 
 18. And your orator further shows that the said mortgaged 
 land and premises is a slender and scanty security for the pay- 
 ment of the said indebtedness now due to your orator on the 
 said note and indenture of mortgage, and that there is now 
 standing erected and built upon the said land a certain (mill) 
 containing a large quantity of valuable machinery used therein 
 and affixed to the freehold, of great value, and that should the 
 said machinery be removed the value of the said land would be 
 greatly depreciated and diminished, and would be so depreci- 
 ated and diminished to the amount of dollars, as 
 
 nearly as your orator can now ascertain and estimate, and the 
 security of your orator would thereby be greatly impaired and 
 deteriorated so as to become wholly insufficient to secure the 
 payment of the said indebtedness. 
 
 19. And that the defendant, who is now in the 
 
 actual possession and occupation of the said (mill) on the said 
 land, is preparing and threatening and intending to detach the 
 said machinery, or some considerable part thereof, from the 
 freehold and remove the same from the said (mill) and from 
 the said land, and your orator has reason to fear and believe 
 and does fear and believe and charges the truth to be that, un- 
 less restrained by the order and injunction of this honorable 
 
 court, the said , will carry out and perform his said 
 
 threat and intention, and will detach and remove the said ma- 
 chinery as aforesaid, and should he do so your orator would 
 suffer irremediable injury, by reason thereof. 
 
 (In prayer for injunction insert:) ^ 
 
 And that the said defendant, , his attorneys, solic- 
 itors, agents, servants and workmen, may be restrained by the 
 order and injunction of this honorable court from detaching 
 the said machinery in the said (mill) from the freehold and 
 from removing the same, or any part thereof, from the said land 
 and premises and that they be so restrained in the meantime 
 during the pendency of this suit and until the further order 
 of the court. 
 
 (In prayer for process insert:) 
 
 May it please the court to grant unto your orator the writ 
 of injunction of the people of the state of Michigan, to be 
 issued out of, and under the seal of this honorable court and 
 
 directed to the said defendant, , and his attorneys, 
 
 solicitors, agents, workmen and servants, therein and thereby 
 commanding him and them absolutely to refrain from detaching 
 the said machinery, or any part thereof, from the freehold, 
 and from removing the same, or any part thereof, from the said 
 
440 stage's MICHIGAN CHANCEEY PBAOTICE AND FOBMS 
 
 land during the pendency of this suit and until the further 
 order of the court. 
 
 WHERE PART ONLY OP THE DEBT IS DUE. 
 
 (As in the last form, omitting the clause providing that the 
 whole amount should become due in case of non-payment of 
 interest, to and including the statement of the recording of the 
 mortgage, then proceed.) 
 
 And that there is now due and unpaid on the said 
 
 and indenture of mortgage the sum of dollars, being 
 
 a part of the principal sum thereby secured, which became and 
 
 fell due aeeof ding to the terms thereof on the day 
 
 of , A. D. 19 . . , and also the sum of dollars 
 
 interest, being the installment of interest which became and fell 
 due on the day of , A. D. 19 . . , and the in- 
 stallment of interest which became and fell due on the 
 
 day of , A. D. 19 . . , and the interest which has accrued 
 
 thereupon from the days when said several sums respectively 
 
 became due at the rate of per cent per annum ; and 
 
 that the balance and remainder of said principal sum will be- 
 come due as follows : (state the time or times when the balance 
 will fall due) with the interest thereon according to the terms 
 
 of the said and indenture of mortgage as hereinbefore 
 
 stated. 
 
 And that no suit or proceedings at law have been had or 
 taken, etc., (proceed as in general form to and including that 
 clause of the prayer that the defendants be foreclosed and barred 
 from all equity of redemption then proceed). 
 
 And that all and singular the said mortgaged land and prem- 
 ises, with the appurtenances, may be sold by the order and 
 decree and under the direction of this court, and the moneys 
 arising from the sale thereof, so far as shall be necessary, or 
 so far as the same shall extend, be applied towards satisfying 
 to your orator the full amount of the moneys so as aforesaid 
 
 secured in and by the said and indenture of mortgage 
 
 together with your orator's reasonable costs and charges if the 
 whole shall then be due and unpaid. Or, if the whole shall 
 not then be due, that such part of the said mortgaged premises 
 as may be necessary to satisfy the principal and interest moneys 
 then found to be due to your orator thereon and unpaid, to- 
 gether with your orator's reasonable costs and charges may be 
 sold as aforesaid and the proceeds to be applied thereto as 
 aforesaid. Or, in case it shall appear to the court that the said 
 mortgaged premises are so situated that the sale of the whole will 
 be most beneficial to the parties interested that then the whole 
 of the said mortgaged premises, with the appurtenances, may be 
 sold as aforesaid and the proceeds of such sale be applied as 
 well to the payment and discharge of the principal and interest 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FORMS 441 
 
 money then due and upon your orator's costs and charges, 
 as towards the whole or residue of amount secured by the said 
 
 said mortgage and not due and payable at the time of 
 
 such sale. Or, that the court may direct the balance of the 
 proceeds of such sale, after paj-ing the amount then due to your 
 
 orator upon the said and mortgage with your orator 's 
 
 costs and charges, to be put out at interest under the direction 
 of this court, for the "benefit of your orator to be paid to him 
 as the remainder of the principal and interest moneys shall 
 become due and payable, and the surplus, if any, for the benefit 
 of the defendants or such of them or such other persons as 
 may be entitled thereto. (Then proceed as in the general form 
 to the end.) 
 
 WHERE THE PROPERTY MAY BE SOLD IN PARCELS. 
 
 (As in the full form to the end of stating part then add:) 
 
 And that the said mortgaged lands and premises consist of 
 several distinct parcels, that is to say, (describe each parcel 
 separately) and that your orator is advised and believes that 
 the sale thereof in such separate parcels will be most advan- 
 tageous to all the parties interested therein. 
 
 (And insert in the prayer that the said land may ie sold as 
 follows:) And that the said land or so much thereof as shall 
 be necessary to satisfy the amount so found to be due and owing 
 to your orator together with the costs and expenses of this suit 
 and of such sale may be sold in parcels as aforesaid or in such 
 other parcels as to this court shall seem meet, etc., (proceed as in 
 general form). 
 
 [The direction to sell in parcels is usually decreed on the 
 showing made by the answers of subsequent purchasers or in- 
 cumbrancers of parts of the mortgaged property and is very 
 rarely prayed in the bill.] 
 
 SHORT FORM. (MONEY ALL DUE.) 
 State of Michigan. 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 Complaining, your orator, A. B., of , in the County 
 
 of , and state of , respectfully shows unto 
 
 the court: 
 
 1. That on or about the day of , A. D. 
 
 19. ., one C. D., was justly indebted to your orator in the sum 
 
 of dollars, and being so indebted the said C. D. then 
 
 made and delivered to your orator his certain * promissory 
 
 note in writing, bearing date the said day of , 
 
 A. D. 19 . . , and therein and thereby promised to pay to your 
 
442 stage's MICHIGAN CHANCESY PBACTICE AND FOBMS 
 
 orator the said sum of dollars, years from 
 
 the date thereof, with interest at per cent per annum, 
 
 payable annually, from the said date, as in and by the said 
 promissory note, signed by the said C. D., now in the possession 
 of your orator, and whereto reference is prayed, will when pro- 
 duced and prove, fully appear. 
 
 2. And that to secure the payment of the said sum of 
 
 dollars with the interest as aforesaid the said C. D. 
 
 and E. D., his wife, did on the said day of , 
 
 A. D. 19 . . , make and execute under their hands and seals and 
 duly acknowledge and deliver to your orator, a certain indenture 
 
 of mortgage, bearing date, the said day of , 
 
 A. D. 19 . . , and therein and thereby, in consideration of the 
 
 said sum of dollars, the receipt whereof was therein 
 
 acknowledged, did grant, convey and mortgage unto your 
 orator, his heirs and assigns forever, all that certain piece and 
 
 parcel of land, situated in the of in the said 
 
 county of and state of Michigan, described as fol- 
 lows, viz : (insert description of land as in the mortgage) ; which 
 said indenture of mortgage was upon the express condition that 
 if the said C. D. and B. D., the parties of the first part therein, 
 should pay or cause to be paid to your orator, the party of the 
 
 second part therein, the said sum of dollars, 
 
 years from the date thereof, with interest at per cent 
 
 per annum, payable annually from said date, according to the 
 provisions of the said note, then the said indenture of mortgage 
 and the said note should cease and become null and void, other- 
 wise to remain in full force and virtue * as in and by the said 
 indenture of mortgage now in the possesion of your orator and 
 whereto reference is prayed, will, when produced and proved, 
 fully appear. 
 
 3. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , the said indenture of mortgage with 
 
 the certificate of the acknowledgment thereof, was duly recorded 
 
 in the office of the register of deeds of the county of , 
 
 in liber of mortgages, at page , as by the said 
 
 record now remaining in said register's ofSce, will fully appear, 
 and whereto reference is prayed. 
 
 4. And that there is now due to your orator and unpaid on 
 
 the said note and indenture of mortgage the sum of 
 
 for principal and interest and that no proceedings at law have 
 been had for the recovery thereof or any part thereof. 
 
 ■5. That it appears from the records of the register of deeds 
 
 of the said county of , that G. H. and J. K. have, or 
 
 claim to have, rights or interests in the said land and premises 
 as subsequent purchasers or incumbrancers, or otherwise, and 
 that L. M. is now in the actual occupation of the said land and 
 premises as tenant of the said C. D. or otherwise, and has, or 
 
stage's michigak chancery practice and forms 443 
 
 claims to have, rights or interests therein as such tenant or other- 
 wise. 
 
 I. Your orator therefore asks the aid of this court in the 
 premises that the said C. D., B. D.., G. H., J. K., and L. M., 
 the defendants herein, may, if thej can show why your orator 
 should not have the relief herehy prayed, without oath, all an- 
 swer on oath being hereby waived, lull, true, direct and perfect 
 answer make to all and singular the matters herein stated and 
 charged, £md that they may come to a just and true account 
 with your orator touching the amount due to him upoii the 
 said note and indenture of mortgagee, and that they, or some 
 of them, may be decreed to pay the same together with the 
 interest thereon, and the costs and charges of this suit to your 
 orator forthwith. 
 
 II. And in default ther-eof that the said defendants and 
 all persons claiming under them, or any of them, may be fore- 
 closed and forever barred of and from all equity of redemption 
 and claim of, in and to the said mortgaged premises, and each 
 and every part and parcel thereof. 
 
 ni. And that the said mortgaged premises with the appur- 
 tenances may be sold under the direction of this court, and 
 that the money arising from such sale be applied towards satis- 
 fying the full amount of the money so as aforesaid due to your 
 orator and secured by the said note and mortgage and the costs 
 of this suit and the expenses of such sale; the surplus, if any, 
 to be paid to thp defendants or such of them as shall- be found 
 to be entitled thereto. 
 
 IV. And that the defendants and all persons claiming under 
 them, or any of them, or who shall have come into possesion 
 of the said mortgaged premises, or any part thereof., during the 
 pendency of this suit, yield up and deliver possession thereof 
 to the purchaser, or purchasers at such sale, at the expiration 
 of six months from the time of such sale, on production of the 
 deed or deeds executed by the cirpuit court commissioner, or 
 other person making such sale, and a- certified copy of the order, 
 confirming such sale, after- such order has become absolute; 
 unless said lands and premises shall be sooner redeemed pursu- 
 ant to law. 
 
 V. And, in case the proceeds of such sale shall be insuffi- 
 cient to satisfy the whole amount due to your orator on the said 
 note and indenture of mortgage and the costs of this suit and 
 the expenses of such sale, that the defendants, or such of them as 
 shall be decreed to he personally liable therefor, do forthwith 
 pay to your orator the amount of such deficiency, and that your 
 orator have execution for the collection thereof. 
 
 VI. And that your orator may have such further or such 
 
444 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever prav, etc. 
 
 A. B., 
 Complainant. 
 N. 0. 
 
 Solicitor for Complainant and of Counsel. 
 
 (If a bond ie given instead of a note, be careful to change the 
 word note to bond wherever it appears in the bill and in par- 
 agraph 1 proceed as follows:) 
 
 1. That on or about the day of , A. D. 
 
 19 . . , one C. D. was justly indebted to your orator in the sum 
 
 of dollars, and being so indebted the said C. D. then 
 
 made and delivered to your orator his certain bond and writing 
 
 obligatory in the penal sum of dollars, which was upon 
 
 the condition that if the said C. D. should well and truly pay 
 
 to your orator the said sum of dollars, years 
 
 from the date thereof v/ith interest thereon at the rate of 
 
 per cent per annum, payable annually, from the date 
 
 thereof, then the said bond and writing obligatory should cease 
 and become null and void, otherwise to remain in force as in and 
 by the said bond under the hand and seal of the said C. D., 
 now in the possession of your orator, ready to be produced and 
 proved, and whereto reference is prayed, will fully appear. 
 
 (It rarely happens that a mortgage is given without either 
 note or bond in which case the mortgage itself usually contains 
 a covenant to pay the debt. In foreclosing such a mortgage, in 
 place of paragraph 1, insert:) 
 
 1. That on or about the day of , A. D. 
 
 19. ., one, C. D., was justly indebted to your orator in the sum 
 
 of dollars, and being so indebted in order to secure 
 
 the payment thereof with interest as hereinafter stated the said 
 C, D.. and B. D.,, his wife, did (as in paragraph 2 as far as * and 
 then insert:) and the said C. D. did, in and by the said indent- 
 ure of mortgage, covenant and agree to pay the said sum of 
 
 dollars with the interest as aforesaid to your orator 
 
 in the manner and at the times aforesaid. (Omit all mention 
 of the note or bond in the hill.) 
 
 (In stating the amount due in paragraph 4, care should be 
 taken to state an amount sufficient to cover principal and in- 
 terest to accrue up to the time of hearing. It is not uncommon 
 to state it thus,) dollars principal with interest ac- 
 crued thereon from the ........ day of , A. D. 19 . . , 
 
 (naming the day up to which interest has been paid, and when 
 the bill is on oath, as where an injunction is prayed for, this i$ 
 the preferable method.) 
 
StACE*S MICHIGAN CHAKCEEY PEACTlCE AND FOBMS 445 
 
 BY EXECUTOR OR ADMINISTRATOR. 
 (Address.) 
 
 Complaining your orator, A. B., of , in the county 
 
 of and state of Michigan, executor of the last will and 
 
 testament {or, administrator of the estate) of C. D., late of 
 
 , in the county of and state of Michigan, 
 
 deceased, respectfully shows unto the court: 
 
 1. That heretofore and during the lifetime of the said C. D. 
 
 and on or about the day of , A. D. 19 . . , one 
 
 E. F.. being then indebted to the said C. D. in the sum of 
 
 • dollars, in order to secure the payment thereof with 
 
 interest thereon, did make and execute and deliver to the said 
 C. D. (recite the note or bond, and mortgage as in the preceding 
 general forms to and including the recording of the mortgage, 
 then proceed:) 
 
 And that afterwards, and while the moneys secured to be 
 paid by the said note (or bond) and indenture of mortgage re- 
 mained and were unpaid, and on or about the day 
 
 of , A. D. 19. ., the said C. D. departed this life, leav- 
 ing a last will and testament wherein your orator was named as 
 sole executor thereof and that afterwards and on or about the 
 
 day of , A. D. 19 . . , the said will was duly 
 
 admitted to probate by and in the Probate Court for the county 
 
 of that being the court then having jurisdiction in 
 
 that behalf and letters testamentary bearing date the same day 
 and year last aforesaid, were then duly issued thereon to your 
 orator by the said Probate Court, {or, departed this life in- 
 testate, and that afterwards and on or about the day 
 
 of , A. D. 19 . . , by an order of the Probate Court for 
 
 the county of , that being the court then having juris- 
 diction in that behalf, your orator was duly appointed adminis- 
 trator of the estate of the said C. D., deceased, and letters of 
 administration, bearing date the same day and year last afore- 
 said were then duly issued to your orator by the said Probate 
 Court) as in and by the records and flies of the said Probate 
 Court, now remaining therein, and by the said letters test- 
 amentary {or, letters of administration) now in the possession 
 of your orator ready to be produced and proved as this court 
 shall direct and whereto reference is prayed, will more fully 
 appear. 
 
 And that immediately upon the receipt of said letters testa- 
 mentary {or letters of administration) your orator entered 
 upon and assumed his duties as such executor {or, adminis- 
 trator) and ever since that time has been and still is acting as 
 such executor {or, administrator) and that the said note {or, 
 bond) and mortgage came into the hands and possession of 
 your orator as such executor {or, administrator) as a part of 
 the estate of the said C. D., deceased, and your orator now holds 
 
446 stage's MICHIGAN CHANCEKY PKACTICE AND FORMS 
 
 and owns the same and exhibits this bill for the purposes of 
 collecting the amount due and owing thereon as such executor 
 {or, administrator). 
 And that there is now due and unpaid on the said note (or, 
 
 bond) and mortgage the sum of dollars (Proceed as 
 
 in general form to the end, inserting after the word, orator 
 wherever it occurs, the words, as such executor, or, administrator, 
 as the case may be). 
 
 BY AN HEIR OF DISTRIBUTEE. 
 
 (As in first form to and including the statement of the record- 
 ing of the mortgage, then proceed:) 
 
 And that afterwards and on or about the day of 
 
 , A. D. 19 . . , the said (name of mortgagee) departed 
 
 this life, being at the time of his death the owner of said 
 
 and indenture of mortgage, and that he died intestate 
 
 and leaving your orator as his heir (or, one of his heirs) and 
 
 next of kin and that afterwards and on or about the 
 
 day of , A. D. 19. ., the administration of the estate 
 
 of the said (name of mortgagee) was, by the Probate Court for 
 
 the county of , that being the court having jurisdiction 
 
 in that behalf, duly granted to one R. S., of , as admin- 
 istrator thereof and that the said R. S. entered upon his duties 
 as such administrator and that afterwards and on or about 
 
 the day of , A. D. 19 . . , by a certain order of 
 
 distribution of the effects and assets of the said then 
 
 made by the said Probate Court the said and indenture 
 
 of mortgage and the indebtedness thereby secured, was ordered 
 and adjudged to be set off to your orator as such heir and next 
 of kin or, whereby, the said R. S. as such administrator was 
 ordered and directed to distribute the property and effects of 
 the said estate among the heirs and next of kin of the said 
 (name of mortgagee deceased); 
 
 (If the mortgage was specifically bequeathed, state instead 
 of the foregoing as follows:) 
 
 And that afterwards and on or about the day of 
 
 , A. D. 19. ., the said (name of mortgagee) then being 
 
 the owner of the said and indenture of mortgage, de- 
 parted this life, leaving a last will and testament wherein and 
 whereby he, the said (name of mortgagee) bequeathed the said 
 
 and mortgage and the indebtedness thereby secured 
 
 to your orator and that afterwards and on or about the 
 
 day of , A. D. 19 . . , the said last will and testament 
 
 was duly admitted to probate in the Probate Court for the 
 
 county of , that being the court having jurisdiction 
 
 in that behalf, and letters testamentary therein were then duly 
 
 granted to R. S., of , as executor (or, administrator 
 
 Tvith the will annexed) of the said will, and that afterwards 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 447 
 
 and on or about the day of , A. D. 19 . . , an 
 
 order was made by the said Probate Court that the said R. S. 
 as such executor {or, administrator with the will annexed) 
 should assign and transfer and set over the same to your orator 
 pursiiant to the terms of the said will, as in and by the records 
 and files of the said Probate Court in that behalf, whereto refer- 
 ence is prayed, will fully appear. 
 
 And that in pursuance thereof the said R. S. as such admin- 
 istrator {or executor or, administrator with the will annexed) 
 
 did afterwards and on or about the ........ day of , 
 
 A. D. 19 . . , deliver possession of the . said and in- 
 denture of mortgage to your orator and did also then make and 
 execute, acknowledge and deliver to your orator an instrument 
 in writing, bearing date the same day and year last aforesaid, 
 and therein and thereby did assign, transfer and set over unto 
 your orator, his legal representatives and assigns forever, all 
 
 and singular the said and indenture of mortgage and 
 
 the indebtedness thereby secured and all the right, title and 
 interest of the said (name of mortgagee) therein and thereto 
 which he had at the time of his death and your orator is now 
 the holder and owner thereof in his own right. 
 
 And that afterwards- and on the day' of , 
 
 A. D. 19.., the said last mentioned instrument was duly re- 
 corded in the office of the said register of deeds in liber 
 
 , of mortgages, at page , to which record your 
 
 orator prays leave to refer. 
 
 And that there is now due and owing to your orator upon 
 
 the said and indenture of mortgage the sum of 
 
 (Proceed as in general form to the end.) 
 
 AGAINST EXECUTOR AND HEIRS. 
 
 (As in first form or short form except before the paragraph 
 stating the amount due insert the following:) And that after 
 the execution and delivery of the said note and indenture of 
 
 mortgage and on or about the day of , A. D. 
 
 19. ., the said C. D. departed this life, leaving the said E. D., his 
 widow, and F. D., G. D. and H. D., his children and heirs at 
 law, (and that the said F. D. and G. D. are minors under the 
 age of twenty-one years) and that the said C. D. left a last will 
 and testament which was, after his decease and on or about the 
 
 day of , A. D. 19 . . , duly admitted to probate 
 
 in the Probate Court for the county of , and that let- 
 ters testamentary thereon were duly issued by the said Probate 
 Court to one X. Y., who was named as executor in the said will, 
 as in and by the records and files of the said Probate Court in 
 that behalf 'will fully appear, and whereto your orator prays 
 leave to refer. 
 
 And that the said X. Y. is now acting as such executor and 
 
448 stage's MICHIGAN CHANCEEY PKACTICE AND FORMS 
 
 as such has taken possession and control of the estate of the 
 said C. p., deceased. 
 
 (If the debt has been proved before commissioners on claims 
 insert:) And that your orator presented his said demand on 
 the said note and indenture of mortgage to commissioners, 
 appointed by the said Probate Court, to receive, examine and 
 adjust all claims and demands of all persons against the said 
 deceased, and that the same was duly allowed by the said com- 
 missioners at the sum of dollars, on the day 
 
 of , A. D. 19. ., as in and by the report of the said 
 
 commissioners now on file in the said Probate Court, and where- 
 to your orator prays leave to refer, will fully appear. 
 
 (In the prayer omit the name C. D. from the list of defend- 
 ants and include as defendants with all other necessary defend- 
 ants:) the said B. D., F. D., G. D., H. D., and X. Y., executor 
 of the last will and testament of the said C. D., deceased. 
 
 (If claim was allowed by commissioners on claims in the 
 clause of the prayer for relief insert:) And, in case the said 
 sale shall fail to procure a sufficient sum to satisfy the whole 
 amount due to your orator with the costs of this suit and the 
 expenses of such sale, that the defendant, X. Y., executor t)f the 
 last will and testament of the said C.'D., deceased, pay the 
 amount of such deficiency with interest to your orator from any 
 assets in his hands as such executor belonging to the said estate. 
 
 MAKING SEiSIIOR MORTGAGEE PARTY. 
 (As in first form or short form to the paragraph stating the 
 amounts due and then proceed as folloivs:) 
 
 6. And that there is now due to your orator and unpaid on 
 the said promissory note and indenture of mortgage the sum 
 
 of dollars and interest thereon, at the rate of 
 
 per cent per annum, from the day of A. D. 
 
 19.., and that no suit or proceedings at law has been had or 
 taken to recover the indebtedness secured by the said promis- 
 sory note and indenture of mortgage, or any part thereof. 
 
 7. And that it appears from the records of the said office 
 of the said register of deeds that one E. F. is the holder of a 
 certain other indenture of mortgage on the same land herein- 
 before mentioned, bearing date the day of 
 
 A. D. 19. ., made and executed by the said C. D. and M. D., 
 his wife, to secure to the said B. F. the payment of the sum of 
 
 dollars, in years from the date thereof, with 
 
 interest at the rate of per cent per annum, payable 
 
 annually, and that the said last mentioned indenture of mort- 
 gage is long since due by the terms thereof and appears by the 
 said record to be an undischarged lien on the said land prior 
 and superior to the lien of your orator aforesaid. 
 
 8. And that the said B. F. claims that there is now due to 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FOEMS 449 
 
 him and unpaid on the said indenture of mortgage, held by him 
 
 as aforesaid, the sum of dollars and upwards, but 
 
 your orator is informed and believes and charges the fact to be 
 
 that there is not to exceed dollars, if anything, due 
 
 and payable thereon, and your orator has applied to the said 
 E. F., and requested him to come to an account with your orator 
 touching the amount actually due and owing to him on his said 
 prior mortgage, but so to do the said E. P. has hitherto neg- 
 lected and refused and still doth neglect and refuse and your 
 orator has been and is unable to ascertain with any reasonable 
 certainty the amount, if anything, actually due to the said E. F. 
 thereon; your orator being willing and hereby conceding that 
 on a sale of the said mortgaged premises, the amount actually 
 due to the said E. F., on his said prior mortgage, should be 
 paid and satisfied in full before any of the proceeds of such 
 sale should be applied to the satisfaction of the indebtedness 
 {iforesaid to your orator. 
 
 9. And that your orator has caused examination to be made 
 of the records of deeds and mortgages in the ofiSce of the said 
 register of deeds and from such examination it appears, and 
 your orator expressly charges the fact to be that Q. H. and J. 
 K. have, or claim to have, rights and interests in the land and 
 premises described in the said indenture of mortgage belong- 
 ing to your orator or in some part or parts thereof as subsequent 
 purchasers or incumbrancers, or otherwise. 
 
 I. Your orator therefore asks the aid of this court in the 
 premises and that the above named C. D., M. D., E. F., G. H. 
 and J. K., the defendants herein, may, if they can show why 
 your orator should not have the relief hereby prayed, with- 
 out oath, all answer upon oath being hereby waived, full, true, 
 direct and perfect answer make to all and singular the matters 
 hereinbefore stated and charged. 
 
 II. And they may come to a fair and just account, touch- 
 ing the amount due- to your orator upon the said promissory 
 note and indenture of mortgage hereinbefore first mentioned, 
 and that they, or some one or more of them, may be decreed 
 to pay to your orator forthwith, or at a short day to be fixed 
 by the court, the amount which shall be found to be due to 
 him thereon and the interest thereon, together with your orator's 
 reasonable costs and charges in this suit expended. 
 
 III. And that the said defendants also come to a just and 
 fair account with your orator touching the amount due and 
 owing to the said defefldant, E. F., on his said prior indenture 
 of mortgage. 
 
 IV. And that in default of payment to your orator of the 
 amount found to be due to him on such an accounting, that 
 the said defendants, 0. D., M. D., G. H., and J. K., and each 
 of them and all persons claiming or to claim from or under 
 
450 stage's MICHIGAN CHANCEKY PEACTICE AND FOEMS 
 
 them, or any of them may be foreclosed and barred of and from 
 all equity of redemption and claim of, in and to the said mort- 
 gaged land and premises, and each and every part thereof, with 
 the appurtenances. 
 
 V. And that all and singular the said mortgaged land and 
 premises with the appurtenances may be sold by the order and 
 decree, and under the direction of this honorable court, and 
 that the moneys arising from such sale be applied, after pay- 
 ment therefrom of the costs and expenses of such sale and the 
 costs of this suit and the amount found to be due to the said 
 E. F. on his said prior indenture of mortgage, so far as it shall 
 be necessary, or so far as the same shall extend, towards satisfy- 
 ing your orator the full amount of the moneys so as aforesaid 
 secured to be paid by the said, promissory note and indenture 
 of mortgage and found to be due to your orator thereon upon 
 such accounting. 
 
 VI. And that the said defendants and all persons claim- 
 ing and to claim under them or any of them, or who have come 
 into possession of the said mortgaged land and premises, or any 
 part thereof during the pendency of this suit, deliver and yield 
 up possession thereof to whomsoever shall become the purchaser 
 or purchasers thereof at the said sale, on his, her, or their pro- 
 ducing to him or them, the deed or deeds executed by the com- 
 missioner, or other person making such sale pursuant thereto 
 as aforesaid, and a certified copy of the order confirming the 
 report of such sale, after such sale has become absolute, and 
 after the expiration of six months from the time of making 
 such sale, unless the said land be sooner redeemed pursuant 
 to the statute in such case made and provided. 
 
 VII. And that the said defendants, C. D., M. D., G. H., and 
 J. K., or such of them as shall be found to be equitably per- 
 sonally liable so to do, pay to your orator any balance that may 
 remain due to your orator, of the said principal and interest 
 due on his said promissory note and indenture of mortgage, 
 if the sale of the said mortgaged land and premises as afore- 
 said fail to produce a sufficient sum to pay the whole of the said 
 indebtedness, and the costs of this suit, and expenses of such, 
 sale, and the amount if anything be found to be due to the said 
 defendant, E. F., on his said prior indenture of mortgage, and 
 that in such case your orator have execution for the collection 
 of such deficiency, according to the rules and practice of this 
 court. 
 
 VIII. And that such decree be for the foreclosure of the 
 said indenture of mortgage, held by the said defendant, E. P., 
 as well as a foreclosure of the said indenture of mortgage, held 
 by your orator, and that both, and each of them, be merged in 
 the said sale and in the deed or deeds executed thereon to the 
 purchaser or purchasers thereat. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 451 
 
 IX. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B. 
 N. 0. 
 
 Solicitor and of Counsel for Complainant. 
 
 DEED INTENDED AS A MORTGAGE. 
 (Address and introduction.) 
 
 1. (First paragraph of stating part as in First Form.) 
 
 2. And that in order to secure the payment to your orator 
 
 of the said sum of dollars with the interest thereon, 
 
 according to the terms of the said promissory note, the said 
 
 C. D. and D. D., his wife, on or about the day of 
 
 , A. D. 19 . . , did make and execute under their hands 
 
 and seals and duly acknowledge and deliver to your orator a 
 certain deed of conveyance, bearing date the same day and year 
 last aforesaid, and therein and thereby did, for and in con- 
 sideration of the sum of dollars as therein expressed, 
 
 the receipt whereof was therein acknowledged, the said C. D. 
 and D. D., his wife, did grant, bargain, sell and convey to your 
 orator, his heirs and assigns forever, all that certain piece or 
 parcel of land situated (here describe the land), with the here- 
 ditaments and appurtenances thereunto belonging, as in and by 
 the said deed of conveyance now in the possession of your orator 
 ready to be produced and proved, as this court shall direct, 
 whereto reference is prayed, will fully and at large appear. 
 
 3. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , the said deed was duly recorded in 
 
 the office of the register of deeds of the said county of 
 
 in liber of deeds at page , to which record now 
 
 remaining in the said register 's office your orator prays leave to 
 refer. 
 
 4. And that the said deed of conveyance, although appearing 
 to be absolute on its face, was not intended so to be by your 
 orator nor by the said C. D. and D. D., his wife, but it was 
 expressly understood and agreed by and between them, that the 
 said deed was to be held by your orator merely as a security for 
 the payment of the said sum of money with the interest thereon 
 according to the terms of the said promissory note, and that 
 upon payment thereof your orator would reeonvey the said 
 land and premises to the said C. D. 
 
 5. And that the said C. D. from the time of the execution 
 and delivery of the said deed has retained and continued in the 
 possession of the said land and premises and in the receipt of the 
 rents, issues and pfofits thereof, and that he still continues to 
 retain the same. 
 
452 stage's MICHIGAN csanceey peactice and poems 
 
 6. And that the said C. D. has not as yet paid the said sum 
 of money mentioned in the said promissory note nor any part 
 thereof, nor the interest thereon nor any part thereof, although 
 the same has long , since become and been over due, and that 
 there is now- due to your orator thereon and unpaid the sum of 
 dollars and upwards. 
 
 7. And that no suit or proceeding at law has been had or 
 taken for the recovery or collection thereof, or any part thereof. 
 
 8. And that one E. F. and one G. H. have, or claim to have, 
 some interest in the said lands and premises as subsequent pur- 
 chasers or incumbrancers, or otherwise. 
 
 I. Your orator therefore asks the aid of this court that the 
 said C. D., D. D., B. P., and G. H., the defendants hereto, may, 
 if they can show why your orator should not have the relief 
 hereby prayed, without oath, all answer on oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the premises. 
 
 II. And that the said defendants may come to a just and 
 true account with your orator as to the moneys due and owing 
 to him on the said promissory note, and that the defendants, or 
 some of them, may be decreed to pay to your orator the amount 
 found to be due to him on such accounting together with the 
 costs of this suit forthwith, or at a short day to be fixed by this 
 court and named in said decree, your orator being ready and 
 willing and hereby offering in ease of such payment to reconvey 
 the said land and premises to the said C. D. 
 
 III. And (etc., state the rest of the prayer and conclusion 
 as in bill to foreclose mortgage). 
 
 VENDOR'S LIEN. 
 
 (Address and introduction as in first form.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19. ., your orator was the owner in his own 
 
 right in fee simple of all that certain piece or parcel of land 
 
 situate in the of , in the said county of 
 
 , and state of Michigan, described as follows : (insert 
 
 description as in deed to vendee), of the value of , and 
 
 being such owner, your orator was willing to sell the same ; and 
 one C. D. was then desirous of purchasing the same ; and there- 
 upon it wa« then bargained and agreed by and between your 
 orator and the said C. D. that your orator should sell and con- 
 vey the said land with the appurtenances to the said C. D. for 
 the purchase price of dollars, whereof dol- 
 lars should be paid to your orator at the time of such convey- 
 ance, and the balance and remainder as follows: (insert terms 
 of payment fully), and that the said C. D. should purchase the 
 same accordingly and should pay the said purchase price (with 
 the interest) in manner aforesaid; and thereupon your orator 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOKMS 453 
 
 did then, with N. B., his wife, make and execute under their 
 hands and seals and duly acknowledge and deliver to the said 
 C. D. a good and sufficient deed of conveyance of the said land, 
 
 bearing date the said day of , A. D. 19. ., 
 
 and therein and thereby did convey to the said C. D., his heirs 
 and assigns forever, all and singular the said land together with 
 the hereditaments and appurtenances thereto belonging and ap- 
 
 pertaining, and the said C. D. then paid to your orator 
 
 dollars, parcel of the purchase price aforesaid, and then under- 
 took and faithfully promised your orator to pay him the bal- 
 ance and remainder of the said purchase money, viz : 
 
 dollars, (with iaterest thereon) as follows, viz: (insert the 
 agreed terms of payment with rate of interest, if any; and if 
 a note was given for the amount insert) and the said C. D. then 
 made and delivered to your orator his certain promissory note 
 in writing for the said balance of the said purchase money, 
 bearing date the same day and year aforesaid, and therein and 
 
 thereby promised to pay to your orator the said sum of 
 
 dollars (state terms of note including terms of payment of inter- 
 est, if any, and proceed:) as in and by the said note now in the 
 possession of your orator ready to be produced and proved as 
 this court shall direct, and whereto reference is prayed, will 
 fully and at large appear. 
 
 2. And that afterwards and on or about the day 
 
 of , A. D. 19. ., the said C. D. caused the said deed of 
 
 conveyance to be recorded in the office of the register of deeds 
 
 for the said county of , in liber of deeds, at 
 
 page ^ . . , as by the said record now remaining in the said 
 
 register's office, whereto your orator prays leave to refer, will 
 fidly and at large appear. 
 
 3. And that after the execution and delivery of the said 
 
 deed and on or about the day of , A. D. 
 
 19 . . , the said C. D. entered into the actual possession of the said 
 land and ever since that time has been and still is in such pos- 
 session, and has enjoyed and still continues to enjoy the rents, 
 issues and profits thereof, and still is the owner of the said land by 
 virtue of the said deed from your orator (and his wife). 
 
 4. And that the said C. D. has not, although often requested 
 
 so to do, as yet paid to your orator the said sum of 
 
 dollars, Ijeing the balance of the said purchase money, nor the 
 interest thereon, nor any part thereof; (or in case a promissory 
 note was given), being the principal sum named in the said 
 promissory note, nor the interest thereon, and that there is now 
 
 due to your orator thereon and unpaid, the sum of 
 
 dollars, and that no suit or proceeding at law has been had or 
 taken to recover or collect the same or any part thereof, and 
 that your orator has never received from the said C. D., or from 
 
454 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 any other person, any other security for the amount so due to 
 him as aforesaid. 
 
 5. That your orator is advised and believes and charges the 
 fact to be that in equity and good conscience he has a just and 
 equitable lien upon the said a;bove described land and premises 
 for the payment of the said balance of the said purchase money 
 thereof. 
 
 I. Your orator therefore prays the aid of this court that the 
 said CD., the defendant hereto, may, if he can show why your 
 orator should not have the relief hereby prayed, without oath, 
 all answer upon oath being hereby waived, full, true, direct and 
 perfect answer make to all and singular the matters hereinbefore 
 stated and charged, and that he may come to a just and true 
 account with your orator as to the amount due to your orator 
 for the balance of s.uch purchase money as aforesaid. 
 
 II. And that the amount found to be due to your orator 
 upon such accounting may be decreed to be a lien upon the 
 land and premises aforesaid in favor of your orator. 
 
 III. And that the said defendant, C. D., be decred to pay 
 to your orator the amount so found to be due to him, with in- 
 terest and the costs of this suit, by a short day to be fixed by 
 this court, and named in such decree. 
 
 IV. And that in default of such payment the said land and 
 premises with the appurtenances may be sold by and under the 
 direction of this court, and the proceeds of such sale be applied 
 to satisfy the amount so found to be due to your orator, with 
 interest and the costs of this suit, and the expenses of such 
 sale. 
 
 V. And that, in case of such sale, the said defendant and 
 all persons claiming by, through or under him, or who have 
 come into possession of the said premises since the commence- 
 ment of this suit, may be forever barred and foreclosed of and 
 from all right or equity of redemption of the said above de- 
 scribed land and premises, and that they, each, and all of them, 
 after the expiration of six months from the time of such sale, 
 deliver and yield up possession thereof to the purchaser or 
 purchasers thereof at such sale on production of the deed or 
 deeds executed by the circuit court commissioner, or other 
 person making such sale, and a certified copy of the order of 
 this court, confirming the report of such sale after such order 
 has become absolute; unless the said lands and premises shall 
 have been in the meantime redeemed according to law. 
 
 VI. And in case the sale of the said land and premises shall 
 fail to produce a sufficient sum to pay the whole amount so 
 found to be due to your orator as aforesaid, together with in- 
 terest and the costs of this suit and the expenses of such sale, 
 that the defendant, C. D,, pay to your orator the amount of 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 455 
 
 such deficiency, that your orator have execution for the collec- 
 tion therof . 
 
 VII. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B 
 0. P. 
 
 Solicitor for Complainant and of Counsel. 
 
 BIECHANIC'S LIEN BY CONTRACTOR. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D., 19. ., ode C. D. was the owner in his own right in fee 
 simple (or pari owner or lessee as the case may he, stating clearly 
 the interest of the defendant in the land) and being such owner 
 (or part owner, etc.) the said C. D. then made and entered into 
 a certain contract and agreement (if in writing say, in writ- 
 ing bearing date the same day and year last aforesaid) with 
 your orator wherein and whereby it was agreed by and between 
 your orator and the said CD. that for and in consideration of 
 
 the sum of dollars to be paid by the said C. D. to your 
 
 orator as hereinafter expressed, your orator should and would 
 build and erect on the said land a certain (dwelling house) in 
 manner following : (state terms of contract fully, including ter*nis 
 and manner of payment, and time limited for the completion, 
 and if in writing, say) a copy whereof is hereto annexed, 
 marked "Exhibit A," as and for a part of this bill of com- 
 plaint, and whereto your orator prays leave to refer. 
 
 2. That your orator forthwith thereafter commenced to per- 
 form his part of the said contract and agreement, and has built 
 and erected the said (dwelling house) in accordance with the 
 terms thereof, and has fully performed and completed all things 
 in the said agreement and contract contained for him to be 
 done and performed, within the time limited therein for the 
 
 performance thereof, and completed the same on the 
 
 day of , A. D. 19... 
 
 3. And that after your orator had completed his part of the 
 said contract and had fully and completely built and erected 
 
 the said (dwelling house) and on the day of , 
 
 A. D. 19. ., your orator made and gave to the said C. D. a state- 
 meM under oath of the number and names of every subcon- 
 tractor and laborer in his employ and of every person furnish- 
 ing materials for and in and about the performance of the 
 said contract and agreement, and showing thereby on oath that 
 there is nothing due or to become due to any such subcontractor 
 or laborer, or to any person who had furnished materials, and 
 that they each and aU of them, had been and were fully paid. 
 
456 stack's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 4. And that within sixty days after your orator had com- 
 pleted the building and erection of the said (dwelling house) 
 and had fully and completely performed his part of the said 
 
 contract and agreement and on the day of , 
 
 A. D. 19 . . , your orator made and filed in the office of the 
 
 register of deeds of the said county of , a just and 
 
 true statement and account of the amount due to him, over and 
 above all legal set-offs, setting forth the time when the said 
 contract was completed and the time when the labor was per- 
 formed and the materials furnished for the same, and for whom 
 such work and labor was done and materials were furnished, 
 duly verified by the affidavit of your orator, of which said 
 statement and affidavit the following is a copy, viz : (insert copy, 
 of statement and affidavit.) 
 
 5. And that the said C. D. has failed to pay to your orator 
 the sums of money and . compensation mentioned in the said 
 contract and agreement according to the terms thereof, and 
 that there is now due and owing to your orator thereon the 
 
 sum of , over and above all legal set-offs, and your 
 
 orator is entitled to, and has a lien on, the said land for the 
 same pursuant to the statute in such case made and provided. 
 
 6. And that your orator is informed and believes and 
 charges the truth to be that I. K., L. M., and N. 0., have, or 
 claim to have, s<5me rights or interests in the said land, but your 
 orator avers that such rights and interests are subject to the 
 aforesaid lien of your orator. 
 
 I. Your orator therefore prays the aid of this honorable 
 court that the said C. D., I. K., L. M., and N. 0., the defend- 
 ants hereto, may, etc. (Insert as in case of Vendor's Lien to 
 conclusion.) 
 
 (Add verification.) 
 
 MECHANIC'S LIEN BY SUB-CONTRACTOR. 
 
 [Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D. 19.., one C. D. was the owner in fee simple (or part 
 owner or lessee, etc., stating his interest in the land as the case 
 may be) of that certain piece or parcel of land situated, etc., 
 (describe the land correctly) and being such owner (or part 
 owner, etc.) and in possession thereof, the said C. D. did then 
 make a certain contract and agreement with one E. F. wherein 
 and whereby it was agreed that the said E. P. should build 
 and construct for the said C. D. on the said land a certain 
 (describe the building and the material of which it was to be 
 constructed as fully as possible and state the terms of the conr 
 tract including consideration and terms of payment as fully as 
 known). 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 457 
 
 2. And that thereafter and on or about the day 
 
 of , A. D. 19. ., the said B. F. entered upon and com- 
 menced the building and construction of the said 
 
 upon the said land pursuant to his said contract and agree- 
 ment, and in that behalf the said E. F. did afterwards, and 
 
 on or about the day of , A, D. 19. .,* make 
 
 a sub-contract and agreement with your orator wherein and 
 whereby it was agreed that your orator should do and per- 
 form the (carpenter or mason or as it may be) work in and 
 
 about the building and construction of the said , for 
 
 the consideration and compensation of (state terms of sub-con- 
 tract and amount and terms of payment fully; and if in writing 
 state, as in and by the said sub-contract and agreement in writ- 
 ing, bearing date the day of , A. D. 19. ., 
 
 signed by the said E. F. and by your orator, and whereto refer- 
 ence is prayed, will when produced and proved fuUy appear). 
 
 3. And that in pursuance thereof, your orator afterwards 
 
 and on the day of , A. D. 19. ., commenced 
 
 the performance and did and performed the first of such work 
 and labor in and about the building and construction of the 
 
 said and continued such performance until the 
 
 day of , A. D. 19 . . , when the same was fully 
 
 completed, according to the terms of the said sub-contract and 
 agreement, and your orator performed the last of the said work 
 and labor thereon on the day of , A. D. 19 . . . 
 
 4. And that within thirty days after performing the first 
 
 of the said work and labor, viz., on the day of 
 
 A. D. 19. ., your orator served upon the said C. D. personally 
 {or, upon G. H. the agent of the said C. D. having charge of 
 the said land, the said C. D. being absent from the said county) 
 a notice as follows : (insert copy of notice.) 
 
 5. And that afterwards and within sixty days after the 
 performance of the last of the said work and labor, viz., on 
 
 the day of , A. D. 19 . . , your orator made 
 
 and filed with the register of deeds of the said county of 
 , a just and true statement and account of the de- 
 mand due to him, over and above all legal set-offs, setting forth 
 therein the time when the said work and labor was done and 
 performed, and for whom, and containing a correct description 
 of the property to be charged with the lien, and the name of 
 the owner (or part owner or lessee, etc.), which statement was 
 duly verified by afSdavit and is as follows, viz., (insert copy of 
 statement and affidavit), as in and by such statement and ac- 
 count and affidavit remaining on file in said register's office, and 
 whereto reference is prayed, and wiU fully appear. 
 
 6. And that within ten days after filing the said statement 
 
 and account as aforesaid and on the day of , 
 
 A. D. 19. ., your orator served upon the said C. D. (or, upon 
 
458 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 G. H., agent of the said C. D., having in charge the said prem- 
 ises, the said C. D. being then absent from said county) a copy 
 of the said statement and claim, and afterwards and on the 
 
 day of , A. D. 19 . . , your orator filed in the 
 
 office of the register of deeds for said county of proof 
 
 of such service by affidavit as follows, viz., (insert copy of affi- 
 davit), as in and by said affidavit now remaining on file in said 
 register's office, and whereto reference is prayed, will fully 
 appear. 
 
 (If neither owner nor agent could ie found, substitute:) 
 
 6. And that during the ten days after filing the said state- 
 ment and account as aforesaid your orator made diligent search 
 and enquiry for the said C. D. within the said county of 
 
 , and that the said 0. D. could not be found in the said 
 
 county, and that your orator also during the said ten days 
 made diligent search and enquiry for an agent of the said C. D. 
 having charge of the said premises within said county, and 
 that no such agent of the said C. D. could be found in the said 
 county; and thereupon your orator, within five days after the 
 
 lapse of the said ten days and on the day of , 
 
 A. D. 19. ., served such copy by posting the same in a con- 
 spicuous place, viz., (state whereabouts) on the said premises, 
 
 and afterwards and on the day of A. D. 
 
 19 . . , proof of such service and of the date and manner thereof 
 was made by the affidavit of the person so posting the same aS 
 following, viz., (insert copy of affidavit); and the same was 
 
 afterwards on the day of , A. D. 19 .' . , duly 
 
 filed in the office of the said register of deeds, as in and by the 
 said affidavit still remaining on file in the said register's office, 
 and whereto reference is prayed, will fully appear. 
 
 7. And your orator is informed and believes and charges 
 the fact to be that the said E. P. has never at any time made 
 out or given to the said C. D., or to any agent of the said C. D., 
 any statement under oath of the number or names of every or 
 any sub-contractor or laborer in his employ in or about the 
 
 building and construction of the said , or of every 
 
 or any person furnishing materials for the same, giving the 
 amount due or to become due to them, or any of them, for work 
 done or material furnished; and that the said C. D. has never 
 demanded any such statement of or from the said E. P. 
 
 8. And that the said E. P. has failed to pay to your orator 
 the amount due to him for such work and labor according to 
 the terms of the said sub-contract and agreement, and that there 
 is now due and owing to your orator thereon the sum of 
 
 dollars, and your orator claims to have and has a lien 
 
 on the said land, for the same under the provision of the statute 
 in such case made and provided. 
 
 9. And your orator is informed and believes and charges 
 
stage's MICHIGAN CHANCEBY PEACTICE AND POEMS 459 
 
 the fact to be that I. K., L. M., and N. 0., have, or claim to 
 have, rights or interests in the said land, but your orator avers 
 that such rights and interests are subject to the s.aid lien of 
 your orator. 
 
 I. Your orator therefore prays the aid of the court (insert 
 as in case of Vendor's Lien to conclusion.) 
 (Add verification.) 
 
 MECHANIC'S LIEN BY MATERIAL-MAN. 
 (Address and introduction.) 
 
 (Paragraph 1 and 2, to the * as in last form, then proceed:) 
 procured your orator to furnish and your orator did furnish 
 from time to time thereafter a large quantity of material to 
 be used in and about the said building and construction of the 
 
 said , viz., (state the materials that were furnished and 
 
 price and value, with dates of furnishing.) 
 
 3. And that the first of the said materials was so furnished 
 on the day of , A. D. 19 . . , and the last there- 
 of was furnished on the day of , A. D. 19 . . . 
 
 4. And that before the expiration of thirty days after the 
 delivery of the first of such materials, {or, before the delivery 
 
 of any such materials, as the case may be) viz., on the 
 
 day of , A. D. 19 . . , your orator served, etc., (as in 
 
 paragraph 4 of last form sub-contractor.) 
 
 (Proceed now as in last form to the end, substituting the words 
 "materials" for the words "work and labor," and omitting any 
 reference to a sub-contract or agreement.) 
 (Add verification.) 
 
 MECHANIC'S LIEN BY LABORER. 
 (Address and introduction.) 
 
 (Paragraphs 1 and 2 to the * as in last form but one, then pro- 
 ceed;) employed your orator to do and perform certain work 
 and labor thereon, viz., (state what kind of work fully) for hire 
 
 and compensation at the rate and wages of dollars 
 
 per day. 
 
 3. And that in pursuance of such employment your orator 
 did and performed a large amount of such work and labor in 
 
 and about the construction and building of the said , 
 
 viz., days work at the rate and wages of dol- 
 lars per day, and that the first of such work and labor was 
 
 done and performed on the day of , A. D. 
 
 19 . . , and the last thereof on the day of , 
 
 A. D. 19... 
 
 (Proceed as in. form of sub-contractor to conclusion, omitting 
 all words referring to a sub-contract or agreement.) 
 (Add verification.) 
 
460 stage's MICHIGAN CHANCEBY PEAOTICE AND FOEMS 
 
 LAND CONTEACT. 
 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19 . . , your orator was the owner in his own 
 
 right in fee simple of all that certain piece or parcel of land 
 
 situated in the of in said county of 
 
 and State of Michigan, described as follows: (insert description 
 
 as in the contract), of the value of dollars, and being 
 
 such owner your orator was willing to sell the same and one 
 C. D. was then willing to purchase the same, and thereupon 
 your orator and the said C. D. made and entered into certain 
 articles of agreement in duplicate under their hands, bearing 
 date the same day and year last aforesaid, and t.herein and 
 thereby your orator, the party of the first part, in the said 
 articles of agreement did covenant and agree to sell and con- 
 vey to the said C. D., the party of the second part in the said 
 articles of agreement, all and singular the said above described 
 
 land for the sum of dollars to be paid as follows : 
 
 (insert terms of payment in full, as set forth in the contract), 
 and the said C. D., party of the second part as aforesaid, did 
 therein and thereby covenant and agree to purchase the said 
 
 land of and from your orator for the sum of , . . dollars 
 
 aforesaid, and to pay the same with the interest tbereon at 
 the times and in the manner above set forth, and did also cov- 
 enant and agree that he would in due time pay and satisfy all 
 duties, taxes and assessments of every name and n9,ture what- 
 soever, general and special, that should by any lawful author- 
 ity be levied or assessed upon the said land or any part thereof 
 until the whole of the said purchase money as well interest as 
 principal should be fully paid. 
 
 2. And the said C. D., the party of the second part afore- 
 said, did in and by the said articles of agreement further 
 covenant and agree, that until the whole of the said purchase 
 money should be fully paid as aforesaid, he would keep the 
 buildings erected and to be erected upon the said lands in- 
 sured against loss and damage by fire by insurers and in amount 
 approved by your orator, the party of the first part aforesaid, 
 and would assign the policy or policies of insurance to your 
 orator. 
 
 3. And the said C. D., party of the second part as aforesaid, 
 did in and by the said articles of agreement further covenant 
 and agree that until the whole of the said purchase money 
 should be fully paid as aforesaid, he would not commit, nor 
 suffer to be committed, nor permit, any waste on the sai4 lands 
 and premises, or on any part thereof. 
 
 4. And in consideration of the premises your orator, the 
 party of the first part aforesaid, did in and by the said articles 
 of agreement covenant and agree that upon the full payment 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 461 
 
 of the said purchase money and the interest thereon in manner 
 aforesaid, and upon the full performance by the said C. D.. 
 the party of the second part as aforesaid, of the said covenants 
 and agreements on his part to be kept and performed, your 
 orator would by a good and sufficient deed of conveyance duly 
 executed, acknowledged and delivered, grant and convey the 
 said land with the hereditaments and appurtenances thereunto 
 belonging unto the said C. D., his heirs and assigns forever, 
 in fee simple, and free and clear from all encumbrances, save 
 such encumbrances as might have occurred through the neglect 
 or default of the said C. D. 
 
 5. And that it was in and by the said articles of agree- 
 ment further mutually agreed and convenanted by and between 
 your orator and the said C. D., that the said C. D. might and 
 should take possession of the said land and premises at and 
 from the day of , A. D. 19 . . , and might con- 
 tinue in the actual occupation thereof so long as he should 
 perform his part of the covenants and agreements in the said 
 articles of agreements contained, and that during such occupa- 
 tion he should keep the said premises in as good condition as 
 they were at the time of the execution of the said articles until 
 the whole of the said purchase money should be paid. And 
 that if the said C. D. should fail to perform his part of the 
 said covenants and agreements, or any part thereof, then your 
 orator might and should have the right to declare the said 
 articles of agreement null and void and retain all sums of 
 money that might have been paid on said premises, and might 
 and should have the right to take immediate possession of the 
 said land and premises, and each and every part thereof, and to 
 remove the said C. D. and all persons holding or claiming to 
 hold through or under him therefrom, as in and by the said 
 articles of agreement, one duplicate whereof is now in the 
 possession of your orator ready to be produced and proved as 
 this court shall direct, and whereto reference is prayed, will 
 fully and at large appear. 
 
 6. And that the said articles of agreement were executed in 
 duplicate and were interchangeably delivered by your orator 
 and the said C. D., your orator receiving one of the said dupli- 
 cates and the said C. D. the. other thereof. 
 
 7. And that after the making, execution and delivery of 
 the said articles of agreement and in pursuance thereof and on 
 
 or about the day of , A. D. 19 . . , the said C. 
 
 D. entered into the actual occupation of the said land and prem- 
 ises, and ever since that time has continued and still continues 
 to occupy and hold possession thereof. 
 
 8. And that the said C. D. has made default in the per- 
 foriaance of his part of the covenants and agreements in the 
 said articles of agreement mentioned by him to be kept and per- 
 
462 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 formed, and has not paid to your orator the instalment of the 
 
 purchase money which fell due on the day of , 
 
 A.D. 19. ., etc., (state breaches in full), although the time for 
 the payment of such instalments has long since elapsed, and 
 that there is now due and unpaid to your orator on the said ar- 
 ticles of agreement for principal and interest the sum of 
 , dollars. 
 
 9. And that the said C. D. has also made default in the 
 payment of taxes lawfully levied and assessed on the said land 
 since the execution of the said articles of agreement, and has 
 failed te pay the taxes assessed thereon for the year 19 . . , al- 
 though the time limited hy law for the payment thereof has 
 long since elapsed, and your orator for his own protection has 
 been compelled to pay and has paid such taxes amounting to 
 
 the sum of dollars, on or about the day of 
 
 , A. D. 19. . ; and that the said C. D. is equitably in- 
 debted to your orator in the said last mentioned sum with in- 
 terest frora said last mentioned date. 
 
 10. And that no suit or proceediflg at law has been had 
 or taken for the recovery or collection of the amount due Bind 
 owing to your orator on the said articles of agreement or any 
 part thereof. 
 
 - 11. Your orator further shows that B. P. and G. H. have, or 
 claim to have, some rights or interests in the sard land and 
 premises under or through the said C. D., as subsequent pur- 
 chasers or incumbrancers, or otherwise. 
 
 I. Your orator therefore prays the aid of this court that 
 the said C. D., E. F. and G. H., the defendants hereto, may, if 
 they can show why your orator should not have the relief hereby 
 prayed, without oath, all answer upon oath being hereby waived, 
 full, true, direct and perfect answer make to all and singular 
 the matters hereinbefore stated and charged, and that they 
 may come to a just and true account as to the amount due and 
 owing to your orator on the said articles of agreement. 
 
 11. And that the said defendants, or some of them, be decreed 
 to pay to your orator the amount so found to be due to him 
 on siich accounting with interest and the costs of this suit 
 forthwith, or at a short day to be fixed by this court and named 
 in such decree, your orator being ready and willing and hereby 
 offering in case the entire amount of such purchase money, as 
 well as accrued interest due and owing, together with all sums 
 paid as aforesaid by your orator for taxes (and insurance) with 
 the interest thereon and the costs of this suit, shall be paid in 
 accordance with such, decree, to execute and deliver a deed of 
 conveyance as provided in the said articles of agreement. 
 
 III. And that in- default of such payment the said land and 
 premises with the appurtenances may be sold by and under 
 the direction of this court, and that the proceeds of such sale 
 
stage's MICHIGAN CHANCEKY PRACTICE AND FORMS 463 
 
 be applied to satisfy the amount so found to be owing to your 
 orator with interest and the costs of this suit and expenses of 
 such sale; the surplus, if any, to be paid to the defendants, or 
 such of them, as shall be found to be entitled thereto. 
 
 IV. And that in case of such sale the said defendants and 
 all persons claiming or to claim by, through or under them, 
 or any of them, or who may have come into the possession of 
 the said premises or any part thereof, since the commencement 
 of this suit, may be forever barred and foreclosed of and from 
 all right or equity of redemption of the said above described 
 land and premises, and that they and each and all of them, yield 
 and deliver up possession thereof to the purchaser or purchasers 
 thereof at such sale, on production of the deed or deeds executed 
 by the circuit court commissioner, or other person making such 
 sale, in pursuance thereof and a certified copy of the order of 
 this court confirming the report of such sale, after such order 
 shall have become absolute. 
 
 V. And in case the sale of the said land and premises shall 
 fail to produce a sufficient sum to pay the whole amount so 
 found to be due to your orator as aforesaid, together with the 
 costs of this suit and the expenses of such sale, that the defend- 
 ant, C. D., or such other of the defendants as shall be found to 
 be personally liable for the same, pay to your orator the amount 
 of such deficiency with interest, and that your orator have 
 execution for the collection thereof. 
 
 VI. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 BY A CORPORATION. 
 (Address.) 
 
 Complaining, your orator (corporate name of complainant), 
 a corporation formed and existing under the laws of the State 
 of Michigan, respectfully shows : 
 
 1. That your orator is a corporation duly organized and 
 incorporated under the laws of this state, that is to say (name 
 the statute under which the corporation is organized) for tho 
 purpose of (name the purpose of the incorporation as stated in 
 its articles), and that it was so incorporated on or about the 
 
 day of , A. D. 19 . . , and that ever since that 
 
 time it has been and still is doing business as such corporation 
 and has its principal office for the transaction of business at 
 , in the county of , in this state. 
 
 2. And that heretofore and on or about the day 
 
 of , A. D. 19. ., during the time when your orator was 
 
 so incorporated and doing business as aforesaid, one C. D. be- 
 came and was indebted to your orator in the sum of 
 
 dollars, and being so indebted and in order to secure to your 
 orator the payment thereof, with interest at the rate of 
 
464 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 per cent per annum, the said C. D. then made and executed and 
 delivered to your orator his certain (promissory note or bond 
 as the case may ie and proceed as in ordinary form to the end). 
 [As the bill is filed by the corporation and not in the name of 
 its officers, no authority of the officers to foreclose, need or ought 
 to be recited.] 
 
 BY A CORPORATION AS TRUSTEE AGAINST A 
 
 CORPORATION ON BONDED DEBT. 
 
 State of Michigan. 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 Complaining, your orator (name of complainant corporation) , 
 a corporation organized and existing under the laws of the State 
 of Michigan, trustee as hereinafter mentioned, respectfully shows 
 unto the court: 
 
 1. That your orator is, and for over years now 
 
 last past has heen, a corporation duly incorporated under the 
 provisions (insert the title of the act under which the company 
 was incorporated), and was so incorporated on or about the 
 
 day of , A. D. . ., for the purpose of (state 
 
 purpose of incorporation as in Articles of Association), and 
 ever since that time your orator has been, and still is, doing busi- 
 ness as such corporation and has had and still has its principal 
 
 office for the transaction of business at the city of , in 
 
 the county of , in this state. 
 
 2. That (name of defendant corporation) is a corporation 
 formed and existing under the laws of the State of Michigan for 
 the purpose of (state purpose of corporation, e. g., mining for 
 
 copper ore at ) , and was such corporation on the (date 
 
 of mortgage), and had been such .for years before 
 
 that time and during all that time had been and was carrying 
 on the business of such corporation at (state location), having 
 its principal office at 
 
 3. And that on or about the day of , A. 
 
 D. 19 . . , the said last named corporation did, by its board of 
 directors, at a regular meeting thereof then held, adopt a reso- 
 lution whereby it was resolved and determined that the said last 
 named corporation should make and issue its first mortgage 
 coupon bonds for the purpose of (state purpose, e. g., extending 
 and improving the works of the said corporation) , to the amount 
 
 of thousand dollars, that is to say bonds, all 
 
 of the denomination of dollars each, all to be dated on 
 
 the day of A. D. 19 . . , and to mature on the 
 
 day of , A. D. 19. ., bearing interest at the 
 
 rate of per cent per annum, payable semi-annually, 
 
 on the days of and in each year, at 
 
 (place of payment), on presentation of corresponding interest 
 
stage's MICHIGAN CHANCERY tEACTICE AND FOEMS 465 
 
 coupons appended to such bonds, and that to secure the pay- 
 ment of the principal and interest of said bonds a first mort- 
 gage should be made to your orator as trustee upon all and 
 singular the (describe the property authorized to be mortgaged), 
 being the property of the said (insert name of defendant cor- 
 poration); and that the (mention the officers authorized to exe- 
 cute the mortgage by their respective official designations, e. g., 
 president and secretary) thereof were thereby duly authorized 
 and instructed to execute, sign, seal with the seal of the cor- 
 poration, acknowledge and deliver such mortgage on behalf of 
 the said last mentioned corporation in due form of law and 
 containing such provisions as to them should seem meet; and 
 to execute, sign and seal, with the corporate seal, such bonds in 
 such form and containing such provisions as to them should 
 seem meet, and to sign and execute interest coupons to be ap- 
 pended to such bonds for each instalment of interest thereon 
 as the same should fall due, and that the said bonds and coupons 
 should be issued and delivered to your orator to be sold, and 
 transferred to such persons as might become the purchasers 
 thereof. 
 
 4. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , the said (mention the officers by their 
 
 official designations) did, in pursuance of the said resolution 
 and instruction and on behalf of the said (name of defendant 
 corporation) make, execute, sign, seal with the corporate seal, 
 issue and deliver to your orator as such trustee, to be sold and 
 
 transferred as aforesaid, (state number) bonds of the 
 
 said (name of defendant corporation) , all of the denomination 
 
 of dollars each, and all bearing date the day 
 
 of , A. D. 19.., being numbered respectively consec- 
 utively from 1 to , and in and by each of the said 
 
 bonds the said (name of defendant corporation) promised to 
 pay to your orator or to the bearer of the said bond, 
 
 the sum of dollars on the day of , 
 
 A. D. 19. ., together with interest thereon from the date of such 
 bond, at the rate of per cent per annum, payable semi- 
 annually on the days of and in 
 
 each year at , on presentation and surrender of the 
 
 coupons thereto appended as they should respectively become 
 due, and it was recited in each of the said bonds that same was 
 one of a series of hundred bonds, numbered consec- 
 utively from 1 to hundred, both numbers inclusive, 
 
 all of the denomination dollars, and that the payment 
 
 thereof is secured by a first mortgage, bearing even date there- 
 with, upon (describe mortgaged property as recited in bond), 
 duly executed and acknowledged and recorded in the office of 
 
 the register of deeds of the county of , in the State of 
 
 Michigan ; and that each of the said bonds had appended thereto 
 
466 stage's MICHIGAN CHANCERY PBACTICE AND EOKMS 
 
 interest coupons, each numbered with the same number as the 
 bond whereto it was appended, each of which coupons was a 
 promise by the said (name of defendant corporation) to pay to 
 
 the bearer thereof dollars on each of the several days 
 
 when each of the said instalments of interest thereon respectively 
 should fall due, on presentation and surrender of such coupon 
 
 at for such semi-annual interest. 
 
 5. And that at or about the same time of the delivery to 
 your orator of the said bonds and coupons the said (mention the 
 said officers hy their official designations) did, in pursuance of 
 the said resolution and instruction and for and on behalf of 
 the said (name of defendant corporation), make, execute, sign, 
 seal with the corporate seal, acknowledge and deliver to your 
 orator a certain indenture of mortgage, bearing date the said 
 
 day of ....,...., A. D. 19 .. , and therein and thereby 
 
 the said (name of mortgagor corporation), the party of the first 
 part in the said indenture named, did, in order to secure the 
 payment of all of the moneys mentioned in the said bonds and 
 coupons as the same should fall due, and in consideration thereof 
 and of the sum of one dollar to it then in hand paid by your 
 orator, the receipt whereof was therein acknowledged, grant, 
 bargain, sell, transfer, alien and convey to your orator, as 
 trustee, the party of the second part named in the said inden- 
 ture, its successors and assigns forever, all (insert description 
 of the property mortgaged as in the mortgage) , to have and to 
 hold the same unto your orator as trustee, its successors and as- 
 signs forever. Which said indenture of mortgage was upon the 
 express condition that if the said (name of mortgagor corpora- 
 tion) should well and truly pay or cause to be paid, to each and 
 all of the holders of the said bonds and coupons, the interest 
 upon the said bonds and on each of them, upon the presen- 
 tation of said coupons as the same should respectively be- 
 come due as aforesaid and should well and truly pay, or cause 
 to be paid, the principal of each of the said bonds as the 
 same should become due, then the said indenture of mort- 
 gage and all right, title and interest thereby granted should 
 cease and become null and void. And it was in and by the said 
 indenture of mortgage expressly provided, that in case default 
 should be made in the payment of the said interest, or any part 
 thereof, on the presentation of the said coupons, or any thereof, 
 on or after any day whereon the same should have become due, 
 and should such default continue and such interest remain un- 
 paid and in arrear for the space of days, then and in 
 
 tha^ event the whole amount of the principal sums mentioned 
 in each and all of the said bonds then outstanding, together with 
 all arrearages of interest, should, at the option of a majority in 
 amount of the holders of such bonds, become and be forthwith 
 ■ due and payable. And that the said indenture of mortgage was 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 467 
 
 afterwards and on or about the day of , 19 . . , 
 
 duly recorded in the office of the register of deeds for the 
 
 county of , in liber of mortgages, at page 
 
 ......... as in and by the said indenture of mortgage now re- 
 maining in the possession of your orator, ready to be produced 
 and proved as this court shall direct, and by the said record 
 thereof now remaining in the said office of the said register of 
 deeds and whereto reference is prayed, will fully appear. 
 6. And that afterwards and before the said bonds, or any 
 
 of them, had matured and during the years A. D and 
 
 , all of the said bonds {or, a number, that is to say, 
 
 of the said bonds), with the coupons thereto apper- 
 taining respectively appended, were duly sold, transferred and 
 set over to divers purchasers thereof in good faith and at their 
 par value respectively and the proceeds and amounts realized 
 therefrom were paid and turned over to the said (name of cor- 
 poration) as the same were received and that the present hold- 
 ers and owners of the said bonds, so far as your orator has been 
 able to ascertain, are as follows : (insert list of bondholders, e. g., 
 John Jones, 6 bonds, Nos. 1 to 6 inclusive, amount dol- 
 lars), and that all the said bonds and the principal sums men- 
 tioned therein in each and all of them became due on the 
 day of , A. D. 19 . . , and that all said prin- 
 cipal sums are now overdue and unpaid and that the interest 
 on the said several bonds represented by the coupons thereto re- 
 spectively attached as aforesaid for years now last past 
 
 is also overdue and unpaid and that interest has accrued on 
 the several amounts unpaid on the said bonds and coupons 
 
 since the maturity thereof respectively at the rate of 
 
 per cent per annum and still continues to accrue at the same 
 rate and that there is now overdue and unpaid on the said 
 several bonds and coupons to the several respective holders and 
 
 owners thereof the sum of dollars, as nearly as your 
 
 orator can now state, with interest from the time of the matur- 
 ity thereof respectively, at the rate last aforesaid, and that 
 the same is due and owing to the following named persons, as 
 holders and owners of the said bonds and coupons, as follows: 
 (insert list of bondholders and holders of coupons and amount 
 
 of indebtedness to each, e. g., John Jones bonds, 
 
 dollars. Coupons on each bond for , last past 
 
 semi-annual instalments of interest, dollars), and in- 
 terest from the maturity of each bond and coupon respectively, 
 
 at the rate of per cent per annum, and that no suit 
 
 or proceeding at law has been commenced by any of the said 
 holders of the said bonds or coupons to recover the amount due 
 or owing them or any of them thereon or any part thereof. (If 
 some qf the bondholders have commenced proceedings at law, 
 instead of the last clause state? and that no suit or proceeding 
 
468 STAGERS MICHIGAN CHANCBBY PEACTICE AND FOBMS 
 
 at law lias been commenced by the above named (name those 
 bondholders and couponholders who have not commenced action 
 at law), or any of them, to recover the amounts due or owing to 
 them respectively on such bonds and coupons, and that the 
 above named (insert names of bond and couponholders who 
 have commenced proceedings at law) have severally commenced 
 proceedings at law for the recovery of the several sums due to 
 them respectively on their several and respective bonds and 
 coupons and that the said suits and proceedings (state the pres- 
 ent condition of the suits, e. g., are still pending in the Circuit 
 
 Court for the county of , or, have been discontinued, 
 
 or as the case may be as to each suit.) 
 
 (If the bonds have not yet matured by the original terms 
 thereof, but have been declared to be due and payable by rea- 
 son of the non-payment of interest, insert after the list of bond- 
 holders the following: and that the said (name of corporation) 
 made default in the payment of the instalment of interest on 
 
 the said bonds, which fell due on the day of , 
 
 A. D. 19. ., and that on and after the said last mentioned day 
 the holders and owners of the coupons of the said bonds, repre- 
 senting the interest thereon which fell due on the said 
 
 day of , A. D. 19 . . , presented the said last mentioned 
 
 coupons at the said for payment and then and there 
 
 requested the payment thereof and offered to surrender the said 
 coupons upon receiving such payment, but the said (name of 
 defendant corporation) , notwithstanding such presentment and 
 offer, did not pay the said interest nor any part thereof, but 
 therein made default, and such default has been continued and 
 the said interest and the whole thereof has remained unpaid for 
 
 more than days after the time when the same became 
 
 due as aforesaid and for more than days after the time 
 
 of such presentment for payment, and such default still con- 
 tinues and said interest and the whole thereof still remains 
 
 wholly unpaid, and that after the lapse of the last days 
 
 after the said presentment for payment of the said coupons after 
 the same had fallen due, the majority in amount of the said 
 bondholders being the holders of the majority in amount of all 
 the said bonds then outstanding, did as they lawfully might 
 elect and declare the whole amount of all the principal sums 
 mentioned in all the outstanding bonds to be due and payable 
 forthwith, together with all arrearages of interest, and duly 
 notified your orator and the said (name of defendant corpora- 
 tion) of such election and declaration and thereupon (then pro- 
 ceed, all the said bonds, etc., as in the foregoing to the end of the 
 paragraph) . 
 
 7. And that a majority in amount of the said bondholders 
 have requested your orator as such trustee to take proceedings 
 to foreclose the said indenture of mortgage in order that the 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 469 
 
 principal and interest due and payable on the said bonds may 
 be paid and satisfied, and your orator files this bill of complaint' 
 as such trustee for the benefit of all the said holders of the 
 said bonds and coupons. 
 
 8. And that your orator has caused examination to be made 
 of the records of the office of the said register of deeds and 
 from such examination it appears, and your orator is informed 
 and believes and charges, that A. B. and C. D. have, or claim 
 to have, some rights or interests or estate in the said property 
 so mortgaged as aforesaid or some part thereof, as subsequent 
 purchasers or incumbrancers or otherwise. 
 
 9. And that the said mortgaged property is a slender and 
 scanty security for- the payment of the several sums now due 
 and unpaid on the said several bonds to the holders thereof 
 respectively and a sale thereof would not produce sufficient to 
 pay the same in full, in the opinion of your orator, and that 
 the said (name of defendant corporatimi) is now carrjdng on 
 business with the same and is using the same in its said business 
 and is thereby earning and receiving considerable gains and 
 
 profits, to- wit, to the amount of dollars per (month). 
 
 (This paragraph may ie omitted where a receiver is not prayed 
 for or where otherwise unnecessary.) (It is sometimes thought 
 advisable to annex a copy of the mortgag-e and of the form, of 
 iond and coupon to the bill, in that case add the following par- 
 agraph:) 
 
 10. And your orator has caused a copy of the said indenture 
 of mortgage, marked "Exhibit A," and also copies of the form 
 of the said bonds and of the coupons thereto appertaining, 
 marked respectively "Exhibit B" and "Exhibit C," to be an- 
 nexed to this bill of complaint as and for a part thereof and 
 whereto, as well as to the original indenture of mortgage and the 
 original bonds and coupons, when produced and proved accord- 
 ing to the course of practice of this court, reference is prayed. 
 
 I. Your orator therefore prays the aid of this court in the 
 premises that the said (name of defendant corporation), A. B. 
 and C. D. (name all the defendants), the defendants hereto, 
 may, without oath, all answer on oath being hereby waived, full, 
 true, direct and perfect answer make to all and singular the 
 matters herein stated and charged. 
 
 11. And that the said defendants may come to a just and 
 fair account touching the amount due and owing to the said 
 holders of the said outstanding bonds and coupons for principal 
 and interest and secured by the said mortgage and that the 
 said (name of defendant corporation), or some of the defend- 
 ants, may be decreed to pay forthwith to your orator as such 
 trustee, for the benefit of the said holders of such bonds and 
 coupons, the amount which shall be found to be due thereon, 
 
470 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 together with the interest thereon and your orator's reasonable 
 costs and expenses in this behalf sustained. 
 
 III. And that in default thereof that the said defendants, 
 each and all of them, and all persons claiming or to claim from, 
 or under them,, or any of them, may be forever foreclosed and 
 barred of and from all equity of redemption in and claim to 
 the said mortgaged property and each and every part and parcel 
 thereof with the appurtenances. 
 
 IV. And that all and singular the said mortgaged property, 
 with the appurtenances, may be sold by the order and decree and 
 under the direction of this court and the moneys arising from 
 the sale thereof, so far as shall be necessary or so far as the 
 same shall extend, be applied towards paying to your orator, 
 as such trustee, the full amount of the moneys so found to be 
 due as aforesaid and secured by the said indenture of mort- 
 gage, principal as well as interest, together with your orator's 
 reasonable costs and charges. 
 
 V. And that on the coming in and confirmation of the re- 
 port of such sale the said defendants and all persons, claiming or 
 to claim under them, or amy of them, do forthwith surrender 
 possession to the purchaser or purchasers at such sale of all 
 personal property so sold, and that at the expiration of the time 
 when the real estate so sold may, according to the statute in such 
 case made and provided, be redeemed, the said defendants and 
 all persons, claiming or to claim under them, or any of them, 
 who shall have come into possession of the said mortgaged lands 
 and real estate or any pajt thereof, during the pendency of this 
 suit or during the time in which the same may, by law, be re- 
 deemed, deliver and yield up possession thereof, or so much 
 thereof as shall not have been redeemed, to whomsoever shall 
 have become the purchaser or purchasers thereof at such sale 
 on the production to it, him, her or them-, of the deed or deeds 
 executed by the circuit court commissioiier or other officer of this 
 court, pursuant to such sale, and a certified copy of the order 
 confirming the report of such sale after the said order has be- 
 come absolute and such deed has become operative unless such 
 real estate shall have been sooner redeemed according to law. 
 
 VI. That the said (name of defendant corporation) pay to 
 your orator as such trustee any balance that shall remain of the 
 said principal and interest if the sale of the said mortgaged 
 property as aforesaid shall fail to produce a sufficient sum to 
 pay the whole of such principal and interest and the costs of 
 this suit and the costs and expenses of such sale. And that your 
 orator have execution therefor. 
 
 VII. (If a receiver is asked.) And .that in the meantime, 
 during the pendency of this suit, that some proper person be ap- 
 pointed by this court, a receiver, with the usual powers and un- 
 der the usual instructions, to receive and take into his cus- 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 471 
 
 tody and possession all and singular the said mortgaged prop- 
 erty and therewith to carry on and continue the business of 
 the said (name of the defendant corporation), for the benefit of 
 the said holders of the said bonds and coupons and of your 
 orator as such trustee under the direction of this court. 
 
 VIII. (or VII.) And that your orator may have such fur- 
 ther or such other relief in the premises as shall be agreeable to 
 equity and good conscience. 
 (Add prayer for subpoena, if deemed advisable.) 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and Counsel.) 
 
 [Corporate seal.] 
 
 (it very rarely happens that a trustee in this class of mort- 
 gages is an individual person. Should such be the case, how- 
 ever, a substitution of the ordinary commencement by an indi- 
 vidual complainant for that given above and the omission of 
 paragraph 1 will be all the change that is necessary.) 
 
 [This class of mortgages is so varied in character that it 
 would be impossible to frame a form to fully suit every ease, 
 but the peculiar circumstances of each case can be inserted in 
 proper places in the foregoing.] 
 
 BY AN INDIVIDUAL BONDHOLDER. 
 (Address.) 
 
 Complaining, your orator, A. B., of , respectfully 
 
 shows unto the court : 
 
 1. That (name of corporation) is a corporation formed and 
 existing under the laws of the state of Michigan for the purpose 
 of (state purpose of corporation) , and was such corporation 
 and doing such busines on the (date of mortgage), and had 
 
 been such corporation and so doing business for years 
 
 before that time and during all that time had (and still has) 
 its principal office for the transaction of business at 
 
 2. And that on or about the day of , A. D. 
 
 19. ., the said corporation did, by its (board of directors), at a 
 regular meeting thereof then held, make and adopt a resolution 
 whereby it was resolved and determined that the said corpora- 
 tion should make and issue its first mortgage coupon bonds for 
 
 the purpose of (state purpose), to the amount of thou- 
 
 said dollars, that is to say, bonds, all of the denomina- 
 tion of dollars each, all to be dated on the 
 
 day of , A. D. 19. ., and to mature on the 
 
 day of , A. D. 19 . . , bearing interest at the rate of 
 
 per cent per annum, payable semi-annually, on the 
 
 days of and in each year at (place 
 
 of payment), on presentation of corresponding interest coupons 
 
472 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 attached to such bonds and that to secure the payment of the 
 principal and interest of such bonds a first mortgage should 
 be made to (name of trustee) (if a corporation he named as 
 trustee as is most usual, add to the name), a corporation before 
 then duly incorporated under the laws of this state, that is to 
 say, under the provisions (insert the title of the act under which 
 the company was incorporated), and then and still being located 
 
 at , in this state, and being duly authorized to receive 
 
 and hold such mortgage upon the trust therein created as here- 
 inafter stated), as trustee upon all and singular (describe the 
 property to be mortgaged), being the property of the said (in- 
 sert name of corporation making the mortgage), and that the 
 (mention the officers authorized to execute the mortgage by their 
 official designations) qi the said (name the mortgagor corpora- 
 tion) were thereby duly authorized and instructed to execute, 
 sign, seal with the corporate seal, acknowledge and deliver such 
 mortgage qn behalf of the said last mentioned corporation in 
 due form pf law and containing such provisions as to them 
 should seem meet, and to sign and execute and seal TCith the 
 corporate seal such bonds, in such form and containing such 
 provisions as to them should seem meet, and to sign and exe- 
 cute interest coupons to be appended to such bonds for each 
 instalment of interest thereon as the same should fall due, and 
 thg,t the said bonds and cqupons should be issued and delivered 
 tp the said (name of trustee), to be sold and transferred to 
 such persons as might become the purchasers thereof. 
 
 2>. And that afterwards and on dr about the day 
 
 of , A. D. 10 . . , the said (mention the officers authorized 
 
 to execute the mortgage bii their official designations), did, in 
 pursuance of the said resolution and instruction and on behalf 
 of the said (name the mortgagor corporation) , make, execute, 
 sign, seal with the corporate seal, issue and deliver to the said 
 (name of trustee corporation) , as such trustee, to be sold and 
 
 transferred as aforesaid (state number) bonds of the 
 
 said (name <)f mortgagor corporation) , all of the denomination 
 
 of dollars each, and all bearing date the day 
 
 Qf , A. D. 19 . . , and being numbered respectively con- 
 secutively from 1 to , and in and by each of the said 
 
 bonds the said (name of mortgagor corporation) promised to pay 
 to the said (name of trustee corporation), or to the bearer of the 
 
 said bond, the sum of dollars, on the day of 
 
 , A. D. 19 . . , together with interest thereon from the 
 
 date thereof, at the rate Of per cent per annum, pay- 
 able semi-annually, on the , , days of and 
 
 in each year, at , on presentation and sur- 
 render of the coupons thereto appended as they should respec- 
 tively beeonae due. And it was recited iji each of the said bonds 
 that the same was one of a series of hjindred bonds 
 
stage's MICHIGAN CHANCEBY PRACTICE AND EOKMS 473 
 
 numbered consecutively from one to hundred, both 
 
 numbers inclusive, all of the denomination of dollars, 
 
 and that the payment thereof was secured by a first mortgage, 
 bearing even date therewith, upon (describe the property mort- 
 gaged as recited in the bond), duly executed and acknowledged 
 and recorded in the office of the register of deeds of the county 
 
 of , in the state of Michigan ; and that each of the 
 
 said bonds had appended thereto interest coupons, each 
 
 numbered with the same number as the bond whereto it was 
 appended and each of which said coupons was a promise by the 
 said (name of mortgagor corporation) to pay the bearer thereof 
 
 dollars on each of the several days when each of the 
 
 said instalments of interest thereon respectively should fall due, 
 on presentation of such coupon at , for such semi-an- 
 nual interest. 
 
 4. And that at or about the time of the delivery to the said 
 (name of trustee corporation) of the said bonds and coupons 
 the said (name of the said officers by their official designations), 
 did, in pursuance of the said resolution and instruction and for 
 and on behalf of the said (name of mortgagor corporation) , 
 make, execute, sign, seal with the corporate seal, acknowledge 
 and deliver to the said (name of trustee corporation) , a certain 
 
 indenture of mortgage, bearing date the said day of 
 
 , A. D. 19 . . , and therein and thereby the said (name of 
 
 mortgagor corporation), the party of the first part in the said 
 .indenture named, did, in order to secure the payment of all tlie 
 moneys mentioned in the said bonds and coupons as the same 
 should fall due, and in consideration thereof and of the sum 
 of one dollar to it them in hand paid, the receipt whereof was 
 therein acknowledged, grant, bargain, sell, transfer, alien and 
 convey unto the said (name of trustee corporation) , as trustee, 
 the party of the second part named in the said indenture, its 
 successors and assigns forever, all (insert description of prop- 
 erty mortgaged as in mortgage), to have and to hold the same 
 unto the said (name of trustee corporation), its successors and 
 assigns, forever. Which said indenture of mortgage was upon 
 the express condition that if the said (name of mortgagor cor- 
 poration) should well and truly pay, or cause to be paid, to each 
 and all of the holders of the said bonds and coupons, the in- 
 terest upon the said bonds and on each of them, upon the pres- 
 entation of the said coupons as the same should respectively be- 
 come due as aforesaid, and should well and truly pay or cause 
 to be paid, the principal of each of the said bonds as the same 
 should become due, then the said indenture of mortgage and 
 all right, title and interest thereby granted should cease and 
 become null and void. And that the said indenture of mort- 
 gage was afterwards and on or about the day of 
 
 , A. D. 19 .. . , duly recorded in the office of the register 
 
474 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 of deeds of the county of , in liber of mort- 
 gages, at page , as in and by the said record now re- 
 maining in the said office of the said register of deeds and 
 whereto reference is prayed, will fully appear. 
 
 5. And that afterwards and before the said bonds or any 
 
 of them had matured, and on or about the day of 
 
 , A. D. 19. ., the said (name of trustee corporation) , 
 
 then having the same for sale as aforesaid, for a valuable con- 
 sideration to it, then in hand paid, by your orator, sold, as- 
 signed and transferred to your orator a number, that is to say, 
 
 of the said bonds, with the said interest coupons thereto 
 
 respectively appended, numbered, respectively to 
 
 , both numbers inclusive, and that your orator is now 
 
 the holder and owner in good faith of the said last mentioned 
 
 bonds and of the said coupons, appended to each 
 
 thereof, for the interest which fell due thereon on the 
 
 days of . .' and , in the years 19 . . and 19 . . , 
 
 and that the principal sum named in each of the said 
 
 bonds and the interest thereon represented by the said conpons, 
 is now wholly overdue and wholly unpaid, and that the same 
 
 and the whole thereof was due and unpaid on the day 
 
 of , A. D. 19 . . , and ever since that time the same has 
 
 been and remained and still is and remains due and unpaid, 
 and that there is now due and unpaid to your orator upon the 
 said bonds and coupons so held by him as aforesaid, the sum of 
 
 dollars, with interest thereon accrued, since the saicU 
 
 day of , A. D. 19 . .•, at the rate of 
 
 per cent per annum, and that interest continues to accrue thereon 
 at the same rate, and that no suit or proceeding at law has been 
 commenced for the collection thereof, nor any part thereof. 
 
 (If the bonds have not yet matured by the original terms 
 thereof and have been declared to be due by reason of the non- 
 payment of interest, insert the clauses stating the provision in 
 the mortgage, giving the right to declare the principal due for 
 such non-payment and the proceeding to make such declaration 
 as stated in paragraph 6 of the last preceding form.) 
 
 6. And that since the said bonds and coupons now held and 
 owned by your orator have fallen due as aforesaid, your oraior 
 has frequently and in a friendly manner applied to said (name 
 of mortgagor corporation) and presented the said bonds and 
 the said coupons at the said (place of payment), and requested 
 and demanded payment of the moneys due thereon, but to pay 
 the same, or any part thereof, the said (name of mortgagor cor- 
 poration) then wholly refused and neglected and from thence 
 hitherto has continually refused and neglected, and after such 
 
 refusal and neglect and on or about the day of 
 
 , A. D. 19. ., your orator applied in a friendly njan- 
 
 ner to the said (name of trustee corporation) and requested it 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 475 
 
 to commence and prosecute proceedings for the foreclosure 
 of the said mortgage, to the end that the said several sums of 
 money so due as aforesaid to your orator on the said bonds and 
 coupons and interest thereon, might be paid and satisfied, but 
 so to do the said (name of trustee corporation), on divers 
 frivolous pretexts, wholly refused (and neglected) and still con- 
 tinues wholly to refuse (and neglect). 
 
 7. And your orator is informed and believes and charges 
 the truth to be, that divers other persons whose names are un- 
 known to your orator, are now holders and owners of divers 
 of the said bonds and coupons which are still outstanding and 
 unpaid, but the amount thereof is unknown to your orator and 
 your orator exhibits this bill of complaint on behalf of himself 
 and of all persons who are or may be hona fide holders of any 
 of the said bonds and coupons which are outstanding and due 
 and unpaid and which are secured to be paid by the said inden- 
 ture of mortgage, and who may make themselves parties to this , 
 suit in accordance with the rules and practice of ttis court. 
 
 8. And that your orator has caused examination to be 
 made of the records of the office of the said register of deeds, 
 and that from such examination it appears, and your orator is 
 informed and believes and charges, that C. D.-and B. F. have, 
 or claim to have, some rights or interests or estate in the said 
 property so mortgaged as aforesaid, or some part thereof, as 
 subsequent purchasers, or encumbrancers, or otherwise. 
 
 9. (If deemed advisable to annex copies to the bill.) And 
 your orator has caused a copy of the said indenture of mort- 
 gage, as recorded as aforesaid, marked ' ' Exhibit A, ' ' and a copy 
 of the form of the said bonds held by your orator marked 
 "Exhibit B," and a copy of the form of the said coupons held 
 by your orator marked "Exhibit C," to' be annexed to this 
 bill of complaint as and for a part thereof and whereto, as 
 well as to the said record of the said mortgage and the said orig- 
 inal bonds and coupons, when produced and proved, as this court 
 shall direct, reference is prayed. 
 
 I. Your orator therefore prays the aid of this court in the 
 premises that the said (name of mortgagor corporation), and the 
 said (name of trustee corporation) , and the said C. D. and B. 
 F., the defendants hereto, may, without oath, all answer upon 
 oath being hereby waived^ full, true, direct and perfect answer 
 make to all and singular the matters herein stated and charged. 
 
 II. And that the said defendants may come to a just and 
 fair account touching the amount due and owing to your orator 
 for principal and interest upon the said outstanding bonds and 
 coupons held by your orator and secured by the said mortgage 
 and the said (name of mortgagor corporation), or some of the 
 said defendants, may be decreed to pay the same, together with 
 
476 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 your orator's reasonable costs and expenses in this behalf sus- 
 tained, to your orator forthwith. 
 
 III. And that in defaiilt of such payment, that the said de- 
 fendants, each and all of them, and all persons, claiming or to 
 claim from or under them, or any of them, may, be forever fore- 
 closed and barred of and from all equity of redemption in 
 and claim to the said mortgaged property and each and every 
 part and parcel thereof, with the appurtenances, and that 
 all and singular the said mortgaged property, with the appurte- 
 nances (or so much thereof as shall be necessary for that pur- 
 pose), may be sold upder the order and decree and under the 
 direction of this court and the moneys arising from such sale, 
 so far as shall be necessary, or so far as the same shall ex- 
 tend, be applied to the payment to your orator of the full 
 amount of the moneys so found to be due to him as aforesaid, 
 (and also to the payment to such of the other holders and bona 
 fide owners of any of the said bonds and coupons secured by the 
 said mortgage who may have come in and joined in this bill of 
 complaint, of the amount which may be found to be due and 
 owing thereon to them respectively), principal as well as in- 
 terest, together with your orator's reasonable costs and expenses. 
 
 IV. And that on the coming in and confirmation of the 
 report of such sale, the said defendants and all persons, claim- 
 ing or to claim under them, or any of them, do forthwith sur- 
 render possession to the purchaser or purchasers at such sale, 
 of all personal property so sold, and that at the expiration of 
 the time when the real estate so sold may, according to law, be 
 redeemed, the said defendants and all persons, claiming or to 
 claim under them, or any of them, who shall have come into pos- 
 session of the said mortgaged lands and real estate, or any part 
 thereof, during the pendency of this suit or during the time in 
 which the same may by law be redeemed, deliver and yield up 
 possession thereof, or so much thereof as shall not have been re- 
 deemed, to whomsoever shall have become the purchaser or pur- 
 chasers thereof, at such sale on the production to it, him, her 
 or them, of the deed or deeds executed by the circuit court com- 
 missioner or other officer of this court pursuant to such sale, and 
 a certified copy of the order confirming the report of such sale, 
 after the said order has become absolute and such deed has 
 become operative. 
 
 V. And that the said defendant (name of mortgagor cor- 
 poration) pay to your orator (and to such other persons re- 
 spectively, who may have come in and joiaed in this bill of 
 complaint), any balance that shall remain due of the said prin- 
 cipal and interest, if the sale of the said mortgaged property, 
 as aforesaid, shall fail to produce a sum sufficient to pay the 
 ■yifhole of the said principal and interest and the costs and e^- 
 
stage's MICHIGAN CHANCEEY PEACTICE AND EOEMS 477 
 
 penses of this suit, and that execution issue for the collection 
 thereof. 
 
 VI. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 (Add prayer for process, if desired.) 
 
 And your orator -will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and Counsel.) 
 
 (Several iondholders may join as complainants, in which 
 case a list of the bonds and coupons held by each and the re- 
 spective amounts due to each, should be stated. Further, it is 
 not necessary, but usually expedient, to file the bill on behalf 
 of any other bondholders than the complainant, and therefore 
 the 7th paragraph and all subsequent allusion to other bond- 
 holders may be omitted, if desired.) 
 
 AGAINST A CORPOEATION. 
 (Address and introduction.) 
 
 1. That the (name of mortgaging corporation) is, and for 
 
 more than years now last past has been, a corporation, 
 
 organized and existing under the laws of the State of Michigan, 
 and having its location and principal office for the transaction 
 of business at , in the county of , in this state. 
 
 2. And that heretofore and on or about the day 
 
 of , A. D. 19. ., the board of directors of the said cor- 
 poration did, at a regular meeting thereof then held (in cases 
 where authority to mortgage. can only be given by stockholders 
 say, stockholders of the said corporation at a regular annual 
 meeting thereof, or, at a special meeting thereof for that pur- 
 pose duly called pursuant to the articles of association and by- 
 laws thereof), resolve and determine by resolution, duly adopted 
 and entered on the minutes of the said meeting, to borrow the 
 
 sum of dollars for years, at a rate of interest 
 
 not exceeding per cent per annum, payable annually, 
 
 to be used in and about the business of the said corporation 
 (state the purpose generally), and that in order to secure the 
 repayment thereof that the said corporation should make and 
 issue its bond or writing obligatory to pay to the person who 
 
 should make such loan, the said sum of dollars at the 
 
 expiration of years from the date thereof, with inter- 
 est thereon at the rate of per cent per annum, payable 
 
 annually, from the date thereof, until said principal sum should 
 be fully paid, and that to secure the payment thereof a mort- 
 gage of the property of the said corporation, described as fol- 
 lows: (describe property authorized to be mortgaged), should 
 be made, executed and delivered to the person making such 
 
478 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 loan, conditioned for the payment of the said principal and in- 
 terest in the manner above mentioned, and did also in like man- 
 ner resolve and determine that (name the officers of the cor- 
 poration hy their respective official designations who were au- 
 thorized to execute the bond and mortgage), should be and were 
 authorized, empowered and instructed to make, execute, sign, 
 seal with the corporate seal and deliver for and on behalf of 
 the said corporation, such bond or obligation as aforesaid, and 
 also on behalf of the said corporation to make, execute, sign, 
 seal with the corporate seal, acknowledge and deliver a mort- 
 gage in due form of law upon the property above mentioned 
 and described to secure the payment of the money so loaned as 
 aforesaid and the interest thereof in manner aforesaid, in such 
 form and containing such provisions, as they should deem meet 
 to the person who should make such loan. 
 
 3. And afterwards and on or about the day of 
 
 , A. D. 19 . . , your orator agreed to and did loan to 
 
 the said (name of corporation), the said sum of dol- 
 lars, upon the terms and conditions above mentioned and in 
 consideration thereof and in pursuance of the said resolutions 
 and instructions the said (mention officers authorized to act) 
 did then and for and on behalf of the said corporation, make, 
 execute, sign, seal with the corporate seal and deliver to your 
 orator, the bond or writing obligatory of the said corporation, 
 bearing date the same day and year last aforesaid, in substance, 
 tenor and effect as follows: (insert copy of bond), as in, and by 
 the said bond or writing obligatory now in the possesion of 
 your orator, ready to be produced and proved as this court 
 shall direct and whereto reference is prayed, will more fully 
 appear. 
 
 4. And that on the said day of , A. D. 
 
 19 . . , in order to secure to your orator the payment of the 
 said sum of dollars and the interest thereon, in man- 
 ner aforesaid, the said (name the officers authorized to act hy 
 their official designations), did, on the part and behalf of the 
 said (name of corporation), and in pursuance of the said reso- 
 lution and instructions, make, execute, sign, seal with the cor- 
 porate seal, acknowledge and deliver to your orator, a certain 
 indenture of mortgage, bearing date the same day and year 
 last aforesaid, and therein and thereby the said (name of cor- 
 poration) did, for and in consideration of the said sum of 
 
 dollars to it in hand paid by your orator, the receipt 
 
 whereof was in and by said indenture confessed and admitted, 
 give, grant, bargain, sell, remise, release, enfeoff and convey 
 unto your orator, his heirs, executors, administrators and assigns 
 forever all (describe property as in mortgage and proceed as in 
 general form to end.) 
 
stage's MICHIGAN CHANCERY PKACTICE AND FORMS 479 
 
 CIRCUIT COURT COMMISSIONER'S REPORT- 
 AMOUNT DUB ON FORECLOSURE. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 In pursuance and by virtue of an order of this court, made 
 
 in the above cause, dated the day of , A. D. 
 
 19 . . , by which it was, among other things, referred to the un- 
 dersigned circuit court commissioner of the county of , 
 
 to compute the amount due to the said complainant 
 
 for , principal and interest money on the and 
 
 mortgage mentioned and set forth in the bill of complaint 
 filed in this cause, up to and including the date of this report, 
 and to report the same to this court with all con- 
 venient speed. 
 
 I, the subsoriber, a circuit court commissioner of the county 
 
 of , do respectfully certify and report, that I (have 
 
 taken proofs, which are hereto annexed), and have computed 
 the amount due to the complainant as aforesaid. 
 
 And I further certify and report, that there is due to the 
 said complainant as aforesaid, for principal and in- 
 terest up to and including the date of this report, the sum 
 of 
 
 And I further certify and report that Schedule A hereto 
 annexed contains a statement and account of the principal and 
 interest money due to the complainant as aforesaid, the period 
 of the interest its rate per cent, and the mode of computation, 
 to which I refer. 
 
 All which is respectfully submitted. 
 
 Circuit Court Commissioner, 
 
 County, Michigan. 
 
 Dated this day of , A. D. 19. .. 
 
 DECREE AND ORDER OP SALE PRO CONFESSO ON 
 
 REPORT OF COMMISSIONER ON FORECLOSURE. 
 (Title of court and cause.) 
 (Name all defendants.) 
 (Caption.) 
 
 This cause having been brought on to be heard on the bill 
 of complaint filed therein taken as confessed by the said de- 
 fendants, on reading and filing the report of , a cir- 
 cuit court commissioner in and for said county of , to 
 
 whom by an order of this court heretofore made in this cause, 
 it was referred to take proofs of the facts and circumstances 
 stated in the said bill of complaint, and to ascertain and com- 
 pute the amount due to the complainant on the (note) and mort- 
 gage mentioned and set forth in the said bill of complaint, 
 
480 stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 
 
 which report bears date the day of , A. 
 
 D. 19. ., from which it appears there was due to the said com- 
 plainant at the date of said report, for principal and interest, 
 the sum of ......... dollars, and on reading and filing the 
 
 affidavit of , the solicitor for said complainant, show- 
 ing the regularity of the proceedings in this cause to take said 
 bill of complaint as confessed, and on motion of , solic- 
 itor and of counsel for said complainant, it is ordered, adjudged 
 and decreed, and this court, by virtue of the authority therein 
 vested, doth order, adjudge and decree that the said report 
 and all things therein contained do stand ratified and confirmed. 
 And it is further ordered, adjudged and decreed that the said 
 defendants pay or cause to be paid said complainant, or to his 
 solicitor, the amounts so reported to be due as aforesaid, with 
 
 the interest thereon, at the rate of per cent per annum, 
 
 from the date of said report, and the costs of the said com- 
 plainant by , about his suit in this behalf expended, 
 
 . to be taxed on or before the day of , A. D. 
 
 19 . . , and in default thereof, * that aU and singular the said 
 mortgaged premises mentioned in the bill of complaint in this 
 cause, and hereinafter described, or so much thereof as may be 
 sufficient to raise the amount so as aforesaid decreed to be due 
 to the complainant, with the interest thereon and the costs in 
 this case, and the costs and expenses of sale, and which may be 
 sold separately without material injury to the parties interested, 
 
 be sold at public auction, by or under the directions of , 
 
 a circuit" court commissioner for the said county of , 
 
 at any time after the said day of , A. D. 
 
 19 . . ; that the said s.ale be made in the county of ; that 
 
 the said commissioner give public notice of the time and place 
 of such sale, according to the course and practice, of this court 
 
 \jind the statute in such case made and jprovidedjand that the 
 complainant, or any of the parties in this cause, may become 
 the purchaser or purchasers ; that the said commissioner execute 
 a deed or deeds to the purchaser or purchasers of said premises on 
 the said sale; and that the said commissioner, out of the pro- 
 ceeds of said sale, pay to the complainant or to solicitor 
 
 costs in this suit to be taxed, and also the amount so 
 
 decreed to be due as aforesaid, and the interest thereon, at the 
 
 rate of per cent per annum from the date of this 
 
 decree, or so much thereof as the amount realized from the sale 
 of the premises aforesaid will pay of the same ; and that the said 
 commissioner take receipt for the amounts so paid, and file the 
 same with a report of such sale and of his doings thereon in this 
 court; and that he bring the surplus moneys arising from said 
 sale, if any there be, into this court without delay, to abide the 
 further order of this court. 
 
 And it is further ordered, adjudged and decreed, that in six 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 481 
 
 months from the date of such sale, the defendants and all per- 
 sons claiming or to claim from or under them or any of them 
 be forever barred and foreclosed of and from all equity of re- 
 demption, and claim of, in and to the said mortgaged premises 
 so sold, and every part and parcel thereof, which shall not, 
 prior to that time, have been redeemed from such sale. 
 
 And it is further ordered, that at the expiration of six months 
 from the date of said sale the purchaser or purchasers of the 
 said mortgaged premises at such sale be let into possession 
 thereof or of such portions thereof as shall not have been so 
 redeemed; and that any of the parties to this cause, vs^ho may 
 be in possession of said premises, or any part thereof, and any 
 person who, since the commencement of this suit, has come into 
 possession under them or either of them, deliver possession there- 
 of to such purchaser or purchasers, on production of the deed of 
 the said commissioner for such premises, and a certified copy 
 of the order confirming the report of such sale after such sale 
 has become absolute and such deed has become operative. 
 
 And it is further ordered, that if the moneys arising from 
 said sale shall be insufiQcient to pay the amount so as 'aforesaid 
 decreed to be due to the complainant, with the interest thereon 
 and costs and expenses of sale as aforesaid, that the said comr 
 missioner specify the amount of such deficiency in his report 
 of said sale, and that on the coming in and confirmation of 
 
 said report of sale, the said defendant , who 
 
 hereby decreed to be personally liable for the debt secured by 
 the said mortgage, pay to the complainant the amount of such 
 deficiency, with interest thereon from the date of such report; 
 and that the complainant have execution therefor. 
 
 The description and particular boundaries of the property 
 authorized to be sold under and by virtue of this decree, so far 
 as the same can be ascertained from the mortgage above referred 
 to or from the bill of complaint in this cause, are as follows, 
 viz. : (describe land). 
 
 Solicitor for Complainant. Circuit Judge. 
 
 Countersigned : 
 
 Register. 
 
 ON PEOOFS IN OPEN COURT ON FORECLOSURE. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 This cause came on to be heard upon the bill of complaint 
 
 filed therein, taken as confessed by the defendants 
 
 (or, upon the pleadings and proofs taken in open court, or upon 
 
482 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 the bill of complaint taken as confessed by the defendants, C. 
 D., and B. D., and upon pleadings and proofs taken in open 
 court as to the defendants, F. G. and H. T., as the case may he), 
 and thereupon it appearing to the court now here by competent 
 evidence produced in open court that there is at the date hereof 
 
 due and owing to the complainant the sum of doUars 
 
 for principal and interest on the note and^indenture of mort- 
 gage mentioned in the said bUl, and the further sum of 
 
 dollars for taxes paid by the said complainant on the lands men- 
 tioned in the said mortgage for the protection of his security 
 
 and interest thereon, and the further sum of dollars 
 
 for premiums of insurance paid by the said complainant for 
 insurance of the buildings on the said mortgaged premises 
 against loss or damage by fire for the protection of his security 
 
 and interest thereon, amounting in all to the sum of 
 
 dollars (and on reading and filing the affidavit of , Esq., 
 
 solicitor for the complainant showing the regularity of the pro- 
 ceedings to take the said bill as confessed), and after hearing the 
 
 arguments of counsel, on motion of , solicitor and of 
 
 Neounsel for the said complainant, it is ordered,, adjudged and 
 decreed, and this court, by virtue of the authority therein vested, 
 doth order, adjudge and decree that there was due to the com- 
 plainant, at the date of this decree, upon the and mort- 
 gage mentioned and set forth, in the bill of complaint, for prin- 
 cipal and interest the sum of and that the said de- 
 fendant personally liable for the payment thereof ; 
 
 that the said defendant pay or cause to be paid to the said com- 
 plainant or to , solicitor the sum so as aforesaid decreed 
 
 to be due to the complainant with the interest thereon at the rate 
 
 of per cent per annum, from the date of this decree, 
 
 and the costs of the said complainant by about 
 
 ........ suit in this behalf expended, to be taxed for the pro- 
 ceedings taken and had in this cause to foreclose the mort- 
 gage aforesaid, on or before the day of in 
 
 the year one thousand nine hundred '. , and in default 
 
 thereof.* 
 
 (Proceed as in last preceding form from the asterisk to the 
 end.) 
 
 NOTICE OP SALE BY CIKCUIT COURT COMMISSIONER. 
 (Title of court and cause.) 
 In pursuance of a decree of the Circuit Court for the county 
 
 of : In Chancery, made and entered on the 
 
 day of , A. D. 19 . . , in the above entitled cause, I, 
 
 the subscriber, a circuit court commissioner of the county of 
 
 , shall sell at public auction or vendue to the highest 
 
 bidder at the front door of the court house in the 
 
 of , in said county of , on the day 
 
stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 483 
 
 of , A. D. 19 . ., at o'clock in the 
 
 noon of that day all those certain lands and premises, situate, 
 etc., (describe land). 
 
 (Signature.) 
 Circuit Court Commissioner. 
 
 AFFIDAVIT OF POSTING NOTICES OF SALE. 
 State of Michigan, ) 
 County of , j **• 
 
 of (state residence), in said county being duly 
 
 sworn, says that on the day of , A. D. 19 . . , 
 
 he posted up one notice of sale of which the annexed is a 
 
 copy at each of the following named places in the 
 
 of , in said county, namely ; one at ; and 
 
 one at ; and one at ; the same being three 
 
 public places in said of , and that each and 
 
 all of the said notices were conspicuously and securely posted. 
 (Here paste copy of notice posted.) 
 
 (Signature.) 
 
 Subscribed and sworn to before me this day of 
 
 , A. D. 19.. 
 
 Notary Public, 
 
 County, Michigan. 
 
 My commission will expire , A. D. 19. .. 
 
 CIRCUIT COURT COMMISSIONER'S REPORT OF SALE. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 In pursuance and by virtue of a decree of this court, made 
 
 in the above cause, bearing date the day of , 
 
 in the year one thousand nine hundred and , by which 
 
 it was, among other things, ordered, adjudged and decreed, 
 that all and singular the mortgaged premises mentioned in the 
 bill of complaint in this cause, and h-ereinafter described, or so 
 much thereof as might be sufficient to raise the amount due to 
 the complainant, for the principal, interest (taxes, insurance) 
 and costs in this case, and which might be sold separately with- 
 out any material injury to the parties interested, be sold at 
 public auction, by or under the direction of a circuit court 
 
 commissioner of county, Michigan, at any time after 
 
 the day of , in the year one thousand nine 
 
 hundred and : That the said sale be made in the 
 
 county where the said mortgaged premises or the greater part 
 thereof are situated: That the commissioner give public notice 
 of the time and place and such sale, according to the statute 
 and the course and practice of this court and that the complain- 
 
484 stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 
 
 ant or any of the parties to this cause might become the pur- 
 chaser; and that the said commissioner execute a deed or deeds 
 to the purchaser or purchasers of the mortgaged premises on 
 the said sale, and that the said commissioner, out of the pro- 
 ceeds of said sale, pay to the complainant or solicitor 
 
 costs in this suit to be taxed, and also the amount so 
 
 reported due as aforesaid, together with interest thereon from 
 date of said report, or so much thereof as the purchase money 
 of the mortgaged premises will pay of the same; and that the 
 said commissioner take receipts for the amount so paid, and 
 file the same with his report; and that he bring the surplus 
 moneys arising from said sale, if any there be, into court with- 
 out delay to abide the further order of this court; and that if 
 the moneys arising from said sale be insufficient to pay the 
 amount so reported due to the complainant with interest and 
 costs and expenses of sale as aforesaid, that said commissioner 
 specify the amount of such deficiency in his report of said sale. 
 
 I, the subscriber, said circuit court commissioner, 
 
 do respectfully certify and report, that having been charged by 
 the solicitor for the complainant with the execution of said 
 decree, 1 advertised said premises to be sold by me at public 
 auction, to the highest bidder, at the front door of the court 
 
 house in the of in said county of , 
 
 (that being the place of holding the Circuit'Oourt for the county 
 
 of ) on the day of , in the year one 
 
 thousand nine hundred and ; that previous to said 
 
 sale I caused notice thereof to be publicly advertised for six 
 successive weeks, as follows, viz : By causing printed notices 
 thereof to be fastened up at least six weeks prior to the day said 
 premises were advertised to be sold, in three public places, in 
 
 the where said premises were to be sold, an affidavit 
 
 showing the fastening up of which notices is hereto annexed, 
 marked "Exhibit A," and made a part of this my report, and 
 by causing a notice of such sale to be printed once in each week 
 during the six successive weeks preceding said sale, in the 
 
 , a public newspaper printed and circulating in said 
 
 county of as appears by affidavit annexed to this re- 
 port, marked "Exhibit B," which notice contained a descrip- 
 tion of the mortgaged premises. 
 
 And I do further report, that on the said day of 
 
 , in the year one thousand nine hundred and , 
 
 the day on which the said premises were so advertised to be 
 sold as aforesaid, I attended at the time and place fixed for 
 
 said sale , and exposed said premises for sale at public 
 
 auction or vendue to the highest bidder; and the said premises 
 
 were then and there fairly sold and struck off to 
 
 for the sum of , he being the highest bidder therefor, 
 
 and that being the highest sum bid. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 485 
 
 And I do further certify and report, that I have executed, 
 acknowledged and delivered to the said purchaser the usual 
 commissione-r's deed for said premises and have endorsed there- 
 on the time when the same will become operative and have 
 deposited the same in the office of the register of deeds of said 
 county of , the complainant having produced a certifi- 
 cate of the enrollment of the final decree in said cause, which 
 is hereunto annexed marked "Exhibit C," and have paid over 
 or disposed of the purchase money, or proceeds of said sale, as 
 follows, viz: I have paid to the solicitor for the complainant 
 
 the sum of , being the amount of costs of this suit as 
 
 taxed, together with interest thereon from the date of said tax- 
 ation to the day of the sale, and have taken a receipt therefor, 
 which is hereto annexed. 
 
 I have also retained in my hands the sum of , being 
 
 the amount of my fees and disbursements on said sale, as will 
 appear by reference to the statement thereof, annexed to this 
 my report, and to which I refer. 
 
 And I do further certify and report, that I have paid to the 
 
 solicitor^ for the complainant the further sum of and 
 
 have taken a receipt therefor, which is hereto a-nnexed.. 
 
 And I do further certify aad report, that the moneys arising 
 from said sale, are insufficient (or more than sufficient) to pay 
 the amount so reported due to the complainant with interest, 
 costs and expenses of sale as aforesaid, and I hereby specify 
 the amount of such deficiency (or surplus) to be, and the same 
 is the sum of 
 
 And I do further certify and report, that the premises so sold 
 and conveyed as aforesaid were described in said decretal order 
 and in the deed so executed by me as aforesaid as foUows, viz. : 
 (insert description of each parcel sold and to whom sold). 
 (Title of court and cause.) 
 
 Eeceived, this day of , A. D. 19 . . , of 
 
 , the commissioner who made the sale of the mortgaged 
 
 premises in said cause, dollars, said sum being part 
 
 of the proceeds of said sale and being the amount of complain- 
 ant's costs of suit as taxed, with interest thereon to date of sale. 
 
 Solicitor for Complainant. 
 (Title of court and cause.) 
 
 Received, this day of , A. D. 19 . . , of 
 
 , the commissioner who made the sale of the moa-tgaged 
 
 premises in said cause, dollars, said sum being a part 
 
 of the proceeds of said sale, and being the amount remaining 
 therof after deducting therefrom the complainant's costs of 
 suit as taxed, and the expenses of said sale. 
 
 Solicitor for Complainant. 
 
486 stage's MICHIGAN CHANCEKY PRACTICE AND FORMS 
 EECAPITDLATION. 
 
 $ Principal and interest and other moneys due at 
 
 date of sale. 
 
 $ Cost and interest due at date of sale. 
 
 $ Commissioner's fees, costs and expenses of sale. 
 
 $ Total amount due at date of sale. 
 
 $ Amount realized on sale of premises. 
 
 $ Amount of deficiency {or, surplus) reported. 
 
 $ Amount paid to complainant's solicitor on debt. 
 
 $ Amount paid to complainant's solicitor on costs. 
 
 $ Amount of commissioner's fees, costs and expenses 
 
 of sale retained. 
 Dated , A. D. 19... 
 
 Circuit Court Commissioner. 
 County, Michigan. 
 
 FEES. 
 
 Drawing advertisement, (notice of sale) $2.00 
 
 Drawing advertisement, (notice of adjournment of sale) . 2.00 
 
 Posting notices of sale 1.00 
 
 Mileage miles, at IG cents a mile 
 
 Posting notices of adjournment of sale, .^r 1.00 
 
 Mileage miles, at 10 aents a mile 
 
 Attending at time and place of sale, and adjourning the 
 
 same 2.00 
 
 Mileage both ways, miles, at 10 cents a mile .... 
 
 Attending and making sale 3.00 
 
 Mileage both ways, miles, at 10 cents a mile .... 
 
 Executing and making deed at 2,00 
 
 Certifying payment 2.00 
 
 Report of sale folios at 15 cents, a folio 
 
 Total fees, $ 
 
 DISBURSEMENTS. 
 
 Printer's bill, (publication of notice of sale) 
 
 Printer's bill, (publication of notice of adjournment of 
 
 sale) 
 
 Proof of publication of notice of sale 25 
 
 Proof of publication of notice of adjournment of sale 25 
 
 Certificate of acknowledgement 25 
 
 Total Disbursements 
 
 Total Fees 
 
 Total Distursembents 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 487 
 
 CIRCUIT COURT COMMISSIONER'S DEED ON SALE. 
 
 This Indenture, made the day of , in the 
 
 year of our Lord one thousand nine hundred and . .' , 
 
 between , a circuit court commissioner in and for the 
 
 county of , State of Michigan, residing in the said 
 
 county, party of the first part, and , part. . of the second 
 
 part, witnesseth: Whereas, at a session of the circuit court 
 
 for the county of , In Chancery, at the court house, in 
 
 the , in said county, on the day of , 
 
 in the year one thousand nine hundred and , it was 
 
 among other things . ordered, adjudged and decreed by said 
 court, in a certaiu cause then pending in said court, between 
 A. B., complainant and C. D., and (name all the defendants) 
 defendants brought for the purpose of foreclosing a certain 
 
 mortgage, bearing date on the day of , A. D. 
 
 19. ., and recorded in the office of the register of deeds in and 
 
 for the county of , State of Michigan, in liber 
 
 of mortgages, on page on the day of 
 
 That all and singular the mortgaged premises mentioned and 
 
 set forth in the bill of complaint in said cause or so 
 
 much thereof as should be necessary to satisfy the amount due 
 said complainant for principal and interest, and costs of the 
 
 said suit, be sold by or under the direction of , a circuit 
 
 court conunissioner . in and for said county, at public auction, 
 iu the county where the said mortgaged premises, or the greater 
 part thereof, are situated, the said commissioner first giving 
 public notice of the time and place of said sale, according to 
 the course and practice of said court. 
 
 And whereas, the said party of the first part to these pres- 
 ents, in pursuance of the order and decree of the said court, 
 
 did, on the day of , in the year one thousand 
 
 nine hundred and , sell at public auction, at the 
 
 , in the county of , State of Michigan, the said 
 
 mortgaged premises hereinafter particularly described having 
 first given the previous notice of the time and place of said sale, 
 as required by the order and decree aforesaid, and the statutory 
 provisions in that behalf, at which sale the said premises were 
 sold and struck off to the said party of the second part to these 
 presents, for the sum of dollars, that being the high- 
 est sum bidden for the same, and he being the highest bidder 
 therefor. 
 
 Now, therefore, this indenture witnesseth, that said 
 
 a circuit court commissioner for the county of and 
 
 State of Michigan, and the party of the first part to these pres- 
 ents, in order to carry into effect the said sale so made as afore- 
 said, in pursuance of the said decree and order of said court, 
 and also by virtue of the statute in such case made and pro- 
 vided, and in consideration of the premises and of the sum of 
 
488 stage's MICHIGAN CHANCEEY PEACTICB AND FORMS 
 
 dollars, paid by the said party of the second part to 
 
 these presents, to the said party of the first part hereto, the 
 receipt whereof is hereby confessed and acknowledged, hath 
 granted, bargained, sold, aliened, released, conveyed and con- 
 firmed, and by these presents doth grant, bargain, sell, alien, 
 release, convey and confirm unto the said party of the second 
 part, and to heirs and assigns, forever, all the follow- 
 ing lands and premises situated in the of , 
 
 in county and State of Michigan, and known and de- 
 scribed as follows, to- wit: (insert description). 
 
 Together with all and singular the rights, title, easements, 
 p4"ivileges, hereditaments and appurtenances to the same belong- 
 ing or in anywise appertaining : To have and to hold the said 
 premises above described and hereby intended to be granted 
 
 and conveyed unto the said party of the second part, 
 
 heirs and assigns, to and only proper use, 
 
 benefit and behoof, forever. 
 
 In witness whereof, the said party of the first part, circuit 
 court commissioner as aforesaid, has hereunto set his hand and 
 seal the day and year first above written. 
 Signed, sealed and delivered in presence of 
 
 : , (L.S.) 
 
 State of Michigan, \ 
 
 County of , j **• 
 
 On this day of , A. D. 19. ., before the 
 
 undersigned personally appeared , a circuit court com- 
 missioner for the county of , in said state, known to 
 
 me to be the person described in, and who executed the above 
 indenture, and acknowledged that he executed the same freely 
 for the uses and purposes therein mentioned. 
 
 State of Michigan, | 
 
 County of , \ ^^■ 
 
 I do hereby certify that the within deed will become opera- 
 tive at the expiration of six months from the day of 
 
 , A. D. 19. ., unless the premises therein described are 
 
 redeemed according to the statute in such case made and pro- 
 vided. 
 Dated this day of , A. D. 19. .. 
 
 Circuit Court Commissioner in and for the 
 County of , Michigan. 
 
stage's MICHIGAiT CHANCEKY PEACTICE AND FOEMS 489 
 
 ORDER OP CONFIRMATION OP SALE. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On filing the circuit court commissioner's report of sale of 
 the premises described in the bill of complaint entered in this 
 cause, and on motion of , Esq., solicitor for complain- 
 ant :_ It is ordered that said sale and all things thereto per- 
 taining be and stand confirmed, unless cause to the contrary be 
 shown within eight days from the date of this order. 
 
 PETITION FOR WRIT OP ASSISTANCE 
 IN FORECLOSURE. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 The petition of A. B., of , respectfully shows unto 
 
 the court : 
 
 1. That the bill of complaint in the above entitled cause 
 
 was filed by the complainant therein on or about the 
 
 day of , A. D. 19 . . , against the above named 
 
 defendants therein for the foreclosure of a certain indenture 
 of mortgage made by the defendants, C. D. and M. D. to 
 
 upon certain real estate in said county, described in 
 
 said mortgage as follows : (insert description of land), and that 
 thereafter such proceedings were had that afterwards and on 
 
 the day of , A. D. 19 . . , this court made and 
 
 rendered a decree in the said above entitled cause bearing date 
 
 the said day of , A. D. 19 . . , wherein and 
 
 whereby it was among other things ordered, adjudged and de- 
 creed * that all and singular the said mortgaged land and 
 premises mentioned in the said bill of complaint (or if the decree 
 ordered that only a part of the mortgaged premises should he 
 sold) that all that part and parcel of the said mortgaged land 
 and premises mentioned in the said bill of complaint and de- 
 scribed as follows, (describe part decreed to he sold) should be 
 sold at public auction or vendue to the highest bidder, by or 
 under the direction of a circuit court commissioner of the said 
 
 county of , and also that after t.he expiration of six 
 
 months from the time of such sale (unless the said land and 
 premises should be before then redeemed pursuant to law) that 
 the purchaser at such sale be let into possession thereof, and 
 that any of the parties to this cause who might be in possession 
 of the said premises or any part thereof, and any person or 
 persons who since the commencement of the said suit might 
 have come into possession under them or any of them, deliver 
 possession thereof to such purchaser or purchasers on produc- 
 tion of the circuit court commissioner's deed for such premises 
 
490 stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 
 
 on such sale and a certified copy of the order confirming the re- 
 port of such sale, after such order should have become absolute, 
 as in and by the said decree now remaining of record in this court 
 in this cause, and whereto reference is prayed, will fully appear. 
 
 2. And that afterwards and on the day of 
 
 , A. D. 19 . . , the said land and premises so decreed to 
 
 be sold as aforesaid were duly sold at public auction or vendue, 
 pursuant to and under the said decree, by , Esq., a cir- 
 cuit court commissioner of the said county of , to your 
 
 petitioner for the sum of dollars, that ^eing the high- 
 est sum bid at such sale for the same and your petitioner being 
 the highest bidder therefor; and that the said circuit court 
 commissioner then duly made and executed his deed of convey- 
 ance of the said land and premises and deposited the same with 
 
 the register of deeds of the said county of and the 
 
 said deed is recorded in the office of the said register in liber 
 , of deeds to page , to which record your peti- 
 tioner prays leave to refer. 
 
 3. And that the said circuit court commissioner has duly 
 
 filed his report of such sale in this court on the day 
 
 of , A. T>. 19. ., and that the same has been duly con- 
 firmed by an order of this court bearing date the day 
 
 of , A. D. 19 . . , by which said report it appears among 
 
 other things that the said land and premises was duly sold to 
 your petitioner in manner aforesaid, and that the said circuit 
 court commissioner has made, executed and deposited his deed 
 to your petitioner as above set forth, and that thereupon an 
 
 order was entered bearing date the day of , 
 
 A. D. 19 . . , that the said report and the said sale and all things 
 thereto pertaining should be and stand confirmed, Tinless cause 
 to the contrary be showq within eight days from the date of said 
 order, as in and by the said report and order of confirmation 
 now remaining on file and of record in this cause, and whereto 
 reference is prayed, will fully appear; and your petitioner 
 further shows that the said order of confirmation has become 
 absolute. 
 
 4. And your petitioner further shows that more than six 
 months have elapsed since the time of the making of such sale 
 and since the time when the said deed was so deposited with the 
 said register of deeds, and that the said lands and premises 
 have not nor has any part thereof, been redeemed from such 
 sale, and that the said deed has become operative and has vested 
 in your petitioner all the right, title and interest which the 
 said mortgagors had in the said land at the time of the execu- 
 tion of the said mortgage, or at any time thereafter, and that 
 your petitioner is now the owner thereof. 
 
 5. And that your petitioner has not been let into possession 
 of the said land and premises so sold to him as aforesaid or of 
 
stage's MICHIGAN CHANCEEY PKACTICB AND FORMS 491 
 
 any part thereof, and that the same and the whole thereof are 
 
 now, and for the months now last past have been, in 
 
 the possession of the defendant, C. D., and that since the expir- 
 ation of the said six months and on the day of , 
 
 A- D. 19 . . , your petitioner applied to the said C. D. who was 
 then and still is in possession of said premises, and then produced 
 and showed to the said C. D. the said deed of the said circuit 
 court commissioner and also a duly certified copy of the said 
 order of this court confirming the report and sale of said prem- 
 ises, and then requested the said defendant, C. D. to let your 
 petitioner into possession of the said land and premises, but so 
 to do the said defendant, C. D. then absolutely refused and still 
 refuses and continues to withhold possession thereof from your 
 petitioner. 
 
 Wherefore your petitioner prays that the most gracious writ 
 of assistance of the people of the State of Michigan, may be 
 issued out of and under the seal of this honorable court and 
 directed to the sheriff of the said county of , com- 
 manding bJTn to enter upon the said land and premises and 
 eject and remove therefrom the said C. D. and each and every 
 person who, since the commencement of the said suit, has come 
 into the possession thereof or of any part thereof, and each and 
 every other person who may be found in possession of the said 
 premises or any part thereof, by, through or under the said de- 
 fendants in this cause or any or either of them, and that he put 
 your petitioner, his attorneys and agents, in the full, peaceable 
 and quiet possession of the said premises without delay, and 
 that he keep, maintain and defend your petitioner in such pos- 
 session from time to time forever thereafter. 
 
 And that your petitioner may have such further or other 
 relief as shall be agreeable to equity. 
 
 And your petitioner will ever pray, etc., 
 
 A. B. 
 
 Solicitor for Petitioner. 
 
 MOTION FOR WRIT OF ASSISTANCE. 
 (Title of court and cause.) 
 Now comes A. B., the purchaser at the sale of the mortgaged 
 
 premises in this cause, by , his solicitor, and moves the 
 
 court now here for an order that a writ of assistance issue 
 to put him in possession of the said premises, for the reason that 
 the time for the redemption of said mortgaged premises has 
 elapsed and the same have not been redeemed, and that posses- 
 sion thereof has been refused to the said A. B. by C. D., one of 
 the above named defendants who is now in possession thereof, 
 although he, the said A. B., has produced to him, said C. D., the 
 deed executed by the circuit court commissioner making such 
 
492 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 sale and a certified copy of the order confirming the same after 
 such order had become absolute. 
 
 This motion is founded On the records and files of this court 
 in this cause and on the afiSdavit of hereto annexed. 
 
 Solicitor for A. B. 
 
 (The affidavit should state the facts of demand and refusal 
 of possession suistantially as in the fifth paragraph of the fore- 
 going petition.) 
 
 [Where the party withholding possession is a party to the 
 suit, the motion may be made ex parte, otherwise it must be on 
 notice and service of copy of affidavits.] 
 
 ORDER FOR WRIT OF ASSISTANCE. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause it appearing by the petition of duly 
 
 verified {or, by the affidavit of on file) that more than 
 
 six months have elapsed since the sale under the decree of this 
 court of the mortgaged premises mentioned in the bill of com- 
 plaint in this cause, and that the said premises have not been 
 redeemed, and that such sale has been confirmed by an order 
 
 of this court which has becoine absolute, and that , the 
 
 purchaser of the said mortgaged premises, has not been let into 
 possession thereof and that the said premises are now in the 
 
 possession of the above named defendant, , and that 
 
 since the expiration of the said six months the said , 
 
 the purchaser as foresaid, has produced to the said 
 
 the deed of the circuit court commisioner who made the said 
 sale together with a duly certified copy of the said order of 
 confirmation, made after the said order had become absolute, 
 and demanded possession of the said land, and that such posses 
 
 sion has been and is withheld and refused by the said 
 
 who is now in possession of said land : 
 
 On motion of , Esq., solicitor for the said 
 
 the purchaser as aforesaid. It is ordered that a writ of assist- 
 ance issue, directed to the sheriff of the said county of 
 
 commanding him forthwith to enter upon the said mortgaged 
 premises and eject and remove therefrom the said defendant, 
 , and each and every person who, since the commence- 
 ment of this suit, has come into the possession of the said prem- 
 ises or any part thereof, by, through or under the said defend- 
 ant, , or any of the defendants iu this cause, and that 
 
 he put the said (name the purchaser), his attorneys, agents or 
 assignees in the full peaceable and quiet possession of the said 
 premises without delay, and him, the said , in such 
 
stage's MICHIGAN CHANCERY PRACTICE AND POEMS 493 
 
 possession thereof from time to time thereafter maintain, keep 
 and defend. 
 
 The said premises axe described as follows: (insert descrip- 
 tion). 
 
 Circuit Judge. 
 
 WEIT OF ASSISTANCE. 
 State of Michigan, ) 
 
 Comity of P*- 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 In the name of the people of the State of Michigan. 
 
 To the Sheriff of the County of , Greeting: 
 
 Whereas, on the day of , A. D. 19. ., by 
 
 a decree rendered in our circuit court for the county of 
 
 : in chancery ia an action there depending, in said 
 
 court, wherein complainant, and defendant. 
 
 It was, among other things, adjudged and decreed that, all and 
 singular, the mortgaged premises mentioned in the bill of com- 
 plaint therein, be sold at public auction by or under the direc- 
 tion of one of the circuit court commissioners of this county; 
 and also that the purchaser be let into possession thereof, and 
 that any of the parties to this cause, who may be in possession 
 of said premises, or any part thereof, and any person who, 
 ance the commencement of this suit, has come into possession 
 under them, or either of them, deliver possession thereof to such 
 purchaser or purchasers after the expiration of six months from 
 the time of such sale on production of the commissioner's deed 
 for such premises, and a certified copy of the order confirming 
 the report of such sale, after such order should have become 
 absolute, unless the said premises should have been sooner re- 
 deemed. 
 
 And, whereas, the said commissioner has duly filed his report 
 of said sale, and the same has been duly confirmed by an order 
 of this court, from which report it appears that the commis- 
 sioner's deed upon the sale of the premises hereinafter described, 
 
 to has been executed and acknowledged, and delivered 
 
 to the said purchaser as aforesaid, and that the said 
 
 has not been let into, nor taken possession of the said 
 
 premises, according to the tenor of said decree, notwithstand^ 
 ing that six months have elapsed since the time of such sale and 
 the said premises have not been redeemed therefrom and the 
 
 said purchaser has since the expiration of the said six 
 
 months produced and shown to the said , who is now 
 
 in possession of said premises, a certified copy of said order con- 
 firming the report of sale, after such order has become absolute 
 
494 stage's MICHIGAN CHANCEEY PRA.CTICE AND FOEMS 
 
 and has also produced and shown to the said the said 
 
 deed of the premises executed in pursuance of the said decree. 
 
 Therefore we command you, that you forthwith enter upon 
 the said premises and eject and remove therefrom the said 
 
 and any person who since the commencement of this 
 
 action has come into the possession of said premises or any 
 part thereof, and any other person or persons who may be 
 found in possession of said premises, or any part thereof, by, 
 through, or under said defendant, or either of them, and detain- 
 ing the same or any part thereof, against the said , 
 
 and that you put the said , attorneys, agents or as- 
 signees in the full, peaceable and quiet possession of the said 
 premises without delay, and keep and maintain the said 
 
 in such possession according to the tenor and true 
 
 intent of said decree. 
 
 The said premises are described as follows: (insert descrip- 
 tion). 
 
 Witness, the honorable , judge of the th 
 
 judicial circuit at , in the said county of , 
 
 this day of '. , A. D. 19. .. 
 
 (Seal.) Eegister. 
 
 .* ' "' 
 
 Complainant's Solicitor. 
 
 OFFICER'S RETURN. 
 
 I have caused the within named (insert name of purchaser) 
 
 to have possession of the premises described within, 
 
 with the appurtenances, as by the said writ I am within com- 
 manded. 
 
 Served on the day of , A. D. 19 . . , and re- 
 turned on the day of , A. D. 19 . . . 
 
 Sheriff. 
 
 PETITION FOR EXECUTION FOR DEFICIENCY. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 The petition of the above named complainant, A. B., respect- 
 fully shows unto the court: 
 1. That he is the complainant in the above entitled cause 
 
 and that heretofore and on the day of , 19 . . , 
 
 at the of in the coijnty of , in pur- 
 suance of the decree of foreclosure and sale theretofore and on 
 
 the day of , A. D. 19 . . , made in this cause, 
 
 the land and premises decreed and ordered to be sold in and by 
 such decree were sold at public auction by , Esq., a cir- 
 
stage's MICHIGAN OHANCEBY PBACTlCE AND FORMS 495 
 
 ouit court commissioner of the said county of , for the 
 
 sum of dollars, and that the report of the said circuit 
 
 court commissioner of the said sale and of his doings therein 
 
 has been duly made and filed in this court on the day 
 
 of , A. D. 19 . . , and has been duly confirmed ; and that 
 
 from the said report it appears that the amount realized from 
 the said sale of the land and premises aforesaid was insufficient 
 to pay the sum in the said decree ordered and decreed to be 
 paid, and that there was at the date of the said report still due 
 and unpaid to your petitioner, the said complainant, the sum of 
 
 dollars, over and above all sums paid to him from the 
 
 proceeds of such sale, as in and by the said report of the said 
 circuit court commissioner now on file ia this court, and where- 
 to reference is prayed, fully appears. 
 
 2. And your petitioner further shows unto the court that 
 
 the said sum of dollars, the deficiency aforesaid, still 
 
 remains wholly unpaid and is, with the interest thereon from 
 the date of the said, report, now due and owing to your peti- 
 tioner, and that your petitioner is now justly entitled thereto. 
 
 I. Your petitioner therefore prays that the said defendant, 
 C. D., may be adjudged and decreed to be personally liable for 
 the indebtedness in this case, and that he be decreed forthwith 
 to pay to your petitioner the amount of the deficiency aforesaid, 
 with interest thereon at the rate of per cent per an- 
 num from the date of the said report, and that your petitioner 
 may have execution therefor. 
 
 And your petitioner will ever pray, etc. 
 
 A. B. 
 
 Solicitor for Petitioner. 
 
 (Verification.) 
 
 DECRETAL ORDER FOR EXECUTION 
 FOR DEFICIENCY. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard on the petition of the above 
 named complainant, for an execution for the collection of the 
 deficiency in the amount realized by the sale of the mortgaged 
 property in this cause to satisfy the amount decreed to be due 
 to the complainant, together with the costs of the said suit and 
 5 « the expenses of such sale. And the report of the circuit court 
 commissioner, who conducted the sale of the premises described 
 in the decree of foreclosure and sale heretofore made in this 
 cause, of such sale and of his doings thereon having been duly 
 
 made and confirmed, which report bears date the day 
 
 of , A. D. 19. ., from which it appears that the amount 
 
496 stage's MICHIGAN CHANCEEY PEAOTICE AND FOEMS 
 
 realized from the sale of the premises aforesaid was insuffi- 
 cient to pay the sums in said decree ordered and decreed to be 
 paid, and that there was at the date of such report due and un- 
 paid to the said complainant over and above the amount paid 
 to him by the said circuit court commissioner, the sum of 
 
 dollars ; and on filing the petition, duly verified, of 
 
 the said complainant, showing that such deficiency remains due 
 and unpaid and that he, said complainant, is entitled thereto* 
 and praying that execution may issue therefor. 
 
 On motion of , Esq., solicitor for the said complain- 
 ant, and , Esq., of counsel for the defendant, C. D., 
 
 having been heard in opposition thereto {or, and on filing due 
 proof of due service of notice of the hearing of said petition on 
 the defendant, C. D., and no one appearing in opposition there- 
 to) : It is ordered and decreed that the said defendant, C. D., 
 is, and is hereby adjudged and decreed to be personally liable 
 for the debt mentioned and set forth in the bill of complaint in 
 this cause, and that he do forthwith pay to- the complainant the 
 
 said sum of dollars, being the amount of the deficiency 
 
 so as aforesaid reported to be due and unpaid, with interest 
 
 thereon at th* rate of per cent per annum from the 
 
 date of the said report, and that the complainant have execution 
 thereof. 
 
 I ss. 
 
 Circuit Judge. 
 
 EXECUTION FOR DEFICIENCY. 
 State of Michigan, 
 
 County of 
 
 In the Name of the People of the State of Michigan: 
 
 To the sheriff of the county of , Greeting : 
 
 Whereas on the day of , in the year one 
 
 thousand nine hundred and , by a certain decree made 
 
 in the circuit court for the county of : In Chancery, 
 
 at a session of the said court then held at the court house in 
 
 the of , in the said county of , in a 
 
 certain cause therein pending, wherein A. B. is complainant 
 and C. D. and E. F. are defendants, it was, among other things, 
 ordered, adjudged and decreed that all and singular the mort- 
 gaged premises mentioned in the bill of complaint in the said 
 cause, or so much thereof as might be sufficient to raise the 
 amount due to the complainant for principal, interest and costs 
 in the said cause, and which might be sold separately without 
 material injury to the parties interested, be sold at public 
 auction or vendue by or under the direction of a circuit court 
 
 commissioner of the said county of , and that such 
 
 circuit court commissioner out of the proceeds of such sale, 
 retain his fees, disbursements and commissions on such sale and 
 
stage's MrCHIGAN CHANCEBY PRACTICE AND POEMS 497 
 
 pay to the complainant or his solicitor his costs in the said suit, 
 and also the amount decreed to be due to him upon his mort- 
 gage together with interest thereon at the rate of per 
 
 cent per annum from the date of the said decree, or so much 
 thereof as the proceeds of such sale would pay of the same, and 
 that the said circuit court commissioner bring the surplus money 
 arising from such sale, if any, into court, and that if the 
 moneys arising from such sale should be insufficient to pay the 
 amount decreed to be due to the complainant, with interest and 
 costs and expenses of such sale, that the said circuit court com- 
 missioner specify the amount of such deficiency in his report of 
 such sale ; and that on the coming in and confirmation of such 
 report the defendant, C. D., who is personally liable for the 
 payment of the debt secured by the mortgage, should pay to 
 the complainant the amount of such deficiency with interest 
 thereon from the date of said last mentioned report at the rate 
 aforesaid, and that the said complainant should have execution 
 therefor; and whereas, the said circuit court commissioner has 
 duly made such sale and has duly filed his report of such sale 
 and the same has been duly confirmed, from which report it ap- 
 pears that the money arising from such sale was insufficient to 
 pay the amount decreed to be paid to the said complainant with 
 the interest and costs and the expenses of such sale, and that 
 the amount of the deficiency thereof is the sum of dol- 
 lars, and whereas, also, by a decretal order of the said court 
 
 made in the said cause on the day of , in the 
 
 year one thousand nine hundred and on the petition 
 
 of the said complainant, the said defendant, C. D., was ad- 
 judged and decreed to be personally liable to pay the debt men- 
 tioned in the bill of complaint in this cause, and was ordered, 
 adjudged and decreed to pay the said last mentioned sum with 
 interest from the date of the said last mentioned report forth- 
 with to the complainant, and whereas, the said defendant, C. D., 
 has failed to pay the same or any part thereof to the said com- 
 plainant : 
 
 Now, therefore, in order that full and speedy justice may be 
 done in the premises, you, the said sheriff, are hereby com- 
 manded that of the goods and chattels, and for want thereof, of 
 the lands and tenements of the said defendant, C. D., within 
 
 your county, you cause to be made the said sum of 
 
 dollars, being the amount of the deficiency aforesaid, with in- 
 terest thereon at the rate of per cent per annum from 
 
 of the said report of sale of the said circuit court commissioner, 
 
 the day of , A. D. 19 . . , that being the date 
 
 and have you that money before the said Circuit Court for the 
 
 county of , in Chancery, on the day of 
 
 , in the year one thousand nine hundred and , 
 
498 stage's MICHIGAN CHAKCEKY PBACTICE AND EOEMS 
 
 to render to the said complainant, A. B., according to the decree 
 and decretal order aforesaid ; and have you then there this writ. 
 Hereof fail not, but of this writ, with a certificate of the 
 manner in which you have executed the same, make due return. 
 
 Witness the Hon , circuit judge of the 
 
 th judicial circuit, and the seal of the said 
 
 (Seal) coutt, at the of in said county of 
 
 , this day of , ia the year 
 
 one thousand nine hundred and 
 
 Register. 
 Solicitor for Complainant. 
 
 Foreclosure of Tax Lien by State. 
 
 § 42Q. In the State of Michigan taxes become a lien 
 upon the lands upon which they are lawfully assessed 
 on the first day of December of each year in which the 
 assessment is made,* and if unpaid such lien is to be 
 enforced by proceedings in chancery, which proceedings 
 are wholly regulated by statute. 
 
 When the township treasurer or other collecting 'officer 
 has made his return of delinquent taxes to the county 
 treasurer and the county treasurer has made his state- 
 ment thereof to the auditor general in the month of May 
 following the township treasurer's return, all the lands 
 so returned to the auditor general on which the taxes re- 
 main unpaid for one year thereafter are subject to dis- 
 position, sale and redemption.^ The proceedings are 
 prescribed by statute as follows : 
 
 Section 61. In sufBcient time before the time fixed 
 herein for the annual tax sale, the auditor general shall 
 prepare and file in the office of the county clerk in each 
 county in which lands are to be sold under the provision 
 of this act, a petition addressed to the Circuit Court for 
 said county in chancery, stating therein by apt reference 
 to lists or schedules annexed thereto a description of all 
 lands in such county upon which taxes have remained 
 unpaid for more than one year after they were returned 
 as delinquent, and the total amount of such taxes, with 
 
 1— C. L., Sec. 3803. 2— C. I/., See. 3889. 
 
STAX3E*B MICHIGAN CHA.NCEl&Y PEACTICE AND POEMS 499 
 
 interest computed thereon to the first day of May follow- 
 ing the filing of said petition, and a collection fee of four 
 per cent extended separately against each parcel of land, 
 and he shall include with and add to such total amount 
 against each parcel, one dollar for expenses. Such peti- 
 tion shall pray a decree in favor of the State of Michi- 
 gan against said land for the payment of the several 
 amounts so specified therein, and in default thereof that 
 such lands be sold. It shall be signed by the auditor gen- 
 eral and need not be otherwise verified and shall be 
 deemed equivalent to a bill in chancery to enforce the 
 lien for such taxes, interest and charges averring their 
 validity, that they have not paid, and praying for a sale 
 to pay such lien. 
 
 Lands heretofore or hereafter bid off in the name of 
 the state and thus held, and on which taxes have been 
 assessed subsequent to the tax for which said lands were 
 sold and purchased by the state, shall be included in such 
 petition for all such subsequent taxes which have re- 
 mained unpaid for more than one year after they were 
 returned as delinquent. The petition shall be in a sub- 
 stantial record book with the lists of lands and taxes 
 assessed following the same therein. Such record shall 
 be ruled with appropriate columns, one containing a de- 
 scription of the lands, with columns for the total amount 
 of taxes, interest and charges claimed due on each parcel 
 of land opposite thereto, also with blank columns, one 
 with heading, "Parts of descriptions paid before sale or 
 withheld" another "by whom paid" another "amount 
 decreed against lands" another "special orders" another 
 "interest on each parcel sold" another "name of pur- 
 chaser" another ^'address of purchaser" another "num- 
 ber of certificate" another "remarks." The auditor 
 general jn.8ij add such other columns as he may find 
 necessary. The word "petition" shall be construed to 
 include the lists annexed thereto. Said record shall be 
 called "tax record." Parts of descriptions, of land upon 
 which taxes are paid before sale, or which are withheld 
 from sale, the amount paid op taxes before sale, the 
 amount of taxes, interest, and charges decreed against 
 
500 stage's MICHIGAN CHANCERY PEACTIOE AND POEMS 
 
 lands, special orders made by tlie court relating to any 
 parcel of land or any tax, the interest in each parcel of 
 land sold, the name of each purchaser and his address, 
 and the number of certificate of sale, shall be entered in 
 said record under their appropriate headings opposite to 
 the description of lands affected thereby. "^ 
 
 §421. Section 61a. As soon as the auditor general's 
 petition with a list of delinquent tax lands is filed with 
 the register in chancery under the provisions of section 
 sixty-one of this act, and not less than thirty days before 
 the date fixed for the annual tax sale the county treas- 
 urer shall notify the owner or owners so far as possible 
 of each piece or parcel of property whose taxes are then 
 delinquent and subject to sale at the next ensuing annual 
 tax sale by mailing to the last known address of such 
 owner or owners a notice in substantially the following 
 form "Sir, you are hereby notified that sale of lands for 
 
 delinquent taxes of 19 , and prior years will be made 
 
 at the county treasurer's office on the day of May 
 
 19 A list of such lands with year's taxes is pub- 
 lished in the , a newspaper published at , 
 
 Michigan. Whether you are uncertain of having paid 
 your taxes or not, you should avoid the possibility of 
 sale by procuring a copy of such paper and examining 
 the descriptions to ascertain if your lands are to be 
 sold. Payment or redemption may be made of the county 
 treasurer at any time prior to the day of sale. Very 
 
 truly yours, County Treasurer." The cost of 
 
 such printed notices shall be paid to the county treasurer 
 out of the general or contingent fund of the county on 
 allowance by the board of supervisors or board of county 
 auditors. Provided that failure to receive or serve such 
 notice shall not invalidate the proceedings taken under 
 the auditor general's petition and decree of the Circuit 
 Court in foreclosure and sale of the lands for taxes.* 
 
 3 — C. L., See. 3884, as amended by 4 — ^Aot No. 234 Pub. Acts of 1905, 
 Act No. 262 Pub. Acts of 1899, Sec. p. 339. 
 61, p. 423. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 5Q1 
 
 § 422. Section 62, It shall be the duty of the county 
 clerk on the filing of the said petition, to at once present 
 the same to the circuit judge of the county in which said 
 delinquent tax lands are situated, and it shall be the 
 duty of said circuit judge to make an order in the form 
 herein prescribed which order when so made and signed 
 by the circuit judge, shall be countersigned by the county 
 clerk as register in chancery, and recorded by htm in the 
 proper books of his office, and thereupon it shall be the 
 duty of said county clerk to immediately make a true 
 copy of said order and transpiit the same to the auditor 
 general. Said, order shall be substantially in the follow- 
 ing form: 
 
 State of Michigan, ) 
 
 County pf 5 **• 
 
 The Circuit Court for the Comity of : 
 
 In Chancery. 
 
 In the matter of the petition of , auditor general of 
 
 the State of Michigan, for and in behalf of said state, for the 
 sale of certain lands fpr tS,xes assesed thereon: On reading 
 and filing the petition of the auditor general of the State of 
 Michigan: praying for a decree in favor of the State of Mich- 
 igan, against each parcel of land therein described, for tfie 
 amounts therein specified claimed to be due for taxes, interest 
 and charges on each such parcel of land and that such lands be 
 sold for the amounts so claimed by the State of Michigan. It 
 is ordered that said petition will be brought on for hearing and 
 
 decree at the term of this court to be held at 
 
 in the county of , State of Michigan, on the 
 
 day of , A. D. 19 . . , at the opening of the court on that 
 
 day and that all persons interested in such lands or any part 
 thereof desiring to contest the lien claimed thereon by the State 
 of Michigan, for such taxes, interest and charges, or any part 
 thereof, shall appear in said court, and file with the clerk thereof 
 acting as register in Chancery, their objections thereto, on or 
 before the first day of the term of this court above mentioned, 
 and that in default thereof the same will be taken as confessed 
 and a decree will be taken and entered as prayed for in said 
 petition. And it is further ordered that in pursuance of said 
 decree the lands described in said petition for which a decree of 
 sale shall be made, will be sold for the several taxes, interest 
 and charges thereon as determined by such decree, on the first 
 Tuesday of May thereafter, beginning at t6n o'clock A, M. on 
 said day, or on the day or days subsequent thereto as may be 
 
502 stage's MICHIGAN CHANCEBY PBACTICE AND FOKMS 
 
 necessary to complete the sale of said lands and of each and 
 every parcel thereof, at the office of the county treasurer or at 
 such convenient place as shall be selected by him at the county 
 
 seat of the county of , State of Michigan : and that the 
 
 sale then and there made will be a public sale, and each parcel 
 described in the decree shall be separately exposed for sale for 
 the total taxes, interest and charges, and the sale shall be made 
 to the person paying the full, amount charged against such 
 parcel, and accepting a conveyance of the smallest individual fee 
 simple interest therein, or if no person will pay the taxes and 
 charges and take a conveyance of less than the entire thereof, 
 then the whole parcel shall be offered and sold. If any parcel 
 of land cannot be sold for taxes, interest and charges, such 
 parcel shall be passed over for the time being and shall, on the 
 succeeding day or before the close qf the sale, be re-offered, and 
 if on such second offer, or during such sale, the same cannot be 
 sold for the amount aforesaid, the county treasurer shall bid 
 off the same in the name of the state. 
 
 Witness the Hon circuit judge and the seal of said 
 
 Circuit Court of county, this day of , 
 
 A. D. 19... 
 
 Circuit Judge. 
 Countersigned , Register." 
 
 Section 63. The newspapers in which such order and 
 petition are to be published shall be designated by the 
 auditor general on or before the first day of September in 
 each and every year and not afterwards unless the pub- 
 lisher of the paper so designated shall fail to accept such 
 designation within fifteen days after the same is made, 
 or shall refuse or neglect to publish and print such 
 order and petition, or unless from any other cause such 
 publication shall become impracticable, in which case 
 the auditor general shall designate some other paper 
 for that purpose before the time limited for comuaencing 
 such publication: Provided that in counties, v^here one 
 or more newspapers have been printed and published 
 more than one year prior to such designation, one of 
 such papers shall be designated for the publication here- 
 in required." 
 
 5 — C. L.., Sea. 3884, as am. by 6— C. L., Sec 
 
 Act No. 262 Pub. Acts of 1899, See, 
 62, p. 424, 
 
stage's MICHIGAN CHANCEEY PBACTICE AND EOEMS 503 
 
 Section 64. In case there is no paper published in such 
 county, or if from any cause no paper can be secured in 
 any county to publish such order and petition the auditor 
 general shall cause such order and petitipn containing 
 the list of lands delinquent for taxes to be printed in 
 proper form for general distribution, and shall furnish 
 the county treasurer with such number of the same as 
 shall be necessary, to furnish each voter at <the last 
 general election in said county with one copy and such 
 county treasurer shall distribute the order and petition 
 in such manner that copies thereof may become public 
 in every township in said county, and shall post or cause 
 to be posted three copies in three public places in each 
 township and shall file affidavits of the posting and dis- 
 tribution of the same in the usual form, in the office of 
 said county treasurer and of the auditor general^ 
 
 § 423. Section 66. The auditor general shall cause a 
 copy of said order and a copy of said petition to be pub- 
 lished at least once in each week for four successive weeks 
 next prior to the time fixed for the hearing thereof in 
 some newspaper published and circulating in the county 
 m which such petition is filed to be selected by the auditor 
 general. Said order and petition shall both be published 
 in 'the same newspaper the order immediately preceding 
 the petition. Provided in such petition it shall be suffi- 
 cient to print against each parcel the "amount of taxes" 
 "interest" "charges" "total" due on each. The cost 
 of such publication shall be paid by the state on the war- 
 rant of the auditor general. The proprietor of such 
 paper shall furnish the proper county treasurer and audi- 
 tor general each with two copies of each issue containing 
 such publication and it shall be the duty of such auditor 
 general and treasurer to carefully examine the notices 
 published and see that they are correct, Any person 
 familiar with the facts may make q.n affidavit as to the 
 publication required. The auditor general shall not pay 
 for any such publication until satisfied that it has been 
 made according to law. The publication of the order 
 
 7— C. L., S^c. 3887. 
 
504 
 
 and petition aforesaid shall be equivalent to a personal 
 service of notice on all persons who are interested in the 
 lands specified in such petition, of the filing thereof, of 
 all proceedings thereon and on (of) the sale of the lands 
 under the decree, and shall give the court jurisdiction to 
 hear such petition, determine all questions arising there- 
 on, and to decree a sale of such lands for the payment 
 of all taxes interest and charges thereon. The circuit 
 court in chancery shall have ju-risdiction to hear, try 
 and determine the matters alleged in such petition, even 
 though the amount involved therein be less than one 
 hundred dollars. It shall be the duty of the prosecuting 
 attorney to prosecute all such- proceedings on the part 
 of the state. Proof of the publication of the order and 
 petition herein required shall be filed in the office of the 
 county clerk before any final order is made. Any person 
 against whom a decree has not been taken desiring to 
 contest the validity of any tax shall file in writing his 
 objections thereto with the clerk of the county on or 
 before the day fixed in said notice for the hearing of such 
 petition and serve a copy thereof on the prosecuting at- 
 torney of the county in which said lands are advertised 
 for sale, at least ten days prior to the day fixed in said 
 notice for the hearing thereof, and shall not be allowed 
 to make any objections not therein specified. If on the 
 (day fixed in said notice) for the hearing of such petition 
 or on the day following that day, it shall be made to ap- 
 pear to the court that any person has been prevented 
 frqm filing his objections to any tax without any fault 
 on his part, such further time may be granted for that 
 purpose as may seem proper, not . exceeding five days. 
 The equrt shall give precedence to the hearing of such 
 petition over all other business, shall examine, consider 
 and determine the matters therein stated and objections 
 made in a summary manner without other pleadings, 
 and make final decree thereon as the right of the case 
 may be. The taxes specified in the petition shall be pre- 
 sumed to be legal and a decree made therefor unless the 
 contrary is proved. Evidence shall be taken in open 
 court. AH oral testimony shall at the request of any per- 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 505 
 
 son interested be written down and filed. The court may 
 make such orders from time to time as may be necessary 
 to facilitate the proceedings, and shall decide all ques- 
 tions as to the admissibility of evidence and the decisions 
 so made shall be final and not subject to review or ap- 
 peal. If the lands of two or. more persons have been 
 assessed together the court may, if practicable, separate 
 the same and apportion to each parcel its just proportion 
 of the taxes, interest and charges. If any tax shall be 
 found illegal, such part shall be set aside and the remain- 
 ing tax shall be decreed valid. The total amount of taxes, 
 interest and charges, as fixed by the court shall be 
 entered by the register of the court opposite eaph parcel 
 of land in the column of said record under the heading 
 "amount decreed against lands." If the court shall 
 make any order setting aside the taxes on any parcel of 
 land or on any part thereof, or any special order relating 
 to any particular parcel of land, or taxes thereon, a brief 
 entry of such order shall be made upon said record 
 opposite such land or tax, which shall be signed by the 
 judge of the court, either by his full name or initials and 
 such entry shall have the same effect as if made and en- 
 tered as a part of a final decree. At least ten days prior 
 to the time fixed for the sale of such lands, the court shall 
 make a final decree in favor of the State of Michigan for 
 such taxes, interest and charges as shall be valid, and 
 determine the total amount thereof chargeable against 
 each parcel of land, and shall order and decree that such 
 several parcels of land or so much of each as may be 
 necessary to satisfy the amount fixed by such decree, 
 shall severally be sold as the law directs. Such decree 
 shall be considered as a several decree in favor of the 
 State of Michigan against each parcel of land for each 
 tax included therein. The court may decree such costs 
 against a person contesting any tax as may be equitable 
 if the tax or any part thereof which remains unpaid be 
 adjudged valid.* 
 
 8— C. L., Sec. 3889, as am. by Act 
 No. 31 Pub. Acts of 1899, p. 45. 
 
506 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 § 424. Section 67. Sucli final decree shall be entered 
 in the chancery record for recording decrees of such 
 court, have the usual caption for dfecrees and shall be 
 substantially in the following form : 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 At a session of said court held at the court house in the 
 of on the day of A. D. 19 
 
 Present Hon , Circuit Judge. 
 
 In the matter of the petition of , auditor general of 
 
 the State of Michigan, for and in behalf of said state for the 
 sale of certain lands for taxes assessed thereon. 
 
 The said petition and the matters therein stated, and the ob- 
 jections filed to certain taxes therein claimed (if any objections 
 are filed) came on to be heard, and proof of the due publication 
 of the order of hearing and of said petition having been made 
 and filed, and after hearing all parties interested therein. It 
 is ordered, adjudged and decreed that the amount of taxes, 
 interest, collection fee and charges set down in the column 
 headed: "Amount decreed against lands" in the tax record 
 of which said petition forms a part, are valid and decree is 
 made in favor of the State of Michigan therefor against each 
 parcel of said land for the amount set down in said column 
 opposite to such parcel. It is further ordered, adjudged and 
 decreed that said several parcels of land, or such interest therein 
 as may be neeessary to satisfy the amount herein decreed against 
 the same, shall be severally sold as the law directs on the 
 
 day of May, A. D. 19 . . , beginning at 10 A. M. on said 
 
 day or on the day or days subsequent thereto as may be neces- 
 sary to complete the sale of said lands and of each and every 
 parcel thereof, at the office of the county treasurer, or at such 
 convenient place as shall be selected by him at the county seat 
 
 of the county of , State of Michigan. It is further 
 
 adjudged and decreed that the several special orders made by 
 this court, and entered on said tax record are made a part hereof 
 with the same effect as if entered herein. 
 
 Circuit Judge. 
 Countersigned , Register in Chancery. 
 
 If costs are adjudged against any person contesting a 
 tflx the decree therefor shall be in proper form and 
 execution awarded. The decree shall be signed by the 
 judge and countersigned by the clerk. Immediately after 
 the entry of such decree the county clerk shall make a 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 507 
 
 certified copy thereof and annex the same to the tax 
 record. He shall thereupon deliver such tax record to 
 the county treasurer, in whose office the same shall re- 
 main except as needed in the office of the county clerk. 
 
 If from any cause the hearing on said petition is not 
 had on the day fixed in the notice therefor, the same shall 
 stand continued day to day during the term without the 
 entry of any order of continuance until disposed of, and 
 if it shall for any reason he found impracticable to hear 
 and determine the objections to all of the taxes specified 
 in such petition within the time herein fixed for that pur- 
 pose, then and in that case the court shall, within the time 
 herein named, make a final decree as to all taxes to which 
 no objections have been filed and also those to which 
 objections have been filed which the court has then heard 
 and passed upon. Such decree shall be signed and re- 
 corded as hereinbefore provided. The court shall pro- 
 ceed with the consideration of the remaining taxes em- 
 braced in such petition and objections thereto, and as soon 
 as practicable dispose of the same by one or more decrees 
 and in such form as the court may determine, which shall 
 be entered in the chancery record of decrees of such 
 court, and the same shall describe the lands and specify 
 the total amount of taxes, interest and charges on each 
 parcel thereof. The county clerk shaJl immediately 
 thereafter deliver to the county treasurer a certified copy 
 of such decree, to be kept and used as hereinbefore pro- 
 vided. Such copy of decree shall be annexed to the tax 
 record and shall thereby become a part thereof. If from 
 any cause no decree shall be made on such petition as to 
 the taxes therein named or any part thereof the auditor 
 general shall, as soon as practicable, file a new petition 
 for decree and sale and proceedings thereon shall be 
 the same and a decree and sale made as herein provided. 
 
 In case a decree is given in favor of any disputed tax 
 and the person contesting its validity desires to appeal 
 to the Supreme Court he shall be allowed to do so on pay- 
 ing the amount of the decree to the county treasurer 
 within ten days after the date of such decree, who shall 
 retain the same until the decision of the Supreme Court, 
 
508 stage's michigait chanceey peactice and foems 
 
 and pay the same to the party interested if such tax is 
 held invalid; if held valid then such money shall be 
 credited to the proper fund. By such payment the land 
 in question shall be discharged from the lien of the tax. 
 In case the decision is against the validity of any tax, 
 either the county treasurer or the auditor general shall 
 have a right to direct an appeal therefrom to the 
 Supreme Court in behalf of the state, but there shall be 
 no sale for the tax held invalid until such decision has 
 been reversed or modified by the Supreme Court. 
 
 The proceedings where the validity of any tax is in 
 dispute shall where no other provision is made herein, 
 follow the ordinary chancery practice and the court 
 may allow amendments as in ordinary cases. Notice 
 shaJl be given of all appeals to the Supreme Court, and 
 such appeals shall be claimed, entered and bond for costs 
 given, within twenty days after the making and entering 
 of the decree. When the appeal is taken on behalf of 
 the state no bond shall be required. The judge shall at 
 the request of either party and on due notice, settle in 
 proper form a case containing so much of the record and 
 proceedings as may be necessary to the due understand- 
 ing thereof by the Supreme Court, and if appeal shall be 
 taken, such case shall be transmitted to such court. An 
 appeal as to the tax on any parcel shall not delay or 
 affect the proceedings for the sale of any land on which 
 there has been no appeal.* 
 
 Shoidd the county treasurer for any cause fail to offer 
 all or any of the lands mentioned in the decree for sale, 
 all such lands not offered for sale will be considered and 
 treated as if bid off for the state. ^^ 
 
 Section 69. Whenever it shall be satisfactorily shown 
 to the court that any lands included in guch petition as 
 delinquent for taxes shall belong to infants, minor heirs, 
 idiots or insane persons without guardians or wthout any 
 other means of support, the court is, in his discretion, 
 authorized to withhold such lands from sale until a set- 
 
 9—0. L., Sec. 3890, as am. by Act 10— C. L., Sec. 3891. 
 No. 262 Pub. Acts of 1899, p. 426. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FORMS 509 
 
 tlement of such person can be made and a guardian 
 chosen or appointed to protect the rights and interests 
 of such person. Provided such withholding shall not act 
 to prejudice the lien of the state, county or township for 
 such taxes or the right to include the same in any subse- 
 quent petition for sale as in this act provided. In case 
 of the sale of lands belonging to any infants, idiots, minor 
 heirs, insane or incompetent persons if it shall appear 
 to any court that it is necessary to protect the rights of 
 such incompetent person td order any sale cancelled or 
 deferred it may so order, and in such case all proceedings 
 may be stopped, sale cancelled or action stayed until the 
 proper proceedings can be had to protect the rights and 
 property of such incompetent person or persons." 
 
 § 425. Section 70 of the same statute provides that on 
 the first Tuesday of May beginning at ten o'clock a. m., 
 the county treasurer shall commence the sale of the lands 
 mentioned in the decree upon which the amounts charged 
 shall not have been paid, and shall continue the same 
 from day to day, Sundays and other legal holidays ex- 
 cepted, until so much of each parcel shall be sold as shall 
 be sufficient to pay such amounts. Each parcel described 
 in the decree shall be separately exposed to sale for the 
 total taxes, interest and charges, and the sale shall be 
 made to the person paying the full amount charged 
 against such parcel and accepting a conveyance of the 
 smallest undivided fee simple interest therein. 
 
 No greater interest in any parcel shall be sold than 
 is sufficient to pay the amount of the tax on which the 
 same is sold. If no person will pay the several taxes 
 and charges and take a conveyance of less than the entire 
 thereof then the whole parcel shall be offered and sold. 
 The sale shall be at the county seat, at the office of, or at 
 such convenient place as shall be selected by the county 
 treasurer, and shall be subject to the taxes assessed sub- 
 sequent to taxes included in the decree and for the year 
 for which the sale is made." It also provides that "if 
 any parcel of land cannot be sold for taxes, interest and 
 
 11— C. L., Sec. 3892. 
 
510 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 charges during such sale the county treasurer shall bid 
 the same off in the name of the state ' ' and also that ' ' the 
 county treasurer shall enter in the proper columns of the 
 tax record the interest in lands sold, the name and post 
 office address of each purchaser opposite each parcel of 
 land sold, and the word "state" opposite each parcel bid 
 off in the name of the state," and also "as soon as pos- 
 sible after the conclusion of any sale, and within twenty 
 days after the day named in the notice for the commence- 
 ment thereof the county treasurer shall make and file 
 with the clerk of the court a report of such sale, therein 
 referring to the tax record for the particulars thereof. 
 All sales shall stand confirmed, subject to the right of 
 redemption, provided for in section seventy-four, unless 
 objections thereto are filed within eight days after the 
 time limited for filing such report without the entry of 
 an order or further notice. The practice with reference 
 to setting aside such sale shall be the same so far as 
 applicable, as in a sale in equity on the foreclosure of . 
 mortgages; provided no sale shall be set aside for 
 inadequacy of price except upon payment of the amount 
 bid upon such sale with interest and costs; provided 
 further that no sale shall be set aside after confirnaation 
 except in cases where the taxes were paid or the prop- 
 erty was exempt from taxation ; in such cases the owner 
 of such lands may move the court at any time within 
 one year after he shall have notice of such sale, to set 
 the same aside, and the court may so order upon such 
 terms as may be just. 
 
 A& soon as practicable after sales are confirmed, the 
 county treasurer shall make a full raport of the same to 
 the auditor general in such form as the auditor general 
 shall prescribe, giving a description of the property sold, 
 the amounts for which the same were sold, and the names 
 and addresses of the purchasers, and thereupon the audi- 
 tor general shall, after the period of redemption provided 
 in section seventy-four has expired, execute deeds to the 
 purchaser in such form as shall be determined by him," 
 and that "if from any cause the lands or any parcel 
 thereof decreed for sale by the auditor general shall not 
 
stage's MICHIGAN CHANCEKY PEACTICE AND FOEMS 511 
 
 be sold as advertised it shall be the duty of the auditor 
 general to cause sale to be made at such other time as he 
 may fix for that purpose of which notice shall be pub- 
 lished at least four weeks prior to such day and such 
 notice shall contain a description of the lands and the 
 amount claimed thereon, as hereinbefore provided in the 
 first instance. The sale and all proceedings thereon shall 
 be the same as if made on the first day fixed therefor. 
 Provided that if any parcel sold under the provisions of 
 this section shall also be offered at the same sale as state 
 tax lands, the purchaser must also at the same time be- 
 come the purchaser from the state tax land list and pay 
 the taxes, interest and charges remaining unpaid thereon 
 for all years for which such land is held as gtate tax land. 
 All sales made in contravention of this requirement 
 shall be void.^^ 
 
 § 426. Section 71 provides that "at the sale aforesaid 
 the respective county treasurers shall give to the purchas- 
 ers, on the payment of the bids a separate certificate in 
 writing for each parcel, describing the lands purchased 
 and the amount paid therefor, the name of the person to 
 whom the same was issued, the number, date and amount 
 of each certificate, and such certificate shall be regularly 
 numbered and entered in the book kept for that purpose 
 and designated as the tax record. ' ' 
 
 Such certificate shall be in substantially the following 
 form: 
 
 State of Michigan, ) 
 County of ) 
 
 County treasurer's office , A. D, nineteen hundred 
 
 and 
 
 I , comity treasurer of the county of , in 
 
 said state, do hereby certify that I did, at public auction, pur- 
 suant to notice given as by law required, on this day 
 
 of , A. D. nineteen hundred , sell to 
 
 of , the lands herein described for the sum of ......... 
 
 dollars and cents, said sum being the amount due and 
 
 luipaid for taxes, interest and charges on said lands for the year 
 
 12 — C. It., See. 3893, as am. by Act 
 No. 262 Pub. Acts of 1899, p. 428. 
 
512 stage's MICHIGAN CHANCERY PBACTIGE AND FORMS 
 
 of our Lord one thousand nine hundred and , that the 
 
 said , his heirs or assigns, will, if said sale stands con- 
 firmed, be entitled to a deed of conveyance of said lands., after 
 the first Tuesday in May, in the year following the sale thereof 
 as herein evidenced, unless sooner redeemed from such sale ac- 
 cording to law, said lands are described as follows with the 
 sum for which they were sold set opposite each description, that 
 is to say. (Here insert description and amount bid therefor.) 
 
 County Treasurer.13 
 
 Section 72. On presentation of such certificate of sale 
 to the auditor general or his deputy after the expiration 
 of the time provided by law for the redemption of land 
 sold as aforesaid, the auditor general or Ms deputy shall 
 execute and deliver to the purchaser, his heirs or assigns, 
 a deed of the land therein described unless the sale thereof 
 shall have been redeemed or annulled as by law provided, 
 which deed shall be entitled to record in the oflfice of the 
 register of deeds of the proper county, in the same man- 
 ner and with like effect as other d^eds duly witnessed, 
 acknowledged and certified. Such deeds shall convey an 
 absolute title to the land sold and be conclusive evidence 
 of title in fee of the grantee, subject however, to all taxes 
 assessed and levied on such lands subsequent to the taxes 
 for which the same was bid off. 
 
 §427. The court may on application put the pur- 
 chaser in possession of the premises by writs of assist- 
 ance. In the case of the loss of such certificate of sale, 
 the purchaser or his legal representative or assignee, 
 may file his affidavit of such loss, and that he was at the 
 time of such loss the bona fide and legal holder thereof 
 and the auditor general or his deputy shall thereupo^ 
 execute as aforesaid, a deed for the lands described in 
 such certificate, if the same shall not have been redeemed, 
 in the same manner as though it had been presented and 
 surrendered, and if the same shall have been redeemed, 
 on the presentation of such affidavit the money shall be 
 paid to such person in the same manner as though the 
 certificate of sale had been surrendered." ^* 
 
 13— C. L., Sec. 3894. 14^-C. L., gee. 389S, 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 513 
 
 § 428. Section 73. No sale of any lands or deed made 
 by tlie auditor general under the provisions of this act 
 shall be set aside or annulled by any court of this state 
 after the purchaser, his heirs or assigns have been in 
 actual and undisputed possession of such lands so sold 
 or conveyed for a period of five years from the date of 
 such purchase or deed. Whenever any sale made under 
 this act is set aside by any court in ei less time than five 
 years, the court shall determine and decree the value of 
 improvements made by the purchaser if he has been in 
 possession and give judgment tlierefor and issue execu- 
 tion to collect the same of the claimant before putting 
 him in possession. If a sale made under this act is set 
 aside by the court or is cancelled by the auditor general 
 as provided in this act, the auditor general shall refund 
 to the purchaser the amount paid at the time of the sale 
 with interest thereon at the rate of six per cent per an- 
 num from the time of the purchase to the time when such 
 sale was set aside or cancelled, out of the general fund 
 of the state. 
 
 In such cases the auditor general shall charge back to 
 the county all taxes and the interest and charges thereon 
 for aU years for which it has been held that the taxes 
 were invalid or the description erroneous, but for all 
 years for which no invalidity has been found he shall 
 proceed to enforce the collection of the taxes for all 
 years refunded as herein provided, as in the case of taxes 
 for which sale has not been made." ^^ 
 
 Section 74. Any person owning any of the lands sold 
 as aforesaid, or any interest therein, may, at any time 
 before the first Tuesday in May in the year following 
 such sale, redeem any parcel of such lands, or any part 
 or interest in such lands by showing to the satisfaction 
 of the county treasurer or auditor general that he owns 
 only that part or interest in the. same which he proposes 
 to redeem, by paying to the county treasurer or auditor 
 general the amount of the sale of the parcel of land, or 
 
 15 — C. L., Sec, 3896, as am. by Act 
 No. 262 Pub. Acts of 1899, p. 430. 
 
514 stage's MICHIGAN CHANCERY PBACTIOE AND FOEMS 
 
 the portion thereof wished to be redeemed, and interest 
 thereon from the date of such sale. Upon the payment 
 of the redemption money and interest thereon at one 
 per cent per month or fraction thereof to the county 
 treasurer as aforesaid, he shall issue a redemption cer- 
 tificate in such form as may be presented by the auditor 
 general, both of which certificates shall be countersigned 
 by the county clerk who shall make an entry of the num- 
 ber of such certificate, the amount for which it was given 
 and the name and address of the person paying the same, 
 one of which certificates shall be delivered to the person 
 making such redemption payment, and the other shall 
 be immediately transmitted to the auditor general. The 
 county treasurer shall also make a minute of such re- 
 demption certificate in the tax record kept in his office, 
 with the name of the payer, the date, and the amount 
 paid. Such certificate or the duplicate, and the entry 
 thereof by the clerk or the county treasurer, shall be 
 evidence of such redemption in the courts of this state. 
 
 In case any such lands are redeemed at the office of the 
 auditor general, a notice containing all the above facts 
 shall be sent to the county treasurer of the proper county 
 who shall cause the proper entries to be made on the tax 
 record of his county and in the office of the county 
 clerk. "^'» 
 
 § 427. Section 75. Whenever any court of competent 
 jurisdiction shall by decree annul any certificate executed 
 by the county treasurer aforesaid or any deed executed 
 by the auditor general, the clerk of such court shall, on 
 the payment by any party interested, of fifty cents de- 
 liver to such person a certified copy of such judgment 
 decree or order, which certified copy of such judgment 
 decree or order shall be a proper subject of record in the 
 office of the register of deeds of the county in which said 
 laiid is situated, and on recording the same, the register 
 sha.ll enter in the margin of the record of the tax deed 
 affected by such decree or record, a brief statement of 
 
 16— .Cl. L., Sec, 3897, as am. by Act 
 262 Pub. Acts of 1899, p. 430. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 515 
 
 sound judgment, decree, or order and shall also send 
 notice of sueh decree or order to the auditor general." 
 
 If the purchaser or his assigns shall die before a deed 
 shall have been made by the auditor general, such deed 
 shall be made in the name of such deceased person and 
 shall vest the title in his heirs as if he had died seized 
 of said land. But if the executor or administrator of 
 such deceased person shall assign the certificate of pur- 
 chase to any living person such deed shall be made to 
 such assignee.^* 
 
 If any purchaser be dispossessed of lands purchased 
 under this act after having made improvements thereon 
 he shall be entitled to recover what such improvements 
 are worth and shall have a lien on such lands therefor 
 and may enforce such lien by bill in equity.^^ 
 
 § 448. The holder of any certificate of sale shall at 
 any time after its issue, have the right to an injunction 
 to restrain waste on any of the lands described in such 
 certificate where such lands are valuable for timber, and 
 the Circuit Court in chancery of the county in which such 
 lands are situated shall have jurisdiction to grant such 
 relief on bill or petition where no other relief is sought.^" 
 And when the owner shall neglect or refuse to pay the 
 tax on any parcel of land after the same has become a 
 lien, the township treasurer may before the expiration 
 of his warrant, apply for and obtain such injunction to 
 restrain waste.^^ 
 
 § 449. If the purchaser after having received his deed 
 from the auditor general is not able to obtain immediate 
 peaceable possession he may apply for and obtain a writ 
 of assistance in which case it is provided that "no writ 
 of assistance or other process for the possession of any 
 land, the title to which has been obtained under and in 
 pursuance of any tax sale made after the twenty-ninth 
 day of August in the year of our Lord, eighteen hundred 
 
 17— C. L., See. 3898. 20— C. L., Sec. 3938. 
 
 18 — C. L., Sec. 3924. 21— C. L., Sec. 3979, as am. by Act 
 
 19— C. L., Sec. 3927. No. 34 Pub. Acts of 1901, p. 55. 
 
516 stage's MICHIGAN CHANCERY PBAOTICE AND FOEMS 
 
 ninety-seven, or of any sale of state tax land or state bids 
 made after the said twenty-ninth day of August, eighteen 
 hundred ninety-seven, except where such title shall be 
 obtained under the provisions of section one hundred 
 thirty-one of this act,^* shall be issued until six months 
 after there shall have been filed with the county clerk 
 of the county where the land is situated, a return by the 
 sheriff of said county, showing that he has made personal 
 service of a notice, or proof of substituted service thereof 
 as hereinafter provided upon the person or persons ap- 
 pearing by the records in the office of the register of 
 d.eeds of said county to be the last grantee or grantees in 
 the regular chain of title of such lands, or of any interest 
 therein, at the date of the delivery of such notice to the 
 sheriff for service, and upon the person or persons if any 
 there be in the actual open possession of such lands at 
 the date aforesaid and upon the grantee or grantees under 
 the tax deed issued by the auditor general for the latest 
 year's taxes then appearing of record in said registry of 
 deeds, and upon the mortgagee or mortgagees named in 
 all undischarged recorded mortgages or any assignee or 
 assignees thereof of record at the date aforesaid, and 
 upon the holder of record of all undischarged recorded 
 liens, which shall he substantially in the following form : 
 To the owner or owners of any and all interests in or 
 liens upon the land herein described. Take notice that 
 sale has lawfully been made of the following described 
 land for unpaid taxes thereon, and that the undersigned 
 has title thereto under tax deed or deeds issued therefor, 
 and that you are entitled to a reconveyance thereof at 
 any time within six months after return of service of this 
 notice, upon payment to the undersigned or to the regis- 
 ter in chancery in the county in which the lands lie of all 
 sums paid upon such purchase, together with one hun- 
 dred per centum additional thereto, and the fees of the 
 
 22 — Seo. 131 liere mentioned is C. entry as homestead lands and the 
 
 L., See. 3953, referring to State Tax method by which homesteaders can 
 
 land^ which are held by the Commis- obtain title thereto. 
 Bioner of the State Land office for 
 
stage's MICHIGAN CHANCEEY PKACTICE AND POEMS 517 
 
 sheriff for the service or cost of publication of this notice, 
 to be computed as upon personal service of a declaration 
 as commencement of suit, and the further sum of five dol- 
 lars for each description without other additional cost 
 or charges. If payment as aforesaid is not made, the 
 undersigned will institute proceedings for possession of 
 the land. 
 
 Description Amount paid taxes for 
 
 19 
 
 Signed Place of business 
 
 Provided that if the grantee or grantees, or the person 
 or persons holding the interest in said lands as afore- 
 said shall be residents of any county of the state other 
 than the county in which the land is situated, then such 
 return as to such person may be made by the sheriff of 
 the county where such person or persons reside or may 
 be found. 
 
 Provided further, that if the person or persons entitled 
 to such notice, or any of them, shall be non residents of 
 this state, if from the said record aforesaid or from 
 inquiry, the sheriff can obtain the post office address of 
 such person or persons or if said addresses be known 
 to him, he shall either send to such non resident person 
 or persons a copy of said notice by registered letter and 
 return the receipt or receipts of the postmaster received 
 for said letter or letters with his return to the county 
 clerk's office, or said sheriff shall cause to be served per- 
 sonally on such person or persons aforesaid a copy of the 
 said notice, and whenever such notice shall be personally 
 served outside of this state proof of such service shall be 
 made by the affidavit of the person who shall serve the 
 same, made before a justice of the peace or notary public, 
 and where such affidavit shall be made outside the state 
 it shall have attached thereto the certificate of the clerk 
 of the court of record, certifying to the official character 
 of the justice or notary, and the genuineness of his signa- 
 ture to the jurat of the affidavit, and such sheriff, shall 
 return the said proof of personal service with his return 
 to the county clerk's office : Provided further, that if any 
 person entitled to notice as hereinbefore provided is 
 
518 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 dead, or if his estate shall be xmder control of a trustee 
 or guardian then and in such ease notice as hereinbefore 
 provided may be served upon the executor or administra- 
 tor of such deceased person or upon his heirs if there be 
 no executor or administrator, or upon the trustee or 
 guardian of any incompetent person, with like effect as if 
 served upon the grantee, mortgagee or assignee: Pro- 
 vided, further, that if the sheriff of the county where 
 any such lands are located shall make a return that after 
 careful inquiry he is unable to ascertain the whereabouts 
 or the post office address of the person upon whom notice 
 may be served as aforesaid, or any of them, then such 
 notice as is herein provided for shall be published for 
 four successive weeks, which shall be construed to mean 
 four publications once each week in some newspaper pub- 
 lished and circulating in the county where such lands are 
 located, if there is one, and if no such paper is published 
 in such county then publication shall be made in some 
 newspaper published and circulated in an adjoining 
 county and due proof of publication by aflfidavit of the 
 printer or publisher of such newspaper shall be filed with 
 the county clerk and shall be in lieu of personal service 
 upon the person or persons whose whereabouts or post 
 office address cannot be ascertained as aforesaid: Pro- 
 vided, further, that such service may be made upon 
 any resident of this state by leaving such notice with 
 some member of his family of mature age, and upon any 
 non resident of this state by delivering such notice to 
 him personally in any county of this state where he 
 may be found and return thereof shall be made by 
 the sheriff of such county. Service in aU cases and 
 return thereof may be made by the under sheriff or any 
 deputy sheriff with like effect as if made by the sheriff. 
 Corporations formed under the laws of this state shall 
 be regarded for the purposes of this act, as residents of 
 the county in this state where their office for the tran- 
 saction of business therein is, by their articles, located, 
 and service on such corporations may be made on the 
 president, secretary, treasurer or general agent of such 
 corporation, or by leaving such notice at the office of such 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 519 
 
 corporation with some person in charge of such office. 
 If the sheriff of any county in this state in which the 
 office of any such corporation for the transaction of busi- 
 ness, is by its articles fixed, shall return that upon careful 
 inquiry he has been unable to find any such office or any 
 president, secretarj^, treasurer or general agent of such 
 corporation in such county, service of such notice may 
 he made upon such corporation by publication a? here- 
 inbefore provided in case of persons whose whereabouts 
 or post office address cannot be ascertained ; and this pro- 
 vision shall apply as well to corporations whose term 
 of corporate existence has expired, as to those whose 
 term of corporate existence has not expired. Foreign 
 corporations doing business in this state and having an 
 agent therein appointed to accept service of process as 
 required or as may be required by the laws of this state 
 shall be regarded for the purposes of this act as residents 
 of the county where such agent resides and service on 
 such corporations may be made on such agent, or by 
 registered letter addressed to such corporation at their 
 home office. The sheriff shall in his return state the time 
 when such notice was delivered to him for service, and 
 his return shall be prima facie evidence of the facts 
 therein stated.*^ 
 
 § 450. Any person having any estate in such lands or 
 any interest therein, either in fee, for life or for years, or 
 any mortgage thereon or assignee of any undischarged 
 mortgage thereon, or the holder of any lien thereon, or 
 any executor, administrator, trustee or guardian of such 
 persons or any of them, or any person in the actual pos- 
 session of such lands at the time of such tax purchase, 
 shall be entitled to receive from the person so claiming 
 imder and by virtue of such tax deed, his heirs, or as- 
 signees at any time within six months after the filing of 
 return of service or the filing of proof of publication of 
 such notice, as hereinbefore provided, a release and quit 
 claim of all right and interest in such land acquired 
 
 23 — C. L., Sec. 3959, as am. by Act 
 1^0. 270 Pub. Acts of 1909, p. 468. 
 
520 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 under such tax deed or deeds upon payment to him or 
 them, or to the register in chancery of the county in 
 which the lands are located of the amount paid upon such 
 purchase together with one hundred per centum in addi- 
 tion thereto and the lawful fees of such personal or sub- 
 stituted service, which fee shall be the same as provided 
 by law for service of subpoenas or for orders of publica- 
 tion or the cost of such service by registered mail, and 
 the further sum of five dollars for each description, with- 
 out additional cost or charge. Provided, that any per- 
 son or persons entitled to a release and quit claim under 
 the foregoing provisions of this section, at any time after 
 the issue of tax deeds on such lands, or after the pur- 
 chaser thereof shall be entitled to such tax deed and before 
 service of notice or return thereof as herein provided 
 shall have the right to redeem such lands from such sale, 
 by paying to the purchaser or his grantee, or to the regis- 
 ter in chancery of the county in which the lands lie, on 
 the certificate of the auditor general or his deputy, all 
 sums paid as a condition of such purchase, together with 
 one hundred per centum additional thereto and the fur- 
 ther sum of five dollars for each description. By such 
 payment the tdx title and any and all such certificates 
 of sale shall bercome void and of no effect against the 
 lands to be redeemed. The register in chancery shall, 
 whenever payment is made to him as provided in this 
 section, at once notify the owner of the tax title, or of any 
 and all certificates of sale, of the payment so made, and 
 the owner of the tax title or of any such certificate of 
 sale, shall forthwith deliver to said register a release and 
 quit claim of all rights acquired by him under said tax 
 purchase, running to the person making such payment 
 and shall also deliver to said register the tax deed, certifi- 
 cates of purchase, tax receipts and all other conveyances 
 relating to said tax title or tax interest before he shaU 
 be entitled to receive the money paid to said register as 
 herein provided. Upon delivery of such release and quit 
 claim, and of such certificate of purchase and the receipt, 
 the register in chancery shall at once pay oyer to the 
 owner of the tax title all sums received by him for the 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 521 
 
 redemption of the lands therein deserihed. Provided, 
 further, that no quit claim or reconveyance made under 
 the provisions of this section shall be construed to vest 
 in the grantee any title or interest in such lands beyond 
 that already owned by him, but such grantee shall be en- 
 titled to a lien on such land, or on such part thereof or 
 interest therein as are not owned by him, for the amount 
 paid, on such portion thereof as is lawfully chargeable to 
 such parts or interests, in addition to the lien or other 
 interest before held by such grantee, which lien may be 
 enforced in any court of competent jurisdiction as in 
 other cases of liens upon lands, with interest thereon at 
 the rate of six per centum per annum from the date of 
 such payment. The Circuit Courts in chancery shall 
 have jurisdiction to enforce the lien herein provided 
 without regard to the amount of such liens. Provided, 
 further, that any such application for a writ of assistance 
 shall show that such applicant has complied with the 
 provisions of this act as to the giving of notices as herein 
 directed and he shall attach to such application a copy 
 of the notice aforesaid, and the return of the sheriff serv- 
 ing the same, or a copy of the proof of publication, or the 
 registry receipt or receipts from the registry department 
 of the post office showing that such notice has been served 
 by registered mail.^* 
 
 It is pro\ided by statute that no purchaser of a tax 
 title shall enter into possession of the land until six 
 months after he has given the notice as provided in the 
 above mentioned section to the parties interested there- 
 in, unless he has acquired his title by conveyance, and 
 that where the land is vacant and unoccupied the time 
 for redemption shall expire six months after giving or 
 making such notice or after the first publication thereof 
 and filing proof with the county clerk as above provided. 
 Provided that if suit is commenced during such six 
 months by the owner of the land or by one having a re- 
 deemable interest therein, to set aside the sale the pur- 
 
 24 — C. L., Sec. 3960, as am. by Act 
 No. 270 Pub. Acts of 1909, p. 471. 
 
522 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 chaser or his grantee shall not enter into possession until 
 the final determination of such suit.^^ 
 
 And also that if such lands are not redeemed within 
 such six months and no suit is pending the purchaser may- 
 cause a certified copy of the notice and proof of service 
 or publication to be recorded in the office of the register 
 of deeds and such record shall be prima facie evidence of 
 the facts therein recited.''® 
 
 § 451. These statutory provisions define the practice 
 to be pursued with great particularity in detail, the 
 statute must be strictly followed. Although irregulari- 
 ties in the assessment not prejudicial to the tax payer 
 do not invalidate the tax.^'' 
 
 All questions as to the validity of the tax or regularity 
 of the proceedings must be raised by objections filed pre- 
 vious to the hearing and are heard at the hearing and 
 adjudicated by the decree and cannot be called in ques- 
 tion afterwards.^* 
 
 § 452. The publication of the petition and order is the 
 equivalent of personal notice to every owner of land in 
 the county whereon the taxes are unpaid. It is the duty 
 of every such owner therefore to watch the proceedings 
 provided by the statute and interpose any objections he 
 may have to the validity of the tax at the time men- 
 tioned in the order as prescribed by the statute, and if the 
 owner permits the case to proceed to decree all questions 
 as to whether or not the tax was properly assessed and 
 whether or not proper steps have been taken to charge 
 the land after assessment become "res adjudicata" if 
 the court had jurisdiction to make the decree.^'-* 
 
 25— C. L., Sec. 3961, as am. by Act 28— Muirhead v. Sands, 111 Mich. 
 
 No. 142 Pub. Acts of 1905, p. 197. 487; Cole v. Aud. Gen., 132 Mich. 
 
 26— Act No. 142 Pub. Acts of 262; nint Land Co. v. Godkin, 136 
 
 1905, p. 197. Mich. 668; Keno v. Aud. Gen,, 138 
 
 27— C. L., Sec. 3922; Aud. Gen. y. Mich. 586; Klotz v. Sloan, 160 Mich. 
 
 Hutchinson, 113 Mich. 245; Aud. 483. 
 
 Gen. V. Keweenaw Assn., 107 Mich. 29 — Cole v. Shelp, 98 Mich. 56; 
 
 405; Citizens St. By. Co. v. Common Ledyard v. Aud. Gen., 121 Mich. 56; 
 
 Council, 125 Mich. 673. Ball v. Eidge Copper Co., 118 Mich. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 523 
 
 The publication of the petition and order being ante- 
 rior to the decree serves two purposes. 1, To give the 
 court jurisdiction and 2. To operate as an advertisement 
 of the sale.^" 
 
 The publication must be in a newspaper printed in the 
 English language.^* 
 
 A valid decree cannot be made at the same term of 
 court during which the petition is filed.*' 
 
 The filing in the office of the county clerk of proof of 
 publication of the petition and order, is a prerequisite 
 to the jurisdiction of the court to enter a decree of sale, 
 proof of publication for four weeks prior to time fixed 
 for hearing is not sufficient.; it should be for four weeks 
 next prior thereto and the deficiency in the proof cannot 
 be supplied by parol.*^ 
 
 The publication may be in the supplement to a news- 
 paper.** 
 
 A publication once a week four times next previous to 
 the day fixed for hearing is sufficient,** and proof of pub- 
 lication giving the date of the first and last publication 
 and that it was published for "successive weeks" is suffi- 
 cient if the time between the first and last publication 
 shows that four publications mUst have occurred.** If 
 the affidavit of publication be defective a new one may be 
 filed before decree.*^ 
 
 If the term, of the court at which the hearing was fixed 
 by the order be adjourned sin^ die without entering any 
 order of continuance of the hearing of the petition to the 
 
 7; Hughes v. Jordan, 118 Mich. 27 j Mich. 699; see Bldridge v. Eiehmond, 
 
 Hall V. Mann, 118 Mieh. 201 ; Hooker 120 Mich, 586. 
 
 V. Bond, 118 Mich. 255. 34 — Mann v. Carson, 120 Mich. 
 
 30— Cole V. And. Gen., 132 Mich. 631. 
 
 262. 85 — Munroe t. Winegar, 128 Mich. 
 
 31— Gurd V. And. Gen., 122 Mich. 309. 
 
 151. 36 — Garner v. Wallace, 118 Mieh. 
 
 32— Ledyard v. And. Gen., 121 387. 
 
 Mich. 56; Trorable v. Hoffman, 139 37— Church v.. Neater, 126 Mich. 
 
 Mich. 676. 547. 
 
 36— McFadden v. Brady, 120 
 
624 stage's MICHiaAN CHANCERY PBACTICE ANR FORMS 
 
 following term the court will lose jurisdiction and can 
 makeino decree on that petition.^* 
 
 The fact that an illegal item was included in the tax 
 does not deprive the court of jurisdiction to make the 
 decree, and if no objection was made on that groimd at 
 the hearing it cannot be raised after the decree.^* 
 
 § 453. When the court made a decree and adjourned 
 the term sine die within five days after the time fixed for 
 the hearing, so that no person had the full five days in 
 which to show that he was prevented without his own 
 fault from filing objections, the decree is void as to all 
 persons not appearing,*" but although the decree were 
 made within the five days if the court remained in session 
 during that term for five days or more thereafter the 
 decree will be valid,*^ as the owner will in such ease have 
 had full opportunity to make his application to the court. 
 
 § 454. A tax decree is ineffectual and will be vacated 
 on petition of the owner of the land where no amounts 
 were extended in the column of the tax record headed 
 "amount decreed against land" except by the county 
 treasurer after the record had passed from the control 
 of the court.*^ So also where in the decree as entered 
 in the tax record the amounts entered in that column 
 were entered in figures only without any dollar mark 
 or words or signs to indicate what the figures meant, tax 
 titles founded thereon were held to be void.** 
 
 If the order for hearing is found to be defective the 
 
 38— Muirhead v. Borgland, 111 143 Mich. 240.; Gates v. Johnson, 121 
 
 Mich. 655. Mich. 668; Allen v. Cowley, 128 
 
 39 — ^Blanchard V. Young, 152 Mich. Mich. 530; Brown v. Mjning Co., 
 
 619. 323 Mich. 117; Temple v. Preston, 
 
 40— Peninsular Sav. Bk. v. Ward, 15jO Mich. 486. 
 
 118 Mich. 87; Youngs v. Clark, 120 42— Morgan v. Twaddle, 119 Mich. 
 
 Mich. 528; McGinly v. Calumet & 350; Baptist Church v. Eoberts, 120 
 
 Heola Ming. Co., 121 Mich. 88; Astec Mich. 704. 
 
 Copper Co. v. Aud. Gen., 128 Mich. 43— Millard v. Truax, 99 Mich. 
 
 615; W.ait v. McMillan, 121 Mich. 95. 157;' Bussell v. Chittenden, 123 Mich. 
 
 41— Wolverine Land Co. v. Davis, 546; Nowlin v. Pall, 128 Mich. 274. 
 141 Mieh. 187; Goddell v. Aud. Gen., 
 
stage's MICHIGAN OHANCEEY PRACTICE AND FOBMS 525 
 
 court may make a new order in place of the former void 
 order if it can be done in time.** 
 
 A decree is not invalid for want of calendar entries, 
 or of entries of appearance, or default or of report of 
 sale nor for want of enrollment nor because not entered 
 in the record book of decrees, nor because it does not 
 contain a description of the property except by reference 
 to the tax record," nor because it was rendered less than 
 ten days before the sale if the t^x payer was not thereby 
 injured.** The decree need not be enrolled, the provi- 
 sions for the enroUnient of decrees not being applicable to 
 these proceedings.*'' 
 
 §455. A valid decree forecloses all questions as to 
 the validity of the tax and of the regularity of the pro- 
 ceedings prior to the decree provided such proceedings 
 were sufficient to give the court jurisdiction,*^ 
 
 § 456. Jurisdictional defects apparent on the face of 
 the record will avoid the decree and the sale thereunder.*' 
 When the cour-t had no jurisdiction the decree may be set 
 aside on petition of the land-owner filed in the same suit 
 after the expiration of one year, if the petition shoTVs 
 equities and excuses the delgiy.^" 
 
 § 457. At the sale neither the county treasurer nor his 
 depnty can be a purchaser,*^ one who is bound by law to 
 pay the tax acquires nothing by such purchase.^^ A 
 mortgagor cannot set up such a purchase against a mort- 
 
 44 — Haven v. Owen, 121 Mich. 51. 201; Harrington v. Dickinson, 155 
 
 45— Wilkin v. Keith, 121 Mich. Mich. 161; Eumsey v. Griffin, 138 
 
 66; Hall v. Mann, 118 Mich. 201; Mich. 413; Smith v. Aud. Gen., 138 
 
 Hooker v. Bond, 118 Mich. 255; Mich. 582 ; Klotz v. Sloan, 160 Mich. 
 
 Hoffman v. Park, Woods & Co., 123 483. 
 
 Mich. 74; Bamum v. Barnes, 118 49 — Millard v. Truax, 99 Mich. 
 
 Mich. 264. 157. 
 
 46 — Hooker v. Bond, 118 Mich. 50 — Astec Copper Co. v. Aud. Gen., 
 
 255. 128 Mich. 615. 
 
 47 — Baraum v. Barnes, 118 Mich. 51 — Glute v. Barron, 2 Mich. 172; 
 
 264. Wait v. Gardiner, 123 Mich. 236; 
 
 48— Ball V. Eidge Copper Co., 118 Hall v. Collins, 117 Mich. 617. 
 
 Mich. 7; Hughes v. Jordan, 118 52 — Dubois v. Campau, 24 Mich. 
 
 Mich. 27; Hall v. Mann, 118 Mich. 360. 
 
526 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 gagee,*^ nor can a mortgagee against his mortgagor,^^ 
 nor can a vendee in a land contract against Ms vendor,"^' 
 nor a tenant as against his landlord^'" nor a tenant in 
 common in possession against his cotenants.'^ 
 
 § 458. The county treasurer must make due report of 
 his sale and file the same with the county clerk or the 
 deed founded thereon will be 'of no effect.** The purr 
 chaser is boimd to see that the law has been complied with 
 and the report if defective cannot be amended after the 
 time for redemption has expired.*® A report of sale re- 
 ferring to the tax record for the particulars is sufficient.*" 
 
 If no objections to the sale are filed with the county 
 clerk within eight days the sale will stand confirmed after 
 the expiration of the eight days by the action of the 
 statute without any formal order of confirmation.®* If 
 objections are filed they will be brought on to be heard 
 and adjudicated according to the general practice in 
 chancery cases."^ 
 
 After confirmation of the sale the decree and sale can 
 only be attacked on three grounds, viz : Want of jurisdic- 
 tion of the court. That the taxes were in fact paid before 
 the decree was made. That the land was exempt from 
 taxation.** If not redeemed within the year the auditor 
 general executes and delivers a deed to the purchaser 
 pursuant to the statute and until this deed is made the 
 
 53— Chamberlain v. Forbes, 126 58^Millard v. Truax, -99 Mich. 
 
 Mich. 86; Pells V. Barbour, 38 Mich. 157; Jenkinaon v. Aud. Qen., 104 
 
 49. Mich. 34; McFadden v. Brady, 120 
 
 54 — Maxfield v. Willey, 46 Mich. Mich. 699; McGroskey v. Busch, 116 
 
 252; Porter v. Corbin, 124 Mich. Mich. 288. 
 
 201. 59 — ^JenkinBon v. Aud. (Jen,, 1Q4 
 
 55 — Brown v. Avery, 119 Mich. Mich. 34. 
 
 384; Curran v. Banks, 123 Mich. 60 — Jenisdn v. Conklin, 114 Mich. 
 
 594. 9. 
 
 56— Williams v. Towl, 65 Mich. 61— Conley v. McMillen, 120 Mich. 
 
 204; Bertram T. Cook, 3B Mich. 518; 694. 
 
 Conn. Mut. Life Ins. Co. v. Butte, 62 — ^Aud. Gen. v. Jenkinson, 90 
 
 45 Mich. 113. Mich. 526, 
 
 57— Richards v. Richards, 75 Mich. 69 — ^Klotz v. Sloan, 160 Mich. 483. 
 408 ; CampbeU v. CampbeU, 21 Mich. 
 438. 
 
stage's MICHIGAN caANCEllY PEACTICE AND POEMS 527 
 
 purchaser acquires no title on which he can sue or 
 defend.®* 
 
 A deed executed by the auditor general before the ex- 
 piration of the time for redemption is void.°^ 
 
 Before the purchaser can obtain a complete title and 
 the right to the possession of the land purchased he must 
 cause the statutory six months' notice to redeem, to be 
 served as required by law.**" 
 
 The effect of the last mentioned statutory notice is to 
 give the owner six months after the year succeeding the 
 sale has expired in which to redeem, but to do so after the 
 expiration of the first year he must pay double the 
 amount paid for the purchase, the fee for service or pub- 
 lication of the notice and five dollars more for each de- 
 scription of lands redeemed. Payment may be made to 
 the purchaser or to the register in chancery (who is the 
 same person as the county clerk) for him. 
 
 A notice to redeem which omits to name the state and 
 coimty in which the land is situate is void.*" Service of 
 a good notice on a part owner is not sufficient where 
 the notice served on the other part owner is void."® 
 
 §459. The sheriff's return as to service of the notice 
 is not conclnsive but may be contradicted and the actual 
 facts shown "* but is prima facie evidence thereof '"' but 
 the fact of service and not the return of the officer con- 
 trols.^ * 
 
 The purchaser must make earnest effort in good faith 
 to ascertain the record owner of the land and his where- 
 abouts, and if he is a resident of this state must give him 
 
 64 — ^Boardman V. BoozewinMe, 121 153 Mich. 456; Morjison v. Seiner, 
 
 Mich. 320. 164 Mich. 208. 
 
 65— Fitzcher v. Olson, 155 Mich, 68 — Tucker v. Van Winkle, 142 
 
 320; Monaghan v. And. Gen., 136 Mich. 210. 
 
 Mich. ^47. 69— Winters v. Cook, 140 Mich. 
 
 6.6 — Huron Land Co. v. Eobarge, 483; Williams v. Obon, 141 Mich. 
 
 128 Mich. 6g6; Tuthill v. Katz, 163 580. 
 
 Mich. 618. 70 — Gogebic Lumber Co. v. Moore, 
 
 67- Tucker v. Van Winkle, 142 157 Mich. 499. 
 
 Mich. 210; Curry v. Larke, 153 Mieh. 71— John Duncan & Co. v. Bursch, 
 
 348; G. F. Sanborn Co. v. Alston, 145 Mich. 1. 
 
528 stage's MICHIGAN CHANCERY PEACTIGE AND FOEMS 
 
 actual notice, the good faith of this effort may be con- 
 troverted, until such effort is made without success sub- 
 stituted service is ineffectual to bar the right to redeem J ^ 
 
 When a single d^ed is made by the auditor general 
 for the taxes of several years the notice need not show 
 the amount of taxes for each year, the aggregate is 
 sufficients^ 
 
 Where a number of lots or parcels are sold separately 
 the amount paid for each must be shown to give the 
 owner an opportunity to redeem any lot or lots without 
 the others.''^ 
 
 If th,e owner is deceased the notice must be served on 
 his executor or administrator or on his heirs.^® 
 
 Where there are several owners of the same parcel of 
 land assessed as an entirety the notice must be served on 
 each part owner and until this is done any of them may 
 redeem, the purchaser cannot <3ut off the right of redemp- 
 tion by piecemalJ" 
 
 The notice must state that payment may be made to 
 the register in chancery as well as to the owner or it is 
 invalid/^ 
 
 A registered letter duly receipted for on behalf of the 
 person to whom it was sent has been held to be good 
 service.''* 
 
 § 460. Eedemption of the owner is favored by the 
 courts and technical objections thereto are not sustained 
 where equity is shown. Thus where the owner transmit- 
 ted to the register in chancery by mail a postoffice order 
 for the full amount which was received the day before 
 the time for redemption expired it was held to be a good 
 
 72— Winters v. Cook, 140 Mich. TS^WMte v. Shaw, 150 Mich. 270 ; 
 
 483; Williams v. Olson, 141 Mich. John Duncan & Co. v. Busch, 145 
 
 580. Mich. 1. 
 
 73— Williams v. Olson, 141 Mich. 76— rWhite v. Shaw, 150 Mich. 270 ; 
 
 580; John Duncan & Ga v. Busch, Dojpb v. Norton, 158 Mich. 417. 
 
 145 Mich. 1. 77— Dolph v. Norton, 158 Mich. 
 
 74-^Jackson v. Mason, 143 Mich. 417. 
 
 355 ; John Duncan & Co. v. Busch, 78 — Gogebie Lumber Co. v. Moore, 
 
 145 Mieh. 1; Ensley v. Coolbavigh, 157 Mich. 499. 
 160 Mich. 299. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 529 
 
 redemption although the register did not present the or- 
 der for pajTnentJ^ But only the original owner or his 
 grantees, heirs or mortgagees may redeem ; as against all 
 others the purchaser acquires an absolute title.*" 
 
 §461. Having taken the necessary steps to perfect 
 his title and the time for redemption having expired, the 
 purchaser, having a valid deed, is entitled to the pos- 
 session of the land. If unoccupied he may of course 
 take peaceable possession at once. If occupied he should 
 demand possession. Such demand may be made of the 
 agent of a corporation on the land.*^ 
 
 § 462. If possession be refused he may on petition 
 obtain a writ of assistance to put him in possession, a 
 suit in ejectment is not necessary.*^ 
 
 The petition should set forth in general terms the 
 facts necessary to sustain prima facie the application 
 such as the decree and that the court had jurisdiction 
 to make it, the sale to the petitioner or his assignor, the 
 deed from the auditor general, the service of the statu- 
 tory notice, the fact that the land has not been redeemed, 
 that the time for redemption has expired and that pos- 
 session has been demanded and refused. The enquiries 
 on the presentation of this writ are, 1. Whether the 
 court had jurisdiction to make the decree; 2. Whether 
 all the steps required by the statute have been taken to 
 perfect the title; 3. Whether the time for redemption 
 has expired and the land has not been redeemed.*^ 
 
 § 463. A petition to vacate a sale may be filed by the 
 owner in the same case in which the decree was made 
 for the non-performance of the statutory requirements, 
 and such petition may be amended by leave of the court 
 at the hearing by adding additional defaults in such stat- 
 
 79— Baekus v. Kilmaster, 162 a2— Ball v. Ridge Copper Co., 118 
 
 Mich. 594. Mich. 7; Beck v. Finn, 122 Mich. 21. 
 
 80— Chandler v. Clark, 151 Mich. 83— Ball v. Eidge Copper Co., 118 
 
 159. Mich. 7. 
 
 81— Ball V. Eidge Copper Co., 118 
 Mich. 7. 
 
530 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 utory requirements to those originally alleged in the 
 petition.** 
 
 § 464. Under the power given to the court to cancel 
 any sale of lands of incompetent persons if necessary to 
 protect their rights, such cancellation may be decreed 
 after a deed of the tax lands has been made by the state 
 and after the conveyance by the purchaser to another, and 
 is not affected by the provision limiting the time to move 
 to set aside the tax sale to one year. And after the death 
 of the incompetent the proceedings on the petition to 
 vacate the sale instituted on his behalf may be continued 
 by his heirs, even after the purchaser has taken posses- 
 sion, but the owner, on the cancellation of such sale, will 
 be compelled to do equity by refunding to the purchaser 
 the payments made with interest as well as the expenses 
 of any improvements he may have made, less the net 
 revenue, if any, that he may have received from the 
 property.*^ 
 
 As to the effect of the deed, the language of the pro- 
 vision of the statute that "such deeds shall convey an 
 absolute title to the land sold and be conclusive evidence 
 of title in the grantee" is construed to mean that if the 
 deed is valid it is evidence of title in fee simple provided 
 the right to make the deed is shown by a valid decree and 
 valid proceedings thereafter, as the legislature would 
 have no power to cut off all defences to a tax title by 
 making the deed no matter how obtained conclusive evi- 
 dence- of title.®® 
 
 § 465. The holder of a tax deed seeking to enforce it 
 must prove its validity. The deed itself is not even prima 
 facie evidence thereof, a valid decree must be shown.*^ 
 
 84— Hall V. Mann, 118 Mich. 201; 87— Vincent v. Evans, 165 Mich. 
 
 Baptist Church v. Eoberts, 120 Mich. 695 ; Morrison v. Semer, 164 Mich. 
 
 704. 208; Morse v. And. Gen., 143 Mich. 
 
 85 — Young V. Blanchard, 165 6J0; Dawson v. Peter, 119 Mich. 
 
 Mich. 340. 274; McKinnon v. Meston, J04 Mich, 
 
 86 — Taylor v. Devaux, 100 Mich. 642; Taylor v. Devaux, 100 Mich 
 
 581 ; McKinnon v. Meston, 104 Mich. 581. 
 642. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 531 
 
 § 466. Where the description in the deed is so defective 
 that it does not describe any land and that in the assess- 
 ment roll is equally defective no title passes.^® 
 
 A tax title will not be held void in a collateral proceed- 
 ing by reason of the loss from the files of the proof of 
 publication and of the County Treasurer's report of the 
 sale, it being shown that such documents had actually 
 been filed.** 
 
 § 467. After the sale is confirmed it cannot be set 
 aside except in cases where the taxes were paid or the 
 property was exempt from taxation or where the court 
 had not jurisdiction to make the decree.^" Nor will a bill 
 of review be allowed except for the same reasons.®^ 
 
 A tax payer believing a part only of a tax to be valid 
 may pay that part and have a receipt therefor and con- 
 test the remainder.*^ 
 
 Lands held by the state by virtue of a state bid should 
 not be included in the Auditor General's petition, but 
 this point cannot be raised collaterally."^ 
 
 If an appeal be taken to the Supreme Court it must 
 be filed with the statutory bond before the expiration of 
 the twenty days or the appeal must be dismissed.** 
 
 Where not otherwise provided the ordinary chancery 
 practice is to be followed.®" 
 
 Subrogation. 
 
 §468. Subrogation may be said to be a creation of 
 courts of equity. It is the substitution of one creditor 
 for another wherein the substituted creditor obtains all 
 the rights and equities of the original creditor. 
 
 88— Petit V. Flint & P. M. E. E. 93— Penins. Sav. Bk. v. Ward, 118 
 
 Co., 114 Mich. 362. Mioh. 87; Hoffman b. Pack, Woods 
 
 89— Hoffman v. Pack, Woods & & Co., 123 Mich. 74. 
 
 Co., 123 Mich. 74. 94 — Carney v. Baldwin, 95 Mich. 
 
 90— Spaulding v. O'Connor, 119 442. 
 
 Mich. 45. 95 — And. Gen. v. Jenkinson, 90 
 
 91— Berkey v. Burchard, 119 Mich. Mich. 523. 
 101. 
 
 92 — Chapin Mining Co. v. Udden- 
 terg, 126 Mich. 875. 
 
532 stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 
 
 The doctrine of subrogation applies principally to cases 
 wherein a surety or guarantor is compelled to pay the 
 debt of his principal, whereby the surety becomes entitled 
 to collect the debt himself from the principal debtor and 
 to all the securities and means of collection held by the 
 original creditor. To cases where one having a junior lien 
 on property is obliged to redeem it from a prior encum- 
 brance in order to protect his own lien, in which case he 
 becomes entitled to the lien held by the prior encum- 
 brancer with all his rights to enforce it, and to cases of 
 insurers who have paid for a total loss of the property 
 insured and are consequently entitled to whatever may 
 be saved from the property and also to whatever the 
 owner may recover from the person or corporation whose 
 act or negligence caused the loss, to the extent of the 
 insurance. 
 
 It is a doctrine of equity created by and enforceable in 
 a court of equity only, and should never be applied to 
 cases where subrogation would work injustice ^ or where 
 the establishment of a lien would be contrary to equity 
 or would be in aid of fraud.^ "He that commiteth 
 iniquity shall not have equity. ' ' 
 
 §469. Sureties. A surety who pays the debt of his 
 principal is entitled to be subrogated to all the rights of 
 the original creditor and to all the securities held by such 
 creditor for the payment of the debt.^ 
 
 A surety on an administrator's bond who has been 
 compelled to pay creditors after an order of distribution 
 by the Probate Court may be subrogated to the rights of 
 such creditors, and pursue and recover the trust funds 
 that have been diverted and misapplied by the adminis- 
 trator.* 
 
 Where certain sureties had under compulsion by exe- 
 cution and levy paid the whole of a judgment rendered 
 
 1 — Kelly T. Kelly, 54 Mich. 30; same case 65 Mich. 403; Eddy t. 
 
 Dwight V. Lumber Co., 82 Mich. Trevor, 6 Paige 521 ; Butterworth & 
 
 624. Lpwe v. Milling Co., 115 Mich. 1; 1 
 
 2— Morley Bros. v. Stringer, 133 Story Eq. Jur. Sees. 337, 499, 502. 
 
 Mich. 690. 4T-Pierce v. Holzei, 65 Mich. 263. 
 
 3— Myers v. Yaple, 60 Mich. 339, 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 533 
 
 against the principal, themselves and a co-surety, they 
 were held to be entitled to subrogation to the rights of 
 the judgment creditor under the levy and to enforce the 
 same to compel contribution by their co-surety.^ 
 
 Where a husband and wife held land by undivided moie- 
 ties and the husband's moiety had been sold on execution 
 against him and afterwards husband and wife joined in 
 a mortgage to another creditor of the husband to secure 
 the husband's debt and the mortgagee redeemed the land 
 from the execution sale and foreclosed his mortgage sell- 
 ing the husband's moiety first for a small sum, it was 
 held that the wife was a surety for her husband as to the 
 mortgage debt and as such had the right to redeem and 
 to be subrogated to the mortgagee's rights on reimburs- 
 ing him.® 
 
 § 470. When a debtor executes a mortgage to indem- 
 nify his surety, the principal creditor thereby becomes 
 subrogated to all the rights of the surety therein even 
 though it be given subsequent to the original obligation, 
 and without any previous agreement; and the creditor 
 may enforce it without having recovered judgment."^ 
 
 The surety of a public officer who was only surety to 
 a limited amoimt which was less than the amount of the 
 defalcation of the principal and who has not paid the total 
 amount of such defalcation, is not entitled to subroga- 
 tion.* 
 
 § 471. Junior lienors. A junior mortgagee or his 
 assignee has the right to redeem the land or property 
 mortgaged from the senior mortgagee and to be subro- 
 gated to all the rights and equities of the senior mort- 
 gagee.8 
 
 5 — Smith V. Enmsey, 33 Mich. 9 — Lamb v. Jeffrey, 41 Mich. 719, 
 
 183. same case 47 Mich. 28; Sager v. 
 
 6— Freud v. Euhl, 126 Mich. 129. Tupper, 35 Mich. 134; Bank of U. S. 
 
 7— Union N. Bank v. Rich, 106 v. Peter, 13 Peters (U. S.) 123; 
 
 Mich. 319; Albion State Bank b. Peter v. Smith, 5 Craneh 0. C. 383. 
 Knickerbocker, 125 Mich. 311. 
 
 8 — Comr. of Banking v. Bank, 161 
 Mich. 691. 
 
534 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 A judgment creditor having levied on Ms debtor's chat- 
 tels and having redeemed such chattels from a prior 
 chattel mortgage is entitled to be subrogated to the rights 
 of the mortgagee and to receive an assignment of the 
 mortgage.^" 
 
 One who has advanced money on an invalid or worth- 
 less security, for the purpose of discharging valid mort- 
 gages is entitled to be subrogated to the rights of the 
 original mortgagees.^^ 
 
 Where as part of the consideration for a conveyance 
 which in fact conveyed no title the grantee assumed to 
 pay and did pay in good faith a valid mortgage he was 
 held to be entitled to be subrogated to all the rights of 
 the mortgagee although the mortgage was in form dis- 
 charged.*^ 
 
 Where a grant of mortgaged land has been set aside 
 as fraudulent as to creditors, the grantee having redeemed 
 the land from the mortgage is entitled to be subrogated 
 to the mortgagee.** 
 
 The purchaser of a reversion either by mortgage or ab- 
 solute conveyance is subrogated to all the rights of the 
 original reversioner against the life tenant.** 
 
 The purchaser at an irregular and invalid chattel mort- 
 gage sale is subrogated to all the rights of the mort- 
 gagee.*^ 
 
 § 472. A stranger to the title who voluntarily pays 
 and satisfies a mortgage cannot be subrogated to the 
 rights of the mortgagee.*" 
 
 One who is entitled to redeem and does redeem from a 
 
 10 — ^Lucking v. Wesson, 25 Mich. 13 — Woleott v. Tweddle, 133 Mich. 
 
 443. 389. 
 
 11— Hall V. Marshall, 139 liJich. 14— Jeifks v. Horton, 96 Mich. 15. 
 
 123; Coulter v. Minion, 139 Mich. 15 — Cavanaugh v. Sanderson, 152 
 
 200; Sproal v. Larsen, 138 Mich. Mich. 16. 
 
 142; Palmer v. Sharp, 112 Mich. 16 — ^Desot v. Boss, 95 Mich. 81; 
 
 420; Draper v. Ashley, 104 Mich. Smith v. Austin, 9 Mich. 465. 
 527. 
 
 12 — Taylor v. Eoniger, 147 Mich, 
 99, 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 535 
 
 statutory f»reclosure of a mortgage is entitled to be 
 subrogated to the rights of the mortgagee." 
 
 § 473. Other Instances. Where lands were mortgaged 
 to secure the debts of other parties than the mortgagor, 
 and the mortgagor afterwards died having devised the 
 land so mortgaged to the complainant, and the complain- 
 ant redeemed the land, the complainant was held subro- 
 gated to all the rights which the mortgagor had to en- 
 force payment of the debts to secure which the mortgage 
 had been given. ^* 
 
 Where stock in a corporation which was fraudulently 
 obtained by the promoters has been transferred to bona 
 fide holders as security for a debt, the holder has a right 
 to retain it as such security subject to the right of the 
 corporation to pay the debt and be subrogated to the 
 holders' rights.^* 
 
 Where a number of individuals had agreed to form a 
 corporation and to take and pay for certain shares of 
 stock respectively and in their own individual names in 
 the same instrument agreed with a building firm for the 
 erection of a factory for a certain sum to be paid for 
 from the stock as subscribed, and the factory was built, 
 but all the subscribers not having paid the amounts as 
 agreed, the building firm was not fully paid, the unpaid 
 subscriptions being sufficient in amount to pay the bal- 
 ance, the building firm would be entitled to be subrogated 
 to the rights of the impaid subscribers in the factory to 
 the amount of the balance due them.^" 
 
 To entitle a junior mortgagee to be subrogated to the 
 rights of a purchaser at the foreclosure of a senior mort- 
 gage the junior mortgagee must reimburse to the senior 
 all that is due on the debt with his expenses.^^ 
 
 One who is equitably entitled to land is entitled to be 
 
 17 — Moore v. Smith, 95 Mich. 71. 20 — Davia Building Co. v. Murray, 
 
 18— Goodrich v. Leland, 18 Mich. 102 Mich. 217. 
 
 110. 21— Dayton v. Stahl, 132 Mich. 
 
 19 — Cuba Colony Co. v. Kirby, 149 360, 
 Mich. 453. 
 
536 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 subrogated to the rights of a mortgagee of the land on 
 payment of the mortgage.^^ 
 
 § 474. The bill should set forth clearly and with pre- 
 cision the facts which entitle the complainant to the sub- 
 rogation prayed showing all the facts and circumstances. 
 In case of a bill by a surety to be subrogated to a credi- 
 tor's lien all the co-sureties should be made parties.^^ 
 The bill should be carefully drawn so as to show clearly 
 the equity of the complainant and should pray for the 
 subrogation to which he deems himself entitled and should 
 be careful not to ask for any relief inconsistent there- 
 with.2* 
 
 BILL FOR SUBROGATION. 
 
 (Address and introduction.) 
 
 1. That on or about the day of , 19 . . , one 
 
 C. D., being indebted to one E. P. in the sum of dol- 
 lars, to secure the payment thereof with interest, made and de- 
 livered to the said E. P., a certain promissory note, bearing date 
 the said day of , 19 . . , and thereby prom- 
 ised to pay to the said E. P. the said sum of money, 
 
 years after the date thereof, with interest thereon at the rate 
 
 of per cent per annum, payable annually, from the 
 
 said date which said promissory note was signed by the said 
 C. D., as principal, and also by your orator, as surety, for the 
 said C. D. and without any consideration moving from the said 
 C. D. or the said B. P. to your orator. 
 
 2. And that further to secure the payment of the said sum 
 of money and the interest thereof as aforesaid, the said C. D. 
 and M. D., his wife, then also made, executed and delivered to 
 the said E. P. a certain indenture of mortgage, beariag date 
 
 the said day of , A. D. 19 . . , and therein and 
 
 thereby did graut, convey and mortgage to the said E. P., in fee 
 simple, all that certain piece and parcel of land, situate in the 
 
 of in said county of . . , and described 
 
 as follows: (insert description of land), which said indenture 
 of mortgage was upon the express condition that if the said C. D. 
 and M. D. should well and truly pay or cause to be paid to the 
 
 said E. P. the said sum of dollars, in years 
 
 from the date thereof with interest at per cent per 
 
 annum, payable annually, from the said date, according to the 
 
 22— Warner v. Hall, 53 Mich. 372. 24— Davia Building Co. v. Murray, 
 
 23— Hook V. Bicheson, 115 111. 431. 102 Mich. 217, 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 537 
 
 provisions of the said promissory note, then the said indenture 
 of mortgage and said note should cease and become null and 
 void; which said indenture of mortgage was afterwards and on 
 
 the day of , 19 . . , duly acknowledged by the 
 
 said C. D. and M. D., his wife, to be their free act and deed, be- 
 fore X. T., a notary public, duly authorized to take such ac- 
 knowledgment, and which said indenture of mortgage was after- 
 wards and on the day of , 19 • • , duly recorded 
 
 in the office of the register of deeds of the said county of 
 
 , in liber of mortgages, at page to 
 
 which record now remainiag in the said register's office, your 
 orator prays leave to refer. 
 
 3. And that afterwards and before the maturity of the said 
 promissory note the said C. D. became insolvent and so remained 
 until after the said promisory note became due and still so re- 
 mains, and that at the time of the maturity of the said note the 
 said C. D. was wholly unable to pay the amount due and owing 
 thereon. 
 
 4. ,A2id that after the maturity of the said promissory note 
 
 and on the day of , 19 . . , the said E. F. then 
 
 the holder and owner thereof, demanded of your orator the 
 amount due thereon and your orator was compelled to, and did 
 on the said last mentioned day, pay to the said E. F. the full 
 amount due thereon, which was then the sum of dol- 
 lars, which said payment was then accepted and received by the 
 said E. F. in full satisfaction of the said note, and the said E. 
 P. then surrendered the said note to your orator and your orator 
 now has the same in his possession, ready to be produced and 
 proved as this court shall direct, and thereto prays leave to 
 refer. 
 
 5. And that by reason of the continued insolvency of the 
 said C. D. your orator is unable to collect from him the said 
 sum so paid to the said E. F. as aforesaid, and is in danger of 
 losing the same, and that in equity and good conscience your 
 orator is entitled to be subrogated to all the security, including 
 the lien of the said indenture of mortgage, given to and held by 
 the said E. F. 
 
 6. And your orator is informed and believes and charges 
 the truth to be that one G. H. and one J. K. have, or claim to 
 have, some rights or interests in the said mortgaged land and 
 premises as subsequent purchasers or incumbrancers, or other- 
 wise, but he avers and charges the fact to be that such rights and 
 interests, if any there be, have accrued since the execution and 
 delivery of the said indenture of mortgage and are subsequent 
 to the rights and equities of your orator. 
 
 7. And your orator further shows that no suit or proceed- 
 
538 stage's, MICHIGAN CHANCEEY PKACTICE AND FOBMS 
 
 ing at law has been had or taken for the recovery of the said 
 sum of money so as aforesaid due to your orator from the said 
 C. D., or any part thereof. 
 Your orator therefore prays : 
 
 I. That the said C. D., M. D., G. H. and J. K., the defend- 
 ants hereto, may, without oat, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters hereinbefore stated and charged. 
 
 II. And that your orator may be decreed to be subrogated to 
 aU the rights and benefits of the said indenture of mortgage 
 and the lien thereof possessed by the said B. P. at the time of 
 the payment of the said debt to him. 
 
 III. And that an account may be taken of the amount due 
 and owing to your orator from the said C. D. on account of the 
 money so paid by your orator as aforesaid on the said promissory 
 note, and interest thereon from the time of such payment. 
 
 IV. And that the said defendant, C. D., may be decreed to 
 pay to your orator, at a short day to be named in such decree, 
 the amount found to be due to your orator on such accounting 
 with interest and the costs of this suit. 
 
 V. And that in default of such payment the said land may 
 be sold under the decree and by the direction of this court, and 
 that the proceeds of such sale be applied, after payment of the 
 expenses of such sale, to the payment and satisfaction of the 
 said sum so found due to your orator on such accounting with 
 interest thereon and the costs of this suit. 
 
 VI. And that in case of such sale, if the said land be not re- 
 deemed therefrom according to law, that the said defendants and 
 all persons claiming through, by or under them, or any of them 
 since the commencement of this suit, be forever barred and fore- 
 closed of and from aU equity of redemption, and of all right, 
 title and interest of, in or to the said mortgaged premises, and 
 that the said defendants, or whoever niay then be in possession 
 of the said land and premises, or any part thereof, under them 
 or any of them, do forthwith, after the expiration of six months 
 after the said sale, surrender possession of the said land to the 
 purchaser or purchasers at such sale, on production of the deed 
 of the circuit court commissioner or other person making such 
 sale, and the production of a certified copy of the order of con- 
 firmation thereof, after such order shall have become absolute. 
 
 VII. And that your orator may have such further or other 
 relief in the permises as shall be agreeable to equity and good 
 conscience. 
 
 And your orator will ever pray, etc. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 539 
 
 Establishment of Liens and Rights in Land. 
 
 §475. Courts of equity do not establish liens when 
 there is no agreement for a lien between the parties.'^ 
 
 Where a man furnished money to a party to purchase 
 real estate under an agreement that he should have a 
 mortgage thereon for the amount, but died before any 
 mortgage was given, the land having been purchased as 
 contemplated, on a bill by his executor a lien will be es- 
 tablished in favor of his estate.^ 
 
 Subscribers to stock in a hotel erected and maintained 
 by defendant, under an agreement that each stockholder 
 should have an ownership interest therein and should be 
 paid interest, who have paid up their subscriptions are 
 entitled to a lien on the building for interest although no 
 stock was ever actually issued.* 
 
 An aged man mentally weak furnished money to the 
 defendant, a woman, to purchase land under a verbal 
 agreement that the title should be taken in their joint 
 names. Defendant purchased the land with the money so 
 furnished but took the deed in her own name. Held that 
 equity would establish his rights and interests in the land 
 according to the agreement.* 
 
 Bills to Redeem. 
 
 § 477. Whenever a lien is created upon lands or chat- 
 tels, eithier by operation of law, such as tax liens, or by 
 act of the parties, as by mortgages or other instruments 
 or contracts, or by a combination of both as by mechanic's 
 liens, etc., the owner has the right to redeem the property 
 from the lienholder by the payment of the amount due. 
 This right can only be cut off by a lawful and complete 
 foreclosure of the lien ; and in some cases equity will per- 
 mit a redemption even after a foreclosure. 
 
 Eedemptions are favored by the courts, and written 
 instruments and statutes are construed most strongly in 
 
 1— Eiehards v. Arms Shingle & 3 — Near v. Donnelly, 80 Mich. 130. 
 
 Lumber Co., 74 Mich. 57. 4 — McWilliama v. Doran, 103 
 
 2 — ^Williams v. Eice, 60 Mich. 102; Mich. 588, 
 Osgood T. Osgood, 78 Mieh. 290. 
 
540 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 favor of a redemptioner,* although when a period for 
 redemption is definitely limited by statute the courts have 
 no power to extend it.^ 
 
 § 478. Who May Redeem. No one can redeem lands 
 from a mortgage or tax lien unless he has an interest in 
 the land.^ Neither can one whose sole interest is under 
 a trust deed by which he is to become entitled to the land 
 after payment of certain mortgages and charges on it 
 when he repudiates the trust.* If a second mortgagee al- 
 lows the holder of the prior mortgage to proceed to a 
 complete foreclosure he cannot afterwards redeem.^ 
 
 The mortgagor and those claiming under him may 
 redeem from the mortgagee as a matter of course at any 
 time before foreclosure. If there be a controversy as to 
 the amount due on a mortgage and the mortgagee com- 
 mences to foreclose in equity the true amount due can be 
 ascertained in that suit, but if the foreclosure be by ad- 
 vertisement and a larger amoimt is claimed than is actu- 
 ally due, the remedy of the mortgagor is to file a bill for 
 accounting and redemption." 
 
 A junior mortgagee may redeem from a prior mortgage 
 and thereby acquire the right of assignment or subroga- 
 tion,''^ but this right will be denied after a long lapse of 
 time where the junior mortgagee has allowed a period 
 exceeding the statute of limitations to run against his 
 mortgage.* 
 
 A wife may redeem the homestead from a mortgage 
 
 1— Stahl \. Dehm, 72 Mich. 645; 4— Smith v. Austin, 11 Mich. 34. 
 
 Monaghan v. Auditor General, 136 5 — Cameron v. Adams, 31 Mich. 
 
 Mieh. 247; Pike v. Biehardson, 136 426; Gantz v. Toles, 40 Miqh. 725; 
 
 Mich. 414. Marshall v. Blass, 82 Mieh, 518. 
 
 2 — Cameron v. Adams, 31 Mich. 6 — Schwartz v. Sears, Harp. Ch. 
 
 426; Dumphy v. Hilton, 121 Mich. 440; Sanford v. Flint, 24 Mieh, 26; 
 
 315. Louder v. Burch, 47 Mieh. 109. 
 
 3— Smith V. Austin, 9 Mich. 465; 7 — Sager v. Tupper, 35 Mich. 134; 
 
 Harwood v, trnderwood, 28 Mich. Carter v. Lewis, 27 Mich. 241 ; Lamb 
 
 247; Millard v. Truax, 50 Mich. 343; v. JeiJery, 47 Mich. 28. 
 
 Chandler v. Clark, 151 Mich. 159. 8— Cook v. Pinkler, 9 Mich. 131. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 541 
 
 made thereon by her husband before marriage and have 
 the benefit of assignment.^ 
 
 An assignee in bankruptcy of a junior mortgagee may 
 redeem from the prior mortgage, i'' 
 
 The mortgagor of an indemnity mortgage foreclosed 
 by advertisement before the mortgagee had suffered any 
 loss and consequently before anything was due, may re- 
 deem although the mortgagee subsequent to the fore- 
 closure proceedings did suffer loss.^^ 
 
 Where land is conveyed by a debtor to a creditor by 
 deed absolute in form with a contract back to reconvey 
 on payment of the amount of the debt with interest, the 
 transaction is a mortgage and the debtor is entitled to 
 redeem and after his death his administrator is.^^ 
 
 A junior mortgagee who was not made a party to the 
 bill by a prior mortgagee to foreclose his mortgage may 
 redeem from such prior mortgage even after a decree of 
 foreclosure thereof had been made.^^ 
 
 § 479. A biU to redeem is the appropriate remedy of 
 the mortgagor and those claiming under him in the case 
 of an irregular or inequitable statutory foreclosure of a 
 mortgage,^* and a bill to vacate a statutory foreclosure 
 will be usually treated as a biU to redeem, whether re- 
 demption is prayed or not.^^ 
 
 § 480. Where a tenant for life of lands subject to a 
 mortgage suffers the mortgage to be foreclosed by ad- 
 vertisement and the year of redemption to expire the 
 remainder man who had no actual notice or knowledge 
 of the foreclosure may redeem and in such case the life 
 tenant is charged with a sum equal to the present value 
 
 9 — Moore v. Smith, 95 Mich. 71; 13 — Pritehard v. Kalamazoo Col- 
 see Sanborn v. Sanborn, 104 Mich. lege, 82 Mich. 587. 
 180. 14 — Dodge v. Northrop, 85 Mich. 
 
 10 — Avery v. Eyerson, 34 Mich. 243; O'Connor v. Keenan, 132 Mich. 
 
 362. 646 ; Mclntyre v. Wyckoff, 119 Mich. 
 
 11 — Thurston v. Prentiss, Walk. 557. 
 
 Ch. 530. 15— Huyck v. Graham, 82 Mich. 
 
 12 — Batty v. Snook, 5 Mich. 231; 353; Drayton v. Chandler, 93 Mich. 
 
 Enos V. Sutherland, 11 Mich. 538. 383. 
 
542 stage's MICHIGAK CHANCERY PEACTICE AND POEMS 
 
 of an annuity on his life of the amount of the annual 
 interest, he being chargeable with the interest on the 
 mortgage.^* 
 
 The grantor of a mortgage made in trust for the benefit 
 of the creditors, and those claiming under such grantor 
 have a right to redeem upon payment of the claims of 
 such creditors before the trust has been executed." 
 
 § 481. A judgment creditor has no interest in the 
 homestead of his debtor and consequently cannot redeem 
 it from a mortgage thereon.^ ^ 
 
 § 482. Where a junior mortgagee agreed with the pur- 
 chaser (who was also the prior mortgagee) at the fore- 
 closure of a prior mortgage by advertisement that if the 
 sale became absolute he would purchase the premises for 
 the face of the prior mortgage with interest and ex- 
 penses but, a doubt arising as to the validity of the sale, 
 he afterwards declined to do so, he was allowed to redeem 
 on payment of the full amount due with all expenses.^* 
 
 Where a first mortgagee had commenced foreclosure 
 and while it was pending and after a decree was made for 
 the sale of the land, he obtained a quit-claim from the 
 mortgagor and went into possession without completing 
 his foreclosure by a sale, a second mortgagee was held 
 entitled to redeem.^" 
 
 A long delay will bar the right to redeem and a very 
 strong showing is necessary to sustain a bill to redeem 
 after such delay .^^ 
 
 Where the defendant obtained the title from the pur- 
 chaser at a mortgage foreclosure sale for the express 
 
 16 — Engle v. Ladering, 153 Mich. 19 — Brown v. Burney, 128 Mich. 
 
 8; see Camptell v. Campbell, 21 205. 
 
 Mich. 434; Bowen v. Brogan, 119 20 — Farmers & Mechanics Bank v. 
 
 Mich. 218; Defreese v. Lake, 109 Bronson, 14 Mich. 361. 
 
 Mich. 415; Damm v. Damm, 109 21 — Eeynolds v. Green, 10 Mich. 
 
 Mich. 619. 355; Hoffman v. Harrington, 33 
 
 17 — Frank v. Morley's Estate, 106 Mich. 392; Emmons v. Van Zee, 78 
 
 Mich. 635. Mich. 171. 
 
 18— Palmer v. Bray, 136 Mich. 85. 
 
stage's MICHIGAN CHANCEKY PEACTICE AND FORMS 543 
 
 purpose of giving the complainant (the owner) further 
 time to redeem, the redemption was allowed.** 
 
 § 483. Chattel Mortgages. A sale on a chattel mort- 
 gage, made by a surviving partner for the benefit of 
 creditors, was set aside on a bill by the administrator of 
 the deceased partner where the property was sold va. bulk 
 for a small part of its value to the surviving partner's 
 wife.** 
 
 A sale on a chattel moragage of hotel furniture in bulk 
 where it was not collected but remained distributed for 
 use in the different rooms, was held void where the mort- 
 gagee was the purchaser and only bidder and previous to 
 the sale had taken possession and was operating the 
 hotel and the sale was for far less than the value of the 
 property.** 
 
 N. B. Redemption from chattel mortgages is rarely 
 sought in equity as in most eases the remedy is ample at 
 law. 
 
 § 484. Redemption From Tax Sales. The original 
 owner may redeem from a purchaser at a tax sale who 
 has obtained a deed but has omitted to give the statutory 
 notice, but the owner must in such case repay to the pur- 
 chaser all sums he has in good faith paid with interest.*^ 
 
 To redeem from a purchaser after he has obtained his 
 deed and given the statutory six months' notice the re- 
 demptioner must pay all sums which the purchaser has 
 paid and one hundred per cent in addition, and the costs 
 of the notice, the money must be paid to the purchaser or 
 to the register in chancery, payment to the auditor gen- 
 eral in such cases is not authorized.*® 
 
 It has been held that the six months statutory redemp- 
 tion after the giving of the deed does not begin to run 
 
 22 — Newman v. Locke, 66 Mich. 25 — G. F. Sanborn Co. v. Alston, 
 
 27. 153 Mich. 456. 
 
 23 — Smitton v. Seibert, 136 Mich. 26 — Cheever v. Flint Land Co., 134 
 
 410. Mich. 604. 
 
 24 — Castner v. Darby, 128 Mich. 
 £41. 
 
544 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 •until the filing of the sheriff's return of the giving of the 
 notice in the office of the county clerk.^'^ 
 
 § 485. Putting a draft in the postoffice in a distant city 
 in a letter addressed to the county treasurer one day be- 
 fore the redemption expired which was not received by 
 the county treasurer until the day after the redemption 
 expired is not a sufficient redemption.^* 
 
 Where lands were sold as state tax lands and as lands 
 delinquent for non-payment of taxes at the same sale, it 
 was held that the owner had a right to redeem at any 
 time before the expiration of the period of redemption for 
 delinquent taxes.^* 
 
 § 486. Where the solicitor for a mortgagee in proceed- 
 ings to foreclose the mortgage, bid off the mortgaged land 
 at a tax sale his bid is presumed to be in the interest of 
 his client and to be a redemption from the tax.^° 
 
 Redemption from a tax sale by one who has an apparent 
 legal title to the land, but which title was in fact void be- 
 cause obtained by fraud, merely operates to restore the 
 title to the original owner.^^ 
 
 § 487. The bill must show that the complainant has an 
 interest in the land subject to the mortgage and what the 
 interest is. A mere statement that he became interested 
 in the^and by contract without setting out the contract 
 or stating its terms or with whom it was made or the in- 
 erest therein contracted for is not sufficient.''^ 
 
 § 488. A bill by several joint complainants must fail 
 if they have no joint interest in the land, notwithstanding 
 whatever any one of them might be entitled to in a 
 separate proceeding.^^ 
 
 27— Pike v. Eichardson, 136 Mieh. 31— Chandler v. Clark, 151 Mieh. 
 
 414. 159. 
 
 28— Paine v. Boynton, 124 Mich. 32— Smith v. Austin, 9 Mieh. 456; 
 
 194. Chandler v. Clark, 151 Mieh. 159; 
 
 29 — Monaghan v. Auditor General, Lamb v. Jeffrey, 47 Mich. 28; Glass 
 
 136 Mich. 247. v. Glass, 50 Mieh. 289. 
 
 30— Boardman v. Boozewinkel, 121 33 — Bigelow v. Booth, 39 Mich. 
 
 Mich. 320. 622. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 545 
 
 Where a bill prays leave, to redeem from a statutory 
 foreclosure claiming- that usurious interest was charged 
 and certain payments not credited, the bill is sufficient 
 without bringing the money admitted to be due into 
 court.^* 
 
 A distinct offer in terms to redeem by paying the 
 amount actually due is not indispensable in a bill for 
 relief against a statutory foreclosure claiming more than 
 is due, where the parties have gone fully into the merits,^^ 
 but the bill should show an intent to redeem. 
 
 A distinct offer to pay the amount due is not indis- 
 pensable in a bill to redeem,^** but it is the better practice 
 to insert it. 
 
 § 489. A bill to redeem from a conveyance claimed to 
 have been a mortgage although in form a deed, after the 
 lapse of twenty years after the grantee had taken pos- 
 session as owner, must show such facts as will establish 
 the instrument as still in force as a mortgage and subject 
 to redemption.^'^ 
 
 The bill should state all the facts necessary to show 
 to the court that a redemption will be equitable. It should 
 contain a sufficient description of the land and of the lien 
 from which redemption is sought and the amount actually 
 due thereon. 
 
 § 490. If the bill be to redeem from an irregular, un- 
 just or inequitable statutory foreclosure the facts consti- 
 tuting the irregularity, injustice or want of equity should 
 be stated and if from an irregular or defective tax sale 
 the defect or irregularity should be clearly set forth. If 
 there has been any delay the bill should state the circum- 
 stances causing such delay as well as the facts excusing 
 it. The bill should contain an offer to pay whatever shall 
 be found to be due on a just and equitable accounting in- 
 
 34 — Schwartz v. Sears, Harr. Ch. see Huyck v. Graham, 82 Mich. 
 
 440. 35?; Drayton v. Chandler, 93 Mich. 
 
 35— Sanford v. Flint, 24 Mich. 26. 383. 
 
 36— Quinn v. Brittain, Hoff. Ch. 37— Eeynolds v. Green, 10 Mich. 
 
 353; Barton v. May, 3 Sandf. Ch. 355. 
 450; Beach v. Cook, 28 N. Y. 508; 
 
546 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 eluding all lawful costs and expenses incurred in good 
 faith by the defendant. If a tender has been made and 
 refused the bill should state those facts together with the 
 reason given for such refusal, if any. If the amount 
 admitted to be due has not been tendered the reason for 
 such failure to tender should be stated. 
 
 The better practice is to pay the money tendered or 
 admitted to be due into court as such payment if found 
 to be sufficient will stop the running of interest and 
 usually save costs,^* but as already shown such payment 
 is not absolutely essential, especially where the amount 
 is in dispute. 
 
 § 491. Parties. Where a wife files a bill to redeem a 
 homestead, the title whereto is in the husband, the hus- 
 band is not a necessary party.^" But where a husband 
 files such a bill the wife should be made a party as the 
 decree may order a sale of the land if the amount due be 
 not paid.*" The holder of the lien and all persons claim- 
 ing an interest in the land through or under him should 
 be made parties defendant and as a general rule all per- 
 sons interested in the result of the suit should be made 
 parties thereto, but an objection that the heirs of a de- 
 ceased mortgagor were not made parties to a bill by his 
 administrator to redeem, not made until the hearing on 
 pleadings and proofs, will be disregarded as the decree 
 (allowing redemption) could not in any way prejudice 
 the heirs.* 1 
 
 At the hearing the defendants will not be allowed to 
 increase the amount apparently due on the face of the 
 instruments by giving evidence of an agreement to pay a 
 higher rate of interest than the mortgage calls for when 
 neither the bill nor the answer made any reference to any 
 such agreement.*^ 
 
 38— Sager v. Tupper, 35 Mich. 41— Enos v. Sutherland, 11 Mich. 
 
 134 Schwartz v. Seara, Harr. Ch. 588. 
 
 440. 42 — Fosdick v. Van Husan, 21 
 
 39— Sanborn v. Sanborn, 104 Mich. Mich. 567. 
 180. 
 
 40— Hawes v. Detroit P. & M. Ins. 
 Co., 109 Mich. 324. 
 
stage's MICHIGAN CHANCEBY PBACTIOB AND FOEMS 547 
 
 § 492, Decree. The proper decree in a case where 
 there was a controversy as to the amount due' and the de- 
 fendant had taken proceedings to foreclose by advertise- 
 ment and the court has at the hearing determined the 
 amount due and allowed redemption, is that unless the 
 amount decreed to be necessary for redemption be paid 
 within a certain specified time, the property be sold as in 
 foreclosure cases in equity and not that in case of non- 
 payment the title should become absolute in the mort- 
 gagee,'** and such is the decree in the generality of cases 
 in which redemption is allowed unless under very special 
 circumstances. 
 
 "When the bill is dismissed on the merits without reser- 
 vation the foreclosure is rendered absolute.** 
 
 Where a payment is disputed the burden of proof is on 
 the complainant to show it.*^ 
 
 On a bill to vacate a foreclosure by advertisement which 
 was shown to have been regular the complainant was 
 allowed to redeem within a reasonable time fixed by the 
 court on payment of all sums due and the expenses of the 
 foreclosure and the costs.*® 
 
 § 493. Costs. As a general rule the costs of a suit to 
 redeem are chargeable to the complainant, but where the 
 defendant has denied to the complainant the means of 
 ascertaining the exact amount due him or has taken un- 
 conscionable means to attempt to prevent redemption or 
 has unconscionably refused to accept a sufficient tender 
 the defendant may be charged with costs.*'^ 
 
 If a co-tenant whose duty it is to pay his share of a 
 mortgage debt purchases the mortgage he redeems it 
 pro tanto and takes an assignment of the remaining in- 
 terest only.*^ 
 
 43 — Fosdiek v. Van Husan, 21 46 — Mclntyre v. Wyckoff, 119 
 
 Mich. 567; Grover v. Fox, 36 Mich. Mich. 557. 
 
 462. 47 — Lamb v. JefEery, 47 Mich. 28; 
 
 44_A(jam8 v. Cameron, 40 Mich. Meigs v. McFarlan, 72 Mich. 194. 
 
 506; Ferine v. Dunn, 4 John. Ch. 48— Damm v. Damm, 91 Mich. 
 
 140. 424. 
 
 45— Millard v. Truai, 73 Mich. 
 381. 
 
548 stage's MICHIGAN CHANCEEY PEACTIOE AND FORMS 
 
 Where the owner of a mortgage assigned it to his own 
 creditor to secure a debt of less amount than that secured 
 by the mortgage it was held to be a mortgage of a mort- 
 gage and that the original owner might maintain a bill 
 to redeem from his assignment.*^ 
 
 BILLS TO REDEEM. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19 . . , your orator was indebted to one C. D. in 
 
 the sum of dollars, and being so indebted did with M. 
 
 B., his wife, make, execute and deliver to the said C. D. a cer- 
 tain indenture of mortgage, bearing date the same day and year 
 aforesaid, and therein and thereby did grant, bargain, convey 
 and mortgage to the said C. D. all that certain piece and parcel 
 of land, situated, etc., (describe the land), which said inden- 
 ture of mortgage was upon the express condition that if your 
 orator and M. B., his wife, the parties of the first part thereto, 
 should pay to the said C. D., the party of the second part thereto, 
 
 his executors, administrators or assigns, the said sum of 
 
 dollars, years from the date thereof, with interest at 
 
 per cent per annum, payable (state terms of payment), 
 
 according to the provisions of a certain promissory note therein 
 mentioned, then the said indenture of mortgage and the said 
 promissory note should cease and be and become null and void. 
 
 2. And that afterwards and on or about the day 
 
 of , 19 . . , the said indenture of mortgage was duly re- 
 corded in the office of the register of deeds for the said county of 
 
 , in liber of mortgages, at page , to 
 
 which record now remaining in the said register's office your 
 orator p.rays leave to refer. ' 
 
 3. And that your orator continued to retain possession of 
 the said mortgaged land and premises from thence forward 
 hitherto, and still has and retains possession thereof, and has re- 
 ceived and still receives the rent, issues and profits thereof, and 
 that the said C. D. still retains and holds the said indenture of 
 mortgage and the note therein mentioned, and that the said mort- 
 gage is now overdue and is undischarged. 
 
 4. And that during all the time since the making and de- 
 livery of the said indenture of mortgage your orator has paid 
 the interest thereon as the same fell due from time to time, qnd 
 has also from time to time, paid to the said C. D. divers sums 
 of money on the principal thereby secured, amounting in all to 
 
 49 — Graydon v. Church, 7 Mich. 
 36. 
 
stage's MICHIGAN CHANCEEY PEAOTICE AND FOBMS 549 
 
 the sum of dollars; and has. also during that time, 
 
 from time to time, at the request of the said C. D. done and per- 
 formed a large amount of work and labor for the said C. D. of 
 the value of dollars, and has also during that time fur- 
 nished, sold and delivered to the said C. D. at his request divers 
 
 goods, wares and merchandise of the value of dollars, 
 
 all which said last mentioned sums your orator is entitled to 
 have applied toward the payment of the said principal sum of 
 
 dollars, secured by the said indenture of mortgage, 
 
 and that when such several sums shall be. so applied it will be 
 found that there is now not to exceed the sum of dol- 
 lars due or owing on the said indenture of mortgage and note. 
 
 5. And that your orator is ready and willing and hereby 
 offers to pay to the said C. D. the said last mentioned sum of 
 
 money, and has heretofore and on the day of , 
 
 19 . . , tendered and offered to pay the same to the said C. D. 
 in payment and satisfaction of the said mortgage, and at the 
 same time requested the said C. D. to discharge the said inden- 
 ture of mortgage, and then tendered and presented to the said 
 
 C. D. in presence of a notary public of said county of , 
 
 a written discharge and release of the said mortgage, and re- 
 quested the said C. D. to execute the same and to acknowledge 
 such execution before said notary and to surrender the said in- 
 denture of mortgage and the said note to your orator, but so 
 to do the said C. D. has hitherto refused, and still doth refuse, 
 and claims that there is more than the said sum of dol- 
 lars, due and owing to him thereon, whereas your orator avers 
 the contrary to be true. 
 
 I. Your orator therefore asks the aid of this honorable court 
 that the said C. D. may, if he can show why your orator should 
 not have the relief hereby prayed, without oath, all answer upon 
 oath being hereby waived, full, true, direct and perfect answer 
 make to all and singular the matters hereinbefore stated and 
 charged. 
 
 II. And that he may come to a just and equitable account- 
 ing with your orator as to the amount of money due and owing 
 to him upon the said indenture of mortgage and note, your 
 orator being ready, and willing and hereby offering to pay to 
 the said C. D. whatever sum shall be found to be due and owing 
 to him on the said indenture of mortgage and note. 
 
 III. And that upon such payment the said indenture of 
 mortgage may be decreed to be fully paid and satisfied, and 
 that the said defendant be decreed to make, execute, acknowl- 
 edge and deliver to your orator a good and sufficient release and 
 discharge thereof, and that he surrender the same with the said 
 note to your orator. 
 
 IV. And that your orator have leave to cause such decree 
 to be recorded in the office of the said register of deeds. 
 
550 stage's MICHIGAN CHANOEBY PBAOTICE AND FOEMS 
 
 V. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 (Add prayer for subpoena if desired and conclusion.) 
 And your orator will ever pray, etc. 
 
 COMPEL APPLICATION OF PAYMENTS. 
 (Address, introduction and three first paragraphs in last form.) 
 
 4. And that since the making and delivery of the said in- 
 denture of mortgage your orator and the said C. D. have had 
 divers other dealings and transactions upon open account, and 
 your orator by reason of such dealings and transactions becailie 
 indebted to the said C. D. upon open account in divers other 
 sums of money, and during the time aforesaid your orator had 
 paid to the said C. D. divers large sums of money to be applied 
 on the said indenture of mortgage, that is to say, on or about 
 
 the day of , 19. ., your orator paid said C. 
 
 D. the sum of dollars ; and on or about the 
 
 day of , 19. ., your orator paid the said C. D. the sum 
 
 of dollars; (stating each sum paid and proceed) and 
 
 that at the time of each of the said payments it was distinctly 
 stated by your orator to the said C. D. that such payments were 
 made upon the debt secured by the said indenture of mortgage, 
 and not upon any other indebtedness, and that the said C. D. 
 at the time of each of said payments accepted the same as paid 
 upon the said indebtedness secured by the said indenture of 
 mortgage, and your orator avers that the sum of the said sev- 
 eral payments is, and was at the time of the last of such pay- 
 ments, sufiEiicient to satisfy the entire indebtednes, as well interest 
 as principal, secured by the said indenture of mortgage, and 
 that the said indebtedness was by the said last payment fully 
 paid and satisfied. 
 
 5. And that your orator thereupon afterwards and on the 
 
 day of , A. D. 19 . , , requested the said C. D. 
 
 to discharge and release the said indenture of mortgage, and 
 then tendered and presented to him in presence of a notary pub- 
 lic a written discharge of the said indenture of mortgage and 
 requested him, the said C. D., to execute and acknowledge such 
 execution before such notary; but so to do the said C. D. has 
 utterly refused and still doth refuse, and the said C. D. claims 
 that the said payments ought not to be, and were not applied 
 on the debt secured by the said indenture of mortgage, but upon 
 the open account between himself and your orator, and that 
 there is still a large sum due and owing to him on the indebted- 
 ness secured by the said indenture of mortgage, whereas your 
 orator avers the contrary to be true. 
 
 (Prayer and conclusion as in last form,.) 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 551 
 
 DEED INTENDED AS A MORTGAGE. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 _• • , 19 . . , your orator became and was indebted to one 
 
 C. D. in the sum of dollars, and being so indebted it 
 
 was agreed by and between your orator and the said C. D. that 
 your orator should pay the same to the said C. D. at the expira- 
 tion of years from that time, with interest thereon at 
 
 the rate of per cent per annum, payable annually, from 
 
 that time until said principal sum should be fully paid, and 
 that to secure such payment your orator and M. B., his wife, 
 did make and execute under their hands and seals, acknowledge 
 and deliver to the said C. D. a deed of conveyance, absolute in 
 form, bearing date the same day and year herein first mentioned, 
 therein and thereby purporting to convey to the said C. D., his 
 heirs and assigns, forever, in fee simple, all that certain piece 
 or parcel of land (describe the land) together with all and sin- 
 gular the hereditaments and appurtenances thereunto belong- 
 ing or in anywise appertaining, which said deed of conveyance 
 is not in the possession of your orator and your orator is un- 
 able to produce the same, but is in the possession of the de- 
 fendants hereto, or of some one of them. 
 
 2. And that the said deed of conveyance was afterwards 
 
 and on or about the day of , 19 . . , by the 
 
 procurement and at the instance of the said C. D. recorded in 
 
 the office 'of the register of deeds of the said county , 
 
 in liber of deeds, at page , to which record 
 
 your orator prays leave to refer. 
 
 3. That although the said deed is absolute upon its face and 
 purports to convey the said land to the said C. D. in fee sim- 
 ple, yet in truth and in fact, at the time of the execution and 
 delivery thereof,, the same was intended merely as security for 
 the payment of the said sum of money and the interest thereon 
 in manner aforesaid, and at the time of such execution and de- 
 livery it was expressely understood and agreed by and between 
 your orator and the said C. D. that the said conveyance was 
 merely for security as aforesaid, and that upon the payment of 
 the said sum of money with the interest as aforesaid in the man- 
 ner aforesaid he, the said C. D., would forthT<?ith reconvey the 
 said land with the hereditaments and appurtenances aforesaid, 
 to your orator. 
 
 4. And that ever since the delivery of the said deed of con- 
 veyance your orator has been and remained, and still is in tEe 
 actual possession and occupation of the said land and has con- 
 tinued and still continues to receive and enjoy the rents; issues 
 and profits thereof to his own use and benefit, with the consent 
 of the said C. D. and without let, objection or hindrance from the 
 said C. D. or from any of the other parties defendants hei^eto. 
 
552 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 5. And that after the making and delivery of the said deed 
 
 of conveyance and on or about the day of , 
 
 19. ., the said C. D. did, with M. D., his wife, make, execute, 
 acknowledge and deliver to one E. F. an instrument in writ- 
 ing, bearing date the same day and year last aforesaid and pur- 
 porting to be in form an absolute deed of conveyance of the said 
 land in fee simple to the said E. F., and that afterwards and on 
 or about the day of , 19 • • , the said last men- 
 tioned instrument was recorded in the said register's office, in 
 
 liber of deeds, at page , to which record your 
 
 orator prays leave to refer. 
 
 6. And that at the time of the making and delivery of the 
 said last mentioned instrument in writing your orator was in 
 the actual, open, notorious, peaceable and exclusive possession 
 and occupation of the said land and premises and of the whole 
 thereof, as the said E. F. then well knew, and that the said E. 
 F., at and before the time of the delivery thereof, was fully 
 and completely informed of the rights and equities of your 
 orator in the premises and was fully informed and well knew 
 that the said deed of conveyance, herein first above mentioned, 
 from your orator and his wife to the said C. D., was intended 
 and delivered as security merely, and that on payment of the 
 
 said sum of dollars with the interest as aforesaid in 
 
 manner aforesaid, your orator would become entitled to a re- 
 conveyance of the said land in fee simple. 
 
 7.. And that by reason of the making and deUve'ry of the 
 said conveyance from the |^id C. D. and his wife to the said 
 B. F. as aforesaid, your orator is advised that the said E. F. 
 became the owner of all and singular the right, title and in- 
 terest of the said C. D. in thp said land, and became entitled to 
 the payment of the said indebtedness as well principal as interest. 
 
 8. And that during all the time since the making and de- 
 livery of the deed of conveyance hereinbefore first mentioned 
 from your orator and his wife to the said C. D., your orator has 
 regularly paid the interest aforesaid as the same fell due, and 
 until the time of the said conveyance by the said C. D. and M. 
 D., his wife, to the said B. F. your orator paid such interest to 
 the said CD., and after the said last mentioned conveyance your 
 orator paid the same to the said E. F., and that the said C. D. 
 and B- F. have respectively received and accepted the same as 
 such interest, 
 
 9. And that the said principal sum of dollars, is 
 
 now due and payable, and your grator is ready and willing, and 
 has heretofore tendered and offered, and hereby does offer, to 
 pay the same to the said B. F., together with all accrued in- 
 terest thereon ; and your orator shows that the total amount due 
 and owing pn such indebtedness does not exceed dol- 
 lars for principal and interest., 
 
stage's MICHIGAN CHANCEBY PKACTICE ANB FOEMS 553 
 
 10. And that your orator has frequently offered and ten- 
 dered to the said B. F. the sum of dollars aforesaid, 
 
 being the full amount of said indebtedness with all accrued in- 
 terest thereon, and that he made such offer on the 
 
 day of now last past, and then requested the said E. 
 
 F. to execute, acknowledge and deliver to your orator a good 
 and sufficient deed of conveyance in fee simple of the said land, 
 and then in presence of a notary public, who was present at re- 
 quest of your orator, your orator presented and tendered to the 
 said E. F., together with the money aforesaid, the draft of a 
 deed of conveyance of the said land .to your orator, and requested 
 the said E. F. to accept the said money as payment as aforesaid, 
 and to execute said deed and acknowledge the execution thereof 
 before said notary and deliver the same to your orator, but so 
 to do the said E. F. did then refuse, and continues and still does 
 refuse so to do, and sometimes the said E. F. claims as a reason 
 for such refusal that he is the owner in fee simple of the said 
 land, and that your orator is merely a tenant at sufferance of 
 him, the said E. F., whereas your orator charges the contrary to 
 be true. 
 
 11. And that one M. F., the wife of the said E. F., claims 
 to have some rights and interests in the said land by way of 
 inchoate right of dower or otherwise as the wife of the said E. 
 F., although your orator is advised she has no interest whatever 
 therein. 
 
 Your orator therefore prays : 
 
 I. That the said C. D., E. F. and M. F., the defendants 
 hereto, may (as in first form of deed to redeem to the end). 
 
 (If the defendant is preparing to take proceedings at law 
 to obtain possession of the land, iiisert a paragraph as follows:) 
 
 12. And that the said E. F. gives out, threatens and intends 
 to institute proceedings to obtain the actual possession and occu- 
 pation of the said land and premises and to oust and dispossess 
 your orator therefrom, under the claim and pretence afore- 
 said, that he holds the title thereto in fee simple, and that yoiir 
 orator is merely his tenant at sufferance thereof ; and has caused 
 to be served upon your orator a notice to quit the said land as 
 follows: (insert copy of notice) and that he purposes, threatens 
 and intends to follow up such notice by taking proceedings to 
 obtain possession of the said land and to oust your orator there- 
 from, and should he persist in his said purpose and intent your 
 orator would be without defence at the common law, and would 
 thereby be made to suffer irremediable injury. 
 
 , (And in the prayer insert.) 
 
 V. And that the said E. F. may be restrained by the order 
 and injunction of this honorable court from instituting or prose- 
 cuting any suit or proceeding at law for the purpose of obtain- 
 ing possession of the said land and premises, or any part thereof, 
 
554 stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 
 
 and from ousting or dispossessing your orator therefrom, and 
 from molesting or interfering in any manner with the possession 
 thereof, or of any part thereof, by your orator during the pen- 
 dency of this suit. 
 
 (In case such injunction is sought the iill must he on oath, 
 therefore add verification.) 
 
 GOODS PLEDGED. 
 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19 . . , your orator, having occasion for a sum 
 
 of money made application to one C. D,, the defendant herein, 
 to lend him the same, and thereupon the said C. D. then ad- 
 vanced and lent to your orator the sum of dollars, to 
 
 be repaid vidth interest thereon at the rate of per cent 
 
 per annum, in months from that time ; and in order 
 
 to secure the repayment thereof with the said interest your 
 orator then deposited with the said C. D. the following de- 
 scribed goods, chattels and property, to-wit : (describe the prop- 
 erty), of the goods, chattels and property of your orator and 
 
 which was then and still is of the value of dollars and 
 
 upwards, and at the same time your orator executed and de- 
 livered to the said C. D. an instrument in writing, purporting 
 to be a bill of sale of the said goods, chattels and property so 
 deposited with him; but it was not meant or intended thereby, 
 either by your orator or by the said defendant, C. D., that the 
 said transaction should amount to or should be an absolute sale 
 of the said goods and chattels, or any part thereof, to the said 
 C. D. ; but it was then expressly understood and agreed by and 
 between your orator and the said defendant, C. D., that the same 
 was merely a security for the repayment of the money so lent 
 as aforesaid with the interest aforesaid, and that your orator 
 should be at liberty to redeem the said goods and chattels, and 
 the whole thereof, by the repayment of the said sum of money 
 and interest; and that on such payment the said C. D. would 
 forthwith deliver the said goods and chattels to your orator as 
 the property of your orator. 
 
 2. And that being desirous to redeem and recover posses- 
 sion of the said goods and chattels, your orator has repeatedly 
 applied to the said defendant, C. D., and offered to repay him 
 
 the said sum of dollars with the interest thereon as 
 
 aforesaid, and offered and tendered the same to the said de- 
 fendant at the time when he agreed to repay the same as afore- 
 said, and then requested the said defendant to redeliver the 
 said goods and chattels to your orator. And your orator well 
 hoped that the said C. D. would have complied with your 
 orator's said reasonable request, as in justice and equity he 
 
stage's MICHIGAN CHANCEBY PRACTICE AND POBMS 555 
 
 ought to have done, but so to do the said defendant has hitherto 
 refused and still doth refuse. 
 
 3. And your orator further shows that the said defendant, 
 C. D., still has the said goods, chattels and property in his pos- 
 session, and that he, the said C. D., now denies that th.e said 
 property was delivered to him as security, and refuses to allow 
 your orator to redeem the same, and refuses to redeliver the 
 said property or any part thereof to your orator. 
 
 I. In consideration whereof your orator prays the aid of 
 this court, and that the said defendant, C, D., may, if he can 
 show why your orator should not have the relief hereby prayed, 
 full, true, direct and perfect answer make to all and singular 
 the matters herein stated and charged, but not upon oath, all 
 answer upon oath being hereby waived. 
 
 II. And that an account may be taken of th« amount due 
 and owiag by your orator to the said defendant, C. P., for 
 principal and interest in respect to the said loan, your orator 
 being ready and hereby offering to pay whatever shall be found 
 to be owing thereon. 
 
 III. And that upon the payment thereof by your orator, 
 which he hereby offers to pay, the said defendant, C. D., may 
 be decreed to deliver over to. your orator the said goods and 
 chattels and property so deposited with him,, the said defend- 
 ant as aforesaid, and to surrender the said bill of sale to be 
 cancelled. 
 
 IV. And that your orator may have such further or other 
 relief in the premises as shall be agreeable to equity and good] 
 conscience. 
 
 And your orator wiU ever pray, etc. 
 
 Bills to Restrain Waste. 
 
 § 494. Waste is an injury to real estate caused by the 
 act or neglect of the tenant in possession, who has merely 
 a temporary estate as for life or for years, to the damage 
 of the property and to the prejudice of the owner of the 
 reversion or remainder, or to the injury of the security 
 of a mortgagee. 
 
 Waste may be either active or permissive. 
 
 §495. Active waste consists in any act done by the 
 tenant in possession tending to the permanent injury to 
 the realty, such as the cutting of timber, the destruction 
 of buildings or fences, the removal of permanent fixtures 
 or machinery in buildings, opening of mines, quarries or 
 
556 stage's MICHIGAN CHANCERY PEACTICB AND FOEMS 
 
 gravel pits and the like. Whatever does a lasting injury 
 to the freehold, or destroys or lessens the value of the 
 lands is waste. 
 
 Permissive waste is caused by the neglect of the tenant 
 to keep the buildings, fences, fixtures, etc., on the land in 
 repair, suffering them to go to ruin. 
 
 § 496. Courts of equity will restrain the commission 
 of active waste by injunction, but they seem to be power- 
 less to prevent mere permissive waste. It is provided 
 by statute that the circuit courts in chancery shall have 
 jurisdiction in all matters concerning waste in which 
 there is not a plain, adequate and complete remedy at 
 law,^ but independently of this statute it was a branch of 
 equity jurisdiction to restrain the commission of waste by 
 injunction and the statute was not intended to curtail that 
 jurisdiction.^ 
 
 § 497. Chancery will interpose to restrain waste when 
 the tenant affects the inheritance in an unreasonable and 
 unconscientious manner even though the lease be granted 
 without impeachment of waste.^ 
 
 A tenant in common will be enjoined from committing 
 waste by cutting timber at the suit of his co-tenant.* 
 
 Where land was conveyed as security for the payment 
 of a debt, after the debt has been paid the grantee will be 
 enjoined at the suit of the grantor from cutting timber 
 thereon.^ 
 
 Where a debtor made a conveyance of land to trustees 
 to sell for the benefit of his creditors but remained in 
 actual possession and afterwards made a conveyance of 
 the same land to another who entered into possession and 
 commenced cutting timber thereon otherwise than in the 
 usual course of clearing land for the purpose of cultiva- 
 
 1— C. L., Sec. 11132. 264; 4 Kent Comm. 78; 10 Bacon 
 
 2— Chapel v. Hall, 60 Mich. 167; Abr. "Waste," p. 469. 
 
 Duucombe v. Felt, 81 Mich. 332. 4 — Benedict v. Torrent, 83 Mich. 
 
 3 — Duncombe v. Felt, 81 Mich. 181. 
 
 332; Kane v. Vanderburgh, 1 Johns. 5 — ^Bigelow v. Thompson, 133 
 
 Ch. 11; Aston v. Aston, 1 Ves. Sen. Mich. 334. 
 
stage's MICHIGAN CHANCERY PEACTIOE AND FORMS 557 
 
 tion the trustees were entitled to maintain a bill to re- 
 strain such cutting.^ 
 
 Where a life estate with the right to cut firewood for 
 her own use was devised to a widow she was properly 
 enjoined from cutting timber for sale, even for the pur- 
 pose of purchasing other fuel with the proceeds^ 
 
 A mortgagee will be protected from injury to his se- 
 curity by the cutting of timber by the mortgagor.* 
 
 The owner of land may maintain a suit to enjoin the 
 commission of waste by a tenant for years.^ 
 
 § 498. By statute a township treasurer is entitled to 
 an injunction restraining waste on lands by the owner, 
 after the tax has become a lien and before the expiration 
 of the warrant for collection, where the land is chiefly 
 valuable for the timber thereon and the owner neglects 
 or refuses to pay the tax ^^ and the fact that the tax could 
 have been collected by other process is no defence." 
 
 This act is held to apply only to wild land,^^ and in 
 order to sustain the bill on the ground of refusal there 
 must have been a positive unequivocal refusal to pay the 
 tax or some portion thereof.^^ 
 
 § 499. The statutes of the state have made elaborate 
 provision for the prosecution of actions on the case for 
 waste," but as already stated equity has not been thereby 
 limited in its jurisdiction and in many cases it is the only 
 remedy as in the case of a devise of land to one for life 
 with remainder charged with the payment of a legacy the 
 remainder man will have no action at law against the life 
 
 e^Webster v. Peet, 97 Mich. 326. 10— C L., Sec. 3979, as am. by Act 
 
 7— Hogan ▼, Hogan, 102 Mich. No, 34 Pub, Acts 1901, p, 54. 
 
 646. 11 — ^Eossman v. Circuit Judge, 91 
 
 8 — Sherwoed v. Cir, Judge, 105 Mich. 69. 
 
 Mich. 540; Parrant v. Lowell, 3 12 — Caldwell v. Ward, 83 Mich. 
 
 Atk. 723; Ede? on Injunc Ch. 9, pp. 13. 
 
 165-166; Brady v. Waldron, 3 Johns 13— <3aldwell v. Ward, 88 Mich. 
 
 Ch. las ; 2 Story Eq.. Jur. Sees. TlOa, 13. 
 
 914. 14— C. Ij„ Chapter 306. 
 
 9— litka V. Wikox, 39 Mich. 91; 
 Chapel v. Hull, 60 Mich. 167. 
 
558 STAGERS MICHlGAlI CHANCERY PEACTICE AND FORMS 
 
 tenant for waste by cutting timber, Ms only remedy is 
 in equity.^ ** 
 
 Taking ore from a mine by the tenant in the ordinary 
 manner of working tbe mine is not waste,^® although open- 
 ing a new mine or quarry on the land would be. 
 
 § 500. When the country was new and largely an un- 
 broken forest it was held that clearing lands of its tim- 
 ber was not waste in this state," but at the present time 
 when timber has become valuable that doctrine will hardly 
 be sustained. 
 
 Eemoving manure from a farm by the tenant is waste 
 and will be enjoined.^* 
 
 While working a quarry by a tenant during his lease- 
 hold is lawful ^® further quarrying by a tenant holding 
 over after the expiration of his lease will be enjotned.*" 
 
 § 501. Diligence and- promptitude in seeking the 
 remedy is required as in other cases in chancery ,*i and 
 this is especially the case in relation to mines owing to 
 the peculiar nature of the property. ^^ 
 
 The mere value of the timber or trees sought to be pro- 
 tected is not always important as the destruction of orna- 
 mental trees and shrubs will be enjoined.^* 
 
 An accounting for the injury already done is frequently 
 made as ancillary to a bill to restrain waste. 
 
 § 502. The bill should state the title and interest of 
 the defendant as well as that of the complainant. All the 
 parties interested should be made parties to the bill as 
 well as those acting under the authority of the defendant. 
 
 15-^Dawson v. Tremaine, 93 Mich. 20 — ^Ackerman v. Hartley, 4 Halst. 
 
 320. Ch. 476. 
 
 16 — ^Ward v. Carp Eiver Iron Co., 21 — ^Barry v. Barry, 1 Jac & W. 
 
 47 Mich. 65, same case 50 Mich. 522. 651. 
 
 17 — Campbell 's Appeal, 2 Doug. 22 — Norway v. Eowe, 19 Ves. 159 ; 
 
 Mich. 141. Perrott v. Palmer, 3 Mylne & K. 632. 
 
 18 — Bonnel v. Allen, 53 Ind. 130. 23 — Downshire v. Sandys, 6 Ves. 
 
 19 — ^Verbalen v. Older, 4 Halst. 185; Burgess v. Lamb, 16 Ves. 185; 
 
 Ch. 98. Day v. Merry, 16 Ves. 375. 
 
BTACb's MICHIGAN CHANCERY PEACTICE AND FORMS 559 
 
 BILL TO RESTRAIN WASTE. 
 (Address awd introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19. ., one M. N., then of , died seized and 
 
 possessed ia his own right, in fee simple, of all that certain 
 piece or parcel of land, situate, etc. (describe the land), and 
 leaving a last will and testament, duly executed by him, the 
 said M. N., in his lifetime, and therein and thereby the said 
 M. N. devised the said land, and the use and occupation, rents, 
 issues and profits thereof, unto one C. D., to have, use and en- 
 joy the same during the natural life of him, the said C. D., 
 but no longer, and also in and by the said last will and testa- 
 ment the said M. N. devised the said land and the whole thereof, 
 after the death of the said C. D., unto your orator, his heirs and 
 assigns, in fee simple forever, as in and by the said last will 
 and testament, when produced and proved as this court shall 
 direct, will folly appear, and whereto your orator prays leave 
 to refer. 
 
 2. And that after the death of the said M. N. and on or 
 
 about the day of 19 . . , the said last will 
 
 and testament was duly admitted to probate in the Probate 
 
 Court for the county of , in this state, as in and by 
 
 the records and files of the said Probate Court fully appears, 
 and whereto reference is prayed. 
 
 3. And that afterwards and on or about the day 
 
 of , 19 . . , the said C. D. took and entered into pos- 
 session of the said land and of the whole thereof, as tenant 
 for life under the provisions of the said last will and testament, 
 and ever since that time the said C. D., has continued and still 
 continues in the actual occupation and possession of the said 
 land, and in the enjoyment of the use, rents, issues and profits 
 thereof and of the whole thereof. 
 
 4. That the said land contains about acres and is 
 
 used and occupied as a farm, and that acres or there- 
 about thereof is under cultivation, and that the vahie thereof 
 
 is dollars and upwards, and that there is also on the 
 
 said land a tract containing about acres of woodland, 
 
 whereon there are now standing and growing a large number 
 of valuable timber trees, that is to say (insert the kind of tim- 
 ber as the case may be), and other timber trees of great value, 
 
 being of the aggregate value of , dollars and upwards, 
 
 and also a number of shade trees of various species standing 
 and growing alongside the highway by the said land and else- 
 where at different places on the said land, and that such shade 
 trees form an essential element in the value of the said land 
 as well by way of ornament as by way of shelter to live stock 
 from the sun, and that should such shade trees, or any part 
 thereof, be removed, the value of the said land would be greatly 
 
560 stage's MICHIGAN CHANCERY PEAGTICE AND FORMS 
 
 diminished and deteriorated, and your orator as owner of the 
 prospective estate in remainder in said land would be irre- 
 mediably injured. 
 
 5. And that the said C. P., being now in possession of the 
 said land as tenant for life as aforesaid, is now threatening and 
 intending to cut down, fell and destroy the said timber trees 
 now standing and growing on the said land, and also some of 
 the said shade trees thereon, and to sell and dispose of the 
 timber thereof; and that he, the said C. D., has made prepara- 
 tions for the cutting down and felling thereof, and has employed 
 one E. F. to cut down and fell the said trees, and has directed 
 him, the said B. F., to commence such felling forthwith, and 
 the said E. F. threatens and intends so to do, by and under the 
 said direction of the said C. D. ; and that should the said C. D. 
 and E. F. carry out their said threats and intentions and cut 
 down and fell such timber and shade trees, the value of the 
 said land will be greatly impaired, and will be impaired to the 
 
 extent of more than dollars, and your orator as such 
 
 owner of the said estate in remainder will thereby suffer irre- 
 mediable injury to the amount of over dollars. 
 
 6. And your orator has applied to the said C. D. and B. F. 
 and requested them and each of them to refrain from cutting 
 down, felling or injuring the said trees or any thereof, but the 
 said C. D. and E. F. have refused to comply with such reason- 
 able request of your orator, but threaten and intend to proceed 
 to cut down and fell the same forthwith, and your orator has 
 reason to fear and does fear, that unless restrained by the or- 
 der and injunction of this honorable court, the said C. D. and 
 E. F. will forthwith proceed to cut down and fell the said 
 trees, as well shade trees as timber trees. 
 
 I. In consideration whereof and to the end therefore,, that 
 the said C. D. and B. F., the defendants herteo, may, without 
 oath, all answer upon oath being hereby waived, full, true, di- 
 rect and perfect answer make to all and singular the matters 
 herein stated and charged. 
 
 II. And that the said defendants, each and both of them, 
 may be restrained by the order and injunction of this court 
 from cutting down, felling, or in any manner destroying or 
 injuring the trees standing and growing on the said land, a? 
 well the timber trees in the woodland as the shade trees, and 
 that they may be in the meantime so restrained during the 
 pendency of this suit. 
 
 III. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. A. B. 
 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
stage's MICHIGAN CHANCBEY PKACTICE AND FOEMS 561 
 
 (If any material allegations in the bill are on information and 
 belief, annex an affidavit of some one who has actual knowledge 
 thereof.) 
 
 Bills by Judgment Creditors. 
 
 § 503. It sometimes occurs that after a creditor has 
 recovered a judgment at law against his debtor he is. un- 
 able to collect it for the reason that although the debtor 
 is the owner of considerable property, amply sufficient 
 to satisfy the debt, yet that property is in such a condi- 
 tion that it cannot be reached by a common law execu- 
 tion. In such cases the creditors may apply to a court of 
 chancery for relief. 
 
 There are two classes of cases in which a judgment 
 creditor may come into the court of chancery for relief. 
 First. In aid of his execution at law, as to set aside an 
 incumbrance or a transfer of property made to defraud 
 creditors. Second. To have his judgment paid out of 
 choses in action or other property of the debtor or held 
 in trust for him not liable to execution. Relief is given in 
 these two classes of cases on different principles. In the 
 first class on the ground of fraud ; and in the other on the 
 ground that the creditor has exhausted his remedy at 
 law, and that it is inequitable and unjust for the debtor 
 under such circumstances, to refuse to apply any choses 
 in action or other property belonging to him or held in 
 trust for him, not liable to execution, to the payment of 
 the judgment.* 
 
 Bills in aid of Execution. 
 
 § 504. To entitle a creditor to the aid of the court of 
 chancery in the first class of cases above mentioned he 
 must have obtained a valid judgment against his debtor 
 for one hundred dollars or more exclusive of costs, in a 
 court of common law, and an execution must have been 
 issued thereon and placed in the hands of the sheriff for 
 collection, hence bills in this class of cases are called bills 
 
 1— Williams v. Hubbard, Walk. 
 Ch. 28. 
 
562 stage's MICHIGAN CHANCEEY PKACTICE AND FQBMS 
 
 in aid of execution because they seek to set aside some 
 fraudulent conveyance, transfer of or incumbrance on, 
 the property of the debtor and to subject the sanje to levy 
 on the execution issued on the judgment. 
 
 § 505. It is provided by statute that ' ' Every convey- 
 ance or assignment, in writing or otherwise, of any estate 
 or interest in lands, or in goods, or things in action, or 
 of any rents or profits issuing therefrom, and any charge 
 upon lands, goods or things in action, or upon the rents 
 or profits thereof, made with the intent to hinder, delay 
 or defraud creditors or other persons of their lawful 
 suits, damages, forfeitures, debts, or demands, and every 
 bond or other evidence of debt given, suit commenced, 
 decree or judgment suffered with the like intent, as 
 against the persons so hindered, delayed or defrauded, 
 shall be void. ' ' * 
 
 "Every conveyance, charge, instrument or proceeding 
 declared by law to be void as aga,inst creditors or pur- 
 chasers shall be equally void as against the heirs, suc- 
 cessors, personal representatives or assigns of such 
 creditors or purchasers. ' ' ^ 
 
 "None of the provisions of this statute shall be con- 
 strued in any manner to affect or impair the title of a 
 purchaser for a valuable consideration unless it shall ap- 
 pear that he had previous notice of the fraudulent intent 
 of his immediate grantor, or of the fraud rendering void 
 the title of such grantor. " * 
 
 § 506. Fraud. The intent of the parties and the effect 
 of the conveyance upon the creditors of the grantor, form 
 the criterion to determine whether such conveyance is 
 fraudulent.^ If the conveyance is made with intent to 
 hinder or delay or defraud the creditors of the grantor 
 in the collection of their demands it is fraudulent as to 
 them.* Actual fraud need not be intended by the grantor 
 
 2— C. L., See. 9533. 6— Trask v. Green, 9 Mich. 358; 
 
 3^0. L., Sec. 9535. Maynard v. Hoskins, 9 Mich. 485; 
 
 4 — C. L., Sec. 9537. Smith v. Eumsey, 33 Mich. 183,- 
 
 5 — Corbitt v. Cutcheon, 79 Mich. Harwood v. Underwood, 28 Mich. 
 
 41; Pierce v. Hill, 35 Mich. 194. 427; Gutcheon v. Buclianan, 88 Mich. 
 
stage's MICHIGAN CHANCEEY PEACTICE AKD FOBMS 563 
 
 if the effect of the conveyance be to delay, hinder or de- 
 fraud creditors it is fraudulent as to such creditors and 
 win be set asideJ A voluntary conveyance without any 
 valuable consideration to the injury of creditors will be 
 vacated and it is immaterial in that case whether or not 
 the grantee participated Ln the fraudulent design.® 
 
 A conveyance for a valuable consideration will not be 
 set aside unless both the debtor and his grantee partici- 
 pated in the fraud.® Bona fide purchasers for a valuable 
 consideration are protected," but the burden of proof is 
 on the grantee to show himself to be a purchaser in good 
 faith for value. ^^ 
 
 § 507. What Conveyances Not Fraudulent. A home- 
 stead being exempt from levy and sale on execution it is 
 not a fraud upon creditors to dispose of it in any manner 
 the debtor chooses, creditors cannot attack the convey- 
 ance of a homestead.^^ 
 
 A conveyance in payment of an honest debt will not be 
 set aside although it may hinder and delay other credit- 
 ors, a debtor haAdng the right in this state to prefer his 
 creditors ^* and if his wife be also a creditor he may law- 
 
 594; Eyan v. Meyer, 108 Mich. 638; 453.; Snook v. Davis, 6 Mich. 156; 
 
 Pashby v. Mandigo, 42 Mich. 172. Whitney v. Rose-, 43 Mich. 29; Dixon 
 
 7— Fellows V. Smith, 40 Mich. 689 ; t. Hall, 5 Mich. 408 ; Brigham v. 
 
 Schaible v. Ardner, 98 Mich. 70; Fawcett, 42 Mich. 542. 
 
 Eyan V. Meyer, 108 Mich. 638; 11 — Schaible v. Ardner, 98 Mich. 
 
 Maple Valley Tp. v. Foley, 113 70; Berry V. Whitney, 40 Mich. 65; 
 
 Mich. 622; McBryan v. Trowbridge, Sneed v. Sogers, 120 Mich. 441. 
 
 125 Mich. 542; Walker v. Cadj, 106 12 — Smith v. Eumsey, 38 Mich. 
 
 Mich. 21; Wood v. Eldredge, 147 183; Farrand v. Caton, 69 Mich. 
 
 Mich. 554. 235; Corey v. Waldo, 126 Mich. 706; 
 
 8— Schaible v. Ardner, 98 Mich. Eagle v. Smylie, 126 Mich. 612; 
 
 70; MatsonT. Melchor, 42Mich. 477; Mich. Trust Co. v. Comstdck, 130 
 
 FeUows V. Smith, 40 Mich. 689; Mich. 572. 
 
 Maple VaUey Tp. v. Foley, 113 Mich. 13— Hill v. Bowman, 35 Mich. 191; 
 
 622. Loomis v. Smith, 37 Mich. 395; Jor- 
 
 9_Fisher v. Hall, 44 Mich. 493; dan v. White, 38 Mich. 253; Obn- 
 
 Coon V. Henry, 49 Mich. 208; First stead v. Matteson, 45 Mich. 617; 
 
 N. Bank V. McAllister, 46 Mich. 397; Adams v. Nieman, 46 Mich. 135; 
 
 Springlake Iron Co. v. Waters, 50 Andrews v. Fillmore, 46 Mich. 315; 
 
 Mich. 13. Globe Casket Co. v. Wolcott, 106 
 
 10 — Pierson v. Manning, 2 Mich. Mich. 151; Oliver Wire Co. v. 
 
564 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 fully prefer to pay her and may convey to her real estate 
 sufficient fairly to pay his indebtedness to her.^* But 
 where defendant made a conveyance to his wife ostensibly, 
 in pajrment of a debt to her and the proof showed that the 
 value of the property was grossly in excess of the amount 
 claimed to be owing to her the deed was vacated as being 
 made m bad faith with intent to defraud creditors.^^ 
 
 § 508. Although a person when solvent has a right to 
 convey away his property as he pleases, yet when a man 
 while solvent Executed a deed of his land to his wife which 
 was not put on record until after he became insolvent, the 
 deed was held fraudulent and the land was subjected to 
 the claims of creditors.^® 
 
 Lands purchased by the defendant after the indebted- 
 ness was incurred which he caused to be conveyed to him- 
 self and wife as tenants by entireties in order to prevent 
 it from being levied upon for the indebtedness may be 
 decreed to be subject to levy and sale on the execution.^^ 
 
 § 509. Judgment and Levy of Execution Necessary. 
 No one except a creditor who has obtained a valid judg- 
 menjb and caused execution to be issued thereon and levied 
 upon the land can attack a conveyance by the judgment 
 debtor for fraud. ^® 
 
 § 510. The conveyance however fraudulent as to credi- 
 tora, is valid between the parties and any surplus of the 
 proceeds of a sale in the hands of the sheriff after satisfy- 
 
 Wheeler, 106 Mich. 408; E. P. Gus- 16 — Preston N. Bank v. Pierson, 
 
 tin Co. y. Am, 107 Mich. 231 ; Beld- 112 Mieh. 435. 
 
 ing Savings Bank v. Moore, 118 17 — St. Louis Hoop & Stave Co. v. 
 
 Mich. 150. Danforth, 160 Mieh. 522. 
 
 14 — ^Hill V. Bowman, 35 Miah. 18— Pox v. Willis, 1 Mich. 321; 
 
 191; Loomis v. Smith, 37 Mich. 395 
 Allen V. Antisdale, 38 Mich. 229 
 Darling v.. Hurst, 39 Mieh. 765 
 Brigham v. Pawcett, 42 Mich. 542 
 Hendriekson v. Voss, 115 Mich. 57 
 
 McKibben v. Barton, 1 Mich. 213; 
 Blish V. Collins, 68 Mieh. 542; Mil- 
 lar V. Babcock, 29 Mich. 526; Eames 
 v. Manley, 121 Mich. 300 ; Krolik v. 
 Eoot, 63 Mich. 582; Boot v. Potter, 
 
 Cole V. Cole, 126 Mich. 569. 59 Mich. 498; Scott v. Chambers, 62 
 
 15— Case Mfg. Co. v. Perkins, 106 Mieh. 532; Nugent v. Nugtnt, 70 
 
 Mich. 349. Mieh. 52; McAuliffe v. Farmer, 27 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 565 
 
 ing the execution belongs to the grantee,^" and where a 
 conveyance was made for the purpose of avoiding an- 
 ticipated claims against the grantor, which claims were 
 never in fact made, the court will not decree a re-convey- 
 ance, but will leave the party to abide the effect of his 
 intended f raud.^" 
 
 Where only one creditor attacks a conveyance it will be 
 set aside only so far as to enable him to collect his debt. 
 Other creditors who have taken no action can have no 
 benefit from the proceeding.''^ 
 
 It has been held that a conveyance fraudulent as to 
 existing creditors is void as to subsequent creditors,^^ 
 but this is not the rule when the debt sought to be col- 
 lected was incurred long after the making of the con- 
 veyance.^^ 
 
 § 511. Judgment creditors other thaij those whose de- 
 mands were on contract may attack fraudulent convey- 
 ances,^* but a claim for unliquidated damages as for a 
 tort does not become a debt until the recovery and entry 
 of a judgment, the rendition of a verdict by a jury is not 
 sufficient.^" 
 
 The bill may reach equitable interests such as a part 
 paid land contract, or the interest in leased property, or 
 in growing crops on land fraudulently conveyed as well 
 as the legal interests of the debtor.^" 
 
 §512. Where land is levied upon which has an ap- 
 parently valid lien or cloud on the title of the judgment 
 
 Mieh. 76; Studley v. Ann Arbor Sav- 456; see Kesler v. Ulrieh, 32 Mich, 
 
 ing Bank, 112 Mich. 181; Pierce v. 88, and Brown v. Vandermculen, 44 
 
 Hill, 35 Mich. 194; Judge v. Vogel, Mich. 522. 
 
 38 Mich. 569; McMasters v. Camp- 24— Beam v. Bennett, 511 Mich. 
 
 bell, 41 Mich. 513. 148; Schaible v. Ardner, 98 Mich. 
 
 19— Wheeler v. Wallace, 53 Mich. 70. 
 
 364. 25 — Detroit Post & Tribune Co. v. 
 
 20 — Poppe v. Poppe, 114 Mich. Eeilly, 46 Miah. 459. 
 
 649. 26 — Cutoheon v. Buchanan, 88 
 
 2i_pierce v. Hill, 35 Mich. 194. Mich. 594; Viers v. Detroit Paper 
 
 22— Beach v. White, Walk. Ch. Pkge. Co., 119 Mich. 192; Fury v. 
 
 495. Strohecker, 44 Mich. 337. 
 
 23 — Herschfeldt v. George, 6 Mieh. 
 
566 STACSe'S MICHIGAN CHANCEBY PKAOTICE AND FORMS 
 
 debtor, which is claimed by the creditor to be fraudulent, 
 but which affects its market value, the creditor must file 
 his bill to clear the title before the sale, if he allows it 
 to go to sale, the purchaser, whether it be the creditor or 
 a stranger, must take the debtor's interest as it was and 
 cannot maintain a bill to vacate a fraudulent conveyance 
 after the sale.^^ 
 
 § 513. Creditors may lose their right to attack a con- 
 veyance for fraud by laches and long delay."* 
 
 § 514. If a debtor who has made a conveyance of land 
 fraudulent as to creditors shall die and his estate be inr 
 solvent, his executor or administrator may, and it is his 
 duty to, on application of any creditor of the estate and 
 on giving security by such creditor as directed by the 
 Probate Court to indemnify the estate against costs, file 
 and maintain a bill to vacate such conveyance and subject 
 the land conveyed to sale for the payment of the debts 
 of the deceased, and should such executor or administra- 
 tor, after such application and offer of such security, neg- 
 lect or refuse to file such a bill, then the creditor himself 
 may institute and prosecute such suit in the name of the 
 executor or administrator for the benefit of the creditors 
 of the estate.^' 
 
 Where the judgment debtor died after the filing of the 
 bill it was held that the lien acquired was not lost by the 
 presentation of the claim to commissioners on claims ap- 
 pointed by the Probate Court after his decease.^" 
 
 § 515. The bill cannot be sustained if the debtor has 
 other property liable to execution sufficient to satisfy the 
 debt.31 
 
 Nor to vacate a fraudulent transfer of personal prop- 
 
 27 — Marshall v. Blass, 82 Mich. 29— C. L., Sees. 9363-9364 am. 
 
 518 ; Messmore v. Huggard, 46 Mich. Act 326 Pub. Acts 1905, p. 504. 
 558; Cranson v. Smith, 47 Mich. 30 — Saginaw Co. Sav. Bk. v. Duf- 
 
 189-647; Belcher v. Curtis, 119 Mich. field, 157 Mich. 522. 
 1. 31— Pox v^ Willis, 1 Mich. 321; 
 
 28 — In re Emmons Estate, 142 Brock t. Eich, 76 Mich. 644; Pierce 
 
 Mich. 299. v. Eich, 76 Mich. 648. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 567 
 
 erty as such matters can be fully adjudicated in a suit at 
 law.^^ 
 
 § 516. The hill must show : 
 
 An indebtedness from the debtor defendant to the com- 
 plainant. 
 
 A valid judgment in favor of the complainant, still in 
 force, not vacated nor satisfied and the amount due 
 thereon. 
 
 That an execution has been issued on the judgment and 
 levied on the land in question and is still in force in the 
 hands of the sheriff. 
 
 That the defendant debtor was the owner of the land, 
 describing it correctly, at the time the indebtedness was 
 incurred or at some time subsequent thereto. 
 
 That since the indebtedness was incurred the defend- 
 ant debtor transferred and conveyed the land to the de- 
 fendant grantee either with intent to hinder, delay or 
 defraud the complainant in the collection of his just de- 
 mand on the said judgment or that the effect of such 
 conveyance is such as to so hinder, delay or defraud the 
 complainant, and that by reason of the said conveyance 
 the sheriff cannot sell the said land. 
 
 That the debtor defendant is insolvent, has no other 
 property liable to execution whereof the sheriff could 
 make the amount of the judgment. (If he has other prop- 
 erty, but insufficient, such property should first be sold 
 and the bill filed for the collection of the balance and the 
 fact of such sale and the amount realized should be stated 
 in the bill.) 
 
 That the grantee defendant was aware of, and par- 
 ticipated in, the fraud. 
 
 If the conevyance was without consideration that fact 
 should be stated. All the details of the fra,ud need not be 
 set forth, but the substance of the transaction and its 
 residt must be set f orth.^ 
 
 The bill need not state that an execution has been issued 
 
 32 — Stoddard v. McLane, 56 Mich. 33 — McMahon v. Eooney, 93 Mich. 
 
 11. 390, 
 
568 stage's MICHIGAN OHANCEEY PEACTICB AND POEMS 
 
 and returned unsatisfied,^* as is necessary in the seccnd 
 class of judgment creditor's bills, and need not attack 
 all the fraudulent conveyances of the defendant debtor 
 if there be more than one, he may ignore some or allow 
 them to stand while he attacks others.^^ 
 
 The statement that the debtor "has no rqal or personal 
 estate liable to levy and sale except the premises afore- 
 said on which the sheriff could make a levy" is a suffi- 
 cient allegation of insolvency.*" 
 
 Where the suit in which the judgment was rendered 
 was commenced by attachment levied on the same land in 
 question in the bill, the omission of an allegation that the 
 debtor is insolvent is not fatal to the bill.*'' 
 
 An allegation in the bill that the debtor executed the 
 deed for a pretended consideration to his sons sufficiently 
 states ownership if the bill is not demurred to.** 
 
 § 517. The bill must be filed in the court for the county 
 wherein the land lies.** And must be filed within one 
 year after the levy,*" but the objection that the bill was 
 not filed in time cannot be raised for the first time on 
 appeal.*^ 
 
 § 518. Every person claiming or appearing to have an 
 interest in the land under or by virtue of the fraudulent 
 conveyance should be made a party to the bill, but joint 
 judgment debtors with the defendant debtor need not be 
 made parties,*^ and the bill need not allege that the 
 remedy at law has been exhausted against such joint 
 debtors.** 
 
 The bill should pray for the cancellation and setting 
 
 34— Campbell v. Western Electric 39— Krolik v. Bulkley, 58 Mich. 
 
 Co., 113 Mich. 333; Wilson v. Addi- 407. 
 
 son, 127 Mich. 680. 40— Daniel v. Palmer, 124 Mich. 
 
 35— First N. Bank v. Hosmer, 48 335; Gordon v. Burleigh Tp., 153 
 
 Mich. 200. Mich. 493. 
 
 36— Dimshack v. Collar, 95 Mich. 41 — Cleland v. Qark, 123 Mich. 
 
 611. 179. 
 
 37 — Gibbons v. Pemberton, 101 42— Hodge v. Gray, 110 Mich. 654. 
 
 Mich. 397. 43--Hodge v. Gray, 110 Mich. 654. 
 
 38 — Gibbons v. Pemberton, IQl 
 Mich. 397. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 569 
 
 aside of the fraudulent conveyance, that it be held for 
 naught, that the decree may be recorded in the office of 
 the register of deeds, that the defendants surrender, quit 
 claim and release all claims which they pretend to 
 have or appear to have by reason of the fraudulent con- 
 veyance, that the land be subject to sale on the execution 
 to satisfy complainant's debt and judgment and for gen- 
 eral relief. 
 
 § 519. Answer. The sworn answer of the defendant, 
 if replied to, is not conclusive as to the matters therein 
 stated.** It may be read as an affidavit in opposition to a 
 motion for a receiver.*^ 
 
 The answer should be specific, a general statement that 
 the debtor defendant has property liable to execution on 
 which the sheriff might have levied is insufficient, it 
 should state what the property is and where it is located.*^ 
 
 The answer must state all the circumstances of which 
 the defendant intends to avail himself in his defence.*'^ 
 
 § 520. Proofs. The burden of proof is on the com- 
 plainant to show the existence of the fraud of which he 
 complains. The circumstances of the transaction must 
 be such as to be inconsistent with good faith.** But when 
 the fraudulent effect of the conveyance is shown the 
 grantee has the burden of proof to show that his purchase 
 was in good faith for value and without knowledge or 
 notice of any fraud *" and transactions between near rela- 
 tives call for closer scrutiny than those with strangers.^" 
 
 Complainant must also show that he was a creditor at 
 the time the fraudulent conveyance was made.^^ 
 
 The bill need not be on oath unless an injunction or 
 some other relief pendente lite is desired,^^ and herein 
 
 44 — Newlove v. Caltaghan, 86 409 and cases cited ; CuUough v. Day, 
 
 Mich. 301. 45 Mich. 554; Blish v. Collins, 68 
 
 45— Eankin v. Eothschild, 78 Mich. Mich. 542. 
 
 10. 49 — Smead v. Eogera, 120 Mich. 
 
 46— Eankin v. Eothschild, 78 Mich. 441. 
 
 10. 50— Blish V. Collins, 68 Mich. 542. 
 
 47_Eeed v. Jourdan, 109 Mich. 51— Gay v. Birdsell, 7 Mich. 519. 
 
 128;, Smith v. Eumsey, 33 Mich. 183. 52— Moore v. Cheeseman, 23 Mich. 
 
 48 — Jobert v. Wagner, 147 Mich. 332, 
 
570 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 it differs from a creditor's bill to reach equitable assets 
 which must be on oath. 
 
 The levy must be made on or before the return day of 
 the execution,^* but when ecn officer shall have begun to 
 serve an execution on or before the return day he may 
 complete the service and return thereof after such return 
 day." 
 
 Judgment Creditors Bill Under Statute to Reach 
 Squitable Assets. 
 
 §521. "Whenever an execution against the property 
 of a defendant shall have been issued on a judgment at 
 law and shall have been returned unsatisfied in whole or 
 in part, the party suing out such execution may file a bill 
 in chancery against such defendant and any other person, 
 to compel the discovery of any property or things in 
 action belonging to the defendant, and of any property, 
 money or things in action due to him or held in trust for 
 him, and to prevent the transfer of any such property, 
 money or things in action, or the payment or delivery 
 thereof to the defendant, except where such trust has 
 been created by, or the fund so held in trust has pro- 
 ceeded from some person other than the defendant. " ®® 
 
 "The court shall have power to compel such discovery 
 and to prevent such transfer, payment or delivery, and 
 to decree satisfaction of the amount remaining due on 
 such judgment out of any property, money or other 
 things in action belonging tq the defendant or held in 
 trust for him, with the exception above stated, which shall 
 be discovered by proceedings in chancery whether the 
 same were originally liable to be taken in execution at 
 law or not. This act shall not apply to property exempt 
 from executiop. ' ' "^ 
 
 "A bill of discovery may be filed, and the defendant 
 shall be compelled to answer guch bill, where the defend- 
 
 33— Blair v. Conjptoa, 33 Mich. Webb, 32 Mich. 173. 
 414. 55— C. L., Sec. 436. 
 
 54— C. L., Sec. 10334; Blair v. 56— C. L., See. 437. 
 
 Compton, 33 ifich. 414; Burk v. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 571 
 
 ant is charged with having given to another person, a 
 warrant of attorney to enter np a judgment, or with hav- 
 ing confessed or suffered any judgment purporting to be 
 for a sum or debt due, when in fact nothing or only a 
 part of the sum mentioned in such warrant of attorney or 
 judgment is due, with intent to defraud the just creditors 
 of such defendant or to place the property of the defend- 
 ant out of the reach of his creditors, or to hold the same 
 on some secret trust or confidence or for the benefit of 
 such defendant.^'' 
 
 The bill of discovery authorized by this statute is not 
 the usual bill of discovery of evidence to be used in a 
 suit at law which has been declared unnecessary and 
 obsolete since the enactment of the statute making all 
 parties to suits competent witnesses but is a statutory 
 right to a discovery still existing,^* as a matter of practice 
 the bill to reach equitable assets under the first above 
 mentioned section usually includes an application for dis- 
 covery under this section. 
 
 § 522. It is provided by rule that "A creditor's bill to 
 reach equitable interests of a debtor shall show the true 
 sum actually and equitably due the complainant on his 
 judgment or decree over and above all just claims of the 
 debtor by way of set off or otherwise, and that the debtor 
 has equitable interests exceeding one hundred dollars in 
 value, which the complainant is unable to reach by exe- 
 cution which has been duly issued and returned unsatis- 
 fied, and that the bill is not exhibited by collusion with 
 the defendant, or for the purpose of protecting the prop- 
 erty or effects of the debtor against the claims of other 
 creditors, but for the sole purpose of compelling payment 
 and satisfaction of the complainant's own debt." 
 
 When the complainant in such creditor's bill shall have 
 a right by statute to a discovery and disclosure of facts 
 from the defendant, the defendant shall in his answer 
 
 57— C. L., See. 439. Co., 55 Mich. 387; Button v. Thomas, 
 
 58 — McCreery v. Circuit Judge, 93 97 Mich. 93; Clark v. Davis, Harr. 
 
 Mich. 463; Hubbard v. McNaughton, Ch. 227. 
 
 43 Mich. 220; TurnbuU v. Lumber 
 
572 stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 
 
 fully and explicitly set forth the particular facts called 
 for. If he fail to do so, the complainant may have Ms 
 right to a further answer and disclosure determined by 
 the court on special motion and the court may enforce its 
 order thereon by the attainment of the defendant, and 
 may strike such insufficient answer from the files. 
 
 Every such creditor's bill shall be verified as provided 
 by rule. 
 
 The proceedings in such a suit shall, except as other- 
 wise provided by rule or statute, be governed by the gen- 
 eral chancery rules, and the court may appoint a receiver 
 therein pending the determination of the suit, when it 
 shall be deemed necessary for the protection of the rights 
 of the complainant.^^ 
 
 The object of these provisions is to give the creditor a 
 remedy in this court after he has Exhausted his remedy 
 at law, where the debtor has choses in action or other 
 property which an execution cannot reach and which 
 ought in justice and equity, to be applied by him to the 
 payment of the judgment.^" 
 
 §523. The assets which may be reached by this bill 
 include every interest of every kind and nature which 
 the debtor had in any property, real or personal or ia 
 any choses in action which cannot be levied upon by an 
 execution at law. 
 
 The bill will reach property the legal title to which was 
 never in the debtor but which was purchased by him 
 with his money or means and the legal title taken in the 
 name of another for the purpose of preventing it from 
 being made subject to his debts, such a conveyance being 
 presumed to be fraudulent as to the creditors of the per- 
 son furnishing the purchase money imless the fraud is 
 disproved.^ 1 It will also reach the surplus of the income 
 of a trust fund created by a third person for the support 
 
 59 — Chancery Eule 30 a. b. c. d. Middlemiss, 47 Mich. 372; Hooker 
 
 60-— Smith v. Thompson, Walk. v. Oxford, 33 Mich. 453; Patton v. 
 
 Ch- !• Chamberlain, 44 Mich. 5; Harwood 
 
 61— C. L., Sec. 8836; Eeeg v. v. Underwood, 28 Mich. 427; Fisher 
 
 Burnham, 55 Mich. 39; Fairbairn v. v. Fobes, 22 Mich. 454. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND POEMS 573 
 
 of the debtor, over and above the amount required for 
 Ms support,''^ so where the debtor has retained an equit- 
 able interest in property sold by him wholly or in part 
 upon credit, that part of the purchase price remaining un- 
 paid may be reached although assigned if the assignment 
 was for the purpose of avoiding creditors.®* 
 
 Choses in action, debts or securities belonging to the 
 judgment debtor although transferred to another for the 
 like purpose may be impounded and subjected to the pay- 
 ment of the debt and the fact that such choses in action 
 might be reached by garnishment will not preclude the 
 remedy in equity.''* 
 
 If an assignment of a legacy or other chose in action be 
 made for a grossly inadequate consideration, the surplus, 
 after reimbursing the assignee the sum actually paid by 
 him, will be subjected to the payment of the judgment,*^ 
 so one who takes title from an insolvent debtor for the 
 purpose of defrauding creditors and sells it is liable for 
 its value on a creditor's bill whether he has received the 
 purchase money or not,*® and it is immaterial whether or 
 not he has himself paid anything for or on account of the 
 fraudulent conveyance for "he who does iniquity shall 
 not have equity. ' '®^ 
 
 Where an insolvent debtor fraudulently procures judg- 
 ment to be rendered against himself on a fictitious debt 
 and his property to be sold on an execution issued on such 
 judgment to a person having notice of the fraud, aU with 
 intent to defraud his creditors the property may be 
 reached by the bill.®* 
 
 § 524. The Bill. The bill must contain all the aver- 
 ments required by the statute and rules. Being a harsh 
 
 62 — C. L., Sec. 8841; Spring v. 66 — Eobinson v. Boyd, 17 Mich. 
 
 Bandal], 107 Mich. 103. 128. 
 
 63 — ^Withers v. Carter, 4 Gratt 67— Morley Bros. v. Stringer, 133 
 
 (Va.; 407. Mich. 690. 
 
 64— Benedict v. Land &c. Co. 68— Piatt v. Judson, 3 Blackf. 
 
 (Neb.), 92 N. W. 210. " (Ind.) 235. 
 
 65 — Parnham v. Campbell, 10 
 Paige 598; Bigelow v. Ayrault, 46 
 Barb. 143. 
 
574 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 remedy a strict adherence to these requirements has 
 always been insisted upon by the court.** The bill must 
 show a judgment and an execution issued thereon re- 
 turned unsatisfied in whole or in part/" relief being 
 granted on the showing that the complainant's remedy 
 at law is exhaustedJ^ 
 
 § 525. The judgment must be of a court having juris- 
 diction,''^ 
 
 The judgment of a Federal Court sitting within the 
 state wherein the bill is filed is generally conceded to be 
 sufficient to support a creditor's bill in the State Court 
 when the remedy at law has been exhausted,'^* and on the 
 other hand a judgment of a State Court will maintain a 
 biU in the Federal Court sitting in the same state.^* 
 
 It has been stated that as a general rule a judgment 
 obtained in one state and the remedy at law thereon ex- 
 hausted will not support a creditor's bill in any other 
 state than that wherein the judgment was rendered ; ''® 
 but in Michigan a judgment rendered in the State of 
 New York against a non resident of Michigan who had 
 interests in property in Michigan, has been recognized 
 as sufficient to support a creditor's bill in Michigan the 
 remedy at law by execution having been exhausted in 
 New York.''* 
 
 69— Thayer v. Swift, Harr. Ch. bell v. Millard, 63 Mich. 250; Na- 
 
 430; Clark v. Davis, Harr. Ch. 227; tional City Bank v. Dwight, 83 Mich. 
 
 First N. Bank v. Dwight, 83 Mich. 189. 
 
 189; McCuUough v. Day, 45 Mich. 72 — Jenks v. Horton, 114 Mich. 
 
 554; Campau y. Det. Driv. Club, 144 48; Ideal Qothing Co. v. Hazle, 126 
 
 Mich. 80. Mich. 262; McEee v. City Garbage 
 
 70— Smith v. Thompson, Walk. Ch. Co., 140 Mich. 497. 
 
 1; Williams v. Hubbard, 1 Mich. 73 — First N. Bank of Mauch 
 
 446; Grenell v. Ferry, 110 Mich. Chunk v. Dwight, 83 Mich. 189; 
 
 262; First N. Bank v. Dwight, 83 Ballin v. Loeb, 79 Wis. 404; Vander- 
 
 Mich. 189. veen v. Striker, 8 N. J. Bq. 185; 
 
 71 — Eldred v. Camp, Harr. Ch. Peterson v. Gathing, 107 Iowa 306. 
 
 162 ; Steward v. Stevens, Harr. Ch. 74 — ^Buckeye Machine Co. v. Donan 
 
 169; Thayer v. Swift, Harr. Ch. 430; & Co., 47 Fed. 6. 
 
 Maynard v. Hoskins, 9 Mich. 485; 75 — National Tube Works v. Bol- 
 
 Tyler v. Piatt, 30 Mich. 63 ; Gris- ton, 140 TJ. S. 517. 
 
 wold V. Fuller, 30 Mich. 268; Mc- 76— Earle v. Circuit Judge, 92 
 
 CuUough V. Day, 45 Mich. 554; Tar- Mich. 285. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FORMS 575 
 
 § 526. As to the Execution. It is provided by statute 
 that any execution issued upon, any judgment rendered 
 in any court of record, or upon any transcript of a jus- 
 tice 's judgment filed in any Circuit Court may be made 
 returnable at any time not less than twenty nor more 
 than ninety days from the time such execution shall be 
 issued." 
 
 It is held for the purpose of sustaining a creditor's bill 
 an execution cannot be considered as issued until it is 
 placed in the hands of the officer for service and that it 
 must be in his hands in force for the fuU twenty days.'^^ 
 
 A return of an execution unsatisfied made before the 
 return day will not support a creditor's bill.'^* Nor will 
 a return which does not show that the defendant had no 
 property that could be levied upon ; ^° nor a return that 
 the sheriff has property of the defendants in his hands 
 which cannot be sold for want of bidders,*^ nor that 
 the execution is returned unsatisfied by direction of the 
 complainant.®* 
 
 A return made on the return day is sufficient.*^ 
 
 A return to an execution against two joint defendants 
 that the defendants have no goods or chattels lands or 
 tenements, etc., without in terms stating that neither of 
 them had any property has been held sufficient to sustain 
 the bill.»* 
 
 It has been said that the sheriff's return should be so 
 specific that if untrue it would subject the officer to an 
 action at the suit of the debtor for a false return if a 
 creditor's bill were founded thereon.*^ 
 
 As the biU is in many respects a bill of discovery it 
 need not point out any particular asset which it is in- 
 
 77 — C. L., Sec. 10354. 81— Eldred v. Camp, Harr. Ch. 
 
 78— First N. Ba^ik v. Dwight, 83 162. 
 
 Mich. 189. 82 — Williams v. Hubbard, Walk. 
 
 79— Steward v. Stevens, Harr. Ch. Ch. 28. 
 
 169; Thayer v. Swift, Harr. Ch. 430; 83— Williams v. Hubbard, 1 Mich. 
 
 Smith V. Thompson, Walk. Ch. 1; 446. 
 
 Beach v. White, Walk. Ch. 495; First 84^-Williams v. Hubbard, 1 Mich. 
 
 N. Bank v. Dwight, 83 Mich. 189. 446. 
 
 80 — Smith v. Thompson, Walk. Ch. 85 — Williams v. Hubbard, Walk. 
 
 1. Ch. 28. 
 
576 stage's MICHIGAN CHANCEKY PBACTIOE AND FOEMS 
 
 tended to reach. It may be, and often is, aimed at assets 
 wliicK are concealed, and unknown to the complainant.®" 
 
 § 527. Parties. The creditor who has obtained the 
 judgment or his assignee is the proper complainant. If 
 the judgment has been assigned the assignee need not 
 make the original creditor a party to the bill unless there 
 is some controversy between the assignor and assignee.*'^ 
 
 Several judgment creditors may unite in a creditor's 
 bill against the same debtor although their respective 
 judgments may be several and they may have no joint 
 interests in any of them, yet they have acquired similar 
 rights with respect to the property of their common 
 debtor. The return of "nulla bona" to their respective 
 executions gives each of them a right to come into this 
 court for relief, each having an equal standing, upon a 
 common fund or estate out of which each claims a right 
 to be paid. In such a case it is proper for them to unite 
 in one bill or for one or more to file a bill for the benefit 
 of all. It prevents a multiplicity of suits and avoids 
 expense, and justice is equally as well administered. 
 Such a bill is not multifarious, it relates to but one sub- 
 ject matter, viz., the discovery of the fund or property 
 and its application to the satisfaction of the just debts 
 of the debtor.*® 
 
 A creditor may file his bill on behalf of himself and 
 all other judgment creditors of the same debtor but he 
 is under no legal or moral obligation to do so, he may 
 properly pursue this remedy for his own individual bene- 
 fit without regard to Others,®" and the diligent creditor 
 who first files his bill is entitled to have his judgment 
 satisfied in full out of the assets impounded in his suit 
 before other creditors are paid anything, although the 
 statute does not make the filing of the bill a lien on the 
 assets."" 
 
 86— Button V. Thomas, 97 Mich. Ch. (N. Y.) 450; Martin v. Buby, 
 
 93- 10.2 111. 348; Murray v. Hay, 1 Barb. 
 
 87— Morey v. Forsyth, Walk. Ch. Ch. (N. Y.) 59. 
 
 465; Beach v. White, Walk. Ch. 495; 89— McBryan v. Elevator Co., 130 
 
 Andrews v. Kabbee, 12 Mich. 94. Mich. 111. 
 
 88 — Leutilhon v. Moffat, 1 Edwd. 90 — Jones v. Smith, Walk. Ch. 115. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 577 
 
 If the bill is filed for the benefit of other creditors who 
 are willing to contribute to the expense of the suit as 
 well as the complainant the court will make an order that 
 such other creditors shall present their claims within a 
 certain time, which order must be published once in each 
 week for at least three weeks, and as much longer as the 
 court shall direct in a newspaper to be designated by the 
 court.' ^ 
 
 The judgment debtor and all persons to whom he has 
 fraudulently conveyed any part of his property, or to 
 whom he has caused any property to be conveyed for 
 his use to avoid a levy thereon by his creditors, and all 
 persons whom the complainant has reason to believe have 
 assets in their hands in secret trust for the use of the 
 defendant and all persons indebted to the defendant may 
 be made defendants although each transaction between 
 the debtor and the other parties may have been separate 
 and distinct from each other.'^ 
 
 Where there are two or more joint judgments debtors 
 those who are wholly irresponsible and have no property 
 need not be made parties,**^ but the reason for omitting 
 to make them defendants should be stated in the bill. 
 
 Where numerous stockholders of a corporation are 
 jointly and severally personally liable it is not necessary 
 to make all of them parties. The rule is well settled that 
 where parties are so numerous that to require all to be 
 joined would be virtually to deny any remedy, the joinder 
 of all will not be insisted upon.** 
 
 A debtor to the judgment debtor being without fraud 
 himself and being made a party merely for the purpose 
 of impounding the debt, is entitled to costs to be paid 
 out of the fund, and if there be no fund the complainant 
 may be decreed to pay them himself.''® 
 
 91— C. L., Sec. 484; McBryan v. 446; Pettibone v. MeGraw, 6 Mich. 
 
 Elevator Co., 130 Mich. 111. 445; Eankin v. Bothsehild, 78 Mich. 
 
 92— Hulbert v. Detroit Cycle Co., 10. 
 
 107 Mich. 81 ; Fellows v. Fellows, 4 94 — Pettibone v. McGraw, 6 Mich. 
 
 Cow. N. Y. 6S2; Boyd v. Hoyt, 5 445. 
 
 Paige 100. 95 — ^Brown v. Eicketts, 3 Johns. 
 
 93— Williams v. Hubbard, 1 Mich. Ch. 553. 
 
578 stage's MICHIGAN CHANCEBY PBACTICE AND POBMS 
 
 § 528. The bill should require answer on oath and 
 should pray for a discovery of the choses in action and 
 equitable interests of the debtor defendant, with specific 
 interrogatories as to the facts required, and that the 
 assets be sold and. the proceeds applied to the payment 
 of complainant's judgment and that the? debts ascertained 
 to be owing to the judgment debtor be paid to the com- 
 plainant on his judgment. It is usually necessary to in- 
 sert a prayer for a receiver and also in some cases for 
 an injunction. The form of prayer for particular relief 
 would be difficult to define as it wiU vary with the frauds 
 which may be stated in the bill. 
 
 The bill must be sworn to.^® 
 
 It must be filed within a reasonable time after the re- 
 turn of the execution.®'' 
 
 § 529. The Defence may as in other cases in chancery 
 be made by demurrer, plea or answer. 
 
 The answer as above stated must be on oath and 
 should contain a complete answer as to each of the mat- 
 ters on which a discovery is sought, evasions should be 
 avoided, but every fact on which the defendant intends 
 to rely in his defence should be stated in the answer. 
 . It is a good defence that the sheriff by direction of 
 the complainant refused to levy the execution upon prop- 
 erty which the defendant offered to turn out.®* 
 
 Also that the judgment was void for want of jurisdic- 
 tion.*® That the remedy at law was not exhausted thus 
 where the defendant had property in another county 
 and so informed his creditor, but the creditor took no 
 steps to realize upon it, the creditor was held not to have 
 exhausted his remedy at law although an execution ad- 
 dressed to the sheriff of the county where the defendant 
 resided had been returned unsatisfied.^"" 
 
 96— Chancery Eule 30c; Clark 99— Tyler v. Peatt, 30 Mich. 63; 
 
 V. Davis, Harr. Ch. 227 > Bergh v. see Trask v. Green, 9 Mich. 358. 
 
 Poupard, Walk. Ch. 115. 100 — ^Freeman v. Bank, Walk. Ch. 
 
 97— Gould V. Tryon, Walk. Ch. 62 ; Albany City Bank v. Dorr, Walk. 
 
 353. Ch. 317; see First N. Bank v. 
 
 98— Wharton v. Fitch, Walk. Ch. Dwight, 83 Mich. 191. 
 143; Freeman v. Bank, Walk. Ch. 62. 
 
stage's MICHIGAN CHANOEBY PRACTICE AlTD FOBMS 579 
 
 That the trust created for the benefit of the debtor was 
 created by a third person so as to bring it within the 
 exception of the statute is a good defence, so held where 
 the trust was created by the will of a deceased wife from 
 her separate estate.^ 
 
 Neither the regularity of the judgment nor of the ex- 
 ecution can be attacked in the defence to a creditor's 
 bill.- Nor can the return be attacked, the return being 
 conclusive as to the right to file the bill when not made 
 by collusion with or direction of the complainant.* 
 
 The negligence of the sheriff in not searching for 
 property cannot be shown in defence to the bUl.* 
 
 , § 530. It is no defence that the complainant has 
 caused a second execution to be issued on the judgment 
 and has caused the same to be levied on property claimed 
 to have been fraudulently conveyed.^ Such action is a 
 necessary preliminary to the filing of a bill with a double 
 aspect. 
 
 The death of the principal defendant, the judgment 
 debtor, puts an end to the suit if no lien has attached to 
 any specific property and the filing of the bill does not of 
 itself create a lien.* 
 
 531. Injunction. The only ground for the issuing of 
 an injunction on an ex parte application is the danger 
 of the loss of the remedy by the complainant 
 
 § 532. Receiver. A receiver may be appointed by the 
 court for the preservation of the fund whenever it is 
 made to appear tiat the fund is in a hazardous condition. 
 A receiver may be appourted after answer and before 
 replication if necessary for that purpose, the court has 
 
 1 — CmnmingB v. Covey, 58 Mieh. 4 — ^Albany City Bank v. Dorr, 
 
 494. Walk. Ch. 317. 
 
 2— WiUiams v. Hubbard, 1 Mich. 5— Clark v. Davis, Harr. Ch. 227. 
 
 446. 6— Jones v. Smith, Walk. Ch. 115 ; 
 
 3 — ^Albany City Bank v. Dorr, German Am. Seminary v. Saenger, 
 
 Walk. Ch. 317; Wright Co. v. Judge, 66 Mich. 249; Baith v. Porter, 119 
 
 109 Mich. 139; Newlove v. Pennock, Mich. 365. 
 
 123 Mich. 260. 7— Thayer v. Swift, Harr. Ch. 430. 
 
580 stage's MICHIGAN CHANCBBY PEACTICB AND FORMS 
 
 a broad discretion in the matter of such appointment.* 
 
 The pendency of a demurrer to the bill is no objection 
 to a motion for the appointment of a receiver.^ 
 
 A receiver will not be appointed to take property from 
 the possession of a defendant charged as trustee unless 
 it is shown that such defendant is insolvent, transient or 
 irresponsible, or that the fund is otherwise in a hazard- 
 ous condition.*" 
 
 The statute does not contemplate the execution of a 
 general assignment of his assets by the judgment debtor 
 to a receiver appointed by the court.** 
 
 On a motion for the appointment of a receiver the com- 
 plainant may read affidavits in reply to the answer and 
 affidavits of the defendant.*^ 
 
 An allowance for the compensation of a receiver out 
 of the fund cannot be made on any other grounds than 
 those stated in the bill.*^ 
 
 § 533. Amendment. The bill may be amended in the 
 same manner and for the same purpose and with the 
 same effect as other bills; where the complainant is not 
 entitled to amend of course the allowance of amendments 
 is in the discretion of the court.** 
 
 § 534. Supplemental Bill. A discovery of property 
 acquired by the judgment debtor subsequent to the filing 
 of the original bill may be obtained by supplemental 
 bill.*5 
 
 § 535. Proceedings. The proceedings in the case are 
 similar to those in an ordinary suit in chancery .^ 
 
 8— Dutton V. Thomas, 97 Mich. 93; 12 — EanMn v. Eothschild, 78 Mich. 
 
 Eankin v. Rothschild, 78 Mieh. 10; 10. 
 
 Bagley & Co. v. Scudder, 66 Mich. 13 — Campau v, Detroit Driving 
 
 97; Campau v. Detroit Driv. Club, Club, 144 Mieh. 80. 
 
 144 Mieh. 80. 14 — Earle v. Circuit Judge, 92 
 
 9 — Howard v. Palmer, Walk. Ch. Mich. 285. 
 
 391. 15— Newlove v. Pennock, 123 Mich. 
 
 10— Thayer v. Swift, Harr. Ch. 260. 
 430. 
 
 11— Eemiek v. Bradley, 119 Mich. 
 399. 
 
stage's michigak chanceey pkactice and fobms 581 
 
 The former practice of allowing a defendant debtor in 
 a creditor's suit to let the bill be taken as confessed and 
 examining him orally before a Circuit Court commis- 
 sioner as to his property and equitable assets, etc., under 
 former chancery rule 105 is now obsolete and that rule 
 is no longer in existence. 
 
 Under the present chancery rule 30 above recited the 
 defendant is required to make a full disclosure of all his 
 assets by his answer on oath, and should such answer be 
 not sufficiently full or explicit the complainant may move 
 the court to order a more full disclosure and may renew 
 such motion until a complete answer, satisfactory to the 
 court is obtained. 
 
 After the cause is at issue the complainant may, under 
 a recent statute call the defendant to the witness stand 
 and cross examine him on oath as if he had been called 
 as a witness on his own behalf as to all matters material 
 or relevant to the case, without being bound to accept his 
 answers to the questions propounded as true, and with- 
 out interfering with his right to introduce other evidence 
 to contradict such answers.*^ 
 
 In this manner as full and complete a disclosure of the 
 assets of the debtor as it is possible to obtain from him 
 may be procured without precluding the complainant 
 from producing such other evidence of assets undisclosed 
 by the defendant as he may be able to obtain. 
 
 Bills with a Double Aspect. 
 
 § 536. A judgment creditor may in the same bill seek 
 to have a fraudulent conveyance set aside in aid of his 
 execution and also to have the equitable assets of the 
 debtor which cannot be reached by execution at law ap- 
 plied to the satisfaction of his judgment.^^ 
 
 But a bill cannot be maintained for both purposes un- 
 less an execution on the judgment has been duly issued 
 
 16— Act No. 307 of PubUc Acts of Beam v. Burnett, 51 Mich. 148 ; 
 
 1909, p. 753. Eeeg v. Burnham, 55 Mich. 39 ; Wil- 
 
 17 — Clark v. Davis, Harr. Ch. 227; son v. Addison, 127 Mich. 680. 
 WlUiams V. Hubbard, Walk. Ch. 28; 
 
582 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 and returned unsatisfied and a second executicm issued 
 and levied on the land claimed to have been fraudulently 
 conveyed and still in force.'* 
 
 Such bills are very frequently filed and may be sus- 
 tained for one purpose while they may fail as to the 
 other. The frame of such a bill is of course a composit 
 of both the above mentioned bills and should contain all 
 the averments necessary to maintain each. The prayer 
 should also include that for special relief in each case. 
 
 BILL BY JUDGMENT CREDITOR IN AID OF 
 EXECUTION. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 19 . . , your orator recovered a judgment in the Circuit Court 
 
 for the county of , in this state, against one C. D. for 
 
 the sum of dollars damages and the costs of that 
 
 suit, taxed at t.he sum of dollars, as by the record of 
 
 the said judgment no^ remaining on the records of the said 
 last mentioned court, whereto reference is prayed, will fully ap- 
 pear, and that the said judgment is and remains of full force 
 and effect, not vacated, set aside nor reversed in whole or 
 in part, and is wholly unsatisfied; and that the indebtedness 
 whereon the said judgment was recovered was incurred on or 
 before the day of , 19 . . . 
 
 2. And that previous to the time of the rendition of the said 
 judgment and at the time when the said indebtedness was in- 
 curred the said C. D. was the owner in his own right in fee sim- 
 ple of all and singular the lands and premises, situate in the 
 
 county of , and State of Michigan, and described as 
 
 follows: describe the lands) which said land exceeds one hun- 
 dred dollars in value and is of the value of dollars or 
 
 thereabout. 
 
 3. And that after the rendition of the said judgment and 
 on the ^ . . day pf , A. D. 19 . . , the said judg- 
 ment then being and remaining in full force and effect and be- 
 ing wholly unsatisfied and the damages and costs aforesaid re- 
 maining tinpaid, your orator, in order to obtain satisfaction of 
 the same, caused a writ of fieri facias to be issued out of the said 
 last mentioned court under lie seal thereof, directed to the 
 
 sheriff of the said county of , wherein the said C. D. 
 
 resided and still resides and wherein the said land is situate, 
 
 18— McCullough V. Day, 45 Mich. 
 554; Tarbell v. MUlard, 63 Mich. 
 250. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 583 
 
 in the usual form, commanding the said sheriff that of the 
 goods and chattels, lands and tenements of the said C. D. 
 
 he should cause to be made the said sum of dollars 
 
 damages and costs, which your orator had as afore- 
 said recovered against him, the said C. D., and that he, the 
 said sheriff, should have that money before the said last men- 
 tioned court at in said co\mty, on the day 
 
 of , A. D. 19 . . , to be paid to your orator for his said 
 
 damages and costs in satisfaction of the said judgment, and that 
 he should have then and there that writ. Which said writ of 
 fieri facias was duly endorsed and was on the same day of the 
 issue thereof, delivered to the said sheriff to be by him executed 
 in due form of law. 
 
 4. And that afterwards and on the day of 
 
 .... , 19. . , the said sheriff duly levied the said writ of fieri 
 
 facias upon the said above described land and premises and 
 caused such levy to be duly recorded in the oflSce of the 
 
 register of deeds of the said county of , liber 
 
 of levies, at page , to which record reference is prayed. 
 
 5. And that previous to the rendition of the said judgment, 
 but after the indebtedness upon which the same was rendered 
 
 had accrued, that is to say on the dajr of , 
 
 A. D. 19 . . , the said C. D. made a pretended deed of conveyance 
 purporting to convey the said land to one G. H., in fee simple 
 
 for a pretended consideration therein mentioned of 
 
 dollars, which said prenteded deed of conveyance bears date 
 
 the day of , A. D. 19 . . , and is recorded in 
 
 the office of the register of deeds of said county of , in 
 
 liber of deeds, at page , to which record ref- 
 erence is prayed. 
 
 6. And your orator further shows and charges the fact to 
 be that the said pretended conveyance to the said G. H. was 
 not real, but was a mere sham and was made to hinder, delay 
 and defraud the creditors of the said C. D., and for the pur- 
 pose and with the intention of defrauding your orator (and the 
 
 other creditors of the said C. D.) out of just dues 
 
 and demands; that no consideration was in fact paid by the 
 said G. H. to the said C. D. for the same, and that the said lands 
 and premises are now held by the said G. H., in trust, for the 
 said C. D. and for his use and benefit, and for the purop'se of 
 preventing a levy and sale of the same under and by virtue 
 of the said writ of fieri facias. 
 
 7. And that the said C. D. has no personal or real esta'te 
 subject to levy and sale on execution, except the lands and prem- 
 ises aforesaid, on which the said sheriff could make a levy and 
 
 realize the amount of the said judgment, and that, although 
 the said sheriff has frequently demanded of the said CD. that 
 he pay the amount due on the said judgment, or that he would 
 
584 stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 
 
 turn over property whereon a levy could be made, the said C. 
 D. has refused and still refuses to pay the same or to turn 
 over property, and fraudulently pretends that he has neither 
 money nor property to satisfy the same. 
 
 8. And that the said judgment still is and remains In full 
 force and efEeet, not reversed, satisfied nor otherwise vacated 
 in whole or in part, and that there is now actually and equi- 
 tably due to your orator thereon the sum of dollars, 
 
 together with interest thereon from the date of the entry thereof, 
 
 at the rate of per cent per annum, over and above 
 
 all claims of the said C. D. by way of set-ofE or otherwise. 
 
 I. In consideration whereof and to the end therefore that 
 the said C. D. and Gr. H. may, without oath, all answer upon 
 oath being hereby waived, full, true, direct and perfect answer 
 make to all and singular the matters herein stated and charged, 
 and that as fully and particularly as if the same were here re- 
 peated and they thereunto respectively specially interrogated: 
 
 II. And that the said deed of conveyance from the said C. 
 D. to the said G. H. may be decreed to be set aside, vacated and 
 made absolutely null and void as to the complainant, and as to 
 each and every person who may become the purchaser or pur- 
 chasers of the said land and premises, or of any part thereof, 
 at a sale to be made thereof by virtue of the said writ of fieri 
 facias: 
 
 III. And that the said defendants, each and both of them, 
 may be restrained by the order and injunction of this honorable 
 court from disposing of, encumbering or from doing any act 
 in any manner interfering with the title to the said land and 
 premises, or any part thereof, and that they be so restrained in 
 the meantime during the pendency of this suit : 
 
 IV. And that the said sheriff may thereupon be directed to 
 proceed in the execution of the said writ of fieri facis and to 
 advertise and sell the said lands and premises by virtue thereof 
 in due form of law, for the payment and satisfaction of the said 
 judgment of your orator with interest and costs; and that the 
 purchaser or purchasers at such sale take all the right, title and 
 interest of the said C. D. in and to the said land, which he had 
 before and at the time of the making of the said pretended con- 
 veyance to the said G. H. : 
 
 ■V. And that the said G. H. release and convey to such pur- 
 chaser or purchasers all rights and iaterests which he claims or 
 appears to have in said land, under or by virtue of the said 
 pretended deed of conveyance to him: 
 
 VI. And that your orator have leave to cause such decree 
 to be recorded in the oJG&ce of the register of deeds of said county 
 
 of , as and for such release and conveyance of the said 
 
 G. H.: 
 
 VII. And that your orator may have such further or such 
 
stage's MICHIGAN CHANOEBY PEACTICB AND FOEMa 585 
 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 And your orator will ever pray, etc. 
 
 A. B., 
 Complainant. 
 
 O. JJ. 
 
 Solicitor for Complainant and of Counsel. 
 [This bill need not be sworn to unless injunction is sought, 
 or unless answer on oath is demanded.] 
 
 [It is not necessary to allege insolvency of judgment debtor, 
 in ease of several co- judgment debtors and levy on land of one, 
 it is not necessary to make others parties, nor to allege ex- 
 haustion of remedy against, nor insolvency of, the others.] 
 [Bill must be filed within one year after levy.] 
 [Execution must be in hands of sheriff when bill is filed.] 
 [A bill in aid of execution and a judgment creditor's bill 
 may be combined in one biU.] 
 
 TO REACH EQUITABLE ASSETS. 
 (Address.) 
 
 Complaining, your orators, A. B., E. F., and G. H., of 
 , respectfully show unto the court : 
 
 1. That they are, and for years now last past have 
 
 been, partners doing business under the firm name of B. P. 
 
 & Co., at aforesaid, and that heretofore and on the 
 
 day of , A. D. 19 . . , your orators, as plain- 
 tiffs, recovered a judgment in an action of assumpsit in the Cir- 
 cuit Court for the county of against one C. D., then 
 
 of , as defendant, for the sum of dollars 
 
 damages, and the costs of suit, which costs were afterwards and 
 
 on the day of , A. D. 19 . . , duly taxed at the 
 
 sum of dollars, as by the record of the said judgment 
 
 now remaining on the records and files of the said last mentioned 
 court and whereunto reference is prayed, will fully appear. 
 
 2. And that afterwards and on the day of , 
 
 19 . . , the said judgment then being and remaining of full force 
 and effect, your orators, for the purpose of obtaining satisfac- 
 tion thereof, procured to be issued out of and under the seal of 
 the said last mentioned court a certain writ of fieri facias di- 
 rected to the sheriff of the county of that being the 
 
 county wherein the said C. D. then resided, by which said writ 
 the said sheriff was commanded that of the goods, chattels, 
 lands and tenements of the said C. D. in his county, he should 
 cause to be made the sum of dollars for the said dam- 
 ages and costs, which your orators had recovered against him, 
 the said C. D., by the judgment aforesaid, and that he, the said 
 sheriff, should have that money before the said last mentioned 
 
586 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 court by the day of , 19 . . , to satisfy the said 
 
 judgment and that he should have then there that writ. 
 
 3. And that the said writ of fieri facias, before the delivery 
 thereof was duly endorsed according to law and was afterwards 
 
 and on the day of , 19 ^ . , delivered to the 
 
 said sheriff to be by him executed in due form of law. 
 
 4. And that; afterwards and on the day of , 
 
 19 . . , the said sheriff returned the said writ of fieri facias to the 
 said last mentioned court wholly unsatisfied with a return en- 
 dorsed thereon and signed by the said sheriff, that (set out the 
 return of the sheriff), as by the said writ of fieri facias with 
 the said return of the said sheriff thereon endorsed now on file 
 in the office of the clerk of the said Circuit Court for the county 
 of , whereto reference is prayed, will fully appear. 
 
 5. And that the said judgment still is and remains in full 
 force and effect, not reversed, set aside, satisfied nor otherwise 
 vacated, and that there is now actually, justly, and equitably 
 due to your orators thereon the sum of dollars, to- 
 gether with interest thereon, from the date of the rendition 
 thereof, over and above all legal and equitable claims and de- 
 mands of the said C. D. by way of set-off or otherwise. 
 
 6. And that your orators are informed and have reason to 
 believe and do believe that the said judgment debtor, C. D., has 
 equitable interests things in action and other property exceed- 
 ing one hundred dollars in value, which your orator.s are unable 
 to reach by execution, and your orators are informed and believe 
 and charge the truth to be that the said judgment debtor, C. 
 D., has a considerable amount of money, and of legal and equi- 
 table debts, claims and demands due to him from different per- 
 sons whose names are unknown to your orators, and that he, the 
 said C. D., has a large amount of real estate, leasehold interests, 
 contracts for lapd and other interests, legal and equitable, in 
 real estate, stocks of different kinds, securities, promissory notes 
 and other evidences of debt, boats, vessels, money and other per- 
 sonal property, either in possession or held in trust for him (ex- 
 clusive of such trusts as may have been created by, or the 
 fund held in trust has proceeded from, some person other than 
 the said C. D.), the situation, value and particulars of which are 
 unknown to your orators, and which ought in justice and equity 
 to be applied to the satisfaction of the said judgment ; and your 
 orators have goon reason to fear and do fear that the said C. 
 D. will make away with the same or place the same beyond the 
 control of this court. 
 
 7. And your orators further show that since the indebted- 
 ness for which the said judgment was rendered wag incurred, 
 
 and on or about the day of 19 .. i, one 
 
 J. K. bargained and sold all that certain piece- or parcel of land 
 situate, etc. described land), of the value of ........ dollars. 
 
stage's MICHIGAN CHANCEEY PBACTICB AND FORMS 587 
 
 for the price and consideration of dollars, and eon- 
 
 veyed the same by deed ef conveyance to one M. D., the son of 
 the said C. D., which said deed of conveyance is recorded in the 
 
 office of the register of deeds of the said county of , in 
 
 liber of deeds, at page , as by the said rec- 
 ord will fully appear, and whereto reference is prayed; and 
 your orators are informed and believe and charge the truth to 
 be that at the time of such sale the said C. D. furnished from 
 his own proper moneys and property the full amount of the 
 
 purchase price of dollars paid to the said J. K. for 
 
 the said last mentioned land, and that the deed thereof was 
 taken and made in the name of the said M. D., in order fraudu- 
 dently to prevent the same from being levied upon to satisfy 
 the s,aid indebtedness of the said C. D. to your orators, and 
 that the same now is held in trust for the said C. D. by the said 
 M. D. 
 
 (Insert any other transaction of which complmntmts have 
 sufficient information to charge any other property as ieing held 
 in trust for the judgment debtor, making the person or persons 
 holding the same defendants.) 
 
 8. And your orators further show and aver that this bill of 
 complaint is not exhibited by collusion with the defendants or 
 with any or either of them, nor for the purpose of protecting 
 the property or effects of the said judgment debtor against 
 the claims of other creditors, but for the sole purpose of com- 
 pelling payment and satisfaction of your orators ' own debt. 
 
 I. To the end therefore that the said C. D. and M. D. and 
 (if any others are stated in the bill to he suspected of holding 
 property in secret trust for the judgment debtor insert their 
 names), the defendants herein may, upon their several and re- 
 spective corporal oaths, full, true, direct and perfect answer 
 make to all and singular the matters herein stated and charged, 
 as fully and particularly, paragraph by paragraph and sentence 
 by sentence, as if the same were here repeated, and they there- 
 unto particularly interrogated. 
 
 il. And that the said defendants may answer and set forth 
 all the estate, real and personal, of every description, goods, 
 chattels, money, book accounts, promissory notes, bonds, mort- 
 gages, securities, evidences of debt and choses in action belong- 
 ing to the said defendant, C. D., or wherein he had any inter- 
 est, legal or equitable, as well at the time of the issuing of the 
 said writ of fieri facias as at the time of filing this bill of com- 
 plaint, whether standing in his name or in the name or in the 
 hands of any other person or persons, for his use, or m trust 
 for him either express or implied (except the trusts herein- 
 before excepted), and what disposition has been made of the 
 same respectively, and when, and the amount, condition, situ- 
 ation and value of each of them, and the names and residences 
 
588 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 of the debtors of the said C. D. respectively, and the evidences of 
 their respective indebtedness, and how much is due on each of 
 such demands, and which of them are doubtful, and which of 
 fhem are bad, and who has the possession, custody or control of 
 such real and personal estate, goods and chattels, book accounts, 
 promissory notes, bonds, mortgages, securities, evidences of debt\ 
 judgments and choses in g,ctio.n and each of them, and whether 
 or not the said C. D. furnished the purchase money and con- 
 sideration for the deed of conveyance from the said J. K. to the 
 said defendant, M. D., either directly or indirectly, in whole 
 or in part, and the actual and true amount so furnished, and all 
 the particulars and details thereof, and who was at the time of 
 the issuing of the said writ of fieri facias and at the time of 
 "filing this bill in the actual enjoyment of the rents, issues and 
 profits of the said land, so sold and conveyed by the said J. 
 K. as aforesaid. 
 
 III. And that the said C. D. may be decreed to pay to your 
 orators forthwith the amount of the said judgment with in- 
 terest from the date of the rendition thereof and the costs of 
 this suit. 
 
 IV. And that some proper, person may be appointed by this 
 court a receiver to receive all and singular the moneys, prop- 
 erty, real estate, goods, chattels, book accounts, promissory notes, 
 bonds, mortgages, securities, evidences of debt, judgments and 
 choses in action of the said C. D., with the usual powers and 
 authority of a receiver, and that the said C. D. may be directed 
 forthwith to assign, transfer and deliver to such receiver all his 
 property, as well real as personal, equitable interests, things in 
 action, money and effects, and all the books and papers relating 
 thereto, and all securities and evidences of indebtedness and 
 evidences of equitable interests, and that your orators may have 
 satisfaction of the amount due to them on the said judgment, 
 together with the costs and charges of this suit, out of the said 
 money, property, equitable interests and things in action of the 
 said defendant, C. D., Including the equitable interest of the 
 said C. D. in the said land purchased of the said J. K, and con- 
 veyed to the said M. D. 
 
 V. And that the said Q. D. may be restrained by the order 
 and injunction of this couft from selling, assigning, transfer- 
 ring, delivering, begotiating, discharging, receiving, collecting, 
 incumbering 01* in any inattner disposing of or interfering with 
 any debts or demands due to him, or any promissory notes, bills, 
 bonds, book accounts, mortgages, securities,, evidences of indebt- 
 edness, judgments or other choses in. action due to him, whether 
 in his possession or held by some other person or persons in trust 
 for him or for his use and benefit ; and also from assigning, trans- 
 ferring, or in any manner incumbering or disposing of, or inter- 
 meddling with, any money, stock or any property, real or per- 
 
stage's MICHIGAN CHANCEBY PBACTIOB AND FOEMS 589 
 
 sonal, things in action or chattels real belonging to him or in 
 which he has any interest whatever, whether in his possession or 
 in the possession of any other person for him or for his use or 
 benefit, and that he be in the meantime so restrained during the 
 pendency of this suit. 
 
 VI. And that the said defendant, M. D., may be in like man- 
 ner restraiaed from selling, assigning, conveying, encumberitig 
 or in any manner disposing of the said land so purchased from 
 the said J. K., or any part thereof, and that he may be so re- 
 strained in the meantime and during the pendency of this suit. 
 
 VII. And that your orators may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orators will ever pray, etc. 
 
 (Verification by one of complainants as follows:) 
 State of Michigan, 1 
 
 County of | ^^• 
 
 On this day of , 19 ■ • , before me, a notary 
 
 public of, in and for said county, personally appeared A. B., 
 and made oath that he is one of the complainants in the fore- 
 going bill of complaint by him subscribed, and that he is author- 
 ized'to and doth subscribe and verify the said bill on behalf of 
 all the said complainants, and that he has heard read the said 
 bill of complaint and knows the contents thereof, and that the 
 same is true of his own knowledge, ■except as to those matters 
 which are therein stated to be on information and belief, and 
 as to those matters he believes it to be true. 
 
 John Doe, 
 Notary Public, 
 
 ,, County, Michigan. 
 
 My commission will expire , 19 . . . 
 
 WITH A DOUBLE ASPECT. 
 (Address and introduction.) 
 
 1. That heretofore and on the ........ day of , 
 
 A. D. 19 . . , your orator as plaintiff recovered a judgment in 
 an action of assumpsit in the circuit court for the county of 
 
 , against one C. D., as defendant, for the sum of 
 
 dollars damages and the costs of that suit, which costs 
 
 were afterwards and on the day of , A. D. 
 
 19. ., duly taxed at the sum of dollars, as by the record 
 
 of the said judgment now remai-ning .in the records of the said 
 last mentioned court, whereto reference is prayed, will fully 
 appear and that the indebtedness whereon the said judgment 
 
 was rendered was incurred on or before the day of 
 
 ,A. D. 19... 
 
 2. And that afterwards and on the day of 
 
 , A. D. 19.., the said judgment then being and re- 
 
590 stage's MICHlGAii CHANCEBf PEAOTICE AND B'OBMS 
 
 maining in full force and effect, your orator, for the purpose 
 of obtaining satisfaction thereof, caused to be issued out of and 
 under the seal of the said last mentioned court a writ of fieri 
 facias, bearing date the day aad year last aforesaid, and diriected 
 
 to the sheriff of the county of , that being the county 
 
 wherein the said C. D. then resided, and in and by the said 
 writ the said sheriff was commanded that of the goods and chat- 
 tels, lands and tenements of the said C. D. in his county, he 
 
 should cause to be made the sum of dollars, which your 
 
 orator had recovered against the said C. D. as aforesaid, and 
 that he, the said sheriff, should have that money before the 
 
 said last mentioned court at the court house in the of 
 
 , in the said county of on the day 
 
 of , 19 . . , to render unto your orator in satisfaction 
 
 of the said judgment so recovered by him as aforesaid, and that 
 he the said sheriff should have then there that writ. 
 
 3. And that before the delivery thereof to the said sheriff 
 the said writ of fieri facias was duly endorsed as provided by 
 
 law, and that afterwards on the day of , 19 • • , 
 
 the said writ of fieri facias was delivered to the said sheriff to 
 be by him executed in due form of law. 
 
 4. And that the said sheriff was unable to find any goods, 
 chattels, lands or tenements of the said C D. subject to execu- 
 tion within his county whereon to levy, during the term from 
 the said date of the issuing" of the said writ of fieri facias until 
 the said return day thereof, and that afterward and on the 
 
 day of , 19 . . , the said sheriff returned the 
 
 said writ of fieri facias to the said last mentioned court wholly 
 unsatisfied with a return in writing thereon endorsed and signed 
 by the said sheriff as follows: (insert return verihatim), as in 
 and by the said writ of fieri facias with the said sheriff's said 
 return endorsed thereon now on file in the ofSce of the clerk 
 of the said- last mentioned court will fuUy appear, and whereto 
 reference is prayed. 
 
 5. And that after the return of the said writ of fieri facias 
 
 wholly unsatisfied as aforesaid and on or about the 
 
 day of , 19 . . , the said judgment still being and re- 
 maining in full force and effect and wholly unsatisfied, your 
 orator, in order to obtain satisfaction thereof, procured to be 
 issued out of and under the seal of the said circnit court lor 
 
 the county of , a certain other, or alias, writ of fieri 
 
 facias, bearing date the same day and year last aforesaid, and 
 directed to the sheriff of the county of , and there- 
 in and thereby commanding the said sheriff that of the goods 
 and chattels, lands and tenements of the said C. D. within his 
 
 county, he should cause to be made the said sum of 
 
 dollars, which your orator had recovered against him the said 
 C. D. as aforesaid, and that he, the said sheriff, should have 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 591 
 
 that money before the said last mentioned court at the court 
 
 house aforesaid on the day of , 19 . . , to 
 
 render to your orator in satisfaction of the said judgment and 
 that he, the said sheriff, should have then there that writ. 
 
 6. And that the said last mentioned writ of fieri facits was, 
 before the delivery thereof to the said sheriff, duly endorsed 
 
 as provided by law, and was afterwards and on the 
 
 day of , 19 . . , duly delivered to the said sheriff to be 
 
 executed by him in due form of law, as in and by the said last 
 mentioned writ of fieri facias now in the hands of the said sheriff 
 will fully appear, and whereto reference is prayed. 
 
 7. And that afterwards and on the day of , 
 
 19 . . , the said sheriff duly levied the said last mentioned writ 
 of fieri facias upon that certain piece or parcel of land, situate 
 and being, etc., (describe land), and caused such levy to be 
 duly recorded in the office of the register of deeds of the county 
 
 of , in liber of levies, at page , as 
 
 by such record will fully appear, and whereto reference is 
 prayed. 
 
 8. And that previous to the rendition of the said judgment 
 and after the indebtedness whereon the same was rendered, had 
 
 been incurred, that is to say on the day of , 
 
 19 . . , the said C. D. was the owner in his own right in fee simple 
 of all and singular the said land, and that the same exceeds 
 one hundred dollars in value, and that at the date last men- 
 tioned the said land was and still is of the value of 
 
 dollars and upwards, and that on the day and year last afore- 
 said the said C. D. made and executed a pretended deed of con- 
 veyance, purporting to convey the same to one G. H. in fee 
 simple for the pretended consideration therein mentioned o£ 
 
 dollars, which said pretended deed of conveyance bears 
 
 date the said day of , 19 . . , and is recorded 
 
 in the said register's office, in liber of deeds, at page 
 
 , to which record reference is prayed. 
 
 9. And your orator is informed and believes and charges 
 the fact to be that the said pretended conveyance to the said 
 G-. H. was not real, but was a mere sham, and was made to hin- 
 der, delay and defraud your orator and the creditors of the said 
 C. D. in the collection of his and their just claims and demands 
 against the said C. D., and that no consideration was in fact 
 paid by the said G. H. to the said C. D. for the same, and that 
 the said land and premises are now held by the said G. H. in 
 trust for the said C. D., and for the purpose of preventing a 
 levy and sale thereof under or by virtue of any writ of fieri 
 facias that might be issued against the said C. D. 
 
 10. And your orator further shows that the said judgment 
 still is and remains in full force and effect, not reversed, set 
 aside, satisfied or otherwise vacated in whole or in part, and 
 
592 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 that there is now actually, justly and equitably due to your 
 orator thereon the sum of dollars, with interest there- 
 on from the date of the rendition thereof, over and above all 
 claims of the said C. D. against your orator by way of set-off or 
 otherwise. 
 
 11. And that before the time of the issuing of the said writ 
 of fieri facias herein first before mentioned, but after the time 
 when the indebtedness whereon the said judgment was re^ 
 
 covered, was incurred and on or about the day of 
 
 , A. D. 19 . . , one J. K. did by deed of conveyance under 
 
 his hand and seal, grant and convey to one M. D., a son of 
 the said C. D., a certain piece or parcel of land, situate, etc., 
 (describe the land), of the value of doUars and up- 
 wards as nearly as your orator can estimate, and that the con- 
 sideration named in the said deed is . .- dollars, and that 
 
 the said deed was afterwards and on or about the day 
 
 of , A. D. 19 . . , recorded in the office of the register 
 
 of deeds for the said county of , in liber of 
 
 deeds, at page , as by the said record now remaining 
 
 in the said register's office, and whereto reference is prayed, 
 will fully appear. 
 
 12. And that your orator is informed and believes and 
 charges the truth to be that the said C. D. himself furnished 
 and paid with his own means and money the entire purchase 
 price and consideration for said land to the said J. K., and 
 that the said M. D. did not furnish or pay the same from his 
 own money, and that the said M. D. then had no means nor 
 money, except such as was derived from the said C. D., and 
 that the said C. D. procured the ^itle to the said last mentioned 
 land to be taken in the name of the said M. D. merely for the 
 purpose of protecting the same from levy and sale on execu- 
 tion against him, the said C. D., and for the purpose of pro- 
 tecting the same from the lawful claims of your orator and 
 other creditors of the said C. D. against him, the said C. D., 
 and to hinder, delay and obstruct your orator and the other 
 creditors of the said C. D. in the collection of his and their 
 
 I just demands against him, the said C. D., and that in equity 
 the title to the said last mentioned land is held by the said 
 M. D. in trust, for the said C. D., and is subject to levy and 
 sale for the satisfaction of the amount due to your orator upon 
 the judgment aforesaid. 
 
 13. And your orator is also informed and Relieves and 
 charges the truth to be that the said C. D. has other property, 
 debts, equitable interests, choses in action and effects of the 
 
 value of more than one hundred dollars, and exceeding 
 
 dollars in value, held in secret trust for him by L. M. and 
 N. 0., and which your orator has been unable to reach by way 
 of execution against the said C. D. 
 
stage's MICHIGAN CHANCEEY PKACTICE AND FOKMS 593 
 
 14. And your orator is also informed and believes and 
 charges the truth to be that the said L. M. and N .0. have in 
 their possession or ujider their control, either jointly or sever- 
 ally, divers goods, wares and merchandise and money, things 
 in action, evidences of indebtedness and other personal property 
 and effects of the value of more than one hundred dollars, and 
 
 exceeding dollars in value, which belong to the said 
 
 C. D., or wherein he has a beneficial interest. 
 
 15. And that your orator is informed and has reason to be- 
 lieve and does believe and charges the fact to be that the said 
 judgment debtor C. D. has equitable interests, things in action 
 and other property exceeding one hundred dollars in value, 
 which your orator is unable to reach by execution and your 
 orator is informed and believes and charges the truth to be that 
 the said judgment debtor C. D. has a considerable amount of 
 money and of legal and equitable debts, claims and demands 
 due to him from different persons whose names are unknown to 
 your orator, abd that he the said C. D. has a large amount of 
 real estate, leasehold interests, contracts for land and other in- 
 terests, legal and equitable, in real estate, stocks of different 
 kinds, securities, promissory notes, and other evidences of debt, 
 boats, vessels, money and other personal property, either in 
 possession or held in trust for him (exclusive of such trusts as 
 may have been created by, or the fund held in trust has pro- 
 ceeded from some person other than the said C. D.), the 
 situation, value and particulars of which are unknown to your 
 orator and which ought in justice and equity to be applied to 
 the satisfaction of the said judgment and your orator has good 
 reason to fear and does fear, that the said C. D. will make away 
 With the same or place the same beyond the control of this court. 
 
 16. And your orator avers that this bill of complaint is not 
 filed nor exhibited by collusion with the said C. D., or with any 
 other person, nor for the purpose of protecting the property 
 or effects of the said CD. against the claims of other creditors, 
 but merely for the sole and only purpose of compelling pay- 
 ment and satisfaction of the said judgment so as aforesaid re- 
 covered by your orator against the said C. D. 
 
 I. To the end therefore that the said C. D., G. H., M. D., L. 
 M., and N. 0., the defendants herein, may upon their several 
 and respective corporal oaths full, true, direct and perfect 
 answer make to all and singular the matters and things herein- 
 before stated and charged, and that as fully and particularly, 
 paragraph by paragraph and sentence by sentence, as if the 
 same were here repeated and they thereunto respectively par- 
 ticularly interrogated, and that the said defendants may, each 
 for himself, state and jnake full and complete discovery of all 
 property, debts, equitable interests, choses in action, goods, 
 wares and merchandise, money, evidences of indebtedness and 
 
594 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 other personal property and effects of tlie said C. D., whether 
 in his possession or held by the said G. H., M. D., L. M., and 
 N. 0., or any or either of them or by any other person or per- 
 sons, for him the said C. D., or for his use and benefit. 
 
 II. And that the said C. D. xaay come to an account with 
 your orator touching the amount due to your orator upon the 
 said judgment for damages, interest and costs, and that the 
 said C. D. may be decreed to pay the same forthwith to your 
 orator, with interest thereon, and the costs of this suit. 
 
 III. And that the said deed of conveyance made by the 
 said C. D. to the said G. H. may be decreed to be fraudulent 
 and wholly void as to your orator and all other creditors of the 
 said C. D., and that the said land therein described may be 
 decreed to be the property of the said C. D., and subject to 
 levy and sale on the said alias writ of fieri facias for the satis- 
 faction of the amount due on your orator's said judgment and 
 not the property of the said G. H., and that the said G. H. 
 has no right, title nor interest therein whatever, as against your 
 orator, dr against whoever may be the purchaser or purchasers 
 thereof, at a sale under the said last mentioned writ. 
 
 IV. And that it may be decreed that in equity the said 
 C. D. is the owner of the said land described in the said deed 
 from the said J. K. to the said M. D., and that the said last 
 described land be decreed to be the property of the said C. D., 
 and not the property of the said M. D., and to be subject to 
 levy and sale to satisfy the said judgment of your orator, and 
 that the same may be sold under the decree and direction of 
 this court and the proceeds applied to the satisfaction of the 
 said judgment of your orator. 
 
 V. And that some proper person may be appointed a re- 
 ceiver to collect and receive all the property, choses in action, 
 equitable interests and effects of the said C. D. and that the 
 said defendants, each and aU of them, turn over and deliver to 
 such receiver all property, equitable interests, choses in action, 
 goods; wares and merchandise, money, evidences of indebted- 
 ness and other personal property and effects of the said C. D., 
 or wherein he has any equitable or beneficial interest whatever, 
 held by them, the said defendants respectively, or any of them, 
 and that the same may be collected, sold and disposed of by 
 such receiver by and under the decree and direction of this 
 court, and the proceeds applied to the satisfaction of your 
 orator's said judgment. 
 
 VI. And that in the meantime and during the pendency of 
 this suit the said defendants, and each and all of them, may be 
 restrained by the order and injunction of this court from sell- 
 ing, assigning, transfering or in any m.anner disposing of, or 
 interfering with, the ' property, equitable interests, choses in 
 action, goods, wares and merdiandise, money, evidences of in- 
 
STAGE *S MICHIGAN CSAiSrCiEllY PBACTICE ASTD FORMS 595 
 
 debtedness and other personal property and effects of the said 
 C. D., or wherein he has any equitable or beneficial interest, or 
 any thereof, or any part thereof. 
 
 VII. And that your orator have leave to cause such decree 
 to be recorded in the ofiSce of the register of deeds for the county 
 of 
 
 VIII. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B., 
 Complainant. 
 
 Solicitor for Complainant and of Counsel. 
 (Add verification.) 
 
 Bills Relating to Trusts. 
 
 §537. A trust has been defined as "property con- 
 ferred upon and accepted by one person on the terms of 
 holding, using or disposing of it for the benefit of 
 another. ' ' 
 
 The parties to the formation of a trust are three. The 
 original owner of the property which forms the subject 
 of the trust who is the creator of the trust, technically 
 called the Settlor. The trustee to whom the legal title to 
 the property is conveyed by the settlor, and the Cestui 
 que trust, or beneficiary, for whose benefit the trust is 
 created. Trusts have always been subject to equity juris- 
 diction. 
 
 Equity does not create trusts, but defines, regulates 
 and enforces them, and is frequently appealed to in order 
 to determine whether or not a trust exists. 
 
 Trusts may be created in real estate or in personal 
 property or in any combination of the two, in a trust the 
 legal ownership of the property is vested in the trustee 
 while the equitable and beneficial interest therein belongs 
 to the cestui que trust or beneficiary. 
 
 § 538. The settlor may create the trust for the benefit 
 of himself and others as beneficiaries; or he may make 
 himself the trustee for the benefit of others but usually 
 the trustee and the beneficiary and the settlor are all of 
 
596 stage's MICHIGAN CHANCERY PEACTIOE AND FOEMS 
 
 them persons distinct from each other. It is evident that 
 the same person could not be sole trustee and sole benefi- 
 ciary as in such a case the legal and equitable titles would 
 be united and there could be no trust. 
 
 A trust may be created by any one or more competent 
 persons and any one or more competent persons or a cor- 
 poration may be made trustees and the beneficiaries may 
 be oneor more persons or corporations, the beneficiaries, 
 if natural persons, need not be, and often are not, com- 
 petent sui juris, as trusts are often made for the benefit 
 of infants, idiots and insane persons. 
 
 § 539. Trusts are either express, created by the volun- 
 tary act of the parties, or implied, arising by implication 
 of law applied to the acts of the parties although the par- 
 ties themselves may not at the time have contemplated the 
 creation of a trust. 
 
 Express trusts in real estate may be created in Michi- 
 gan for either of the following purposes : 
 
 1. To sell lands for the benefit of creditors ; 
 
 2. To sell mortgage or lease lands, for the benefit of 
 legatees or for the purpose of satisfying any charge 
 thereon ; 
 
 3. To receive the rents and profits of lands and apply 
 them to the use of any person, during the life of such per- 
 son or for any shorter term, subject to the rules pre- 
 scribed by chapter 237 of the compiled laws. 
 
 4. To receive the rents and profits of lands and to ac- 
 cumulate the same for the benefit of any married woman, 
 or for either of the purposes and within the lim its pre- 
 scribed in chapter 237 of the compiled laws. 
 
 5. For the beneficial interest of any person or persons 
 when such trust is fully expressed and clearly defined 
 upon the face of the instrument creating it, subject to the 
 limitations as to time provided by law.* 
 
 Every express trust valid as such in its creation shall 
 vest the whole estate in the trustees in law and in equity 
 
 1— C. L., Sec. 8839; Toms v. Wil- Frost, 57 Mich. 229; Cummings v. 
 liams, 41 Mich, 552; M. E. Church Corey, 58 Mich. 494; Dean v. Mum- 
 V. Clark, 41 Mich. 730; Atwood v. ford, 102 Mich. 510. 
 
stack's MICHIGAN OHANCEEY PEACTICE AND FORMS 597 
 
 subject only to the execution of the trust ; and the person 
 for whose benefit the trust was created shall take no estate 
 or interest in the lands, but may enforce the performance 
 of the trust in equity .^ 
 
 The preceding section shall not prevent any person 
 creating a trust from declaring to whom the lands to 
 which the trust relates shall belong in the event of the 
 failure or termination of the trust, nor shall it prevent 
 him from granting or devising s.uch lands, subject to the 
 execution of the trust, and every such grantee shall have 
 a legal estate in the lands as against all persons except 
 the trustees and those lawfully claiming under them.* 
 
 When an express trust is created every estate and in- 
 terest not embraced in the trust and not otherwise dis- 
 posed of shall remain in or revert to, the person creating 
 the trust or his heirs, as a legal estate.* 
 
 No person beneficially interested in a trust for the re- 
 ceipt of the rents and profits of lands, can assign or in 
 any manner dispose of such interests, but the rights and 
 interest of every person for whose benefit a trust for the 
 payment of a sum in gross is created, are assignable.** 
 
 § 540. A trust in real estate can only be created by 
 some instrument in writing parol trusts in lands are 
 void,® but trusts in personalty may be created by parol ; '^ 
 although clear proof is necessary to establish a parol 
 trust. It must be shown by acts and words of a clear and 
 unequivocal character constituting something more than 
 a mere declaration Qf intention® and this rule applies 
 
 2— C. L., Sec. 8844; Toms v. Wil- v. Everts, 80 Mich. 222; Shefter v. 
 liams, 41 Mich. 552; Weaver v. Tan Huntington, 53 Mich. 310; Barnes 
 
 Akin, 71 Mich. 69; S. C, 77 Mich. 
 588; Parker V. McMillan, 55 Mich. 
 265, 
 
 3 — C. L., See. 8845; Parker v. Mc 
 MiUan, 55 Mich. 265. 
 
 4— C. li., Sec. 8846; Toms v. Wil 
 liams, 41 Mich. 552 
 
 5 — C. L., Sec. 8847; Palms v. 
 Palms, 68 Mich. 355. 
 
 -Wright V. King, Harr. Ch. 12; 
 
 V. Munfo, 95 Mich. 612;; Smith v. 
 Marsh, 132 Mich. 407; Chapman v. 
 Chapman, 114 Mich. 144; Eapley v. 
 McKinney's Estate, 143 Mich. 508. 
 
 7 — Bostwiok V. Mahaffy, 48 Mich, 
 342; Matthews v. Forslund, 112 
 Mich. 591; Bowker v. Johnson, 17 
 Mioh, 42; Cadder v. Moran, 49 Mich. 
 14. 
 
 8 — Criasman v. Crissman, §3 Mich. 
 
 Trask v. Green, 9 Mich. 358; Everts 217; Green t. Begole, 70 Mich. 602; 
 
598 stage's MICHIGAN CHANCEEY PEACTICB AND FOEMS 
 
 with peculiar force where it is claimed that the donor or 
 settlor constituted himself trustee.® To constitute a trust 
 there must be either an explicit declaration of trust or 
 circumstances which show beyond reasonable doubt that 
 a trust was intended to be created." 
 
 § 541. Although a writing is necessary to establish a 
 trust in real estate an admission in writing of the exist- 
 ence of such a trust resting in parol is sufficient to satisfy 
 the statute of frauds,^* and an answer in chancery admit- 
 ting the trust is a sufficient writing.^^ 
 
 After a parol trust in land has been executed by the 
 trustee the validity of such trust cannot be questioned.^* 
 
 The form of an instrument creating a trust is imma- 
 terial, and no technical words are necessary. If it ap- 
 pears from an inspection of the papers that it was the 
 intention that the property should be held or dealt with 
 by the grantee for the benefit of another it will be de- 
 clared in equity to constitute a trust. ^* 
 
 § 542. Trusts by implication of law usually arise 
 from fraud in law or in fact or from mistake, as where 
 one entrusted with funds to purchase property for 
 another takes the title in his own name without the con- 
 sent of the person who furnished the funds.^^ 
 
 Such a trust also arises in favor of the creditors of the 
 person furnishing the money to purchase land when the 
 
 Mitchell V. Bilderbaek, 159 Mich. 13— Barber v, Milner, 43 Mich. 
 
 483; Allen v. Withrow, 110 TJ. S. 248; Desmond v. Myers, 113 Mich. 
 
 119. 437; Moore v. Crawford, 130 U. S. 
 
 9— Hamilton v. Hall's Est., Ill 122. 
 
 Mich. 291; Williamson v. Yager, 91 14 — Lee v. Enos, 97 Mich. 276; 
 
 Ky. 282. Dean v. Mumford, 102 Mich. 51D; 
 
 10 — Chadwick v. Chadwick, 59 Packard v. Klingman, 109 Mich. 437 ; 
 
 Mich. 87; O'Neil v. Greenwood, 106 O'Neil v. Greenwood, 106 Mich. 572. 
 
 Mich. 572; Beaver v. Beaver, 117 15— C. L., Sec. 8837; Fisher v. 
 
 N. Y. 421; Wheelock v. Am. Tract Fobes, 22 Mich. 454; McCreary v. 
 
 Soc, 109 Mich. 141. McCreary, 90 Mich. 478; Connoly v. 
 
 11 — Eipper v. Banner, 113 Mich. Keating, 102 Mich. 1 ; tJhl v. Weiden, 
 
 75. 122 Mich. 638, 
 
 12 — Patton V. Chamberlain, 44 
 Mich, 5, 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 599 
 
 title is taken to a third person to prevent its being levied 
 upon by sueh creditors, to the extent that may be neces- 
 sary to satisfy their just demands.^" 
 
 Trusts arising by implication of law are not required 
 to be evidenced by a declaration of trust in writing." 
 
 § 543. When the purposes for which a trust was 
 created have ceased the estate of the trustee will also 
 cease.^* 
 
 On the death of the sole or surviving trustee of an un- 
 executed trust the estate in trust will not descend to his 
 heirs nor pass to his executors or administrators but vest 
 in the court of chancery which will appoint a new trustee 
 to execute the trust.^^ 
 
 The Court of Chancery may accept the resignation of a 
 trustee and discharge him of his trust upon such terms 
 as the rights and interests of the beneficiaries may re- 
 quire,^" and may remove any trustee who shall have vio- 
 lated or threatened to violate Ms trust, or who may have 
 become insolvent or where insolvency is apprehended, or 
 who for any other cause may be deemed an unsuitable 
 person to execute the trust.* ^ 
 
 The Court of Chancery has full power to appoint a new 
 trustee in place of a trustee resigned or removed and may 
 appoint a trustee in all cases when from any cause there 
 shall be no acting trustee.*^ 
 
 § 544. By a statute enacted in 1899 ** Jurisdiction 
 over testamentary trustees is vested in the probate courts 
 but it is expressly provided therein that the provisions 
 thereof shall not be construed to in any manner limit, 
 
 16— C. L., See. 8636 (see Bills by 19— C. L., Sec. 8852; Patton v. 
 
 Judgment Creditors. Langley, 50 Mich. 428. 
 
 17 — Eood V. Winslow, 2 Doug. 20— C. L., Sec. 8853. 
 
 Mich. 68. 21 — C. L., Sec. 8854; Brown v. 
 
 18 — C. L., Sec. 8851; Montgomery Vandermeulen, 41 Mich. 418. 
 
 V. Merrill, 18 Mich. 338; Stevens v. 22— C. L., Sec. 8855. 
 
 Earles, 25 Mich. 40; Quimby v. TJhl, 23— Act No. 253 Public Acts of 
 
 130 Mich. 198; Taylor v. Eichards, 1899, p. 395 et seq. 
 153 Mich. 667; Poole v. Munday, 103 
 Mass. 174, 
 
600 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 change, modify or abolish the jurisdiction of the Courts 
 of Chancery over trusts and trustees. 
 
 § 545. Whenever, a trust has been created and the 
 trustee appointed dies or for any cause is incapable of 
 executing the trust, equity when properly invoked by 
 bill, will appoint some suitable person as trustee.^* 
 
 If a trustee is incompetent or dishonest the court will 
 remove him and appoint another in his place, but in re- 
 moving and substituting trustees the courts do not act 
 arbitrarily, but upon equitable principles after a full- 
 consideration of the case ; a trustee selected by the settlor 
 and creator of the trust will not be superseded unless on 
 ground of the clearest necessity,^^ and a bill seeking the 
 removal of a trustee for incompetency must clearly set 
 forth, in substance, the facts showing his unfitness ; the 
 injudicious use of discretionary powers is no cause for 
 removal, although imprudence or neglect may be ground 
 for requiring him to make good the loss.^^ 
 
 The court will not interfere with discretionary powers 
 given to a trustee except in case of abuse,^^ but where a 
 discretionary power is given to several trustees all must 
 act, and the act of one, ignoring the others is a nullity.^* 
 
 § 546. As a general rule where several persons are 
 appointed to execute a private express trust all must join 
 in its execution,^^ the powers of the trustees being deter- 
 mined and limited by the instrument from which they are 
 derived.^" But the court will preserve the trust and pro- 
 vide for its execution if a trustee or one or more of sev- 
 eral trustees should refuse or fail to aet.^* 
 
 24— Ledyards Appeal, 51 Mich. 2.9 — Scott v. Young Men's Society, 
 
 623. 1 Doug. Mich. 119; Shaw v. Canfield, 
 
 25^Baiik V. Joslin, 81 Mich. 413; 86 Mich. 1. 
 
 Preston v. Wilcox, 38 Mich. 579. 30 — ^Weise v. Bieh, 77 Mich. 325; 
 
 26— Preston v. Wilcox, 38 Mich. Shaw v. Canfield, 86 Mich. 1. 
 
 579. 31 — Neville v. Detroit Firemens 
 
 27— Casper v. Cutcheon, 110 Mich. Fund Assn., 104 Mich. 149; Mc- 
 
 86 ; In Ee Accounting of Joslin, Cosjter v. Brady, 1 Barb. Ch. 329. 
 101 Mich. 499. 
 
 28 — Loud V. Winchester, 52 Mich. 
 174. 
 
stage's MICHIGAN CHANCKRY PBACTICE AND FOBMS 601 
 
 § 547. The courts are liberal in protecting honest trus- 
 tees and in awarding them reasonable compensation,^^ 
 but a dishonest, fraudulent or reckless trustee is held to 
 a strict liability.** 
 
 A trustee cannot be allowed to make any advantage to 
 himself by any manipulation of the trust funds.** A 
 trustee to sell may not himself be the purchaser directly 
 or indirectly of the trust property.*^ 
 
 Having accepted the trust a trustee cannot divest him- 
 self thereof by simply of his own motion withdrawing 
 himself therefrom even with the assent of the creator of 
 the trust if there are beneficiaries who do not, or by rea- 
 son of infancy or other incompetency, cannot consent.*® 
 The creator or settlor, of the trust having created it has 
 no power to change its provisions as the beneficiaries 
 have taken vested interests and rights therein.*^ 
 
 § 548. Trustees must account to their beneficiaries 
 and the court will compel such accounting,*^ and will, in 
 cases where the execution of the trust so requires, decree 
 that the trust property be conveyed and turned over to 
 the cestui que trust.** 
 
 §549. The English statute of charitable uses is not 
 enacted nor in force in Michigan,*" but charitable trusts 
 are nevertheless to be enforced in equity provided that 
 they are fully defined upon the face of the instrument.*^ 
 
 32 — School Diet. v. Weston, 31 38 — Loud v. Winchester, 52 Mich. 
 
 Mich. 85; Bamabee v. Beckley, 45 174; Rodman v. Nathan, 45 Mich. 
 
 Mich. 613. 607; McBride v. Mclntyre, 91 Mich. 
 
 33 — iKJud V. Winchester, 64 Mich. 406; Weaver v. Van Akin, 77 Mich. 
 
 23; Perrin v. Lepper, 72 Mich. 454. 588; Perrin v. Lepper, 72 Mich. 454. 
 
 34 — Chene v. Bank of Michigan, 39 — Peer v. Kean, 14 Mich. 354; 
 
 Walk. Ch. 511; Petrie v. Badenoch, McBride v. Mclntyre, 91 Mich. 406. 
 
 102 Mich. 45. 40 — Newark Meth. Ch. v. Clark, 41 
 
 35— McKay v. WilUams, 67 Mich. Mich. 730; Hathaway v. New Balti- 
 
 547; Winter v. Tmax, 87 Mich. 324. more, 48 Mich. 251; Hopkins v. 
 
 36 — Henderson v. Sherman, 47 Crossley, 132 Mich. 612. 
 
 Mich. 267. 41— White v. Eiee, 112 Mich. 403. 
 
 37— McDonald v. Starkey, 42 111. 
 442; Wales y. Gray, 109 Mich. 346. 
 
602 stage's MICHIGAN CHANCEBY PBACTICE AND FOEMS 
 
 If not clearly stated and defined the trust must fail.** 
 An unincorporated society may be a beneficiary.** 
 
 § 550. The beneficiary in a trust fund which has been 
 misappropriated by the trustee may pursue the fund 
 and recover it if it can be identified,** and if it has been 
 commingled by the trustees with his own funds the benefi- 
 ciary will have a lien on the whole to the amount of the 
 trust fund.*5 
 
 § 551. In a bill by a beneficiary for an accounting by 
 a trustee for the alleged maladministration of the trust 
 it is unreasonable to require the complainant to set out in 
 his bill the misdoing which he could not be expected to 
 fully understand until he had obtained disclosures, the 
 beneficiary not being presumed to have obtained such 
 knowledge or information from independent sources.*® 
 
 In such a suit any evidence tending to throw any light 
 on the trustees management of the trust fund or prop- 
 erty is proper to be considered in taking the account and 
 in determining the view to be taken of the actions of the 
 trustee.*'' 
 
 § 552. Parties. In cases where the public is interested 
 the attorney general is a proper party either as complain- 
 ant or defendant.*^ 
 
 The beneficiaries need not be made parties to a suit 
 by a trustee to obtain possession of the trust fund or 
 property.*' 
 
 42— Wheelock v. Am. Tract Soc, 46— Loud v. Winchester, 64 Mich. 
 
 109 Mich. 141. 23; Perrin v. Lepper, 72 Mich. 454; 
 
 43^White v. Eice, 112 Mich. 403; Flynn v. Third N. Bank, 122 Mich. 
 
 Smith V. Bonhoof, 2 Mich. 115. 642. 
 
 44 — Sherwood v. Bank, 103 Mich. 47 — Loud v. Winchester, 64 Mich, 
 
 109; Peters v. Union Trust Co., 131 23. 
 
 Mich. 322; Marquette v. Wilkinson, 48 — Assn. v. Beckman, 21 Barb, 
 
 119 Mich. 413; Board of Pire &c. 365; Perry on Trusts, Sec. 773. 
 
 Comrs. V. Wilkinson, 119 Mich. 655. 49 — Sill v. Ketchum, Harr. Ch. 
 
 45-— Carley v. Graves, 85 Mich. 423 ; Snook v. Pearsall, 95 Mich. 534 ; 
 
 483; Wallace v. Stone, 107 Mich. Foley v. Kleibusch, 123 Mich. 416. 
 190; Sherwood v. Bank, 103 Mich. 
 109. 
 
stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 603 
 
 Where one of two beneficiaries under a trust refuses to 
 join as complainant in a bill against the trustee for an 
 accounting he must be made a defendant.^" 
 
 The personal representatives of a deceased trustee who 
 is claimed to have defrauded the beneficiaries are neces- 
 sary parties to a bill by the beneficiaries for an account- 
 ing as to the trust fund.®^ 
 
 An executor who has settled the estate and turned over 
 the property to the parties entitled thereto is not a neces- 
 sary party to a bill for accounting against a trustee ap- 
 pointed by the will. 
 
 Wbere there is a doubt as to the true intent of a trust 
 a court of equity will give a judicial construction thereof 
 and directions to the trustee.^^ 
 
 § 553. Laches. Where a beneficiary has known for a 
 long time that the trustee is using the income of the trust 
 fund for the benefit of another fund under the same trust 
 he will be estopped from complaining.^^ 
 
 The statute of limitations does not apply to trusts until 
 the trust is disavowed by the trustee and adverse rights 
 are insisted ujwn and cestui que trust is informed there- 
 of." 
 
 BILL TO REMOVE TRUSTEE UNDER WILL AND FOR 
 
 ACCOUNTING. 
 (Address and introduction.) 
 
 1. That your orator, A. B., is the nephew of one G. B., now 
 deceased, and your oratrix, D. B., is the wife of the said A. B. 
 and your orator, C. B., and your oratrix, B. B., are the son 
 and daughter and only children of your orator and oratrix, 
 A. B. and D. B., and that the said G. B., the uncle of your 
 orator, A. B., died on the day of , 19 . . , leav- 
 ing a last will and testament, wherein and whereby he, the said 
 
 50_Weaver v. Van Akin, 77 Mich. Co., 109 Mich. 141; Attorney Gen. v. 
 
 588. Haberdashers Co., 1 Vesey jr 295. 
 
 51— Eichaidson v. Bichardson, 83 53— -Draper v. Brown, 153 Mich. 
 
 Mieh. 653. 120. 
 
 52 — Packard v. Kingman, 109 54 — Kobogan v. Jackson Iron Co., 
 Mich. 497; Dean v. Mumford, 102 76 Mich. 498; Van Buren v. Stock- 
 Mich. 510; Wheelock v. Am. Trust ing, 86 Mich. 246; Hatch v. St. 
 
 Joseph, 68 Mich. 220. 
 
604 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 G. B., bequeathed and devised unto H. I. and K. L., all and 
 singular the following described property (describe the prop- 
 erty), in trust to convert the personal estate into money and 
 invest the same in safe, interest bearing securities, and to pre- 
 serve and keep the said real estate and to pay the income 
 derived from the said personal estate so invested and the net 
 rents, issues and profits of the said real estate, after payment 
 of taxes, insurance and necessary repairs and expenses, to your 
 orator, A. B., and your oratrix, D. B., for and during their 
 natural lives and the life of the survivor of them, aiid upon the 
 death of such survivor to turn over assign, transfer and convey 
 all and singular the said personal property and real estate to 
 your orator and oratrix, C. B. and B. B., as in and by the said 
 last will and testament now on file and of record in the Probate 
 
 Court for the county of , in the State of Michigan, 
 
 whereto reference is prayed, will fully appear. 
 
 2. And that afterwards and on or about the day 
 
 of , 19--, the said last will and testament was duly 
 
 admitted to probate in the said Probate Court, as by the records 
 thereof, whereto reference is prayed, will fully appear. 
 
 3. And that afterwards and on or about the day of 
 
 , 19 . . , the said personal property and real estate so 
 
 bequeathed and devised in trust, as aforesaid was, under and 
 by virtue of the said will, transferred, assigned and conveyed 
 by the executor of the said last will and testament to the said 
 H. I. and K. L., as trustees upon the trusts aforesaid, and the 
 said H. I. and K. L, thereupon took possession of the said prop- 
 erty, real and personal, and entered upon their duties as such- 
 trustees, and by virtue thereof they, the said H. I. and K. L., 
 have converted the said personal property into money and have 
 invested the sarae in securities bearing annual interest, and 
 have from time to time received such interest, and have taken 
 possession of the said real estate, and have received the rents, 
 issues and profits thereof thenceforward to the present time. 
 
 4. And that the net income from the said personal property 
 so invested as aforesaid, together with the net rents, issues and 
 profits of said real estate, after payment of all taxes, insurance 
 and necessary repairs and other expenses, amounts, or should 
 amount with reasonably good care and management, to more 
 
 than dollars per year, and that the said H. I. and K. 
 
 L. have had the management thereof, and have been in receipt 
 
 of all the income derived therefrom ever since the said 
 
 day of , 19 • • , when they were put into possession there- 
 of to the present time, a period of over years, and 
 
 they still are in possession and control thereof and in receipt 
 of the income therefrom. 
 
 5. Aid that the said H. I. and K. L. have as such trustees, 
 during the time aforesaid, received and collected as such in- 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 605 
 
 come and rents, issues and profits, divers large sums of money 
 amounting, as nearly as your orators and oratrixes can now 
 
 ascertain, to the sum of dollars, but they have applied 
 
 but a small part of that amount, and not exceeding 
 
 dollars, upon the trusts created by the said last will and testa- 
 ment, and have not paid to your orator and oratrix, A. B. 
 
 and D. M., more than dollars thereof, although the 
 
 taxes, insurance, repairs and other necessary expenses have not, 
 so far as your orators and oratrixes have been able to ascertain, 
 exceeded the sum of dollars, and the net annual in- 
 come, after payment of such taxes, insurance, repairs and ex- 
 penses, has been at least dollars per year, amounting 
 
 to dollars or upwards, for the entire time. 
 
 6. And that by the negligence and gross carelessness of the 
 said H. I. and K. L., a part of the said personal estate, to the 
 
 amount of dollars or thereabout, was invested in 
 
 stocks of (state what stock), which was practically worthless 
 and has produced no income and is of no value, and thereby 
 the annual income of your orator and oratrix, A. B. and D. B., 
 
 is rendered much less, and less by dollars per year, 
 
 than it ought to be, and by reasonably careful management 
 would have been, and the estate in remainder therein of your 
 orator and oratrix, C. B. and E. B., is lessened by more than 
 dollars. 
 
 7. And that also by the negligence and gross carelessness 
 of the said H. I. and K. L., the buildings on the said real estate 
 have been allowed to fall into ruin, and the rents, issues and 
 profits thereof have been thereby greatly diminished and de- 
 preciated, and the estate iu remainder therein, greatly injured 
 and deteriorated. 
 
 8. And that the said H. I. and K. L. have taken and used 
 the trust funds so received and collected by them for their own 
 sole use and benefit, and have not accounted for the same, nor 
 used the same for the purposes of the said trust, and that they 
 are now continuing to receive the income from such trust prop- 
 erty, as well real as personal, and are threatening and intend- 
 ing to apply the same, or a great portion thereof, to their own 
 use and benefit and not for the purposes of said trust ; and your 
 orators and oratrixes have just cause to fear and do fear, that 
 they will do so, unless restrained from further collecting such 
 income by the order and injunction of this court, and your 
 orators and oratrixes further show that both the said H. I. and 
 K. L., are pecuniarily irresponsible. 
 
 9. Aiid that your orators and oratrixes have frequently and 
 repeatedly applied to the said H. I. and K. L. and requested 
 that they account for the said trust funds and property so 
 received and taken by them, and the income, rents, issues and 
 profits therefrom, and the application thereof, but so to do the 
 
606 stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 
 
 said H. I. and K. L. have hitherto on divers frivolous pretexts 
 absolutely refused and still do refuse, and the said H. I. and 
 K. L. pretend that the said trust property so received by them 
 was inconsiderable in amount and that the income derived there- 
 from was small and has been wholly expended and applied on 
 the trusts aforesaid; whereas your orators and oratrixes charge 
 the contrary to be true, and so it would appear if the said H. I. 
 and K. L. would set forth a full and true account of the trust 
 property so taken and held by them, and the amount and value 
 thereof, and the income, rents, issues and profits derived there- 
 from, and of the application thereof. 
 
 I. In consideration whereof and to the end therefore, fhat 
 the said H. I. and K. L. may each of them, on their several and 
 respective corporal oaths {or without oath, all answer upon oath 
 being hereby waived) , full, true, direct and perfect answer make 
 to all and singular the matters herein stated and charged, and 
 that in such answers they may respectively set forth a true and 
 perfect account, item by item, of all the trust funds, effects and 
 property received by them respectively, and the amount and 
 value thereof, and of the income, rents, issues and profits thereof, 
 and the disposition and application made thereof respectively. 
 
 II. And that an account may be taken of all and singular 
 the said trust property, effects and estate, as well real and 
 personal, and the income, rents, issues and profits thereof, 
 which have, or but for the gross default and neglect of the 
 said defendants ought to have, come into the possession and 
 been received by them or either of them, and what disposition 
 and application has been made thereof, and of each and every 
 part thereof. 
 
 III. And that the said defendants may respectively be de- 
 creed to pay to your orator and oratrix, A. B. and D. B., what- 
 ever shall be fouiad to be owing to them on account of the 
 amount of income, rents, issues and profits of the said trust 
 property, as weU real as personal. 
 
 IV. And that the said defendants may be decreed to make 
 good all loss and injury to the said trust property, as well real 
 as personal, which has occurred through the gross negligence' 
 of them, the said defendants, or either of them. 
 
 V. And that the said defendants may be both of them 
 removed from being such trustees under the said last Tvill and 
 testament, and that some other proper person or persons be 
 appointed trustee or trustees in their place and stead. 
 
 VI. And that in the meantime, during the pendency of this 
 suit, some proper person may be appointed receiver, to receive, 
 collect and take charge of all and singular the said trust prop- 
 erty, as well real as personal, and to collect and receive all the 
 income, rents, issues and profits thereof, and that the defend- 
 ant turn over and deliver to such receiver forthwith all and 
 
stage's MICHIGAN CHANCEEY PKACTICE AND POBMS 607 
 
 singular the trust property in their hands, or in the hands or 
 possession of either of them. 
 
 VII. And that the said defendants, each and both of them, 
 may be, in the meantime and during the pendency of this suit, 
 restrained by the injunction of this court from disposing of or 
 in any manner interfering with the said trust property or 
 any part thereof, and from collecting the income, rents, issues 
 or profits thereof or any part thereof. 
 
 VIII. And that your orators and oratrixes may have such 
 further or such other relief as shall be agreeable to equity and 
 good conscience. 
 
 And your orators and oratrixes will ever pray, etc. 
 
 A. B. 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 BILL TO REMOVE TRUSTEE UNDER DEED AND FOR 
 
 ACCOUNTING. 
 (Address.) 
 
 Complaining, your orator, A. B., and your oratrixes; B. B., 
 the wife of the said A. B., and C. B., the daughter and only 
 child of the said A. B. and B. B., respectfully show unto the 
 court: 
 
 1. That heretofore and on or about the day of 
 
 , 19 . . , a certain deed of conveyance, bearing date the 
 
 said last mentioned day, was executed by and between your 
 orator and your oratrix, B. B., of the one part, and C. D. and 
 E. F., of the other part, which said deed is in substance, tenor 
 and effects as follows: (set forth deed verbatim), as by the said 
 deed, when produced and proved, will fully appear, and where- 
 to reference is prayed. 
 
 2. And that the said C. D. and E. F. immediately after the 
 execution of- the said deed took possession of the property, 
 documents and securities therein described, and entered upon 
 the execution of the trusts thereby created, and that the said 
 C. D. has principally acted in and about the trusts created by 
 the said deed, and has by virtue thereof, from time to time, 
 received considerable sums of money and other effects, but he 
 has applied a small part thereof upon the trusts of the said 
 deed, and has applied and converted the residue thereof to his 
 own use, and in particular that the said C. D. has within a 
 few months now last past, received a considerable sum of money 
 from the estate of one D. B., under and by virtue of the said 
 deed, the whole whereof he has converted to his own use. 
 
 3. And that your orator and oratrixes have respectively 
 applied to the said C. D. and E. F., who are made trustees in 
 and by the said deed for an account of the said trust property 
 received and possessed by them and of the application thereof, 
 
608 stage's MICHIGAN CHANCEKY PEACTICE AND EOBMS 
 
 and your orator and oratrixes well hoped that the said C. D. 
 and B. F. would have complied with such reasonable request, 
 as in justice and equity they ought to have done. But so to 
 do the said C. D. and E. F. now absolutely refuse, and pretend 
 that the trust property and effects received and possessed by 
 them were inconsiderable in amount, and that they have duly 
 applied the same upon the trusts mentioned, in the said deed ; 
 whereas your orator and oratrixes charge the contrary of such 
 pretenses to be true, and so it would appear if the said C. D. 
 and E. F. would set forth a full and true account of all and 
 every the said trust property and efEects which they have re- 
 spectively received and possessed, and of their application 
 thereof. 
 
 4. And your orator and oratrixes further show that the 
 said C. D. threatens and intends to use other parts of the said 
 trust property, and to apply the same to his own use, and will 
 do so unless restrained therefrom by the order and injunction 
 of this court; and that both, the said C. D. and E. F., ought 
 to be removed from being trustees under the said deed and 
 ought to be enjoined by the order and injunction of the court 
 from further receiving or collecting any money or property 
 under or by virtue of the said deed, and that some other person 
 or persons ought to be appointed trustees in place and stead of 
 the said C. D. and E. F., and that ia the meantime, during 
 the pendency of this suit, some proper person ought to be ap- 
 pointed to receive, collect and take charge of the said trust 
 property. 
 
 I. In consideration whereof and to the end therefore that 
 the said C. D. and B. F., the defendants hereto, may, upon their 
 several and respective corporal oaths, {or, without oath, all 
 answer upon oath being hereby waived), full, true, direct and 
 perfect answer make to all and singular the matters herein 
 stated and charged, and that therein they may respectively state 
 a true and perfect account in items of all the trust funds and 
 effects received by them respectively, by virtue of the said deed, 
 and of their application thereof. 
 
 II. And that an account may be taken of all and singular 
 the trust property and effects, which have, or but for their 
 wilful default and neglect, ought to have, been received by them 
 or either of them, or by any other person by their order or the 
 order of either of them, or to their or either of their use, and 
 also an account of the application thereof. 
 
 III. And that the said defendants may respectively be de- 
 creed to pay whatever shall be found to be due from them or 
 either of them, to your orator and oratrixes on such account. 
 
 IV. And that the said defendants, both of them, may be 
 removed from being trustees under said deed and that other 
 
stage's MICHIGAN CHANCEKY PKACTICE AND FORMS 609 
 
 suitable persons may be appointed trustees thereunder in place 
 and stead of the said defendants. 
 
 V. And that in the meantime some proper person may be 
 appointed receiver to receive, collect and take charge of the 
 said trust estate and effects. 
 
 VI. And that your orator and oratrixes shall have such fur- 
 ther or other relief as shall be agreeable to equity and good 
 conscience. 
 
 (Conclusion and verification.) 
 
 Contribution. 
 
 § 554. When two or more persons are jointly liable 
 for the payment of the same debt or obligation and one 
 has paid the entire claim he may have contribution from 
 his co-debtors or obligees in cases where it would be 
 equitable and just. 
 
 Courts of law have concurrent jurisdiction with courts 
 of equity to compel contribution but in cases where the 
 remedy at law would be incomplete, inadequate or doubt- 
 ful a bill in equity is the proper remedy.^ 
 
 Thus in a suit at law by a surety on a note who has 
 paid the entire amount, against his co-sureties for con- 
 tribution, each of the sureties would be adjudged to pay 
 an equal proportion of the whole amount without regard 
 to their respective solvency or the ability of the plaintiff 
 to obtain service of process upon them, but in equity the 
 complainant under like circumstances may have contribu- 
 tion from his solvent co-sureties who are within the juris- 
 diction of the court in the proportion which each would 
 bear if the insolvent and non resident sureties were 
 eliminated.^ 
 
 "Where two sureties on a township treasurer's bond 
 paid the entire indebtedness they were entitled to con- 
 tribution from their solvent co-sureties.* 
 
 Where one surety on a note or bond has paid the full 
 
 1 — 1 story Bq. Jur. Sees. 483-505 ; 143 ; Eynearson v. Turner, 52 Mich. 
 
 Smith V. Eumsey, 33 Mich. 183; Mc- 7; 1 Story Eq. Jur. Sec. 496; Bur- 
 
 Gunn V. Hanlin, 29 Mich. 476 ; Edsell rows v. McWham, 1 Desaus. 409 ; 
 
 V. Briggs, 20 Mich. 429; Eynearson North v. Brace, 30 Conn. 72; Sloo v. 
 
 V. Turner, 52 Mich. 7. Pool, 15 111. 47. 
 
 2 — Stewart v. Goulden, 52 Mich. 3 — Smith t. Eumsey, 33 Mich. 183. 
 
610 stage's MICHIGAN CHANCEEY PKACTICE AND FOEMS 
 
 amount lie is entitled to contribution from his solvent 
 co-sureties,* and Ms right is complete as soon as he pays 
 the debt and he can at once enforce contribution,® but he 
 must have actually paid the debt.® 
 
 Contribution can be enforced in equity against the 
 estate of a deceased suretyj 
 
 "Where a note executed by several parties was entrusted 
 to an agent with instructions not to deliver it imless cer- 
 tain other parties should also sign it, all being equally 
 interested, but the other parties being informed of the 
 facts instead of signing the note signed an endorsement 
 thereon guaranteeing the payment thereof and the agent 
 then put the note in circulation, it was held that the 
 guarantors were bound in equity to contribute to the 
 payment of the note in the same manner as if they had 
 signed the note.* 
 
 Where a number of tax payers joined in a suit to en- 
 join the issue of certain municipal bonds on the under- 
 standing that each should contribute to the expense in 
 proportion to his assessment ; one tax payer having paid 
 the entire expense contribution was decreed on the above 
 basis.® 
 
 One co-defendant in a judgment who has paid the en- 
 tire judgment can recover pro rata from each of his solv- 
 ent co-defendants their proportionate share and no 
 more.^" 
 
 § 555. Joint tenants and tenants in common may be 
 compelled to contribute to advances and payments made 
 
 4^Stewart v. Goulden, 52 Mich. 7— Eynearson v. Turner, 52 Mioh. 
 
 143; Eynearson v. Turner, 52 Mich. 7; Meeske v. Pfenning Est., 120 
 
 7; Meeske v. Pfenning's Estate, 120 Mich. 474; Wright v. Hunter, 5 Ves. 
 
 Mich. 474; Klein v. Mather, 2 Gilm. 792; Conover v. Hill, 76 111. 342. 
 
 317; Eddy v. Trevor, 6 Paige 521. 8 — Edsell v. Briggs, 20 Mich. 429. 
 
 5 — Eynearson v. Turner, 52 Mich. 9 — Solomon v. Pennoyer, 89 Mich. 
 
 7; Sloo V. Pool, 15 111. 47; Chafee 11. 
 
 V. Jones, 19 Pick. 260. 10— Thornton v. Damm, 120 Mich. 
 
 6 — Kalamazoo Trust Co. v. Mer- 510. 
 rill, 159 Mich. 649; 9 Cyc. pp. 798, 
 801 and cases cited; Tobias v. 
 Sogers, 13 N. Y. 59. 
 
stage's MICHIGAN CHANOEEY PKACTICE AND FOKMS 611 
 
 by one of their number to protect the title of their com- 
 mon property, such as the payment of taxes, mortgages 
 and liens and necessary disbursements for the preserva- 
 tion of the property." but a tenant in common cannot be 
 allowed more than the proportionate share of the actual 
 amount expended ^^ and will not be allowed contribution 
 for improvements or alterations incurred against the 
 protest of a co-tenant.^* 
 
 § 556. Between Partners. A bill in equity is the ap- 
 propriate remedy to enforce contribution between part- 
 ners for the payment of the partnership debts paid and 
 unpaid.^* Contribution will lie between partners for any 
 excess paid by one of the partners toward the expenses 
 or liabilities of the firm over and above his share, or for 
 a balance found in his favor after dissolution.^'' A bill 
 against a retiring partner for contribution must show 
 the specific liabilities for which contribution is sought. ^^ 
 
 § 557. Where a stockholder in a corporation has been 
 sued under a statute imposing an individual liability 
 upon stockholders for certain debts of the corporation, 
 and has paid the judgment recovered he may have con- 
 tribution from all the other stockholders pro rata accord- 
 ing to the number of shares held by each." 
 
 Where a creditor of a corporation after judgment 
 against it and return of execution unsatisfied, pursues his 
 remedy for satisfaction of his judgment against a single 
 delinquent stockholder, such stockholder may by bill iu 
 equity obtain a discovery of all other delinquent stock- 
 holders and compel contribution from them.^** 
 
 11 — ^Louvalle v. Menard, 1 Gilm. 15—1 Story Eq. Jur. Sec. 504; 
 
 39; Hovey v. Goings, 13 111. 95; Sills v. Hubbard, 2 Johns. Ch. 394. 
 
 Burgette v. Taliaferro, 118 ni. 503 ; 16— Glynn v. Phetteplace, 26 Mich. 
 
 Vogel V. Brown, 120 111. 338. 383. 
 
 12 — Eighmey v. Thayer, 135 Mich. 17 — Wincock v. Turpin, 96 111. 
 
 682. 136. 
 
 13— Field v. Leiter, 117 III. 341. 18— Hatch v. Dana, 101 IT. S. 205; 
 
 14 — ^Bailey v. Bussing, 28 Conn. Cook on Stockholders, Sec. 206; 
 
 455; Horbach v. Elder, 18 Pa. St. Young v. Farwell, 139 111. 326. 
 33; Harvey v. Drew, 82 III. 606. 
 
612 stage's MICHIGAN CHAN-CERY PKACTICE AND FOEMS 
 
 § 558. Where a judgment is rendered against several 
 defendants for a tort and one pays the whole judgment 
 he cannot have contribution from his codef endants ; ** 
 the courts will not adjust equities between tort feasors. 
 
 § 559. Legatees, etc. It is provided by statute that 
 where specific legatees or devisees are given possession 
 of their legacies or lands devised before the estate is set- 
 tled they shall be held liable to contribution in case any 
 claim shall arise chargeable against such legacy or de- 
 vise to such an amount as may be adjudged by the pro- 
 bate court; and also that the claimants may have a rem- 
 edy in any appropriate action.^" 
 
 § 560. Parties. On a bill to enforce contribution be- 
 tween sureties the principal debtor and insolvent sureties 
 need not be made parties but the bill should show the 
 insolvency.*^ 
 
 BILL FOR CONTRIBUTION BETWEEN CO-SURETIES. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , A. D. 19 . . , one Y. Z., as principal, and your orator 
 
 and one C. D. and E. F. and G. H., as sureties, made and 
 •executed and delivered to one W. X., a certain promissory note 
 
 for the sum of dollars, payable to the said W. X., or 
 
 to his order, months after the date thereof, with in- 
 terest thereon from the date thereof at the rate of per 
 
 cent per annum, and that the sole consideration for the giving 
 
 of the said note was the sum of doUars, then loaned 
 
 by the said W. X. to the said Y. Z., and that no consideration 
 for the same passed to your orator or to the said C. D., E. F., 
 and Gr. H., or any of them, to the knowledge or belief of your 
 orator. 
 
 2. And that the said Y. Z. failed and neglected to pay the 
 said note or any part thereof, at the maturity thereof, or at 
 any time, and that after the maturity thereof, the said "W. X. 
 brought an action at law upon the said promissory note against 
 
 19— Norris V. Hill, 1 Mich. 202; 21— Stewart v. Goulden, 52 Mich. 
 
 Smith V. Ayrault, 77 Mich. 476; 143; Morrison v. Poyntz, 7 Dana 
 
 Ellis V. ElUs, 2 Johns. Ch. 131. 307; Sloo v. Pool, 15 111. 47; John- 
 
 20— C. L., Sees. 9294, 9295, 9296; son v. Vaughn, 65 111. 426; Currier 
 
 Atwood V. Frost, 51 Mich. 360, same v. Baker, 51 N. H. 613. 
 case 59 Mich. 409 and 73 Mich. 67. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FORMS 613 
 
 the said Y. Z. and your orator and the said C. D. and E. F. 
 
 and Gr. H. in the circuit court for the county of , in 
 
 the State of Michigan, and afterwards and on the 
 
 day of , A. D. 19. ., th€ said W. X. recovered judg- 
 ment in the said action against the said Y. Z. and your orator 
 and C. D. and B. F. and G. H. for the sum of dam- 
 ages and costs taxed at the sum of dollars, as in and 
 
 by the record of the said judgment now remaining of record 
 in the said last mentioned court, and whereto reference is 
 prayed, will fully appear. 
 
 3. And that afterwards and on the day of , 
 
 A. D. 19 . . , your orator paid to the said W. K. the sum of 
 
 dollars, in full satisfaction of the said judgment, said 
 
 last mentioned sum being the full amount of the said judgment 
 with legal interest from the time of the rendition thereof. 
 
 4. And that at the time when the said note became due as 
 aforesaid the said Y. Z. and the said C. D. were, and from 
 that time forward have continued to be and still are, wholly 
 insolvent and are wholly unable to pay the amount of the said 
 note or of the said judgment or any part thereof, and that the 
 institution of a suit against them or either of them would have 
 been and would be unavailing and useless; by reason whereof 
 the said E. F. and G. H. have each become severally liable 
 in equity to pay to your orator an aliquot portion or share of 
 the amount so paid by your orator in satisfaction and discharge 
 of the said judgment as aforesaid. 
 
 Your orator therefore prays: 
 
 I. That the said E. F. and G. H., the defendants hereto, 
 may, without oath, all answer upon oath being hereby waived, 
 full, true, direct and perfect answer make to all and singular 
 the matters herein stated and charged. 
 
 II. And that the said E. F. and G. H. may each of them 
 respectively be decreed to pay to your orator an equal one- 
 third part of the amount so paid by him in the payment, satis- 
 faction and discharge of the said judgment, together with in- 
 terest thereon from the date of such payment and the costs of 
 this suit. 
 
 III. And that your orator may have executions issued out 
 of this court against the said E. F. and G. H. respectively for 
 the collection of the several amounts decreed to be paid by them 
 respectively to your orator. 
 
 IV. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. A. B. 
 
 Solicitor for Complainant and of Counsel. 
 [Insolvent sureties not necessary parties.] 
 
614 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 Bills of Interpleader. 
 
 § 561. A bill of interpleader is a bill filed for the pro- 
 tection of a person from whom several other persons 
 claim, legally or equitably the same thing, debt or duty, 
 but who has incurred no independent liability to any of 
 them and does not himself claim an interest in the mat- 
 ter.^ It is the appropriate remedy in cases where a com- 
 plainant has money or property in his possession where- 
 in he claims no interest and desires to turn it over to the 
 true owner and which is claimed by two or more persons 
 by titles antagonistic to each other rendering the com- 
 plainant unable to determine to whom the fund or prop- 
 erty actually belongs and making it unsafe for him to 
 turn it over to either. The object of the bill is to compel 
 the several adverse claimants to litigate their respective 
 claims between each other at their own expense and to 
 relieve the complainant from the vexation of being threat- 
 ened with several suits and to relieve him from 
 responsibility. 
 
 It cannot be sustained where the complainant has in- 
 curred an independent liability by express agreement 
 with one of the defendants.* 
 
 Interpleader cannot be ordered unless the claims 
 threatening the complainant negative each other; if one 
 can be legally enforced without implying the invalidity of 
 the other there is nothing that an interpleader would 
 settle.^ 
 
 §562. To sustain a bill of pure interpleader the de- 
 fendants, the claimants of the fund, must each appear to 
 be asserting claims adversely to each other, to the fund 
 or property in the hands of the complainant,* and the 
 
 1 — story Eq. PI. 291; Pom Eq. PI. Standley v. Roberts, 59 Fed. 836; 8 
 
 1320; Adams Eq. 202; Sprague v. C. C. A. 305. 
 
 Soule, 35 Mich. 35; Mich. Trust Co. 3 — Moore v. Bamhelsel, 45 Mich. 
 
 V. McNamara, 165 Mich. 200; Louis- 500. 
 
 iana State Lottery Co. v. Clark, 16 4 — Standley v. Eoberts, 8 C. C. A. 
 
 Fed. 90; McWhlrter v. Halstead, 24 305; Savings Bank v. Look, 95 Mich. 
 
 Fed. 829; Hoggart v. Cutts, 1 7; Savings Bank v. Airey, 95 Mich. 
 
 Craig & P. 204. 520. 
 
 2 — Sprague v. Soule, 35 Mich. 35; 
 
stage's MICHIGAN CHANOEBY PEACTICB AND FOBMS 615 
 
 complainant claims no interest whatever in the fund.* A 
 familiar and simple instance is found in the case where a 
 life insurance policy matures by the death of the person 
 insured, and the company, admitting its liability on the 
 contract, is unable to decide to which one among several 
 claimants it should pay the amount due, and therefore 
 files its bill of interpleader against all the claimants and 
 asks that their respective rights may be determined, at 
 the same time bringing or proffering to bring the money 
 into court to be paid to the parties entitled thereto.* 
 
 The conflicting claims of the defendants may be legal 
 or equitable or one legal and the other equitable.'^ 
 
 § 563. The biU lies only where the complainant is in 
 good faith and without collusion or fault, so placed that 
 he cannot safely decide between adverse claimants of a 
 fund in his possession or under his control. 
 
 The Complainant should be absolutely neutral between 
 the claimants so where a special administrator had ap- 
 pealed from an order of the probate court ordering him 
 to pay to the general administrator certain funds in his 
 hands claimed by the executrix of the intestate's widow; 
 held he was not entitled to have the general administra- 
 tor and such execturix interplead to determine which 
 estate was entitled to the fund.* 
 
 A bill to redeem from a mortgage given to secure a 
 note payable four years after the mortgagor's death, to 
 his heirs, which mortgage had been foreclosed for inter- 
 est by the mortgagee during his lifetime, may interplead 
 the mortgagee 's administrator and his heirs to ascertain 
 to whom the redemption money should be paid."' 
 
 § 564. A bill in the nature of a bill of interpleader will 
 
 5— Killian v. Ebbingham, 110 TJ. K. O. T. M. M. t. Deem, 143 Mich. 
 
 S. 568; MerriU v. Manhattan Life 652. 
 
 Ins. Co., 183 111. 260. 7 — Savings Bank t. Look, 95 
 
 6 — Spring v. South Caroline Ins. Mich. 7. 
 
 Co., 8 Wheat. 268 ; Aetna N. Bank v. 9 — Atkinson v. Flanagan, 70 Mich. 
 
 TJ. S. Life Ins. Co., 25 Fed. 531; 639. 
 
 Penn Mut. Life Ins. Co. v. Union 10 — Love v. Francis, 63 Mich. 181. 
 Trust Co., 83 Fed. 891 ; Great Camp 
 
616 stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 
 
 be sustained in a case where the fund in dispute consists 
 of an indebtedness of the complainant in a certain amount 
 to a person whose numerous creditors seek to have it. 
 applied to their respective claims, which claims in the 
 aggregate exceed the fund, or are disputed, and which 
 they have respectively taken steps to secure by garnish- 
 ment, attachment, claim of lien or other proceedings and 
 are in dispute as to the priority of their several claims 
 no one claiming the entire fund but some claiming the 
 right to be paid in full to the exclusion of all others and 
 others claiming that all should share pro rata and the 
 claims of some being attacked by others so that the com- 
 plainant; being ready and willing to pay the money to 
 whoever is entitled thereto, does not know and cannot 
 ascertain the respective rights of the di£ferent defend- 
 ants and cannot without danger and hazard to himself 
 undertake to decide as to the respective rights of any of 
 the defendants between themselves nor to what propor- 
 tion of the fund, if any, either of the defendants is en- 
 titled.ii 
 
 Such a bill may also be filed where in addition to antag- 
 onistic claims by the defendants the complainant claims 
 a set off.i* 
 
 § 565. A strict bill of interpleader can only be filed by 
 one in possession or control of the fund or thing in dis- 
 pute." Such a bill should state distinctly the nature and 
 character of the conflicting claims,^* and must show a 
 claim of title by the claimants through a common source.^^ 
 
 A party is not entitled to maintain a bill of inter- 
 pleader unless it fairly appears that without his fault, he 
 
 11 — School District v. Weston, 31 14 — Grant Bros. Auto Co. v. Cot- 
 Mich. 85; Mich. Trust Co. v. Me- ter, 161 Mich. 521; 11 Encyc. PI. & 
 Namara, 165 Mich. 200. Pr. 464. 
 
 12 — Bliss V. Prenchj 117 Mich. 15 — Grant Bros. Auto Co. v. Cot- 
 
 538. ter, 161 Mich. 521; 11 Encyc. PI. & 
 
 13— Grant Bros. Auto Co. v. Cot- Pr. 452. 
 ter, 161 Mich. 521 ; 11 Encyc. PI. & 
 Pr. 460. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 617 
 
 is placed in a position where it is impossible to decide 
 safely between adverse claimants.^* ' 
 
 It is a general rule that the party filing a bill of inter- 
 pleader must offer to bring the money or thing in con- 
 troversy into court and if an injunction is asked for it 
 will be granted only on condition of complying with this 
 offer. Should an injunction have been issued without this 
 having been done it will be dissolved unless the money 
 be promptly paid into court." 
 
 § 566. The bill should set forth accurately the circum- 
 stances that entitle the complainant to the equity of inter- 
 pleader. The debt, fund, duty or property for which the 
 defendants are antagonistic claimants should be accu- 
 rately described and the manner in which the complain- 
 ant became the stakeholder stated as well as the general 
 nature of the claims of the defendants respectively. 
 
 It should be shown that each of the defendants, is set- 
 tipg up a claim to the exclusion of the claimed rights 
 of the others, and if either, any or all of the defendants 
 have made any demand, served any notice, commenced 
 or threatened to commence any suit, or taken or threat- 
 ened to take any proceedings whatever such facts should 
 be set forth. Complainant should also state that he has 
 no interest in and makes no claim to the subject matter 
 of the suit and that he is willing to pay or deliver it 
 to whoever may be foimd to be lawfully entitled to it. 
 
 The bill must show that each of the defendants have at 
 least a colorable right to or interest in the property in 
 question sufficient to entitle each of them to make a prima 
 facie claim. If it should show that any one of the de- 
 fendants is clearly entitled to the fund or property to the 
 exclusion of the others the bill cannot be maintained; 
 or that the claim of the defendant there being only two, 
 is such that it cannot be sustained either at law or in 
 equity there is no cause for interpleader and the bill is 
 
 16— Vogel V. Union Central Life 17— BUss v. French, 118 Mich. 
 
 Ins. Co., 147 Mich. 333; Bedell v. 538. 
 Hoffman, 2 Paige 199. 
 
618 stage's MICHIGAN CHANOEEY PKACTICB AND FOBMS 
 
 demurrable '* and the bill will also be defective if it 
 shows that both of the defendants are entitled to the 
 fund. 
 
 § 567. It is frequently necessary to pray for an injunc- 
 tion that each of the defendants be restrained from com- 
 mencing proceedings at law, or from prosecuting such 
 proceedings if any have been commenced in which event 
 it is necessary to offer to bring the money or property 
 into court and to actually fulfil such offer on the granting 
 of such injunction.'^ The better practice would seem to 
 be to offer to bring the money into court or place the 
 property under the control of the court as the case may 
 be, at the time of filing the bill in any case, unless under 
 very special circumstances. 
 
 § 568. It is a rule that a bill of interpleader will not 
 be entertained without proof that it is filed without col- 
 lusion with or at the instance of either or any of the de- 
 fendants and it is the practice to annex an affidavit of 
 such non collusion to the bill which has been held to be 
 demurrable for want of such an affidavit,*" but where the 
 bUl itself is on oath and contains an express averment of 
 ndn-coUusion it is considered sufficient without any sep- 
 arate affidavit.'' ' 
 
 § 569. The prayer of the bill is that the defendants 
 may interplead that the court may adjudge to whom the 
 subject matter of the suit belongs and that the complain- 
 ant be discharged of all liability in relation thereto and 
 be indemnified for his costs in bringing the suit. It must 
 not pray for any affirmative relief against either of the 
 defendants, it being a suit merely for the protection of 
 the complainant.** 
 
 §570. Defence. The defendants in their answers 
 may severally assert their respective claims to and in- 
 
 18 — Pusey & Jones Co. v. MUIer, 21 — ^BUss v. French, 117 M;ich. 
 
 61 Fed. 401. 538. 
 
 19— Blisa T. French, 117 Mich. 538. 22— Killian t. Ebbinghaus, 110 TI. 
 
 20— Shaw V. Coster, 8 Paige 339; S. 568. 
 Metealf t. Hervey, 1 Ves. 248 ; Mitf . 
 Eq. PI. 49-143. 
 
stage's MICmGAN CHANCERY PBACTICE AND FOBMS 619 
 
 terests in the fund or property in controversy and they 
 should do so plainly, clearly and fully as the contest, if 
 the bill is decided to be well filed, will be wholly between 
 them and they will succeed or fail according to the facts 
 by them alleged and proved. 
 
 A regular cross bill is not essential between the defend- 
 ants unless some special affirmative relief is desired by 
 some one of them against some one or more of the 
 others,^* as the answers should usually contain all the 
 allegations proper for each to present his case as against 
 the others, a copy of such answer should therefore be 
 served on each of the co-defendants. 
 
 But the defendants or any of them may demur to the 
 bin if it be defective or does not state a case in which it 
 would be equitable to require an interpleader, and if the 
 demurrer be sustained and no amendment can be made to 
 supply the defect the biU will be dismissed, although 
 others of the defendants may have answered.^* 
 
 § 571. The first question to be determined is whether 
 or not the bill is well filed, that is to say, does it make a 
 proper case for interpleader? If there be no question 
 made on that score, or if on demurrer or plea or plead- 
 ings and proofs it be determined that the bill is well 
 filed the court will make a decree to that effect ^^ and that 
 on payment of the money into court or placing the prop- 
 erty under its control the complainant be exonerated 
 from all liability in relation thereto and that the defend- 
 ants interplead between themselves and the decree will 
 usually allow the complainant his costs including a reas- 
 onable solicitor's fee out of the fund. 
 
 § 572. Where the answers of the defendant's respect- 
 ively are sufficient to show clearly the interest which 
 they severally claim to the subject matter no further in- 
 terpleader wiU be required but if necessary the court 
 
 23 — McNamara v. Provident Sav. 24 — Grant Bros. Auto Co. v. Cot- 
 
 Ac. Soc, 114 Fed. 910, 52 C. C. A. ter, 101 Mich. 521. 
 530. 25— Blisa v. French, 117 Mich. 538. 
 
620 STAGERS MICHIGAN CHANCEEY PBAOTIOB AND FOEMS 
 
 will make an order that new pleadings be drawn to form 
 an issue. The complainant thenceforward practically 
 ceases to be a party to the case having obtained the only 
 decree to which he could be entitled, and the entire con- 
 troversy then rests between the defendants, who are then 
 before the court to litigate the question of right between 
 them to the same extent as if one had brought quit against 
 the other upon the same matter.^® 
 
 § 573. If a defendant suffers a bill of interpleader to 
 be taken as confessed after personal service it amoimts 
 to an admission that he has no claim to the matter in con- 
 troversy and the other defendant or defendants who have 
 answered are at once entitled thereto. If there were no 
 more than two defendants originally then such order pro 
 confesso as to one will entitle the other to the fund.^'^ 
 
 § 574. The case will proceed and proofs will be taken 
 between the contesting defendants and at the final hear- 
 ing between them the court will make such disposition 
 of the fund as the rules of law and equity dictate, in 
 favor of the one who appears by the proofs or by a pro 
 confesso to be best entitled thereto. 
 
 As between the defendants the court may allow the 
 costs of one or more to be paid out of the fund,^® or may 
 order one defendant to pay costs to the other as may ap- 
 pear to be equitable and just.^* 
 
 Where one of the defendants is out of the jurisdiction 
 of the court the complainant is bound to bring him .within 
 the jurisdiction in a reasonable time, and if he omits to 
 do so, the other defendant is upon indemnifying the 
 complainant against those out of the jurisdiction, entitled 
 to the thing in dispute.^" 
 
 Leave to intervene cannot be granted to a claimant who 
 
 26— Horton v. Baptist Ch., 34 Vt. 28 — Great Camp K. O. T. M. M. 
 
 309. V. Deem, 143 Mieh. 652. 
 
 27 — Mieh. & Ohio Plaster Co. v. 29 — Canfield v. Morgan, Hopk. Ch. 
 
 White, 44 Mich. 25; Badeau v. Bog- 224; Thompson v. Ebbetts, Hopk. 
 
 ers, 2 Paige 209; Stevenson v. An- Ch. 272. 
 
 derson, 2 Ves. & B. 412 ; Martinius 30 — Stevenson v. Anderson, 2 Ves. 
 
 V. Helmuth, 2 Ves. & B. 412n. & B. 411. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 621 
 
 is not made a party to the bill. An amendment to the bill 
 is the only maimer in which a new defendant could be 
 added.*^ 
 
 Where a complainant has acted coUusively and unfairly 
 towards the only defendant entitled to the fund he will 
 be made to pay costs.*^ 
 
 Where a decree is made that the complainant pay the 
 money into court to be distributed according to the de- 
 cree or that the bill be dismissed, the complainant's duty 
 is to pay the money into court in compliance with the 
 order and it is no excuse for failing to do so that one of 
 the defendants has threatened to appeal to the Supreme 
 Court.** 
 
 § 575. A dismissal of the bill leaves all the parties in 
 the same situation that they were in before filing the bill 
 as to the rights of action which each then had. 
 
 BILL OF INTERPLEADER 
 AGAINST VENDOR AND CLAIMANT OF PRICE. 
 (Address and introduction.) 
 
 1. That on or about the day of , 19 . . , 
 
 your orator purchased of one C. D., of , (state what 
 
 article or personal property was purchased) then in the posses- 
 sion of the said C. D., for which your orator promised to pay to 
 
 the said C. D. the sum of dollars, in days 
 
 from the time of such purchase, and that at the time of such 
 purchase the said C. D. represented and still insists that he 
 was the owner of the said property in his own right, and had 
 good right to sell the same to your orator, and that he is entitled 
 
 to receive the said sum of dollars, the purchase price 
 
 thereof, from your orator. 
 
 2. That after the said purchase and before the expiration of 
 
 the said days thereafter, and on or about the 
 
 day of , A. D. 19. ., one E. F., of applied to 
 
 your orator and made claim, and still insists and claims, that 
 at the time of such sale, to and purchase by, your orator he, the 
 said E. F., was the real owner of the said property, and that 
 
 31 — Michigan & Ohio Plaster Co. 33— -Look v. McCahill, 106 Mieh. 
 
 V. White, 44 Mich. 25. 108. 
 
 32 — ^Dunlop V. Hubbard, 19 Ves. 
 205; Michigan & Ohio Plaster Co. 
 V. White, 44 Mich. 25. 
 
622 stage's MICHIGAK CHANCEEY PBAOTICE AND EOSMS 
 
 the said C. D. was not the owner thereof as he pretended to 
 your orator, but was merely the agent of him, the said B. P., 
 in making such sale to yoar orator, and that he, the said E. F., 
 
 is solely entitled to receive the said sum of dollars, 
 
 the purchase price of the said property as aforesaid, and that 
 the said C. D. is not entitled thereto, and the said B. F. then 
 notified your orator not to pay the said purchase price or any 
 part thereof to the said C. D., (if the notice was in writing add, 
 which notice was in writing and is as follows: insert notice, 
 as by said notice when produced and proved will fully appear), 
 
 3. And that the said E. F. has commenced (or threatens to 
 commence) a suit at law for the purchase money of said article 
 (or whatever the property mmf he), against your orator in the 
 
 circuit court for the county of (ij actually commenced 
 
 add, as by the records and files of the said last mentioned court, 
 reference being thereto had, will fully appear) to recover the 
 amount of the said purchase money due on the said property. 
 And the said C. D. also claims that he the said C. D. is entitled 
 to the said purchase money and also threatens to bring a suit at 
 law against your orator for the same. 
 
 4. And that your orator has always been, and still is, ready 
 and willing to pay the full amount of the said purchase money 
 to such person or persons as should be lawfully entitled to re- 
 ceive the same and to whom he could pay the same in safety, 
 and he hereby offers to bring the same into court here, as this 
 court shall direct, and that he cannot now safely pay the same 
 or any part thereof to the said E. F., nor to the said C. D. 
 
 5. And your orator further shows, and positively avers, that 
 he does not collude with either the said C. D. or the said B. F., 
 the defendants hereto, touching the matters in controversy in 
 this cause, and that he is not in any manner indemnified by the 
 said defendants or either of them, and that this bill is not filed 
 in collusion with, nor at the instance of, either of the said de- 
 fendants, but merely of your orator's own free wiU and accord 
 for his own relief in this honorable court, in the matters and 
 upon the case above stated and set forth, and with no other 
 intent but to avoid being vexed, harassed and molested by the 
 said defendants, who are proceeding or threatening to proceed, 
 at law, for the recovery of the said purchase money as herein- 
 before stated. 
 
 Your orator therefore prays : 
 
 I. That the said C. D. and B. F., the defendants hereto, may, 
 without oath, all answer on oath being hereby waived, full, true, 
 direct and perfect answer make to this your orator's bill of 
 complaint. 
 
 II. And that the said defendants may severally set forth 
 to which of them the said sum of dollars, the pur- 
 chase money aforesaid, does of right belong and is payable, and 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 623 
 
 may set forth hopsv in particular they respectively make out their 
 several claims thereto. 
 
 III. And that the said defendants may interplead and settle 
 and adjust their said several claims and demands thereto be- 
 tween themselves, your orator being willing and desirous and 
 agreeing that the said sum may be paid to which one of them to 
 whom the same shall of right belong. 
 
 IV. And your orator brings into court here the said suia 
 of dollars, the purchase money aforesaid, to be de- 
 posited with the register of this court subject to the order of 
 this court, to be paid to such of the said defendants as shall 
 be found to be entitled thereto, and prays that he may be dis- 
 charged of and from all liability to the said defendants or to 
 either of them on account thereof. 
 
 V. And that the defendant, E. F., may be restrained by the 
 order and injunction of this court from further prosecuting 
 his said action at law against your orator, and that both the 
 said defendants be in like manner restrained from commencing 
 any action, suit or proceeding at law in relation to the feaid 
 purchase money, and that they be so restrained in the mean- 
 time during the pendency of this suit. 
 
 VI. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 (Add conclusion and verification.) 
 (Affidavit negativing collusion to be annexed to Mil.) 
 State of Michigan, ] 
 
 County of | 
 
 A. B., of , being duly sworn, says that he is the com- 
 plainant in the annexed bill of interpleader and that the same 
 is exhibited by him against the defendants, C. D. and E. F., 
 therein named, without any fraud or collusion between him and 
 the said defendants or any or either of them; and that he has 
 not exhibited his said bill at the request of the said defendants 
 or of any or either of them ; and that he has exhibited his said 
 bill with no other intent or purpose than to avoid being sued 
 or molested by the said defendants, who are proceeding or 
 thi-eaten to proceed at law for the recovery of the funds men- 
 tioned in said bill. 
 
 A. B. 
 Subscribed and sworn to, etc. 
 
 AGAINST EXECUTOR AND ASSIGNEE OF MORTGAGE. 
 (Address and introduction.) 
 
 Complaining, your orator, A. B., of , respectfully 
 
 shows unto the court : 
 
 1. That heretofore and on the day of , . . . , 
 
 19 . . , your orator was the owner in his own right in fee simple 
 of all that certain piece or parcel of land (describe the land 
 
624 stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 
 
 mortgaged) of the value of dollars or thereabout, 
 
 and your orator was then also indebted to one C. D. of , 
 
 in the sum of dollars, and being so indebted, your 
 
 orator then made and delivered to the said C. D. his certain 
 
 promissory note in writing, bearing date the said day 
 
 of , 19 • • , and therein and thereby promised to pay to 
 
 the said C. D., or to his order, the said sum of doUars, 
 
 (state terms of payment as well of interest as of principal), 
 which said promissory note is now in the hands of one of the 
 defendants, hereinafter named, and cannot therefore at present 
 be produced by your orator. 
 
 2. And that in order to secure the payment of the said sura 
 of money with the interest according to the provisions of the 
 said note, your orator, with M. B., his wife, did make and ex- 
 ecute, under their hands and seals and deliver to the said C. D. 
 
 a certain indenture of mortgage, bearing date the said 
 
 day of , 19 . . , and therein and thereby did grant, con- 
 vey and mortgage all the said land hereinbefore described unto 
 the said C. D., his heirs, executors, administrators and assigns 
 forever, -provided always, and the said indenture of mortgage 
 was upon the express condition, that if your orator and his said 
 wife should pay or cause to be paid to the said C. D., his execu- 
 tors, administrators or assigns, the said sum of dol- 
 lars (state terms of payment of principal and interest), accord- 
 ing to the terms and provisions of the said promissory note, that 
 then the said indenture of mortgage and the said promissory note 
 should cease and be null and void, and that the said indenture 
 of mortgage is now in the possession of the defendants herein- 
 after named, or of some one of them, and therefore your orator 
 cannot produce the same. 
 
 3. And that afterwards and on or about the day of 
 
 , 19 . . , the said indenture of mortgage was duly re- 
 corded in the office of the register of deeds of the said county 
 
 of , in liber of mortgages, at page , 
 
 to which record now remaining in the said register's office your 
 orator prays leave to refer, and whereby the terms and con- 
 ditions of the said indenture of mortgage fully appear. 
 
 4. And that afterwards and on or about the day 
 
 of , 19 . . , the said C. D. died, leaving a last will and 
 
 testament, wherein one E. F. was named as sole executor, and 
 
 that afterwards and on or about the day of , 
 
 19 . . , the said will was admitted to probate in the probate court 
 
 for the county of , and thereupon letters testamentary 
 
 thereon were issued by the said probate court to the said E. F. 
 as such executor, as in and by the records of the said probate 
 court, whereto reference is prayed, wiU fully appear; and the 
 said E. F. forthwith entered upon his duties as such executor 
 and ever since that time has been and still is acting as such. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 625 
 
 and that as such executor the said E. P. claims to be entitled 
 to the said note and indenture of mortgage, and the indebted- 
 ness thereby secured, and to collect, receive and have the same. 
 
 5. And that one G. H. now claims that the said C. D. dur- 
 ing his lifetime and on or about the day of , 
 
 19 . . , did by an instrument in writing, bearing date the said 
 
 • • • day of , 19 . . , and under his hand and seal 
 
 assign, transfer and set over the said indenture of mortgage 
 and note and the debt thereby secured to him, the said G. H., 
 which said assignment is recorded in the said register's office, 
 in liber of mortgages, at page , to which rec- 
 ord now remaining in the said register's office, your orator 
 prays leave to refer. 
 
 6. And that the said sum of money so mentioned in and 
 secured by the said note and indenture of mortgage, with the 
 accrued interest thereon, is now due and payable in full, and 
 that the amount due thereon at the date of filing this bill of 
 complaint is the sum of dollars for principal and in- 
 terest, and that your orator is ready and willing to pay the said 
 sum to whomsoever is entitled to receive the same, in discharge 
 of the said debt and of the said note and indenture of mort- 
 gage. 
 
 7. And that the said E. F. claims and insists that as ex- 
 ecutor of the last will and testament of the said C. D. he is 
 entitled to receive and collect the said indebtedness, and that 
 the said G. H. has no right nor title thereto whatsover, and 
 that the assignment and transfer whereby the said G. H. claims 
 to be entitled to the said money was obtained by the said G. H. 
 fraudulently and without any consideration, and by fraud and 
 deceit practiced by the said G. H., or by someone on his behalf, 
 upon the said C. D. in his lifetime, and that the said assignment 
 conveyed to the said G. H. no right, title nor interest in the 
 said note or m.ortgage, or in the indebtedness thereby secured, 
 and the said E. F. has notified your orator not to pay such in- 
 debtedness or any part thereof to the said G. H. ; whereas the 
 said G. H. claims that his saidi assignment is good and valid 
 and not tainted with, and was not obtained by fraud and that 
 he is now by virtue thereof lawfully entitled to receive and 
 collect the said sum of money. 
 
 8. And .that your orator does not know and has no means 
 of correctly ascertaining whether the said B. F., as executor 
 as aforesaid, or the said G. H., as assignee as aforesaid, is now 
 lawfully entitled to receive the said sum of money ; and that he 
 cannot now safely pay the same or any part thereof to the said 
 E. F., as executor as aforesaid, nor to the said G. H., and your 
 orator is ready and willing, and hereby offers, to pay the same 
 to whomsoever this court shall determine to be entitled thereto ; 
 and your orator offers to bring the said sum of money into 
 
626 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 court here to be paid to such of the said several claimants as 
 this court shall determine to be entitled thereto. 
 
 9. And your orator further shows, and positively avers, that 
 he does not collude with either the said defendants, E. P., or 
 the said defendant, G. H., touching the matter in controversy 
 in this suit, and that he is not in any manner indemnified by 
 the said defendants or either of them, and that this bill is not 
 filed in collusion with, nor at the instance of, either of the said 
 defendants, but merely of your orator's own free will and 
 accord for his own relief in this honorable court in the matters 
 and upon the case hereinabove stated and set forth, and that 
 the said note and indenture of mortgage may be, by the pay- 
 ment of the said sum of money, paid, satisfied and discharged, 
 and with no other intent than to procure the valid satisfaction 
 and discharge of the note and indenture of mortgage and to 
 avoid being vexed, harassed, sued and molested by the said 
 defendants, who were severally taking, or threatening to take, 
 proceedings for the foreclosure of the said indenture of mort- 
 gage and for the collection of the said sum of money due and 
 owing thereon as hereinafter stated. 
 
 Your orator therefore prays : 
 
 I. That the said E. F. and G. H., the defendants to this bill, 
 may, without oath, all answer upon oath being hereby waived, 
 full, true, direct and perfect answer make to all and singular 
 the matters herein stated and charged, and that in such answers 
 they may respectively set forth to which of them the said sum 
 of money, secured to be paid by the said promissory note and 
 indenture of mortgage, does of right belong, and may set forth 
 how in particular they respectively make out their respective 
 claims thereto. 
 
 II. And that the said defendants may interplead and settle 
 and adjust their said several claims and demands thereto between 
 themselves, your orator being willing and desirous and agreeing 
 that the said sum may be paid to such one of them to whom the 
 same shall of right belong. 
 
 III. And that an account may be taken of the amount due 
 and owing by your orator on the said note and indenture of 
 mortgage, anJd that your orator have leave to bring into court 
 here the amount found to be so due and owing on such account- 
 ing, to be paid out by and under the direction of this court to 
 such of the said defendants as shall be found and decreed to be 
 entitled thereto, and that on bringing such sum of money into 
 this court the said promissiory note and the said indenture of 
 mortgage be decreed to be paid and satisfied and the said mort- 
 gage discharged of record. 
 
 IV. And that the said defendants, each and both of them, 
 may be restrained by the order and injunction of this court from 
 taking any proceeding for the foreclosure of the said mortgage 
 
stage's MICHIGAN CHANCHKY PEACTICE AND FOBMS 627 
 
 by advertisement or otherwise, or for the recovery of the said 
 sum of money from your orator, and that they may be so re- 
 strained in the meantime during the pendency of this suit. 
 
 V. And that your orator may have such further or such other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 And your orator will ever pray, etc. 
 
 (Add verification and affidavit of non coU/usion.) 
 
 AGAINST ADVERSE CLAIMANTS OP LIFE INSURANCE. 
 (Address.) 
 
 Complaining, your orator (name of company) brings this, its 
 bill of complaint, against A. J. P. and E. E. D. as defendants, 
 and thereupon your orator respectfully shows unto the court : 
 
 1. That it is a fraternal beneficiary society, incorporated, 
 organized and doing business under the laws of this state (or as 
 the case may be,) having its principal office for the transaction 
 of business at (state place, county and state.) 
 
 2. And that heretofore and on or about day of 
 
 , A. D. 19 . . , one C. H. P., then a resident of (state 
 
 place, county and state,) made application for membership in 
 
 your orator, and for a benefit certificate in the sum of 
 
 dollars, payable after his death to the above named A. J. P., his 
 
 wif ef^nd that thereafter and on or about the day of 
 
 , A. D. 19. ., your orator issued to the said C. H. P. its 
 
 benefit certificate, subject to its terms and conditions, in the said 
 sum of dollars payable to the said A. J. P. 
 
 3. And that afterwards and on or about the day of 
 
 , A. D. 19. ., the said C. H. P. surrendered and deliv- 
 ered to your orator the said benefit certificate, together with a 
 request in writing endorsed thereon that your orator issue to 
 him a new benefit certificate in lieu thereof, payable in the sum 
 of dollars to the said E. E. D., his sister. 
 
 4. And that afterwards and on or about the day 
 
 of , A. D. 19 . . , in pursuance of such request in writ- 
 ing your orator issued and delivered to the said C. H. P. a new 
 
 benefit certificate in the said sum of dollars, payable, 
 
 subject to all its terms and conditions, to the said E. E. D. after 
 the death of the said C. H. P. 
 
 5. And that afterwards and on or about the day 
 
 of , A. D. 19. ., the said C. H. P. departed this life 
 
 while a member of your orator in good standing, and that due 
 and timely proofs of such death were filed with your orator, and 
 
 that immediately thereafter, that is to say on the day 
 
 of , A. D. 19 . . , the board of directors (or trustees, as 
 
 the case may be) of your orator, in pursuance of its rules, regula- 
 tions and by-laws, passed upon said death and admitted the 
 liability of your orator by reason thereof in the said sum of 
 
628 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 dollars, and your orator has ever since that time held 
 
 and still holds the said sum of dollars due from it as 
 
 aforesaid, and has been and is ready and willing to pay the same 
 to the person or persons legally entitled thereto in satisfaction 
 of its indebtedness aforesaid, whenever it can or may be deter- 
 mined to whom it is legally liable to pay the same. 
 
 6. And that the said E. E. D., as a part of said proofs of 
 death, filed with your orator as aforesaid, makes affidavit that by 
 reason of her being designated in the said last benefit certificate 
 issued by your orator as aforesaid as beneficiary, she is entitled 
 to the said sum of dollars and that the said last men- 
 tioned benefit certificate will be receipted, canceled and surren- 
 dered to your orator on payment to her of the said sum for which 
 she makes demand on your orator. 
 
 7. And that the said A. J. P. has filed an affidavit with your 
 orator setting forth that at the time the said first benefit cer- 
 tificate was canceled and surrendered to your orator by the said 
 C. H. P., accompanied by his request endorsed thereon that there 
 be issued to him in lieu thereof, another benefit certificate pay- 
 able to the said E. E. D., his sister as aforesaid, he, the said C. 
 H. P., was afflicted with certain diseases which had the effect of 
 weakening him and rendering him unsound in mind as well as 
 in body, and that while in that enfeebled condition he, the said 
 C. H. P., was subject to erroneous impressions and delusions and 
 easily persuaded to sanction and do that which he, when of sound 
 mind, would not countenance, and that while said C. H. P. was 
 laboring under such delusions and was in such weak state of 
 mind, the said E. E. J>. combining and colluding with other per- 
 sons unfriendly to her, the said A. J. P. fraudulently persuaded 
 the said C. H. P. and fraudulently induced the said C. H. P. to 
 cause the said second benefit certificate to be issued payable to 
 her, the said E. E. D. ; and the said A. J. P. further claims that 
 at the time when the said C. H. P. surrendered the said first 
 benefit certificate and requested that the said second benefit cer- 
 tificate should be issued payable to the said E. B. D. as aforesaid, 
 he, the said C. H. P., was not of sound mind and was mentally 
 unable to transact business, and that had he, the said C. H. P., 
 then been of sound mind and in possession of all his mental fac- 
 ulties, he the said C. H. P., would not have so surrendered said 
 first benefit certificate nor have caused the second benefit certi- 
 ficate to be issued, and that such surrender of such first cer- 
 tificate and request for and issue of said second certificate are 
 therefore void, and that said first certificate remains in full force 
 and effect and that she, the said A. J. P., and not the said E. 
 
 E. D., is entitled to the said sum of dollars, and said 
 
 A. J. P. has demanded the same of your orator. 
 
 8. And that your orator is unable to ascertain which of the 
 said adverse claimants, A. J. P. or E. E. D., is entitled to the 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 629 
 
 said sum of dollars, that eacli insists that she is en- 
 titled to the same, and that the other has no right, title or inter- 
 est therein, and your orator cannot safely pay over the said sum 
 to either the said A. J. P. or the said E. E. D. until it shall be 
 determined to which of them payment should be made. 
 
 9. And that ever since its liability was determined by its 
 board of directors (or, trustees or as the case nmy be) as afore- 
 said, your orator has been and still is ready and willing to pay 
 
 the said sum of dollars, to either of the said adverse 
 
 claimants who shall be found to be entitled thereto, and is ready 
 and willing and hereby offers to pay the same unto this court or 
 to any officer of this court as this court shall direct, there to 
 remain under the order of this court, and to be disbursed and 
 paid over to such person as this court shall adjudge and de- 
 termine to be entitled thereto. 
 
 10. And that the said A. J. P. and B. E.. D. each threaten to 
 institute suit at law against your orator to enforce payment to 
 her of the said sum of dollars and of the whole thereof. 
 
 11. And your orator further shows and avers that it does not 
 in any maimer collude with either of the said adverse claimants, 
 or with any other person or persons, touching the matter in con- 
 troversy in this case, and that it is not in any maaner indemnified 
 by the said adverse claimants, who are the defendants .hereto, or 
 by either of them, and that it does not exhibit this bill of com- 
 plaint at request of either of the said defendants, but exhibits 
 the same merely of its own free will to avoid being molested, 
 vexed or harrassed touching the matters hereinbefore stated. 
 
 I. Your orator therefore prays the aid of this court, and that 
 the said A. J. P. and E. E. D.^ the defendants hereto, may upon 
 their several and respective corporal oaths full, true, direct and 
 perfect answer make to all and singular the matters herein stated 
 and charged, and that as fully and particularly as if the same 
 were here repeated and they thereunto respectively specially 
 interrogated, and that they may in their several answers respec- 
 tively set forth and show to which of them the said sum of 
 
 dollars belongs, and how they respectively make out 
 
 their several claims thereto. 
 
 II. And that the said defendants may interplead, settle and 
 adjust their respective claims and demands between themselves, 
 your orator being willing and desirous and hereby consenting 
 that the said sum of money be paid to whichever of the said 
 defendants it shall, by the judgment of this court, be decreed of 
 right to belong. 
 
 III. And that the said defendants and each of them may be 
 restrained by the order and injunction of this court from com- 
 mencing or prosecuting any action or proceeding at law against 
 your orator for or on acount of the said sum of dollars, 
 
630 stage's MICHIGAN CHANCBEY PBACTICB AND FORMS 
 
 or any part thereof, and that they be so restrained in the mean- 
 time during the pendency of this suit. 
 
 IV. And that your orator have leave to pay the said sum of 
 
 dollars into this court, or to such ofiScer thereof as this 
 
 court shall direct, to be subject to the order of this court and to 
 be paid out as this court shall direct to such of the said defend- 
 ants as shall be found to be of right entitled thereto and that 
 on such payment your orator be discharged of and from all 
 liability to the said defendants or either of them on account of 
 said several benefit certificates, or either of them, and from all 
 claims on account of said fund. 
 
 V. And that your orator may be decreed to be paid its rea- 
 sonable costs and chai^ges in this behalf sustained from the said 
 fund of dollars. 
 
 VI. And that your orator may have such further or other 
 relief as shall be agreeable to equity and good conscience. 
 
 And your orator will every pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 INTERLOCUTORY DECREE ON BILL OF 
 INTERPLEADER. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the bill of com- 
 plaint filed therein and the several answers of the respective 
 defendants thereto and the replications to the said answers and 
 the court having heard the arguments of counsel for the parties 
 respectively : 
 
 Upon due consideration thereof, it is ordered, adjudged and 
 decreed by the court now here, that the said bill of interpleader 
 is properly filed, and that the defendants (naming them) do 
 interplead and settle the matters in controversy between them- 
 selves ; and it appearing to the court that the said complainant 
 has deposited with the register of this court the fund in con- 
 troversy in this cause, it is further ordered, adjudged and de- 
 creed that the said complainant be dismissed with his costs in 
 
 this cause to be taxed (including a solicitor's fee of 
 
 dollars), and that such costs be paid out of the fund so paid into 
 this court.* 
 
 (If the cause he referred to a circuit court commissioner to 
 take proofs as between the defendants add the following:) 
 
 And it is further ordered, adjudged and decreed, that this 
 
 cause be, and the same hereby is referred to , Esq., a 
 
 circuit court commissioner of the said county of , to 
 
 inquire and report which of the said defendants is entitled to 
 
stage's MICHIGAN CHANCEBY PBACTICB AND POBMS 631 
 
 the said fund in controversy and which has been deposited with 
 the register of this court; and if the said circuit court com- 
 missioner shall be of the opinion that any two or more of the 
 defendants are equitably entitled to share in the same, that he 
 also ascertain and report what portion of the said fund belongs 
 to each; and it is further ordered that before the examination 
 of any witness before the said circuit court commissioner, each 
 or either of the said defendants may present to the said circuit 
 court commissioner a statement in writing of his claim and of 
 the facts and circumstances whereon the same is founded, which 
 statement may be answered by each and all of the other defend- 
 ants, and such statements and the answer thereto shall consti- 
 tute an interpleader between the said defendants. And that 
 upon such reference either of the said defendants shall be at 
 liberty to summon witnesses and proceed to prosecute their 
 respective claims before the said circuit court commissioner in 
 such manner as the said circuit court commissioner shall direct, 
 and that the solicitors of each of the said defendants have notice ■ 
 of all proceedings before the said circuit court commissioner. 
 
 And this court reserves the consideration of all questions of 
 costs as between the defendants and all other questions and 
 directions until the coming in of the circuit court commissioner's 
 report, but with liberty to either party to apply for such further 
 or other instructions or directions to the said circuit court com- 
 missioner, pending the reference, as occasion may require. 
 
 (In case, as is now more usual, the case is not referred hut is 
 taken up in open court, instead of the foregoing reference the 
 following may be inserted after the *.) 
 
 And it is further ordered, adjudged and decreed, that the 
 answers of the several defendants on file be taken as and for 
 an interpleader betewen them and as statements of their re- 
 spective claims, and that the said defendants proceed to present 
 and prosecute before the court their several and respective 
 claims to the said fund so deposited with the register of this 
 court, according to the rules and practice of this court, in the 
 same manner as if each answer were a cross bill as to each of the 
 other defendants and also an answer to the claims of each of 
 the other defendants. 
 
 (In thai case the testimony may he taken in open court on 
 the proper notice being given, and the rights of the defendants 
 there determined without a reference.) 
 
 Bills Affecting Proceedings and Judgments at Law. 
 
 § 576. Courts of equity exercise a supervisory juris- 
 diction over the judgments of the courts of common law 
 and may vacate, or enjoin the enforcement of such judg- 
 
632 stage's MICHIGAN CHANCERY PEACTICE AND EOEMS 
 
 ments as are contrary to equity and good conscience on 
 grounds of which the defendant could not avail himself 
 at law, or where the defendant was prevented from mak- 
 ing a valid defence by accident or mistake or fraud or the 
 act of the opposite party. 
 
 This jurisdiction was established in the notable contest 
 between the Court of Chancery and the Court of King's 
 Bench in 1616 in the reign of James I, when it was de- 
 cided that chancery had the power to relieve against a 
 judgment in the King's Bench obtained by fraud,^ and 
 the authority has ever since been fully recognized. 
 
 The Court of Chancery will not assume such jurisdic- 
 tion unless the defendant in the judgment at law was 
 ignorant of the facts constituting his defence at the time 
 the suit at law was pending, or that such facts would not 
 be received as a defence at law, or unless without any 
 neglect or default on his part the defendant was pre- 
 vented by fraud or accident or the act of the opposite 
 party from availing himself of the defence in the action 
 at law.2 
 
 § 577. Where a plaintiff has discontinued his suit at 
 law after hearing the evidence of the only witness for 
 the defendant and after the death of that witness recom- 
 menced his suit at law and defendant, then being deprived 
 of the evidence of his only witness by death had no de- 
 fence at law and judgment was rendered against him the 
 Court of Chancery enjoined the collection of the judge- 
 ment.^ 
 
 A judgment obtained by fraud and collusion between 
 the defendants and the plaintiff in order to obtain a levy 
 on defendant's property to the exclusion of a bona fide 
 creditor who subsequently secured judgment will be 
 vacated on a bill by the last mentioned creditor.* 
 
 So a judgment fraudulently obtained by a creditor on 
 
 1— III Black. Comm. 53. Travellers Ins. Co., 143 Mich. 468; 
 
 2— Mack V. Doty, Harr. Ch. 361; Grim v. Handley, 94 tJ. S. 652. 
 
 Miller v. Morse, 23 Mich. 365; Gray 3 — Mack v. Doty, Harr. Ch. 366. 
 
 V. Barton, 62 Mich. 186; Kellcher v. 4 — Edson v. C.ummings, 52 Mich. 
 
 Boden, 55 Mich. 295; Desk Co. v. 52. 
 
stage's MICHIGAN CHANCEBY PEACTICE AND EOBMS 633 
 
 a debt not yet due, for the purpose of obtaining undue 
 priority over other creditors will be vacated on a bill by 
 such creditors.^ 
 
 The assignee of an insolvent debtor may maintain a 
 bill to vacate unauthorized attachments.® 
 
 The aUowance by commissioners on claims of a claim 
 against a deceased person obtained by fraud may be set 
 aside J And the court will set aside an order of a probate 
 court for the sale of real estate to pay such fraudulent 
 claim.* 
 
 § 578. Where the plaintiff in a replevin case who was 
 himself wholly pecuniarily irresponsible, by a secret 
 agreement with the defendant, and without the knowledge 
 of the sureties on his replevin bond, abandoned the prose- 
 cution of the case and allowed judgment to be taken 
 against him for the value of the property replevied, the 
 court on a bill by the sureties enjoined the prosecution 
 of a suit against them on the bond in replevin.® 
 
 §579. Where the principal defendant in a judgment 
 rendered against him and his sureties on a note, deposited 
 the amoimt of the judgment in a bank and gave his check 
 on the bank for the amount to the attorney for the plain- 
 tiff for the purpose of satisfying the judgment and the 
 attorney accepted the check and surrendered the note, 
 but instead of cashing the check the attorney went to a 
 party, who was claimed to be the party in interest as 
 plaintiff in the judgment although not the nominal plain- 
 tiff and who was known by the attorney to have in his 
 possession a check drawn some time before by the same 
 principal defendant on the same bank for nearly the same 
 amount which had been dishonored by the bank for want 
 of funds, and notified him that the defendant had made 
 a deposit, whereupon said party immediately presented 
 the dishonored check which was then paid and the check 
 
 5 — ^Hale v. Chandler, 3 Mich. 531; 611; Babcock v. Babcock, 150 Mich. 
 
 Hinchman v. Town, 10 Mich. 508. 558. 
 
 6 — Emerson v. Detroit Street & 8 — ^Babcock v. Babcock, 150 Micli. 
 
 Spring Co., 100 Mich. 127. 358. 
 
 7— McKinney v. Curtiss, 60 Mich, 9— Wright v. Hake, 38 Mich. 525. 
 
634 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 given in payment of the judgment being thereafter pre- 
 sented was dishonored for want of funds it was held 
 that the sureties could sustain a bill to enjoin the further 
 collection of the judgment and to declare it satisfied.^* 
 
 § 580. The Court of Chancery will not interfere with 
 judgments at law unless it very clearly appears that in- 
 justice has been done." It is best as a matter of public 
 policy that a judgment rendered in a court of law should 
 stand unless manifestly against conscience, in that case 
 or where perjury of a witness has been established by a 
 judicial determination or by written documents equity 
 may appropriately grant relief.^* But the enforcement 
 of a judgment at law will not be enjoined on a bill alleging 
 that it was obtained by perjury of a witness who has not 
 been convicted of such perjury.^* 
 
 If the complainant has had an opportunity to interpose 
 his defence at law and has failed to avail himself of it a 
 court of chancery will not interfere ^* and the negligence 
 of an attorney will not avail to vacate the judgment.^' 
 
 § 581. Where the cause of action for which a judgment 
 was rendered has been settled but the judgment not dis- 
 charged equity will compel a discharge.^^ 
 
 The equitable remedy against a judgment is not lost 
 by making a motion for a new trial. ^'^ 
 
 § 582. It is provided by statute that no injunction shall 
 issue to stay proceedings at law in any personal action 
 after judgment unless the amount of the judgment in- 
 cluding costs be deposited by the party applying for such 
 injunction together with a bond with sufficient surety in 
 
 10 — ^Kellender v. Neidhold, 9.8 14 — Weiseman v. Newton Beef Co., 
 
 Mich. 517. 154 Mich. 511; Kramer v. Scholte, 
 
 11— Mueller v. Marsh, 116 Mich. 154 Mich. 632. 
 
 375. 15— Kramer v. Schulte, 154 Mich. 
 
 12 — Iron Mining Co. v. Husby, 72 632. 
 
 Mich. 61; Gray v. Barton, 62 Mich. 16 — Child v. Emerson, 9.9 Mich. 
 
 186. 38. 
 
 13— Steele v. Culver, 157 Mich. 17— Wright v. Hake, 38 Mich. 525. 
 344; Codde v. Mahiat, 109 Mich. 
 186. 
 
stage's MICHIGAN CHANCEET PEACTICE AND FOEMS 635 
 
 STicli sum as the court shall direct conditioned for the 
 payment of all damages and costs that may be awarded 
 against him at the final hearing of the case." But the 
 court may dispense vith such deposit and direct in lieu 
 thereof a bond with at least two sufficient sureties condi- 
 tioned to pay the amount so required to be deposited into 
 court whenever the court should so require.^' 
 
 Where the bill states facts from which a fraudulent 
 intent is plainly to be inferred the want of a technical 
 charge of fraudulent intent in so many words in the bill 
 will not be fatal.^" 
 
 § 583. The bill usually prays for an injunction to stay 
 all proceedings on the judgment attacked in the meantime 
 during the pendency of the suit as well as the prayer that 
 the judgment be vacated, or it may merely pray that all 
 proceedings against the complainant on the judgment 
 may be forever enjoined. The proceedings are the same 
 as in other cases. 
 
 TO ENJOIN PROCEEDINGS IN SUIT AT LAW. 
 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D. 19 . . , one C. D. had in his possession certain goods and 
 chattels and personal property, that is to say, (describe the prop- 
 erty), and that on the same day one G. H. sued a writ of re- 
 plevin out of the circuit court for the county of , 
 
 against the said C. P. to recover possession of the said goods, 
 chattels and personal property, and that thereupon your orators, 
 at the request of the said G. H., became sureties on the replevin 
 
 bond given in the said cause in the sum of dollars, 
 
 and that the said C. D. appeared and defended the said suit in 
 
 replevin, and that afterwards and on the day of 
 
 , A. D. 19. ., the said cause came on for trial in the 
 
 said court, and that before the said trial began the said G. H. 
 and C. D. fraudulently entered into an agreement to the effect 
 that the said C. D., the defendant in the said replevin suit, 
 should take judgment against the said G. H., plaintiff therein, 
 for the value of the property so replevied by the said G. H., as 
 plaintiff from the said C. D., as defendant, which value was 
 then agreed by the said G. H. and C. D. to have been 
 
 18 — C. L., See. 504. 30 — HaJe v. Chandler, 3 Mich. 531, 
 
 19— C. h; Sec. 509. 
 
636 stage's MICHIGAN CHANCEEY PEACTICB AND FOEMS 
 
 dollars at the time of being replevied; that the said agreement 
 was fraudulently made and entered into by the said C. D. and 
 G. H. to defraud and cheat your orators as sureties on the said 
 replevin bond as aforesaid. That your orators were never con- 
 sulted in relation to the said agreement and never consented 
 thereto; that no arrangement was made between the said G. H. 
 and the said C. D., the plaintiff and defendant in the said re- 
 plevin suit, for the return of the property so replevied, to the 
 said C. D., but the same, by collusion of the parties, was left in 
 the possession and under the control of the said G. H., who was 
 then and still is wholly irresponsible and insolvent. 
 
 2. And your orators fuTther show, that in pursuance of the 
 said fraudulent agreement, the said G. H. abandoned his prose- 
 cution of the said e^use, and at the said trial of the said cause 
 the said C. D. obtained a verdict and judgment in his favor, 
 and . thereupon ia pursuance of the said agreement, the said 
 G. D. elected to take a judgment for the value of .the property 
 so replevied, and thereupon judgment was rendered in his favor 
 
 for the sum of dollars and his costs, afterward taxed 
 
 at the sum of dollars, and that your orators had no 
 
 notice or knowledge of the said agreement and did not suspect 
 its existence until after the said trial had taken place. 
 
 3. And that after the recovery of the said judgment as afore- 
 said the said C. D. sued out of the said court a writ of fieri facias 
 thereon, which said writ having been duly delivered to the 
 
 sheriff of the said cQunty of for execution in due 
 
 course of law, was by him returned wholly unsatisfied, on or 
 
 about the day of , A. D. 19 . . , and that since 
 
 the return of the said writ of fieri facias the said C. D. has 
 brought suit against your orators upon the said replevin bond, 
 which has been for that purpose assigned to him by the said 
 sheriff and threatens and intends to prosecute the same to jUdg- 
 ineut against your orators. 
 
 4. And your orators are advised and believe that they will 
 not be able to interpose the facts hereinbefore stated in defense 
 in the said action at law on the said bond and can only have 
 relief in a court of equity. 
 
 I. Your orators therefore pray the aid of this court and that 
 the said C. D. and &. H., the defendants hereto, may, without 
 oath, all answer upon oat^ being hereby waived, full, true, 
 direct and perfect answer make to all and singular the matters 
 hereinbefore stated and charged. 
 
 II. And that the said C. D. may be forever restrained, by 
 the order and injunction of this court, from pr'osecutihg his 
 said suit against your orators uppn the said replevin bond, and 
 that he be in the meantime so restrained during the pendency 
 of this suit. 
 
 III. And that the said replevin bond may be decreed to be 
 
stage's MICHIGAN CHANCEEY PEACTICE AND POEMS 637 
 
 null and void as against your orators, and that your orators 
 may be decreed to be forever discharged therefrom and from the 
 obligation thereof. 
 
 IV. And that your orators may have such further or other 
 relief as shall be agreeable to equity and good conscience. 
 
 (Add, if you choose, prayer for preliminary injunction and 
 for subpoena.) 
 
 And your orators will ever pray, etc. 
 
 (Signature of Solicitor and of Counsel.) 
 
 (Signature.) 
 (Add verifieation and affidavit of one who knows facts to sus- 
 tain preliminary injunction.) 
 [Complainants must file Bond, post.] 
 
 BILL TO VACATE JUDGMENT IN SUIT AT LAW. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D , one C. D. of (state his residence) , commenced 
 
 an action at law against your orator in the circuit court for the 
 
 county of , in this state, to recover the sum of 
 
 dollars, alleged to be due from your orator to the said C. D., 
 for (insert the alleged subject matter of the suit), and that your 
 orator appeared in the said suit and entered and filed his plea 
 thereiQ in bar to the declaration of the said C. D. filed therein, 
 and that the said cause being at issue was noticed for trial at 
 
 the term of the said court in the year 19 . . , and that 
 
 your orator attended the said court at the said term and that 
 
 during the said term and on the day of , A. 
 
 D. 19 . . , the said cause was ordered by the said court to be con- 
 tinued to the next term thereof, and your orator thereupon left 
 
 the said court and returned to his home ; and that 
 
 days thereafter, and during the same term of the said court 
 and after your orator had returned to his residence and had 
 ceased to be in attendance upon the said court and in the absence 
 of L. M., the attorney of your orator in the said suit, the said 
 C. P., the plaintifE in the said suit (or his attorney), without 
 any notice to your orator or to the said attorney of your orator 
 and without the knowledge or consent of your orator or of the 
 attorney of your orator, fraudulently claiming and pretending 
 that the order for such continuance was made and entered by 
 mistake, procured the said order for continuance to be vacated 
 and set aside, and thereupon, at the said term of the said court, 
 
 and on the day of , A. D. 19 . . , in the absence 
 
 of your orator and of his said attorney, and without the knowl- 
 edge or consent of your orator or of his said attorney, at the 
 instance of the said C. D. and of his attorney, the said cause 
 was brought on for trial before a jury then for that purpose 
 empanelled, and the said plaintiff, C. D., introduced the evi- 
 
638 stage's Michigan chancery practice and FOfeivrs 
 
 dence on his part, and neither your orator, nor his attorney, 
 being present, nor any witnesses on his behalf, and having no 
 knowledge, of the said trial, the said jury rendered a verdict in 
 favor of the said C. D. against your orator for the sum of 
 
 dollars damages, and thereupon the court, on the 
 
 day of , A. D. 19 . . , rendered judgment in 
 
 favor of the said C. D. and against your orator, for the amount 
 of the said verdict and the costs of the said suit. 
 
 2. Your orator further shows tha.t he resides at the disr 
 
 tanee of miles and upwards from the place where the 
 
 said court was held, and did not learn of the said trial taking 
 place or of the rendition of the said judgment, until the 
 
 day of , A. D. 19 . . , which was long after the 
 
 adjournment of the said court for the said term and after an 
 execution had been issued on the said judgment and placed 
 in the hands of one B. P., the sheriff of the said county of 
 
 , to be executed according to law ; and that the said 
 
 sheriff threatens to and is about to levy upon and sell the prop- 
 erty of your orator in obedience to said writ of execution. 
 
 3. Your orator further shows that, owing to the adjourn- 
 ment of the said court before your orator had any knowledge 
 of the rendition of the said judgment, your orator was unable 
 to -move the court to set aside the said judgment or to pray and 
 obtain an appeal therefrojji or to procure a bill of exceptions 
 to be settled during the said term, so that your orator's remedy 
 at law became and was lost. 
 
 4. Your orator further shows that he was not, at the time 
 of the commencement of the said suit, nor is he .now, in any 
 manner indebted to the said C. D. as claimed in his declaration 
 in the said cause, and that he has a complete and perfect de- 
 fense thereto on the merits thereof (state nature of defense), 
 and that the said judgment is therefore wholly unjust and in- 
 equitable. 
 
 I. Your orator therefore prays thg aid of this court and 
 that the said C. D. and E. F., the defendants hereto may, if 
 they can show why your orator should hot have the relief here- 
 by prayed, without oath, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters herein stated and charged. 
 
 II. And that the said judgment so rendered against your 
 orator as aforesaid may be vacated and set aside and held for 
 naught, and that your orator may be granted a new trial in the 
 said cause. 
 
 III. And that in the meantime and during the pendency of 
 this suit, that the said defendants, C. D. and E. F., the sheriff 
 
 of said Qounty of as aforesaid, may be restrained By 
 
 the order and injunction of this honorable court from levying 
 
stage's MICHIGAN CHANCEKY PKACTICE AND FOEMS 639 
 
 the said execution on any of the property of your orator, or 
 otherwise attempting to enforce the said judgment. 
 
 rV. And that upon the hearing of this cause such injunc- 
 tion be made perpetual. 
 
 y. And that your orator may have such further or other 
 relief as shall be agreeable to eqiiity and good conscience. 
 
 (Prayer added for injunction, and for subpoena,) 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 (Add verification.) 
 
 Bestoration of Lost or Destroyed Deeds, Etc. 
 
 § 584. Wlien a deed or other instrument in writing is 
 lost or accidentally or wrongfully destroyed it m9,y be 
 restored by a Court of Equity.^ 
 
 Thus where a deed of an undivided half of certain real 
 estate was conveyed by deed by the owner and his wife 
 to the partner of the owner pursuant to the partnership 
 agreement and that afterwards and after the death of the 
 owner his vsidow fraudulently obtained and destroyed the 
 deed, which was not recorded, the court restored it on a 
 bill by the partner.^ 
 
 And where a grantor having executed a deed and de- 
 livered it in escrow fraudulently obtained it from the 
 depositary and d-estroyed it the court decreed the execu- 
 tion and deposit of a deed to take its place.^ 
 
 § 585. Where a deed was executed and delivered under 
 an agreement that a mortgage for certain purposes should 
 be made by the grantee of the same land, but the mortgage 
 was not in fact executed, and the deed was lost and the 
 grantor died suddenly it was decreed that the deed should 
 be restored and a conveyance made by the heirs and 
 widow of the grantor on condition of the giving of the 
 mortgage according to the agreement.* 
 
 But a restoration of a deed destroyed by the grantor 
 
 1— Allen v. Waldo^ 47 Mich. 316; 3— Wagner v. Barchberg, 166 
 
 Wallace v. Walfaee, 63 Mich. 326. Mich. 411. 
 
 2 — ^Wallace v. Wallace, 63 Mich. 4 — Haslett Park Assn. v. Haslett, 
 
 326. 101 Mich. 315. . 
 
640 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 is refused when the deed was not delivered in such a 
 manner as to put it beyond the power of the grantor.^ 
 
 § 586. A mortgage discharged by mistake will be re- 
 stored and given its original priority when no rights of 
 innocent third parties have intervened.® 
 
 A mortgage given to a weak minded person to secure 
 a part of the purchase price of real estate fraudulently 
 obtained by the mortgagor and destroyed without having 
 been recorded will be revived after the death of the mort- 
 gagee on a bill by his heirs.'^ 
 
 Where the officers of a life insurance policy obtained 
 a surrender of the policy by falsely representing it to be 
 invalid or forfeited equity will re-instate it.* 
 
 As in other cases all persons whose interests will be 
 affected in any manner by the restoration of a deed or 
 other instrument should be made parties to the bill, stat- 
 ing in what manner each is interested. 
 
 BILL TO RESTORE DESTROYED DEED. 
 
 (Address and Introduction.) 
 
 1. That heretofore and on the day of .., 
 
 A. D. 19, (date of deed) one C. B., the father of your oratrix, 
 
 now deceased, was and for years prior thereto had 
 
 been the owner in his own right in fee simple of all that certain 
 
 piece and parcel of land situate in the of , • • , in 
 
 said county of and described as follows (insert descrip- 
 tion of land.) 
 
 2. That the said C. B. then was and for years prior 
 
 thereto had been a widower, his wife, the mother of your oratrix, 
 
 having died on or about the day of A. D. 
 
 19 . . , and that during all that time since the death of her said 
 mother your oratrix resided with the said C. B. and acted as 
 his housekeeper, and did and performed all the household work 
 of the said C. B. in and about his house and continued so to do 
 
 until the death of the said C. B. which occurred o the 
 
 day of , A. D. 19... 
 
 5 — MoBher v. Mosher, 104 Mich. 8 — Tabor v. Mich. Mut. life Ins. 
 
 551; Allen y. Waldo, 47 Mich. 516. Co., 44 Mieh. 321; Heinlein v. Imp. 
 
 6— Ferguson v. Glanford, 68 Mich. Life Ins. Co., 101 Mich. 250. 
 36; French v. De Bow, 38 Mich. 708. 
 
 7 — Landis v. Landis, 113 Mich. 
 354. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 641 
 
 3. That on the said day of , A. D. 19 . . , as 
 
 j^et, during the lifetime of the said 6. B., he, the said C. B., then 
 being the owner of the said land herein above described as afore- 
 said, in consideration of the premises and of his natural love 
 and aifeetion for your oratrix, did miike and execute under his 
 hand and seal and deliver to your oratrix, a warranty deed of 
 conveyance, and therein and thereby did for the consideration 
 therein expressed of one dollar of lawful money to him in hand 
 paid, and the services of your oratrix before then rendered and 
 his natural love and a:ffeetion for your oratrix, grant and con- 
 vey to your oratrix, in fee simple, all and singular the said land 
 together with all and singular the hereditaments, and appurte- 
 nances thereunto belonging or in anywise appertaining. To have 
 and to hold the same unto your oratrix, her heirs and assigns 
 forever, reserving however a life estate in the said lands to him- 
 self, the said C. B., which said deed of conveyance was then duly 
 signed and sealed by the said C. B. in presence of one J. K. and 
 one L. il., two competent witnesses, and they, the said J. K. and 
 L. M., then subscribed their names as such witnesses thereto, and 
 the said C. B. then duly acknowledged the execution of the said 
 deed and that the same was his ftee act and deed before one 0. 
 P., then a notary public in and for the said county and the said 
 0. P. as such notary public, then executed his certificate of such 
 ackaowledgement in the usual form annexed to the said deed 
 
 and the said C. B. thereupon th^n on the said day of 
 
 , A. D. 19 . ., delivered the said deed so executed, wit- 
 nessed and acknowledged to your oratrix. 
 
 4. And the said C. B. then had other children, that is to say, 
 two sons, D. B. and E. B., and a daughter, F. B. G., the wife of 
 one H. G., and the said C. B. then desired that the said deed' 
 should be kept secret and from the knowledge of his said sons 
 and his married daughter so long as he should live and for that 
 reason he requested your oratrix to put the said deed into his 
 keeping and not to record the same during his lifetime with 
 which request your oratrix complied, and after the same had been 
 delivered to her as aforesaid, she handed the same to her said 
 father, C. B., for Safe keepng and he, the said C. B., then prom- 
 ised to safely keep and preserve the same for her. 
 
 5. And that afterwards and as yet during the lifetime of the 
 said C. B. the said D. B. and E. B. and P. B. G. became in some 
 manner informed of the existence of the said deed and thereupon 
 they qr some of them applied to the said C. .B and persistently 
 importuned him to destroy the same and that afterwards and as 
 yet during the lifetime of the said O. B. and on about the 
 
 day of , A. D. 19 . . , the said C. B. being then 
 
 over years of age and being weak with age and infirm- 
 ity was prevailed upon by the persistent persuasion and impor- 
 tunities of the said D. B., E. B. and P. B. G. or some of them to 
 
642 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 destroy the said deed and that the said C. B. being in the con- 
 dition aforesaid and yielding to the persuasions and importu- 
 nities aforesaid did wrongfully, and without the knoiwledge or 
 consent of your oratrix destroy the said deed and that your ora- 
 trix did not learn of the destruction thereof until after the death 
 of the said C. B. 
 
 6. And afterwards and on the day of , 
 
 A. D. 19 . ., the said C. B. died intestate leaving surviving him 
 liis .^d sons, D. B. and B. B., and his said daughters F. B. G., 
 and your oratrix, his only heirs at law. 
 
 7. And that afterwards your oratrix having been informed 
 of the destruction of the said deed as aforesaid, after the death 
 of the said C. B., applied to the said D. B. and E. B. and F. B. 6. 
 and requested them, in a friendly manner, to execute and deliver 
 to her a quit claim deed of the said land and thereby confirm 
 to her, her title thereto acquired by the delivery of the said deed 
 so destroyed as aforesaid, but so to do the said D. B. and E. B. 
 and F. B. G. on various and divers frivolous pretexts have 
 hitherto refused and still do refuse, by reason whereof your ora- 
 trix is without any written evidence of her title to the said land 
 and the title thereto appears by the records and recorded deeds 
 to be in the said D. B., E. B., F. B. G. and your oratrix, heirs of 
 the said C. B.,, deceased, as joint tenants thereof, and your ora- 
 trix is unable to sell or dispose of the said land or any part there- 
 of at a fair value. 
 
 I. Wherefore, your oratrix prays the aid of the court, and 
 that the said D. B., B-. B. and F. B. 6., the defendants hereto, 
 may, if they can show why your oratrix should not have the 
 relief hereby prayed, withQut oath, all answer upon oath being 
 hereby waived, full, true, direct and perfect answer make to 
 all and singular the matters herein stated and charged. 
 
 II. And that the said deed so destroyed as aforesaid may 
 be restored and that your oratrix may be decreed to be the sole 
 owner of the said land, with the hereditaments and appurte- 
 nances thereto belonging,, or in anywise appertaining in fee sim- 
 ple, and that the said D. B., E. B. and F. B. G. may be decreed 
 to have no interest whatever therein. 
 
 III. And that your qratrix may have leave to cause such 
 decree, or a certified copy thereof., to be recorded in the office 
 
 of the register of deeds of sai^ Qounty of , and that 
 
 such record be of the same eifeet as if the said original deed, de- 
 stroyed as aforesaid, were so recorded. 
 
 IV. And that your oratrix may haVe such other and further 
 relief as shall be agreeable to equity-. 
 
 (Prayer for process if deemed advisable) 
 And your oratrix will ever pray, etc. A. B. 
 
 Solicitor for Complainant and of Counsel. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 643 
 
 Reformation and Correction of Written Instruments. 
 
 § 587. If by reason of fraud, mistake, accident or sur- 
 prise an instrument does not express the true intent and 
 meaning of the parties equity will reform it. ^ 
 
 When a mistake is made in the description of land in a 
 deed by which lands not intended to be conveyed purport 
 to be conveyed or lands intended to be conveyed are not 
 conveyed or lands not intended to be conveyed are sub- 
 stituted for the lands intended by the parties, where the 
 grantee has been put into possession of the lands in- 
 tended such mistake will be corrected and the deed re- 
 formed according to the actual intent of the parties at 
 the time it was made.^ 
 
 So also where the description is defective so as not to 
 define any land.^ 
 
 And where by the mistake of the scrivenor the wrong 
 person is named as grantee the error will be corrected.* 
 
 § 588. Either party to the conveyance may maintain 
 a bUl for the correction of the mistake, and a mortgagee 
 of a grantee under an erroneous description in the deed 
 and carried also into the mortgage may maintain a bill 
 for the correction of the description in the deed as well 
 as that in the mortgage.^ 
 
 A mistake in the description of lands platted in the 
 record plat of a village may be corrected." 
 
 1 — ^Bush V. Merriman, 87 Mieh. diet, 122 Mieh. 657; Norris v. Sar- 
 
 260 J Judson v. Miller, 106 Mich. gent, 126 Mich. 557; Clark v. Basso, 
 
 140. 152 Mich. 674; Nisbett v. Milner, 
 
 2— Norris V. Hurd, Walk. Ch. 102; 159 Mich. 337. 
 
 Cummings v. Freer, 26 Mich. 128; 3 — Dwight v. Tyler, 49 Mich. 614; 
 
 Taber v. Shettack, 55 Mich. 370; Probett v. Walters, 70 Mich. 437; 
 
 Probett V. Walters, 70 Mich. 437; Burke v. Clixby, 75 Mich. 311. 
 
 Damm v. Moon, 48 Mich. 510; Con- 4— Shouler v. Bomander, 80 Mieh. 
 
 lin V. Mascar, 80 Mich. 139; Shouler 531; Balen v. Hanover Fire Ins. Co., 
 
 V. Bomander, 80 Mich. 531.; West v. 67 Mich. 179. 
 
 Mahaney, 86 Mich. 121; Bush v. 5 — Cummings v. Freer, 26 Mich. 
 
 Merriman, 87 Mich. 260; Hoyt v. 128; Nisbett v. Milner, 159 Mich. 
 
 Gooding, 99 Mich. 71; Judson v. 337. 
 
 Miller, 106 Mich. 140; Perkins v. 6 — Gilbert v. Williams, 157 Mich. 
 
 Canine, 113 Mich. 72 ; Davis v. Bene- 226. 
 
644 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 A mortgage from which a parcel of land intended to 
 have been included was omitted by mutual mistake will 
 be reformed so as to include the omitted landJ Also by 
 rejecting a sum \^^rongfully included in the consideration 
 and condition* and by correcting the rate of interest 
 when erroneously entered.® 
 
 § 589. A contract for the sale of land will be reformed 
 when the vendee being illiterate, signed a contract pro- 
 viding for nearly double the agreed purchase price." 
 Also where by mutual mistake the timber on certain lands 
 was omitted from a contract to sell timber.^^ And when 
 in a land contract a reservation of the timber was inad- 
 vertently omitted although agreed upon.^^ Also whe:ce 
 by mistake certain important words were omitted or 
 changed.^^ The rule being that in a proper case the writ- 
 ten instrument will be reformed to conform to the actual 
 agreement of the parties.^* 
 
 So where securities were taken intending to give the 
 wife only a life interest therein were by mistake taken to 
 husband and wife jointly, after the death of both they 
 were reformed so as to constitute a part of the husband's 
 estate.* ° 
 
 A mistake, in an agreement fixing the boundary line of 
 land and providing for a party wall wUl be reformed in 
 accordance with the actual agreement of the parties." 
 
 A mistake in a chattel mortgage whereby important 
 matters were omitted may be corrected and so may a mis- 
 take in scheduling chattels as partnership property." 
 
 7 — ^Ford V. Daniels, 71 Mich. 77; 12 — ^Fero v. Loud & Sons Lumber 
 
 Kimble v. Harrington, 91 Mich. 281. Co., 101 Mich. 310. 
 
 8 — Gordon v. McGinnis, 92 Mich. 13 — Osterhout &c. Lumber Co. v. 
 
 97. Eice, 93 Mich. 353; Johnson v. Wil- 
 
 9— rifth N. Bank v. Pierce, 117 son, 111 Mich. 114. 
 
 Mich. 376. 14^-Strickland v. Barber, 76 Mich. 
 
 10 — ^Harrington v. Brewer, 56 310. 
 
 Mich. 301. 15— McLeod v. Free, 96 Mich. 57. 
 
 11 — Metropolitan Lumber Co. v. 16 — Eberle v. Heaton, 124 Mich. 
 
 Lake Superior Ship &c Canal Co., 205. 
 
 101 Mich. 577. 17— Marine Sav. Bank v. Norton, 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 645 
 
 § 590. A mistake of law when standing alone affords 
 no ground for relief in equity/* but when combined with 
 fraudulent representations as to the law made by a per- 
 son with whom complainant had confidential relations, 
 or with mistake in matters of fact or with feebleness of 
 mind caxised by sickness, equity will relieve.^* 
 
 Mutuality in a mistake as to the law wiU not aid the 
 equities that may have arisen from such mistake.^" 
 
 A voluntary conveyance made without any valuable 
 consideration cannot be corrected in equity without the 
 consent of aU the parties thereto.^^ 
 
 § 591. One who has no equitable or legal rights under 
 a deed has no equity to have it reformed.^ ^ 
 
 To establish the right to obtain reformation of a deed 
 f qr mistake, the mistake must have been mutual, the error 
 must have been on both sides.^^ 
 
 § 592. In order to sustain a bill for the reformation 
 of a deed or other written instrument the mistake must be 
 admitted or distinctly and conclusively proved.^* 
 
 § 593. Defences. A judgment for damages for breach 
 of warranty of seizin against complainant is not a bar to 
 a suit to reform the deed-*' 
 
 160 Mich. 614; Drucke v. Baylan, 23 — Tripp v. Hasceig, 20 Mich. 
 
 160 Mich. 522. 254; Case v. Peters, 20 Mich. 298; 
 
 18 — Martin v. Hamlin, 18 Mich. Ludington v. Ford, 33 Mich. 123; 
 
 354; Lapp v. Lapp, 43 Mich. 287; Burns v. Caskey, 100 Mich. 94. 
 
 Tompkins v. Hollister, 60 Mich. 470; 24 — Case v. Peters, 20 Mich. 298; 
 
 Hughes V. Pealer, 80 Mich. 540. Shepard v. Shepard, 36 Mich. 173; 
 
 19 — Tompkins v. Hollister, 60 Vary v. Shea, 36 Mich. 388; Eey- 
 
 Mieh. 470; Taberv. Mich. Mut. Life nolds v. Campbell, 45 Mich. 529; 
 
 Ins. Co., 44 Mich. 324; Eenard v. Bates v. Bates, 56 Mich. 405; Burns 
 
 Clink, 91 Mich. 1; MoGraw v. Muma, v. Caskey, 100 Mich. 94; Kinyon v. 
 
 164 Mich. 117. Cunningham, 146 Mich. 430; Pas- 
 
 20 — Macklem v. Bacon, 57 Mich, torino v. Palmer, 163 Mich. 265; 
 
 334. Dilley v. Longwill, 163 Mich. 439; 
 
 21— Eedding \. Eozell, 59 Mich. McArthur v. Newhall, 165 Mich. 284. 
 
 476; Shears v. Westover, 110 Mich. 25— Bush v. Merriman, 87 Mich. 
 
 50.5. 260. 
 
 22 — Eowley v. TowBley, 53 Mich. 
 329; Ballentine v. Clark, 38 Mich. 
 395. 
 
646 stage's MICHIGAN CHANCEBY PBACTICB AKT) FOBMS 
 
 It is no defence that the title to land conveyed to de- 
 fendant in exchange for the deed failed.^® 
 
 Where a mortgage intended to cover 160 acres by mis- 
 take covered only 40 and the grantees of the mortgagor 
 bought with the understanding that it covered the whole 
 160 and after discovery of the mistake sold a part of the 
 land omitted to a grantee who had notice of the mistake, 
 none of the several grantees could make a defence under 
 those facts.*^ 
 
 So a quit claim of the land intended to be described in 
 an erroneous deed, made to a third person with the intent 
 to prevent a correction of the deed will not bar such cor- 
 rection.^* 
 
 Where the parties have not acted on the contract and 
 no equities have arisen, it will not be reformed.^* 
 
 § 594. Equity will in some cases reform a contract 
 where there was no actual mistake of fact at the time of 
 making it, as where a deed was made by the aged parents 
 of the defendants of a farm to their son and in considera- 
 tion thereof the son executed a contract to care for ^nd 
 support the parents at his home during their lives, and 
 afterwards altercations and disputes occurred between 
 the parents and the son and his family causing estrange- 
 ment and hostility so that they could not live together in 
 peace, on a bill by the parents for a recission of the deed 
 that prayer was denied but the court reformed the con- 
 tract by awarding payment of an annuity in semi-annual 
 payments.^" 
 
 BILL TO CORRECT A MISTAKE IN DEED. 
 (Address and introduction.) 
 
 1. That on or about the ........ day of , 19 . , , 
 
 your orator purchased of and from one C. D., then of , 
 
 who was then living but is since deceased, all that certain piece 
 and parcel of land, situate in the township of , in the 
 
 26 — Farmers, etc. Bank v. Detroit, 29 — Climer v. Hovey, 15 Mich. 18. 
 
 12 Mich. 445. 30— Miner v. Miner, 91 Mich. 44. 
 
 27 — Ford i. Daniels, 71 Mich. 77. 
 
 28 — Tabor y. Shattuck, 55 Mich. 
 370. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 647 
 
 eoanty of , and State of Michigan, known and described 
 
 as (insert description of land), for which your orator then paid 
 
 the said C. D. the sum of dollars, that being the full 
 
 agreed purchase price thereof. 
 
 2. And that on the day and year last aforesaid, in pursuance 
 of such purchase by your orator, and in consideration of the pur- 
 chase price aforesaid, the said C. D. did execute under his hand 
 and seal, acknowledge and deliver to your orator, a warranty 
 deed of conveyance, intending thereby to convey to your orator 
 the land and premises above mentioned and described ; but by a 
 mistake of the scrivener who prepared the said deed, the land 
 and premises were described therein as (insert here the incorrect 
 description), instead of the (insert here the correct description) 
 thereof, as was mutually intended by both your orator and the 
 said C. B., and that the said C. B. delivered the said deed and 
 your orator accepted the same in ignorance of the said mistake, 
 and that both of them then believed that by its terms it con- 
 veyed the said land so purchased and herein first described to 
 
 your orator ; and that afterwards and on or about the 
 
 day of , 19 . . , your orator beipg still in ignorance of 
 
 the said mistake in the description of the said land, caused the 
 said deed to be recorded in the office of the register of degds of 
 
 the said county of , in Ijber of deeds, at page 
 
 , as by the said deed now in possession of your orator, 
 
 and by the said record now remaining in the said register's office, 
 whereto reference is prayed, will fully appear. 
 
 3. And that soon after the execution and delivery of the 
 
 said deed and on or about the day of , 19 ^ . , 
 
 your orator was by the said Q. D. let into possession of the said 
 land so purchased and intended to be conveyed^ and your orator 
 has continued in the actual possessioii and occupation theireof 
 ever since that time and still is in such possession and occupation. 
 
 4. And that afterwards and on or about the day 
 
 of , 19. ., the said C. D., then being a widower, departed 
 
 this life intestate, leaving D. D., B. D., and F. D., his children, 
 and only heirs at law, and that the said E. D. and F, T). are 
 minors under the age of twenty-one years, being of the ages of 
 about years and years respectively, and in- 
 capable of joining in a conveyance to correct the said mistake in 
 the description of the land in the said deed. 
 
 5. And that youf orator did not discover the said mistake 
 until after the death of the said C. D., nor until a very short 
 
 time since, that is to say, until about the day of 
 
 , 19 . . r and that from the time of his purchase and the 
 
 execution and delivery of the said deed until the said lagt men- 
 tioned day, your orator rested in the belief that tte said deed 
 
648 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 contained a correct description of the said land which he pur- 
 chased of and from the said CD. as aforesaid. 
 
 6. And that by reason of the said mistake in the description 
 of the land in the said deed, your orator is unable to sell or dis- 
 pose of the said land or any part thereof as he might desire to 
 do, and his title thereto appears by the records to be defective. 
 
 I. In consideration whereof and to the end therefore, that 
 the said D. D., B. D., and F. D., the defendants hereto, may 
 without oath, all ansiwer upon oath being hereby waived, full, 
 true, direct and perfect answer make to all and singular the mat- 
 tei« hereinbefore stated and charged. 
 
 II. And that the said error and mistake in the said deed may 
 be corrected, and the said deed reformed, so as truly to describe 
 the said land and premises intended to have been thereby con- 
 veyed. 
 
 III. And that your orator may be decreed to be the owner of 
 the said land intended to have been conveyed by the said deed, 
 and that your orator have- leaYC to cause such decree to be re- 
 corded in the office of the register of deeds of said county 
 of 
 
 IV. And that your orator may have such further relief or 
 such other relief in the premises as sihall be agreeable to equity 
 and good conscience. 
 
 And your orator will ever pray, etc 
 
 A. B. 
 (Signature of Solicitor and of Counsel.) 
 
 Removing Olouds from Title to Land and Quieting Title 
 
 Thereto. 
 
 § 595. Courts of equityhave inherent jurisdiction inde- 
 pendent of any statuta to set aside deeds and other legal 
 instruments in writing which constitute a cloud upon the 
 title of the lawful owner of real estate and to require 
 them to be delivered up to be cancelled/ and also to cor- 
 rect mistakes in deeds or other instruments,^ and to re- 
 store lost deeds,^ and to cancel a deed or other instrument 
 
 1— Rowland v. Doty, Harr. Ch. 7; 419; Day v. Davey, 132 Mich. 173. 
 
 Cleland v. Casgrain, 92 Mich. 149; 2 — Salisbury v. Miller, 14 Mieh. 
 
 Nisbett V. Milner, 159 MlcK 837; 160. 
 
 King V. Carpenter, 37 Mich. 363; 3-^Blaekford v. Olmstead, 140 
 
 Casgrain v. Hjimniond, 134 Mich. Mich. 583. 
 
stage's MICHIGAN CHANCEBY PEACTIOB AND FOBMS 649 
 
 affecting land obtained by fraud,* and to cancel a satisfied 
 security.^ 
 
 § 596. A bill to remove a cloud from the title of tbe 
 complainant to his land should set forth the complain- 
 ant's title as, if, he prevails, he must do so on the strength 
 of his own title and not alone on the weakness of that 
 of his adversary.® 
 
 He must also show that he is in the actual or con- 
 structive possession of the land,^ and that the defendant 
 is not in possession thereof,* as well as the instrument 
 held by the defendant which constitutes the cloud and 
 the claim made by the defendant by color thereof and 
 the facts which show that such claim is without merit." 
 
 The bill should also state that the defendant has not 
 commenced any action at law to assert hig pretended 
 claim, or if he has, that it has been discontinued, and 
 should pray for the cancellation of the instrument form- 
 ing the cloud and that it be decreed to be void. 
 
 A bill to correct a mistake in a deed and to quiet title 
 should show that the mistake was mutual and that the 
 parties have acted upon the deed as if no mistake had 
 been made.^" It should also set forth by whom the mis- 
 take was made, when it was discovered, and why it has 
 not been corrected by the parties, as well as stating clearly 
 what the mistake was and the effect of it, 
 
 § 597. Equity will entertain a bill to restore and estab- 
 lish a lost deed and to quiet the title to the land thereby 
 conveyed." In a bill to establish a lost deed made by a 
 
 4 — ^King V. Carpenter, 37 Mich. 8 — Seymour v. Eood, 121 Mich. 
 
 363; Gragg v. Maynard, 164 Mich. 173; Miacotten v. HellenthaJi, 162 
 
 535; Blount v. Eames, 150 Mich. Mich. 4D'2. 
 
 35. 9 — Triangle Land Co. v. Neasen, 
 
 5 — Jones v. Smith, 22 Mich. 360; 155 Mich. 463; Jenks v. Hathaway, 
 
 Ward V. Munson, 105 Mich. 647. 48 Mich. 536. 
 
 € — Malliatt v. Vogel, 125 Mich. 10 — Banks v. Allen, 127 Mich. 89 ; 
 
 291; Vincent v. Evans, 165 Mich. Shouler v. Bonander, 80 Mich. 531. 
 
 695. ll^Eouleau v. Stradley, 126 Mich. 
 
 7 — ^Woods V. Monroe, 17 Mich. 681; Tabor v. Shattuck, 55 Mich. 
 
 238 ; Moody v. Macomber, 158 Mich. 370. 
 209. 
 
650 stage's michigak chanoeey peaoticb and foems 
 
 person since deceased, all the heirs of the deceased must 
 he made parties.^ ^ 
 
 § 598. In a bill to cancel a deed obtained by fraud all 
 the facts and circumstances constituting the evidence of 
 the fraud should not be detailed, but the substance of the 
 transaction and its result together with facts and tran- 
 sactions from which fraud is faijly inferable should be 
 stated, a general allegation that a deed was fraudulently 
 obtained or given would be insufficient.^* So where a 
 cloud on complainant's title was charged to have been 
 caused by a fraudulent deed the bill was criticised be- 
 cause it did not show whether the deed was alleged to 
 have been forged or the signature obtained by fraud prac- 
 ticed on the grantor." 
 
 §599. It is provided by statute that "Any person 
 claiming the legal or equitable title to lands or claiming 
 a title to lands through tax deed or deeds, whether in 
 possession or not, may institute a suit in chancery against 
 any other person not in possession setting up a claim of 
 title thereto in opposition to the title claimed by the com- 
 plainant, or who is named as grantee in any deed or mort- 
 gage of said lands of record in the county in which said 
 lands lie, or any other instrument or paper purporting to 
 convey such lands or to claim a lien upon said lands either 
 by way of mortgage or otherwise; and if the complain- 
 ant shall establish his title to said lands the defendant 
 shall be decreed to release to the complainant all claini 
 thereto and to pay costs unless the defendant shall by his 
 answer disclaim all title and claim to such lands and give 
 a release to the complainant, in which case costs shall be 
 awarded as the court may deem just. ' ' ^^ 
 
 This statute in its original form was in the code of 1833 
 and it then limited the right to a party having the legal 
 
 12— Piilezer v. Kuchg,rzyk, 116 14— Foster v. Hill, 55 Mich. B40. 
 
 Mich. 92. 15— C. L, Sec. 448, as am. by Act 
 
 13 — McMahon v. Eooney, 93 Mich. No. 236 Put;. Acts of 1909, p. 44L 
 390; Merritt v. Allen, 38 Mich. 487; 
 Wilson V. Bggleston, 27 Mich, 237. 
 
stage's MICHIGAN CHANCEEY PEACTICB AND FOBMS 651 
 
 title and being in possession of the land, it was enlarged 
 in the Revised Statutes of 1848 to give the right to own- 
 ers in possession of the equitable title. Until the amend- 
 ment of 1887, the right to bring such a suit was limited 
 to persons in possession of the lands," that amendment 
 extended the right to owners of the legal or equitable title 
 whether in possession or not against aU persons not in 
 possession claiming adversely to the complainant." This 
 remained unchanged until the amendment of 1909 en- 
 larged it to its present scope as above stated. 
 
 § 600. This statute is regarded as extending the power 
 and jurisdiction of the court and not as limiting or re- 
 straining them as to matter cognizable without the inter- 
 vention of any statute.*^ 
 
 § 601. The complainant must by his bill show his own 
 title and substantiate it by the proof, as if he prevails it 
 must be on the strength of his own title and if he. has 
 none he is not in a position to attack that set up by 
 another even if he be in possession.^* If he claims by 
 virtue of a, tax deed be must show the validity of the pro- 
 ceedings on which the deed is based and the burden of 
 proof is on him to show this the deed itself is not even 
 prima facie evidence of title under the law as it now ex- 
 ists.''" Adver-se possession by complainants for the 
 Statutory period of fifteen years is a legal title sufficient 
 to support the suit.^^ Adverse possession need not be 
 based on color of title, it may become perfect although 
 
 16 — ^Holbrook v. Winsor, 23 Mich. 20 — Morrison v. Semer, 164 Mich. 
 
 394; Eaton v. Trowbridge, 38 Mich. 208; Vincent v. Evans, 165 Mich. 
 
 454. 695; Morse v. Aui Gen., 143 Mich. 
 
 17— See C. L., Sec. 448, 1 C. L., p. 610; Dawson v. Peter, 119 Mich. 
 
 256, 274; Taylor v. Deveaux, 100 Mioh. 
 
 18 — Cleland v. Casgrain, 92 Mich. 681. 
 
 149; Blackford v. Ohnstead, 140 21 — Vier v. Detroit, 111 Mich. 
 
 Mich. 583. 646. 
 
 19— Malliott V. Vogel, 125 Mich. 
 291 ; Horton v. Helmholtz, 149 Mioh. 
 227. 
 
652 stage's MICHIGAN CHANCEEY PEAOTIOE AND FOBMS 
 
 the possessor never had a shadow of title.'^'' An equitable 
 title is sufficient.^^ 
 
 The bill must also show that the defendant is not in 
 possession, as if the defendant is in possession, equity 
 has no jurisdiction, the remedy being at law,^* but where 
 a defendant claiming under a void tax title surreptitiously 
 entered on the land for the mere purpose of removing 
 timber therefrom this was not such a possession as to 
 preclude the maintenance of a suit to clear the title and 
 restrain the removal of the timber.^^ Where the defend- 
 ant is forcibly dispossessed by the complainant for the 
 purpose of obtaining a ground for the commeiacement of 
 the suit the bill will be dismissed,'*" although wherie such 
 possession is obtained by lawful ineans without force, 
 fraud or trickery the suit will be sustained,^'' but not 
 when obtained by wrongful conduct or sharp practice.^* 
 
 § 602. A bill will lie to quiet the title to land in com- 
 plainant's possession up to a disputed boundary line 
 which the defendant, the adjoining owner, claims should 
 be moved further over upon complainant 's land.^* 
 
 Also to remove a Iqvy upon a homestead ^ and such a 
 bill may be maintained by the wife of the debtor ^^ the 
 wife having the same right to protect the homestead as 
 the husband.^2 
 
 § 603. When a bill is filfed to vacate a tax deed the 
 burden is on the complainant to show by his bill as well 
 
 22 — Campau v. Lafferty, 50 Mich. 27 — Lillie v. Snow, llg Midi. 611. 
 
 114. 28— Stetson v. Cook, 39 Mich. 750; 
 
 28 — -Horton v. Helmholtz, 149 Watson v. I4on Brewing Co., 61 
 
 Mich. 227. Mich. 595; Wakefield v. Mining Co., 
 
 24 — Hoffman v. Beard, 22 Mich. 85 Mich. 605. 
 
 59; Miscotton v. Hellenthal, 162 29— F. H. Wolf Brick Co. v. 
 
 Mich. 402; Warren v. Warren, 151 Lonyo, 132 Mioh. 162. 
 
 Mich. 95; Tinker v. Piper, 149 Mich. 30— Hitchcock v, Mianer, 111 Mieh, 
 
 335; Dolan v. Smith, 147 Mich. 276; 80; Myers v. Weaver, 101 Mieh. 477; 
 
 Seymour v. Eood, 121 Mich. 173. Lozo v. Sutherland, 38 Mich. 168. 
 
 25 — Case V. Skinner, 121 Mich. 31 — ^Burkhardt v. James Walker & 
 
 206.. Son, 132 Mich. 93. 
 
 26 — Cro8l)y v. Hutchinson, 126 32 — Armitage v. Toll, 64 Mich. 
 
 Mich. 56; Hubert v. Brayton, 82 412. 
 Mich. 632. 
 
stage's MICHIGAN CHAKCEBY PEACTICE AND FORMS 653 
 
 as by the proof wherein the invalidity consists.^* In such 
 a bill the auditor general is a proper party when his 
 action is complained of as illegal.^* In such a suit where 
 the tax title of the defendant is found defective by rea- 
 son of a technical defect in the notice served on the own- 
 ers the court may require the complainant to re-imburse 
 the defendant for the taxes paid by him in good faith.'" 
 
 The holder of a tax deed regularly obtained cannot 
 maintain a bill to quiet his title against the original owner 
 unless it appears that the defendant is setting up some 
 adverse claim,*^ 
 
 On a bUl ta quiet title founded on a tax deed against the 
 owner of the original title where the defendant is found 
 to have been the victim of an honest mistake the court 
 may decree that the defendant may redeem by payment 
 to the complainant of the amount he has paid for the land 
 with interest and penalty and that on such payment the 
 complainant quit claim the land to him although the de- 
 fendant has not prayed any affirmative relief in his 
 answer and has not filed a cross bill.^^ 
 
 § 605. A biU may be filed by an heir not in possession 
 to set aside a deed in trust which is void as prohibited 
 by the statute against perpetuities.^* 
 
 When a defendant was in possessio-n of land under an 
 agreement with the owner ta pay the taxes and without 
 the owners, knowledge fraudulently obtained tax titles in 
 his own name the owner maintained a bill to vacate and 
 cancel them.^* 
 
 § 606. A bill to quiet title will not lie to remove a eloud 
 caused by an irregular levy of an execution on land, the 
 
 3»— Morrison v. Semer, 164 Mich. 155 Micb. 463 ; Steyskal v. Bedford, 
 
 20». ■ 166 Mich. 365; Flint Land Co. v. 
 
 34 — Horton v. Helmholtz, 149 Fechtman, 140 Mich. 341. 
 
 Mici. 22?. 37 — Miller v. Steele, 146 Mich. 
 
 35— G. F. Sanborn Co. v. Alston, 123. 
 
 15S Micth. 456; Hotton v. FaiUng, 38— CUsgrain v. Hammond, 134 
 
 155 Mieh. 502. Mfoh. 419. 
 
 36— Triangle Land Co. v. Nessen, 39— Day v. Davey, 132 Mich. 173. 
 
654 stage's MICHIGAN CBANCEEY PEACTICE AND FOBMS 
 
 remedy being an application to the court wherein the 
 judgment was rendered.*" 
 
 Where the defendant's ancestor had commenced an 
 ejectment suit against complainant *s ancestor twenty- 
 eight years before the complainant filed his bill, and after 
 a verdict for complainant's ancestor an order for a new 
 trial was taken twenty-four years before the biU was 
 filed, and nothing further was done, both ancestors hav- 
 ing died over fifteen years before; held that demurrer 
 on the ground of an ejectment suit being pending could 
 not be sustained.*' 
 
 §607. A bill to quiet title to an entire tract of land 
 against a defendant out of possession who claims the en- 
 tire tract, may include small parcels of the tract in pos- 
 session of parties holding under contracts to purchase 
 from the complainant as well as the remainder of the 
 tract in complainant's actual possession notwithstanding 
 the fact that the defendant has commenced ian ejectment 
 suit against the parties holding by contract, which suit 
 is still pending in a cage where a verdict for the defendant 
 in the ejectment suit will not dispose of the entire con- 
 troversy and might still leave the title in dispute.*^ 
 
 §608. A cloud upon title is something which consti- 
 tutes an apparent incumbrance upon it, or an apparent 
 defect in it ; Something that shows prima facie some right 
 of a third party either to the whole or some interest in 
 it,** It is created by any instrument which purports by 
 its terms to be a conveyance from the original source of 
 title to an adverse claimant if extrinsic evidence is needed 
 to show the invalidity of the instrument.** The cloud 
 rQsts upon the title sq long as it is questionable whether 
 complainant or defendant has the better title.* ^ 
 
 40--^Bhode v. Haasler, 113 Mich, troit v. Martin, 34 Mich. 170 ; Whit- 
 56. ney v. Port Huron, 88 Mich. 268. 
 
 41-^Conley tt. Sinclair, 163 Mich. 44 — Stoddar(i v. Preseott, 58 Mich. 
 
 306. 542. 
 
 42 — Eaton v. Trowbridge, 38 45 — Eaton v. Trowbridge, 88 Mich. 
 
 Mich. 454. 454. 
 
 43 — Cooley on Taxation 342; De- 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOEMS 655 
 
 When a tax is made a lien on the premises assessed, if 
 illegal, it constitutes a cloud which equity will remove.*® 
 
 If a judgment creditor who has caused the equitable 
 interest of Mb debtor in land to be sold on execution, 
 neglect for over a year to take proceedings to ascertain 
 and determine the interest of the debtor, a bill will be 
 sustained to vacate the levy and sale,*'^ and such a bill 
 may be maintained by the legal owner.*® 
 
 § 609. A bill in equity purporting to be to quiet title, 
 cannot be made to take the place of a proceeding at law 
 to obtain possession of land.** Where a remedy at law 
 to determine the title exists a bill in equity will not lie.^" 
 
 A collateral attack for irregularity on a decree of sale 
 for delinquent taxes cannot be made by a bill to quiet 
 title when the court which made the decree for the tax 
 sale had jurisdiction of the subject matter and of the 
 parties.^^ 
 
 A bill to quiet title cannot be sustained where it appears 
 that the alleged cloud is supported by an equitable in- 
 terest in defendant.*^ 
 
 § 610. Cross Bill. A defendant may assert his legal 
 title or interest by cross bill or answer in the nature of 
 a cross bill, and have it determined by the decree.^* In 
 such a case, where defendant prevails on his cross bill 
 and improvements have been made in good faith by the 
 complainant while in possession, the value of the land 
 as enhanced by the improvements as weU as what its 
 value would have been if the improvements had not been 
 
 46— Scofield v. Lansing, 17 Mich. 322; Dolph v. Norton, 158 Mich. 
 
 437; Frost v. Leatherman, 55 Mich. 417; Blackwood v. Van Wert, 11 
 
 33; Thomas V. Gain, 35 Mich. 155. Mich. 252; Moran v. Palmer, 13 
 
 47_C. L., Sec. 9167; Gordon v. Mich. 368. 
 
 Tp. of Burleigh, 153 Mich. 493; 51— Hoffman v. FUnt Land Co., 
 
 Kunze v. Soloman, 126 Mich. 290. 144 Mich. 564; Schaaf v. O'Connor, 
 
 48— Edsell V. Nevins, 80 Mich. 146. 146 Mich. 504. 
 
 49— Torrent v. Booming Co., 22 52— Torrent v. Booming Co., 22 
 
 Mich. 354; Chandler v. Graham, 123 Mich. 21. 
 
 j^gjj 327. 53— McKenzie v. A. P. Cook Co, 
 
 50_Deer Lake Co. v. Iron Co., 83 113 Mich. 452. 
 Mich. 11; Tabor v. Cook, 15 Mich. 
 
666 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 made must be ascertained and the defendant will have 
 his election to take the land and pay for the increased 
 value of the land caused by the improvements, or to 
 abandon the land to complainant on being paid the value 
 which it would have had- without the improvements.^* 
 
 On a bill being filed to quiet title derived from a tax 
 deed, the defendant owning the original title may file 
 his answer in the nature of a eross bill to redeem from the 
 tax sale and quiet his own title.®^ 
 
 § 611. While the bill must state sufficient facts to show 
 that the complainant has prima facie a. good title and that 
 the defendant asserts a claim which is a cloud thereon 
 the bill need not state the grounds on which the defendant 
 asserts the validity of his claim, as such grounds cannot 
 be presumed to be known to the complainant.^® 
 
 A new reason for vacating a levy and sheriff's deed 
 may be'added to the bill by amendment as such an amend- 
 ment does not introduce a new cause of action.^'' 
 
 § 612. All persons claiming an interest in the lands 
 from the same source as the complainant or defendant 
 should be made parties.^* 
 
 All the heirs of a decedent are necessary parties to a 
 bill to establish a deed claimed to have been executed by 
 him in his lifetime.^" 
 
 §^613. Unknown Claimants. It is provided by a re- 
 cent statute that "In all suits and proceedings in chan- 
 cery, if there be any person interested in the same or in 
 the subject matter involved therein, or whose name ap- 
 pears in the records of any public office as having at any 
 time claimed any fight, title, interest or estate in the sub- 
 ject matter of the suit or any portion thereof or any lien 
 or charge thereon without having conveyed or released 
 
 54 — McKenzie v. A. P. Cook Co., 57 — Kunze v. Solomon, 126 Mich. 
 
 113 Mich. 452. 290. 
 
 55 — Dolph y. Norton, 158 Mich. 58 — Vincent v. Evans, 165 Mich. 
 
 417. 695. 
 
 56— Holbrook v. Winsor, 23 Mich. 59— Pulezer v. Kueharzyk, 116 
 
 394. Mich. 92. 
 
stage's MICHIGAN CHANCEKY PRACTICE AND FOEMS 657 
 
 the same, or who might at any time under the provisions 
 or legal effect of any instrmnent of record, claim or be 
 entitled to claim any benefits thereunder and it is not 
 known whether such person be living or dead, or where 
 he may reside if living, or whether the title, interest, 
 claims, lien or possible right has been by him assigned to 
 any person or persons, or if dead, whether he has per- 
 sonal representatives or heirs living or where they or 
 some of them may reside, or whether such title, interest, 
 claims, lien or possible right has been disposed of by 
 will, it shall be lawful to make such person and every one 
 claiming under him defendants in such suit or proceeding 
 by naming such person and adding the words "or his 
 unknown heirs, devisees, legatees and assigns," which 
 shall include and be construed to include all persons 
 claiming in any manner under the person named as 
 originally interested in such subject matter. If the sub- 
 ject matter be real estate such addition shall include and 
 be construed to include all persons who might claim under 
 the person named any dower or homestead right, whether 
 the same shall be vested or inchoate at the time of be- 
 ginning such suit or proceedings. 
 
 Section 2. Proceedings under this act may be begun 
 by any person corporation, or partnership association 
 claiming any vested or contingent interest, or any estate 
 in possession, expectancy, reversion or remainder, in the 
 subject matter of the suit or any undivided part thereof 
 or any estate for years therein, or who has conveyed any 
 interest therein with covenants of title or warranty, and 
 may be brought against all persons, corporations or co- 
 partnership associations who may be in possession of the 
 subject matter, or who appear in any pubUc record or in 
 the record of any corporation to have or claim, or to have 
 had or claimed, any title or interest in, or lien upon, such 
 subject* matter without having conveyed or released the 
 same, including the. makers of any conveyance or release 
 which is uncertain or ambiguous in its terms or contains 
 any misdescription of the premises, or which is executed 
 in such a manner as to make its validity doubtful or un- 
 certain; also against all persons, corporations or partner- 
 
658 STAGE 'e MICHIGAN CHANCEKY PKACTICE AND FOBMS 
 
 ship associations who, by reason of any provision, limi- 
 tation, restriction, stipulation, charge, agreement or un- 
 certainty contained in any deed, plat, will or other instru- 
 ment of record, whether void upon its face or not, and 
 whether seemingly extinguished or made void by some 
 other title or by some statutory provision or not, might 
 be entitled in any contingency to enforce the same or 
 make any claim thereunder. If there is any class of per- 
 sons in whose favor any such provision, limitations, re- 
 strictions, stipulation, charge, agreement or imcertainty 
 might be enforced and such persons are unascertained or 
 not in being, they may be made defendants in any suit 
 or proceeding hereunder and bound by ?iny decree made 
 therein by being designated as all persons who are or 
 may become entitled to claim under the particular pro- 
 vision, limitation, restriction, stipulation, charge, agree- 
 ment or uncertainty set forth in the bill of complaint or 
 petition, which shall also be set forth at length in connec- 
 tion with every publication of every order by which, notice 
 is given to defendants in such class of the pendency of 
 the suit or proceeding. The court may require the mov- 
 ing party by amendment to describe any defendant or 
 defendants more particularly if in the opinion of the 
 court that should be done. 
 
 Section 3. Wherever suit is brought under the pro- 
 visions of this act, to quiet the title to real estate, no one 
 whose actual or possible title claim or lien is sought to be 
 removed or construed, and whose name appears of record 
 in some public office in connection therewith, may be made 
 defendant in accordance with the preceding sections, ex- 
 cept under his proper name or the name appeariiig in 
 such record, nor shall his unknown heirs, devises, legatees 
 and assigns be included as defendants therein unless fif- 
 teen years have elapsed since the recording of such title, 
 claim or lien. When any one against whom proceedings 
 under this act might otherwise be brought is known to be 
 dead, and some of the persons who might claim under him 
 and their places of residence are known, such of them as 
 q,rG known shall be named as defendants and brought be- 
 fore the court in the manner provided by law and all 
 
STAGE *S MICHIGAN CHANCERY PRACTICE AND FORMS 659 
 
 others who might claim under such deceased person may 
 be included as imknown defendants under the provisions 
 of this act. 
 
 Section 4. Any corporation or partnership associa- 
 tion, the existence of which has terminated from any 
 cause or which has no officer or agent in this state upon 
 whom process may be served at the time when any suit 
 is commenced under this act, may be made a defendant 
 in such suit and notified under the name by which it was 
 formerly known in law, and in and by the order of publi- 
 cation herein provided for, to appear and defend such 
 suit, and aU persons who were or are stockholders or 
 creditors of such corporation or partnership association 
 may appear and defend such suit in conformity with the 
 provisions of law as in other causes in chancery. 
 
 Section 5. Whenever defendants are named in any 
 suit or proceeding under this act as the unknown heirs, 
 devises, legatees and assigns of any person, or are in- 
 cluded in any class of unnamed persons, the bill of com- 
 plaint or petition shall be sworn to by the moving party, 
 his agent or solicitor, and shall state that the affiant does 
 not know and has been unable, after diligent search and 
 enquiry, to ascertain the names of the persons who are 
 induded as defendants therein without being named. 
 Upon the filing of such pleading an order shall be en- 
 tered by the circuit judge of the county in which such pro- 
 ceeding is pending or by a Circuit Court commissioner of 
 such county, for the appearance of every defendant in 
 such suit or proceeding who cannot by reason of being 
 unnamed or otherwise, be personally served with process, 
 on or before a future day specified in said order, but not 
 less than four months from its dg,te. If the suit is con- 
 cerning lands, every publication of such order shall be 
 followed by a description of such lands as described in 
 the bill of compla.int, and a statement that the suit in- 
 volves the title to such lands or is brought to quiet the 
 title thereto. 
 
 Section 6, All subsequent proceedings including pub- 
 lication of said order shall be taken in the same manner 
 and with the effect as though all defendants were named 
 
660 stage's MICHIGAN CHANCERY PRACTICE AND I-QEMS 
 
 therein by their proper names, and as to unnamed de- 
 fendants and such as are not known to be living shall be 
 in conformity with the statutes relating to defendants 
 who reside in another state."" Provided that a guardian 
 or guardian ad litem shall be appointed in accordance 
 with the rules and practice of the court in the case of in- 
 competent persons, to represent all unknown or unascer- 
 tained defendants, and all known defendants who are in- 
 fants or incompetent; provided further that the court 
 before whom said cause is heard on a proper showing by 
 affidavit that one or more of the defendants did not have 
 actual notice of said suit in time to appear and defend 
 the same, may in its discretion at any time not later than 
 three yeajs after the entry of the final decree, re-open 
 said cause and order a re-hearing as to the rights of such 
 defendant or defendants who shall serve a copy of such 
 affidavit and order and notice of all subsequent proceed- 
 ings in the case on the complainant or his solicitor, and 
 on all defendants who appeared on the original hearing 
 or their solicitors. 
 
 Section 7. Any person interested in his own right, or 
 as a stockholder or creditor of any defunct corporation 
 or partnership association, or as an heir devisee legatee 
 or assignee of some other person, or otherwise, in the sub- 
 ject matter of such suit or proceeding, may, upon filing 
 an affidavit in the office of the register in chancery of the 
 county where such suit or proceeding is pending, show- 
 ing his interest in such suit or proceeding, enter an order 
 of course therein that the same shall, so far as he is con- 
 cerned, proceed against him in Ms proper name as a co- 
 defendant with the other persons defendant therein as 
 herein provided, and upon service of a copy of said affi- 
 davit and order apd notice of the filing and entry thereof, 
 upon the complainant or his solicitor together with notice 
 of entry of the usual order of appearance said cause shall 
 from that time proceed as in all other causes in chancery, 
 but the right and interest of such person so appearing 
 shall be open to question upon the hearing of such cause 
 
 60— C. h., Sec. 486 et seq. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 661 
 
 or proceeding and in any other manner now provided by 
 law. 
 
 Section 8. On the hearing of any suit or proceeding 
 nnder this act, if the allegations of the bill or petition are 
 proven to the satisfaction of the court, and if it shall 
 appear that the claims o.r possible rights of the defend- 
 ants in the subject matter of the suit are of no validity and 
 ought to be barred, the court shall decree accordingly, or 
 if there are valid liens existing, or possible, uncertain or 
 doubtful couditions to be construed, it shall make a decree 
 determining their nature, validity or extent which shall 
 determine the rights of all parties complainant or de- 
 fendant and shall be effectual to exclude all parties to 
 such suit contrary to such determination ; and shall have 
 the same effect as a release by the holder thereof of every 
 actual or possible claim which such decree shall find to 
 be without validity, and if the effect of such decree is to 
 quiet the title to lands, or if it in any way concerned the 
 title to real estate a certified copy thereof may be re- 
 corded in the office of the register of deeds of any county 
 where said lands or any part of the same are situated. 
 The court may award costs in its discretion."^ 
 
 This statute does not in terms repeal the former statute 
 respecting unknown claimants,^^ but as it covers the en- 
 tire subject it entirely supersedes it. 
 
 BILL TO QUIET TITLE AND VACATE ILLEGAL TAX. 
 
 (Address and introduction.) 
 
 1. That your orator is the owner in his own right, in fee 
 simple, of that certain piece and parcel of land, situate, etc. 
 
 (describe land), and has been such owner for over 
 
 years now last past, and that the same is of the value of 
 
 dollars and upwards. 
 
 2. And that heretofore and during the year 19 . . , there was 
 illegally assessed upon the said land as a tax for (state whether 
 
 school, state, highway, drain, etc., fully), the sum of 
 
 dollars, which tax, if legal, would constitute a lien on the said 
 land, and your orator is advised and believes and charges the 
 truth to be that the said tax is ilegal and was illegally assessed 
 
 61— Act No. 123 Public Acts of 62— C. L., See. 11164. 
 
 1909 p. 280 et seq. 
 
662 stage's MICHIGAN CHANCEBY PEACTICB AND FOEMS 
 
 on the said land for the following reasons : (siate facts consti- 
 tuting illegality of tax.) 
 
 3. And that the said tax was spread upon the assessment and 
 
 tax rolls of the township of , wherein said land is situa- 
 
 ate, and C. D., the township treasurer of the said township, 
 afterwards and in the month of January, 19 . . , called upon your 
 orator to pay the same, and your orator then refused to pay the 
 said tax because of the illegality aforesaid and on or about the 
 day of , 19 • • J the said G. D., as such town- 
 ship treasurer, returned and reported the said tax as unpaid to 
 
 E. F., county treasurer of the said county of , as by 
 
 the records of the office of the said county treasurer, reference 
 b^ng thereto had, will fully appear. 
 
 4. That the said E. F., county treasurer as aforesaid, and 
 G. H., auditor general of the State of Michigan, assert and claim 
 that the said tax was lawfully assessed on the said land and is 
 a lien thereon, and propose and intend to take proceedings to ob- 
 tain a decree for the sale of the said land for the satisfaction of 
 the said tax, in the manner provided by law for the sale of the 
 said land for the satisfaction of the said tax, in the manner pro- 
 vided by law for the sale- of land for delinquent taxes; whereas 
 your orator insists and charges that the said tax was illegal and 
 invalid for the reasons aforesaid. 
 
 I. To the end therefore that the said B. F., county treasurer 
 
 of the county of , and G. H., auditor general of the 
 
 State of Michigan, the defendants hereto, may, without o^th, 
 answer upon oath being hereby waived, full, true, direct and per^ 
 feet answer make to all and singular the matters herein stated 
 and charged. 
 
 II. And that the said tax be decreed to be illegal and unlaw- 
 fully assessed on the said land, and to be null and void, and the 
 said land be forever discharged of and from the apparent lien 
 thereof. 
 
 III. And that the record of the assessment and levy of the 
 said tax be vacated, set aside and held for naught. 
 
 IV. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc. 
 
 A.B. 
 
 Solicitor for Complainant and of Counsel. 
 
 BILL TO QUIT TITLE AND VACATE. 
 FRAUDULENT DEED. 
 (Address and Introduction.) 
 
 1. That heretofore and on the day of , 
 
 19 . . , one E. F., late of , who is since deceased, was the 
 
stage's MICHIGAN CHANCEBT PBACTICE AND FOBMS 663 
 
 owner in his own right, in fee simple, of all that certain piece 
 and parcel of land, situate, etc. (describe the land), and being 
 such owner the said E. P„ did then by his deed of conveyance 
 of that date duly executed, acknowledged and delivered, for a 
 valuable consideration to him then in hand paid, convey the said 
 land and the whole thereof, in fee simple, to one G. H., of 
 
 , and that afterwards and on the day of 
 
 , the said G. H. by his deed of conveyance of that date, 
 
 duly executed, acknowledged and delivered, conveyed the said 
 land and the whole thereof, in fee simple, to one B. B., late of 
 
 , but since then deceased, who was the father of your 
 
 orator ; as by the said several deeds, when produced and proved, 
 will fully appear, and whereto reference is prayed. 
 
 2. And that afterwards and on or about the day of 
 
 , 19 . . , the said B. B. departed this life intestate, leaving 
 
 your orator his only child and heir at law, whereby your orator 
 became and stiU is the owner of the said land and of the whole 
 thereof, in fee simple, and that the same is of the value of 
 . .• dollars and upwards. 
 
 3. And that up to and at the time of the said conveyance 
 irom the said G. H. to the said B. B., the said land was vacant 
 and unoeupied, and that immediately after said last mentioned 
 conveyance, the said B. B. took actual possession thereof and com- 
 menced to improve the same, and erected a (dwelling house) and 
 other valuable buildings thereon, and that the said land or a 
 large part thereof is now in a full state of cultivation as a farm, 
 and that the said land and the whole thereof has been in the 
 actual use, occupation and possession of the said B. B. and of 
 your orator, ever since the said purchase thereof by the said 
 B. B. and the conveyance to him by the said G. H. 
 
 4. And that the said deed of conveyance from the said G. H. 
 to the said B. B. was duly recorded in the office of the register 
 
 of deeds of the said county of , on the day of 
 
 19. ., in liber of deeds, at page , to which rec- 
 ord your orator prays leave to refer, but that by some accident 
 or oversight on the part of the said G. H., the said deed of con- 
 veyance from the said E. F. to the said G. H. was not recorded 
 until the day of , 19 . . , on which last men- 
 tioned day the same was recorded in said register's office, in liber 
 
 .... of deeds, at page , to which record your orator 
 
 prays leave to refer. 
 
 5. And that after the death of the said E. F., and after the 
 recording qf the said deed of the said G. H. to the said B. B., and 
 after the said B. B. had taken possession of the said land, and 
 after the decease of the said B. B., and while he, your orator, was 
 in the actual possession and occupation thereof as aforesaid, but 
 before the said deed from the said E. F. to the said G. H. was re- 
 
664 stage's MICHIGAN CHANCEEY PBAOTICE AND FOBMS 
 
 corded, one J. K., the defendant hereto, discovered by some 
 means that there was no deed on record from the said E. F., who 
 was then deceased, of the said land, and that by reason thereof 
 there was a link wanting in the chain of title of your orator 
 thereto, and thereupon the said J. K., although well knowing 
 that your orator was in the actual possession and occupation of 
 the said land, claiming title thereto in fee sample, made applica- 
 tion to D. F. and C. F„ who are claimed to be the sons and only 
 heirs at law of the said B. F., who was then deceased, and by 
 some means unknown to your orator, procured a quit claim deed 
 of conveyance of the said land and premises and the whole there- 
 of, from the said D. P. and C. F., as the heirs at law of the said 
 B. F., deceased, to himself, the said J. K., bearing date the 
 
 day of 19 . . , and afterwards and on the day 
 
 of , 19. ., and before the time when the said deed of 
 
 conveyance from the said B. F. to the said G. H. was recorded as 
 ^.foresaid, the said J. K. caused the said quit claim deed to him 
 to be filed for record in the said register's ofi&ce, and to be re- 
 corded in lib«r of deeds, at page , to which 
 
 record reference is prayed, and by reason of the said deed being 
 first of record, and in order to annoy and vex your orator in the 
 premises, the said J. K. now sets up and claims title to the said 
 lands against your orator, but has not commenced and, as your 
 orator is informed and believes and charges the truth to be, does 
 not intend to commence any action at law against your orator 
 to try the title to the said land and premises. 
 
 6. And that by reason of the premises, the said deed of con- 
 veyance of the said D. F. and C. F. to the said J. K., having 
 been placed on record before the deed of the said E. F. to the 
 said G. H. was recorded, is a cloud upon the title of your orator 
 to the said land and premises and tends to depreciate the value 
 and to embarrass the sale thereof. 
 
 I. To the end, therefore, that the said J. K., the defendant 
 herein, may, without oath, answer on oath being hereby waived, 
 full, true, direct and perfect answer make to all and singular 
 the matters herein stated and charged. 
 
 II. And that the said deed of conveyance from the said D. F. 
 and C. F. to the said J. K. may be vacated and set aside and de- 
 creed to be null and void as against your orator, and that the 
 same conveys no right, title or interest in the said land or any 
 part thereof to the said J. K. 
 
 III. And that the said J. K. may be decreed to release to 
 your orator all right, title and interest which he claims, or ap- 
 pears to have in the said land by color of the said deed or other- 
 wise. 
 
 IV. And that the said J. K. may be decreed to have no right, 
 title or interest whatever in or to the said land or any part 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 665 
 
 thereof, and that your orator may have leave to cause such de- 
 cree to be recorded in the office of the said register of deeds. 
 
 V. And that your orator may have such further or other re- 
 lief in the premises as shall he agreeable to equity and good con- 
 science. 
 
 And you orator will ever pray, etc. 
 
 A. B. 
 (Signature of SoUdtor and of Counsel.) 
 
 CANCEL BE CORDED LAND CONTRACT 
 AFTER BREACH. 
 
 (Address and Introduction.) 
 
 1.^ That he is the owner in his own right, in fee sample, of 
 that certain piece or parcel of land, situate in the said county 
 
 of , and described as follows: (insert description), and 
 
 has been such OMTier for years now last past and that 
 
 value thereof is ov^r one hundred dollars and is dollars. 
 
 2. And that heretofore and on or about the day of 
 
 , A. D. 19 . . , while your orator was such owner as afore- 
 said, your orator made an agreement and contract in writing 
 with one C. D. for the sale of the said land and premises, in sub- 
 stance, tenor and effect as follows : (insert copy of contract.) 
 
 3. And that afterwards and on the day of , 
 
 A. D. 19. ., the said C. D. caused the said agreement in writing 
 to be recorded in the office of the register of deeds of the said 
 
 county of , in liber , of , at page 
 
 , as in and by the record thereof, now remaining in the 
 
 said register's office, and whereto reference is prayed, will fully 
 appear. 
 
 4. And that afterwards and on or about the day of 
 
 , A. D. 19. ., the said C. D., having made default in the 
 
 terms and conditions of the said agreement in writing and hav- 
 ing failed to make any payment thereon, your orator, as he was 
 lawfully authorized to do, declared the said contract to be void 
 by reason of such default, and resumed full possession of the 
 said land and of the whole thereof, and still is in possession 
 thereof. 
 
 5. And that your orator thereupon applied to the said C. D. 
 and requested him to execute a release in writing of the said 
 a^eement, in order that the same might be discharged of record, 
 and to surrender the said agreement to be cancelled; but so to 
 do the said C. D. hath hitherto refused and still doth refuse. 
 
 6. And that the said record of the said agreement constitutes 
 a cloud on the title of your orator to the said land and premises, 
 and has the effect to greatly depreciate the value thereof and to 
 prevent your orator from making sale of the same or of any part 
 thereof. 
 
666 stage's MICHIGAN OHANCEEY PEACTICB AND FOEMS 
 
 I. In consideration whereof your orator prays the aid of this 
 court in the premises, and that the said C. D., the defendant 
 herein, may if he can show why your orator should not have the 
 relief hereby prayed, without oath, all answer on oath, being 
 hereby waived, full, true, direct and perfect answer make to all 
 and singular the matters herein stated and charged. 
 
 II. And that the said agreement in writing -may be decreed 
 to be null and void and to be a cloud upon the-' title of your ora- 
 tor to the said land and to be delivered up to be cancelled. 
 
 III. And that the record of the said agreement now remain- 
 ing in the ofSee of the register of deeds aforesaid be discharged 
 and decreed to be null and void. 
 
 IV. And that your orator have leave to cause such decree to 
 be recorded in the office of the said register of deeds for the 
 county of 
 
 V. And that your orator may have such further or other re- 
 lief in the premises as shall be agreeable to equity and good con- 
 science. 
 
 And your orator will ever pray, etc. 
 
 X. T., A. B. 
 
 Solicitor for Complainant and of Counsel. 
 
 Bills For Specific Performance of Contracts. 
 
 § 614. All persons are bound to perform their part of 
 their lawful contracts, unless legally excused, and should 
 they fail in such performance equity will, in many cases, 
 enforce them to do so. 
 
 In order to justify the maintenance of a bill for the 
 specific performance of a contract, the contract must be 
 valid and legal and for a lawful consideration. If ilkgal, 
 against public policy or for an illegal consideration it will 
 not be enforced,^ nor will a contract which is void by the 
 statute of frauds.^ 
 
 § 615. The contract must be certain, one that is vague 
 and uncertain in its terms cannot be enforced.' It must 
 
 1— McClurken v. Dedriek, 33 III. 3— 'Millerd v. Eamsdell, Harr. Ch. 
 
 349; Anderson v. Carkins, 135 U. S. 873; McMurtrte v. Bennett, Harr. 
 
 483; Carley v. Gitchell, 105 Mjeh. Ch. 124; Bonier v. Caldwell, 8 Mich. 
 
 38. 463; Wilson v. Wilson, 6 Mich. 9; 
 
 2 — Wardell v. Williams, 62 Mich. Harrington v. Holeomb, 75 Mich. 
 
 50; Welch V. Whelpley, 62 Mich. 18; 535; Bumpus v. Bumpus, 53 Mich. 
 
 Maynard v. Brown, 41 Mich. 298; 346; Gates v. Gamble, 53 Mich. 181; 
 
 Peckham v. Balch, 49 Mich. 179. Green v. Begole, 70 Mich. 602; Day- 
 
stage's MICHIGAN CHANCERY PEACTICE AND TOBMB 667 
 
 be free from all taint of fraud or deceit ; * although where 
 a defendant had acquiesced in the contract for several 
 years after knowledge of the actual facts it was held to 
 be too late to claim deceit as a defence.® It must be 
 mutual, both parties being equally bound.® It must be 
 fair and just, free from fraud or surprise and such that 
 it will not be inequitable to enforce.'' And it must be such 
 a contract that performance thereof can be compelled by 
 the court, as where from the nature of the case the court 
 would be unable to compel specific performance it will 
 not attempt to do so.® 
 
 § 616. Where a defendant has by his own act put it 
 out of his power to perform the contract, the court will 
 leave the complainant to his remedy at law.** But where 
 the vendor of land has conveyed the land to a third per- 
 son who has knowledge of the equities of the vendee, such 
 grantee will be compelled to perform the contract." And 
 where a vendor is unable to make a good title to all the 
 land contracted for and can make title to only a part 
 thereof or to only an undivided interest in the whole, the 
 vendee may, at his option, have a specific performance 
 as to that part of the land, or to that interest therein, 
 which the vendor has power to convey on payment of a 
 proportionate part of the purchase price." 
 
 ton V. Stone, 111 Mich. 196; GifEord Munch v. Schabel, 37 Mich. 166; 
 
 V. Gifford, 100 Mich. 258 ; Brown v. Chambers v. Livermore, 15 Mich. 
 
 Swarthout, 134 Mich. 585. 381; Eames v. Eames, 16 Mich. 348. 
 
 4— Bust V. Conrad, 47 Mich. 449; 8— Pingle v. Connor, 66 Mich. 
 
 Coryell v. Hotchkiss, 131 Mich. 408, 187; Blanchard v. Detroit L. & L. 
 
 5— Eaymond v. Spitzer, 164 Mich. E. Co., 31 Mich. 43; Weed v, Tor- 
 
 4g2. rey, 2 Doug. Mich. 344; Bourget v. 
 
 6— Hawley v. Sheldon, Harr. Ch. Monroe, 58 Mich. 563; Buck v. 
 
 420; Warden v. WiUiams, 62 Mich. Smith, 29 Mich. 166; Green v. Bay 
 
 50; Maynard v. Brown, 41 Mich. City &c. E. Co., 158 Mich. 436; San- 
 
 298; Chapman v. Morgan, 55 Mich. quirisco v. Benedetti, 1 Barb. 315. 
 
 125; McDonald v. Bewick, 51 Mich. 9— Woolensak v. Briggs, 119 lU. 
 80. 
 
 459; Woolensak v. Ferris, 145 111. 1. 
 10 — Hains v. Hains, 69 Mich 
 
 11 — Covell V. Cole. 16 Mich. 
 
 Bathbone v. Groh, 137 Mich. 373-; Nelson v. Gibe, 162 Mich. 410. 
 
 7— Hicks V. Turck, 86 Mich. 214; 10— Hains v. Hains, 69 Mich. 581. 
 
 Monro v. Edwards, 86 Mich. 91; 11— Covell v. Cole. 16 Mich. 228; 
 
668 stage's MICHIGAN CHAN OBEY PBACTICE AND FOEMS 
 
 § 617. Specific performance will not be decreed of a 
 verbal voluntary promise to convey land on account of 
 natural love and affection without any valuable considera- 
 tion escept on the most conclusive proof of the gift and 
 of satisfactory reason why it was not consummated by 
 deed.^^ 
 
 Specific performance of a land contract will not be de- 
 creed in favor of the vendor unless he is able to give the 
 vendee a good title.^^ An agreenaent to refer matters in 
 dispute to arbitrators will not be enforced,'* although in 
 some cases the performance of the award of arbitrators 
 may be if the award be other than for the payment of 
 money.'^ 
 
 § 618. Notwithstanding the provision of the statute 
 of frauds requiring all contracts for the sale of lands to 
 be in writing a verbal agreement for such sale will be 
 decreed to be specifically performed in cases where the 
 purchaser has been put in possession of the land and has 
 in reliance on the contract done acts of ownership thereon 
 such as making improvements and the like with the ac- 
 quiescence of the vendor and has performed in whole or 
 in part, his part of the agreement and in case of part 
 performance, is ready and able to perform and has ten- 
 dered performance of the entire contract on his part,*'* 
 but part payment alone although followed by tender of 
 the balance is not sufficient, acts must be shown to have 
 
 12— Jones v. Tyler, 6 Mich. 364; Murphy v. Stever, 47 Mich. 522; 
 
 26 Am. & Eng. Encyc. Law (2 ed) Canham v. Mooney, 73 Mich. 184; 
 
 p. 116. Burch V. Hogge, Harr. Ch. 31 ; Welch 
 
 13— Powell T. Conant, 33 Mich. v. Whelpley, 62 Mich. 16; Eussell 
 
 396; Meshew v. Southworth, 133 v. Irwin, 94 Mich. 122; Taft v. 
 
 Mich. 335 ; Hull v. Glover, 126 111. Taft, 73 Mich. 502 ; Lloyd v. Hollen- 
 
 123. bach, 98 Mich. 203; Carr v. Mc- 
 
 14 — McGunn v. Hamblin, 29 Mich. Carthy, 70 Mich. 258 ; Kent Mfg. 
 
 476. Co. V. Long, 111 Mich. 384; Kelsey 
 
 15— Story v. E. Co., 24 Conn. 94; v. McDonald, 76 Mich. 188; Bush- 
 see Gibson v. Burrows, 41 Mich. 713. nell v. Eowland, 118 Mich. 618; Chi- 
 
 16 — Putnam v. Tinkler, 83 Mich. cago & E. Co. ■>. Lane, 150 Mich. 
 
 628; Weed v. Terry, 2 Doug. Mich. 162. 
 344; Twiss v. George, 33 Mich. 253; 
 
stage's MICHIGAN CHANCEEY PBACTlCE AND FORMS 669 
 
 been done unequivocally referring to the agreement with 
 a view to its performance." 
 
 § 619. Specific performance may be decreed : 
 By the vendee in a land contract against the owner.^* 
 By the vendor in a land contract against the vendee.^® 
 For the mutual exchange of lands where the deeds were 
 
 executed and deposited in escrow and all conditions prec- 
 edent were fulfilled.^* 
 For the performance of an ante-nuptial contract in 
 
 lieu of dower.^ 
 
 For the performance of an agreement for a sufficient 
 
 consideration to make provision by will for support of 
 
 complainant.^^ 
 
 For the conveyance of lands situated without the state, 
 
 the decree in such case operating on the person of the 
 
 defendant.-^ 
 
 For the giving of a mortgage to secure the support of 
 
 a mother.^* 
 
 Of an agreement by the vendor of a business not to en- 
 gage in a like business in the same locality for a certain 
 
 time.^' 
 
 Of an agreement by the owner of city lots which he had 
 
 for sale to impose certain building restrictions on the 
 
 purchasers.^® 
 
 Of an agreement for the support of his parent.*^ 
 
 The specific performance of a contract made by a father 
 
 with his son to convey land to the son may be enforced 
 
 17 — Scott V. Bush, 26 Mich. 418; 20— Bowman v. Gork, 106 Mich. 
 
 Sullivan v. Boss Estate, 98 Mich. 163. 
 
 570; Peckham v. Baleh, 49 Mich. 21 — Thompson v. Tucker-Osborn, 
 
 179. Ill Mich. 470. 
 
 18 — ^Bridgman v. Mclntire, 150 22— Kundinger v. Kundinger, 150 
 
 Mich. 78; Wilkinson v. Kneeland, Mich. 630. 
 
 125 Mich. 261; Bird v. Hall, 30 23— Hull v. Turck, 72 Mich. 311. 
 
 Mich. 374; Street v. Dow, Hair. Ch. 24— Fletcher v. Hagerman, 120 
 
 427; Monro v. Edwards, 86 Mich. Mich. 466. 
 
 91; Engel v. White, 104 Mich. 15. 25— Buckhout v. Witwer, 157 
 
 19_Story Eq. Jur., S«c. 789; Mc- Mich. 406. 
 
 Arthur v. Cheboygan, 156 Mich. 26— Stott v. Avery, 156 Mich. 674. 
 
 152 ; Loveridge v. Sehurtz, 111 Mich. 27— Hathaway v. Hathaway, 161 
 
 618. 
 
 Mich. 13. 
 
670 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 after the death of the son at the suit of the son's widow 
 and heirs, the son having performed his part of the con- 
 tract during his lif etime.^^ 
 
 A contrast to invent machinery, tools and devices for 
 a certain purpose for the benefit of complainant will be 
 enforced and the patents taken by the inventor in his own 
 name will be decreed to be assigned to the complainant.^* 
 
 A contract to transfer stock in return for services will 
 be enforced and the fact that the vendor stipulated that 
 if the vendee desired to sell, the vendor should have the 
 right to purchase in preference to all others is no 
 defence.*" 
 
 Also a contract made between husband and wife where- 
 by in consideration of the conveyance of land and the 
 assignment of a mortgage and the promise of a bequest 
 of a certain sum by will the wife agreed to release all 
 claims for dower and interest in her husband's Qstate 
 will be specifically enforced after the husband's death, he 
 having fully performed on his part.^^ 
 
 An agreement between husbancj and wife concerning 
 property made on the occasion of a separation will be 
 enforced.** 
 
 An agreement to convey to a party named as trustee 
 which did not name the cestui que trust is valid and will 
 be enforced in equity.** The holder of a mining lease 
 or option may have specific performance thereof.** 
 
 § 620. A party seeking the specific performance of a 
 contract must himself be without default. As a general 
 rule he must have fully performed his part of the con- 
 tract according to its terms, or must at least be able, 
 ready and willing to perform it and must offer to dQ so, 
 as it is elementary "that he who seeks equity must do 
 equity." 
 
 28^Briggs v. Briggs, 113 Mich. 32 — Sigler v. Sigler, 108 Mich. 
 
 371. 591. 
 
 29 — Lubricator Co. v. Lavigne, 161 33 — ^Bridgman v. Mclntlre, 150 
 
 Mich. 650. Mich. 78. - 
 
 30 — Johnston v. Fred Stevens & 34 — C. L., See. 435; Kust v. Con- 
 Co., 160 Mich. 247. rad, 47 Mieh. 449; Grummett v. 
 
 31— Daldn v. Dakin, 97 Mich. 284. Gingrass, 77 Mich. 369. 
 
stage's MICHIGAN CHANCERY PEAGTICE AND FOEMS 671 
 
 Thus the vendee in a land contract who asks a decree 
 for a deed must show that he has paid the purchase price, 
 or that he is able, ready and offering to pay it as the 
 court will not decree a conveyance without payment or 
 tender of the purchase money, ^^ and if the entire purchase 
 money has not been paid previous to filing the bill the bet- 
 ter practice is, to pay the money into court, but if the offer 
 to pay -is made in the bill a tender and payment into court 
 merely affects the question of costs.^® 
 
 §621. When the parties have not made or treated 
 time as of the essence of a land contract an offer to pay 
 the purchase money with interest is sufficient to sustain 
 a bill for specific performance although the money may 
 have been overdue for some considerable time.^^ Indeed 
 it is now settled that until the vendor has done some act 
 to terminate the contract such as notice that he claims 
 a forfeiture and a demand of possession or if the land be 
 vacant to taking of possession, the contract will still be 
 in force and the vendee entitled to specific performance 
 on payment of the purchase money and fulfilment of the 
 conditions;^*' so where after a considerable time has 
 elapsed since the default but the vendor intimated to com- 
 plainant, who declared his desire to purchase from the 
 vendee, that he would take the purchase money and give 
 a deed, and complainant thereupon purchased the ven- 
 dee's interest, specific performance was decreed.^® 
 
 The vendor on the other hand must show that he is 
 able to give a good title to the land which he contracts 
 to sell before he can maintain a bill for specific perform- 
 ance against his vendee,^" as the court will nof compel a 
 
 35— Allison v. Clark, Breese 348; 23; Michigan Land & Iron Co. v. 
 
 Doyle V. Teas, 4 Scanun 202; Mor- Thoney, 89 Mich. 226; Welch v. 
 
 ris V. Hoyt, 11 Mich. 8. Whelpley, 62 Mich. 16; Eobinson 
 
 36— Morris v. Hoyt, 11 Mich. 8. v. Trufant, 97 Mich. 410. 
 
 3T — ^Robinson v. Trufant, 97 Mich. 39— Hickman v. Chaney, 155 Mich. 
 
 410; Lambert v. Weber, 83 Mich. 217. 
 
 395. 40 — Ford v. Wright, 114 Mich. 
 
 38— Coming v. Loomis, 111 Mich. 122; Gray v. Hill, 105 Mich. 189. 
 
672 stage's MICHIGAN CHANCEKY PKACTICE AND FORMS 
 
 vendee to accept a doubtful title,*' and a vendee is en- 
 titled to a reasonable time and opportunity to examine 
 the title.*2 
 
 § 622. Where the complainant has not fully performed 
 on his part and the contract is such that the court cannot 
 compel performance by the complainant it will not decree 
 specific performance by the defendant.*^ 
 
 §623. Specific performance is not an absolute right 
 but rests in the sound discretion of the court to be 
 awarded only in cases in which it is found equitable.** It 
 will be denied without prejudice to a suit at law if com- 
 plainant can be amply recompensed in such a s.uit,*^ and 
 also when for any reason it would be inequitable to grant 
 it,**^ and where the complainant has unreasonably delayed 
 action for a long time.*'^ 
 
 If the contract be not clearly proved the bill will be 
 dismissed.*^ 
 
 § 624. The bill should set forth the contract, if in writ- 
 ing a copy should be annexed to or inserted in the bill, 
 together with all the necessary allegations as to execution, 
 delivery and legal effect. The performance in whole or in 
 part by complainant and an offer to fully perform if per- 
 formance be not already complete. If there has not been 
 a full or complete performance by the complainant and he 
 has beeii prevented by good cause from full performance 
 so as to be excused therefrom the circumstances should 
 
 41 — Walker v. Gillman, 127 Mich. 45 — Webster v. Gray, 37 Mich. 
 
 267; Maynard v. Davis, 127 Mich. 37. 
 
 571. 46— Bathbone v. Groh, 137 Mich. 
 
 42— Lamhiert v. Weber, 83 Mich. 373; Munch v. Shabel, 37 Mich. 66. 
 
 395. 47— Cathro v. Gray, 108 Mich. 
 
 43— Green v. Bay City & Pert 429. 
 
 Huron E. Co., 158 Mich. 436. 48 — Hammond v. Noble, 150 Mich. 
 
 44— Eust y. Conrad, 47 Mich. 449; 269; Smith v. Lull, 152 Mich. 126; 
 
 McMurtrie v. Bennett, Harr. Ch. Cross v. Griffin, 164 Mich. 17; Me- 
 
 124; Smith v. Lawrence, 15 Mich. shew v. Southworth, 133 Mich. 335; 
 
 499; Chapman v. Morgan, 55 Mich. Stever v. Torrent, 99 Mich. 68. 
 124; Chambers v. Livermore, 15 
 Mich. 381 ; Hicks v. Turck, 72 Mich. 
 811. 
 
stage's MICHIGAlT CHANCEEY PEACTICE AND FOEMS 673 
 
 be stated and it sliould also be sho-wn that no material 
 injury has been suffered by the other party by such non- 
 performance.^ » It should also show the failure of the 
 defendant to perform on his part and his ability to do so 
 and that full compensation cannot be obtained in a suit 
 at law. 
 
 If any assignment by the original contracting parties 
 has been made it should be stated and the assignee made 
 a party. 
 
 The general rule is that the only necessary parties to 
 the bill are the parties to the original contract and their 
 assignees.'*" 
 
 In a bill by the vendee for the specific performance of 
 a land contract where the vendor has made a conveyance 
 of the land to other parties such grantees should be made 
 parties to the bill,^^ and if such a vendor should die all 
 his heirs should be made parties to such a bill ^^ and as 
 in Michigan the executor or administrator is authorized 
 by statute to convey lands contracted to be sold by a de- 
 ceased person ^^ such executors or administrators should 
 be made parties as well as the heirs in such a case. 
 
 In a bill by a vendee .against a vendor of land attach- 
 ing creditors of the vendor and other lienors are proper 
 parties.** 
 
 Where the contract was made with a trustee the cestui 
 que trust is properly joined with the trustee as a co-com- 
 plainant,"'* and the bill should show a ratification by the 
 cestui que trust.®' 
 
 The assignee of the vendee in a land contract may have 
 the same remedy by a specific performance that his as- 
 signor would be entitled to."'' 
 
 49— Eussell v. Nester, 46 Mich. 53— C. L., Sec. 9366 as am. by 
 
 291. Act 43 Pub. Acts 1911. 
 
 50— Story Eq. PI. See. 177b. 54— Horton v. Hubbard, 83 Mich. 
 
 51— Daily v. Litchfield, 10 Mich. 123. 
 
 29; Morris v. Hoyt, 11 Mich. 9.; 55 — ^Bridgman v. Mclntire, 150 
 
 Bremer v. Dodge, 28 Mich. 359; Mich. 78. 
 
 Lambert v. Weber, 83 Mich. 395. 56— Ferris v. Snow, 124 Mich. 559. 
 
 52 — Story Eq. PI. Sec. 160 ; Mor- 57— Hickman v. Chaney, 155 Mich. 
 
 gan V. Morgan, 2 Wheat. 297; Bob- 217. 
 ert V. Marchant, 1 Hare 547. 
 
674 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 § 625. The vendor in a land contract may, in his bill 
 for specific performance against his vendee, pray for and 
 obtain a decree for a vendor's lien on the land,^* but he 
 cannot have a personal decree for the payment of the pur- 
 chase money against an assignee of the vendee unless 
 such assignee has assumed the payment thereof as a part 
 of the consideration for the assignment to him.°^ 
 
 In a bill by the vendor he may have a decree that con- 
 flicting claimants of the interest of the vendee be deter^ 
 mined.*" 
 
 A vendee may have specific performance of a lan^i con- 
 tract from a grantee of the vendor who "had notice of 
 the rights of the vendee.®^ 
 
 § 626. The bill may be filed with a double aspect, in 
 the alternative, for specific performance, or cancellation 
 of the contraot.^^ But the court may refuse to enforce 
 a contracrt which it would refuse to annul, leaving the par- 
 ties to their remedy at law.*^ 
 
 The proceedings are the same as in ordinary chancery 
 cases. 
 
 § 627. Laches of the complainant in neglecting to take 
 prompt measures may be a complete bar to relief, but no 
 laches can be imputed to a minor nor to an incompetent 
 person.** 
 
 Delay for an unreasonable time in accepting an offer 
 will prevent the party from insisting that such an ac- 
 ceptance creates a contract.'® 
 
 If delay in taking action is excused by the circum- 
 
 58 — Loveridge v. Sehurtz, 111 63— Munch v. Schabel, 37 Mich. 
 
 Mich. 618. 166. 
 
 59 — Champion v. Brown, 6 Johns. 64 — Draggoo v. Draggoo, 50 Mich. 
 
 Ch. 398; Eobinson v. Appleton, 124 573; Chandler v. McKinney, 6 
 
 111. 281. Mich, 322. 
 
 60 — Hanchett v. McQueen, 32 65— Bowen v. McCarthy, 85 Mich. 
 
 Mich. 22. ^ 26. 
 
 61 — ^Bigelow V. Eaynor, 1B4 Mich. 
 267. 
 
 62— Youall y. Align, 18 Mich. 107} 
 
 Climer v. Hovey, 15 Mich. 18. t 
 
stage's michigak chanoeky pkaotice and yOEMS 675 
 
 stances and is without injury to the other party it will be 
 no defence.®** 
 
 § 628. The complainant cannot obtain relief under any 
 different contract than that alleged in the bill.''^ 
 
 It is no defence that the price agreed to be paid is 
 inadequate when the value of the land has increased since 
 the contract was made and the agreed price was fair at 
 that time.** 
 
 A claim that the written contract did not embody the 
 entire agreement was not allowed as a defence when no 
 claim was made until after the lapse of eleven years from 
 the date of the written contract.^® 
 
 A contract to convey the hqmestead is void without the 
 signature of the wife, and does not become valid by the 
 subsequent death of the wife before that of her husband.'^" 
 
 Where the contracting party has deceased, his state- 
 ments during life as well as the conduct and acts of the 
 parties in reference to the land, are competent evidence 
 in support of a verbal contract.'^ 
 
 BILL FOR SPECIFIC PERFORMANCE OP CONTRACT. 
 
 (Address and Introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19 . . , your orator and one C. D. made and entered 
 
 into a certain agreement in writing, bearing date the same day 
 and year last aforesaid, and therein and thereby the said C. D. 
 agreed to sell and convey to your orator, and your orator agreed 
 to purchase of and from the said C. D. (state 'property agreed to 
 he sold and terms and conditions of contract in full), as in aiid 
 by the said agreement in writing, a duplicate whereof is in the 
 possession of your orator ready to be produced and proved, and 
 whereto reference is prayed, will fully appear. 
 
 2. And that your orator has always been and still is ready 
 and wiUing, and has oifered and now offers, fully and specifically 
 to perform the said agreement on his part, and has heretofore ten- 
 dered and offered the fuU amount of the purchase money to be 
 
 66 — Cotharin v. Knoeh, 99 Mich. 69 — Edwards v. Waghorn, 107 
 
 322. Mich. 679. 
 
 67— Meshew v. Southworth, 133 70— Engel v. White, 104 Mich. 
 
 Mich. 335. 15. 
 
 6&-^otharin v. Knoeh, 99 Mich. 71 — Kleinow v. Kleinow, 126 
 
 322. Mieh. 365. 
 
676 stage's MICHIGAN CHANCEKY PRACTICE AND FOBMS 
 
 paid by him to the said C. D. by the terms of the said agreement 
 in lawful money of the United States unto the said C. D. 
 
 3. And that your orator on such tender and offer has hereto- 
 fore often requested the said C. D. to perform his part of the said 
 agreement and to convey and deliver the said (describe property) 
 to your orator in pursuance of the terms thereof, but the said 
 C, D., although well able to perform his part of the said agree- 
 ment and to convey the said (describe property) to your orator, 
 has hitherto refused and still doth refuse on divers frivolous pre- 
 texts so to do, and your orator asks leave to bring into court here 
 the full amount of the said purchase money, being the sum of 
 
 dollars, and to deposit the same with the register of 
 
 this court, to be paid to the said C. D. on his performance of his 
 part of the said agreement. 
 Your orator therefore prays : 
 
 I. That the said C. D. the defendant hereto, may, without 
 oath, all answer upon oath being hereby waived, full, true, di- 
 rect and perfect answer make to all and singular the matters 
 herein stated and charged. 
 
 II. And that the saidC. D. be decreed specifically to per- 
 form the said agreement qn his part, and to convey to your ora- 
 tor (describe the property) in (ijie form of law, your orator be- 
 ing ready and willing and hereby offering to perform the said 
 contract fully and specifically on his part. 
 
 III. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Add verification if necessary.) 
 
 LAND CONTRACT. 
 (Address and Introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19. ., your orator and one C. D. made and entered 
 
 into a certain agreement and contract in writing for the sale by 
 the said C D. to your orator of that certain piece or parcel of 
 land, situate in (describe the land), upon the terms and condi- 
 tions and in tenor, substance and effect as follows : (set out con- 
 tract verbatim), as in and by the said contract in writing, one 
 duplicate whereof is now in the possession of your orator, when 
 produced and proved as this court shall direct, will fully appear, 
 and whereto reference is prayed. 
 
 2. And that your orator has in all respects carried out his 
 part of the said contract a.nd has done and performed all matters 
 and things therein contained by him to be done and performed, 
 and has made payments on the said purchase money therein men- 
 tioned and the interest thereon as follows: (state payments and 
 time of each) and that on the day of 19 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 677 
 
 there was owing on the said agreement by yonr orator to the said 
 
 C. D. for principal and interest the sum of dollars and 
 
 no more-, and that on the said last mentioned day at , in 
 
 the county of , in this state, your orator tendered and 
 
 offered to the said C. D. personaly the said sum of dol- 
 lars in lawful money of the United States, and then and there re- 
 quested the said C. D. to receive and accept the same in payment 
 of the amount due on the said contract and agreement. 
 
 3. And your orator then and there had and presented to the 
 said C. D. the draft of a deed of conveyance of the said land in 
 fee simple to your orator and then and there requested the said 
 C. D. to execute the same and to deliver the same when executed 
 to your orator, but so to do the said C. D., although then well 
 able to convey the said land to your orator and to give your ora- 
 tor a good title thereto, and although the amount sd tendered and 
 offered by your orator to him was ample and sufficient to pay 
 and satisfy the full amount due and owing to him on the said 
 agreement, the said CD. then and there absolutely refused to 
 comply with your orator's said reasonable request, and absolutely 
 refused to receive or accept the said money so tendered and offered 
 to him as aforesaid on the said agreement, although making no 
 claim that the same was insufficient in amount, and absolutely 
 refused to make or execute the said deed of conveyance, or any 
 deed of conveyance whatever, of the said land to your orator, and 
 the said CD. has ever since that time continually refused and 
 still does refuse to accept or receive the said money and to con- 
 vey the said land to your orator in any manner, as in equity and 
 good conscience he ought to have dona 
 
 I. To the end therefore that the said C D., the defendant 
 hereto may, without oath, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters hereinbefore stated and charged. 
 
 II. And that the said C. D. may be decreed to specifically 
 perform his part of the said agreement, your orator being ready 
 and willing, and hereby offering to specifically perform the same 
 upon his part. 
 
 III. And that the said C D. may come to an account with 
 yo.ur orator touching the amount due and owing by your orator 
 to him, the said C D., on the said agreement, your orator being 
 ready and willing and hereby offering to pay him the full amount 
 that shall be found due to him on such accounting, and your ora- 
 tor asks leave to pay and deposit the same with the register of 
 this court for the said C. D., to be paid to him according to the 
 order and direction of this court 
 
 IV. And that, upon such payment to the said G. D., or to the 
 register of this court for the said C. D., he, the said C D., be 
 decreed to convey to your orator by a good and sufficient deed 
 
678 stage's MICHIGAN CHANCEEY PBAOTICE AND FOBMS 
 
 of conveyance in the law, duly executed and acknowledged, all 
 and singular the said land in fee simple. 
 
 V. And that upon such payment to the said C. D. or to the 
 register of thig court as aforesaid, your orator be decreed to be 
 the owner of the said land and premises, and of each and every 
 part and parcel thereof, in fee simple, and that the said C. D. be 
 decreed to be divested of all right,, title and interest therein, and 
 that your orator ha,ve leave to cause such decree to be recorded 
 
 in the office of the register of deeds of the said county of 
 
 as a conveyance of all the said land and premises from the said 
 C. D. to your orator. 
 
 VI. And that the said C. D. thereupon deliver possession of 
 all and singular the said land and premises tQ your orator. 
 
 VII. And that your orator may have such further relief and 
 such other relief in the premises as shall be agreeable to equity 
 and good conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B. 
 (Signature of Solicitor and Counsel.) 
 
 AGAINST ADMINISTRATOR AND HEIRS. 
 (Address and introduction.) 
 
 1. That heretofore and in the life time of one C. D., late of 
 
 , now deceased, and on or about the day of 
 
 , 19. ., he, the said C. D., then being the owner in his 
 
 own right in fee simple of that certain piece or parcel of land, 
 (describe it), the said 0. D. and your orator made and entered 
 into an agreement in writing bearing date the day and year last 
 aforesaid for the sale of the said land to your orator, which said 
 agreement is in substance, tenor and effect as follows: (set forth 
 agreement verbatim), as in and by the said agreement in writing, 
 a duplicate whereof is in the possession of your orator ready to 
 be produced and proTed as this co.urt shall direct, and whereto 
 reference is prayed, will fully appear. 
 
 2-. And that your orator has fully performed his part of the 
 said agreement up to the time of the death of the said C. D. and 
 has duly paid the taxed assessed on the said land and on every 
 part thereof and (state such items of performance dy complain- 
 ant as are -material). 
 
 3. And that after the making of the said agreement and on 
 
 or about the day of , 19 . . , the said C. D. died 
 
 intestate, and that during his lifetime he, the said C. D., never 
 made any conveyance of the said land or any part thereof to 
 your orator and died seized thereof, and that the said C. D. left a 
 widow, M. A. D., and four children, viz. : M. D., L. D„ N. D., and 
 J. D., all of whom are minors under the age of twenty-one years, 
 and who are the only heirs of the said C. D. ; and that S. K. of 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 679 
 
 , has been by the probate court of the county of 
 
 , duly appointed administrator of the estate of the said 
 
 C. D., deceased, but no person as yet has been appointed guardian 
 of the said minor children, as appears by the records and files of 
 the said probate court, whereto reference is prayed. 
 
 i. And that your orator is desirous of obtaining a conveyance 
 of the said lands and real estate pursuant to the terms of the said 
 a^eement between himself and the said C. D., deceased, and is 
 ready and willing and hereby offers to pay for the same the full 
 amount of the purchase money now remaining unpaid thereon, 
 with all accrued interest, as provided in the said- agreement. 
 
 5. And that he has made application to the said M. A. D., 
 the widow of the said C. D., deceased, and has ascertained that 
 she is willing to release her right of dower in the said land and 
 premises upon having paid to her an amount equal to the present 
 value of her said right of dower. But by reason that the said 
 C. D. died intestate and his heirs aforesaid are not of full age, 
 there is no person who has legal authority to execute a deed 
 •whereby to convey the said land and premises in full to your 
 orator. 
 
 I. In consideration whereof and to the end therefore, that the 
 said S. K., as administrator of the estate of the said C. D., de- 
 ceased, and M. A. D., M. D., L. D., N. D. and J. D., the defend- 
 ants hereto, may, without oath, all answer upon oath, all answer 
 upon oath being hereby waived, full, true and perfect answer 
 make to all and singular the matters herein stated and charged : 
 
 II. And that the said defendants, S. K., administrator of the 
 estate of C. D., deceased, M. A. D., M. D., L. D., N. D. and J. D., 
 may be decreed to specifically perform the said agreement entered 
 into as aforesaid between the said CD. and your orator, your 
 orator being ready and willing and hereby offering specifically to 
 perform the said agreement on his part : 
 
 III. And that an account may be taken of the amount due and 
 owing by your orator upon the said agreement, and that your 
 orator have leave to bring the amount so found to be owing by 
 him into this court and deposit the same vdth the register of this 
 court, to be paid to the said defendants in such manner as this- 
 court shall by its decree direct : 
 
 IV. And that upon depositing the amount so found to be due 
 as aforesaid with the register of this court, your orator be de- 
 creed to be the owner of the said land and premises in his own 
 right, in fee simple, in the same manner as if the same had been 
 conveyed to him by the said C. D. in his life time, in the manner 
 provided in the said agreement, and that your orator have leave 
 to cause such decree to be recorded in the office of the register of 
 
 deeds of the said county of , as a conveyance to him of 
 
 the said land and premises : 
 
680 stage's MICHIGAN CHANCEEY PKACTICE AND FOBMS 
 
 V. And that your orator may have such further or such other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 And your orator will ever pray, etc. 
 
 VERBAL CONTRACT. 
 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19. ., one C. D. was the owner in his own right in fee 
 
 simple of all that (describe the land), and being such owner, the 
 said C. D. made a verbal agreement with your orator whereby the 
 said C. D. agreed to sell and convey to your orator all the said 
 
 land and premises in fee simple for the sum of dollars, 
 
 to be paid as follows, viz. : dollars thereof in one year 
 
 from that day, and dollars thereof in two years from 
 
 that day, and the balance and remainder thereof being 
 
 dollars in three years from that day, with interest at the rate of 
 
 per cent per annum, payable annually, on the whole 
 
 sum from time to time unpaid, and to give your orator immediate 
 possession thereof, your orator to pay all taxes and assessments 
 that should thereafter be assessed on said land ; and ypur orator 
 thereby agreed to purchase the said land and to pay for the same 
 in manner aforesaid and to pay the taxes thereon as aforesaid, 
 but no written agreement nor memorandum thereof was made or 
 signed by the said C. D. nor by your orator. 
 
 2. And that in pursuance of the said agreement the said 
 
 C. D. then on or about the said day of 19 . . , 
 
 delivered possession of the said land and premises to your orator 
 and your orator then entered into possession and occupation 
 thereof and of the whole thereof, and ever since that time your 
 orator has been and still is in such possession and occupation in 
 accordance with and relying upon the said agreement. 
 
 3. And that in accordance with thc'Said agreement your ora- 
 tor has paid to the said C. D., the said sum of dollars, 
 
 parcel of said purchase money at the expiration of one year from 
 
 said first mentioned day, and the said sum of dollars, 
 
 parcel of said purchase money at the expiration of two years 
 therefrom, and also paid the interest as provided in and by the 
 said verbal agreement, and the said C. D. accepted such payments 
 so made as payments made In accordance with said agreement, 
 and your orator has also paid and satisfied all taxes and assess^ 
 ments that hav6 been assessed on said land since the time of the 
 making of the said agreement in accordance therewith, and has 
 hitherto fully performed the said agreement on his part. 
 
 4. And that during the time that your oratpr has been in the 
 possession and occupation of the said land and premises as afore- 
 said, he has at his own expense, wholly relying upon the said 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 681 
 
 agreement, built and erected a valuable (dwelling house) there- 
 on at the expense of dollars, and has made other ex- 
 tensive and valuable improvements thereon to the amount of 
 
 dollars or thereabout, and has treated, managed and 
 
 used the said land as his own property, all with the knowledge 
 and consent of, and without objection from, the said C. D. 
 
 5. And that at the expiration of the said term of three years 
 
 from the said day of , A. D. 19 . . , the time of 
 
 making the said agreement, viz., on the day of ., 
 
 A. D. 19. ., your orator applied to the said C. D. and then ten- 
 dered and oifered to pay him, the said C. D., the sum of 
 
 dollars, being the remainder of the said purchase money then re- 
 maining unpaid, and also the sum of dollars being the 
 
 accrued interest thereon, and then requested the said C. D. to 
 receive and accept the same and to convey the said land and 
 premises to your orator by a good and sufficient deed of convey- 
 ance, as in and by the said agreement he had agreed to do ; and 
 your orator then also presented to the said CD. the draft of a 
 deed of conveyance in fee simple, and in presence of a notary 
 public, whose presence was procured by your orator, your orator 
 then requested the said C. D. to accept the said money so of- 
 fered as aforesaid and to execute the said deed and to acknowl- 
 edge the execution thereof before the said notary, and your ora- 
 tor well hoped that the said CD. would have then received and 
 accepted the said money so tendered and offered, and would have 
 executed and acknowledged the said deed, as in justice and equity, 
 he ought to have done, but so to do the said C D. then utterly re- 
 fused, and thenceforward has continually refused and still re- 
 fuses, although he, the said C D., still holds the title to the said 
 land in his own name and is well able to convey the same as afore- 
 said. 
 
 6. And your orator has always been ready and willing and 
 still is ready and willing to perform his part of the said agree- 
 ment fully and specifically and has fully and specifically per- 
 formed the same so far as he was not prevented by the refusal 
 of the said C D. to accept said money as aforesaid, and that he is 
 ready and willing, and hereby offers, to pay to the said C D. all 
 moneys as well as interest as principal as shall be found to be 
 owing to him on the said agreement, and your orator is desirous 
 and is advised that he is entitled to have the said agreement spe- 
 cifically performed by the said C D. 
 
 I. To the end therefore that the said C D., the defendant 
 hereto, may, without oath, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters herein stated and charged. 
 
 II. And that the said C D. may be decreed to specifically per- 
 form the said agreement and contract on his part, your orator 
 
682 stage's MICHIGAN CHANCEEt PRACTICE AND FOBMS 
 
 being ready and willing and hereby offering specifically to per- 
 form the seme on his part. 
 
 III. And that an account may be taken of the amount due and 
 owing by your orator to the said C. D. on the said agreement for 
 the purchase money aforesaid with the accrued interest thereon, 
 and your orator hereby offers to pay to the said C. D. forthwith 
 the full sum found to be owing thereon ; and in case the said C. D. 
 shall refuse to receive or accept the same as such payment your 
 orator prays leave to deposit the same with the register of this 
 court, to be paid to the said C. D. as this court shall direct. 
 
 IV. And that the said C. D. be decreed to specifically perform 
 his said agreement and to convey the said land to your orator, 
 upon such payment to him of the amount found due to his as 
 aforesaid, or upon the payment of such amount to the register 
 of this court as aforesaid. 
 
 V. And that upon such payment to the said C. P. or to the 
 register of this court, your orator be decreed to be the owner of 
 the said land and premises and of each and every part thereof, 
 in fee simple, and that the said C. D. be decreed to be divested of 
 all right, title and interest therein, and that your orator have 
 leave to cauSe such decree to be recorded in the office of the regis- 
 ter of deeds of the said county of , ,as a conveyance to 
 
 him of all and singular the said land and premises. 
 
 VI. And that your orator may have such further or such 
 other relief as shall be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 ('Signature of Solicitor and Counsel.) 
 
 VENDOR V. VENDEE. 
 (Address and introduction.) 
 
 1. That your orator, being seized in his own right, in fee sim- 
 ple, of the following described land and premises, situate, etc. 
 (describe the land), and being desirous of selling the same, and 
 
 one C. D., ,pf -, being then desirous of purchasing the 
 
 same, your orator and the said C. D., on the day of 
 
 , 19 . . , made and entered into a certain contract and 
 
 agreement in writing, signed by each of them and bearing date 
 the day and year aforesaid, in substance, tenor and effect, as fol- 
 lows: (set out contract verbatim.), as in and by th.e said agree- 
 mejit, a duplicate whereof is in the possession of your oratot, 
 ready to be produced and proved, and whereto reference is 
 prayed, will fully appear. 
 
 2. And that the said C. D. has paid to your orator 
 
 dollars, part of such purchase money, at the time of the making 
 of the said agreement, and was then put into possession of the 
 said land and premises, and has ever since that time held and 
 
stage's MICHIGAN CHANCBKY PKACTICE AND FO-BMS 683 
 
 occupied and still does hold and occupy the same, and your ora- 
 tor has always been ready and willing and able, and still is ready 
 and willing and able, to perform his part of the said agreement, 
 and on being paid the remainder of the said purchase money, with 
 interest, to convey to the said C. D., his heirs and assigns, all and 
 singular the said land in fee simple by a good and indefeasible 
 title thereto, and your orator well hoped that the said C. D. 
 would have performed his part of the said agreement as in jus- 
 tice and equity he ought to have done. 
 
 3. And that the said C. D. absolutely refuses to perform his 
 part of the said agreement and contract, and has hitherto re- 
 fused and still does refuse to pay your orator the remainder of 
 the said purchase money or of the interest thereon or any part 
 thereof, and sometimes the said C. D. pretends that your orator 
 cannot make a good title to the said land and premises, whereas 
 your orator avers and charges that he has, and can make a good 
 and sufficient title thereto. 
 
 I. In consideration whereof, and to the end therefore, that 
 the said C. D., the defendant herein, may, without oath, all an- 
 swer on oath being waived, full, truei, direct and perfect answer 
 make to all and singular the matters herein stated and charged. 
 
 II. And that the said defendant may be compelled by the 
 decree of this court specifically to perform the said agreement 
 with your orator, and to pay to your orator the remainder of the 
 said purchase money with interest, from the time when the same 
 ought to have been paid, your orator being ready and willing and 
 hereby offering specifically to perform the said agreement on his 
 part, and on being paid the said remaining purchase money and 
 interest to execute a proper conveyance of the said land and 
 premises to the said C. D., and thereby convey to him a good and 
 indefeasible title in fee simple thereto, according to the tenor and 
 effect of the said a^eement. 
 
 (Add prayer for general relief.) 
 
 Partition. 
 
 § 629. When two or more persons hold undivided in- 
 terests in the same parcels of land they were classed at 
 common law in three divisions viz, joint tenants having 
 each an equal interest in the land and all deriving title 
 from the same deed who were subject to the incident of 
 survivorship whereby on the death of one (or more if 
 there were more than two joint tenants) the survivor took 
 the entire estate in fee. Tenants in common whose only 
 characteristic is that of an undivided possession and 
 whose interests might be, and often were, unequal and 
 
684 stage's MICHIGAN CHANCBEY PRACTICE AND FOEMS 
 
 might be derived from different sources and were not 
 subject to survivorship and co-parcenors who were co- 
 heiresses of their ancestor, all the daughters of an in- 
 testate taking equal shares of the land of their ancestors 
 in default of heirs male. 
 
 As joint tenants and tenancies in common were created 
 by deed and therefore rested in contract the courts of 
 common law were originally powerless to sever the in- 
 terests of such tenants but co-parcenors held their estate 
 by operation of law i. e. by descent, and these courts 
 therefore felt at liberty to sever and partition such 
 estates. 
 
 As long ago as the reign of Henry VIII a statute was 
 enacted by the parliament enabling tenants in common 
 and joint tenants to obtain a severance and partition of 
 their estates in the same manner as co-parcenors, but in 
 practice it soon became evident that in most cases the 
 machinery of the common law courts was inadequate to 
 make an equitable division of such interests and as early 
 as the reign of Queen Elizabeth the Court of Chancery 
 took jurisdiction of matters of partition and in process 
 of tim.e the jurisdiction of courts of equity over these 
 matters has become universal and exclusive. 
 
 § 630. In Michigan proceedings for partition are pre- 
 scribed with great particularity by statute. Chapter 304 
 of the Compiled Law of 1897 relates entirely to this sub- 
 ject. The right to proceed bqing wholly statutory, the 
 statutes must be strictly followed.^ 
 
 "All persons holding lands as joint tenants or tenants 
 in common may have partition thereof in the manner 
 provided by this chapter. ' ' ^ 
 
 "Joint tenancy" has been already described. The 
 estate held by a husband and wife in land conveyed to 
 them by the same deed or devise is not a "joint tenancy" 
 as each is entitled to the entire estate "by entirety" and 
 on the death of one the survivor takes the whole. It is 
 
 1— Simpson t. Simpson, 59 Mich. 2 — C. L., Sec. 11013. 
 
 71; Dickinson v. V?n Wormpr, 39 
 Mich. 141. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 685 
 
 distinguished from all other modes of holding land and is 
 not affected by the statute of partition.* But the estate 
 thus created is changed to a tenancy in comruon by a 
 subsequent divorce.* 
 
 The heirs of a deceased person are considered as ten- 
 ants in common of the lands inherited and may have 
 partition like other tenants in common,^ It is provided 
 by statute that all grants and devises of land made to 
 two or more persons, (except mortgages, devises or 
 graats made in trust, or to executors or to husband and 
 wife) shall be construed to create estates in common and 
 not in joint tenancy unless expressly ordered to be in joint 
 tenancy.^ Any one or more of the persons so holding 
 lands may institute a suit in the circuit court for the 
 county in which the lands lie, by a bill in equity, for a 
 division or partition thereof according to the respective 
 rights of the parties interested therein and for a sale of 
 such premises if it shall appear that the partition thereof 
 cannot be made without great prejudice to the owners. 
 
 In case such lands are situated in different counties 
 the suit may be instituted in the circuit court for any one 
 of the counties in which any part of such lands may be 
 situated and such court shall have complete jurisdiction 
 of the premises as fully and effectually as if the whole 
 of such lands were situated in the county in which the suit 
 is instituted.^ 
 
 ' ' Such suit may be maintained by any person who has 
 an estate in possession in the lands in which partition is 
 sought, but not by one who has only an estate therein in 
 remainder or reversion : such suit may also be maintained 
 by any person who has an estate in possession in any ores, 
 minerals or metals that may exist, or be hereafter dis- 
 covered in such lands, and such last mentioned suit shall 
 be brought only against such persons as may have an 
 estate in possession in such ores, minerals, or metals, and 
 
 3— Jacobs V. Miller, 50 Mich. 119. 6— C. L., Sees. 8826-8827. 
 
 4^-Act No. 259 Pub. A&ts of 1909. 7— C. L., Sec 11014. 
 
 5 — Campau v. Campau, 19 Mich. 
 116; Owings v. Owings, 150 Mich. 
 609. 
 
686 stage's MICHIGAN CHAZSTCEEY PEAGTIOE AND FORMS 
 
 any person who owns an undivided interest, however 
 acquired, in all of the estates in possession and in ex- 
 pectancy, in the land of which partition is sought, shall 
 be deemed to have an estate therein in fee simple abso- 
 lute in possession, to the extent of the least share which 
 he has in any of the estates, and shall be entitled to main- 
 tain a bill for partition under the provisions of this 
 chapter."* 
 
 § 631. An "estate in possession" is defined by statute 
 to be "where the owner has an immediate right to the pos- 
 session of the land."* Thus actual possession of the 
 land is not necessary. It is sufficient if the complainant 
 has constructive possession or the right to possession."* 
 
 The complainant must have a legal title^ if the title be 
 disputed it must first be established at law.^^ His estate 
 must be one in possession ; the holder of an undivided, in- 
 terest in a reversion cannot maintain a suit for partition 
 against his co-reversioners,^^ but the homestead rights 
 of the widow and minor children do not preclude a parti- 
 tion between heirs and their assignees,^^ although the 
 homestead cannot be sold in partition proceedings nor the 
 possession of the widow ousted so long as the homestead 
 right continues to exist," 
 
 §632. Courts of Equity have exclusive jurisdiction 
 of suits for the partition of personal property even 
 though complainant's title is denied by the defendant.^® 
 
 Every person, whether in actual occupation or .not, hay- 
 ing any interest in the lands soijght to be partitioned 
 should be made a party to the suit. In a bill between heirs 
 
 8— C. L., Sec. 11015 as amended 12— Metcalfe v. Miller, 96 Mieh. 
 
 by Act No. 6 Pub. Acts of 1909. 459. 
 
 9— e. L., See. 8790. 13— Eobinson v. Baker, 47 Mich. 
 
 10 — Campau v. Campau, 19 Mich. 619. 
 116; Hoffman v, Beard, 22 Mieh. 59. 14— Zoellner v. Zoellner, 53 Mich. 
 
 11 — Hoffman v. Beard, 22 Mieh. 620. 
 59; Fenton v. Circuit Judge, 76 15 — Godfrey v. White, 60 Mich. 
 
 Mieh. 405; Warren v. Warren, 151 443. 
 Mich. 95. 
 
stage's MICHIGAN CHANCEBY PBACTICB AND FORMS 687 
 
 all the heirs should be made parties,i^ but a mortgagee of 
 the entire land, or a creditor having a lien thereon by 
 judgment or decree or otherwise is not a necessary party, 
 although a mortgagee or person having a lien on the un- 
 divided interest of any of the tenants in common may 
 properly be made a party defendant, and the share of the 
 land to which his lien should attach should be correctly 
 specified.^'' 
 
 § 633. "If any parties having an interest in such lands 
 are unknown, or if either of the known parties reside out 
 of this state, or cannot be found therein, and such facts 
 be made to appear to the court by affidavit, an order may 
 be made by the court containing a sufficient description of 
 the premises whereof partition is sought, and requiring 
 all parties interested to appear and answer the bill by a 
 day in such order to be specified, which order shall be 
 served personally, or shall be published once in each week 
 successively in such paper as may be designated in such 
 order and for such time as the court shall designate not 
 exceeding three months. ' ' ^* 
 
 It will be observed that this section requires the order 
 to be made by the ' ' court ' ' and herein it differs from the 
 usual order of publication which may be made by a judge 
 at chambers or by a Circuit Court commissioner.^^ This 
 order must therefore be made by the court in session. 
 
 "The proof of personal service, or of the publication of 
 such order, shall authorize an order of the court for tak- 
 ing the bill as confessed against all such unknown parties, 
 and persons not resident in this state, or not found there- 
 in, as shall not appear and answer by the day mentioned 
 in the order, or on such further day as the court may ap- 
 point, and all such unknown parties as may appear, shall 
 be entitled to be made parties to the suit, and the bill may 
 be answered accordingly. " ^^ 
 
 It is evident that except in the case of unknown heirs 
 
 16— Benedict v. Beunnan, 90 18— C. L., Sec. 11023. 
 Mich. 396. 19 — C. L., Sec. 485. 
 
 17— C. L., Sees. 11019, 11020, 20— C. L., Sec. 11024. 
 11021. 
 
688 stage's MICHIGAN CHANCEEY PKACTICE AND FOBMS 
 
 and non residents this order cannot be made until after 
 the return of a subpoena not found after diligent search 
 and inquiry within this state. 
 
 § 634. ' ' The general guardians residing in this state 
 of all minors and other persons under guardianship, who 
 should be parties to such proceedings for partition, upon 
 giving bond as hereinafter directed, shall represent their 
 respective wards therein, whether such wards shall reside 
 in or out of this state, and the court shall appoint guar- 
 dians for all such minors who shall be interested in the 
 premises, as have no general guardians in this state for 
 the special purpose of taking charge of the interests of 
 such minors in relation to the proceedings ; and the acts 
 of all such guardians of minors or others under guardian- 
 ship, shall be binding on their respective wards and shall 
 be as valid as if done by them respectively when of full 
 age or under no legal incapacity. 
 
 ' ' Every such guardian shall give bond to the people of 
 this state, to be filed with the clerk (register) of the court, 
 in such penalty and with such surety as the court shall 
 direct; conditioned for the faithful performance of the 
 trust reposed in such guardian, and to render a just and 
 true account of his guardianship in all courts and places 
 when thereunto required, and for the observance of the 
 orders of the court in relation to the said trust. ' ' 
 
 If the general guardian or guardian appointed by the 
 court fail to give the security above provided it is made 
 the duty of the court on application of complainant to ap- 
 point the clerk (register) of the court as such guardian 
 and to dispense with the securities.^ ^ 
 
 § 635. The Bill. The bill must be on oath and must 
 particularly describe the lands and premises sought to be 
 divided and must set forth the rights and titles of all per- 
 sons interested therein so far as the same are known to 
 the complainant, including the interest of any tenant for 
 years, for life, or in dower, and the persons entitled to 
 
 21— C. L., Sees. 11025, 11026, 
 11027. 
 
stage's MICHIGAN CHANGEEY PBACTICE AND FOBMS 689 
 
 the reversion, remainder or inheritance after the termina- 
 tion of any particular estate therein, and every person 
 who by any contingency contained in any devise, grant or 
 otherwise, may be or become entitled to any beneficial in- 
 terest in the premises ^^ and every person having any 
 such interest whether in possession or otherj\dse, and 
 every person entitled to dower if the same has not been 
 admeasured may be made a party to the suit.^* 
 
 ' ' In case any one or more of such parties, or the share 
 or quantity of interest of any of the parties be unknown 
 to the complainant, or be uncertain or contingent, or the 
 ownership or the inheritance shall depend upon an execu- 
 tory devise, or the remainder shall be a contingent re- 
 mainder, so that such parties cannot be named the same 
 shall be set forth in the bill.'"'* 
 
 If the complainant makes a creditor having a specific 
 lien by mortgage or otherwise on the undivided interest 
 or estate of any of the parties, a party to the bill he must 
 set forth the nature of such lien or incumbrance in the 
 bill.2' 
 
 The biU in all other respects should conform to the 
 usual phraseology of a bill in chancery. 
 
 The reason for the requirement that all persons having 
 any interest whatever in the lands of which partition is 
 sought should be made parties to the bill and their respec- 
 tive interests fully stated is that the court may be enabled 
 to make a decree according to all the equitable rights of 
 each party respectively, including equitable allowances 
 for expenses of improvement, and charges for rents and 
 profits received as well as the rights of tenants for years 
 under some one or more of the tenants in common and in 
 short providing for all the equities of all the parties 
 interested.^® 
 
 It is not necessary to allege or prove that the tenants in 
 common or joint tenants cannot agree on a partition, the 
 motive of the complainant seeking partition being imma- 
 
 22— C. L., See. 11016. 25— C. L., Sec. 11021. 
 
 23— C. L., See. 11017. 26— Hunt v. Hunt, 109 Mich. 399; 
 
 24 — C. L., Sec. 11018* Fenton v. Miller, 116 Mich. 45. 
 
690 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 terial, it is sufficient that he bring himself within the posi- 
 tion required by. the statute.*^ When the suit is com- 
 menced a notice lis pendens should be filed. 
 
 § 636. "Any defendant may deny the joint tenancy, or 
 tenancy in common of any co-defendant, and whenever 
 the court shall deem it necessary for the purpose of de- 
 termining the rights of any of the parties in the premises 
 of which partition shall he sought that any issue of fact 
 between the parties or any of them should be tried by a 
 jury, such court mg,y award a feigned issue for that pur- 
 pose which shall be tried by a jury and the verdict thereon 
 be returned as in other cases and with like effect. ' '*® 
 
 Whenever there is a doubtful question as to the owner- 
 ship of the title to land the proper method for the deter- 
 mination of the title is a suit at law.^® When a defendant 
 denies that complainant has any title and the complain- 
 ant's title appears doubtful or uncertain the court may 
 stay proceedings in the suit for partition until the com- 
 plainant shall have established his title at law and the 
 same rule would apply in case of a feigned issue ordered 
 by the court to try titles between co-defendants under the 
 statute above mentioned.^" 
 
 Where a defendant relies upon a lease, he should set 
 forth such lease by proper averments in his answer stat- 
 ing fully the equities which he claims, so that, whether the 
 land shall be partitioned or sold, the court may fully 
 adjust his equities in the land or in the proceeds.*^ 
 
 § 637. Either before or after the trial of an issue to 
 determine the legal estate held by any of the parties the 
 court may permit the bill and all subsequent proceedings 
 to be amended so as to represent truly the rights claimed 
 by any party or so hs to make any person a defendant who 
 
 27 — Trainer v. Greenough, 145 30 — Fenton v. Circuit Judge, 76 
 
 111. 546; Bradley v. Harkness, 26 Mich. 405; Martens v. Cook, 135 
 
 Cal. 77; Willard v. Willard, 6 Mich. 35. 
 
 Maokey, 559. 31— Eberts v. Fisher, 44 Mich. 
 
 28— C. L., Sec. 11028. 551. 
 
 29— -Hoffman v. Beard, 22 Mich. 
 59; Warren v. Warren, 151 Mich. 95. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOEMS 691 
 
 shall have appeared in the proceedings to be interested 
 in the premises and who might originally have been made 
 a defendant if his interest had then existed or been 
 known; but no person shall be so made a defendant unless 
 by his consent, without twenty days notice of the motion 
 to that effect being personally served on him, or published 
 once in each week successively for one month in such 
 paper as the court may direct, and after any such amend- 
 ment any party whose rights are affected thereby and 
 who has not had an opportunity to sustain his claim, shall 
 have the right to answer the bill, or to put in a further 
 answer thereto, and to maintain his claim, as the circum- 
 stances of the case may render proper.^^ 
 
 § 638. It is also provided in cases where a sale is to be 
 ordered that ' ' before making any order for the sale of the 
 said premises where creditors or other persons having 
 specific liens or purchasers at mortgage or execution sales 
 of interests in any part of the premises, shall not have 
 been made parties, the court shall direct the complainant 
 to amend his bill by making parties to the proceedings 
 every person haying a specific lien on the undivided inter- 
 est or estate of any of the parties by mortgage or other- 
 wise and also persons who have acquired an interest 
 under mortgage or otherwise and also persons who have 
 acquired an interest under mortgage or execution 
 sales. "^^ 
 
 § 639. "If the bill shall be taken as confessed by any 
 of the defendants, whether known or unknown the court 
 shall order a reference to a master (now Circuit Court 
 commissioner) to take proof of the title of the complain- 
 ants and report the same to the court, and the complain- 
 ants shall exhibit before such master (Circuit Court com- 
 missioner) proof of their title and an abstract of the con- 
 veyances by w^hich the same is held. ' '^* 
 
 This section would not preclude the court from taking 
 
 32— C. L., Sees. 11029-11030. 34— C. L., See. 1103L 
 
 33— C. L, Sec. 11050. 
 
692 stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 
 
 sucli proof in open court without reference to a Circuit 
 Court Commissioner. 
 
 The case will be ready for hearing when the respective 
 interests of all the parties are before the court either by 
 the bill and answer or by the pleadings and proofs which 
 proofs may be taken in the usual manner. 
 
 § 640. ' ' Upon the hearijag of the cause, the court shall 
 ascertain from the proofs so taken in case of the bill being 
 taken as confessed or from the bill and answer or plead- 
 ings and proofs if the defendants appear and answer, and 
 shall declare the rights, titles and interests of the parties 
 to such proceedings, complainants as well as defendants 
 so far as the same shall have appeared and shall deter- 
 mine the rights of the said parties in such lands, and shall 
 decree that partition be made between such of them as 
 shall have any right therein, according to such rights. ' ' ^^ 
 
 In this decree the equitable rights of all the parties will 
 be considered and determined.^" This decree is a final 
 one in the sense that it is appealable ^'' and if a party fails 
 to appeal from this decree he cannot by a later appeal 
 obtain a review of the entire case.^* 
 
 "If upon the hearing of the cause the part, or interest 
 of any parties who shall not have appeared nor answered 
 the bill whether known or unknown, in and to such prem- 
 ises shall not have appeared by the proofs in the cause, 
 then the court shall decree that partition be made as far 
 as the rights or interests of the parties who are known, 
 and who have appeared in the cause have been ascertained 
 and the residue of the premises shall remain for the par- 
 ties whose interests have not been q,scertained subject to 
 division between them at any future time.*® 
 
 § 641. Upon making a decree for partition an order 
 shall be entered referring it to a Circuit Court commis- 
 
 35— C. L., Sec. 11032. 38— Shepherd v. Riee, 38 Mieh. 
 
 36— Thayer v. Lane, Walk. Ch. 556; Hunt v. Hunt, 109 Mich. 399; 
 
 200; Fenton y. Miller, 116 Mich. 45. Austin v. Austin, 132 Mich. 453. 
 
 37— Damouth v. Klock, 28 Mich. 39— Q. L., Sec. 11033. 
 
 162; Shepherd v. Ric?, 38 Mich. 
 556. 
 
stage's MICHIGAN CHANCBEY PEACTICE AND FOKMS 693 
 
 sioner to inquire into the situation of the premises as to 
 whether they or any part of them are so circumstanced 
 that a partition thereof cannot be made without great 
 prejudice to the owners and report to the court.*" 
 
 There is no method prescribed by this section in which 
 the Circuit Court commissioner shall ascertain the situa- 
 tion of the premises, he may do so by the testimony of wit- 
 nesses or by personal inspection or both. He should re- 
 port the manner in which he made the inquiry and annex 
 thereto the testimony of witnesses taken by him. 
 
 When partition proceedings are taken against several 
 distinct parcels of land, each is subject to partition by 
 itself.*^ There could, however, be no objection to the 
 award by the commissioners of one parcel to one tenant 
 in common and another of equal value to another, etc., in 
 such cases where equitable to do so, and this has often 
 been done in practice. 
 
 § 642. If, upon the coming in of the report the court 
 shall be satisfied that partition of the premises can be 
 made between the parties interested without prejudice to 
 the owners, an order shall be made and entered on the 
 minutes of the court appointing three discreet and disin- 
 terested freeholders, commissioners to make the partition 
 so decreed according to the respective rights of the parties 
 as ascertained by the. decree, and in such order the parts 
 or shares, if any, which shall remain undivided for the 
 owners whose interests are unknown or not ascertained, 
 and if the persons so appointed, or any of them, shall die, 
 resign, or neglect to serve the court may appoint others 
 in their places.*^ 
 
 ' ' The commissioners before proceeding to the execution 
 of their duties shall severally be sworn before any officer 
 authorized to administer oaths, honestly and impartially 
 to execute the trust reposed in them, and to make parti- 
 tion as directed by the court, which oath shall be filed 
 
 40— C. L., Sec. 11034. 4^—0, L., Sec. 11035, 11036. 
 
 41 — Walsh V. Varney, 38 Mich. 
 73. 
 
694 stage's MICHIGAN CgANCEET PBACTIGE AND FOBMS 
 
 with the clerk of the court on or before the coming in of 
 the report of such commissioners."^^ 
 
 "In making partition the commissioners shall divide 
 the said real estate and allot the several portions and 
 shares thereof to the respective parties, quality and quan- 
 tity relatively considered, according to the respective 
 rights and interests of the parties so adjudged and de- 
 creed by the court designating the several shares and por- 
 tions by posts, stones or other permanent monuments, and 
 they may, if necessary, employ a surveyor with the neces- 
 sary assistants to aid them therein.** 
 
 The commissioners must give notice to all parties inter- 
 ested of their meetings or their action will not be valid.*' 
 If all the defendants object to partition among themselves 
 the commissioner will set off the complainant's share 
 only.*6 
 
 "All the commissioners must meet together in the per- 
 formance of any of their duties, but the acts of a majority 
 so met shall be valid." *'^ 
 
 The deliberations of the commissioners should be had 
 together and all must be present when final action is taken 
 and the report made and signed, although a majority may 
 sign and acknowledge the report.** 
 
 The commissioners may hear such evidence as may be 
 produced before them by the respective parties interested 
 as to the value of the lands to be partitioned, but in their 
 deliberations and in the preparation of their report they 
 should be absolutely without the influence or presence of 
 any interested party.*® Should they desire information 
 respecting their duties they should apply to the court. ^^ 
 
 "The commissioners shall make an ample report of 
 their proceedings, under the hands of any two of them, 
 specifying therein the manner of executing their trust, 
 
 43— G. L., Sec. 11037. 48— Simpson v. Simpson, 59 Mich. 
 
 44^-C. L., Sec. 11038. 71. 
 
 45 — Simpson v. Simpson, 59 Mich. 49 — McLaughlin v. Chambers, 57 
 
 71. Mich. 35. 
 
 46 — Campbell v. Campbell, 21 50 — McLaughlin v. Chambers, 57 
 
 Mich. 438. Mich. 35. 
 
 47— C. L., Sec. 11040. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOEMS 695 
 
 and describing tlie land divided and the shares allotted to 
 each party with convenient certainty and the items of 
 their charges." ^^ 
 
 "The expenses of the commissioners, including the ex- 
 penses of a surveyor and his assistants when they shall 
 he employed, shall be ascertained and allowed by the 
 court; and the amount thereof, together with slich com- 
 pensation as shall be allowed to the commissioners by the 
 court for their services, shall be paid by the complainants, 
 
 and shall be allowed to them as part of the costs to be 
 taxed. "«2 
 
 § 643. "On good cause shown the court may set aside 
 the report, and commit the case to the same, or appoint 
 new commissioners as often as may be necessary, who 
 shall proceed in the manner as herein before directed. ' ' ^* 
 
 Where the commissioners divided the land equally as to 
 quantity but so un-equally as to value that one was worth 
 more than twice as much as the other, the report was set 
 aside,^* as it was also where the commissioners were at- 
 tended and advised during their deliberations and while 
 preparing the report by the solicitor for the defendant.^® 
 And the same would be true if they were attended by any 
 interested party or the representative of any interested 
 party during their deliberations or the preparation of 
 their report which proceedings should be as guarded as 
 •those of a jury in considering and preparing their 
 verdict. 
 
 §644. "Upon the confirmation of the report of any 
 commissioners of the court a decree shall thereupon be 
 entered that such partition be firm and effectual forever, 
 and siMjh decree shall be binding and conclusive. 
 
 1. Qa ajl parties named therein and their legal repre- 
 sentative, who shall at the time have any interest in the 
 prepiises divided as owners in fee, or as tenants for years, 
 
 51 — C. L., Sec. 11039. 55 — McLaughlin v. Chambers, 57 
 
 52— C. L., gee. 11041. Mich. 35. 
 
 53— C. L., See. 11042. 
 54 — Adair v. Cimimin, 48 Mich. 
 375. • 
 
696 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 or as entitled to the reversion, remainder or inheritance 
 of such premises, after the termination of any particular 
 estate therein; or who by any contingency contained in 
 any will or grant or otherwise, may be or become entitled 
 to any beneficial interest in the premises; or who shall 
 have any interest in any undivided share of the premises 
 as tenant for years, for life, by the courtesy or in dower. 
 
 2. On all persons interested in the premises who may 
 be unknown to whom notice shall have been given by per- 
 sonal service or by publishing the same as herein before 
 directed, and 
 
 3. On all other persons claiming from such parties or 
 persons or either of them.'"^ 
 
 A tenant in common who has lands set off to him in 
 partition proceedings is a purchaser for value from his 
 co-tenants.^'' One who has accepted the title to the por- 
 tion awarded to him in partition and has taken the benefit 
 of the proceedings is presumed to have been properly be- 
 fore the court.*^ 
 
 § 645. "But such decree and partition shall not affect 
 any tenants, or persons having claims as tenants, in 
 dower, by the courtesy or for life, to the whole of the 
 premises which shall be the subject of such partition; nor 
 shall any such decree and partition preclude any person 
 except such as are specified in the last preceding section, 
 from claiming any title or interest of the parties, between 
 whom such partition shall be made. ' '^® Under this sec- 
 tion it has been held that a sale under a decree in parti- 
 tion proceedings in which a married woman was not made 
 a party but her husband was, will not bar her right of 
 dower.^" The statute does not prescribe the proceedings 
 for the confirmation of the report of the commissioners, 
 but according to the general practice of the court, if any 
 party objects to any part of the report such objections 
 and exceptions should be filed with the register within 
 
 56— C. L., Sec. 11043. 58-^Willetta v. Mandelbaum, 28 
 
 57^Campau v. Hubbard, 25 Micl. Mich. 5gl. 
 
 381; Tharp v. Allen, 46 Mich. 389; 59— C. L., See. 11044. 
 
 Schultz ^. Dennison. 159 Mich. 259. 60— <3reiner v. Klein, 28 Mioh. 12. 
 
stage's MICHIGAN CHANCEKY PRACTICE AND FOBMS 697 
 
 eight days after the filing of the report and a hearing will 
 be had thereon as in other cases. 
 
 "When a decree confirming the partition made by any 
 commissioners shall be entered as provided in this chap- 
 ter, the court shall also adjudge and decree that each of 
 the parties concerned therein, other than the complain- 
 ants, pay to such complainants a proportion of the costs 
 and charges of the proceedings to be ascertained by the 
 court, according to the respective rights of the parties, 
 aiid the proportion of such costs and charges assessed 
 upon the unknown owners to be chargeable on the part 
 remaining undivided; and upon such decree execution 
 may issue as in other cases and may be levied on the 
 property of the parties respectively charged with such 
 costs, and upon any share or part of the premises allotted 
 on any such division to any owner unknown or not named, 
 and upon every portion remaining undivided for the pro- 
 portion adjudged to be paid by such owners or charge- 
 able to the part remaining undivided." ®^ 
 
 § 646. ' ' Whenever partition shall be decreed by any 
 circuit court, if it shall appear that it cannot be made 
 equal between the parties without prejudice to the rights 
 and interests of some of them the court may decree com- 
 pensation to be made by one party to the other for equal- 
 ity of partition according to the equity of the case." "^ 
 
 When lands are held by the state as tenant in common 
 with individuals, partition may be had as in other cases, 
 the subpoena in such cases to be served on the attorney 
 general and the proper proportion of costs paid out of the 
 state treasury.®* 
 
 A burial lot is not a subject for partition.*^ 
 
 § 647. The Michigan statute for partition having been 
 adopted from that of New York it is presumed to have 
 been adopted with the construction given to it by the 
 courts of that state at the time of its adoption.®^ 
 
 61— C. L., Sec. 11080. 64— Sharp v. Sharp, 48 Mich. 278. 
 
 62 — G. L., Sec. 11094. 6.5— Greimer v. Klein, 28 Mich. 12; 
 
 66-0. L., Sees. 11091-11092. State v. Holmes, 115 Mich. 456. 
 
698 stage's MICHIGAN CHANCERY PKACTICE AND FOBMS 
 
 § 648. If the Circuit Court commissioner to whom ref- 
 erence was made to inquire into the situation of the prem- 
 ises shall report to the court that all or any part of the 
 land is so situated that partition cannot be made without 
 great prejudice to the owners, and the court shall be sat- 
 isfied that such report is correct, the court may make an 
 order that the commissioner sell the premises so situated 
 at public auction to the highest bidder. If a part can be 
 divided without such prejudice and a part cannot, then 
 that which can be so divided shall be partitioned by com- 
 missioners and that which cannot shall be sold.^* 
 
 The court may direct terms of credit to be given for 
 any part of the purchase money ,®^ which must be secured 
 by mortgage and bond of purchaser and such further 
 security as the court may order,"* separate mortgages 
 may be taken running to the known owners for their re- 
 spective shares and if any unknown owners, running to 
 the register of the court and his successors in office for 
 the benefit o.f such unknown owners.®* 
 
 § 649. Before making such sales all persons having 
 liens or encumbrances on any undivided shares or inter- 
 ests in the premises should be made parties and if neces- 
 sary the court will order an amendment of the bill for that 
 purpose.'"' 
 
 If there shall appear to be any liens or encumbrances 
 on the undivided interest of any party to the suit the 
 court shall in its order of sale, direct that the share of 
 such party in the proceeds of such sale be paid to the reg- 
 ister of the court after deducting its proportion of the 
 costs and expenses.''^ 
 
 Such party may apply to the court for an order that 
 such money or any part thergcif be paid to him accom- 
 panying his application with an affidavit showing the 
 amount of such incumbrance and the name and residence 
 of the owner thereof with proof by affidavit of service on 
 such owner of notice of his intention to make such applica- 
 
 66— C. L, Sec. 11045. 69— C. L., Sec. 11048. 
 
 67— C. L., Sec. 11046. 70— C. L. Sec. 11050. 
 
 68— c! L., See. 11047. 71— C. !;', Sec, 11051. 
 
stage's MICHIGAN CHANCEKY PRACTICE AND FORMS 699 
 
 tion ; if the owner reside in this state the notice must be 
 served at least fourteen days before making the applica- 
 tion and must be served personally or if the owner be 
 absent from his residence by leaving a copy with some 
 person of his household of proper age, if the owner be not 
 a resident of this state such notice must be served at least 
 thirty days before the application and may be served 
 either personally or by publication in such newspaper as 
 the court may directJ^ The notice should specify the 
 time and place when and where such application would, 
 be made. 
 
 On such application the court will hear the proofs and 
 allegations of the parties and in case of dispute may order 
 a trial by jury and shall determine the rights of the par- 
 ties to the money .'^^ 
 
 § 650. "Whenever the estate of any tenant in dower or 
 for life in the whole or any part or share of the premises 
 in question has been admitted by the parties or ascer- 
 tained by the court to be existing at the time of the order 
 for such sale, and the person entitled to such estate has 
 been made a party to the proceedings, the court shall first 
 consider and determine under all the circumstances of the 
 case, whether such estate ought to be excepted from such 
 sale, or whether the same should be sold, and in making 
 such determination regard shall be had to the interests of 
 the parties."''^ 
 
 If a sale be made including such estate in dower or for 
 life the purchaser will take the entire estate freed from 
 such dower or life estate.''^ In such case if the tenant for 
 life or in dower consent to accept such gross sum as shall 
 be deemed on the principles of law applicable to annuities 
 a reasonable satisf actipn for the same the court shall de- 
 cree that such sum be paid to them,''® but if no such con- 
 sent be given the court will order such proportionate 
 share of the proceeds of such sale, 9.fter deducting ex- 
 penses, as shall be equitable in each case to be invested 
 
 72— C. L., Sec. 11052. 75— C. L., See. 11058. 
 
 73— C. L., Sec. 11053-11054. 76— C. L., See. 11059. 
 74—0. 1,., Sec. 11057;- Brown v. 
 Bronson, 35 Mich. 415. 
 
700 stage's MICHIGAN CHANCEBY PEACTICE AND FOKMS 
 
 and the income paid to such tenant for life or in dower 
 respectively. In case of dower, one-third of the proceeds 
 of the sale of the land subject to dower and in case of life 
 tenancy the whole proceeds of the land subject to such life 
 estate, will be so invested.''' If the owner of such estate 
 in dower or for life be unknown the court shall take order 
 for the protection of the rights of such persons in the 
 same manner, as far as may be, as if they were known and 
 had appeared.'^® The manner in which this protection is 
 to be secured is not prescribed in the statute. 
 
 § 651. Notice of the sale must be given for the same 
 time and in the same manner as sales of real estate by 
 sheriffs on execution,''^ that is to say by posting notices of 
 such sale in three public places in the township or city 
 wterein the sale is to be made and also in three public 
 places in the township or city wherein the land lies if other 
 than that of the place of sale and by publishing such 
 notice once in each week for six successive weeks in a 
 newspaper printed in the county in which the lands are to 
 be sold, or if there be no newspaper printed in that 
 county, in a newspaper printed in an adjoining coijnty.*" 
 
 Such notice must describe the land with reasonable cer- 
 tainty by appropriate description.^^ The sale must be at 
 the court house or place of holding the Circuit Court at 
 the county seat between nine o 'clock in the forenoon and 
 the setting of the sun.*^ The terms of sale shall be made 
 known at the time and place of sale, and if the premises 
 consist of several distinct parcels they shall be sold 
 sepq,rately.*^ 
 
 The Circuit Court commissioner must report the sale 
 to the court describing the lands sold to each purchaser, 
 naming him, and the price bid for each parcel.** The pro- 
 ceedings for the confirmation of this report are not de- 
 scribed by this statute and are therefore the same as on 
 any other report of sale by a Circuit Court commissioner. 
 
 T7— C. L., See. 11060-11061. 81— C. L., See. 9169. 
 
 78— C. L., Sec. 11062. 82— C. L., S.ec. 9170. 
 
 79— C. L., Sec. 11063. 83— C. h., Sec 11064. 
 
 80— C. L., Sec. 9168. 84— C. L., Sec. 11066. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FORMS 701 
 
 If the sale be approved and confirmed by the court an 
 order will be made that the commissioner execute con- 
 veyances pursuant to the sale.®^ 
 
 From the proceeds of such sale the costs and expenses 
 of the proceedings shall be paid by the commissioner to 
 the complainant or his solicitor,^^ and the balance of such 
 proceeds shall be divided among the parties in propor- 
 tion to their respective intierests,^'' the shares of infants 
 may be ordered paid to their general guardian,^* and the 
 court shall direct that the shares of those parties who 
 are unknown or who have no legal representative in this 
 state to be invested in permanent securities for their 
 benefit.^^ 
 
 The proceeds of a sale belonging to a dowress shall be 
 invested in permanent securities and the interest paid to 
 her during her life.®'*^ 
 
 § 652. The court may in its discretion require all or 
 any of the parties, before they shall receive any share of 
 the proceeds oi such sale, to give satisfactory security 
 to refund the same with interest, if it shall thereafter 
 appear that such party was not entitled thereto.^ ^ 
 
 Securities taken for shares ordered to be invested shall 
 be taken in the name of the register of the court and his 
 successors in office.®^ All investments shall be on bond 
 and first mortgage upon real estate of at least double the 
 value of the investment, or other equivalent security and 
 no such security shall be discharged, transferred or im- 
 paired without the order of the court.®^ Any person in- 
 terested in the investment may prosecute the same by 
 leave of the court."* 
 
 §653. The court may authorize the guardian of an 
 infant joint tenant or tenant in common to consent to a 
 partition when for the interest of such infant."^ If such 
 
 85— C. L., See. 11067. 91-^. L., Sec. 11075. 
 
 86— C. L., Sec. 11Q70. 92— C. L., See. 11076. 
 
 87— C. L., See. 11071. 93— G. L., See. 11078. 
 
 88— C. L., See. 11072. 94^-0. L., Sec. 11079. 
 
 89— C. L., See. 11073. 95— C. L., Sec. 11084. 
 
 90— C. L., SfiC. 11074. 
 
702 stage's MICHIGAN CHANCEBY PEACTICE AND EQBMS 
 
 infant be a married woman her husband may be ap- 
 pointed her guardian.®^ 
 
 When it shall appear to the court on the application of 
 the guardian of an insane person or other person under 
 guardianship who is a joint tenant or tenant in common 
 that the interest of the ward will be benefitted by a par- 
 tition the CQurt shall refer the matter to a Circuit Court 
 commissioner to examine and report upon the circum- 
 stances,*'' and may authorize such guardian to agree to 
 such partition and to execute release of the interest of 
 his ward to the other joint tenant or tenant in common 
 in their shares respectively.^* 
 
 Proceedings for the partition of lands held by a trustee 
 for the benefit of others may be instituted by the trustee 
 or by any party having a beneficial interest therein.®* 
 
 § 654. "When the original parties in interest in such 
 trust are dead leaving heirs or legatees interested there- 
 in through them, the court may divide the land by decree 
 among such heirs or legatees so as to set off the interest 
 of all such parties together without subdivisions among 
 them."" 
 
 In any case where it may be deemed expedient, the 
 decree may provide that the parcel which would have be- 
 longed to any deceased person if then living, shall be set 
 off to his heirs, assigns or others legally entitled under 
 such deceased person, naming htm.^ 
 
 In all cases where the original parties in interest are 
 fully known but where by death, legal proceedings or 
 operation of law, it has become uncertain who are the 
 present parties in interest, thq share originally owned by 
 the original party may be separated a'nd set off, instead 
 of leaving it undivided as belonging to unknown owners.^ 
 
 § 655. vin case of sale wh^re a married woman has an 
 inchoate right of dower in any undivided interest in the 
 land sold, or where any other person has any vested or 
 
 96— C. L., Sec. 11087. 100— C. L., Sec. 11096. 
 
 97^0. U, See. 11088. 1--C, L., Sec. 11097. 
 
 98— C. L., Sec. 11089. 2—0. L., Sec. 11098. 
 99— C. L., Sec. 11095. 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOEMS 703 
 
 contingent right therein the court must ascertain and 
 settle the proportional value thereof and direct such pro- 
 portion of the proceeds to be invested or paid over, so 
 as to secure the just rights of such persons.' 
 
 Such married woman may release her dower to the 
 husband.* 
 
 §656. Whenever it shall appear that it would be 
 beneficial to any part owner of the premises that the 
 same should be leased or protected from waste, tres- 
 passes, or injury, or for any other purpose a receiver 
 with all necessary authority may be appointed.^ 
 
 § 657. If a bill for partition be dismissed, or the suit 
 shall be discontinued, the complainant shall pay costs 
 to be collected as in other cases." 
 
 § 658. Any of the parties to the suit, and any party 
 interested in the premises though not named in the pro- 
 ceedings, may jointly or separately and without the con- 
 sent of any co-complainant or co-defendant, appeal from 
 any decree or order of the court upon any such proceed- 
 ings, within the same time and under the like regulations 
 as in other cases.'^ 
 
 § 659. It is also provided by statute that in case of any 
 estate vested in trustees by will or grant to be sold and 
 the proceeds distributed among beneficiaries and there is 
 no limitation as to power of alienation or as to time of 
 the division of the proceeds, and it shall appear more 
 advantageous to the beneficiaries to partition the prop- 
 erty than to make a sale and distribute the proceeds, the 
 trustee may be empowered by the Court of Chancery 
 of the county where the lands are situated to make a par- 
 tition of them among the beneficiaries in the proportion 
 provided by the terms of the instrument creating the 
 trust.* 
 
 In all cases except where all the beneficiaries shall give 
 
 3— C. L., Sec. 11100. 6— C. L., Sec. 11082. 
 
 4— -C. L, See. 11101. 7— C. L., See. 11083. 
 
 5— C. L., Sec. 11099. 8— C. L., Sec. 11103. 
 
704 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 their consent in writing to such partition of the trust 
 estate the proceedings shall be in accordance with the 
 general statute for partition, and may be instituted by 
 the trustee or any beneficiary.* 
 
 BILLS FOR PARTITION BETWEEN HEIRS. 
 (Address and introduction.) 
 
 1. That your orator and one C. B., of , are the own- 
 ers in their own right in fee simple, as tenairts in common, of all 
 
 that certain piece or parcel of land, situate in the of 
 
 , in said county of and State of Michigan, 
 
 known and described as follows : (insert description of land), and 
 that the said land is of the value of more than one hundred dol- 
 lars, and is worth dollars as nearly as your orator can 
 
 estimate or ascertain the value thereof. 
 
 2. And that the title of your orator and of the said C. B. is 
 deriTed by inheritance from one D. B-, who died intestate and 
 seized and possessed of the said land in his own right in fee 
 
 simple, on the day of , 19 • • , leaving no widow 
 
 surviving him and leaving your orator and the said C. B., his 
 sons and only children and heirs at law, and that the said land 
 is free and clear from all encumbrance, 
 
 3. And that no person or persons other than your orator and 
 the said C. B. have any interest in or title to the said land or any 
 part thereof, in possession, remainder, reversion or otherwise; 
 and that your orator and the said C. B. each own an undivided 
 one half thereof, and that your orator and the said C. B. are now 
 both of full age. 
 
 4. And that your orator is desirous that a partition and divi- 
 sion of the said land should be made between your orator and the 
 said C. B., according to their several and respective rights, es- 
 tates and interests therein, or in ease the said land cannot be di- 
 vided and partitioned without material injury to the parties in- 
 terested therein, then that the same may be sold and the proceeds 
 thereof divided among such parties according to their respetive 
 rights .and interests. 
 
 5. And that your orator has frequently applied to the said 
 C. B. and requested him to come to an equitable and just division 
 and partition of the said lands and premises between himself and 
 your orator, or in case they could not agree on such amicable di- 
 vision that they should join in making sale of the said land and 
 premises and divide the proceeds thereof, but so to do the said 
 C. B. hath hitherto wholly refused, and still doth wholly refuse. 
 
 Your orator therefore prays : 
 
 I. That the said C. B., the defendant hereto, may, if he can 
 
 9— C. Lk, Sec. 11104. 
 
stage's MICHIGAN CHANCERY PBACnOE AND FOKMS 705 
 
 show why your orator should not have the relief hereby prayed, 
 without oath, all answer upon oath being hereby waived, full, 
 true, direct and perfect answer make to all and singular the mat- 
 ters herein stated and charged. 
 
 II. That a just and equitable division and partition of the 
 above described land and premises may be made between your 
 orator and the said C. B., the parties hereto, acording to their re- 
 spective rights and interests therein, according to the course of 
 practice in this court and to the statute in such case made and 
 provided. 
 
 III. And that in case it shall appear that a partition thereof 
 cannot be made without manifest injury to the rights of the 
 parties therein, then that the said land and premises may be sold 
 under the decree and by the direction of this honorable court, 
 and that the proceeds of such sale, after payment of the expenses 
 thereof and of the costs of this suit, be divided between the 
 parties hereto according to their respective rights and interests 
 therein. 
 
 IV. And that the rights and interests of the parties hereto 
 in and to the said land and premises, and in the proceeds thereof, 
 if the same shall be sold, may be ascertained and declared by the 
 decree of this court. 
 
 V. , And that your orator may have such further or such other 
 relief as shall be agreeable to equity and good conscience. 
 
 And your orator wiU ever pray, etc. 
 
 A.B. 
 
 Solicitor and of Counsel fpr Complainant. 
 (Add verification.) 
 
 ■ PARTITION AND ACCOUNT, PEOPERTY BEING 
 
 MORTGAGED. 
 (Address and introduction.) 
 
 1. That your oratrix and one D. B. of , and one E. B. 
 
 of , are the owners in their own right in fee simple, as ten- 
 ants in common, of aU those certain several pieces and parcels of 
 land, situate in the said county of and severally and re- 
 spectively described as follows: (insert description of each par- 
 cel), and that each of said parcels is of the va^ue of more than one 
 hundred dollars, that is to say the first described parcel is of the 
 
 value of dollars, and the said second described parcel is 
 
 of the value of dollars, as nearly as your oratrix can 
 
 estimate or ascertain. 
 
 2. And that the title of your oratrix and of the said D. B. and 
 the said E. B. is derived by inheritance from one F. B., the father 
 of your oratrix and of the said D. B. and E. B., who died intes- 
 tate and seized and possessed of all the said lands and premises 
 
706 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 in his awn right in fee simple, on the day of , 
 
 19. ., leaving surviving him G. ., his widow, and the said D. B., 
 his son, and your oratrix ad the said E. B., his daughters ; they, 
 your oratrix, and the said D. B. and E. B, being his only chil- 
 dren and heirs at law. 
 
 3. And at the time of the death of the said F. B. as aforesaid, 
 the said parcel of land herein first described was encumbered by 
 
 a certain indenture of mortgage, bearing date the day 
 
 of , 19- •, made and given by the said P. B. in his life 
 
 time, and the said G. B., then his wife, to one K. L., to secure the 
 payment to the said K. L. of the sum of dollars and in- 
 terest thereon (state rate of interest and terms of payment), ac- 
 cording to the terms of a certain promissory note of even date 
 therewith, given by the said F. B. to the said K. L., which said 
 
 indenture of mortgage was on the . . . .• day of , 
 
 19 . . , duly recorded in the office of the register of deeds of the 
 
 said county of , in liber of mortgages at page 
 
 , to which record your oratrix prays leave to refer. 
 
 4. And that at the time of the death of the said F. B. there 
 was unpaid on the said note and mortgage, the sum of ........ 
 
 dollars, as nearly as your oratrix can now state or ascertain, and 
 that there still remains unpaid thereon the sum of . . » dol- 
 lars, as nearly as your oratrix can asceirtain, and that the said 
 K. L. is still the owner and holder of the said note and indenture 
 of mortgage. 
 
 5. And that the title of your oratrix and of the said D. B. and 
 E. B. to aU and singular the said lands and premises is subject to 
 the dower of the said G. B., widow of the said P. B., deceased, 
 which dower has never been admeasured nor set-ofE to her, and 
 that their title to the said parcel of land herein first described is 
 also subject to the said indenture of mortgage held by the said 
 K. L. 
 
 6. And that the said parcel of land herein first described is a 
 
 farm, whereof acres or thereabouts is under cultivation, 
 
 and containing a comfortable dwelling house and good farm 
 buildings, and that ever since the death of the said P. B. the said 
 D. B. has been in the actual exclusive possession and occupation 
 of the said farm and last mentioned land and premises and of the 
 whole thereof, and has worked, tilled and cultivated the same, end 
 taken and appropriated to his own sole use and benefit all and 
 singular the crops, rents, issues and profits thereof, and has not 
 accounted for the same nor for any part thereof to yoyr oratrix, 
 or to the said E. B., nor has he appropriated any part thereof to 
 the benefit of the said land, save that he claims to have paid, and 
 your oratrix believes he has paid, a certain sum or sums, but 
 how much your oratrix does not know, on said mortgage and for 
 
stage's MICHIGAN CHANOEEY PRACTICE AND FOKMS 707 
 
 taxes on the said land, and he may have made some neceasai-y re- 
 pairs to the buildings and fences thereon. 
 
 7. And that the said parcel of land hereinbefore secondarily 
 described, consists of a dwelling house and about two acres of 
 land, therewith used as an orchard and garden, and that ever 
 since the death of the said F. B. the same has been exclusively 
 possessed and occupied by the said G. B., his widow, and the 
 said E. B., who have during all that time had and received to 
 their own sole use and benefit all the products, rents, issues and 
 profits thereof, and have not accounted for the same to your ora- 
 trix nor to the said D. B. 
 
 8. And that the annual rental value of the said parcel of land 
 herein first described and occupied as a farm by the said D. B. as 
 
 aforesaid, is at least dollars per year as nearly as your 
 
 oratrix can ascertain, and that the annual rental value of the said 
 secondly described parcel occupied as aforesaid by the said G. B. 
 
 and E. B. is at least dollars, as nearly as your oratrix 
 
 can estimate. 
 
 9. And that one M. N. is now in the actual occupation of a part 
 of the said first hereindeseribed parcel of land, (describB part oc- 
 cupied by M. N.) and that he claims to occupy the same as tenant 
 for years of the said D. B. 
 
 10. And that no person or persons other than your oratrix 
 and the said D. B., E. B., Q. B., K. L., and M. N. have any inter- 
 est in or title to the said several parcels of land or to either or 
 any of them, or to any part thereof in possession, remainder, re- 
 version or otherwise, and that the several and respective rights 
 and interests of the said parties are respectively as follows, as 
 nearly as your oratrix knows or can ascertain ; your oratrix and 
 the said D. B. and B. B. are each entitled to the equal one-third 
 part of each of the said several parcels of land in fee simple, as 
 heirs of the said F. B., deceased, subject to the right of dower 
 therein of the said G. B., and subject also to the said mortgage of 
 the said K. L. on the said first herein described parcel ; and the 
 said G. B. is entitled to her dower in the said lands as widow of 
 the said F. B., deceased ; and that the interest of the said K. L. 
 therein consists of his said ind-enture of mortgage on the said first 
 herein described parcel ; and that the interest of the said M. N. 
 consists of his right as tenant of the said D. B. in the said part of 
 said first described land occupied by him, but particularly as to 
 the terms and extent of such interest your oratrix has no knowl- 
 edge nor sufficient information to state the same definitely. 
 
 11. And that the said E. B. is an infant under the age of 
 twenty-one years, that is to say of the age of (state age), and 
 that by reason thereof she is incompetent to join in a volun- 
 tary partition or division of the said land, or to set apart the 
 dower of the said G. B. therein, or to a sale of the said lands. 
 
708 stage's michigah- chanceby peactice and fobms 
 
 12. And that your oratrix is desirous that a division and 
 partition of the said above described lands and premises should 
 be made among the several parties entitled thereto, according to 
 their respective rights and interests therein ; and that in case the 
 same cannot be divided without manifest injury or prejudice to 
 the parties interested therein, then that the same may be sold and 
 the proceeds thereof divided among such parties according to 
 their respective rights and interests; and that the respective 
 rights and interests of the said parties in relation thereto should 
 be determined, taking into consideration the said i use and occu- 
 pation of the said first herein described parcel by the said D. B., 
 and the receipt by him of the rents, issues and profits thereof as 
 aforesaid, as well as the payments, if any, which have been made 
 by him on the said indebtedness secured by the said indenture of 
 mortgage, and also the said use and occupation of the said sec- 
 ondly described parcel by the said G. B. and E. B., and the re- 
 ceipt by them of the rents, issues and profits thereof. 
 
 Your oratrix therefore prays : 
 
 I. That the said D.. B., E. B., G. B. and M. N., who are made 
 defendants hereto, may, without oath, all answer upon' oath being 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters herein stated and charged. 
 
 II. And that the several and respective shares, rights and in- 
 terests of your oratrix and of the said defendants of in and to 
 the said land, and each and every part and parcel thereof, may be 
 settled and determined by the decree of this honorable court, and 
 that an account be taken of the rents, issues and profits of the 
 said parcel of land herein first describedj enjoyed, taken and re- 
 ceived by the s^id D. B., as weU as of the moneys, if any, paid by 
 the said p. B. on the indebtedness secured by the said mortgage, 
 and also that an account he taken of the rents, issues and profits 
 of the said secondly described parcel, enjoyed, taken and re- 
 ceived by the said G. B. and E. B., and that the same be con- 
 sidered in making such determination of the several and respec- 
 tive interests of the parties thereto. 
 
 III. And that a just and. equitable division and partition of 
 the said lands and premises may be made between your oratrix 
 and the said defendants, according to their several and respective 
 rights and interests therein, in accordance with the practice of 
 this court and the statute in such case, made and provided, or in 
 case a partition and division thereof, or of any part thereof, can- 
 not be made without manifest injury or prejudice to the parties 
 interested thereiij, then that the said lands, or such part thereof 
 as cannot be so partitioned or divided, be sold by the order and 
 under the direction of this court and the proceeds thereof, after 
 payment of the costs of this suit and expenses of such sale, be di- 
 vided among the parties hereto according to their several and re- 
 spective interests as determined by this court. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 709 
 
 And that your oratrix may have such further or such other re- 
 lief as shall be agreeable to equity and good conscience. 
 And your oratrix will ever pray, etc. 
 
 (Add verification.) 
 
 WITH ASSIGNMENT OF DOWER. 
 (Address.) 
 
 Your oratrix, A. B., and your orators, B. B. and C. B., of 
 (state residence), respectfully unto the court : ■ 
 
 1. That on or about the day of , A. D. 19 . . , 
 
 one E. B., late oi' (state residence) departed this life intestate 
 leaving your oratrix, A. B., his widow, and your orators, B. B. 
 and C. B., his sons, and F. B., G. B., and H. B., his daughters and 
 only children and heirs at law, and that at the time of his decease 
 the said E. B. was the owner of, and seized and possessed in his 
 own right in fee simple of, the following described real estate, 
 
 lands and premises, situate in the said county of , and 
 
 described as follows: (insert description). 
 
 2. And that your oratrix and your orators and the said F. B., 
 G. B., and H. B., are the only persons who have any interest in, 
 or right or title to, the said land and premises or any part there- 
 of, and that no other person or persons have any estate or inter- 
 est in, or title to, the said lands and premises or any part thereof 
 in possession, remainder, reversion or otherwise. 
 
 3. And that your oratrix and your orators are desirous that 
 the dower of your oratrix should be set-off and assigned, to her, 
 and that a partition and division of the said lands and premises 
 should be made between your orators and the said F. B., G. B. 
 and H. B. 
 
 4. And that the said G. B. and H. B. are both of them infants 
 under the ag& of twenty-one years, that is to say the said G. B. 
 is of the age (state age), and that the said H. B. is of the age 
 of (state age), and that no legal guardian has been appointed for 
 them or either of them, by reason whereof the said 6. B. and H. 
 B. are severaly incompetent to join in a voluntary partition and 
 division of the said land and premises, or to set-off the dower of 
 jaax oratrix therein, or to consent to or join in a sale thereof, 
 and that the said F. B. declines to be made a party complainant 
 to this bill, and your oratrix and orators are advised that no 
 valid partition, or partition of nor assignment of dower in the 
 said lands and premises nor a sale thereof, can be had or effected 
 without the aid of this court. 
 
 I. Wherefore your oratrix and your orators pray the aid of 
 this court in the premises and that the said F. B., G. B. and H. 
 B., the defendants hereto, may, without oath, all answer on oath 
 being hereby waived, full, true, direct and perfect answer make 
 to all and singular the matters herein stated and charged. 
 
710 stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 
 
 II. And that the dower of your oratrix in the said lands and 
 premises may be set out and assigned to her. 
 
 III. And that a division and partition of the residue thereof 
 may be made by or under the direction of this honorable court 
 between your orators and the defendants, according to 'their re- 
 spective rights and interests therein to be adjudged by this 
 court. 
 
 IV. And that in case an assignment of dower in and division 
 and partition of, the said lands and premises cannot be made 
 without great prejudice to the parties interested therein, that 
 the same may be sold under the direction of this coiirt and the 
 proceeds thereof distributed between the parties hereto accord- 
 ing to their respective interests. 
 
 V. And that your oratrix and your orators may have such 
 other and further relief as shall be agreeable to equity and good 
 conscience. 
 
 And your oratrix and orators will ever pray, etc. 
 (Add verification by all complavnoMts.) 
 
 DECRDE OF PARTITION AND REFERENCE TO CIRCUIT 
 COURT COMMISSIiONER AS TO DIVISIBILITY 
 OF LAND. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the pleadings of 
 
 the respective parties on file and the report of Esq. the 
 
 Circuit Court commissioner to whom this cause was heretofore 
 referred to take the proofs therein, and which report is hereby 
 approved and confirmed (or, if the proofs were taken in open 
 oourt instead of and the report of, etc., state and the proofs 
 taken in the said cause on examination of the witnesses therein 
 in open court as in a suit at law) and the court having heard the 
 arguments of counsel for the respective parties and being fully 
 advised in the premises, doth find and adjudge that (set out 
 facts found hy the court) and that the material allegations con- 
 tained in the bill of complaint in this cause are true and that 
 partition and division ought to be made as therein spiecified. 
 
 Therefore, on consideration thereof, it is ordered, adjudged 
 and decreed that the complainant A. B. and the defendant D. 
 B. are each of them entitled to the equal one-half in value of 
 the land and premises described in the said bill of complaint, 
 that is to say: (insert description of the land and premises,) 
 subject to the dower of C. B., widow of B. B. deceased, men- 
 tioned in the said bill, jn fee simple, and that a division and 
 partition of the said lands and premises be made.* 
 
 And that it be referred to , Esq., a Circuit Court com- 
 
stage's MICHIGAN CHANCERY PEACTICB AND FOBMB 711 
 
 missioner of said county of , to inquire into the situa- 
 tion of the premises, and to report whether the said premises 
 or any part of them are so circumstanced that a partition and 
 division thereof amongst the parties cannot be made without 
 great prejudice to the owners, and for that purpose to examine 
 on oath the parties to this cause and such witnesses as may be 
 produced before him and, should he deem it necessary, person- 
 ally to go upon and inspect the said land- and premises, and that 
 the said Circuit Court commissioner report thereon to this court 
 with all convenient speed. 
 
 (If the court itself shall have taken proof in open court as to 
 the situation of the premises as to whether or not they can ie 
 divided without prejudice to the owner, or if such situation is 
 conceded iy all the parties, omit the order of reference after the 
 asterisk, * and insert instead:) 
 
 And it appearing to the court by competent evidence taken in 
 open court (or, by the concession and agreement of all the 
 parties in this cause made in open court) that the said premises 
 are so circumstanced that a division and partition thereof among 
 the parties interested can {or, can not) be made without (great) 
 prejudice to the owners: It is further ordered, adjudged and 
 decreed that (proceed to add the order for appointment of com- 
 missioners, or the order of sale, as the case may require.) 
 
 Circuit Judge. 
 
 ORDER APPOINTING COMMISSIONERS IN PARTITION. 
 (Title of Court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the report of 
 
 Esq., a Circuit Court commissioner of said county, to whom it 
 was referred to inquire into the situation of the land and pre- 
 mises described in the bill of complaint in this cause, to-wit : (de- 
 scribed land and premises), and to report whether such premises 
 or any part of them are so circumstanced that a partition and 
 division thereof among the parties can be made without pre- 
 judice to the owners or parties) from which report it appears 
 that a partition and division of the said land and premises can 
 be made without prejudice to the owners. 
 
 It is ordered that the said report be in all things approved 
 and confirmed, and that B. P., G. H. and I. M., all of (state 
 residence of each), being discreet freeholders in the said county 
 
 of , neither of whom appear to be connected with either 
 
 of the parties to this suit by consanguinity or affinity, and who 
 are entirely disinterested, be, and they hereby are appointed 
 commissioners to make partition of the said land and premises 
 
712 stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 
 
 pursuant to the decree heretofore, and on the day of 
 
 , A. D. 19. ., made in this cause; that is to say the equal 
 
 in value thereof to each of the parties complainant 
 
 and defendant in this cause, subject to the dower of C. 
 B., widow of B. B., mentioned in the said bill, and that each of 
 the said commissioners, before entering upon their duties as 
 such, do take and subscribe an oath or affirmation, as required 
 by law, that they will honestly and impartially execute the trust 
 reposed in them and make partition of the said land and prem- 
 ises according to the rights and interest of the parties inter- 
 ested therein, as directed by the court.. And that the said com- 
 missioners do go upon the said land and premises and personally 
 inspect the same and make division and partition thereof among 
 the said several parties interested, allotting the several shares to 
 the respective parties, quality and quantity relatively consid- 
 ered, according to their respective rights and Interests as ad- 
 judged in and by the said decree, designating the boundaries of 
 the respective shares by. appropriate permanent monuments, and 
 that, if necessary, they employ a surveyor with necessary as- 
 sistants to aid them. And that they report their actings and 
 doings in the premises under their hands, specifying fully 
 therein the manner of executing their trust and describing the 
 land divided and the shares alotted to each party, with con- 
 venient certainty, and the items of their charges, to this court 
 so soon as practicable. 
 
 Circuit Judge. 
 
 OATH OF COMMISSIONERS IN PARTITION 
 
 {Title of court and cause.) 
 
 County of , ss. : 
 
 I do solemnly swear that I wiU honestly and impartially exe- 
 cute the trust reposed in ms, and that J will make partition of 
 the premises mentioned in the decree rendered by the court in 
 the above entitled cause as directed by the court so help me God. 
 (Jurat.) 
 
 (Signature of Commissioners.) 
 
 REPORT OF COMMISSIONERS MAKING PARTITION. 
 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of 
 
 In Chancery. 
 In pursuance of a decree made in the above entitled cause on 
 the day of , A. D. 19 . . , (and an order there- 
 after made therein on the day of A. D. 19 . . ) , 
 
 we, the undersigned, the commissioners named in thie said last 
 
 mentioned order (or decree), respectfully report unto the court: 
 
 That after we had each of us taken and subscribed an oath 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 713 
 
 honestly ajid impartialy to execute the trust reposed in us and 
 make partition as directed by the court, which said oath is here- 
 to annexed and filed herewith ; we went together upon the premi- 
 ses described in the said decree, to wit: (describe the premises), 
 and made partition thereof, allotting the several shares to the re- 
 spective parties, quality and quantity relatively co.nsidered, ac- 
 cording to their respective rights and interests as declared by 
 the said court in and by the said decree, fhat is to say, we set off 
 and allotted to the above named A. B. in severalty for his inter- 
 est and share in the said premises, being the part 
 
 thereof, according to the relative value thereof, the following 
 parcel thereof, to- wit: (deseribe the part so allotted by some 
 proper and certain 'description), and we set off and allotted to 
 the above named C. D. in severalty, etc., (set forth in the same 
 manner the part allotted to each of the parties among whom 
 partition is decreed). 
 
 And we do further report that we employed, , a com- 
 petent surveyor, with his necessary assistants to aid us in mak- 
 ing such partition, and that the items of the various expenses at- 
 tending the execution of the said decree (and order), including 
 our fees, are contained in a schedule hereto annexed marked 
 ' ' Exhibit A ' ' and forming a part of this, our report. And that 
 for the better understanding and more clear elucidation of the 
 shape and situation of the said premises, and of the manner in 
 which such partition has been made by us, we have caused a map 
 thereof to be made, showing what parts of the said premises have 
 been allotted to the respective parties, which said map is hereto 
 annexed ijiarked "Exhibit B" and forms a part of thig, our re- 
 port. 
 
 All of which is respectfully submitted. 
 
 Witness our hands this day of , A. D. 19 . . . 
 
 (Signature of Commissioners.) 
 (Annex the Exhibits A and B and the oath.) 
 
 DECEEE COKPIRMING REPORT OF COMMISSIONERS 
 
 MAKING PARTITION. 
 (Title of court.) 
 (Title of causa.) 
 (Caption.) 
 
 This cause came on to be heard upon the report of E. F., 0. H. 
 and I. M., commissioners appointed by this court to make parti- 
 tion of the lands and premise? in a former decree of this court in 
 this cause mentioned, between the parties thereof, which report 
 has been dnly filed with the register of this court and by the said 
 r^ort it appears that the said commissioners have made parti- 
 tion as in and by the decree and order of this court, made on the 
 
 day of , A. D. 19 . . , they were required ; and 
 
 that the said commissioners have in every respect proceeded ac- 
 
714 stage's MICHIGAN CHANCEKY PBACTICE AND FOBMS 
 
 cording to the law and judgment of this court in the said decree 
 declared, and have honestly and impartially executed the trust 
 reposed in them, and that such partition was honestly and im- 
 partially made, and no objections or exceptions having been filed 
 to the said report or to any of the matters therein, and the court 
 being fully advised in the premises : 
 
 It is ordered, adjudged and decreed that the said report of 
 the said commissioners and all the proceedings and acts of the 
 said commissioners, and the partition made by them as shown by 
 their said reptjrt be, and the same hereby are approved and in 
 all respects confirmed; and that the said several parties hold in 
 severalty the shares set off and allotted to them respectively by 
 th^ said commissioners, and that the title to the shares set off and 
 allotted by the said commissioners to each of the said parties re- 
 spectively, be and the same is hereby decreed to be vested in the 
 said parties respectively according to the said partition and al- 
 lottment. 
 
 And it is further ordered, adjudged and decreed that the re- 
 port of the said commissioners be spread at large upon the rec- 
 ords of this court, and that either of the parties hereto have leave 
 to cause the same, or a certified copy thereof, to be recorded in 
 the office of the register of deeds of the said county of 
 
 And it is ordered that the costs and expenses of this suit and 
 the proceedings thereon be paid by the parties hereto within 
 
 days from the date hereof in the following proportions, 
 
 that is to say : (state the proportions which each is to pay), and 
 that in default of such payment within the time above limited, 
 execution issue for the same- 
 
 Circuit Judge. 
 
 OKDBR FOR SALE OP PREMISES IN PARTITION SUIT. 
 
 (Title of court.) ' 
 (Title of cause.) 
 (Caption.) 
 
 In this cause on reading and filing the report of , 
 
 Esq., a Circuit Court commissioner of said county of , to 
 
 whom it was referred to inquire into the situation of the land 
 and premises described in the bill of complaint in this cause, 
 and to report whether such premises or any part of them are so 
 circumstanced that a partition and division thereof among the 
 parties interested cannot be made without great prejudice to the 
 owners; from which report it appears that a partition and di- 
 vision of the said lands and premises cannot be made without 
 great prejudice to the owners thereof for the reasons stated in 
 the said report, and the court being fully advised in the premises: 
 
 It is ordered, adjudged, and decreed that the said report be in 
 all things approved and confirmed, and in consideration thereof, 
 
stage's MICHIGAN CHANCEBY PBAOTICB AND FOBMS 715 
 
 it is ordered, adjudged and decreed that the said land and premi- 
 ses, that is to say: (insert description of premises) be sold at 
 public auction to the highest bidder by , Esq., a Cir- 
 cuit Court commissioner of said county, at the front door of the 
 
 court house in the of , in said county, and 
 
 that the said Circuit Court commissioner at such sale be at lib- 
 erty to give credit for not more than (two-thirds) of the pur- 
 chase price, to be secured by mortgage on the property so sold 
 
 with the note of the purchaser payable not more than 
 
 years after date, with interest thereon from date at the rate of 
 
 per cent per annum, payable (semi) annually, and that 
 
 the said Circuit Court commissioner give notice of the time and 
 place of such sale and of the terms thereof for the same time and 
 in the same manner as is provided by law on sales of real estate 
 by sheriffs on execution. (Add such further directions as the 
 court shall deem proper.) 
 
 DECRETAL ORDER CONFIRMING SALE. 
 IN PARTITION SUIT. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and considering the report of , Esq., a 
 
 Circuit Court commissioner of said county of , on file, 
 
 from which it appears that pursuant to a decretal order of this 
 
 court made on the day of , A. D. 19 . . , the 
 
 said Circuit Court commissioner hes made sale of the land and 
 premises described in the said former decretal order; which re- 
 port bears date the day of , A. D. 19 . . ; and it 
 
 appearing to the court now here that the said Circuit Court com- 
 missioner has in every respect proceeded in due fom of law and 
 in accordance with the terms of such decretal order, and that the 
 said sale was fairly made, and no objections or exceptions hay- 
 ing been made or taken to the said report, and the court being 
 fully advised in the premises : 
 
 It is ordered, adjudged and decreed by the court now here 
 that the proceedings, sale and report of the said Circuit Court 
 court commissioner be, and the same are in all things approved 
 and confirmed, and it is further ordered, adjudged and decreed 
 that the said Circuit Court commissioner execute and deliver 
 
 to , the purchaser at such sale, a proper conveyance of 
 
 the premises so sold ; and that out of the proceeds of such sale 
 he pay first the costs and expenses of such sale and the 
 costs of this suit and proceeding, and that he distribute 
 the residue of the moneys between the said parties as follows, 
 
 that is to say, to the said A. B dollars, and to the said 
 
 CD dollars (and so on, stating the amount to be paid 
 
 to each. If mortgages are taken for part of the purchase price^ 
 
716 stage's MICHIGAN CHANCEEY PEACTIOE AND FOBMS 
 
 state the disposition of the mortgages according to the direction 
 of the court). 
 
 Partnership, 
 
 § 660. It may be stated in general terms that a part- 
 nerslup exists when two or more persons unite in carry- 
 ing on a business, or even a single enterprise, on their 
 joint behalf sharing in the profits and losses.^ The con- 
 tributions of each to the capital invested need not be 
 equal nor need their respective interests ia the business 
 or enterprise or their shares in the profits or losses be 
 equal, and very frequently they are not so. 
 
 Partnerships are formed by the mutual agreement of 
 the parties which may be either written or verbal. A 
 partnership may be formed for a limited time or for a 
 particular enterprise or for an indeterminate period. 
 
 §661. One effect of the formation of a partnership 
 is that until the mutual accounts between the partners 
 are settled after the. dissolution of the firm one partner 
 cannot maintain an action at law against his co-partner 
 or against the firm, nor can the firm against either of 
 the partners, on account of any controversy concerning 
 partnership matters, the only remedy being in equity.* 
 Although after a dissolution and a settlement of the ac- 
 counts if it be mutually recognized that one partner owes 
 the other a certain sum a suit at law may be brought 
 to recover it.* And an independent undertaking by one 
 partner to pay another .a sum of money advanced to him 
 for the purpose of furnishing a portion of the capital 
 stock may be sued upon at law and recovery had.* 
 
 Consequently if either partner of a firm fails to per- 
 
 1 — Cox T. Hickman, 8 H. of L. 159 Mich. 469; Hemenway v. Buin- 
 
 Cas. 268; Beeeher v. Bush, 45 Mich. ham, 90 Mich. 227. 
 
 188; Carpenter v. Lennane, 160 3 — Miner v. Lorman, 59 Mich. 
 
 Mich. 610; Hunt v. Erikson, 57 480; Carpesnter v. Greenop, 74 Mich. 
 
 Mich. 330; Kingsbury v. Thorp, 61 664. 
 
 Mich. 216. 4^-Kinney v. Eobison., 52 Mich. 
 
 2— Davis V. Merrill, 51 Mich. 389; Smith v. Kemp, 92 Mich. 357; 
 
 480; Gardiner v. Fargo, 58 Mich. Cook v. Canney, 96 Mich. 398; Kin- 
 
 72; Kalamazoo Trust Co. v. MerriU, ney v. Tabor, 62 Mich. 517, 
 
stage's MICHIGAN- CHAKCEBY PBACTICE AND, FORMS 717 
 
 form his part of the partnership agreement the remedy 
 of the other partner is in equity, and this is usually by 
 a bill for dissolution and accounting. 
 
 §662. The partnership may be dissolved at the will 
 of either party at any time." If the partnership agree- 
 ment provided that it should continue for a specified time 
 yet either party may arbitrarily dissolve it before the 
 expiration of the time at his pleasure although he may 
 in that case be liable in damages to his co-partner for 
 non-fulfilment of his contract if he had no valid ground 
 for breaking it.® 
 
 It is dissolved when one partner takes exclusive pos- 
 session of the partnership property to the exclusion of 
 the other.^ 
 
 Or when it ceases to carry on the business for which 
 it was organized.* 
 
 Bankruptcy dissolves a partnership and if after bank- 
 ruptcy the former partners go into business under the 
 old name it is a new partnership.^ 
 
 Partnership between a man and a woman is dissolved 
 by their marriage to each other. ^'^ 
 
 Death of one partner dissolves the partnership unless 
 the partnership articles otherwise provide.^^ 
 
 § 663. Upon a dissolution of the partnership the part- 
 ners are equally entitled to a mutual accounting and set- 
 tlement of the partnership affairs and distribution of 
 assets between themselves, and if they fail to agree may 
 resort to a Court of Chancery for that purpose. This 
 is elementary. ^^ 
 
 5— Buck V. Smith, 29 Mich. 166; 8— Potter v. Tolbert, 113 Mich. 
 
 Major V. Todd, 84 Mich. 85; Solo- 486. 
 
 mon V. Kirkwood, 55 Mich. 256; 9 — Atwood v. Gillett, 2 Doug. 
 
 Walker v. Whipple, 58 Mich. 476. Mich. 206. 
 
 6 — Skinner v. Dayton, 19 Johns. 10— Bassett v. Shepardson, 52 
 
 513; Solomon v. Kirkwood, 55 Mich. Mich. 3. 
 
 256. 11 — Eoberts v. Kelsey, 38 Mich. 
 
 7 — Groth V. Payment, 79 Mich. 602; Jenness v. Carleton, 40 Mich. 
 
 290 ; Solomon v. Kirkwood, 55 Mich. 3'43 ; Porter v. Long, 124 Mich. 584. 
 
 256. 12 — Norton v. Hayden, 109 Mich. 
 
718 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 The partners may settle between themselves by strict 
 accounting or by compromise or in any manner as they 
 may agree, and a fair compromise deliberately made 
 without fraud or deceit, will not be disturbed on a bill 
 for an accounting.^^ 
 
 § 664. Where one partner has sold out his interest in 
 the firm to a third party, his former partner has a right 
 to an accounting and to have the concern closed up.^* 
 
 The fact that a partner has agreed to sell his interest 
 in the firm's property and business to a third person, who 
 has not as yet paid the full purchase price, does not de- 
 prive him of the right to file a bill for dissolution and 
 accounting.^** 
 
 The right to have an accounting between themselves 
 is not lost to any partner by the fact that either partner 
 has made a sale of his interest to a third person." 
 
 A defendant who has denied the existence of the part- 
 nership is nevertheless entitled to a fair statement of the 
 accounts in case the partnership is established. ^'^ 
 
 Where the business of the firm was continued to a later 
 day than that mentioned in the partnership articles and 
 afterwards a new firm was formed, one of the former 
 partners being omitted and a new partner taken on, the 
 retiring partner was held to have a right to an account- 
 ing from the new firm as to the partnership effects and 
 business of the old firm.^** 
 
 § 665. Where no accounts have been kept and an ac- 
 counting is therefore impossible and one party is as much 
 ia fault as the other in neglecting to keep accounts the 
 partners will be left as they were when the business was 
 discontinued.^* 
 
 682; S. C, 129 Mich. 374; Near v. 16— Feige v. Babcock, 111 Mich. 
 
 Lowe, 49 Mich. 482. 538. 
 
 13 — Harrison v. Dewey, 46 Mich. 17 — Thompson v. Noble, 108 Mich. 
 
 173. 19. 
 
 14 — Glynn v. Phetteplaee, 26 Mich. 18 — Near v. Lowe, 49 Mich. 482. 
 
 383. 19 — Fitzsimmons v. Foley, 80 
 
 15— Russell V. White, 63 Mich. Mieh. 518; but see Mitchell v. Mitch- 
 
 409. eU, 92 Mich. 618. 
 
stage's MICHIGAN CHANCEKY PBACTICE AND FOKMS 719 
 
 One elaiming to be a partner and to have been excluded 
 from participating in tbe business who has neglected to 
 assert his claim for over six years is barred by his delay 
 from the right to an aecounting,^^ but under sealed articles 
 of co-partnership containing covenants the right is not 
 barred until the lapse of ten years.^^ 
 
 §666. If the evidence fails to'establish a partnership 
 a bill for accounting will be dismissed without prejudice 
 to bringing a suit at law.^^ 
 
 § 667. In settling up the affairs of a partnership, real 
 estate owned by the firm is regarded in the same manner 
 as personal assets.^^ And the jurisdiction of the court 
 depends upon the residence of the parties and not upon 
 the location of lands belonging to the partnership.^* 
 
 § 668. In case of dissolution by the death of a partner 
 it becomes the duty of the survivor to wind up the business 
 and account to the representative of the deceased partner 
 who may file a bill to obtain such accounting.^ ^ But the 
 surviving partner may continue the business to avoid 
 a sacrifice and use his best judgment in winding it up.^® 
 
 § 669. In an accounting the partnership agreement 
 and the equities of the respective partners should be 
 carefully observed. If one has contributed in money or 
 property niore to the capital stock than the articles re- 
 quired he should be allowed interest thereon as well as 
 the amount of the excess.^'' Each should be credited with 
 his reasonable expenses in the prosecution of the business 
 for the benefit of the firm in good faith whether incurred 
 
 20 — Jenny v. Perkins, 17 Mich. 25 — Cowham v. Shipman, 151 
 
 28. Mich. 673; Merritt v. Dickey, 38 
 
 21 — Near v. Lowe, 49 Mich. 482. Mich. 41 ; Way v. Stebblns, 47 Mich. 
 
 22 — Schmidt v. Schmidt, 164 296; Eobeits v. Kelsey, 38 Mich. 
 
 Mich. 579. 602; Loomis v. Armstrong, 49 Mich. 
 
 29 — Godfrey v. White, 43 Mich. 521; Drucke v. Boylan, 160 Mich. 
 
 171; Dunlap v. Byers, 110 Mich. 109. 522. 
 
 24 — Godfrey v. White, 43 Mich. 26 — Gaskill v. Weeks, 154 Mich. 
 
 171; Lindsay v. Bace, 103 Mich. 28; 223. 
 
 Dunlap V. Byers, 110 Mich. 109. 27— Mack v. Bngel, 165 Mich. 540. 
 
720 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 with or without the knowledge or consent of the other 
 partners,^** hut as each partner is bound to do his best 
 for the interests of the firm no claim for extra personal 
 services can be allowed.^* 
 
 The items to be charged against and credited to each 
 partner should be clearly shown, alleged payments for 
 labor and supplies not itemized are properly rejected 
 when it is not shown what are legitimate and what are 
 not.^" 
 
 A partner is entitled to credit for firm debts paid by 
 him after dissolution,^^ and also for interest paid on a 
 note given for the benefit of the firm ^^ and for interest 
 on money advanced.^^ 
 
 Where after* dissolution one partner took a quantity 
 of the assets to dispose of and sold them below cost with- 
 out authority from the others to do so he was held charge- 
 able with the full value and not allowed for the loss.^* • 
 
 When each partner had by mutual consent drawn a 
 stated sum periodically as salary he is entitled to be 
 credited with so much as remains unpaid until dissolu- 
 tion.^^ 
 
 Ea;ch partner on such accounting should be credited 
 with all sums equitably due to him from the partnership 
 and charged with all amounts due from him to the firm. 
 All money and property furnished by each should be 
 credited and all money and property withdrawn should 
 be charged. 
 
 § 670. Where the defendant was in charge of the busi- 
 ness and kept the accounts of the firm and kept no such 
 books as would enable an account to be stated and it ap- 
 peared there was no loss in the business it was. held that 
 
 28— Sweeney v. Neely, 53 Mich. 32— Hake v. Coach, 114 Mich. 558. 
 
 42. 33— Loveland v. Peter, 108 Mieh. 
 
 29— Heath v. Waters, 40 Mich. 154. 
 
 457; Godfrey v. White, 43' Mich. 34r— Kinsey v. Eobinson, 66 Mieh. 
 
 171. 113. 
 
 30— Hake v. Coach, 114 Mieh. 558. 35 — Comstock v. McDonald, 126 
 
 31— Feige v. Babcoek, 111 Mich. Mich. 142. 
 538. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FORMS 721 
 
 the managing partner, the defendant, must account for 
 all money put into the business by the complainant.^^ 
 
 § 671. Where, after dissolution, one partner has un- 
 dertaken the settlement of the affairs of the firm he is 
 entitled to compensation for his expenses ia so doing.^''^ 
 
 672. But a surviving partner is not entitled to any 
 compensation for his services in winding up the partner- 
 ship business,^® not even to the salary he was receiving 
 during the partnership when he was the executor of 
 the deceased partner.^^ 
 
 A surviving partner must pay. over to the representa 
 tive of the estate of the deceased its share of all money 
 not needed to pay partnership debts as fast as the same 
 is realized.*" 
 
 A surviving partner becomes a trustee for the estate of 
 the deceased, for the creditors of the firm and for himself 
 and is strictly accountable as such. He must keep accu- 
 rate books of account showing what property he holds in 
 trust and what disposition he makes of it. If he fails to 
 do this he may be charged with the highest value of the 
 assets and with all rents and profits he might have made 
 by judicious management, or with his deceased partners 
 capital and interest thereon.*' 
 
 If the surviving partner keeps such books of account 
 that the trust property cannot be traced and fraudulently 
 misappropriates the partnership property he may be 
 charged with the capital of his deceased partner and com- 
 pound interest thereon.*^ 
 
 The acts of a surviving partner in winding up the busi- 
 
 36 — ^Robertson v. Gibb, 38 Mich. 39 — Porter v. Long, 124 Mich. 
 
 165. 584. 
 
 37 — Young V. Potter, 150 Mich. 40— Heath v. Waters, 40 Mich. 
 
 375. 457. 
 
 38 — Porter v. Long, 124 Mich. 41 — Hillefer v. McLain, 78 Mich. 
 
 584; Comstock v. McDonald, 126 249. 
 
 Mich. 142; Loomis v. Armstrong, 49 42 — Perrin y, Lepper, 72 Mich. 
 
 Mich. 521. 454; Porter v. Long, 136 Mich. 150. 
 
722 stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 
 
 ness if in good faith are binding on the representatives 
 of the deceased partner.** 
 
 On the death of the surviving partner the representa- 
 tives of his estate have no greater right to the possession 
 of the books and documents of the co-partnership than the 
 representatives of the partner who died first.** 
 
 § 673. Although partners often have unequal interests 
 in the firm property yet in the absence of proof their 
 shares are presumed to be equal.*^ 
 
 § 674. Receiver. On filing a bill for the dissolution of 
 a partnership and for accounting it is usual to pray that 
 a receiver of the partnership property be appointed to col- 
 lect and dispose of the assets of the firm and the appoint- 
 ment of such a receiver is almost always a matter of 
 course.*® It is no objection to the appointment of a re- 
 ceiver, that one of the partners has assigned his interest 
 to a third person.*^ 
 
 But the appointment of a receiver to take possession of 
 and collect partnership accounts is not warranted where 
 the partners had themselves agreed that the accounts 
 should be collected by the defendants who were re- 
 sponsible.*^ 
 
 And an ex parte order for a receiver which would dis- 
 possess the managing partner of property, real and per- 
 sonal of such a nature that it could not be readily con- 
 verted or dissipated is a nullity.** 
 
 § 675. A receiver will not be appointed on motion of 
 he representatives of a deceased partner against the 
 surviving partner unless there is proof of mismanage- 
 ment or danger to the partnership assets, the survivor 
 
 43 — Van Heek v. MeCabe, 87 37 Pa. St. 217; Ernst v. Harris, 1 
 
 Mich. 599. Turn. & Euss. 496. 
 
 44 — Perrin v. Lepper, 72 Mich. 47 — Kirby v. Ingersoll, 1 Doug. 
 
 454. Mich. 477. 
 
 45 — Goldman v. O'Hara, 164 48 — Simon v. Schloss, 48 Mich. 
 
 Mich. 612. 233. 
 
 46 — Kirby v. Ingersoll, Harr. Ch. 49 — Goldman v. Gir. Judge, 155 
 
 172; S. C, 1 Doug. Mich. 477; Law Mich. 47; Comstock y. McDonald, 
 
 V. Ford, 2 Paige 210; Sloan v. Moore, 113 Mich. 626. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 723 
 
 having the legal title and the right to the possession of 
 all the firm assets.^" 
 
 A receiver should not he appointed uijtil it is appar- 
 ent in the case that the complainant is entitled to an 
 accounting, and, when proper should be to take charge 
 of all the partnership property."*^ 
 
 § 676. Evidence. That land standing in the name of 
 one partner may be shown to be partnership property by 
 proof that it was treated as such by him and by all the 
 members of the firm.^^ 
 
 Where the deed and other documents make it apparent 
 that a parcel of land, was the individual property of one 
 partner the burden of proof is on the complainant to 
 prove his claim that it was partnership property.®' 
 
 On an accounting neither party is obliged to submit 
 to an overhauling of his books and business for a period 
 not within that fixed by the pleadings.'* 
 
 When after an accounting and the disposition of all 
 the personal effects and the payment of the debts of the 
 firm the remaining assets consist of lands, such lands 
 resume their character as real estate and the partners 
 become tenants in common although on a bill for ac- 
 counting the court cannot decree a partition except by 
 consent. ®® 
 
 A decree for an accounting of assets against two or 
 more surviving partners should be against them jointly 
 for the whole amount, not severally for such portions as 
 the survivors may have each received on a division among 
 themselves.'® 
 
 50 — Connor v. Allen, Harr. Ch. 54 — Candler v. Stange, 53 Mich. 
 
 371; Barry v. Briggs, 22 Mich. 201; 479. 
 
 Comstoek v. McDonald, 113 Mich. 35 — Godfrey v. White, 43 Mich. 
 
 620. 171; Comstoek v. McDonald, 126 
 
 51— Morey v. Grant, 48 Mich. 326. Mich. 142. 
 
 52 — Johnson v. Hogan, 158 Mich. 56 — Bundy v. Youmans, 44 Mich. 
 
 635. 376. 
 
 53 — ^Lindsay v. Bace, 103 Mich. 28. 
 
724 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 The final decree as to the amount due each cannot be 
 made until the accounting is complete.^'' 
 
 In a suit by some partners where others of the firm had 
 given a chattel mortgage on the entire stock to secure 
 creditors, a receiver was appointed although the biU did 
 not seek a dissolution or an accounting.^* 
 
 § 677, The bill should state the formation of the part- 
 nership, the names and residences of those forming it, the 
 time when and the object for which it was formed, the 
 place where the business was to be carried on, the amount 
 of capital to be contributed aiid actually contributed by 
 each, the time, if any, limited for its duration, the inter- 
 ests of each partner therein and every material fact iu 
 the partnership agreement. If it was formed by articles 
 in writing a copy of the articles might properly be given, 
 or a statement of the legal effect thereof. 
 
 The bill should also state iu a general way what busi- 
 ness has actually been done by the partnership and the 
 manner of carrying it on stating time and place, and in 
 a general way of what the assets consist and their values 
 and the debts and liabilities of the firm as nearly as could 
 be estimated, and the manner in which the books have 
 been kept. 
 
 Also the grounds of complaint, if any, which the com- 
 plainant has against his co-partner, that he desires a 
 dissolution, or that the firm is dissolved as thQ case may 
 be, and that he has been unable to agree with his partners 
 as to an accounting and distribution of assets and every 
 other fact material to the particular case. 
 
 §678. The prayer should be for dissolution of the 
 partnership, if not already dissolved, and for an account- 
 ing and that the defendant be decreed to pay the com- 
 plainant whatever sum should be found to be due him 
 from them on such accounting coupled with an offqr on 
 his part to pay the defendant whatever sum if anything 
 shall be found due from him to such defendant. 
 
 57 — Lindsay v. Race, 103 Mich. 58— Eolfe v. Burnham, JIO Mich. 
 
 28. 660. 
 
stack's MICHIGAN CHANCERY PRACTICE AND FORMS 725 
 
 If necessary to protect the partnership property the 
 bill should pray for an injunction against the disposition 
 of the partnership property by the defendants in whicli 
 case the reasons why such injunction is necessary should 
 be stated in the stating part of the bill. 
 
 A prayer for a receiver should be inserted except in 
 those cases in which no receiver is required, as if there 
 are no assets to be disposed of and no debts to be col- 
 lected, there would be no need of a receiver. As the bill 
 usually prays for relief pendente lite it should be on oath. 
 
 § 679. The first enquiry in these cases is whether or 
 not a partnership existed. This being determined affirm- 
 atively either by the answer or by proof, an order or 
 interlocutory decree for an accounting may be made un- 
 less it should appear affirmatively that no accounting 
 would be possible or that one had already been had by 
 mutual agreem.ent. 
 
 After the accounting is made the final decree can be 
 made as to how much, if anything is owing by one to the 
 other and what share of the assets remaining shall be 
 turned over to each. 
 
 It would seem that such final decree ought not to be 
 made until it appears that all debts and liabilities of the 
 firm are discharged as until that time the amount of the 
 assets for distribution will be uncertain. 
 
 BILL FOR DISSOLUTION OF PARTNERSHIP. 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 A. D. 19 . . , your orator and one C. D., of , 
 
 formed and entered into a partnership for the purpose of carry- 
 ing on the business of (state the business), at , under 
 
 the partnership name of , and then made and executed 
 
 interchangeably articles of partnership in writing, bearing date 
 the day and year aforesaid, in substance, tenor and effect as fol- 
 lows: (set out articles of partnership verbatim), as in and by 
 the said articles of partnership when produced and proved as 
 this court shall direct, and whereto reference is prayed, will 
 fully appear. 
 
 2. That thereafter and on or about the day of 
 
 , A. D. 19 . . , at , aforesaid, your orator and the 
 
 said 0. D., as partners under said agreement, commenced to 
 
726 stage's MICHIGAN CHANCERY PEACTICE AND FORMS 
 
 carry on tlie said business, and continued so to do from thence- 
 forward hitherto ; that your orator contributed and paid into the 
 
 capital of the said partnership the sum of dollars, and 
 
 the said C. D. contributed and paid into the said capital the sum 
 
 of dollars, and each of the said partners participated 
 
 in the management of the said business during all that time, and 
 that during that time the said partnership has transacted a large 
 amount of business in the purchase and sale of goods, wares and 
 merchandise, and has sold large quantities of such goods, wares 
 ajid merchandise to many, various and divers persons on credit, 
 for which suoh persons are still indebted to the said partnership, 
 and that such indebtedness amounts to a large sum of money viz., 
 
 to the sum of dollars, as nearly as your orator can now 
 
 state the amount, as by the books of account of the said partner- 
 ship when produced and proved as this court shall direct, and 
 whereto reference is prayed, will fully appear ; and that the said 
 partnership has also during that time incurred large expenses 
 and some indebtedness to divers other persons for such expenses, 
 and for the purchase price of goods, wares and merchandise 
 
 bought by it, a part of which amounting to dollars, as 
 
 nearly as your orator can now state, still remains unpaid; and 
 that the said partnership now owns and now has in its possession 
 a large stock of goods, wares and merchandise in its store at said 
 , of the vahie of dollars, as nearly as your ora- 
 tor can now estimate, besides ready money on hand and in the 
 
 bank to the amount of dollars or thereabouts. 
 
 3. That .the term for which the said partnership was origi- 
 nally formed having expired, your orator and the said C. B. con- 
 tinued to carry on the said business as partners without making 
 any new agreement, on the same terms and conditions specified 
 in the said original articles, save only that the time for the con- 
 tinuance thereof remained indefinite, and have so continued to 
 carry on the said business up to the present time. That your 
 orator has become unwilling to continue in the said business as a 
 partner of the said C. D., and for several weeks now last past has 
 desired and ^till does desire and intend to terminate, end and 
 dissolve the said partnership, and to settle and close up the said 
 business, and to divide, the moneys, property and assets of the 
 said partnership, after paying and satisfying all the debts and 
 liabilities thereof, between your orator and the said C. D., ac- 
 cording to the provisions of the said articles of partnership, that 
 is to say: (state the terms of division of assets), and has given 
 to the said C, D. due notice of his said desire and intent by a no- 
 tice in writing of the tenor, substance and effect as follows : (state 
 
 notice verbaiim) given to the said C. D. on the day of 
 
 .,.,,..., A. D. 19 .., as in and by the said notice when produced 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 727 
 
 and proved as this court shall direct, and whereto reference is 
 prayed, will fully appear. 
 
 4. And that after the giving of such notice and after the 
 
 lapse of days after such notice was given, your orator 
 
 has frequently and in a friendly manner, applied to the said 
 C. D. and requested him to proceed with your orator to close 
 up the said business, and to sell and dispose of the property of 
 the said partnership, and to pay the partnership debts and lia- 
 bilities, and to come to an accounting with your orator touching 
 all the transactions and doings of the said partnership and of 
 the said C. D. and your orator respectively therewith, and 
 equitably to divide and share the assets of the said partnership, 
 after pajonent of its debts and liabilities, equitably between them 
 in accordance with the said articles of partnership, and your 
 orator well hoped that the said C. D. would have complied with 
 your orator's said reasonable request as in equity and good 
 conscience he ought to have done. 
 
 5. But now so it is, may it please the court, that the said 
 C. D., on various and divers frivolous pretexts, has hitherto re- 
 fused and still does refuse to comply with the said reasonable re- 
 quest of your orator or any part thereof, and he refuses to 
 consent to a dissolution of the said partnership, or to the winding 
 up or closing of the said business, or to selling or disposing of the 
 property of the said partnership, or to a division of the partner- 
 ship assets, which may remain after the payment of the debts due 
 and owiug by the said partnership, or to an acounting between 
 himself and your orator as to the matter of the said partnership ; 
 
 but insists that the said business shall be carried on at 
 
 as heretofore by the said partnership under the firm name afore- 
 said, and that the said partnership shall not be dissolved; all 
 which refusals, actings and doings of the said C. D. are against 
 the rights of your orator and are contrary to equity and good 
 conscience. 
 
 Your orator therefore pays : 
 
 I. That the said C. D., the defendant hereto, may upon his 
 corpo-ral oath (or without oath, all answer upon oath being 
 hereby waived), full, true, perfect and direct answer make to all 
 and singular the matters hereinbefore stated and charged. 
 
 II. And that the said partnership between tfe said C. D. and 
 your orator may be dissolved, and the said business thereof closed 
 up, and the property of said partnership sold, and that the assets 
 of the said partnership, after payment of the just debts and lia- 
 bilities thereof, may be divided equitably between your orator 
 and the said C. D. 
 
 III. And that our orator may have such further or such other 
 relief as shall be agreeable to equity and good conscience. (Adi 
 
728 stage's MICHIGAN- CHANCEBT PBACTICE AND FOBMS 
 
 prayer for subpoena,, if desired, hut prayer for process is not 
 necessary, and conclude.) 
 And your orator will ever pray, etc. 
 
 A. B. 
 
 G. H., 
 
 Solicitor for Complainant and of Counsel. 
 (If answer on oath he required, add verification.) 
 
 ACCOUNTING AND INJUNCTION. 
 (Address and introduction.) 
 
 1. That on or about the day of , A. D. 
 
 19 . . , your orator and one C. .D and one B. F., of , 
 
 entered into an agreement to form a paxtnership in the business 
 of (state the business), which agreement* was reduced to writing 
 and executed by your orator and the said C. D. and E. F., and 
 was in substance, tenor and effect as foUows : (s^t out the agree- 
 ment verbatim), as in and by the said agreement, bearing date 
 the sam.e day and year last aforesaid and signed by your orator 
 and the said C. D. and B. F., will, when produced and proved as 
 this court shall direct, and whereto reference is prayed, fully 
 appear. (If the a^greement was not reduced to writing after 
 the * instead of the halance of the paragraph proceed as fol- 
 lows), was verbal and was in substance as follows: (state the 
 agreement fully.) 
 
 2. And that the said copartnership business was thereupon 
 
 commenced and entered upon at aforesaid, and has ever 
 
 since that time continued to be carried on by your orator and the 
 said C. D. and B. F., as partners, in pursuance of and under the 
 said agreement, the said agreement not having been changed or 
 modified in any manner. 
 
 3. And that having become dissatisfied with the conduct of 
 the said C. D. in and about the management and performance of 
 the said partnership business, and being for that reason desirous 
 of a dissolution of the said partnership, your orator on or about 
 
 the day of , A. D. 19 . . , gave notice to the said 
 
 C. D. and B. F. that he elected and determined that the said 
 partnership should be dissolved, (if in writing, add), which 
 notice was in writing signed by your orator and was in sub- 
 ^ance, tenor and effect, as follows: (set out notice verbatim), 
 and was delivered to the saad C. D. and E. F. personally ; as in 
 and by the said notice, when produced and proved as this court 
 shall direct, and whereto reference is prayed, will fully appear. 
 
 4. And that the said C. D. has always had the charge and 
 management of the partnership books, and has from time to time 
 sincp the commencement of the said partnership, received ^nd 
 taken and applied to his own use very large sums of money from 
 the receipts and profits of the said business, greatly exceeding 
 the proprotion thereof to which he was entitled, and in order to 
 
stage's MICHIGAN CHANOEKY PEACTICE AND POBMS 729' 
 
 conceal the same the said C. D. has never balanced the said part- 
 nership books (or has made false entries in said partnership 
 books, 01; has failed to enter the receipt thereof on the said part- 
 nership books, as the case may be.) 
 
 5. And that your orator, having during the continuance of 
 
 the said partnership business and about the day of 
 
 ; , A. D. 19 . . , discovered that the said C. D. was greatly 
 
 indebted to the said copartnership by reason of his application of 
 the partnership funds and moneys to his own use, requested the 
 said 0. D. to pay all partnership moneys received by him to the 
 
 bankers of the said firm, viz. : the Bank , and 
 
 that he would draw checks upon said bank for such sums as he 
 had occasion to; yet the said C. D. has wholly disregarded such 
 request and has continued to apply partnership money received 
 by him to his own use without paying the same in to the said 
 bankers, and has also taken to his own use money of the said co- 
 partnership received by the checks thereof, and has by such 
 means greatly increased his indebtedness to the said partnership 
 without affording your orator or the said E. F. any adequate 
 means of ascertaining the true state of his accounts. 
 
 6. And that your orator has frequently, from time to time 
 during the continuance of the said partnership, applied to the 
 said C. D. and requested him to come to a full and fair account 
 in respect to the said partnership transactions and as to the 
 moneys of the partnership received by him, and your orator well 
 hoped that the said C. D. would have complied with his said 
 reasonable request, as iu equity and good conscience he ought to 
 have done. But so to do the said C. D. hath hitherto refused and 
 still doth refuse, and the said C. D. pretends that he hgs not re- 
 ceived or applied to his own use more than his due proportion of 
 the partnership profits, whereas your orator charges the contrary 
 to be true, and your orator charges that if the said C. D. would 
 set forth a good and true account of all and every his receipts 
 and disbursements in respect to the said partnership transac- 
 tions and of the gains and profits which have been made by the 
 said partnership since the commencement thereof, it would ap- 
 pear that he, the said C. D., has received and appropriated to 
 
 his own use a large sum, that is to say dollars, 
 
 as nearly as your orator can now state the amount, over and 
 above his share of such profits and that he, the said C. D., is 
 indebted in that amount to the said partnership. 
 
 7. And that the said C. D. is now proceeding to collect the 
 accounts and debts due and owing to the said partnership, and 
 unless restrained by the order and injunction of this honorable 
 court will continue so to do, and thereby the balance due from 
 him will be greatly increased, to the great loss and injury of 
 your orator and the said E. F;, and that the said C. D. is pecun- 
 iarily irrespopsible, and that should he continue to collect and 
 
730 stage's MICHIGAN CHANCEKY PBACTICE AND FOBMS 
 
 receive such accounts and indebtedness your orator and the said 
 E. F. would sufEer irremediable injury. 
 
 8. And that the said B. F. refused to join your orator as 
 complainant in this bill and is therefore made a defendant 
 thereto. 
 
 Wlierefore your orator prays: 
 
 I. That the said C. D. and E. F., the defendants herein, may, 
 upon their several and respective corporal oaths (or without 
 oath, all answer upon oath being hereby waived), full, true, 
 direct and perfect answer make to all and singular the premises, 
 and particularly that the said C. D. may set forth a full, true 
 and correct account of all partnership moneys received by him. 
 
 II. And that the said partnership may be dissolved and an 
 account taken by or under the direction of this honorable court 
 of all and singular the partnership dealings and transactions 
 from the time of the commencement thereof, and of all the 
 moneys received and disbursed by your orator and each of the 
 said defendants respectively ia relation thereto. 
 
 III. And that the defendants may be decreed to pay to your 
 orator whatever sum of money shall be found to be due to him 
 upon such accounting, your orator being ready and willing and 
 hereby offering to pay to the said defendants respectively, what- 
 ever, if anything, shall be found to be due from him to them or 
 either of them thereon. 
 
 IV. And that in the meantime during the pendency of this 
 suit the said 0. D. may be restrained by the order and injunc- 
 tioji of this court from collecting or receiving the moneys, ac- 
 counts and debts due or owing to the said partnership or any 
 part thereof. 
 
 V. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity anid 
 good conscience. 
 
 (Add prwyer for injunction and for subpoena, if you choose to 
 do so, and conclude :) 
 And your orator will ever pray. etc. 
 
 Solicitor for Complainant and of Counsel. 
 (Add verification.) 
 
 BILL FOR SETTLEMENT BETWEEN PARTNERS AFTER 
 
 DISSOLUTION. 
 (Address and introduction.) 
 
 1, That heretofore and on or about the day of 
 
 , A. D. 19. ., your orator and one C. D., of .:, 
 
 entered into partnership together for the purpose of carrying 
 
 on (state nature of business) at , under the firm name 
 
 of (state firm name), and that by the terms^of the partnership 
 agreement between your orator and the said C. D., your orator 
 
stage's MICHIGAN CHANOEEY PRACTICE AND FOBMS 731 
 
 engaged to and did contribute and bring into the said business 
 
 as his proportion of the capital thereof the sum of 
 
 dollars, and was to receive (two-thirds) of the net profits 
 thereof and in the same proportion to share the losses thereof; 
 and the said C. D. engaged to and did contribute and bring into 
 said business as his proportion of the capital thereof the sum 
 
 of dollars, and was to receive (one-third) of the net 
 
 profits thereof and in the same proportion to share the losses 
 thereof; and that each of the said partners should devote his 
 time, skill, business ability and attention 'to the carrying on of 
 the said business, and that correct books of account should be 
 kept of all the affairs and transactions of the said business, as 
 well between the said partners as with all persons with whom 
 the said firm should have, any dealings, (if written articles of 
 copartnership were made-, insert, as in and by written articles 
 
 of copartnership, bearing date the jday of , 
 
 A. D. 19 . . , executed by your orator and the said C. D. will, 
 when produced and proved as this court shall direct, fully and 
 at large appear, and whereto your orator prays leave to refer.) 
 
 2. And that the said co.partnership business was commenced 
 
 on or about the day of , A. D. 19 . . , and was 
 
 continued from that time at aforesaid until the 
 
 day of , A. D. 19 . . , at which last mentioned 
 
 time the same was dissolved by mutual consent, and that during 
 the continuance of the said copartnership business large amounts 
 of goods were sold by the said firm to various persons on credit, 
 and the said firm became Indebted to various persons for divers 
 amounts of goods purchased by the said firm, and for the ex- 
 penses of carrying on the said business, and the said business re- 
 mains unsettled. 
 
 3. And that since the dissolution of the said copartnership 
 the said C. D. has taken possession of the books of account of 
 the said firm, and has collected a lattge amount of the accounts 
 due and owing to the said firm, and is proceeding to collect all 
 the accounts due and owing to the said firm, and has refused 
 to permit your orator to see and inspect said books of account, 
 and wholly refuses to render to your orator any account of the 
 copartnership moneys received by him, and refuses to apply 
 the same to the payment of the indebtedness of the said firm. 
 
 4. And that since the dissolution of the said co-partnership 
 your orator has frequently and repeatedly applied to the said 
 C. D. and requested him to come to a final settlement and ad- 
 justment of all matters with respect thereto, and your orator 
 weU hoped that the said C. D. would have complied with your 
 orator's reasonable request in that behalf, as in equity and good 
 conscience he ought to have done. But so to do the said C. D. 
 has hitherto absolutely refused and still does absolutely refuse. 
 
 5. And your orator further shows that upon a just, true and 
 
732 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 equitable settlement of the accounts of the said co-partnership 
 after the payment of aU the just debts and liabilities thereof, it 
 win appear that there is a large balance due and owing from 
 the said C. D. to your orator in respect to the said business. 
 
 6. And that the said C. D. is using and appropriating the 
 funds and moneys of the said co-partnership to his own use, and 
 is investing or proceeding to invest the same in rash speculations 
 on his own account, dnd is thereby in danger of becoming in- 
 solvent, and that your orator has good reason to fear and act- 
 ually does fear and hereby charges that he is in danger of los- 
 ing the amount so due to him from said C. D. in respect to the 
 said co-partnership dealings and transactions, and that by rea- 
 son of the premises the said C. D. ought to be enjoined and re- 
 strained by the order and injunction of this honorable court 
 from further collecting any of the debts due to the said co- 
 partnership, and from using or appljdng the moneys and funds 
 of the said firm or any part thereof to his own use, and that 
 some suitable and proper person ought to be appointed by this 
 honorable court to receive and take charge of the books of ac- 
 count and of all assets of the said firm and to collect the 
 accounts and indebtedness due to the said firm. 
 
 "Wherefore your orator prays: 
 
 I. That the said C. D., the defendant hereto, may upon his 
 corporal oath (or without oath, his answer on oath being hereby 
 waived) fuU, true, direct and perfect answer make to all and 
 singular the matters herein before stated and charged, and fully 
 set forth a full, true and just account of all partnership moneys 
 collected by him, and of all his actings and doings in respect to 
 the said co-partnership business sincQ the disolution therof. 
 
 II. And that an account may be taken by or under the direc- 
 tion of this honorable court of all ands ingular the said co- 
 partnership dealings and transactions, and that the same may 
 be fully adjusted and the respective rights of your orator and 
 the said defendant, C. D., ascertained. 
 
 III. And that the said defendant may be decreed to pay to 
 your orator whatever sum or sums shall be found to be due from 
 him to your orator upon such accounting, your orator being 
 ready and willing and hereby offering to pay to the said de- 
 fendant whatever sum, if g,nything, shall be found to be due to 
 him from your orator thereon. 
 
 IV. And that the said defendant may be restrained by the 
 order and injunction of this honorable court from collecting or 
 receiving any of the accounts or indebtedness due or owing to 
 the said co-partnership, and from using or applying the moneys 
 or funds of the said co-partnership or any part thereof to his 
 own use, and that he be in the meantime so restrained during the 
 pendency of this suit. 
 
 V. And that some proper person may be appointed by this 
 
stage's MICHIGAN CHANCEEY PEACDiCfi AND E'OEMS 733 
 
 honorable court as receiver to take possession and control of all 
 and singular the partnership assets and books of account, and 
 to collect the accounts and indebtedness due to the said co- 
 partnership, and that such receiver be appointed in the mean- 
 time and during the pendency of this suit. 
 
 VI. And that upon such appointment the said defendant 
 may be ordered forthwith and during the pendency of this suit 
 to deliver to such receiver all books of account, papers, docu- 
 ments, evidences of indebtedness and assets of every name and 
 nature whatsoever of the said co-partnership in his possession 
 or under his control, your orator being ready and hereby offer- 
 ing to deliver to such receiver all such books of account, papers, 
 documents, evidences of indebtedness and assets within his 
 possession or under his contfol. 
 
 VII. And that your orator may have such further relief or 
 such other relief as shall be agreeable to equity and good 
 conscience. 
 
 (Add prayer for process by injunction amd subpoena if 
 desired and conclude.) 
 
 (Add verification.) 
 
 Nuisance. 
 
 § 680. In regard to private nuisances, the interference 
 of Courts of Equity by way of injunction, is undoubtedly 
 founded upon the ground of restraining irreparable mis- 
 chief, or of suppressing oppressive and interminable 
 litigation or of preventing multiplicity of suits.^ 
 
 The statute provides that "The Circuit Court for any 
 county shall have equity jurisdiction in all matters con- 
 cerning nuisances, where there is not a plain, adequate 
 and complete remedy at law, and may grant injunction 
 to stay or prevent nuisance. ' ' ^ This statute was not in- 
 tended to enlarge or extend the jurisdiction of the 
 courts ; * it seems to be merely declaratory that the in- 
 herent powers of equity are not intended to be affected 
 by the statute concerning remedies at law for private 
 nuisances to which this sectioii is appended. 
 
 Judge Cooley has stated the grounds of jurisdiction 
 tersely as follows: "The redress if the injury is slight 
 
 1—2 story Eq. Jut., Sec, 925. 3— Norris v. Hill, 1 Mich. 202. 
 
 2— C. L., Sec. 11213. 
 
734 stage's MICHIGAN CHANCEBY PEACTICE AND FO&MS 
 
 or merely casual or if in any degree involved in doubt, 
 should be by action for the recovery of damages ; but if 
 permanent in its nature so that by persistence in it the 
 wrong doer might in time acquire rights against the 
 owner, it is admissible for the Court of Chancery to inter- 
 fere by injunction, provided the injury is conceded or 
 clearly established, though the power to do so should be 
 cautiously and sparingly exercised. An offensive trade or 
 manufacture may call as legitimately for the interference 
 of equity as any other nuisance.* 
 
 § 681. The granting of an injunction to restrain or 
 abate a nuisance is a matter which must always rest in 
 the sound discretion of the court governed by the nature 
 of the case." 
 
 § 682. A nuisance consisting of the erection of a dam 
 which will flood complainant's land will be enjoined® 
 and where a building is constructed in such a manner that 
 the eaves projected over complainant's lot in a city thus 
 causing a continuous discharge of the water of a rainfall 
 on complainant's lot to the injury of complainant the 
 nuisance will be decreed to be abated,'' and an extraor- 
 dinary high fence erected on the boundary between de- 
 fendant's residence lot and complainant's in a city where 
 the same was not needed and was erected from ill will and 
 had the effect of preventing the circulation of air and 
 shutting out the light from complainant's rooms will be 
 ordered reduced to a reasonable height.^ 
 
 The operation of offensive trades and factories causing 
 noxious odors, smoke and vapors deleterious to health 
 or constant loud noisy clangors of machinery sought to 
 be established in residence districts whereby the health 
 and comfort of the inhabitants of neighboring dwelling 
 
 4— Gilbert v. Showerman, 23 6— White v. Forbes, Walk. Ch. 
 
 Mich. 448; (opinion p. 452-8); s.ee 112; Treat v. Bates, 27 Mich. 390. 
 Edwards v. Mining Co., 38 Mich. 46. 7 — ^Wilmarth v. Woodcock, 58 
 
 5 — Edwards v. Mining Go., 38 Mich. 482, 
 Mich. 46; Hall v. Rood, 40 Mich, 8— Peck v. Eoe, 110 Mich, 52; 
 
 48; Turner v. Hart, 71 Mich. 128; Kirkwood v. Einnegan, 95 Mich. 543 ; 
 
 Miller v. Gprnwell, 71 Mich. 270. Flaherty v. Moran, 81 Mich. 52. 
 
stage's MICHIGAN CHANCEEY PEACTICB AND FOBMS 735 
 
 houses is injured or endangered is a nuisance wliicli will 
 be restrained or abated by the court * and so will a saloon, 
 and dance hall maintained in a disorderly manner to the 
 disturbance of a residence neighborhood." 
 
 § 683. Under the modern practice it is not necessary 
 for the complainant to establish his right by a suit at 
 law before applying to equity for relief against a nuisance 
 unless that right is doubtful and disputed in good faith." 
 
 § 684. It is no defence to a bill to abate a nuisance as 
 injurious to a residence neighborhood that other similar 
 nuisances exist in the same neighborhood against which 
 no proceedings have been taken as each nuisance must be 
 attacked separately and it is immaterial which one is first 
 proceeded against.^* 
 
 § 685. If the institution complained of as a nuisance 
 existed without objection before the complainant pur- 
 chased his land he cannot be heard to complain pf it as 
 he will be presumed to have purchased knowing its ex- 
 istence.^* 
 
 The remedy must be proportionate to the injury and 
 equity will not order the wall of a building to be torn 
 down because it projects a few inches into a street or alley 
 when the right of way is not materially injured." 
 
 Mere injury to the value of property can be adequately 
 remedied at law and in cases where adequate relief can 
 be obtained by an action at law for damages equity will 
 not interfere. ^^ 
 
 9 — McMorran v. Fitzgerald, 106 12— Eobinson v. Baugh, 31 Mich. 
 
 Mich. 649; Eobinson v. Baugh, 31 290. 
 
 Mich. 290 ; Treat v. Bates, 27 Mich. 13— Eomayne v . Loranger, 66 
 
 390; Ballentine v. Webb, 84 Mich. Mich. 373. 
 
 38; Northwood v. Barber Asphalt 14— Big Eapids v. Comstock, 65 
 
 Paving Co., 126 Mich. 284; Grand Mich. 78; Hall v. Eood, 40 Mich. 
 
 Eapids V. Weiden, 97 Mich. 82. 46. 
 
 10_Detroit Eealty Co. v. Barnett, 15— Turner v. Hart, 71 Mich. 128; 
 
 156 Mich. 385. Ballentine y. Webb, 84 Mich. 38. 
 
 11 — Eobinson v. Baugh, 31 Mich. 
 290; White v. Forbes, Walk. Ch. 
 112. 
 
736 stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 
 
 § 686. Several persons injured in the same manner by 
 a nuisance deleterious to health or comfort may join as 
 complainants.^® 
 
 Municipal corporations may institute suits to abate 
 nuisances.^'' 
 
 Fraud. 
 
 § 687. Equity has inherent general jurisdiction to re- 
 lieve in cases of fraud ^ and its jurisdiction in such cases 
 is concurrent with that of Courts of Law,* but where the 
 remedy at law is adequate and complete a court of equity 
 will not exercise jurisdiction.^ 
 
 § 688. Courts of equity will set aside transactions with 
 persons who from mental weakness or infirmity are easily 
 influenced by others in whom they confide, where there is 
 unfairness or unconscionable advantage taken to the in- 
 jury of such persons.* 
 
 § 689. Where a person is deceived into making a pur- 
 chase of land by the acts and false representations of the 
 vendor, however innocently made, as where the vendor 
 himself believed the statements to be true, if the decep- 
 tion regarded the essentials of the contract and worked 
 injury to the vendee, a bill to rescind may be maintained.^ 
 
 Where an award of arbitrators was fraudulently 
 obtained by the fraudulent omission by one of the parties 
 
 16 — ^Robinson v. Baugh, 31 Mich. 611; White v. Cleaver, 75 Mich. 17; 
 
 290. Tompkins v. Uolli.ster, 60 Mich. 470; 
 
 17 — Big Rapids v. Comstoek, 65 Cogswell v. Mills, 90 Mich. 353 ; Cul- 
 
 Mieh. 78; Grand Eapids v. Weiden, ver v. Avery, 161 Mich. 322; Lauben- 
 
 97 Mich. 82. gayer v. Eohde, 167 Mich. 605. 
 
 1— Wright V. Hake, 38 Mich. 525; 3 — Smith v. Walker, 57 Mich. 457 
 
 Morrison v. Meyer, 63 Mich. 238; Mack v. Frankfort, 123 Mich. 421 
 
 Ushaw V. MaUett, 64 Mich. 45; Laubengayer v. Eohde, 167 Mich. 605, 
 Spiegel V. Spiegel, 64 Mich. 345 ; 4.— AUore v. Jewell, 94 XJ. S. 506 
 
 Maney v. Casserly, 134 Mich. 252. Duncombe v. Eichards, 46 Mich. 166 
 
 2— Wheeler v. Clinton Canal Bank, Thorn v. Thorn, 51 Mich. 167 
 
 Harr. Ch. 449; Ankrim v. Wood- Leonardson v. Hnlin, 64 Mich. 1 
 
 worth, Harr. Ch. 355; Merritt v. MoDaniels v. McCoy, 68 Mich. 332, 
 Allen, 38 Mich. 487; WyckofC v. 3— Steinbeck v. Hill, 25 Mich. 78 
 
 Victor Sewing Machine Co., 43 Mich. Eood v. Chapin, Valk. Ch. 79 ; Jones 
 
 309; McKinney v. Curtis, 60 Mich. v. Wing, Harr. Ch. 301. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 737 
 
 to bring before tbem an important item a court of equity 
 will correct the award.® 
 
 § 690. Equity will retain jurisdiction in case of fraud 
 in breach of trust although a court of law might take 
 cognizance of it.'' 
 
 A deed obtained by fraud will be set aside in a court of 
 equity if no rights of innocent third parties have inter- 
 vened.* 
 
 Lands in this state purchased with money fraudulently 
 obtained from the complainant in another state will be 
 decreed to be in equity the property of the complainant.® 
 
 A grantor who was fraudulently procured to execute a 
 warranty deed of land, of which the vendee, knowing the 
 grantor's title to be doubtful, agreed to accept such title 
 as the grantor had, will be released from the covenants 
 of warranty and seisin.*" 
 
 A voluntary deed executed but not delivered was fraud- 
 ulently obtained and recorded. Held that the grantor 
 was entitled to a re-conveyance.** 
 
 Shares of stock obtained by fraud from the corporation 
 will be decreed to be delivered up to be oancelled.*^ 
 
 An order qf a Probate Court closing an estate and 
 ordering property delivered to a certain person as dis- 
 tributee, obtained by fraud will be sent aside.*^ 
 
 Transactions that have the effect of fraud upon people 
 practically helpless will not be allowed to stand although 
 not intentionally fraudulent.** 
 
 § 691. Equity will not aid one who participates in a 
 scheme proposed to defraud another for his own gain 
 
 6 — Beam v. Maeomber, 33 Mich. 10 — ^Becker v. Hastings, 15 Mich. 
 
 127. 47. 
 
 7— McKinney v. Curtiss, 60 Mich. 11— Bitter v. Bitter, 42 Mich. 108. 
 
 611; White v. Cleaver, 75 Mich. 17. 12 — Cuba Colony Co. v. Kirby, 
 
 8— Ushaw V. MaUett, 64 Mich. 45 j 149 Mich. 453. 
 
 Spiegel V. Spiegel, 64 Mich. 345; 13 — Manay v. Casserly, 134 Mich. 
 
 Peek V. Peek, 101 Mich. 304; Lewis 252. 
 
 V. Jacobs, 153 Mich. 664. 14— ^Crips v. Towsley, 73 Mich. 
 
 9— Morris v. Vyse, 134 Mich. 253. 395. 
 
738 stage's MICHIGAN CHANCEBY PEAOTICE AKD FOBMS 
 
 when it turns out that he is himself defrauded,*^ nor 
 when each party had the same opportunity for ascertain- 
 ing the facts and each was endeavoring to overreach the 
 oth^r." 
 
 One who has conveyed away his land for the purpose 
 of defrauding his creditors must bear the consequences 
 if his grantee refuses to reconvey. Courts will not adjust 
 equities between wrong doers,''' but where the complain- 
 ant was induced by the defendant by violation of confi- 
 dence and false representations to convey land to him for 
 the purpose of avoiding a supposed liability which did not 
 in fact exist, the court granted relief, both parties not 
 being equally guilty.'® 
 
 § 692. Laches. One who seeks to set aside a transac- 
 tion on the ground of fraud must be prompt in his action 
 after discovery of the fraud,' ^ but a party is not bound 
 to use diligence to discover fraud^" and is not guilty of 
 laches until after he has discovered it.^' 
 
 § 693. Proof. The proof of fraud may, and usually 
 does, consist of facts and circumstances from which the 
 fraudulent intent may be inferred.^^ Great latitude is 
 allowed in the presentation of evidence in cases of fraud.** 
 
 Estates of Decedents. 
 
 §694. Under the probate system in Michigan the 
 Court of Chancery has jurisdiction over estates of dece- 
 dents only in those cases in which an adequate remedy 
 does not exist in the probate court, the general jurisdic- 
 
 15 — ^Pakiii V. Bumsey, 104 Mieh. Barnes v. Manley, 121 Mich. 300; 
 
 636. Sheldon v. Miller, 151 Mich. 283. 
 
 16— WilUaniB v. Spun, 24 Mich. 20— Smith y. Werkheiser, 152 
 
 385. Mich. 177. 
 
 17 — G^ge V. Gage, 36 Mich. 230; 21— Bigelow v. Sheehan, 150 Mich. 
 
 Poppe V. Poppe, 114 Mich. 649. 507. 
 
 18— Barnes v. Brown, 32 Mich. 22 — Clark v. William Monroe Co., 
 
 146. 127 Mich. 300. 
 
 19 — Jones V. Disbrow, Harr. Ch. 23 — Kirshbaum v. Jasspon, 119 
 
 102; Street v. Dow, Harr. Ch. 427; Mieh. 452. 
 Carroll v. Rice, Walk. Ch. 373; 
 
stage's MICHIGAN OHANCEBY PBAOTICB AND FOBMS 739 
 
 tion over such estates being vested in the last mentioned 
 eourt.^ 
 
 §695. Burt chancery has power on a proper original 
 application to allow an advancement from an accumulat- 
 ing fund when needed for the support of infant bene- 
 ficiaries as the probate court has no such power.^ 
 
 And the rightful owner of a note which has been 
 fraudulently proved before commissioners on claims as 
 the claim of another may have relief in equity by being 
 substituted for the false claimant.* 
 
 Equity will interfere to direct land to be sold in the 
 inverse order of alienation where the order of the probate 
 court was for the sale of land contrary to that rule.* 
 
 Equity is the proper forum in which to enforce a lien 
 upon real estate given to secure payment of a legacy.^ 
 Also to require the executor of a deceased guardian to 
 account for funds of the ward fraudulently appropriated 
 by the deceased,® and as to whether or not a widow who 
 has accepted a conveyance, a mortgage and a bequest in 
 lieu of dower should be entitled to maintain a claim 
 against her husband's estate alleged by his representa- 
 tives to have been compromised and settled by agree- 
 ment.'^ 
 
 §696. A court of equity has jurisdiction to construe 
 wills according to the true intent of the testator as ex- 
 pressed in the will and is often resorted to for that pur- 
 pose.^ 
 
 1 — People V. Wayne Cir. Judge, 11 4 — Ireland v. Miller, 71 Mich. 119. 
 
 Mieh. 393; Holbrook v. Campau, 22 5 — Smith v. Jackman, 115 Mich. 
 
 Mich. 288; KeUogg v. Aldrich, 39 192. 
 
 Mich. 576 ; Pitcher v. Douglas, 37 6— Allen v. Conklin, 112 Mich. 74. 
 
 Mich. 339; Sheldon v. Walbridge, 44 7— Dakin v. Dakin, 97 Mieh. 284. 
 
 Mich. 251; Dickinson v. Seaver, 44 8 — Praser v. Chene, 2 Mich. 81; 
 
 Mich. 624; Cole v. McFall, 48 Mich. Toms v. Williams, 41 Mich. 552; 
 
 227; Patton v. Bostwick, 39 Mich. Palms v. Palms, 68 Mich. 355 ; Dakin 
 
 218. >'. Dakin, 97 Mich. 284; Dean v. 
 
 2 — ^Knorr v. Millard, 52 Mich. Mumford, 102 Mich. 510; Barnes 
 
 542; same case 57 Mich. 265. v. Marshall, 102 Mich. 248; Thurber 
 
 3— McKinney v. Curtiss, 60 Mieh. v. EUiot, 105 Mieh. 718; Godschalk 
 
 611. V. Akey, 109 Mich. 350; Gadd v. 
 
740 stage's MICHIGAN CHANCEEY PBAOTIOB AND FOEMB 
 
 Bill to Probate a Foreign Will. 
 
 §697. It is provided by statute "That whenever it 
 shall become necessary to make probate in this state of 
 the last will of any deceased person, which was executed 
 in a foreign country by the laws of which no probate of 
 will, after the death of the maker, is. required or pro- 
 vided for, if the original will cannot be produced in this 
 state for probate, the same may be proved and allowed 
 in this state, by a full and complete copy thereof, in the 
 Circuit Court in chancery in and for any county in which 
 the maker of such will left any property, at his or her 
 decease, affected by such will." * 
 
 "Any person interested in the proof and allowance of 
 any such foreign will, whether as executor, heir, devisee, 
 legatee or otherwise, may file in any such Circuit Court 
 in chancery a bill or petition settiag forth the facts neces- 
 sary to give the court jurisdiction in such case, making 
 all proper persons parties thereto and the proceedings 
 thereupon to bring the defendants before the court shall 
 be the same as is provided for in said court in other 
 
 cases. 
 
 >> 2 
 
 In order to sustain this proceeding a full and complete 
 copy of the will must be produced and the bill must show 
 and it must be proved that the will is valid and sufficient 
 to pass real or personal property of the maker in this 
 state, that it affects property of the maker in the county 
 wherein it is filed, that it was executed in a foreign coun- 
 try, that the maker is dead, that the original will is re- 
 tained in the foreign country and cannot be produced in 
 this state for probate, and that the laws of such foreign 
 country do not require or provide far the probate of such 
 will after the death of the maker,^ as well as the com- 
 plainant's interest in the will. It has been held in New 
 York that the general law of the country where the will 
 
 Stoner, 118 Mich. 689; Eobinson v. 1 — C. L., Sec. 9305. 
 
 Mnch, 116 Mich. 180; MuUreed v. 2 — C. L., Sec. 9306. 
 
 Clark, 110 Mich. 229; Gregory v. 3— C. L., See. 9307. 
 
 Tompkins, 132 Mich. 205; Hull v. 
 Osborn, 151 Mich. 8. 
 
stage's MICHIGAN CHAKOEEY PBACTIOB AND FOKMS 741 
 
 was executed as to the execution of wills should also be 
 proved,* but under the statute this would hardly seem 
 necessary but it would certainly be proper. 
 
 BILL TO PROBATE A FOREIGN WILL. 
 (Address and introduction.) 
 
 1. That he is the son of C. D., deceased, late of (state resi- 
 dence at time of death), who lately departed this life at (state 
 
 place of death) on the day of , A. D. 19 . . , 
 
 aged years and upwards, leaving a last will and testa- 
 ment, executed at (state where), in the (kingdom or as the case 
 
 may be) of , the same being a foreign country, as 
 
 hereinafter more particularly set forth. 
 
 2. And that the said C. D. died leaving property in the said 
 
 county of , which property consisted of (describe the 
 
 property fully as well personal, if any, as real) and was and 
 
 still is of the value of dollars, as near as your orator 
 
 can now estimate. 
 
 3. And that the only heirs at law and legatees and persons 
 interested in the estate of the said C. D., deceased, now living 
 are your orator and one E. D., a brother of your orator and son 
 of the said C. D., who resides at (state residence), and F. D. 
 G., a sister of your orator and daughter of the said C. D., who 
 resides at (state residence) (state names and residences of all 
 persons interested as legatees or otherwise), and that all the 
 property of the said C. D. was by the said wiE left to your 
 orator and the said E. D. and F. D. G. (name all legatees and 
 devisees), as by the terms of the said will hereinafter set forth 
 fully appears, and that no other person to the knowledge or 
 belief of your orator is interested in the estate of the said C. D. 
 
 4. And that the said last will and testament was duly ex- 
 ecuted by the said C. D., deceased, in his life time on the 
 
 day of , A. D. 19 . . , in the of 
 
 , in the of , the said of 
 
 , being a foreign country and that the said C. D. at 
 
 the time of the execution was of sound and disposing mind and 
 memory. 
 
 5. And that the said will and testament of the said C. D., 
 deceased, so executed in the said foreign country as aforesaid, 
 was fully and duly executed in accordance with the laws of the 
 said foreign country (naming it) in each and every particular, 
 and that by the laws of the said foreign country (naming it) no 
 probate of wills after the death of the maker is required or pro- 
 vided for. 
 
 4— In Ee Koberts WiU 8 Paije 
 446. 
 
742 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 6. And that the original will of the said C. D., deceased, so 
 executed as aforesaid, cannot be produced for probate in this 
 state for the following reasons : (state reasons fully and clearly 
 why original will cannot he produced.) 
 
 7.. -Aid that the said last will and testament of the said C. 
 D., deceased, is in the words and figures following, that is to 
 say : (insert exact copy of will), and that the same is a fuU and 
 complete copy thereof (if any exact copy cannot be produced, 
 state the reason why, and give the contents of the copy as nearly 
 as possible, for the statute by its terms only allows probate of 
 a full and complete copy.) 
 
 In consideration whereof and whereas, your orator is with- 
 out remedy except in this court, and pursuant to the statute in 
 such case made and provided your orator prays the aid of this 
 court : 
 
 I. That the said C. D. and F. D. Gr. (naming all the parties 
 interested in the will or in the estate) who are made defendants 
 hereto, may, without oath, all answer upon oath being hereby 
 waived, full, true, direct and perfect answer make to all and 
 singular the matters herein stated and charged. 
 
 II. And that a commission, or letters rogatory, may be 
 issued out of and under the seal of this court, directed to a 
 certain person or persons therein to be named and authorizing 
 Mm or them to take the testimony and depositions of (insert 
 names and residences of witnesses to the will and of other wit- 
 nesses, if any, whose testimony is required to establish the will). 
 
 III. And that such further proceedings may be had in accord- 
 ance with the statute in such ease made and provided, and that 
 the said last will and testament, or so much thereof as may be 
 valid in this state, may be decreed to be the last will and testa- 
 ment of the said C. D., deceased, and may be admitted to pro- 
 bate as such last will and testament. 
 
 4. And that your orator may have such further or other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 And your orator will ever pray, etc. 
 
 A. B. 
 X. T., 
 
 Solicitor for Complainant and of Counsel. 
 (Add venfication.) 
 
 Suits Concerning Marriage. 
 
 Persons Capable of Contracting Marriage. 
 
 §698. Male persons of eighteen years of age and 
 females of the age of sixteen are capable of contracting 
 
stage's MICHIGAN CHANCEBY PBACTIOE AND FOBMS 743 
 
 marriage if otherwise competent,^ but a female under the 
 age of eighteen must have the consent of one of her par- 
 ents or of her guardian if living.'' 
 
 Marriages are prohibited between persons within the 
 decree of consanguinity of first cousins, and nearer.^ 
 
 Also when either party has a lawful husband or wife 
 living unless such former marriage has been dissolved.* 
 
 No insane person, nor idiot, nor person affected with 
 syphilis or gonorrhea unless cured, is capable of con- 
 tracting marriage, neither can any person who has been 
 confined in any public institution or asylum as an epilep- 
 tic, feeble minded, imbecile or insane patient, without a 
 verified certificate, by two regularly licensed physicians 
 of complete cure and that there is no probability of the 
 transmission of the disease to posterity."* 
 
 § 699. All marriages solemnized within this state 
 which are prohibited by reason of consanguinity or 
 affinity, or by reason of either party having a former law- 
 ful husband or wife then living, or solemnized when 
 either party was insane or an idiot are void without any 
 decree of divorce.® 
 
 When either party was under the age of legal consent, 
 if they separate during such non-age; and all marriages 
 where the consent of either party was obtained by force 
 or fraud and thqre has been no subsequent voluntary 
 cohabitation, the marriage is void without any decree of 
 divorce.'^ 
 
 § 700. It is a general rule that if a marriage be valid 
 at the place where it is solemnized it is valid everywhere, 
 and if void where solemnized it is void everywhere.® 
 
 1— C. L., Sec. 8588. 6— C. L., See. 8616. 
 
 2— C. L., See. 8604. 7— C. L., Sec. 8617. 
 
 3 — C. L., Sees. 8590-8591, as am. 8 — ^Hutehins v. Kinunel, 31 Mich, 
 
 by Act No. 257, Pub. Acta of 1903. 126. 
 
 4— C. L., Sec. 8592. 
 
 5 — C. h., Sec. 8593, as am. by Act 
 No. 136, Pub. Acts of 1905. 
 
744 stage's MICHIGAK CHANCEBY PRACTICE AND EOBMS 
 
 Suits to Annul or A£Eirm a Marriage. 
 
 § 701. Where a marriage is supposed to be void, or its 
 validity is doubtful, either party may file a bill in the 
 Court of Chancery for the county wherein either resides 
 for the annulment thereof.® 
 
 When the validity of a marriage is denied by one party 
 and affirmed by the other, the party affirming it may file 
 a bill to have the marriage decreed to be valid." 
 
 §702. A suit for the annulment of a marriage, al- 
 though sometimes called a suit for divorce and so termed 
 in the proceedings in the Ecclesiastical Courts in Eng- 
 land, is of an essentially different nature from a suit for 
 divorce properly so called. In such a suit the existence 
 of the marriage itself is attacked, while a divorce suit 
 seeks the dissolution of a lawful marriage." 
 
 A suit for the annulment of a marriage on the ground 
 of fraud, duress or incapacity to contract is within the 
 inherent jurisdiction of courts of equity. ^^ 
 
 § 703. A bill for the annulment of a marriage should 
 set forth fully the facts and circumstances of the alleged 
 marriage, the time, place and manner in which it was 
 solemnized or entered into as well as the facts and cir- 
 cumstances which render it void. Thus in a case where 
 the consent of the complainant was obtained by fraud, the 
 facts constituting the fraud must be clearly stated as well 
 as the fact that the complainant was thereby deceived and 
 that but for such fraud and deceit the complainant would 
 not have consented to the marriage.^* Fraud may be 
 shown to have existed by causing the complainant to be- 
 come intoxicated to such a degree as to be unable to real- 
 ize what he was doing and while in that condition obtain- 
 ing his apparent assent." Pregnancy of the woman by 
 another than her husband, if concealed from the husband 
 
 9— C. L., Sec. 8618. Mich. 491 ; Wightman v. Wightman, 
 
 10— C. L., Sec. 8619. 4 Johns. Qh. 343. 
 
 11 — Schafberg v. Schafberg, 52 13— DawBon v. Dawson, 18 Mich. 
 
 Mich. 529. 335; Leavitt v. Leavitt, 13 Mich. 452. 
 
 12— Maier v. Cir. Judge, 112 14 — Gillett v. Gillett, 78 Mich. 184. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 745 
 
 is a fraud upon him for which the marriage may be an- 
 nulled,i5 but the mere want of chastity in the female even 
 if she represented herself as virtuous and the husband 
 was deceived is not a cause for annulment. !« The bill 
 must show that there has been no voluntary marital in- 
 tercourse since the discovery of the fraud. 
 
 Duress or force may be physical by actual violence or 
 threats of personal injury or moral by threats of prose- 
 cution." 
 
 §704. The annulment of a marriage for fraud or 
 duress may be decreed on a cross bill, or answer claiming 
 the benefit of a cross bill in cases where the original biU 
 was filed for a divorce, claiming a legal marriage.^* 
 
 The bill should be verified in the same manner as a bill 
 for divorce, the complainant swearing to the absence of 
 collusion, and a cross bill, or answer claiming the benefit 
 of a cross bill, seeking such relief should be verified in 
 like manner,!* i^^^ ^ ^j^g clause as to there being no 
 collusion be omitted by inadvertence this verification may 
 be supplied by amendment in cases where it would be 
 equitable to allow it.*** 
 
 § 705. It is provided by statute that all issues upon 
 the legality of a marriage (except in cases of physical 
 incapacity) shall be tried by jury.^^ This statute is not 
 mandatory and the right to a jury trial may be con- 
 sidered waived if not demanded after the filing of a rep- 
 lication,^^ but the submission of this issue to a jury at the 
 request of one party after the lapse of a long period 
 without making any such demand and after the case has 
 been noticed for trial without a jury by the other party 
 is discretionary with the court.^^ 
 
 94 
 94 
 
 52 
 112 
 
 15 — Sissung V. Sissung, 65 Mich. 
 
 19 — Harrison 
 
 V. Harrison, 
 
 180; Harrison v. Harrison, 94 Mich. 
 
 Mich. 559. 
 
 
 559. 
 
 20 — Harrison 
 
 V. Hnrrison, 
 
 16— Leavitt v. Leavitt, 13 Mich. 
 
 Mich. 559. 
 
 
 452. 
 
 21— C. Jm, Sec 
 
 . 444. 
 
 17— Smith v. Smith, 51 Mich. 607. 
 
 22— Schafberg 
 
 V. Schafberg, 
 
 18 — Nadra v. Nadra, 79 Mich. 
 
 Mich. 529. 
 
 
 591; Harrison v. Harrison, 94 Mich. 
 
 23 — Maier v. 
 
 CSr. Judge, , 
 
 559. 
 
 Mich. 491. 
 
 
746 stage's MICHIGAN CHANCEET PEACTICB AND FOBMS 
 
 The verdict of a jury in such a case is not final but 
 merely advisory.^* 
 
 In all other respects the proceedings in suits for the 
 annulment or affirmation of marriage are conducted in 
 the same manner as other suits in courts of chancery."^ 
 
 §706. The decree in suits of this nature is that the 
 marriage is null and void and is annulled or that it is 
 legal and valid to all interests and purposes as the case 
 may be.^* 
 
 § 707. A bill to annul a marriage on the ground of 
 the non-age of one of the parties may be filed by the par- 
 entior guardian if living and if neither parent or guardian 
 be living by thie next friend of the minor, but not by the 
 party of full age, and no such marriage shall be annulled 
 if the parties have freely cohabited after both have 
 reached the age of consent.*^ 
 
 Such a bill should therefore negative any such cohabi- 
 tation. 
 
 §708. In a suit to annul a marriage the court has 
 power to grant an order for allowances to the wife to be 
 paid by the husband for expenses of carrying on her de- 
 fence to his suit and temporary alimony.^* 
 
 Divorce. 
 
 § 709. When either party (to a lawful marriage) shall 
 be sentenced to the state prison for life, the marriage is 
 thereby dissolved without any decree for divorce; and 
 no pardon will restore the marital relation.^ 
 
 A divorce from the bonds of matrimony (where the 
 parties were lawfully married) may be decreed. 
 
 For the adultery of either party. 
 
 For the physical incapacity of either party at the time 
 of the marriage. 
 
 When either party has been sentenced to imprisonment 
 
 24— Maier v. Cir. Judge, 112 Mich. 27— C. L., Sec. 8646. 
 
 491- 28— Webb v. Wayne CSr. Judge, 
 
 25— C. L., Seo. 8627. 144 Mich, 674. 
 
 26— C. L., Sees. 8618-8619. l^C. L., Sec. 8620. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 747 
 
 in any prison, jail or house of correction for three years 
 or more, and no pardon granted after such divorce shall 
 have been decreed shall restore the marital relation. 
 
 For desertion by either party for two years or more. 
 
 Where either party has since the marriage become an 
 habitual drunkard. 
 
 And the court may in its discretion decree such a 
 divorce to a party residing in this state in cases where 
 the other party has obtained a decree of divorce in some 
 other state.^ 
 
 A divorce from bed and board forever, or for a limited 
 time, may be decreed for the cause of extreme cruelty, 
 whether practiced by using personal violence or by any 
 other means, or by utter desertion by either of the parties 
 for the term of- two years : and a like divorce may be de- 
 creed on the complaint of the wife when the husband, 
 being of sufficient ability to provide a suitable mainten- 
 ance for her, shall grossly or wantonly and cruelly refuse 
 or neglect so to do.^ 
 
 § 710. A divorce from the bonds of matrimony may be 
 decreed for either of the causes mentioned in the preced- 
 ing section whenever, in the opinion of the court, the 
 circumstances of the case shall be such that it will be 
 discreet and proper to do so, but no divorce from the 
 bonds of matrimony for either of the causes mentioned in 
 the preceding section shall be entered in any case where 
 the same is not asked for by the complainant in the bill 
 of complaint filed therein or by the defendant on a cross 
 bill unless the court hearing the evidence shall deem it 
 for the best interests of the parties to grant a divorce 
 from the bonds of matrimony and in that event the court 
 may grant such divorce.* 
 
 § 711. Divorces from bed and board are not favored. 
 It is the settled policy of the courts to grant absolute 
 divorce from the bonds of matrimony under this statute 
 on grounds of public policy to prevent the mischief aris- 
 
 2 C. L., Sec. 8621. 4 — C. L., Sec. 8623, as am. by Act 
 
 3— C. L., Sec. 8622. No. 324 Pub. Acts of 1907. 
 
748 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 ing from turning out into the world in enforced celibacy 
 persons who are neither married nor unmarried.® 
 
 §712. No decree of divorce shall be made by any 
 court in the state in any case unless the party applying 
 therefor shall have resided in this state for one year im- 
 mediately preceding the time of filing the bill, or, that 
 the marriage was solemnized in this state and the party 
 applying for divorce shall have resided in this state from 
 the time of such marriage until the time of bringing suit. 
 
 No decree of divorce shall be granted in any case ex- 
 cept when the defendant is domiciled within this state at 
 the time the bill for divorce is filed, or when the defendant 
 was domiciled within this state when the cause for divorce 
 alleged in the bill arose, or when the defendant shall have 
 been brought in by publication or shall have been person- 
 ally served with process in this state, or shall have been 
 personally served with a copy of the order for appear- 
 ance and publication within this state or elsewhere, or has 
 voluntarily appeared in such action. Whenever such or- 
 der shall be served outside of this state proof of service 
 shall be made by affidavit of the person serving it and 
 if such affidavit be made outside of this state it shall have 
 attached the certificate of the clerk of a court of record 
 certifying the official character of the notary or justice 
 before whom it was sworn and the genuineness of his 
 signature. 
 
 In cases of desertion such desertion shall be deemed 
 to have taken place in this state when the parties were 
 domiciled in this state at the time the defendant actually 
 abandoned the complainant without proof of actual intent 
 at the time. Whenever the cause of divorce arose outside 
 of this state no decree of divorce shall be granted unless 
 complainant or defendant shall have resided in this state 
 for two years immediately before filing the bill. 
 
 §713. No proofs or testimony shall be taken in any 
 case for divorce until the expiration of two months from 
 
 5 — ^Burlage v. Burlage, 65 Mich. Horning v. Horning, 162 Mich. 130; 
 624; Sullivan v. Sullivan, 112 Mich. Coon v. Coon, 163 Mich. 644. 
 674; XJtley v. Utiey, 155 Mich. 258; 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 749 
 
 the time of filing th,e bill, except where the cause for di- 
 vorce is desertion or where the testimony is taken con- 
 ditionally for the purpose of perpetuating such testimony. 
 When the defendant shall not be domiciled in this state 
 at the time of commencing the suit or at the time the cause 
 for divorce arose before any decree of divorce shall be 
 granted the complainant must prove that the parties have 
 actually lived and cohabited together within this state as 
 husband and wife or that the complainant has resided in 
 this state in good faith for two years immediately pre- 
 ceding the filing of the bill,^ 
 
 § 714. No divorce shall be decreed in any case when it 
 shall appear that the biU was founded on collusion be- 
 tween the parties and the oath or affirmation administered 
 to the complainant in swearing to the bill shall in addi- 
 tion to other requirements recite "and you do solemnly 
 swear (or affirm) that there is no collusion, understand- 
 ing or agreement whatever between yourself and the de- 
 fendant herein in relation to your application for 
 divorce" and no divorce shall be decreed in any case 
 where the party complaining shall be guilty of the same 
 crime or misconduct charged against the defendant.'' 
 
 § 715. A bill for divorce may be exhibited by a wife in 
 her own name as well as by a husband : and in all cases 
 the defendant may answer the bill without oath or affir- 
 mation.^ 
 
 §716. Suits to annul or affirm a marriage, or for a 
 divorce, shall be conducted in the same manner as other 
 suits in courts of equity, and the court shall have the 
 power to award issues, to decree costs, and to enforce its 
 decrees as in other cases.® 
 
 § 717. All bills for divorce whether husband or wife 
 is complainant must be duly verified on oath.^" 
 
 6— C. L., See. 8624, as am. by Act 8— C. L., See. 8626. 
 No. 210 Pub. Acts of 1899. 9— C. L., Sec. 8627. 
 
 7— C. L., Sec. 8625. 10— Chancery Eule 29a. 
 
750 stage's MICHIGAN CfiANCEEY PBACTICE Al^^D FOBMS 
 
 §718. The jurisdiction over divorce proceedings is 
 wholly statutory." 
 
 The jurisdiction of the court being statutory the bill 
 should state all the facts necessary to show jurisdiction. 
 
 Thus the bill must show a legal naarriage,^^ giving the 
 time and place and name of the female before marriage, 
 and the better practice is to state the name of the minis- 
 ter of the gospel or justice of the peace by whom it was 
 solemnized, or if a marriage in accordance with the pecu- 
 liar modes of solemnizing marriages among people of 
 any particular denomination the fact should be stated that 
 it was according to such mode and in case of a common 
 law marriage, so called, the facts and circumstances 
 thereof should be stated. 
 
 It must also show the consummation of the marriage 
 by cohabitation and when and where and for how long a 
 time such cohabitation existed. 
 
 It must state the residence of the parties, or if the resi- 
 dence of the defendant be unknown that fact should be 
 stated. The residence of the complainant within this 
 state for the time required by the statute must be shown,^® 
 as well as the fact that at the time of filing the biU one of 
 the parties resides in the same county as that wherein 
 the suit is brought, but a wife who has left her husband's 
 home in one county on account of his misconduct and 
 taken up her residence in another in good faith may imme- 
 diately after such change bring suit in the county to which 
 she has removed." 
 
 The bUl must state the names and ages of all children 
 the issue of such marriage.^^ 
 
 § 719. The bill must also set forth the grievance and 
 misconduct complained of with certainty, stating the 
 time and place and circumstances. 
 
 Thus if adultery be charged the bill must state the 
 
 11— Baugh V. Baugh, 37 Mich. 14— Wright v. dr. Judge, 117 
 
 59. Mich. 244. 
 
 12— Eose V. Eose, 67 Mich. 819. 15— C, L., Sec 8657, as am. by 
 
 13— Bradfleld v. Bradfield, 154 Act No. 284 Pub. Acts of 1909. 
 
 Mich. 115. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 751' 
 
 time, place and occasion of the acts charged with sufficient 
 particularity to identify them, " but a charge of living in 
 open and notorious adultery with a certain person named, 
 for a given time at a certain place has been held suffi- 
 cient,^'' and no evidence can be given of other acts un- 
 less the acts specified are proved.'* The bill should also 
 aver that there has been no cohabitation since the dis- 
 covery of the adultery, and should contain an averment 
 that the complainant has never been guilty of a like 
 offence. 
 
 So if physical incapacity of. the defendant be charged 
 such incapacity should be stated with particularity and 
 certainty, that it existed at the time of marriage ^® and 
 that by reason thereof the marriage could not be con- 
 summated and that it is incurable.*" 
 
 In case of sentence to imprisonment for three years 
 for crime, the bill should state the crime, the court in 
 which the conviction was had, the conviction and sentence 
 of the defendant,^ 1 and that such conviction and sentence 
 remain in full force and effect not reversed, vacated or 
 set aside.^2 
 
 In case of desertion, the time, place and manner of 
 desertion should be stated, as well as the fact that it was 
 not with the consent but against the wUl of the complain- 
 ant ^s and without the fault of the complainant or any 
 just cause or provocation.** It must also be shown to 
 have been continuous for the period of two years.** 
 
 16— Eandall v. Bandall, 31 Mich. 20— Ferris v. Ferris, 8 Conn. 163 ; 
 
 194; Shoemaker v. Shoemaker, 20. Newell v. Newell, 9 Paige 25. 
 
 Mich. 222; Dunn v. Dunn, 11 Mich. 21 — Thomas v. Thomas, 51 111. 
 
 284. 162. 
 
 17 — Marble v. Marble, 36 Mich. 22 — Vinsant v. Vinsant, 49 Iowa 
 
 386. 639; Kivers v. Eivers, 65 Iowa 568. 
 
 18— Shoemaker v. Shoemaker, 20 23— Bose v. Eose, 50 Mich. 92; 
 
 Mich. 222; Dunn v. Dunn, 11 Mich. Cooper v. Cooper, 17 Mich. 205; Cox 
 
 284. y. Cox, 35 Mieh. 461. 
 
 19 — Bascomb v. Bascomb, 5 Fos- 24 — Porritt v. Porritt, 18 Mich, 
 
 ter, 267; Newell v. Newell, 9 Paige 420; Warner v. Warner, 54 Mieh. 
 
 25; Devenbagh v. Devenbagh, 5 492. 
 
 Paige 554. 25— Porritt v. Porritt, 18 Mich. 
 
752 stage's MICHIGAN CHANCEKY PBACTICE AND FOEMS 
 
 In case of having become an habitual drunkard the bill 
 must state that the defendant was habitually sober at 
 the time of the marriage and has since contracted the 
 habit of drunkenness.'*® 
 
 In case where the other party has obtained a divorce 
 in another state, the. fact of such divorce should be stated 
 naming the state and court and time and place when it 
 occurred and such circumstances as show it was a griev- 
 ance to complainant.^'^ 
 
 So also when cruelty is charged the specific acts of 
 cruelty must be stated circumstantially,** although when 
 a continued course of cruel treatment is alleged other 
 acts then those charged may be proved to give character 
 to the specified acts which have been proved.** 
 
 A bill for failure to support must show the means and 
 ability of the husband as well as his cruel or wanton 
 neglect to support her all the circumstances should be 
 shown. ^^ 
 
 §720. Several of these different grounds for divorce 
 may be charged in the same bill, and the court will de- 
 cree a divorce on any ground properly charged and 
 proved although other charges in the same bill be not 
 proved.^' 
 
 Incompatibility of temper although causing mutual 
 wrangling and unhappiness is no cause for divorce.*" 
 
 §•721. The bill should aver that the complainant has 
 
 420; Eudd v. Budd, 33 Mich. 101; 184; Stewart v. Stewart, 155 "Mich. 
 
 Cooper V. Cooper, 17 Mich. 205. 42L 
 
 26— Porritt v. Porritt, 16 Mich. 31— BaUey v. Bailey, 121 Mich. 
 
 140. 236; McClung v. McClung, 40 Mich. 
 
 27— Wright v. Wright, 24 Mich. 493; Runkle v. Buakle, 96 Mich. 
 
 180. 453 ; Whitacre v, Whitaore, 64 Mich. 
 
 28— Dashbrook v. Dashbrook, 62 232; Chaffee v. Chaffee, 15 Mich. 
 
 Mich. 322; Briggs v. Briggs, 20 184. 
 
 Mich. 34. 32 — Morrison v. Morrison, 64 
 
 29— Briggs v. Briggs, 20 Mich. 34. Mich. 53 ; Rose v. Eose, 50 Mich. 
 
 30— Brown v. Brown, 22 Migh. 92; Beller v. Seller, 50 Mich. 49; 
 
 242; Chaffee v. Chaffee, 15 Mich. Cooper v. Cooper, 17 Mich. 205. 
 
stage's litlCHIGAN CHANCERY PEACTICE AND FOBMS 753 
 
 never been guilty of like offences toward the defendant 
 as where both are to blame neither can obtain a divorce.^* 
 
 § 722. It is provided by rule that all bills for the pur- 
 pose of obtaining divorce, whether husband or wife is 
 complainant, shall be duly verified by oath in the usual 
 manner of verifying bills, where by the course and prac- 
 tice of the court an oath is required. In a biU for divorce 
 on the ground of adultery the complainant must also posi- 
 tively aver that the adultery charged in the bill was com- 
 mitted without the consent, connivance, privity or pro- 
 curement of the complainant, and that the complainant 
 has not voluntarily cohabited with the defendant since 
 the discovery of such adultery. And in all such bills, and 
 in all bills for divorce upon any ground, the complainant 
 shall also positively aver that the act done or cause 
 charged in the bill for which divorce is sought was com- 
 mitted without the consent, connivance, privity or pro- 
 curement of the complainant, and that such bill is not 
 founded on, or exhibited in consequence of any collusion, 
 agreement or understanding whatever between the 
 parties thereto, or between the complainant and any other 
 person.** 
 
 § 723. The proceedings subsequent to the filing of the 
 bill are similar to those in chancery cases generally, ex- 
 cept in the particulars hereinafter mentioned. 
 
 §724. If there are minor '.:bildren under the age of 
 fourteen years it is provided by statute that a copy of 
 the subpoena issued in the cause shall be served on the 
 prosecuting attorney of the county wherein the suit is 
 commenced and it is made the duty of such prosecuting 
 attorney to enter his appearance in the cause and, when 
 in his judgment the interest of such children or the public 
 good shall so require, to introduce evidence and appear 
 at the hearing and oppose the granting of a decree of 
 divorce. And in any case, where there are no sucl^ chil- 
 dren, when it shall appear to the court that the public 
 
 33— Hoff V. Hoff, 48 Mich. 281; 34— Chancery Bule g9a. 
 
 Ortman v. Ortman, 92 Mich. 172; 
 Morrison v. Morrison, 64 Mich. 53. 
 
754 stage's MICHIGAK CHANCEBY PRACTICE AND FORMS 
 
 good SO requires, an order may be entered requiring tlie 
 prosecuting attorney to appear and oppose the granting 
 of a decree of divorce. For every case which he investi- 
 gates and in which he appears by consent of the court, 
 he shall receive five dollars from the county treasury. 
 This act does not prohibit prosecuting attorneys or their 
 partners from acting as solicitors or counsel for either 
 party in the cause but in such case the court shall appoint 
 some reputable attorney to perform such services who 
 shall receive the same compensation.^' 
 
 Verification. The verification required by statute '* 
 cannot be waived by any act of the defendant,'^ but in 
 cases where it was apparent that there was in fact no 
 collusion and that the omission was inadvertent the court 
 may permit the omission to be supplied by amendment.^^ 
 
 § 725. Amendments. Divorce bills may be amended 
 in like manner as other sworn bills, but all ameiidments 
 must be verified in the same manner as the original bill,^^ 
 but it has been held that where the original bill was 
 properly verified, an objection that a supplemented bill 
 filed by stipulation between the parties is not so verified, 
 has no force.*" But a bill for divorce cannot be amended 
 by substituting a prayer for the annulment of the mar- 
 riage for the prayer for a divorce.*^ 
 
 §726. Evidence. It is provided by statute that '*No 
 decree of divorce shall be made solely on the declarations, 
 confessions or admissions of either of the parties, but the 
 court shall require other evidence of the facts charged 
 in the bill for that purpose, but either party may if she 
 or he elect, testify in relation to such facts. Provided, 
 however, that the testimony of either party to the action 
 shall be taken only in open court, and that such testimony 
 
 35 — C. L., See. 8657, as am. by 39— Briggs v. Brlggs, 20 Mieh. 34 ; 
 
 Act No. 284 Pub. Acts of 1909. Green v. Qreen, 26 Mjeh. 437. 
 
 36^0. L., See. 8625. 40— Taekaberry v. Tackaberry, 
 
 37— Ayres v. Circuit Judge, 90 101 Mieh. 102. 
 Mich. 380. 41— Schaftberg v. Schaftberg, 52 
 
 38 — HarriBon v. Harrison, 94 Mich, §20. 
 Mich. 559. 
 
Stagers Michigan chancery practice and forms 755 
 
 shall not be received in support or in defence of a charge 
 of adultery." 
 
 Under this statute the practice of takiag all the evi- 
 dence in divorce cases in open court as in a suit at law 
 has become very prevalent as in case of a reference to 
 a Circuit Court commissioner to take proofs, such com- 
 missioner could not take the testimony of either of the 
 parties except in open court under the supervision of 
 the judge.*^ 
 
 The testimony of the parties may be considered and 
 given due weight, the courts will be cautious in consider- 
 ing it and it has been considered insufficient of itself, 
 unless corroborated, to authorize a decree for divorce,** 
 but when the testimony of a party is convincing there is 
 no hard and fast rule against granting a decree upon the 
 testimony of the complainant alone.*^ 
 
 It follows that neither the taking a bill as confessed by 
 the default of the defendant, nor the admission by the 
 defendant in the answer of the truth of the charges in 
 the bill would be sufficient to authorize a decree, without 
 proof,*® otherwise there might be collusion. 
 
 § 727. The rules provide that if any such bill be taken 
 as confessed, or the facts charged therein are admitted 
 by the answer, the complainant may have an order of 
 course entered or filed for reference to a commissioner 
 to take proof of all the material facts charged in the bill 
 and to report such proof to the court with his opinion 
 thereon.*'' 
 
 It will be observed that this rule is not mandatory but 
 permissive, and it is now a common practice to take the 
 proofs ia open court in cases taken pro confesso. 
 
 42 — 0. L., Sec. 8652. Ch. 532; Kotinson v. Eobinson, IB 
 
 43 — Page v. Page, 51 Mich. 88; Mich. 79. 
 Stuart V. Stuart, 47 Mich. 566. 47 — Chancery Rule, 29b; see Saw- 
 
 44 — Ortman v. Ortman, 92 Mich, yer v. Sawyer, Walk, Ch. 48 Eobin- 
 
 172; Minde v. Minde, 65 Mich. 633. son v. Eobinaon, 16 Mich. 79; Daw- 
 
 45 — Murphy t. Murphy^ 130 Mich, son v. Dawson, 18 Mich. 335 ; Por- 
 
 97; Eosecrance v. Eosecrance, 127 ritt v. Porritt, 18 Mich. 426; Bishop 
 
 Mich. 322. v. Bishop, 17 Mich. 217. 
 
 46 — Emmons t. Emmons, Walk, 
 
756 stage's MICHIGAN CHANCEBY PBACTIOE AND F0EM6 
 
 §728. If any of the testimony is taken before a Cir- 
 cuit Court commissioner or other officer it is made the 
 duty of such commissioner or other officer to put to 
 every witness the question following, "Do you know of 
 any fact, matter or circumstance, which will in any way 
 tend to weaken complainant's case for divorce? If so, 
 state the same particularly and fully," and the question 
 and answer written out verbatim must be returned to 
 the court with the other testimony.*^ 
 
 § 729. It is also provided by statute that "No proofs 
 or testimony shall be taken in any case for divorce until 
 the expiration of two months from the time of filing the 
 bill therefor, except where the cause for divorce is 
 desertion, or when the testimony is taken conditionally 
 for the purpose of perpetuating such testimony."*^ 
 
 And by rule. "No sentence or decree of nullity de- 
 claring void a marriage contract,- or decree for a divorce 
 or for a separation or limited divorce shall be made of 
 course by the default of the defendant, or in consequence 
 of any neglect to appear at the hearing, or by consent, 
 and every cause shall be heard after the trial of the 
 issue, or upon the coming in of the commissioner's re- 
 port at a stated term of the court. " ^" ■ 
 
 And also. "If such bill is taken as confessed the com- 
 plainant shall show to the court by affidavit whether or 
 not the defendant was personally served with process, 
 or order of appearance, and that the proceedings to take 
 the bill as confessed have been regular according to the 
 rules and practice of the court. ' ' ^^ 
 
 §730. Testimony taken before a Circuit Court com- 
 missioner must be read over to the witnesses for correc- 
 tion if necessary, and then signed by them respectively ; 
 this should not be waived except in cases of absolute 
 necessity.®^ 
 
 48— C. L., Sec. 8656. 61-^Chancery Rule 29e. 
 
 49 — C. L., See. 8624, as am. by 52 — Looker v.. Looker, 46 Mich. 
 
 Act Np. 210 Pub. Aqts of 1899. 68. 
 50 — Chancery Rule 29d. 
 
stage's MICHiaAN CHANOEEY PRACTICE AND FOEMS 757 
 
 § 731. During the pendency of the suit the court may 
 at any time, on the petition of the wife prohibit the hus- 
 band from imposing any restraint on her personal liberty 
 during the pendency of the suit."** 
 
 The court may also during the pendency of the suit on 
 the application of either party, make such order concern- 
 ing the care, custody and maintenance of the minor chil- 
 dren of the parties as shall be deemed proper and for 
 the benejfit of the children.^* 
 
 §732. The court has power also independent of any 
 statute, on a proper showing made in the bill, or petition, 
 to restrain the husband from interfering in any manner 
 with the wife and even from visiting her or annoying her 
 with his presence during the suit^^ and also from dis- 
 posing of or encumbering his property in such a manner 
 as to deprive the wife of the benefit of a decree for ali- 
 mony and from interfering with the custody of children 
 or property in the possession of the wife.^® But he will 
 not be enjoined from using his property to support him- 
 self or his children, or to carry on his business.®'' 
 
 § 733. During the pendency of a suit for divorce the 
 court may on application of either party, make such order 
 concerning the care, custody and maintenance of the 
 minor children of the parties as shall be deemed proper 
 and necessary and for the benefit of the children.®* 
 
 Alimony and Expenses of Wife. 
 
 § 734. Expenses. The court may, in its discretion, in 
 every suit brought for a divorce or separation, "require 
 the husband to pay any sums necessary to enable the wife 
 
 53— C. L., Sec. 8629. 536; Wiley v. Wiley, 33 Tex. 358; 
 
 54 — C. L., Sec. 8630. Vermilyea v. Vermilyea, 32 Minn. 
 
 55— Gardner v. Gardner, 87 N. T. 499; Wilson v. Wilson, Wright Ch. 
 
 14. (100) 129; Wharton v. Wharton, 37 
 
 56 — ^Busenbark v. Buaenbark, 33 la. 696; Bamford v. Bamford, 4 
 
 Kan. 572; Boils v. Boils, 41 Tenn. Ore. 30. 
 
 284; Eieketts v. Eieketts, 4 Gill. 57— Rose v. Eose, 11 Paige 166; 
 
 (Md.j 105; Johnson v. Johnson, 59 High on Inj., Sec. 845. 
 
 Ga. 613; Vanzant v. Vanzant, 23 111. 58— C. L., See. 8630. 
 
758 stage's MICHIGAIT CHANCEBY PRACTICE AND FOBMS 
 
 to carry on or defend the suit during its pendency and it 
 may decree costs against either party and award execu- 
 tion for the same, or it may direct such costs to be paid 
 out of any property sequestered or in the power of the 
 court or in the hands of a receiver." ^^^ 
 
 This statute clearly indicates that such proceedings 
 are to be maintained at the cost of the wife unless the 
 court shall relieve her of such cost by an order for ex- 
 pense money to be paid by her husband.^* An order for 
 the payment of expenses will be made when a wife has no 
 separate property to enable her to employ counsel to 
 prosecute or defend a suit for divorce.*" The order may 
 also be made when the wife has property of her own 
 but it is unproductive, or not available or under the con- 
 trol of the husband.*^ 
 
 § 735. Alimony. Alimony is a provision made for the 
 support of the wife from the property of her husband 
 when living apart from him. It is of two kinds, tem- 
 porary alimony, during the pendency of divorce proceed- 
 ings, and permanent alimony adjudged in the decree to 
 be paid after a divorce is granted. 
 
 §736. Temporary Alimony. There is no statute ex- 
 pressly authorizing an order for temporary alimony but 
 such authority is incident to all suits for divorce in cases 
 where the wife, whether she be complainant or defendant, 
 is without available means of her own and the husband 
 is of sufficient ability to furnish it, and has been recog- 
 nized without question in all divorce suits where the cir- 
 cumstances require it.®^ Thfe order will be denied where 
 the application does not clearly show that the wife is 
 without sufficient available means of her own as the court 
 will not presume that she is destitute.** The amount is 
 
 58a— O. L., See. 8628. 62— Story v. Story, Walk. Ch. 421 ; 
 
 59 — ^Wolcott V. Patterson, 100 Haines v. HaineS, 35 Mich. 138; 
 
 Mieh. 227. Eose v. Rose, 53 Mich. 585; Gold- 
 
 60— Story v. Story, Wal. Ch. 421 ; smith v. Goldsmith, 6 Mich. 285. 
 
 Haines v. Haines, 35 Mich. 138. 63 — Ross v. Boss, 47 Mich. 185. 
 
 61 — Boss V. Griffin, 53 Mich. 5; 
 Potts V. Potts, 68 Mich. 49S. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 759 
 
 wholly discretionary with the court and unless such dis- 
 cretion is grossly abused the Supreme Court will not re- 
 view it,** but the allowance should be limited to the actual 
 needs of the wife until the result of the suit indicates 
 whether or not she will be entitled to a more liberal al- 
 lowance.®^ It should not be so large as to influence the 
 wife to prolong the suit. 
 
 § 737. The order for temporary alimony and expenses 
 is obtained by the petition of the wife, which must be on 
 oath, stating the facts and circumstances on which the 
 prayer for alimony and expenses is based. It must state 
 that she has no property of her own, or if she has any 
 that such property is unavailable or under control of her 
 husband or insufficient, setting forth the facts concern- 
 ing it.** 
 
 It must also state the means, property and income of 
 the husband, and if the same is not fully known it must 
 state it as far as can be ascertained. It has been held 
 that where the wife is the defendant she must in her peti- 
 tion deny the charge made in the bill or show condona- 
 tion or other valid defense.*'' 
 
 A copy of the petition with notice of the time and place 
 where it will be brought up for hearing must be served on 
 the husband, or on his solicitor if he has appeared in the 
 case, at least four days before the day on which it is to 
 be heard.** 
 
 §738. At the hearing of this petition the court if it 
 decides to grant the petition may refer it to a Circuit 
 Court commissioner to enquire into and report on the 
 amount proper to be awarded, or it may, and in modern 
 practice usually does, settle the amount itself without a 
 reference. 
 
 64 — Boss V. Griffin, 53 Mich. 5 
 Haines v. Haines, 35 Mich. 138 
 Forman v. Forman, 53 Mich. 581 
 
 66— Boss V. Boas, 47 Mich. 185. 
 67 — Osgood V. Osgood, 2 Paige 
 261; Wood v. Wood, 2 Paige 114. 
 
 Eose V. Eose, 53 Mich. 585. 68 — Law Eule 19, made applicable 
 
 65 — Haines v. Haines, 35 Mich, to Chancery by Chancery Eule 15. 
 138. 
 
760 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 At this hearing the question of the guilt or innocence 
 of a defendant wife will not be considered ; ®® by her 
 denial in her petition she has in effect pleaded "not 
 guilty" and is entitled to means to make her defence. 
 While counter aflSdavits are allowed to be filed and read 
 it would seem that such affidavits are only material so 
 far as they relate to the necessities of the wife and the 
 amount of her own property, if any, and to the means 
 and property of the husband. 
 
 §739. The method of enforcement of an order for 
 temporary alimony is by proceedings by attachment, for 
 contempt and not by execution.''''' Non-payment of tem- 
 porary alimony when ordered and properly demanded 
 is a contempt of court for which the husband can be im- 
 prisoned,''^ but the party attached is entitled to a hear- 
 ing to show cause why he has failed to comply with the 
 order.'' " 
 
 An allowance by way of temporary alimony for the 
 support of the wife during the pendency of the suit may 
 be- awarded to the wife at the time of making the deqree 
 even if her bill be dismissed, it appearing that her suit 
 was in good faith.''^ 
 
 §740. Temporary alimony ends with the decree, but 
 the Supreme Court may, in its discretion, order tem- 
 porary alimony and expenses during the pendency of an 
 appeal,''* but the application should be accompanied by a 
 showing by counsel that the appeal is in good faith where 
 the wife is the defendant,''® and where the decree below 
 was against the wife as defendant and she appeals, the 
 
 69— Wood V. Wood, 2 Paige 114; 72— Steller v. Steller, 25 Mich. 
 
 Smith V. Smith, 1 Edw. Ch. 255; 159. 
 
 Osgood V. Osgood, 2 Paige 621. 73— Bishop v. Bishop, 17 Mich. 
 
 70— Boss V. Griffin, 53 Mich. 5; 211. 
 
 SteUer v. Steller, 25 Mich. 159; C. 74— Goldsmith v. Goldsmith, 6 
 
 L., SeQ. 10891, as am. by Act No. Mich. 285; Zeigenfus v. Zeigenfus, 
 
 230 Pub. Acts 1899. 21 Mich. 414. 
 
 71 — Haines v. Haines, 35 Mich. 75— Holtheofer v. Holtheofer, 47 
 
 138. Mich. 643. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 761 
 
 Supreme Court is disposed to reserve questions of ali- 
 mony until the hearing J' 
 
 § 741. In cases wliere the husband is complainant and 
 the court makes an order for expenses and alimony, the 
 poverty of the husband is no excuse for non-payment. 
 If he cannot pay the court will suspend the suit until the 
 order is complied with and the money paid.'"^ 
 
 Where a wife residing in Michigan filed her bill in this 
 state for a divorce on the ground of cruelty, and the hus- 
 band answered, setting up a divorce obtained by him in 
 another state by publication and without personal service 
 on the wife, an order for expenses and alimony was held 
 to have been properly made in the suit of the wife in 
 this state.''* 
 
 § 742. An execution cannot issue for the collection of 
 temporary alimony.^^ 
 
 Thus the only method of enforcement is by proceed- 
 ings for contempt. 
 
 § 743. Defence. The defendant may demur, plead or 
 answer to a bill for divorce as in other chancery cases. 
 
 The answer need not be on oath *" and it is usually of 
 no advantage to put in a sworn answer as it will in any 
 event be regarded merely as a pleading and not as evi- 
 dence,^^ but a sworn answer may be read as an aflSdavit 
 at the hearing of a motion for temporary alimony and 
 expenses.*^ 
 
 The defendant may, however, by answer, claim the 
 benefit of a cross bill and therein, after answering the 
 complainant's bill set up facts which would entitle the 
 defendant to a divorce and pray such divorce in which 
 
 76 — HofB V. HofE, 48 Mich. 641; 79 — Palmer v. Palmer, 45 Mich. 
 
 WHtmore v. WTiitmore, 49 Mich. 150. 
 
 417. 80— C. L., See. 8626. 
 
 77— Puterbaugh Ch. PI. & Pr. 81— Chancery Eule 10. 
 
 (3d Ed.) 516-7- 82 — Anthony v. Anthony, 3 Stock- 
 
 78 — Van Inwagen v. Van In- ton (N. J.) 70, 
 wagen, 86 Mich. 333. 
 
762 stage's MICHIGAN CHANCERY PRACTICE AND FORMS 
 
 case the answer must be verified in the same manner as 
 an original bill for divorce.*^ 
 
 The defendant may show by the answer anything which 
 tends to show the conduct of the parties towards each 
 other.** The fact of the marriage itself, if in dispute, 
 may be .denied, as, if there were no marriage there could 
 be no divorce.*® The defendant should answer the bill 
 fully before setting up any facts constituting an affirma- 
 tive defence.*® 
 
 §744. Condonation. This is the voluntary forgive 
 ness by the party injured of the grievance constituting 
 a ground for divorce. When it exists it is a complete 
 defence.*'^ 
 
 Condonation to constitute a defence must be voluntary 
 on the part of the injured party and must also be with a 
 full knowledge of the offence** and is always upon the 
 implied condition that the offence be not repeated.*® It 
 may be conditional by agreement and is no defence if 
 the condition be violated by the guilty party.®" 
 
 Condonation may be inferred by the acts of the in- 
 jured party.® ^ It is provided by statute that in cases of 
 adultery if proved a divorce may be denied when the 
 offence charged shall have been forgiven by the complain- 
 ant and such forgiveness proved by express proof or by 
 voluntary cohabitation with kno.wledge of the offence or 
 when the suit shall not have been brought within five 
 
 83 — Harrison v. Harrison, 94 1 Hagg. Ecc. 733; Shackleton v. 
 
 Mich. 559; Chancery Eule 11a. Shackelton, 48 N. J. Eq. 346. 
 
 84 — Hopper v. Hopper, 11 Paige 89 — Smith v. Smith, 4 Paige 432; 
 
 46; Peek v. Peck, 66 Mich. 586; Johnson v. Johnson, 4 Paige 460; 
 
 Minde v. Minde, 65 Mich. 633. Collier v. Collier, 1 Dev. 352 ; Tacka- 
 
 85 — Clancy v. Clancy, 66 Mich, berry v. Tackaberry, 101 Mich. 102. 
 
 202; Eose v. Eose, 67 Mich. 619. 90— Creech v. Creech, 126 Mich. 
 
 86— Chancery Eule lib. 267; Creyts v. Creyts, 133 Mich. 4; 
 
 87— Porritt v. Porritt, 18 Mich. Hazelton v. Hazelton, 162 Mich. 192. 
 
 420. 91— Keats v. Keats, 1 Swab & T. 
 
 88 — ^Dempster v. Dempster, 2 334; Eogers v. Eogers, 122 Mass. 
 
 Swab. & T. 438; Durant v, Durant, 423. 
 
stage's MICHIGAN CHANCEBY PBACTICB AND FOEMS 763 
 
 years after the discovery by the complainant of the 
 offence.' 2 
 
 Voluntary cohabitation after acquiring knowledge of 
 the offence is held to be condonation of adultery, inde- 
 pendent of any statute.®* 
 
 And a wife condones an act of cruelty by voluntarily 
 seeking reconciliation and resuming marital relations.®* 
 And where a wife has filed a bill for divorce against her 
 husband and afterwards voluntarily dismisses her bill 
 and resumes her marital relations she condones all acts 
 of cruelty charged in her bill.®^ Although as above stated 
 new acts of cruelty will avoid the condonation. . 
 
 So habitual drunkenness may be condoned by volun- 
 tary cohabitation after reformation.®® 
 
 § 745. The parties having become reconciled the bill 
 may be dismissed by the complainant by stipulation 
 signed by the parties without the intervention of their 
 solicitors and in such a case the court will not enforce by 
 attachment an order for the payment by the husband of 
 a solicitors' fee to the solicitor of the wife.®'' 
 
 § 746. Recrimination. That the complainant has been 
 guilty of marital misconduct of equal gravity with that 
 charged against the defendant is a bar to a divorce. As 
 in other cases in equity a complainant must come into 
 court with clean hands. Divorce laws are made for the 
 benefit of the innocent, not the guilty.®* 
 
 Thus adultery by the complainant, not condoned, is a 
 bar to a divorce for the adultery of the defendant, and 
 
 92 — C. L., See. 8653 Sub div. 2 96 — Moore v. Moore, 41 Mo. App. 
 
 & 3. 176. 
 
 93 — Johnson v. Johnson, 4 Paige 97 — Dillon v. Cireuit Judge, 131 
 
 460; same case 14 Wend. 637; North Mich. 574. 
 
 V. North, 5 Mass. 3S0; Davis v. 98 — Nelson on Div. and Sep., Sec. 
 
 Davis, 19 111. 334. 425; Hoff v. Hoflf, 48 Mich. 281; 
 
 94 — Eunkle v. Eunkle, 96 Mich. Boot v. Boot, 164 Mich. 628; Morri- 
 
 493. son V. Morrison, 64 Mich. 93; Ort- 
 
 95— Boot V. Boot, 164 Mich. 638. man v, Ortman, 92 Mich. 172. 
 
764 stage's MICHIGAN CHAErCEBY PBACTICB AND FOEMS 
 
 indeed to a divorce on any ground.®' But cruelty can- 
 not be set up as a counter charge to adultgry."" 
 
 §747. Provocation. A complainant whose conduct 
 has provoked the conduct of the defendant complained of 
 cannot obtain a divorce.^ 
 
 §748. Acquiescence. A complainant who has ac- 
 quiesced in the separation cannot obtain a divorce for 
 desertion.2 
 
 §749. Collusion. Where collusion appears the court 
 will of its own motion dismiss the bill.* 
 
 §^750. A divorce may be decreed on a cross bill or an 
 answer claiming affirmative relief in the nature of a 
 cross bill for any statutory cause in the same manner as 
 upon an original bill, the cause being specifically stated 
 as in an ori^nal bill.* 
 
 A cross bill must be on matters arising out of, and 
 germane to, the original bill, but where a wife left her 
 husband and engaged in a business in competition with 
 him and he filed a bill to enjoin her from carrying on 
 such business, founding his bill on the fact that she was 
 his wife and he was entitled to her earnings and duty as 
 such, a cross bill by the wife praying for a divorce on 
 the ground of cruelty was held germane to the original 
 bill." 
 
 §751. An answer claiming affirmative relief by way 
 of cross bill, seeking a divorce may be filed by a defend- 
 
 99— Smith v. Smith, 4 Paige 432; Tackaberry v. Tackaberry, 101 Mich. 
 
 Christianberry t. Ghiistianberry, 4 102. 
 
 Blackf. 233; BurdeU v. Burdeil, 2 2— Harold v. Harold, 47 N. J. 
 
 Barb. 473; Lesenr v. Leseup, 31 Eq. 210; Broom v. Broom, 47 N, J. 
 
 Barb. 33Qj Clapp v. Clapp, 97 Mass. Eq. 215. 
 
 531; Master v. Master, 15 N. H. 3 — Thompson v. Thompson, 70 
 
 159. Mich. 62. 
 
 100— Betz V. Betz, 2 Bob. (If. Y.) 4-.-Cox v. Cox, 35 Mich. 461; 
 
 694; Monk v. Monk, 7 Bob fN. T.) Hoff v, Hoff, 48 Mioh. 281; Van 
 
 153. Voorhls v. Van Voorhis, 94 Mich. 
 
 1— Schoen v. Schoen, 48 111. App. 60. 
 382; Hardin v, Hardin, 17 Ala. 250; 5— Boot y. Boot, 164 Mich. 638. 
 
STAGE *S MICHlGAif CHANCEEY PBACTlCE AHD FORMS 765 
 
 ant who does not reside in the state. The court having 
 acquired jurisdiction of the case by the residence of the 
 complainant for the statutory time, has complete juris- 
 diction of the entire matter to make an equitable decree 
 between the parties.** 
 
 § 752. If either party die during the pendency of the 
 suit or while an appeal is pending the suit is at an end 
 and the cause of action ceases to exist.'^ 
 
 § 753. At the hearing the court may direct an issue or 
 more than one issue to be tried by a jury as in other cases 
 in chancery. Such issues should be confined not only to 
 matters put in issue by the pleadings, but to matter con- 
 cerning which some testimony has been introduced and 
 read at the hearing.^ 
 
 The issue submitted must be clear and explicit ; if more 
 than one each should present a single question of fact 
 and the verdict must be responsive to each separately.^ 
 
 The verdict of a jury in such a case is not binding on 
 the court but advisory merely.'" 
 
 BILL FOR DIVORCE FOR PHYSICAL IMPOTENCY. 
 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , 
 
 A. D. 19. ., your orat. . intermarried with one C. D. at (state 
 place of marriage) and that your orat. . is now and has be'en 
 a resident of this state for over one year continuonsly next be- 
 fore the filing of this bill {or, continuously ever since the said 
 marriage), and is now a resident of said county. 
 
 2. And that immediately after the said marriage took place, 
 ypur orat. . discovered and avers that the said. C. D. at the time 
 of the said marriage was, and ever since that time has continued 
 to be and still is, naturally impotent and physically incapable 
 of entering into the marriage state, for that (state the particular 
 
 e — Glutton v. Glutton, 108 Mich. 9— Von Glahn v. Von Glahn, 46 
 
 267. 111. 134; Dunn v. Dunn, 11 Mich. 
 
 7_Wilson T. Wilson, 73 Mich. 284. 
 670; Zo«Uner v. Zoellner, 46 Mich. 10 — Dunn v. Dunn, 11 Mich. 284; 
 
 511. Maier v. Cir. Judge, 112 Mich. 491. 
 
 8 — Dunn v. Dunn, 11 Mich. 284; 
 Maier v. Wayne Cir. Judge, 112 
 Mich. 491. 
 
?66 STAGE *S MICHIGAN CHANCEBY PBACTICB AND F0EM:.B 
 
 character of the. impotency), so that the said marriage could not 
 be consummated by sexual intercourse. 
 
 3. And your orat. . is informed and believes and charges 
 the fact to be that the said impotency and physical incapacity 
 of the said C. D. still exists and is incurable. 
 
 4. And your orat. . positively avers that the acts done and 
 cause of divorce charged in this bill of complaint for which 
 divorce is sought were committed without the consent, conniv- 
 ance, privity or procurement of your orat. ., and that this bill 
 is not founded oil, or exhibited in consequence of any collusion, 
 agreement or understanding whatever between the parties there- 
 to, or between your orat. . and any other person. 
 
 I. In consideration whereof and to the end therefore that 
 the said C, D., the defendant hereto, may, if . .he can abow why 
 your orat. . ^ou.ld not have the relief hereby prayed, without 
 oath, all answer on oath being waived, full, true, direct and per- 
 fect answer make to all and singular the matters hereinbefore 
 stated and charged. 
 
 II. And that the marriage between your orat . . and the said 
 defendant C. D. may be dissolved and a divorce from the bonds 
 of matrimony decreed, according to the statute in such case 
 made and provided. 
 
 III. And that your orat. . may have such further or other 
 relief in the premises as shall be agreeable to equity and good 
 conscience. 
 
 And your orat. . will ever pray, etc. A. B, 
 
 Solicitor for Complainant and of Counsel, 
 (Add verification as follows:) 
 State of Michigan, ) 
 County of ) "• 
 
 Be is remembered that on this day of , A- 
 
 D. 19 . . , before me, a notary public, of, in and for said county, 
 personally came the above named complainant, A. B., and made 
 oath that . .he has heard read the foregoing bill of complaint by 
 
 h. , subscribed and knows the contents thereof, and that 
 
 the same is true of h own knowledge, except as to the 
 
 matters which are therein stated to be on information and be- 
 lief and as to those matters . .he believes it to be true, and that 
 there is no collusion, understanding or agreement whatever be- 
 tween h the said complainant, and C, D., the defend- 
 ant to the said bill of complaint, or between the said complain- 
 ant and any other person in relation to h said applica^ 
 
 tion for a divorce. 
 
 J 
 
 Notary Public, 
 
 County, Mich. 
 
 My commission will expire , A. D. 19. .. 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 767 
 
 FOR ADULTERY. 
 (AcLdress.) 
 
 Your orat. . , A. B., of in the county of 
 
 and state of , respectfully shows unto the court : 
 
 That he is now and has been for more than year. . now 
 
 last past, a resident of said state, and is now a resident of said 
 county. 
 
 2. Your further shows, that on or about the 
 
 day of , A. D. 19 . . , at you orat . . 
 
 was duly and legally married to the defendant herein, C. B., 
 
 by a minister of the Gospel and pastor of the 
 
 church {or, as the case may be), and that the name of your 
 orat. . (or said defendant, as the case may he) previous to the 
 said marriage was 
 
 3. And your orat. . .further shows that he has been 
 
 informed, and verily believes, and therefore charges the truth to 
 be, that the defendant, disregarding the solemnity of the mar- 
 riage vow, hath smce said marriage, committed adultery and had 
 illicit carnal intercourse with divers persons, whose name . . are 
 at present unknown to your orat . . , at divers times and places ; 
 but at what times and places your orat . . is not informed. And 
 
 further, that on or about the day of , A. D. 
 
 19 . . , at the said defendant did commit adultery and 
 
 have illicit carnal intercourse with one E. F. (state times and 
 places of ads of adultery, so far as known). 
 
 4. Your orat . . further shows, that there are now living 
 
 children, the offspring of said marriage, whose names 
 
 and ages are as follows, to wit: (state names, sex and ages of 
 children). 
 
 5. And your orat. . positively avers that the several acts of 
 adultery hereinbefore charge^ were all committed without the 
 consent, connivance, privity or procurement of your orat . . , and 
 that he has not voluntarily cohabited with the defend- 
 ant, since the discovery of such adultery, on the day of 
 
 , A. D. 19 . . , and that all of said acts were committed 
 
 without the consent, connivance, privity or procurement of your 
 orat. ., and that this bill is no.t founded on or exhibited, in con- 
 sequence of any collusion, agreement or understanding whatever, 
 between the parties hereto, or between your orat . . and any other 
 
 person ; and that he has never been guilty of any act 
 
 of adultery or misconduct, as hereinafter charged against the 
 defendant. 
 
 I. In consideration whereof, and to the end, therefore, that 
 the said G. D,, the defendant hereinbefore named, may without 
 
 oath ( answer on oath being hereby expressly waived), 
 
 but according to the best and utmost of "knowledge, re- 
 membrance, information and belief, full, true, direct and perfect 
 answer make, to all and singular the matters hereinbefore stated 
 
768 stage's MICHIGAN CHANCBEY PEAOTICE AND FOEMS 
 
 and dliarged, as fully and particularly sentence by sentence, and 
 paragraph by paragraph, as if the same were here again re- 
 peated, and he hereto pa,rticularly interrogated, and that the 
 marriage between your orat. . and the said , the de- 
 fendant, may be dissolved and. a divorce from the bonds of mat- 
 rimony decreed, according to the statute in such case made and 
 provided, and that your orat. . may have the care, custody, con- 
 trol and education of said infant child , the surviving 
 
 issue of said marriage. 
 
 II. And that your orat. . may have such other relief, and 
 such further relief in the premises, as shall be agreeable to equity 
 and good conscience. 
 
 III. May it please the court, the premises being considered, 
 to grant unto your orat. . the People's writ of subpoena to be 
 issued out of and under the seal of this honorable court, to be 
 directed to the said the defendant, herein and there- 
 by commanding h , on a certain day, and under a certain 
 
 penalty, to be therein inserted, personally to be and appear be- 
 fore this honorable court, then and there to answer all and sing- 
 ular the matters and things hereinbefore set forth, and to stand 
 to, abide by and perform such order and decree herein, as shall 
 be agreeable to equity and good conscience. And your orat . . 
 will ever pray, etc. 
 
 Solicitor for Complainant and of Counsel. 
 State of Michigan, 1 
 County of J **• 
 
 On this day of • • ■ , ,A, D. 19 . . , before me, per- 
 sonally came the above named complainant, , and made 
 
 o^th that . .he has read the foregoing bill of complaint 
 
 by h . . subscribed, and knows the contents thereof, and that the 
 same is true of h . . own knowledge, except as to those matters 
 which are therein stated to. be on h. . information and belief, 
 and as to those matters . . he believes it to be true, and further, 
 that there is no collusion, understanding, or agreemant, what- 
 ever, between h. .self and the defendant therein, or between 
 
 h. .self and any person, in relation to h application for 
 
 divorce. 
 
 County, Michigan. 
 
 My commission will expire 
 
 OTHER CAUSES. 
 (Address and introduction.) 
 
 1. That on or about the day of , in the 
 
 year , your orat. . was duly and legally married to C. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FORMS 769 
 
 B., the defendant herein, by , of , and state of 
 
 , a minister of the Gospel and pastor of the 
 
 church (or, as the case may be). 
 
 2. And that the name of your oratrix (or "of said defend- 
 ant" as the case may be), previous to said marriage was A. D. 
 
 3. And that said parties lived and cohabited together, as 
 
 husband and wife, from such time until on or about the 
 
 day of , A. D. 19... 
 
 4. And ypur orat. . further shows unto the court, that . .he 
 has resided in this state since said marriage with said defend- 
 ant, continually, for a period of years and upwards, 
 
 immediately preceding the time of exhibiting this bill 
 
 of complaint, and that . . he still resides p., and is an inhabitant 
 of this state. 
 
 5. And your orat . . further shows unto the court, that dur- 
 ing the time said parties so lived and cohabited together as hus- 
 band and wife, and up to this, the time of exhibiting this bill 
 
 of complaint, the said bore unto the said 
 
 child. . , of whom are now living, whose names and ages 
 
 are as follows, to-wit : 
 
 (State names, ages and sex of children respectively.) 
 
 6. And your orat. . further shows unto the court that the 
 said defendant, C. B., disregarding the solemnity of h . . mar- 
 riage vow (state ground on which divorce is sought. If for 
 desertion as follo-ws:) and h. . duty to live and cohabit with your 
 
 orat. . , did, on or about the day of , A. D. 
 
 19 . . , at in the of in the state of 
 
 without any just cause or provocation, wantonly and 
 
 crueUy whoUy desert and abandon your orat. . (state circum- 
 stances of the desertion) . And that ever since that time hitherto 
 the said defendant has continued and still continues to desert and 
 abandon your orat. . and that such desertion and abandonment 
 has continued without intermission for a period of more than 
 two years next preceding the time of the filing qf this bill of 
 complaint and still continues. 
 
 (If for habitual drunkenness) and your orat. . further shows 
 that at the time of the said marriage the said defendant was an 
 habitually sober, temperate person, not addicted to the use of 
 intoxicating liquors to excess, and that since the said marriage 
 and about years {or months) thereafter the said de- 
 fendant, disregarding the obligation of h. . marriage vow and 
 h. . duty to continue habitually sober and temperate, did com- 
 mence habitually to drink intoxicating liquors as a beverage to 
 excess, and that such habitual drinking has increased from that 
 time forward hitherto and that by reason thereof of the said de- 
 fendant has become and for more than months now last 
 
 past has been and now is an habitual drunkard. (State any cir- 
 cumstances in aggravation that may exist.) 
 
770 stage's MICHIGAN CHANCBEY PRACTICE AND POEMS 
 
 (If for cruelty) and your orat. . fuTther shows that during 
 all the time that your orat . . and the said defendant lived and 
 cohabited together as husband and wife your orat . . faithfully 
 
 discharged all h . . duties as a and at all times treated 
 
 the defendant with kindness, affection and forbearance, yet the 
 said defendant diisregarding the obligation of h. . marriage \qw 
 and h. . duty to treat your orat. . with kindness and affection, 
 within months (or years) after the said marriage com- 
 menced a course of unkind, harsh, cruel, brutal and inhuman 
 conduct toward your orat. . which continued increasing In un- 
 kindness, harshness, cruelty, brutality and inhumanity until 
 . . he was finally compelled to and did separate from h . . in con- 
 sequence thereof on the day of , A. D. 19 . . 
 
 and that on divers occasions while . .he so lived and co-habited 
 with the said defendant, the said defendant was guilty of re- 
 peated acts of extreme cruelty towards h . . namely (set forth 
 fully and circumstantially the acts of cruelty and in case the 
 wife is complainant the statement may conclude if warranted by 
 the facts as follows:) and that the defendajit is a man of violent 
 and ungovernable temper, and on many occasions during the 
 time of such co-habitation he has addressed her with vile, op- 
 probrious, obscene and profane language and epithets too vile, 
 opprobrious, obscene and profane to be here repeated, accom- 
 panied with threats of personal violence and has frequently 
 threatened to take her life, and that in consequence of such 
 extreme cruel, brutal and inhuman conduct and threats of the 
 said defendant it became unsafe for your oratrix to continue to 
 live or remain with him, and in consequence thereof she was com- 
 pelled to and did on the day of , A. D. 19 . . , 
 
 leave the house of the said defendant and seek refuge with her 
 (parents or friends, naming them, as the case may he), at 
 
 and since that time she has not dared to return to the 
 
 house of the said defendant or to live with him for fear of per- 
 sonal injury from him. 
 
 (If defendamt has oitained a divorce in another state) and 
 your orat. . further shows that since the said marriage and on 
 or about the day of , A, D, 19 . . , the said de- 
 fendant has obtained a decree of divorce from the bonds of 
 matrimony, from your orat. . by a decree {or, judgment) of the 
 
 Court in the State of in a suit 
 
 in said last mentioned court wherein the said defendant was 
 complainant (or plaintiff) and your orat. . was made defendant, 
 as by the records of the said last mentioned court fully appears 
 a transcript of which said record duly certified under +He seal 
 of the said last mentioned court is now in the possession of your 
 orat. . ready to be produced and proved as this court shall direct 
 whereto reference is prayed. 
 
 (If on account of conviction of crime and sentence to State 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 771 
 
 Prison) your orat . . further shows that since the time of the said 
 marriage the said defendant, disregarding the obligation of his 
 marriage vow and his duty to conduct himself as a good citizen 
 of this state and of the United States, was on or about the 
 
 day of , A. D. 19 . . , guilty of the crime of 
 
 (set forth the crime) and that afterwards and on the 
 
 day of , A. D. 29. ., the said defendant was at a session 
 
 of the Circuit Court for the county of , then held duly 
 
 convicted and found guilty of having committed the said crime 
 and that upon such conviction the said defendant was afterwards 
 
 and on the day of , A. D. 19 . . , at a session of 
 
 the last mentioned court then held duly sentenced in and by 
 the said last mentioned court to be imprisoned in the State 
 
 Prison at in this state for the term of years 
 
 as by the record of such conviction and sentence now remaining 
 of record in the said last mentioned court fully appears and 
 whereto reference is prayed which said conviction and sentence 
 are and remain in full force and effect not reversed, vacated nor 
 set aside. 
 
 (If by wife for want of suitaile maintenance) and your ora- 
 trix further shows that the said defendant is a man of consider- 
 able property and is the owner of (state what property he owns) 
 and carries on a profitable business (state what business) and 
 
 that he derives an income of not less than dollars per 
 
 year from such property and business (or if a laborer or me- 
 chanic without property) that he is a strong, healthy man able to 
 
 work and to earn dollars per week (or month) and that 
 
 he is in steady employment (or is able to secure steady employ- 
 ment) at that rate of compensation, and is of sufficient ability to 
 provide a suitable and sufficient support and maintenance for 
 your oratrix, yet the said defendant disregarding the obligation 
 of his marriage vow and his duty to provide a suitable and suffi- 
 cient maintenance for your oratrix has since the said marriage 
 
 and for the period of months now last past grossly, 
 
 cruelly, and wantonly refused and neglected and still continues 
 to refuse and neglect so to do although as aforesaid of suffi- 
 cient ability so to do, and that the said defendant has not dur- 
 ing the time aforesaid provided suitable, proper or sufficient food 
 for your oratrix and has provided no food or provision for her 
 except (corn meal and potatoes or as the case may be) state facts 
 fully for examples, and has taken his own meals at restaurants 
 and other places apart from his home and from your oratrix for 
 
 a period of and your oratrix has consequently suffered 
 
 from hunger and her health has been and is endangered and that 
 
 your oratrix is and for now last past has been without 
 
 sufficient clothing and has no decent nor respectable apparel nor 
 shoes nor sufficient undergarments to protect her from the cold 
 and the said defendant has not furnished nor provided for her 
 
772 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 any suitable or necessary clothing nor any clothing whatever 
 during the p'ast months except (state wjiat, if any- 
 thing, he has furnished, and the value of it), and has not given 
 or furnished her with any money or means to procure food or 
 clothing and that all her shoes and clothing which she had at 
 the time of her marriage as well as all which the defendant has 
 since furnished are long since worn out and your oratrix has 
 suffered cold for want of clothing and her health has been and 
 is thereby endangered and she has also suffered great mortifi- 
 cation at being unable to dress respectably, wherefore she charges 
 that the defendant being of sufficient ability to provide a suit- 
 able maintenance for her has grossly, wantonly, and cruelly re- 
 fused and neglected, and still grossly, cruelly and wantonly re- 
 fuses and neglects, so to do. 
 
 (If alimony is prayed insert the three following paragraphs 
 varying according to the facts.) 
 
 7. That the said defendant is the owner (state fully all known 
 property of the defendant, real as well as personal, and the value 
 so far as can be estimated and the income derived therefrom.) 
 
 8. That your oratrix is poor, without any means to support 
 herself and children, or to prosecute this suit, and that the said 
 defendant is abundantly able to supply all the necessities and 
 wants orf your oratrix and the said children, but wholly neglects 
 and refuses so to do, and your oratrix is now compelled to ac- 
 cept assistance from her relatives and friends, , in 
 
 order to live and subsist from day to day, and that your oratrix 
 and said children are but poorly supplied with clothing and Other 
 comforts of life suitable to their condition in life (state partic- 
 ular matters of which they stand in immediate need), 
 
 9. That the said defendant threatens, and your oratrix fears, 
 that he will carry his threat into execution, to sell all of his said 
 property to prevent your oratrix from obtaining alimony there- 
 from for the support of herself and said children, and that the 
 said defendant ought to be restrained by the injunction of this 
 honorable court from selling, assigning, encumbering, or other- 
 wise disposing of the said (describe property) until the hearing 
 of this cause, and until suitable provisions are made for the sup- 
 port of your oratrix and the said chaildren. 
 
 10. And your orat. . positively avers that the acts done and 
 causes of divorce charged in this bill of complaint, for which 
 divorce is sought, were committed without the consent, conniv- 
 ance, privity or procurement ,of your orat . . , and that this bill 
 is not founded on, or exhibited in consequence of any collusion, 
 agreement or understanding whatever between the parties here- 
 to, or between your orat . . and any other person. 
 
 I. In consideration whereof, and to the end, therefore, that 
 the said C. B., the defendant hereinbefore named, if . .he can 
 show why your orat . . should not have the relief hereby prayed, 
 
stage's miohigan chanceby peacticb and forms 773 
 
 may without oath, ( answer on oath being hereby ex- 
 pressly waived), and according to the best and utmost of h. . 
 knowledge, remembrance, information, and belief, full, true, di- 
 rect and perfect answer make to all and singular the matters here- 
 inbefore stated and charged, as fully and particularly, sentence 
 by sentence, paragraph by paragraph, as if the same were here 
 again repeated, and . .he thereto particularly interrogated, 
 
 n. And that the marriage between your orat. . and the said 
 defendant, C. B., may be dissolved, and a divorce from the bonds 
 of matrimony decreed, according to the' statute in such case made 
 and provided. 
 
 III. And that your orat. . may have the care, custody, and 
 education of said infant children, the surviTing issue of said 
 marriage, until they shall respectively attain the age of fourteen 
 years. 
 
 (If alimony, is sought, insert three following paragraphs.) 
 
 IV. That this court will decree to your oratrix such portions 
 of the property of said defendant, or such sums of money to be 
 paid by said defendant to your oratrix, as this court may deem 
 necessary and proper for the maintenance of your oratrix and 
 the said children. 
 
 y. That this court will decree such further sums of money 
 to be paid by said defendant to your oratrix, as this court may 
 deem necessary to enable your oratrix to employ counsel and 
 to prosecute this suit and for the support and maintenance of 
 your oratrix and said children during the pendency of this suit. 
 
 VI. That said defendant may be restrained by the order and 
 injunction of this court from, selling, assigning, encumbering or 
 otherwise disposing of the personal and real property, herein- 
 before mentioned and described, or any part thereof, and that 
 this court will grant unto your oratrix the people's writ of in- 
 junction, to be directed to said defendant, restraining him from 
 so selling, assigning, encumbering or otherwise disposing of the 
 said property hereinbefore mentioned and described, or any part 
 thereof, until the further order of this court. 
 
 VII. That your orat . . may have such other and further 
 relief in the premises as equity may require, and to this honor- 
 able court shall seem meet. 
 
 7II1. May it please the court, the premises being considered, 
 to grant unto your orat. . the people's writ of subpoena, to be 
 issued out of and under the seal of this honorable court, to be 
 
 directed to the said defendant, , therein and thereby 
 
 commanding h. ., on a certain day, and under a certain penalty 
 to be therein inserted, personally to be and appear before this 
 honorable court, then and there to answer all and singular the 
 matters and things hereinbefore set forth, and to stand to, abide 
 
774 stage's michigak chanceey peactice and fobms 
 
 and perform such order and decree herein as shall be agree- 
 able to equity aM good conscience, and your orat.. will ever 
 pray, etc. 
 
 Solicitor and of Counsel for Complainant. 
 
 (Add verification as in last form.) 
 
 LIMITED DIVOECB FEOM BED AND BOARD. 
 (Address and introduction.) 
 
 1. That he is a resident of the said county of 
 
 and has resided in the State of Michigan for more than 
 
 one year now last past. 
 
 (The stating part is the same as in a bill for divorce for deser- 
 tion, cruelty or failure to provide a suitable aiid sufficient main- 
 tenance up to the last paragraph and prayer as follows:) 
 
 10,. And your orat . . positively avers that the acts done and 
 charged in this bill of complaint .for which a divorce from bed 
 and board is sought, were committed without the consent, con- 
 nivance, privity or procurement of your oratrix, and that this 
 bill is not founded on or exhibited in consequence of any collu- 
 sion, agreement or understanding whatever between the parties 
 therein, or between your oratrix and any other person. 
 
 I. Tour orat. . therefore prays the aid of this court to the 
 end therefore that the said defendant, C. B., may, without oath, 
 full, true, direct and perfect answer make to all and singular 
 the matters herein stated and charged. 
 
 II. And that a limited divorce, from bed and board forever 
 may be decreed between your orat. . and the said defendant, but 
 that the bonds of matrimony be not otherwise dissolved. 
 
 III. And that your orat. . may have the care, custody and 
 education of the said minor children, the issue of the said mar- 
 riage until they shall respectively attain the age of fourteen 
 years. 
 
 (In case the wife is complainant.) 
 
 IV. And that the said defendant, C. B., may be decreed to 
 pay to your oratrix such annual sum as shall be reasonably 
 sufficient for the suitable support and maintenance of your 
 qratrix and of her said minor children, and that the payment 
 thereof be decreed to be a lien on the real estate of the said 
 defendant, unless otherwise secured as this court shall direct. 
 
 Y. And that your orat . . have such further or other relief as 
 shall be agreeable to equity and good conscience. 
 And your orat . . will every pray, etc. 
 
 (Signature.) 
 (Signature of Solicitor and of Counsel.) 
 
 (Add verification as in bill for divorce.) 
 
stage's MICHIGAN CHANCBBY PEACTICB AND FOEMS 775 
 
 PETITION FOB ALIMONY AND EXPENSES 
 BY DEFENDANT. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of 
 
 In Chancery, 
 The petition of C. D., the above named defendant, respectfully 
 shows unto the court that she is the wife of the above named 
 complainant, A. B., and that the said complainant has lately 
 filed his bill of complaint in this court against your petitioner 
 to obtain a decree of divorce dissolving the marriage between 
 him and your petitioner, charging your petitioner with having 
 been guilty of (state ground of divorce charged in the bill), that 
 your petitioner has filed her answer to the said bill of complaint 
 denying such charges, as by reference to the said bill and answer 
 now on file in said cause, will fully appear. 
 
 2. Your petitioner further shows that she is wholly destitute 
 of the means of supporting herself during the pendency of this 
 suit and is destitute of the m$aiis of maintaining her defense 
 and of defraying the costs and expense attending the same. 
 
 3. And that the said complainant' is the owner of a consider- 
 able amount of property and is the owner of (set forth the prop- 
 erty so far as known and its value), and that he is also in receipt 
 of a considerable income and that the annual (or monthly) in- 
 come of the said complainant is at least dollars. 
 
 Your petitioner therefore prays that the said complainant 
 may be required by an order of this court to pay to your peti- 
 tioner a reasonable sum per month for her support and main- 
 tenance during the pendency of this suit, and also such sum and 
 sums of money as may be necessary to enable her to carry on her 
 defense, to pay solicitor fees, and to defray the other necessary 
 costs and expenses thereof, and that she may have such further 
 or other relief as to this court shall seem meet. 
 
 CD. 
 
 Solicitor for Petitioner. 
 
 (Verification.) 
 
 BY COMPLAINANT. 
 (Title of court and cause.) 
 (Address.) 
 
 The petition of A. B., the above named complainant, respect- 
 fully shows unto the court that she is the wife of the above 
 
 named defendant and that she has recently and on the 
 
 (Jay of , instant, filed her bill of complaint in this cause 
 
 against the said defendant to obtain a decree of divorce dissolv- 
 ing the marriage between herself and the said defendant, because 
 of the (state ground on which divorce is asked), as in and by your 
 
776 stage's MICHIGAN CHANCEBY PBACTICB AND POBMS 
 
 petitioner's said bill now on file in this court more particularly 
 set forth will appear, and whereto reference is prayed. 
 
 2. Your petitioner further shows that she is wholly destitute 
 of the means of supporting herself during the pendency of this 
 suit and is destitute of the means of prosecuting the same and of 
 defraying the costs and expenses attending the same. 
 
 3. And that the said defendant is the owner of a considerable 
 amount of property (describe it), and is engaged in a lucrative 
 business (describe it), from which he derives a considerable in- 
 come, and his annual {or, monthly) income is not less than 
 dollars. 
 
 Your petitioner therefore prays that the said defendant 
 may be required by an order of this court to pay to your peti- 
 tioner a reasonable sum per month for her support during the 
 pendency of this suit, and also such reasonable sum and sums 
 of money as may be necessary to enable her to prosecute her said 
 suit in this cause, to pay solicitor's fees, court fees, officers' fees, 
 witness' fees and other expenses thereof, and that she may have 
 such further or other relief as to this court shall seem meet and 
 agreeable to equity. 
 
 And your petitioner will ever pray, etc. 
 
 A.B. 
 
 Solicitor for Petitioner. 
 
 (Yerification.) 
 [The affidavits in support, and order, are similar to those in 
 case of a defendant, mutatis mutandis.] 
 
 AFFIDAVIT IN SUPPORT OF PETITION FOR ALIMONY. 
 
 (Title of court and cause.) 
 (Venue.) 
 
 , of , in said county and state, being duly 
 
 sworn, says that he is over years of age and that he 
 
 knows the parties to the above entitled cause and has known 
 
 them for over years, and that he is acquainted with the 
 
 pecuniary circumstances of A, B., the above named complainant, 
 and that the said complainant is the owner of (set forth, the 
 property and its value and all other facts within the knowledge 
 of benefit to the petitioner), 
 
 (Signature.) 
 (Jurat.) 
 
 NOTICE OF HEARING- OF PETITION. 
 
 (Title of court and cause.) 
 
 To , Esq., Solicitor for Complainant. 
 
 Sir : Please take notice that the petition of which the annexed 
 is a copy will be brought on to be heard before the court in the 
 court house in the of , in said county, on the 
 
stage's MICHIGAN CHANCERY PBACTICB AND FOBMS 777 
 
 day of , A. D. 19. ., at the opening of the 
 
 court on that day, or so soon thereafter as counsel can be heard ; 
 and that the affidavit, with a copy of which you are herewith 
 served, will then be read in support to such petition. 
 
 Dated this day of , 19. .. 
 
 Yours, etc., 
 
 Solicitor for Defendant and Petitioner. 
 
 ORDER OF REFERENCE AS TO ALIMONY AND 
 EXPENSES. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading and filing the petition of the defendant in this 
 cause and the affidavits in support thereof and the affidavits on 
 the part of the complainant in opposition thereto, and upon 
 hearing the arguments of counsel for the respective parties, and 
 the court not being sufficiently advised in the premises : It is or- 
 dered by the court now here that the said petition be referred to 
 
 , Esq., a Circuit Court commissioner of said county 
 
 of , to inquire and report what would be a rea- 
 sonable sum to be allowed to the defendant for her support and 
 maintenance during the pendency of this suit. And it is further 
 ordered that the said Circuit Court commissioner do inquire and 
 report what would be a reasonable sum to be allowed to the de- 
 fendant to enable her to carry on her defence in this suit and to 
 defray the necessary costs and expenses thereof, and that the 
 said Circuit Court commissioner also report as to the times and 
 manner in which the said sums should be paid by the com- 
 plainant. 
 
 REPORT OF CIRCUIT COURT COMMISSIONER 
 AS TO ALLOWANCE OF ALIMONY. 
 (Title of court and cause.) 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 In pursuance of an order of this court made in this cause on 
 the day of , A. D. 19 . . , whereby it was re- 
 ferred to me, the undersigned, a Circuit Court commissioner of 
 said county, to inquire and report what would be a reasonable 
 sum (as in the order), I, the said Circuit Court commissioner, do 
 respectfully report: 
 
 That having given due notice to the respective parties of the 
 time and place of the hearing thereof, and having been attended 
 by the solicitors for each of the said parties, and having heard 
 the proofs and allegations as to the values of the complainant's 
 estate at the time of the commencement of this suit, as well as 
 
778 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 at the present time, and the allowance proper to be made, I certify 
 and report that the complainant has real estate that is to say 
 
 (describe it) of the value of about dollars, the yearly 
 
 income whereof is about dollars, and that the whole 
 
 personal property of the complainant consists of (state what), 
 
 and its value is about dollars ; that two children of the 
 
 complainant and defendant live with and are wholly supported 
 
 by the defendant, one being a boy aged years and the 
 
 other a girl aged years. 
 
 I further report that in my opinion the sum of dol- 
 lars per month, payable monthly, is a suitable allowance for the 
 support of the defendant and her said children during the pend- 
 ency of this suit, and that it ought to be made payable from the 
 time of the commencement of this suit, and that dol- 
 lars would be a reasonable sum to be allowed to the said defend- 
 ant to enable her to carry on her defence in this case and defray 
 the necessary costs and expenses thereof. And that my fees 
 amount to dollars. 
 
 All of which is respectfully submitted. 
 Dated this day of , A. D. 19. .. 
 
 Circuit Court Commissioner. 
 
 SAME AS TO ALIMONY IN SUIT FOR LIMITED 
 DIVORCE. 
 
 (Title of court and cause and address.) 
 
 In pursuance of an order of this court in the above entitled 
 
 cause, dated on the day of , A. D, 19.., 
 
 whereby it was referred to me, a Circuit Court commissioner of 
 
 the county of , to take the proofs of the respective 
 
 parties to this cause and report thp same with my opinion there- 
 on to this court, and to enquire and report as to the value of 
 the defendant's estate at the time of the commencement of this 
 suit and at the present time, and the situation and circumstances 
 of the respective parties, and what would be a reasonable sum to 
 be allowed to the complainant for her support and maintenance 
 and the support and maintenance of such minor children, the 
 issue of the marriage between the parties, as reside with her, 
 and also as to the time and manner in which such sums should 
 be paid to the complainant, I, the said Circuit Court commis- 
 sioner, do respectfully report: 
 
 That having given due notice to the several parties respect- 
 ively of the time and place when and where such testimony 
 would be taken, and having been then and there attended by the 
 solicitors for the respective parties, and having caused to ^ome 
 before me all such witnesses as the respective parties desired or 
 
 made known to me, I did on the day of , A. D. 
 
 19. ., at (state place), proceed to take the proofs of the respect- 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 779 
 
 ive parties, and the several witnesses attending having been 
 sevei-ally duly sworn and examined before me touching the mat- 
 ters aforesaid, I reduced their testimony to writing and have 
 attached the same hereto as and for a part of this report. 
 
 I further report that in my opinion the material allegations 
 in the bill of complaint in this cause are sufflciently proved and 
 are true, and that the defendant is guilty of the acts of extreme 
 cruelty therein charged, and that the complainant is entitled to 
 a decree for a limited divorce from bed and board forever from 
 the defendant for the causes therein named. 
 
 I further report that I find from the evidence taken before 
 
 me that the defendant has real estate of the value of 
 
 dollars or thereabouts, the yearly income wheref rom is 
 
 dollars or th&reabouts, and that the personal estate ef the de- 
 fendant consists of (state what), and the value thereof is about 
 
 dollars, (if producing income, add and that the yearly 
 
 income therefrom is dollars) . That children 
 
 of the issue of th« marriage between the parties, namely (give 
 names, ages and sex of each child) live with and are entirely 
 supported by the complainant. 
 
 I further report that in my opinion the sum of dol- 
 lars per year paid (quarterly) in advance would be a suitable 
 allowance for the present support and alimony of the said com- 
 plainant with the said minor children, and that it ought to be 
 
 payable from the day of , A. D. 19. . ; and 
 
 that such aUowance and alimony be made subject to be increased 
 or decreased in the future as circumstances may be shown to 
 require. 
 
 And that my fees herein amount to dollars. 
 
 All which is respectfully submitted. 
 
 : > 
 
 Circuit Court Commissioner. 
 (This form WMy he used on a reference of a petition for sep- 
 arate maintenance iy changing the word, complainant to peti- 
 tioner and bill of complaint to petition, and the words, limited 
 divorce from bed and board forever to separate maintenance, and 
 the word alimony to separate maintenance.) 
 
 ORDER CONFIRMING REPORT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 On reading the report of , Esq., a Circuit Court com- 
 missioner of the said county of , wherein he reports 
 
 that in his opinion the sum of dollars per month, pay- 
 able monthly, would be a reasonable sum to be allowed the de- 
 fendant for her support and the support of her two young chil- 
 dren during the pendency of this suit, and that in his opinion 
 
780 stage's MICHIGAN CHANCEEY PEAOTICB AND FOBMS 
 
 such payment should be from the time of the commencement of 
 
 this suit, and that in his opinion the sum of dollars 
 
 would be a reasonable sum to be allowed to the said defendant 
 to enable her to carry on her defence in this suit and to defray 
 the necessary costs and expenses thereof, and the court having 
 duly considered the said report and having heard the counsel 
 for the respective parties in relation thereto and being fully 
 advised thereon: It is ordered by the court now here that the 
 said report be, and the same hereby is, in all things approved 
 and confirmed^ and that the complainant -do pay the defendant 
 
 the sai)^ sum of dollars per month from the time of the 
 
 commencement of this suit for her support and the support of 
 the said two children and that the same be paid monthly in 
 advance, and that the said complainant also pay to the defend- 
 ant or her solicitor the said sum of dollars to enable her 
 
 to carry on her defence in this cause and to defray the costs and 
 expenses thereof, and that such payment be made within 
 days from the date hereof. 
 
 ORDER FOR ALIMONY AND EXPENSES. 
 
 TO COMPLAINANT AFTER MOTION IN OPEN COURT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause the motion (or petition) of the above named 
 complainant for alimony during the pendency of this cause and 
 a reasonable sum to enable her to defray the expenses of pros- 
 ecuting her said cause came on to be heard, and the court having 
 heard and considered the evidence adduced by the parties re- 
 spectively and the arguments of counsel for each party: It is 
 ordered by the court now here that the defendant pay to the 
 
 complainant or her solicitor the sum of dollars within . 
 
 days from the date hereof, and that he pay to the com- 
 plainant the further sum of . . , dollars per month du or 
 
 before the day of each and every month, commencing 
 
 on the day of , A. D. 19. ., for her support 
 
 during the pendency of this suit. 
 
 TO DEFENDANT AFTER MOTION IN OPEN COURT. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the petition of the de- 
 fendant for alimony during the pendency of this suit and for an 
 allowance to enable her to defend the same. And the court hav- 
 ing heard the petition of the said defendant, duly verified, and 
 
stage's MICHIGAN CHANCEBY PBAOTICE AND FOEMS 781 
 
 the affidavits in support thereof, and the counter affidavits on 
 the part of the said complainant, and the arguments of counsel, 
 and upon due consideration thereof : It is ordered and adjudged, 
 and the court now here doth hereby order and adjudge, that the 
 
 said complainant do within days from the date of this 
 
 order pay to the solicitor for the defendant dollars as 
 
 a solicitor's fee, and that he also pay to the said defendant or 
 
 her solicitor the further sum of dollars per month for 
 
 each and every month in advance during the pendency of this 
 
 suit, commencing on the day of , A. D. 19 . . , 
 
 and that he pay to the defendant or her solicitor the fees of the 
 witnesses for the said defendant, and all fees of office and court 
 expenses as they accrue and on demand. 
 
 > 
 
 Circuit Judge. 
 Countersigned : 
 
 Register in Chancery. 
 
 DEMAND FOR TEMPORARY ALIMONY. 
 
 (Title of .court and cause.) 
 
 To , the above named complainant {or, defendant). 
 
 Sir: You will please pay to me (or, to the bearer hereof ) 
 
 forthwith the sum of dollars, the same being the 
 
 amount now due and unpaid upon an order for alimony and 
 expenses made in the above entitled cause by the said court on 
 
 the day of , 19 ■ ■ , (if sent hy messenger insert, 
 
 and you are hereby notified that the bearer hereof has full 
 power and authority from me to demand and receive of and from 
 you the said sum of money), I being the solicitor for the above 
 named in the above entitled cause. 
 
 Dated this day of , A. D. 19. .. 
 
 (Signature.) 
 Solicitor for 
 
 AFFIDAVIT TO OBTAIN ATTACHMENT FOR NON- 
 PAYMENT OF ALIMONY. 
 
 (Title of court and cause.) 
 (Venue.) 
 
 J. S., the solicitor for the complainant in the above entitled 
 cause, being duly sworn, says that heretofore and on the 
 
 day of , A. D., 19. ., an order was made in 
 
 this cause requiring the above named defendant, C. D., to pay to 
 the solicitor for the said complainant the sum of dol- 
 lars as a solicitor's fee, and dollars to defray officer's 
 
 fees and court expenses within days from the date of 
 
782 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMB 
 
 the said order, and that he, the said defendant, should also pay 
 to the said complainant or her solicitor the further sum of 
 
 dollars per month for each and every month in advance 
 
 during the pendency of this suit, commencing on the 
 
 day of , A. D. 19 . . , and that he, the said defendant, 
 
 should also pay to the complainant or her solicitor the fees for 
 the witnesses for the said complainant, and all fees of officers and 
 court expenses as they should accrue and on demand, as in and 
 by the said order now remaining of record in this court, and 
 whereto reference is prayed, fully appears. 
 
 And that afterwards and on the day of , A. 
 
 D. 19. ., a certified copy of the said order was personally served 
 upon the said defendant, C. D., as fully appears by the affidavit 
 
 of hereto annexed, and that more than days 
 
 have elapsed since the date of the said order and since the serv- 
 ice of the said certified copy thereof on the said defendant, and 
 
 that the said sum of dollars so ordered to be paid as a 
 
 solicitor's fee, as well as the sum of dollars for officer's 
 
 fees and court exepenses is now past due, and that the said sum 
 
 of dollars per month so ordered to be paid on the 
 
 day of each month during the pendency of this suit is 
 
 now due and payable for each of the months of and 
 
 , and that this deponent has, as solicitor for the com- 
 plainant, since said several sums became due, on the 
 
 day of , A. D., 19 . . , called upon the said defendant 
 
 and demanded of him that he should pay the same (if demand 
 
 in writing has been made, insert) ajid on the day of 
 
 , A. D., 19. ., he served (or, cai^sed to be served) upon 
 
 the said defendant a demand in writing for the same in sub- 
 stance, tenor and effect as follows: (insert copy of demand in 
 writing). 
 
 And this deponent further says that the said defendant has 
 not paid the said several sums or any part thereof and has hither- 
 to refused and still does refuse to pay the same or any part 
 thereof. 
 
 Signa,ture 
 
 (Jurat.) 
 
 (Annex affidavit of service of certified copy of order, also 
 affidavit of demand.) 
 
 ORDER TQ SHOW CAUSE WHY ATTACHMENT SHOULD 
 
 NOT ISSUE. 
 
 (Title of court.) 
 (title of cause.) 
 (Caption.) 
 
 On reading and filing due proof of service of a certified copy 
 of the order made in this cause on the day of . , , 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 783 
 
 A. D. 19.., on the above named defendant, C. D., personally, 
 and on reading and filing due proof of a personal demand of 
 payment of the several sums of money due and unpaid upon the 
 said order at the time of the service thereof upon the said de- 
 fendant, and that more than days have elapsed since 
 
 such service and demand and that the said defendant has 
 neglected to pay the same or cause the same to be paid or any 
 
 part thereof: On motion of , Esq., solicitor for the said 
 
 complainant, it is ordered that the said defendant, C. D., appear 
 
 before this court on the day of , A. D. 1.9 . . , 
 
 at the opening of the court on that day, and show cause why an 
 attachment should not issue against him and he be punished and 
 
 committed to the common jail of said county of for his 
 
 alleged contempt of this court in his alleged neglect in not pay- 
 ing the said several sums of money mentioned in the said order 
 
 of this court, made on the day of , A. D. 19 . . , 
 
 and his failure to comply with the terms and requirements of the 
 said order. And it is further ordered that a certified copy of 
 this order, together with copies of the affidavits on file whereon 
 this order is founded, be served upon the said defendant, C. D., 
 on or before the day of , A. D. 19 . . . 
 
 Circuit Judge. 
 Examined, Countersigned and 
 entered by me: 
 
 Register. 
 
 AFFIDAVIT SHOWING CAUSE WHY ATTACHMENT 
 SHOULD NOT ISSUE. 
 (Title of court and cause.) 
 (Venue.) 
 
 C. D., the defendant in the above entitled cause, being duly 
 sworn, says that (state the cause why he has not complied with 
 the order, if he has not complied with it, which may be as fol- 
 lows:) he has been and is unable to pay the several amounts 
 mentioned in the said order, for the reason that he has had and 
 has no money wherewith to pay the same, and that he has been and 
 is restrained by the injunction of this court, issued at the in- 
 stance of the said complainant from selling, mortgaging or dis- 
 posing of any of his property, real or personal, and therefore 
 has been and is unable to raise any money ; and that he has no 
 property, real or personal, which he is not by such injunction 
 restrained from selling, mortgaging or disposing of, and this de- 
 ponent has therefore been and still is by reason of such injunc- 
 tion unable to convert any of his property into money, and has 
 been and is unable to comply with the said order. 
 
784 stage's MICHIGAN CHANCEEY PEACTICB AND FORMS 
 
 OEDER FOE ATTACHMENT AND COMMITMENT. 
 (Title of court.) 
 
 (Title of cause. < 
 
 (Caption.) 
 
 In this cause on reading and filing due proof of due personal 
 service upon the above named defendant, C. D., of a certified 
 
 copy of the order of this court heretofore and on the 
 
 day of , A. D. 19 . . , made in this cause, requiring him, 
 
 the said defendant, C. D., to appear before this court on the 
 
 day of , A. D. 19 . . , and show cause why an 
 
 attachment should not issue against him as for a contempt, for 
 his neglect and refusal to comply with and obey the order of this 
 
 court theretofore and on the day of , A. D. 19 . . , 
 
 made in this cause, requiring him to pay to the solicitor for the 
 
 complainant the sum of dollars for solicitor's fees. 
 
 officer's fees and court expenses, within days from, the 
 
 date of said order, and also to pay to the complainant or her 
 solicitor the further sum of dollars per month in ad- 
 vance on the day of each month for her sup- 
 port and maintenance, during the pendency of this suit, together 
 with copies of all the affidavits whereon the said order was found- 
 ed, and on reading the affidavits on file in support of the said or- 
 der (if defendant has filed affidavits in reply, add: and the af^ 
 fidavits of and on behalf of the said defendant in reply thereto), 
 and it appearing to the court now here that there is now due and 
 
 uupaid on the said order made on the said day of 
 
 , A. D. 19 . . , the sum of dollars for solicitor's 
 
 fees, officer's fees and court expenses, and the further sum of 
 
 dollars for the support and raaintenance of the said 
 
 complainant, and that a certified copy of the said last mentioned 
 order was duly served upon the said defendant, and that more 
 
 than days have elapsed since the date of said order and 
 
 since such service, and that a personal demand has been made 
 of the said defendant that he should pay the same and that the 
 said defendaut has not paid the same nor any part thereof, and 
 that no sufficient reason for such nonpayment has been shown : 
 
 On motion of , Esq., solicitor for the complainant (if 
 
 defendant has appeared and opposed add, and , Esq., of 
 
 counsel for the defendant having been heard in opposition 
 thereto) .: It is ordered and adjudged that the said defendant, 
 C. D., is guilty of the misconduct and contempt aforesaid, and 
 that a precept of attachment be issued out of and under the seal 
 
 of this court, directed to the sheriff of the county of , 
 
 commanding him forthwith to take the body of the said defend- 
 ant, C. D., and commit him to the common jail of the said county 
 
 of , and detain him in custody in the said jail until he 
 
 shall pay the said several sums so ordered to be paid, and also 
 the costs of the proceedings to compel such payment, hereby 
 
stage's MICHIGAN OHANCEBY PBACTICB AND FOBMS 785 
 
 taxed at the sum of dollars, together with the fees of 
 
 the said sheriff in the execution of such precept. 
 
 Circuit Judge. 
 
 ATTACHMENT FOR NON-PAYMENT OF ALIMONY. 
 In the Name of the People of the State of Michigan. 
 To the Sheriff of the County of , Greeting : 
 
 Whereas by an order of our Circuit Court for the county of 
 
 in Chancery, made and entered on the day 
 
 of , A. D. 19 . . , in a certain cause then therein pend- 
 ing, wherein A. B. is complainant and C. D. is defendant, it was 
 among other things- ordered that the said C. D. pay to the solic- 
 itor for the said complainant the sum of dollars for 
 
 solicitor's fees, officers' fees and court expenses within 
 
 days from the date of said order, and also pay to the said com- 
 plainant or her solicitor the further sum of dollars per 
 
 month in advance on the day of each month for her 
 
 support and maintenance during the pendency of the said suit, 
 and whereas, also, by the further order of our said court, made 
 
 and entered on the day of , A. D. 19 . . , in 
 
 the said cause, it was among other things ordered and adjudged 
 that there was then due and unpaid on said first mentioned order 
 
 the sum of dollars for such solicitor's fees, officers' fees 
 
 and court expenses, and the further sum of dollars for 
 
 the support and maintenance of the comiplainant during the 
 pendency of the said suit, and that the said defendant, C. D., is 
 guilty of misconduct and contempt in. his refusal and neglect to 
 comply and obey the said first mentioned order, and that a pre- 
 cept of attachment ^ould issue for the arrest of the said C. D. 
 
 and his commitment to the county jail of said county of 
 
 until the said several sums, together with the costs of the pro- 
 ceedings to compel such payment taxed in said order at the sum 
 of dollars and your fees in the execution of such pre- 
 cept, should be paid. 
 
 Now, therefore, you, the said sheriff, are hereby commanded 
 that you forthwith take the body of the said defendant, C. D., 
 
 and commit him to the county jail of the county of , 
 
 and detain him therein in your custody until he shall pay the 
 
 said several sums of dollars for solicitor's fees, officers' 
 
 fees and court expenses, and dollars for the support 
 
 and maintenance of the complainant, and dollars for 
 
 the costs of the proceedings to compel such payment, together 
 with your fees on the execution of this precept. 
 
 Hereof fail not but of this precept and your doings thereon 
 make due return. 
 
 Witness the Hon , Circuit Judge of the Circuit Court 
 
786 stage's MICHIGAIT CHANCEEY PEACTICE AND POBMS 
 
 for the County of , In Chancery and the seal of the said 
 
 court this day of , A. D. 19 . . . 
 
 Register in Chancery. 
 
 Solicitor for Complainant. 
 (L. S.) 
 
 § 754. Decree. The decree in a divorce case where the 
 charges in the bill or cross bill are proved is that the mar- 
 riage between the parties be dissolved and a divorce from 
 the bonds of matrimony decreed, or that a divorce from 
 bed and board be decreed as the case may be. 
 
 §755. A decree of divorce from the bonds of matri- 
 mony may also in the discretion of the court provide that 
 the party against whom the decree is granted shall not 
 marry again within a specified time, not exceeding two 
 years, from the date of the decree, and if such party shall 
 marry within the time thus limited he or she will be 
 deemed guilty of bigamy.' 
 
 The decree may also at the instance of the wife, 
 whether she be complainant or defendant, in cases where 
 there are no minor children of the marriage, restore to 
 the wife her maiden name or the name she legally bore 
 previous to her marriage to the husband in the divorce 
 case.^ 
 
 The decree may also provide for the restoring to the 
 wife of the whole, or such part as shall be deemed just 
 and reasonable of the personal estate that shall have 
 come to the husband by reason of the marriage, or for 
 awarding to her the value thereof to be paid to her by 
 the husband in money.* 
 
 The court may also make such decree as it shall deem 
 just and proper as to the care, custody and maintenance 
 of the minor children and may determine with which of 
 the parents the children or any of them shall remain * 
 
 1— C. L., See. 8658. 3— C. L., Sec. 8634. 
 
 2— Act No. 299 Public Acta of 4— C. L., Sec. 8631. 
 
 1906, p. 472. 
 
stage's MICHIGAN CHAUCEBY PbACTlCE AND FOBMS 787 
 
 and may afterwards from time to time on petition of 
 either party, revise and alter the decree, or make such 
 decree as the circmnstances of the parents and benefit of 
 the children may require.^ 
 
 A change of the custody of the children from one par- 
 ent to the other may be made by the court when the cir- 
 cumstances show that it will be for the benefit of the 
 children to do so." But such a change will not be made 
 unless there be a change in the circumstances from those 
 which existed or were made to appear at the time of 
 making the original decreeJ 
 
 § 756. In the case of the dissolution of a marriage ob- 
 tained by force or fraud the court shall decree the custody 
 of the issue of such marriage to the innocent parent, and 
 may also decree a provision for the education and main- 
 tenance of such issue from the estate of the guilty party.* 
 
 Where on final decree the custody of a child is awarded 
 to the wife, the allowance for the support of the child 
 ordered to be paid by the husband must be paid to the 
 wife, not to a guardian of the child.^ 
 
 The court may also decree costs to be paid by either 
 party to the other and award execution for the same.^" 
 
 The court may also decree permanent alimony to the 
 wife. 
 
 § 757. Permanent Alimony. This is a provision for 
 the support of the wife after divorce and is adjudicated 
 by the decree. 
 
 It is provided by statute that "Upon every divorce 
 from the bond of matrimony for any cause, except that of 
 adultery committed by the wife, and also upon every 
 divorce from bed and board for any cause, if the estate 
 and effects awarded to the wife shall be insufficient for 
 
 5 — C. L., Sec. 8632 ; see Court- T^Chandler v. Chandler, 24 Mich, 
 
 right V. Courtright, 40 Mich. 633; 176; Smith v. Smith, 139 Mich. 133. 
 
 riory V. Ostmm, 92 Mich, 622; Tg-y- 8— C. L., Sec. 8650. 
 
 lor V. Taylor, 73 Mich. 266; Klein 9 — Swiney v. Swiney, 107 Mich. 
 
 V. Klein, 47 Mich. 518. 459. 
 
 6— Stone v. Stone, 161 Mich. 565; 10— C. L,, See. 8628. 
 GriflSn V. GriflSn, 154 Mich. 536. 
 
788 stage's MICHIGAN CHANCEEY PRACTICE AND FOBMS 
 
 the suitable support and maintenance of herself and such 
 children of the marriage as shall be committed to her 
 care and custody, the court may further decree to her 
 such part of the personal estate of the husband and such 
 alimony out of his estate real and personal, to be paid to 
 her in gross or otherwise as it shall deem just and rea- 
 sonable, having regard to the ability of the husband and 
 the character and situation of the parties and all the 
 other circumstances of the case."^^ 
 
 Courts of Chancery have no inherent power to decree 
 permanent alimony; the power to do so is statutory, in- 
 cident to the jurisdiction over applications for divorce. 
 The statute prescribes the entire powers and regulations 
 on this subject.^'' 
 
 §758. It is further provided by statute that "In all 
 cases where alimony or allowance for the support and 
 education of minor children shall be decreed to the wife, 
 the amount thereof shall be a lien upon such of the real 
 and personal estate of the husband as the court by its 
 decree shall direct, and in default of payment of the 
 amount so decreed the court may decree the sale of the 
 property against which such lien is decreed in the same 
 manner and upon like notice as in suits for the fore- 
 closure of mortgage liens : or the court may award exe- 
 cution for the collection of the same, or the court may 
 sequester the real and personal estate of the husband and 
 may appoint a receiver thereof and cause such personal 
 estate and the rents and profits of such real estate to be 
 applied to the payment thereof, or the court in lieu of 
 a money allowance may decree such a division between 
 the husband and wife of the real and personal estate of 
 the husband, or of the husband and wife by joint owner- 
 ship or right, as he shall deem to be equitable and just. ' ' '* 
 
 "After a decree for alimony or other allowance for 
 the wife and children or either of them, and also after 
 the appointment of a trustee to receive and hold any prop- 
 erty for the use of the wife or children, the court may 
 
 11— C. L., Sec. 8638. 13— C. L., Sec. 8640. 
 
 12 — Perkins v. Perkins, 16 Mich. 
 162. 
 
stage's MICHIGAN CHANCERY PBACTICB AND FOEMS 789 
 
 from time to time, on the petition of either of the parties, 
 revise and alter such decree respecting the amount of 
 such alimony or allowances and the payment thereof, and 
 also respecting the appropriation and payment of the 
 principal and income of the property so held in trust, and 
 may make any decree respecting any of the said matters 
 which such court might have made in the original suit." 
 
 § 759. It is the proper practice for the court to first 
 determine whether or not a divorce sjiould be decreed be- 
 fore taking proofs upon or determining the allowance 
 of permanent alimony.^ ^ 
 
 It will be observed that the awarding of permanent ali- 
 mony is not mandatory but rests in the discretion of the 
 court. It is properly refused where the wife has already 
 received a considerable portion of the husband 's estate,^^ 
 and should not be lavishly allowed when the wife is young 
 and healthy, brought no property to her husband and 
 did not aid him in accumulating any, obtained a divorce 
 from a former husband for the purpose of marrying him 
 and lived with him but a short time.'^ On the other 
 hand where the wife has by her industry, frugality and 
 economy helped to accumulate the property of her hus- 
 band the allowance should be liberal.'* "WTiere the hus- 
 band's property is insufficient to support the entire fam- 
 ily and they have been accustomed to rely on their own 
 labor, the amount of alimony should not be, so large as to 
 relieve the wife from doing anything to support herself.'* 
 The amount rests in the sound discretion of the court 
 under all the circumstances,^" and where some years 
 after a divorce was decreed an application was made for 
 
 14— C. L., Sec. 8641. 18 — Berryman v. Berryman, 59 
 
 15 — Eea v. Eea, 53 Mich. 40; Mich. 605. 
 
 Seibly v. Circuit Judge, 105 Mich. 19 — ^Brown v. Brown, 22 Mich. 
 
 584. 242. 
 
 Ig — Stevens v. Stevens, 49 Mich. 20 — ^Van Der Beck v. Van Der 
 
 504; see Chittock v. Chittock, 101 Beck, 124 Mich. 479; Templeton v. 
 
 Mich. 367. Templeton, 126 Mich. 44; Schabel 
 
 17 — Cummings v. Cununings, 50 v. Schabel, 115 Mich. 487; Kirkland 
 
 Mich. 305; Donaldson v. Donaldson, v. Kirkland, 111 Mich. 166. 
 134 Mich. 289. 
 
790 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 alimony and the court at the hearing of the petition found 
 that the decree was obtained pro confesso by deception 
 of the husband practiced by the complainant the court 
 was held justified in considering that fact in disposing 
 of the application for alimony ."^ 
 
 § 760. Alimony should be allowed in gross instead of 
 periodical payments where there is apparent likelihood 
 that the husband would vexatiously delay or withhold 
 payments.^^ Where alimony is allowed in gross and the 
 property of the husband consists wholly of land the court 
 may give him his option to pay in money or in land.^* 
 The court has power to decree that real estate the title 
 to which is held by husband and wife jointly by entire- 
 ties be vested in the wife alone as alimony.^* 
 
 § 761. If the husband die after a decree of divorce is 
 pronounced and before the permanent alimony is fixed 
 and awarded the wife may petition the court for the 
 allowance thereof, but the heirs and legatees of the hus- 
 band must in that case be made parties to the petition 
 and the amount will be limited to sufficient for the main- 
 tenance of the wife up to the time of the death of the 
 husband.''^ 
 
 §762. A wife has no vested absolute rights in per- 
 manent alimony ^^ and a contract made by her with solici- 
 tors to pay them a proportionate share of the alimony 
 which may be decreed to her in a suit for divorce to be 
 prosecuted for her by such solicitors is absolutely void, 
 being against public policy as encouraging divorce and 
 discouraging reconciliation.^'^ 
 
 The allowance of permanent alimony, being made by 
 
 21'— Adams v. Seibly, 115 Mich. 25 — Seibly v. Circuit Judge, 105 
 
 402. Mich. 584. 
 
 22— McCIung V. McClung, 40 26— Perkins v. Perkins, 10 Mich. 
 
 Mich. 493. 425; Jordan v. Westennan, 62 Mich. 
 
 23 — Hamilton v. Hamilton, 37 170. 
 
 Mich. 60a. 27— Jordan v. Weaterman, 62 
 
 24— lEeeves v. Beeves, 117 Mich. Mich. 170. 
 526; Act No. 259 Public Acts of 
 1909, page 443. 
 
stage's MICHIGAN CHANOEBY PRACTICE AND FOEMS 791 
 
 a final decree is appealable to the Supreme Court,^^ al- 
 though the order for temporary alimony being inter- 
 locutory, is not.'*** 
 
 § 763. After a decree is made for ahmony or other 
 allowance for a wife and children, or either of them, the 
 court may, from time to time, on petition of either party, 
 revise and alter such decree as to the amount or manner 
 of payment, and may make any decree as to such matters 
 as it might have made in the original suit,^" but it can 
 make such alteration or new decree only where new facts 
 have arisen or been made to appear since the time of 
 making the original decree,^^ and the court in such cases 
 will not consider any new facts which are not set forth 
 in the petition.*^ 
 
 Enforcement. Besides the remedy by execution given 
 by statute,^* the wife may, where the alimony is decreed 
 to be a lien on the real estate of the husband, maintain 
 a bill for the foreclosure of such lien in the same manner 
 as in mortgage foreclosures ^* and since 1899 failure to 
 pay permanent alimony is contempt of court for which 
 an attachment may be issued as in case of temporary 
 alimony.^^ 
 
 § 764. In case of an application for divorce from bed 
 and board, although a decree for such divorce be not 
 made, the court may make such order or decree for the 
 maintenance of the wife and children, or any of them, by 
 the husband or out of his property as the nature of the 
 case may render suitable and proper.*" 
 
 28— Taylor v. Gladwin, 40 Mich. 34— C. L., Sec. 8640; Glick v. 
 
 232. ^ Glick, 110 Mich. 304. 
 
 29 — ^Perkins v. PerkinB, 10 Mich. 35 — C. L., Sec. 10891, as amended 
 
 425. by Act No. 230 Pub. Acts of 1899 
 
 30— C. L., See. 8641. Sub div. 3 p. 361. 
 
 31_Eeyiiolds v. Eeynolds, 115 36— C. L., Sec. 8654; see Chaffee 
 
 Mich. 378; Perkins v. Perkins, 12 v. Chaffee, 15 Mich. 184; Cooper v. 
 
 Mich. 456. Cooper, 17 Mich. 205; Bishop v. 
 
 32 — Perkins v. Perkins, 12 Mich. Bishop, 17 Mich. 211; Skillman v. 
 
 456. Skillman, 18 Mich. 458. 
 
 33— C. L., Sec. 8640. 
 
792 stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 
 
 § 765. Suspension and Cessation of Alimony. Re- 
 marriage of a divorced wife is a proper cause for the 
 suspension or cessation of the payment of alimony, and 
 it may be terminated or suspended or modified for other 
 causes when deemed proper by the court.*'^ 
 
 § 766. The marriage of a lunatic may be decreed void 
 on the application of the lunatic after the restoration of 
 reason, but no sentence of nullity shall be pronounced if 
 it shall appear that the parties have freely cohabited as 
 husband and wife after the lunatic was restored to a 
 sound mind.*^ 
 
 No marriage shall be annulled on the ground of force 
 or fraud if it shall appear that at any time before the 
 commencement of the suit there was a voluntary co- 
 habitation of the parties as husband and wif e.^* 
 
 § 767. Resfiission. The court has power to set aside 
 its own decree of divorce for fraud in its procurement, 
 or for want of jurisdiction on the application of the 
 party against "whom the decree was obtained, although 
 the other party may have since married and children 
 may have been begotten,** but the decree cannot be 
 ^.voided on appliQa,tion of the party guilty of the fraud *^ 
 nor at the instance of third parties even if they are chil- 
 dren of the marriage*^ npr can the party whq obtained 
 the decree of divorce and accepts its benefits afterwards 
 question the jurisdiction of the court granting it.** 
 
 After the death of the complainant the defendant can- 
 not attack the decree.** 
 
 A decree of divorce may be vacated for irregularity 
 
 37— Stillman v. Stillman, 99 111, 253; Carlisle t. Carlisle, 96 Mich. 
 
 196; Foas v. Foss, 100 III. 576; Mus- 128. . 
 
 siBg V. Mussing, 104 lU. 127; Dan- 42— Baugh v, Baugh, 37 Mieh. 59; 
 
 forth v. Danforth, 105 111. 603. Carlisle v. CarUsle, 96 Mich. 128. 
 
 38— C. L., Sec. 8648. 43— CarUsle v. Carlisle, 96 Mich. 
 
 39 — C. L., Sec. 8649. 128, and cases cited on page 131. 
 
 40 — Carlisle v. Carlisle, 96 Mick. 44 — ^ZoeUner v. Zoellner, 46 Mich. 
 
 128. all. 
 
 41 — Simons v. Simons, 47 Mich. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 793 
 
 * when the application is made promptly ,^^ but not unless 
 such vacation is applied for at the earliest opportunity.**' 
 
 When the party obtaining the divorce has re-married 
 the new wife or husband is a necessary party to the 
 petition for rescission.*^ 
 
 A decree of divorce from bed and board forever or for 
 a limited time may be revoked at any time thereafter 
 under such regulations and restrictions as the court may 
 impose on the joint application of the parties and their 
 producing satisfactory evidence of their reconciliation.** 
 
 § 768. A defendant in a divorce case who has not been 
 personally served with process, but who has been brought 
 in by publication, cannot afterwards appear and petition 
 to be heard and admitted to answer hke defendants who 
 have been brought into court by publication in other 
 cases, the statute authorizing such appearance expressly 
 excepts decrees for divorce.*^ 
 
 §769. Appeals may be taken to the Supreme Court 
 by either party as in other chancery cases. 
 
 DECREE FOR DIVORCE PRO CONFESSO ON PROOFS 
 TAKEN BEFORE A CIRCUIT COURT 
 COMMISSIONER. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having been brought on to be heard upon the bill 
 of complaint filed therein, taken as confessed by the defendant, 
 
 and upon the report of Esq., one of the Circuit Court 
 
 commissioners for said county of , to whom it was re- 
 ferred, by an order heretofore entered therein to take proofs of 
 the material facts charged in such bill of complaint ; thereupon, 
 on reading the bill of complaint, the report of such Circuit 
 Court commissioner, and the proofs accompanying the same, to- 
 gether with the opinion of said Circuit Court commissioner upon 
 .such proofs, from which it satisfactorily appears to this court 
 
 45 — McKinney v. MeKinney, 36 
 
 47— CarUsle v. Carlisle, 96 Mich, 
 
 Mich. 37. 
 
 128. 
 
 46 — ^Johnson v. Johnson, Walk. 
 
 48— C. L., See. 8655. 
 
 Ch, 309 J Long v. Long, 59 Mich. 
 
 49— C. L., Sec. 496, 
 
 2fl6. 
 
 
794 stage's MICHIGAN CHANCEET PBACTICE AND FOBMS 
 
 that the material facts charged in such bill of complaint are 
 true, and that the defendant C. B. has been guilty of the sev- 
 eral acts of adultery (or, cruelty or as the case may be, stating 
 ground on which divorce is granted) therein charged; and also 
 that the said defendant, C. B., is an unsuitable person to have 
 the care, custody and education of the minor child. . named in 
 the said bill, the issue of their said marriage, and that the com- 
 plainant, A. B. is a suitable person to have the care, custody and 
 
 education of said minor child. . on motion of , Esq., of 
 
 counsel for said complainant, it is ordered, adjudged and dcr 
 creed, and this court by virtue of the authority therein vested, 
 and in pursuance of the statute in such case made and provided, 
 doth order, adjudge and decree, that the marriage between the 
 said complainant, A. B., and the said defendant, C. B., be dis- 
 solved, and the same is hereby dissolved accordingly, and a 
 divorce from the bonds of matrimony between said parties is 
 adjudged and decreed. 
 
 And it is also further ordered, adjudged and decreed, that 
 said complainant, A. B., shall have the care, custody and educa- 
 tion of said minor child aged years, 
 
 months, and days the issue of said marriage between 
 
 said parties mentioned and named in the bill of complaint in 
 this cause, and that the said minor child. . shall remain with 
 said complainant, A. B., until said child. . shall respectively 
 attain the age of fourteen years. 
 
 Circuit Judge. 
 Examined, Countersigned and Entered by me. 
 
 Register. 
 
 ON PROOFS TAKEN IN OPEN COURT. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 This cause having been brought on to be heard upon the bill 
 of complaint filed therein, taken as confessed by the defendant, 
 and upon proofs had thereon taken in open court, from which 
 it satisfactorily appears to this court that the material facts 
 charged in such bill of complaint are true, and that the defend- 
 ant, C. B., has been guilty of the several acts of (state ground of 
 divorce) therein charged, and that said defendant is an im- 
 suitable person to have the care, custody and maintenance of 
 the minor child, (name all the children under fourteen years 
 of age), the issimof their said marriage, and named in said bill; 
 and that the co^lainant, A. Bl. is a suitable person to have the 
 care, custody and maintenance of said, child (name the children). 
 
 On motion of G. H. of ootjnsel for said coifipl^sm;t;, it is 
 
stage's MICHIGAlir CHAN OBEY PBACTICB AND FOBMS 795 
 
 ordered, adjudged and decreed and this court, by virtue of the 
 authority therein vested, and in pursuance of tiie statute in such 
 case made and provided, doth order, adjudge and decree, that 
 the marriage between the said com^iainant, A. B. and the said 
 defendant, C. B., be dissolved, and the same is hereby dissolved 
 accordingly, and a divorce from the bonds of matrimony between 
 said parties is adjudged and decreed. 
 
 And it is^also further ordered, adjudged and decreed, that 
 said conj^kt^ant, A. B. shall have the care, custody and main- 
 tenance of said minor child, (naming all children under four- 
 teen), and that said child .... shall remain with said complain- 
 ant, until ^he shall respectively attain the age of f ourt.een years, 
 or until the further order of the court ; and it is further ordered, 
 adjudged and decreed that the said defendant pay to the said 
 complainant the sum of . .,t-.,<„«.w- ^dollars duri;ig each and ever;^ 
 yCT# commencing^^^h^^.^. ^t. . . day of . . .'. . . .'., A. I)..19.-., 
 and payable qifart e ry eai ^ly in advance on the . . /. f . . .' day 
 of . /r^. .'. . and -r^^f/. . of-ea>efe.j^KE until the further order 
 of this court. '^ -^--^x.^ (/^'..{,' JJ^-C'^.e.^i •, 
 
 J 
 
 Circuit Judge. 
 
 Examined, countersigned and entered by me, 
 
 (tAAi, 
 
 (GertifjCaJte, to Copy.) 
 State of Michigan, I ^^ 
 County of | 
 
 I, , register of the Circuit Court for the county of 
 
 in Cbancery, do hereby certify that the above and 
 
 foregoing is a true and correct copy of the decree entered in the 
 above entitled cause in said court, as appears of record in my 
 of&ce. That I have compared the same with the Original, and 
 it is a true transcript therefrom, and of the whole thereof. 
 
 In testimony whereof, I have hereunto set my hand, and 
 
 affixed the seal of said court, at this day of 
 
 A. D. 19... 
 
 Register in Chancery. 
 DECREE FOR DIVORCE AFTER CONTEST. 
 PROOFS TAKEN IN OPEN COURT. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) - 
 
 This cause having been brought on to be heard upon the 
 pleadings and proofs, the proofs having been taken in open 
 court, on reading the bill of complaint and answer of the defend- 
 
796 stage's MICHIGAN CHANCEEY PEAOTICB AND FOEMS 
 
 ant and hearing the proofs, taken as aforesaid from which it 
 satisfactorily appears to this court that the material facts 
 charged in such bill of complaint are true, and that the defend- 
 ant, C. D., has been guilty of the several acts of therein 
 
 charged : 
 
 On motion of of counsel for said complainant, it is 
 
 ordered, adjudged and decreed, and this court by virtue of the 
 authority therein vested, and in pursuance of the statute in such 
 case made gnd provided, doth order, adjudge and decpee, that 
 the marriage between the said complainant, A. B., and the said 
 defendant, C. D., be dissolved and the same is hereby dissolved 
 accordingly. And the said parties are, and each of them is 
 free from the obligation thereof, and a divorce frcrm the bonds 
 of matrimony is hereby decreed. (If custody of minor children 
 or alimony is decreed, see last form). 
 
 (Countersigned,) Circuit Judge. 
 
 J 
 
 Register. 
 
 ORDER THAT ISSUE OF FACT IN DIVORCE CASE 
 BE TRIEJD BY JURY. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 In this cause upon reading the pleadings in this cause and 
 
 on motion of Esq., solicitor for the , . : It is 
 
 ordered that the following issues of fact be submitted to and 
 tried by a jury, that is to say : 
 
 1. Has the defendant been guilty of extreme and repeated 
 cruelty toward the complainant as charged in the bill of com- 
 plaint? 
 
 2. Has the defendant been guilty of desertion of the com- 
 plainant for more than two years as charged in the bill of 
 complaint ? 
 
 (Let the questions correspond with the charges made in the 
 hill.) 
 
 DECREE OF DIVORCE ON VERDICT OF JURY. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon the bill of complaint 
 therein, the answer of the defendant thereto, and the replication 
 of the complainant to such answer, and a jury having been 
 called, selected and sworn to try the issue in this cause, that is 
 to say whether the defendant has been guilty of (extreme cruelty 
 toward the complainant) , in manner and form as charged in the 
 
stage's MICHIGAN CHANOEBY PRACTICE AND POBMS 797 
 
 said bill of complaint, and the said trial having proceeded in due 
 form of law, and the said jury having heard evidence offered by 
 the respective parties and the arguments of counsel, and having 
 found and rendered their verdict that the said defendant is 
 guilty thereof, and the said verdict being approved by the court. 
 Therefore, on consideration of the premises, it is ordered, 
 adjudged and decreed by the court now here that the marriage 
 between the complainant and the defendant be, and the same 
 hereby is dissolved, and the parties, each and both of them, are 
 freed from the obligations thereof, and a divorce from the bonds 
 of matrimony is decreed. And thg court not being sufficiently 
 advised as to the question of alimony ia the said cause does re- 
 serve the consideration thereof until a future and further hear- 
 ing thereon. 
 
 Circuit Judge. 
 Examined and Countersigned: 
 
 Register in Chancery. 
 
 DECREE OF DIVORCE FROM BED AND BOARD. 
 
 (Titlei of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause having come on to be heard upon the pleadings 
 of the respective parties on file and the proofs taken therein, 
 and having been argued by counsel for the parties respectively, 
 and the court being fully advised in the premises, and it appear- 
 ing to the court that the material allegations in the bill of com- 
 plaint contained are true, and that the said defendant is guilty 
 of the (extreme cruelty and misconduct) therein charged, and 
 that the equities of the ease are with the complainant : 
 
 And, therefore, upon due consideration thereof, it is ordered, 
 adjudged and decreed by the court now here, that the said 
 parties complainant and defendant be, and they hereby are 
 divorced from bed and board forever, but not otherwise from 
 the bonds of matrimony, and that the marriage between the said 
 parties be and remain otherwise in full force, and that the said 
 complainant is entitled to a separate maintenance from the 
 said defendant, and that she be allowed, and that the said 
 defendant do pay to her, the said complainant, the sum of 
 
 dollars per year commencing from the time of the 
 
 filing of the said complainant's bill of complaint in this cause, 
 
 that is to say from the day of , A. D. 19 . . , 
 
 and that the same be paid in (monthly) instalments of 
 
 dollars each, payable in advance on the day of 
 
 (each and every month), until the further order of the court. 
 
 And it is further ordered, adjudged and decreed that this 
 
798 stage's MICHIGAN CHANCBEY PEACTICE AND FOKMS 
 
 decree be and renaain a lien on the real estate of the defendant 
 until he shall have given security for the faithful performance 
 thereof to the satisfaction of this court, or of the said complain- 
 ant, and that the defendant pay to the complainant or her 
 solicitor the costs in this suit to be taxed, and that in case of 
 default being made in the payment of the said instalments of 
 rnqney as the same shall become due, or of the costs herein, that 
 execution issue for the same, and that the complainant have 
 leave to cause this decree, or a certified copy thereof, to be 
 recorded in the office of the register of deeds of any county 
 In this state wherein the real estate of the defendant is situate 
 as a lien on such property as aforesaid, and that either party 
 be at liberty to apply to this court as occasion may require. 
 
 Circuit Judge. 
 Examined, Countersigned and Entered by me: 
 
 Eegister in Chancery. 
 
 DECREE FOR PERMANENT ALIMONY AFTER 
 DIVORCE. 
 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause again came on to be heard as to the allowance of 
 alimony to be paid by defendant to the eomplainant, upon the 
 pleadings and proofs taken therein, and the court having here-' 
 tofore rendered a decree in this cause dissolving the marriage 
 between the complainant and the defendant, and having reserved 
 the consideration of the question of alimony, and the counsel 
 for the respective parties having been heard thereon, and the 
 court being fully advised in the premises: 
 
 Thereupon, in consideration thereof, it is ordered, adjudged 
 and decreed, and the court doth hereby order, adjudge and 
 decree, that the said defendant pay to the eomplainant the sum 
 
 of dollars during each and every year commencing on 
 
 the day of , A. D. 19 . . , and payable quarter 
 
 yearly in advance, on the days of , , 
 
 and of each year until the further order of 
 
 this court ; and that the said defendant do pay the costs of this 
 suit to be taxed by the register of this court to the complainant 
 
 or her solicitor within days from the date of this decree, 
 
 and that in default of the payment of any of the said sums or of 
 any part thereof in the manner and at the tiines herein provided, 
 that execution issue therefor. 
 
 And it is further ordered, adjudged ajid decreed that this 
 decree shall be and remain a lien upon all the lands and tene- 
 ments of the said defendant, until th,e deferidant shall execute 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 799 
 
 a good and sufficient mortgage upon his real estate, or upon so 
 much th^eof as shall be sufficient to secure the prompt pay- 
 ment of the several sums herein ordered to be paid, and such 
 mortgage shall be approved by or under the direction of this 
 court or such other security as shall be approved by this court. 
 
 Circuit Judge. 
 Examined, Countersigned and Entered by me : 
 
 Register in Chancery. 
 
 Effect of Decree. 
 
 §770. Bower. When a marriage shall be dissolved 
 by the husband being sentenced to imprisonment for life, 
 and when a divorce is decreed for thp cause of adultery 
 committed by the husband or for the misconduct or 
 habitual drunkenness of the husband, or on account of 
 his being sentenced to imprisonment for a term of three 
 years or more, the wife shall be entitled to her dower in 
 his lands in the same manner as if he were dead: but 
 she shall not be entitled to dower in any other case of 
 divorce.^ 
 
 Ejectment will lie by the wife against the husband for 
 her dower under this statute.^ 
 
 § 771. But in 1909 a statute was passed making it the 
 duty of the court granting a decree of divorce to include 
 in it a provision in lieu of the dower of the wife in the 
 property of the husband, and that such provision shall 
 be in full satisfaction of all claims that the wife may 
 have in any property that the husband owns or may 
 thereafter own, or in which he may have any interest, 
 and providing that every husband and wife owning real 
 estate as Joint tenants or by entireties shall, upon being 
 divorced, become tenants in common of such real estate 
 unless otherwise determined by the decree, and providing 
 also that the bill or answer or cross bill in any divorce 
 proceeding may ask that the ownership of any such lands 
 
 1— C. L., Sec. 8639. 
 2 — ^Pereival v. Percival, 56 Mich. 
 297; Bea v. Bea, 63 Mich. 257. 
 
800 stage's MICHIGAN CHANCEBY PBACTIOE AND FOEMS 
 
 (describing them) shall be determined by the decree of 
 divorce if granted, and that in such case the court may 
 award such lands to one or other of the parties or any 
 part of it to either of them, or may order such lands to 
 be sold and the proceeds divided in such proportions as 
 the court may direct, or may order partition of such 
 lands by commissioners as in partition proceedings.* 
 
 This statute does not in terms repeal the former stat- 
 ute, but it appears to have been intended to take the place 
 thereof as well as of all former statutes on the subject 
 of property rights after divorce. 
 
 Previous to the enactment of this statute it was held 
 that the court had no jurisdiction to settle property 
 rights of the parties in a suit for divorce.* 
 
 §772. If any persons after being divorced from the 
 bond of matrimony for any cause whatever shall cohabit 
 together, they shall be liable to all the penalties provided 
 by law against adultery,® 
 
 §773. Legitimacy of Children. A divorce for adul- 
 tery by the wife does not of itself affect the legitimacy 
 of the children, but such legitimacy if questioned may be 
 determined by the court upon the proofs in the case.^ 
 
 Upon the dissolution of a marriage for non-age, in- 
 sanity or idiocy of either party, the children of the mar- 
 riage shall be deemed the legitimate issue of the parent 
 who, at the time of the marriage, was capable of con- 
 tracting.'' 
 
 When a marriage is dissolved on account of a prior 
 marriage of either party and it shall appear that the 
 second marriage was contracted in good faith, and with 
 the full belief of the parties that the former wife or hus- 
 band was dead, that fact shall be stated in the decree and 
 the children shall be deemed the legitimate issue of the 
 parent who was capable of contracting marriage.® 
 
 3— Act No. 259 PutUe Acts of 5— C. L., Sec. 8645, 
 
 1909, p. 443. 6— C. L., See. 8642. 
 
 4— Letts V. Letts, 73 Mich. 139; 7— C. L., Sec. 8643. 
 
 Peck T. Peck, 66 Mich. 586. 8— C. L., Sec. 8644. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 801 
 
 Concerning Certain Grounds of Divorce. 
 
 §774. Adultery. Where a divorce is sought on the 
 ground of adultery a strict adherence to settled practice 
 and to all the forms prescribed for the attainment of 
 justice should be inflexibly required.^ 
 
 No decree of divorce can be granted for any act of 
 adultery proved which is not charged in the bilP and 
 where the bill charged adultery at one time and place and 
 the proof showed acts at a different time and place, the 
 court was held not warranted in allowing an amendment 
 of the bill to conform to the proof.* 
 
 The court may direct an issue to be tried by jury, but 
 such issue must be confined to the specific charges made 
 in the bill, and a general verdict in such a case that the 
 defendant was guilty of adultery, without particularizing 
 the act, is of no value.* 
 
 § 775. Adultery, being usually committed secretly, 
 may be proved by circumstantial evidence. The conduct 
 of the parties toward each other and other circumstances 
 from which guilt can be satisfactorily inferred, such as 
 an adulterous disposition and opportunity.' The testi- 
 mony of a particeps criminis although competent will be 
 closely scanned and should be corroborated by some 
 collateral evidence." Eeputation may be shown, not as 
 substantive proof but as subsidiary and subordinate evi- 
 dence in aid of substantive proof.^ 
 
 § 776. Evidence of adultery should be closely scanned 
 and guilt not lightly inferred from mere freedom of man- 
 ters, or want of refinement, when the conduct is not such 
 as to offend the general sentiment of the class of people 
 
 1 — Green v. Green, 26 Mieh. 437. 5 — Fischer v. Mscher, 131 Mich. 
 
 2 — Green v. Green, 26 Mieh. 437; 441; Marble v. Marble, 36 Mich. 
 
 Shoemaker v. Shoemaker, 20 Mieh. 385. 
 
 222; Bennett v. Bennett, 24 Mich. 6 — Emmons v. Emmons, Walk. 
 
 482; Dunn V. Dunn, 11 Mich. 284. Ch. 532; Herriek v. Herrick, 31 
 
 3 — Green v. Green, 26 Mich. 437. Mich. 298. 
 
 4 — ^Kneale v. Kneale, 28 Mich. 7 — Marble v. Marble, 36 Mich. 
 
 344, 385. 
 
802 stage's MICHIGAN CHANCEKY PEACTICB AND FOBMS 
 
 with whom the parties habitually associate ® and a divorce 
 for adultery will not be granted on the unsupported testi- 
 mony of young children of the parties, and the calling 
 of such children of tender age in such cases is severely 
 censured.^ 
 
 The testimony of persons employed by a husband for 
 the purpose of furnishing proof of the guilt of the wife 
 is regarded with great suspicion and is unworthy of great 
 credit ^^ and where it appears that the husband knew and 
 connived at the affectionate relations between his wife 
 and her alleged paramour a divorce will be denied.*^ 
 
 § 777. The court must also be satisfied by the evi- 
 dence that the complainant has not voluntarily cohabited 
 with the defendant since the discovery of the adultery 
 and that there has been no condonation. '? 
 
 §778. It is provided by statute that "In any suit 
 brought for a divorce on the ground of adultery, al- 
 though the fact of adultery be established, the court may 
 deny a divorce in the following cases : 
 
 First. When the offence shall appear to have been 
 committed by the procurement, or with the connivance 
 of the complainant: 
 
 Second. "When the offence charged shall have been 
 forgiven by the injured party, and such forgiveness be 
 proved by express proof, or by the voluntary cohabita- 
 tion of the parties with the knowledge of the offence. 
 
 Third. When there shall have been no express for- 
 giveness, and :tio voluntary cohabitation of the parties, 
 but the suit shall not have been brought within five years 
 after the discovery by the complainant of the offence 
 charged."^' 
 
 8 — ^Bishop V. Bishop, 17 Mich. H — ^Hei;rick v. Herrick, 31 Mich, 
 
 211; Soper v. Soper, 29 Mich. 305. 298. 
 
 9— Kneale v. Kneale, 28 Mich. 13 — Emmons v. Emmons, Wal. CSh. 
 
 344; Crowner v. Crowner, 44 Mich. 532. 
 
 180. 13— C. L., Sec. 8653. 
 
 10 — Vporhis v. Voorhis, 94 Mich. 
 60. 
 
stage's MICHIGAN CHANCESY PEACTICE AND FORMS 803 
 
 § 779. Physical Incapacity. It is provided by statute 
 that "A suit to annul a marriage on the ground of the 
 physical incapacity of one of the parties shall only be 
 maintained by the injured party against the party whose 
 incapacity is alleged: and shall in all cases be brought 
 within two years from the solemnization of the mar- 
 riage." 
 
 §780. Desertion. This consists in the abandonment 
 of one party by the other for two years or more consecu- 
 tively without the fault, procurement or consent of the 
 deserted party. 
 
 It must have continued uninterruptively for two 
 years.^^ 
 
 It must have been against the will of the deserted 
 party .^* 
 
 It must have been without consent to separation.^'' 
 
 But where a wife has determined to leave him and re- 
 move herself and her goods from her husband's home 
 and the husband made no objection for the reason that 
 he knew such objection would be of no avail he was 
 awarded a divorce for her desertion.^* 
 
 Where a wife is compelled to leave her husband's 
 home in consequence of his cruelty and having a well 
 grounded fear that it Would be unsafe for her to remain 
 with him and remains away from him for that reason 
 she is not guilty of desertion but he is.^^ 
 
 §781. Cruelty. Extreme cruelty is a very frequent 
 charge in divorce cases and it is often important to as- 
 oertain what is recognized by the courts as such. 
 
 Extreme iJimelty is not confined by the statute to acts 
 of physical violence but the grievances whether mental 
 
 14 — C. !>., See. 8651. 17 — Cooper v. Cooper, 17 Mich. 
 
 its— Eiidd V. Rudd, 33 Mich. 101; 205; Cox v. Cox, 35 Mich. 461. 
 
 Colburn v. Colbum, 70 Mich. 647; 18 — Northway v. Northway, 116 
 
 see Holmes v. Holmes, 44 Mich. 555. Mich. 19. 
 
 16 — ^Beller v. Beller, 50 Mich. 49; 19 — ^Warner v. Warner, 54 Mich. 
 
 Eose V. Bose, 50 Mieh. 92. 492. 
 
804 stage's MICHIGAN OHANCEKY PBACTICE AND FOBMS 
 
 or physical-, must be of the most aggravated nature to 
 justify a divorce.^" 
 
 § 782. Physical violence may be inflicted in any man- 
 ner-causing injury to the person by force as by striking,^^ 
 choking,^^ kicking,^* whippijig,^* ^nd in many other ways, 
 but it must be such as to be cruel in its nature as a single 
 blow stuck in the heat of passion under great provocation 
 and doing no great injury will not support a decree when 
 there is no apparent danger of its repetition,^^ although 
 a single act of violence may be sufficient if the circum- 
 stances be of that description that it is likely to occur 
 again causing rqail suffering, the test in such cases ap- 
 pears to be whether or not there is reasonable apprehen- 
 sion of injury in the future.^^ 
 
 Where both parties engaged in a mutual conflict and 
 the defendant suffered as well as the complainant a 
 divorce was denied.^^ 
 
 § 783. It is not easy to define with technical accuracy 
 of what extreme cruelty, without physical violence, con- 
 sists, as usually each case must depend upon its own 
 circumstances. 
 
 It is extreme cruelty in a husband that he insists that 
 his wife bear no children and shall submit to an opera- 
 tion to cause abortion when enciente.^* 
 
 Also where a husband without cause turned his wife 
 and her daughter by a former husband out of doors and 
 made the separation of mother and daughter a condition 
 
 20 — Cooper v. Cooper, 17 Mich. 104; Gholaton v. Gholston, 31 Ga. 
 
 205. 626. 
 
 21— Wacholz V. Waoholz, 75 Wis. 25— Hoshall v. HoshaU, 51 Ind. 
 
 377; Ward y. Ward, 103 111. 477. 72. 
 
 22 — Thompson v, Thompson, 79 26 — Holden v. Holden, 1 
 
 Mich. 124;- Shores v. Shores, 23 Ind. Con. 453; Johns v. Johns, 57 Miss. 
 
 546. 530; Beyer v. Beyer, 50 Wis. 254; 
 
 23 — Mercer v. Mercer, 114 Ind. 1 Nelson on Div. & Sep., Sec. 268. 
 
 558 ; Schichtel v. Schichtel, 88 Iowa 27 — Soper v. Soper, 29 Mich. 305. 
 
 210 ; Sharp v. Sharp, 106 111. 509, 28— Dunn v. Dunn, 150 Mieh. 476. 
 
 24 — Hawkins v. Hawkins, 65 Md. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 805 
 
 of taking his wife back.^'' So it is extreme cruelty for a 
 husband to communicate a venereal disease to his wife.** 
 
 Where a husband was in the habit of having fits of 
 sullen silence for a month at a time, during which he 
 would not speak to his wife except to call her opprobrious 
 names, and would frequently for the purpose of annoy- 
 ing her commit acts of filthy uncleanness about the house, 
 soiling the floors, walls, bed clothing, curtains, etc., a 
 divorce was granted for extreme cruelty.^^ Also when 
 he compelled his wife, when in delicate health to do more 
 work than she was fairly capable of performing. ^^ 
 
 It is extreme cruelty towards a virtuous wife for her 
 husband openly to consort with, and express preference 
 for loose women.^* 
 
 Where a husband excludes his wife's children by a 
 former husband from her home without cause, using 
 vulgar language imputing a want of chastity to her : and 
 kept her daughters away from their home, and destroyed 
 the affection of their adopted daughter for her, and 
 threatened to leave her, and was grossly mean, insulting 
 and tyrannical towards her, and circulated slanderous 
 and defamatory stories about her daughters he was held 
 to have been guilty of extreme cruelty towards her.** 
 
 Wilful neglect of wife during critical illness and using 
 brutal language towards her while sick is extreme 
 cruelty.*^ 
 
 § 784. It is extreme cruelty in a wife if she refuses 
 without just cause to cohabit with her husband as his 
 wife.*® Also when she habitually Called her husband op- 
 probrious names falsely accused him of associating in 
 an improper manner with other women and refused co- 
 
 29 — ^Friend v. Friend, 53 Mich. 33 — McClung v. MoClung, 40 
 
 543. Mich. 494. 
 
 30 — Holthoefer v. Holthoefer, 47 34 — Cooper v. Cooper, 78 Mich. 
 
 Mich. 260; Canfield v. C^nfield, 34 316. 
 
 Mich. 519. 35-=-Hoyt v. Hoyt, 56 Mich. 50. 
 
 31 — ^Bailey v. Bailey, 121 Mich. 36 — Whitaker v. Whitaker, ill 
 
 236. Mich. 202; Case v. Case, 159 Mich. 
 
 32 — ^De Zwaan v. De Zwaan, 91 491; Campbell v. Campbell, 149 
 
 Mich. 279. Mich. 147. 
 
806 stage's MICHIGAN CHANCEEY PRACTICE AND EOEMS 
 
 habitation because she disliked him *'' and also where a 
 husband had conveyed his homestead to his wife and she 
 had thereafter excluded him therefrom, refused to co- 
 habit with him, left him and rented the home to strangers, 
 she was adjudged guilty of extreme cruelty.^* 
 
 Also where a wife has causelessly, habitually, persis- 
 tently and publicly accused her husband of infamous con- 
 duct in violation of his marriage obligation, applying to 
 him vile and vulgar epithets and has been dogging him 
 and setting others to spy out his movements untij by 
 inordinate and indecent exhibitions of jealousy and the 
 indulgence of unworthy suspicions and ungoverned vio- 
 lence she has practically destroyed the decencies and pur- 
 pose of the marriage relation, the husband was decreed 
 a divorce on the ground of extreme cruelty.^® 
 
 § 785. But the acts must be aggravated to amount to 
 extreme cruelty so as to justify a divorce, so where a 
 wife, after several years of married life, during which a 
 child was born, left her husband, saying she did not love 
 him and refused further cohabitation, it was held not to 
 amount to extreme cruelty.*" 
 
 A continual succession of petty annoyances while they 
 render the married life of the parties unhappy does not 
 constitute extreme cruelty.*^ Nor does mutual wrang- 
 ling, especially when both parties are in fault.*^ 
 
 In cases where extreme cruelty is charged as consist- 
 ing of opprobrious, insulting, profane and obscene Ian-, 
 guage the position in life, character of the social asso- 
 ciateSj ways of life ftnd habits of the parties are to be 
 considered as language which would amount to extreme 
 
 37— Waldhorn v. Waldhom, 165 639; Eose v. Bose, 50 Mich. 92; 
 
 Mioh. 130; Begrow v. Begrow, 162 see Watrous v. Watrous, 165 Mich. 
 
 Mich. 349. 78. 
 
 38— Menzer v. Menzer, 83 Mich. 42— Beller v. Beller, 50 Mich, 4.9; 
 
 319. Peck T. Peck, 66 Mich. 586; Stafford 
 
 39— Whitmore v. Whitmore, 49 v. Stafford, 53 Mich. 522; Gerpan 
 
 Mioh. 417. V. German, 57 Mich. 256; Minde v. 
 
 40— Murnan v. Murnan, 128 Mich, Minde, 65 Mich. 633. 
 680. 
 
 41 — ^Johnson v. Johnson, 49 Jilioh. 
 
stage's MICHIGAN CHANCEBY PKACTICE AND FOEMS 807 
 
 cruelty if applied to a sensitive and refined person might 
 not be so if addressed to a person of opposite charac- 
 teristics.** 
 
 § 786. Where the proof of the charge of cruelty rests 
 on the uncorroborated evidence of the parties divorce 
 will be refused.** 
 
 §787. Other cases where divorce was sought on the 
 ground of cruelty are referred to below.*^ 
 
 § 788. In a suit for divorce as in other suits in equity, 
 the complainant must come into court with "clean 
 hands. ' ' *^ 
 
 Separate Maintenance of Wife from Husband's Estate. 
 
 § 789. It is provided by statute that ''Whenever a hus- 
 band shall, without good and sufficient cause, desert his 
 wife, or shall have hereafter deserted his wife without 
 good and sufficient cause, being of sufficient ability to 
 support her, or shall have become an habitual drunkard 
 since their marriage, or practiced extreme cruelty to- 
 wards her, or committed the crime of adultery or any 
 other offence that entitles the wife to a decree of divorce 
 or of separation, and shall refuse or neglect to support 
 his wife, either the wife or husband being a resident of 
 this state, the Circuit Court in chancery of any county in 
 this state in which said husband or wife shall reside, 
 shall, on the application of the wife by petition, allot, 
 assign, set apart and decree to her as alimony the use 
 
 43— Kline v. Kline, 50 Mich. 428 ; Mich. 102 ; Walsh v. Walsh, 61 Mich. 
 
 see Warner V. Warner, 54 Mich. 492. 554; Cox v. Cox, 35 Mich. 461; 
 
 44 — Ortanan v. Ortman, 92 Mich. Palmer v. Palmer, 45 Mich. 150; 
 
 172. Goodman v. Goodman, 26 Mich. 417; 
 
 45 — Jarstfer v. Jarstfer, 162 Eeichert v. Eeichert, 124 Mich. 694; 
 Mich. 196; Creyts v. Creyts, 133 Brick v. Brick, 65 Mich. 230; Ben- 
 Mich. 4; TJtley v. Utiey, 155 Mich. nett y. Bennett, 24 Mich. 482; Dow- 
 258 ; Stark v. Stark, 129 Mich. 153 ; ney v. Downey, 135 Mich. 265 ; Mnr- 
 Berryman v. Berryman, 59 Mich. ray v. Murray, 169 Mich. 388; Mc- 
 605; White y. White, 135 Mich. Duffee v. McDuffee, 169 Mich. 410. 
 271; Tackabeny t. Taekaberry, 101 46— HofE v. Hoffl, 48 Mich. 281; 
 
 Boot V. EoQt, 164 Mich. 638. 
 
808 stage's MICHIGAN CHANCBEY PKACTICE AND FOEMS 
 
 of such part of her husband's real and personal estate, 
 or such proportion of his earnings, income or revenue, 
 as the court may determine in its discretion, and during 
 the pendency of the proceedings may require the hus- 
 band to pay such sums to carry on the proceedings, or 
 for her support as it shall deem necessary in like manner 
 as provided by section eight thousand six hundred and 
 twenty-eight of the compiled laws of eighteen hundred 
 and ninety-seven in case of suit for divorce. Provided 
 that no decree shall be made in favor of the petitioner 
 unless at the hearing either such a state of facts shall 
 appear as would entitle her, as far as the husband's 
 wrongful acts are shown, to a decree for divorce upon 
 the grounds specified in the petition, or unless such a 
 state of facts set out in the petition shall be proven as 
 shall make it appear that the respondent had deserted 
 the petitioner with intent to leave her without adequate 
 means of support without good and sufficient cause, and 
 the husband shall be permitted to allege in Ms answer to 
 the petition apy facts which would prevent or bar a 
 divorce upon the grounds alleged in said petition and to 
 make proof of the same in conformity with such answer : 
 and provided further that an appeal from the final order 
 or decree may be taken to the Supreme Court as in 
 chancery cases, except that if the wife shall take such ap- 
 peal she shall not, in the discretion of the court, be re- 
 quired to file an appeal bond. ' ' * 
 
 § 790. Whenever in such a proceeding a petition shall 
 be filed by the wife a subpoena may be issued and served 
 as in ordinary chancery suits, and if on the filing of the 
 petition or returri of the subpoena unserved it shall ap- 
 pear that the husband is out of the state or has con- 
 cealed himself so that service is impossible, the court 
 may make an order for his appearance aijd publication 
 as in otheT chancery cases. If on the filing of the peti- 
 tion it is made to appear that the husband has property 
 real or personal, credits, stocks or securities which there 
 
 J— C. L., Sep. 8686, 
 
stage's MICHIGAN CHANOEBY PEACTICE AND FOEMS 809 
 
 is good reason to believe he will dispose of to avoid the 
 decree of the court, the court may grant an injunction to 
 restrain the sale or incumbrance of such property, stocks 
 and securities and the collection of such credits ; and no- 
 tice of such injunction served upon any person who is 
 the agent of the husband or his debtor, or the secretary 
 of any corporation in which he holds stook or upon the 
 register or deeds shall enjoin them from taking any part 
 in aiding the transfer or incmnbrance of such property 
 and from payment of such debts, and be notice to any 
 and all persons to whose knowledge it shall be brought, 
 and operate as an attachment on property in the hand of 
 that person, but such injunction shall not be held to affect 
 the duty of a register of deeds to record any deed or 
 other instrument properly executed, delivered to him for 
 that purpose. 
 
 § 791. To enforce its decree said court may cause exe- 
 cution to be issued and levied upon any of the husband's 
 estate found in the state, including stock in any corpora- 
 tion, and that where choses in action are due and owing 
 the husband from any resident of the state the said court 
 may, upon thirty days' notice given to the defendant 
 personally, if he is a resident, but by publication if con- 
 cealed or a non-resident once in each week for thirty 
 days in a newspaper published in the county in which the 
 action is pending order decree and direct the same to be 
 sold in the same manner .as personal chattels are sold 
 upon execution from courts of record.^ 
 
 § 792. A proceeding for the separate maintenance of 
 a wife will not be sustained unless the reasons for it are 
 imperative.* 
 A valid marriage must be alleged and proved.* 
 The petition must show clearly that it is brought un- 
 der this statute and not in the form of a bill for divorce. 
 
 2— C. L., Sec. 8687. 4— Clancy v. Clancy, 66 Mich. 202. 
 
 3 — ^Davidson v. Davidson, 47 
 Mich. 151. 
 
810 stage's MICHIGAN CHANCEBY PBACTICE AND EOKMS 
 
 The mere prayer for a separate maintenance is not suffi- 
 cient to distinguish it.^ 
 
 For cases in which the aid of this statute was success- 
 fully invoked see below.* 
 
 As stated in the statute above cited the proceedings 
 are similar to those in divorce cases. 
 
 PETITION OP WIFE FOR SEPARATE MAINTENANCE. 
 State of Michigan. 
 
 To the Circuit Court for the County of , 
 
 In. Chancery. 
 The petition -of A. B., of (state residence), respectfully shows 
 unto the court: 
 
 1. That on the day of , A. D. 19 . . , your 
 
 petitioner was duly and lawfully married, to one C. B., and that 
 the said C. B. is a resident of this state and resides in (siate 
 residence). 
 
 2. And that ever since her said marriage she has been a 
 true and faithful wife to the said C. B. and has done all in her 
 power to retain the love, good will and support of the said 
 C. B. 
 
 3. And that the said C. B. without any good or sufficient 
 cause and being of sufficient ability to support her has, on or 
 
 about the day of ,, A. D. 19 . . , deserted your 
 
 petitioner and ever since that time has lived and still lives separ- 
 ate and apart from her, and that the said C. B- is a man of con- 
 siderable property and carries on a profitable business as (state 
 
 tusiness), and derives an income of not less than dollars 
 
 per year, and is of sufficient ability to provide a suitable support 
 and maintenance for your petitioner, yet though of sufficient abil- 
 ity to support her the said C. B. absolutely refuses and neglects 
 to provide a suitable mf^intenanee or any maintenance whatever 
 for your petitioner, he the said C. E., being a resident of this 
 state as aforesaid (stating facts and circumstances of neglect), 
 (This petition may he filed if the husiand he guilty of extreme 
 cruelty or of any other act for which a. divorce from, the hands 
 of matrimony or a divorce from hed and hoard might he granted 
 and the foregoing third paragraph may he vc^ried according to 
 the facts stating the ground as irk O' hill for divorce). 
 
 4. And that the said C. B. is seized and possessed of real and 
 
 personal estate of the value of upwards of dollars, and 
 
 that his personal estate consists of (state of what the personal 
 property consists, in general terms), as nearly as your petitioner 
 
 5 — Horning v. Horning, 162 Mieh. e^-Tobey v. Tgbey, 100 Mich. 54; 
 
 130. Wolcott V. WolcQtt, 114 Mieh. 528. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 811 
 
 can state the same and is of the value of dollars as 
 
 nearly as your petitioner can estimate, and that his real estate 
 is described as follows : (insert description), as nearly as your 
 
 petitioner can now state, and that the value thereof is 
 
 dollars as nearly as your petitioner can now estimate. And that 
 
 the said C. B. is a strong and healthy man about years 
 
 of age and is abundantly able to take care of and support your 
 petitioner, but he absolutely refuses so to do, and your petitioner 
 has no property or income of her own and is now entirely depend- 
 ent upon the charity of her friends and relatives for support. 
 (If there are aivy minor children the issue of such marriage who 
 live with the petitioner the following paragraph may he inserted:) 
 
 And your petitioner further shows that she has borne to the 
 
 said C. B. as the issue of the said marriage children 
 
 whose names, sex and ages are as follows : , a son, aged 
 
 years months and days ; 
 
 a daughter, aged years months and 
 
 days, (and so on namving each child with its sex and age) and 
 that the said children are now each and all of them (or if not all, 
 name those who are) living with your petitioner and depend 
 upon your petitioner for support, and that the said C. B. is 
 not a proper person to have the care, custody and education of 
 the said minor children. (If the husband is possessed of prop- 
 erty, which there is reason to fear that he will dispose of to avoid 
 the effect of a decree, insert the following paragraph under! 
 Mich. C. L. '97, § 8687). 
 
 And that the said C. B. has threatened £ind declared that your 
 petitioner shall never receive any benefit from his property and 
 that he can readily and easily dispose of certain of his property, 
 that is to say (describe the property both real and personal), 
 and convert the same into money and remove the same from this 
 state and thereby avoid the effect of any decree that the court 
 may make in this cause, and your petitioner has good reason to 
 fear and does fear that, unless restrained by the order and injunc- 
 tion of this court, the said C. B. will so dispose of his property 
 and remove the same or the proceeds thereof from this state for 
 the purpose of avoiding such decree and the effect thereof. 
 
 (Insert the following as the concluding paragraph next pre- 
 cedHng the prayer:) 
 
 And your petitioner positively avers that the acts done and 
 charged in this petition for which a separate maintenance is 
 sought, were committed without the consent, connivance, privity 
 or procurement of your petitioner, and that this petition is not 
 founded on or presented in consequence of any collusion, agree- 
 ment or understanding whatever between your petitioner and 
 the said C. B. or between your petitioner and any other person. 
 
 Your petitioner therefore prays: 
 
812 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 I. That this court shall allot, assign, set apart and decree 
 to her as alimony the use of such part of the real and personal 
 estate of the said C. B., her husband, or such proportion of his 
 earnings, income and revenue as the court shall determine to be 
 meet, just and equitable. 
 
 II. And that, in the meantime and during the pendency of 
 this proceeding, the court shall require the said C. B. her hus- 
 band, to pay to her such sums as shall be deemed necessary to 
 enable her to carry on this proceeding and for her support (and 
 the support of the said infant child as afore- 
 said). 
 
 III. And that the said C. B. may be restrained by the order 
 and injunction of this court from selling, assigning or disposing 
 of any of his property, real or personal, and from removing 
 his personal property or any part thereof from this state, imtil 
 he shall give security to the satisfaction of the court for the 
 payment of such alimony, and that he be in the meantime so 
 restrained during the pendency of this proceeding. 
 
 IV. And that the care, custody and education of the said 
 infant children (naming them), be committed to your petitioner 
 until they shall respectively attain the age of fourteen years. 
 
 V. And that your petitioner may have such further or other 
 relief as shall be in accordance with the statute in such case 
 made and provided and as shall be agreeable to equity. 
 
 VI. May it please the court to grant unto your petitioner 
 the writ of injunction of the People of the State of Michigan 
 to be issued out of and under the seal of this court, therein and 
 thereby restraining the said C. B. from selling, assigning or in 
 any manner disposing of his- said property or any part thereof, 
 and from removing the same or any part thereof from the state 
 or from the jurisdiction of this court during the pendency of 
 this suit and until the further order of the court. 
 
 VII. And also the writ of subpoena of the People of the 
 State of Michigan to be issued out of and under the seal of this 
 honorable court and directed to the said C. B., and therein and 
 thereby commanding him on a certain day and under a certain 
 penalty to be therein inserted to be and appear befgre this honor- 
 able court and answer the premises and stand to, abide and per- 
 form such order and decree therein as shall be agreeable to 
 equity. 
 
 And your petitioner will ever pray, etc. 
 
 (Signature.) ' 
 
 (Signature of Solicitor and Counsel.) 
 
 (Add verification as in dill for divorce.) 
 [If injunction is prayed, annex affidavit of facts, showing 
 necessity, made iy some disinterested person.] 
 
stage's MICHIGAN CHANCEBY PBACTICB AND FOEMS Sl3 
 
 DECREE FOR SEPARATE MAINTENANCE. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 This cause having come on to be heard upon the pleadings on 
 file and the proofs taken therein, and the court having heard 
 the arguments of the counsel for the respective parties hereto 
 and being fully advised in the premises : 
 
 It is ordered, adjudged and decreed by the court now here that 
 the material allegations in the petition in this cause contained 
 are true as therein stated, and that the equities of this case are 
 with the petitioner A. B., and that the said petitioner, A. B., is 
 entitled to a separate maintenance from the defendant, C. B., 
 
 and that the care, custody and education of and 
 
 _, the minor children of the parties hereto, be committed 
 
 to the said petitioner until they shall respectively attain the age 
 of fourteen years or until the further order of this court. 
 
 And it is further ordered, adjudged and decreed by the court 
 now here that the said defendant, C. B., do pay to the said 
 petitioner, A. B., the sum of dollars per year to com- 
 mence from the day of , A. D. 19 . . , and that 
 
 the same be paid in (quarterly) instalments of dollars 
 
 each on the day of , , and 
 
 of each year "until the further order of this court, and that this 
 decree be and constitute a lien on the real estate of the said 
 defendant, C. D., until he shall have given security for the faith- 
 ful performance thereof to the satisfaction of this court or of the 
 said petitioner, and that the said petitioner have leave to cause 
 this decree, or a certified copy thereof, to be recorded as such 
 lien in the office of the register of deeds of the said county 
 of 
 
 And it is further ordered, adjudged, and decreed by the court 
 now here that the said defendant, C. D., pay to the said peti- 
 tioner her costs in this suit to be taxed, and that in case of any 
 default in the payments of the said several instalments of money 
 as the same become due, or of the costs aforesaid, that execution 
 issue for the same. 
 
 And that either party be at liberty to apply to this court 
 for further directions as circumstances may require. 
 
 Proceedings to Bar Dower of Insane Wife. 
 
 §793. Whenever the wife of any person shall have 
 become insane or mentally incompetent to join her hus- 
 band in the conveyance of land and shall have been so 
 for two years or shall be shown to be incurably insane, 
 
814 stage's MICHIGAN CHANCEBY PEACTIOE AND FOBMS 
 
 slie may be barred of her dower in lands of her husband 
 intended to be sold by him,i on application of the hus- 
 band or any person interested in such real estate to the 
 Circuit Court in Chancery of the county wherein such 
 lands or any part thereof lie, by petition on oath, for the 
 appointment of a guardian and for leave to sell her in- 
 choate right of dower and stating the nam,e, age and resi- 
 dence of such married woman and of her husband as 
 near as can be ascertained; the nature of the disability 
 of the woman, and the length of time it has existed; a 
 full description of the lands in this state to be affected; 
 the value of each parcel of land and the amount of en- 
 cumbrance upon it, if any, not affected by, or prior to, 
 her claim of dower ; if the land is to be sold or has been 
 sold by the husband the exact amount of the considera- 
 tion; and the reason why such sale is desirable to the 
 husband or to the petitioner.* 
 
 On filing such petition the court will make an order for 
 the hearing thereof on a certain day, and that notice of 
 such hearing be given by publication or in such manner 
 and to such persons as the court may direct.^ 
 
 § 794. At the hearing of the petition the wife may ap- 
 pear in person, or by counsel or by guardian ad litem 
 appointed as in other cases by the court, and may answer 
 the petition in such time apd manner as the court may 
 direct, and on the filing of an answer the cause s'hall be 
 at issue. When the cause is at issue, or if the wife fail 
 to appear, the court may proceed summarily upon oral 
 or written evidence taken under its order to hear and 
 determine the case ; or at its discretion may refer it to a 
 Circuit Court commissioner or a special commissioner 
 appointed by it for that purpose, to take proofs and re- 
 port the same to the court with his qpinion as to the 
 insanity or imbecility of the respondent; as to the pro- 
 priety or necessity of selling said land or barring the 
 respondent's right of dower therein and the cash value 
 at that time of her dower interest in th.G land taking into 
 
 1— C. L., Sec. 8947. 3— C. L., Sec. 8949, 
 
 2— C. L., Sec. 8948. 
 
stage's MICHIGAN OHANCEBY PBACTICE AND FOBMS 815 
 
 consideration the respective ages of both husband and 
 wife. Upon the coining in of such report or on taking 
 such proofs in open court the court will make and enter 
 such order as shall be just and equitable. If it be de- 
 cided that the wife is insane and that it is desirable that 
 her right of dower should be barred the court will fix 
 the then present value of such right of dower, and there- 
 after appoint a guardian for such wife, who shall be some 
 person other than her husband, and who shall give a bond 
 in a sum fixed by the court with surety or sureties ap- 
 proved by the court conditioned to receive and invest any 
 money that may come into his hands for her sole use and 
 benefit under the order and direction of the court both 
 as to its investment and the disposition of the income 
 thereof.* 
 
 § 795. On the approval of the bond the guardian may 
 sell at private sale the interest of such wife in the said 
 land at a sum not less than the value of such dower as 
 fixed by the court. He may join with the husband in such 
 conveyance, or if the husband has previously sold and 
 conveyed the land, may, by separate conveyance, deed 
 said right of dower to the grantee or grantees of the hus- 
 band his or their heirs and assigns but to no other person. 
 Such conveyance shall in all cases be as effective to bar 
 the right of dower of such wife as if she had, being of 
 sound mind joined her husband in a deed of such land.^ 
 
 Such guardian shall apply the income of such money 
 to the suppqrt of said married woman, or allow the same 
 to accumulate as the court shall direct; and upon the 
 restoration of said married woman to a sound mind, shall 
 upon the order of the court, transfer to her all the funds 
 in his hands, and upon her death shall deliver the same 
 to her husband if he shall be living ; and if he be not liv- 
 ing then to her personal representatives.® 
 
 § 706. These proceedings being entirely statutory and 
 in derogation of the common law, eare must be taken to 
 
 4— C. L., Sec. 8950. 6— C. t., Sec. 8952. 
 
 5— C. L., Sec. 8951. 
 
816 stage's MICHIGAN CHANOEEY PBACTICE AND POEMS 
 
 conform to the statute in every particular. The pur- 
 chaser of the land should be especially careful to see 
 that all the steps preliminary to making the order are 
 taken exactly as provided, and that the sale of the dower 
 right is in strict accordance with the order. This is im- 
 portant as no laches can be imputed to the wife nor can 
 she waive any rights while incompetent. These proceed- 
 ings are very rarely necessary. 
 
 PETITION TO BAB, DOWER OF INSANE WIPE. 
 State of Michigan. 
 
 To the Circuit Court for the County of , 
 
 In Chancery. 
 
 The petition of A. B., of , respectfully shows unto the 
 
 court : 
 
 1. That he is the husband of C. D. B. whose name was for- 
 merly, C. D., and that he married her on the day of 
 
 , 19 • • , and that her age is now years as nearly 
 
 as he can ascertain, and that she resides at in the 
 
 county of and State of Michigan, and that the age of 
 
 your petitioner is years, and that he resides at 
 
 in the county of and State of Michigan. 
 
 2. And that after the said marriage and on or about the 
 
 day of , 19 . . , the said C. D. B. became insane, 
 
 caused, as your petitioner is informed and believes, by (state 
 cause), and that ever since said last mentioned day until the 
 present time, being a period of over (two years) the said C. D. B. 
 has remained and continued in the condition of insanity and 
 still so remains and continues, and that by reason of such insan- 
 ity the said C. D. B. has during all that time been and still is 
 unable to join your petitioner, her husband, in the conveyance 
 of real estate or to bar her dower therein, and your petitioner 
 is advised by skilled physicians who have examined the said 
 C. D. B. and her condition and verily believes and charges the 
 trutb to be that she, the said C. D. B., is incurably insane. 
 
 3. And that your petitioner is the owner in fee simple of the 
 following described land and premises, situate (describe land to 
 be affected by this proceeding). 
 
 4. And that the value of the said land is dollars, 
 
 (if more than one parcel, say, of each parcel of the said lands 
 and real estate respectively is as follows ; the said first described 
 
 parcel Is of the value of dollars ; and the said second 
 
 described parcel is of the value of , . dollars; etc.) and 
 
 that the same is unencumbered, (or if encumbered set forth the 
 enpumbrances, specifically on each parcel, if more ihan one, and 
 whether or not created before the wife's incapacity.) 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOEMS 817 
 
 5. And that your petitioner has bargained and sold the said 
 above described land, premises and real estate to one E. F. of 
 
 for the sum of dollars, and that said sunt is 
 
 the fair and reasonable' value thereof and is the exact amount of 
 the consideration of such sale so made or agreed upon. 
 
 6. And that such sale is desirable to your petitioner for the 
 following reasons (state reasons fully and clearly). 
 
 I. Your petitioner therefore prays that this honorable court 
 may by its order appoint a day for the hearing of this petition, 
 arid designate the manner In which notice of such hearing shall 
 be given, whether by publication or otherwise, and the persons 
 to whom such notice shall be given, and that such proceedings 
 shall be had thereon as provided by an act of the legislature of 
 this state entitled, "An Act to Bar the Right of Dower of Insane, 
 Imbecile or Idiotic Married Women," approved April 29, A. D. 
 1873. 
 
 II. And that the inchoate right of dower of the said C. D. B. 
 in the said land and premises may be sold pursuant to the pro- 
 visions of the act aforesaid and her right of dower therein barred. 
 
 III. And that your petitioner may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your petitioner will ever pray, etc. 
 
 A. B. 
 
 Solicitor for Petitioner. 
 
 (Add verification.) 
 
 Proceedings Against Corporations in Chancery under 
 Chapter 269 of the Compiled Laws. 
 
 § 797. It is well settled that the power to dissolve 
 corporations for cause is legal and does not rest in a 
 court of equity,^ but the attorney general may by statute 
 direct a biU to be filed in a Court of Equity to restrain 
 any corporation from assuming or exercising any fran- 
 chise, liberty or privilege or transacting any business 
 not authorized by its charter and in like manner to re- 
 strain any individuals from exercising any corporate 
 rights, privileges or franchises not granted to them by 
 
 1— Atty. Gen. v. Bank of Mich.. Mfg. Co., 48 Mich. 133; Heap v. 
 Harr. Ch. 315; Cady v. Knit Goofls Heap Mfg. Co., 97 Mich. 1# 
 
818 stage's MICHIGAN CHANCEBY PBACTICE AND FOKMS 
 
 any law of this state,^ and such injunction may issue 
 before the comtug in of the answer upon satisfactory 
 proof that the defendants complained of have usurped, 
 exercised or claimed any franchise, privilege, liberty 
 or corporate right not granted to them and, after the 
 coming in of the answer, such injunction may be con- 
 tinued until judgment at law shall have been had.* 
 
 §798. Whenever any corporation having banking 
 powers, or powers to make loans or pledges or deposits, 
 or authorized by law to make insurance shall become in- 
 solvent or unable to pay its debts or shall neglect or 
 refuse to pay its notes or evidences of debt on demand, 
 or shall have violated any of the provisions of its act or 
 acts of incorporation, a Court of Equity may by injunc- 
 tion restrain such corporation and its officers from exer- 
 cising any of its corporate rights or privileges or fran- 
 chises, and from collecting or receiving any debts or de- 
 mands and from paying or in any way transferring or de- 
 livering to any person any of the money, property or ef- 
 fects of such corporation until such court shall otherwise 
 order.* Such injunction may be issued on the application 
 of the attorney general on behalf of the people of this 
 state or on the application of any creditor or stockholder 
 of such corporation on bill or petition filed for that pur- 
 pose and upon due proof of the facts. 
 
 § 799. Whenever such injunction shall issue against 
 any bank for violation of its charter on the application 
 of any creditor, the court shall proceed to final decree and 
 adjudge a forfeiture if the proof is sufficient, notwith- 
 standing that such creditor may settle with such corpora- 
 tion and relinquish his claim against it; and in all such 
 cases the attorney general, under the direction of the 
 Governor or any creditor shall have the right to appear 
 and prosecute such suit, and such suit shall not be dis- 
 
 2— C. L., Sec. 9755. 4— C. L., Sec. 9763. 
 
 3— C. h., Sec. 9756. 
 
stage's MIcaiGAN CHANCERY PRACTICE AND FORMS 819 
 
 continued if either of them so appear and prosecute such 
 suit to final judgment.^ 
 
 Upon making such application or at any stage of the 
 proceedings the court may appoint a receiver of the 
 property and assets of the corporation." 
 
 .§800. If the application be made by a creditor for 
 whose debt the directors or stockliolders are by law made 
 liable, such directors or stockholders may be made par- 
 ties to the bill or petition either at the filing thereof or at 
 any subsequent stage of the proceedings whenever it shall 
 become necessary to enforce such liability,^ and this may 
 also be done by a supplemental bill after decree, and if 
 the proceeding was instituted by the attorney general 
 such creditor may be made complainant therein and the 
 directors and stockholders sought to be charged may be 
 made defendants.* 
 
 Whenever a creditor of any corporation shall seek to 
 charge the directors, trustees or other superintending 
 officers or stockholders thereof, on account of any liability 
 created by law he may file his bill in chancery for that 
 purpose,® and the court will proceed therein as in other 
 cases and when necessary cause an account to be taken 
 and a receiver appointed." 
 
 § 801. If on the coming in of the answer or the taking 
 of such account it shall appear that the corporation is in- 
 solvent and has no property or effects to satisfy such 
 creditor the court may proceed without appointing any 
 receiver to ascertain the respective liabilities of such 
 directors and stockholders and enforce the same by de- 
 cree,^^ and upon final decree the court shall cause a just_ 
 and fair distribution of the property of such corporation 
 and of the proceeds thereof to be made among its fair 
 and honest creditors, in the same order and proportion 
 as prescribed in the case of a voluntary dissolution of a 
 
 5— C. L., Sec. 9764; Torrey v. 8— C. L., Sec. 9768. 
 Cement Co., 150 Mich. 86. 9— C. L., Sec. 9769. 
 
 6— C. L., Sec, 9765. 10— C. L., Sec. 9770. 
 
 7— C. L., Sec. 9767. 11— C. L., See. 9771. 
 
820 stage's MICHIGAN CHANCEKY PRACTICE AKD FOBMS 
 
 corporation/^ and if the property of the corporation 
 shall be insufiScient to discharge its debts the court will 
 proceed in all cases in which the officers or stockholders 
 have been made parties and a decree rendered, to com- 
 pel each stockholder to pay in the amount due and re- 
 maining unpaid on the shares of stock held by him or so 
 much thereof as shall be sufficient to satisfy such debts ^* 
 and if the debts still remain unpaid shall proceed to 
 ascertain the respective liabilities of the directors, offi- 
 cers and stockholders and decree the amount to be paid 
 by each and enforce such decree as in other cases." 
 
 § 802. Upon application the court may compel such 
 corporation to discover any stock, property, things in 
 action or effects alleged to belong or to have belonged 
 to it, the transfer and disposition thereof, the considera- 
 tion for and all the circumstances of such transfer ;'* and 
 every officer, agent and stockholder and every person to 
 whom it is alleged that any transfer of any such prop- 
 erty or effects has been made or in whose possession 
 or control any such property or effects shall be alleged 
 to be may be compelled in the discretion of the court to 
 answer any bill filed to obtain any discovery thereof not- 
 withstanding that such answer may expose the corpora- 
 tion of which he is a member to a forfeiture of its cor- 
 porate rights or any of them.^" 
 
 § 803. The answers of the officers and agents of any 
 corporation shall be evidence against the corporation in 
 the same manner and to the same extent as if they had 
 been given on an examination of such officers and agents 
 as witnesses in the cause and either party may subse- 
 'quently call them as witnesses under the order of the 
 court, but no such answer shall be compelled unless by 
 special order of the court.^'' 
 
 § 804, Whenever any bill shall be filed or application 
 made against any corporation its directors, officers or 
 
 12— C. L., Sec. 9772. 15— C. L., See. 9775. 
 
 13— C. L., Sec. 9773. 16-^C. L., See. 9776. 
 
 14— C, L., See. 9774. 17— C. L., Sec. 9777. 
 
stage's MICHIGAN CHANCEBY PKACTICE AND FOBMS 821 
 
 stockholders the court may on application of either party 
 and at any stage of the proceedings restrain by injunc- 
 tion all proceedings at law by any creditor against the 
 defendants in such suit; and whenever deemed necessary 
 may order notice to be published in such manner as it 
 shall direct, requiring all the creditors of such corpora- 
 tion to exhibit their claims and become pa,rties to the suit 
 within a reasonable time not less than six months from 
 the first publication of the order and in default thereof 
 to be precluded from all benefit of the decree which shall 
 be made in such suit and from any distrilDution under 
 such decree.^ ^ 
 
 §805. The above provisions shall not extend to any 
 incorporated library or lyceum society, to any religious 
 corporation, or any incorporated academy or select 
 school nor to the proprietors of any incorporated bury- 
 ing grounds.^^ 
 
 It is held that a complainant cannot file exceptions to 
 the voluntary ajaswer of an officer of a corporation to a 
 judgment creditor's bilP" and the cases would seem 
 analogous, but as by this statute the compelling of an 
 answer is wholly discretionary with the court, a motion 
 for a further answer would seem to be proper if the origi- 
 nal answer is unsatisfactory.^^ 
 
 § 806. The insolvency of a corporation is not ground 
 for interference by a stockholder to wind up its affairs 
 in opposition to the majority of the directors.^^ 
 
 APPLICATION OF COMMISSIONER OF BANKING DE- 
 PARTMENT FOR RECEIVER OP INSOLVENT BANK. 
 
 (Address.) 
 Your orator. ., Commissioner of the Banking Department of 
 
 the State of Michigan, respectfully shows unto the Court, 
 1. That the (name of tank) is a corporation organized and 
 
 existing under the general hanking laws of this State and was 
 
 organized on or about the day of , A. D. 19 . . , 
 
 18— C. K, See. 9.779. 21— See Chancery Eule lOf. 
 
 19 c. L. Sec. 9780. 22 — Heap v. Heap Manufacturing 
 
 20— McCreery v. Cir. Judge, 93 Co., 97 Mich. 148; Fuller v. MoCor- 
 
 Mieh. 463. vaek, 156 Mich. 518. 
 
822 stack's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 and that it's business is that of a (commercial hank) and it's 
 
 banking office is located at in the couHty of in 
 
 this State, and that it has carried on its said business at its 
 said banking office from the time of its organization until the 
 
 day of , A. D. 19... 
 
 2. And that on the said day of , A, D. 
 
 19 . . , the said (name of lank) has refused to pay its depositors 
 m accordance with the terms on which such depositors made 
 such deposits and on which such deposits were received, (or has 
 become and is insolvent or has violated the provisions of the., 
 general banking laws of this State, state facts constituting such 
 violation) and thereupon your orator, having become satisfied 
 that the (name of bank) had so (state the facts on which the 
 
 commissioner acted), did forthwith on the said day 
 
 pf , A. D. 19 . . , take possession of the books, records 
 
 and assets of the said (name of hank), and ever since that time- 
 has held and still holds the same in accordance with the statute 
 in such case made and provided: 
 
 I. Your orator therefore prays the aid of this court and that 
 the said (name of bank), the defendant hereto, may, without 
 oath, answer the premises. 
 
 II. A^d that some suitable and proper person may be ap- 
 pointed receiver for the said (name of bank) under the direction 
 of this court, to take possession of all and singular the books, 
 records and assets of every description of the said (name of 
 bank), and to collect all debts, dues and claims belonging or 
 owing thereto, and to sell or compound all bad or doubtful debts, 
 and to sell all the real and personal property of the said (name of 
 bank) on such terms and in such manner as this court shall 
 direct, and, if necessary, to enforce all individual liabilities qf the 
 stockholders thereof, and to dispose of and pay out the proceeds 
 thereof in such manner as is prescribed by law under the direc- 
 tion of this court, and to exercise and perform all the duties of 
 a receiver as prescribed by the provisions of an act entitled. An 
 Act to Eevise the Laws authorizing the Business of Banking 
 and to Establish a Banking Department for the Supervision of 
 such Business, approved June 21st, A. D. 1887, and the acts 
 amendatory thereto. 
 
 And that such further proceedings may be had in relation to 
 the premises as shall be in accordance with the said last men- 
 tioned act and as shall be agreeable to equity. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 
 (Signature of Solicitor and of Counsel.) 
 [It seems that this application should be verified.] 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 823 
 
 Voluntary Dissolution of Corporations. 
 
 § 807. The proceedings for the voluntary dissolution 
 of corporations are wholly statutory being chapter 300 
 of the Compiled Laws of 1897, and are placed exclusively 
 within the jurisdiction of Courts of Chancery. 
 
 Whenever the directors, trustees or other officers hav- 
 ing the management of the concerns of any corporation 
 or the majority of them, shall discover that the stock, 
 property and effects of such corporation have been so 
 far reduced by losses or otherwise, that it will not be able 
 to pay all just demands to which it may be liable, or to 
 afford reasonable security to those who may deal with 
 such corporation or whenever such directors, trustees or 
 officers or a majority of them, shall, for any reason, deem 
 it beneficial to the stockholders that such corporation 
 should be dissolved, they may apply to any court having 
 equity jurisdiction, by petition for a decree dissolving 
 such corporation pursuant to the provisions of this 
 chapter.* 
 
 §808. Every such application shall contain a state- 
 ment of the reasons which induce the applicants to desire 
 a dissolution of the corporation and there shall be an- 
 nexed thereto, 
 
 1. A full, just and true inventory of all the estate, 
 both real and personal in law and equity of such corpora- 
 tion and of all tho books, vouchers and securities relating 
 thereto. 
 
 2. A full, just and true account of the capital stock of 
 such corporation specifying the names of the stockhold- 
 ers, their residences when known, the number of shares 
 belonging to each, the amount paid in upon such shares 
 respectively and the amount still due thereon. 
 
 3. A statement of all incumbrances on the property 
 of such corporation. 
 
 4. A full and true account of all the creditors of such 
 corporation and of all engagements entered into by such 
 incorporation which may not have been fully satisfied and 
 
 1— C. L., Sec. 10852. 
 
824 stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 
 
 cancelled, specifying the place of residence of each 
 creditor and of every person to whom such engagements 
 were made, if known, and if not known the fact to be 
 so stated; the sum owing to each creditor, the nature of 
 each debt or demand; and the true cause and considera- 
 tion of such indebtedness in each case.^ 
 
 To every such petition there shall also be annexed an 
 affidavit of the applicants that the facts stated in such 
 application and the accounts, inventories and statements 
 contained tiierein or annexed thereto are just and true, 
 so far as the applicants respectively know, or have the 
 means of knowing.* 
 
 § 809. Upon such petition, accounts, inventories and 
 affidavits being filed, an order shall be entered requiring 
 all persons interested in such corporation to show cause 
 if any they have, why such corporation should not be dis- 
 solved, before some Circuit Court commissioner to be 
 named in such order at some time and place to be 
 therein specified, not less than three months from the date 
 thereof.* 
 
 Notice of the contents of such order shall be published 
 once in each week for three weeks successively in such 
 paper as the court may direct, and in a newspaper pub- 
 lished in the county where the principal place of conduct- 
 ing the business of such corporation shall be situated, if 
 any newspaper be published in such county.* 
 
 § 810. On the day appointed in such order, the Circuit 
 Court commissioner she,ll proceed to hear the allegations 
 and proofs of the parties and shall take testimony in re- 
 lation thereto and shall, with all convenient speed, report 
 the same to the court with a statement of the property, 
 effects, debts, credits and engagements of such corpora- 
 tion and of all other matters pertaining thereto.® 
 
 The Circuit Court commissioner shall be entitled to the 
 use of the original petition and schedules if he requires 
 
 2— C. L., See. 10853. 5— C. L., Sec. 10856. 
 
 3— C. L., Sec. 10854. 6— C. K, Sec. 10857. 
 
 4— C. L., Sec. 10855. 
 
stage's MICHIGAN CHANCERY PEACTICB AND FOEMS 825 
 
 them by an order on the register of the court and shall 
 return the same with his reports 
 
 § 811. On the coming in of the report if it shall appear 
 to the court that the corporation is insolvent or that for 
 any reason a dissolution thereof will be beneficial to the 
 stockholders, and not injurious to the public interests, a 
 decree shall be entered dissolving the corporation and 
 appointing one or more receivers of its estate and effects, 
 and the corporation shall thereupon be dissolved and 
 cease.* 
 
 Any of the directors, trustees or officers of the corpora- 
 tion may be appointed receivers, who upon entering upon 
 their duties shall give such security to the people of this 
 state as the coUrt shall direct for the faithful discharge of 
 their duties and for the due accounting for all money 
 and effects received.* The receivers shall be vested with 
 all the estate, real and person of the estate of such cor- 
 poration as trustees for its creditors and stockholders.^" 
 
 § 812. Such receivers shall have all the power and 
 authority of trustees of the estates of insolvent debtors,^' 
 and may continue the business of such corporation for a 
 period not exceeding six months, and may sell the prop- 
 erty and assets thereof at private sale in the usual course 
 of business for cash or on the usual terms of credit, or 
 sell such property in distinct parcels or in bulk. A sale 
 not in the usual course of business shall be subject to 
 confirmation by the court, and the court may on applica- 
 tion of any interested party, if convinced that the con- 
 tinuance of such business is not subserving the best in- 
 terests of the parties concerned, direct the suspension 
 of such transactions and order the sale of the property 
 in bulk or in parcels.^^ 
 
 7 — C. L., Sec. 10858. 11— See C. L., Chap. 265. 
 
 8— C. L., Sec. 10859. 12— C. L., Sec. 10862, as am. by 
 
 9 — C. L., Sec. 10860; see Covert Act No. 96 Pub. Acts of 1905, p 
 
 V. Eogers, 38 Mich. 363. 137. 
 
 10— C. L., Sec. 10861; Jacobs v. 
 B. Bement's Sons, 161 Mich. 415. 
 
826 stage's MICHIGAN CHANCERY PBACTICE AND FORMS 
 
 § 813. If there shall be any sum remaining due upon 
 any share of stock subscribed in such corporation the 
 receiver shall immediately proceed and recover the same 
 unless the person so indebted be wholly insolvent, and 
 may sue for the same at law or in equity, without the 
 consent of any of the creditors.^* 
 
 § 814. The receivers immediately upon their appoint- 
 ment shall give notice thereof which shall contain the 
 same matters as in notices of trustees of insolvent debt- 
 ors and in addition shall require all persons holding any 
 open or subsisting contracts of such corporation to pre- 
 sent the same in writing and in detail, to such receiver at 
 the time and place in such notice specified, which notice 
 shall be published once in each week for six successive 
 weeks in such paper as the court may direct and in a 
 newspaper printed in the county where the principal 
 place of conducting the business of such corporation 
 shall have been situated, if such newspaper be there 
 published.^* 
 
 §815. All sales, assignments, transfers, mortgages 
 and conveyances of any part of the estate, real or per- 
 sonal, including things in action, of every such corpora- 
 tion made after the filing of the petition for a dissolu- 
 tion thereof in payment of or ^s security for, any ex- 
 isting or prior debt, or for any other consideration, and 
 all judgments confessed by such corporation after that 
 time, shall be absolutely void as against the receivers 
 and as against the creditors of such corporation. '^ 
 
 § 816. After the first publication of the notice of the 
 appointment of receivers, every person having posses- 
 sion of any property belonging to such corporation and 
 every person indebted thereto, shall account and answer 
 for the anaount of such debt and for the -value of such 
 property to the said receiver, and all the provisions of 
 law in respect to trustees of insolvent debtors, the collec- 
 tion and preservation of the property of such debtors, 
 
 13— C. L., See. 10863. 15— C. L., Sec. 10865. 
 
 14r— C. L., Sec. 10864. 
 
stage's miohigak chanceby pbactioe and forms 827 
 
 the concealment and discovery thereof and the means of 
 enforcing such discovery, shall be applicable to such 
 receivers and the property of such corporation.^'^ 
 
 §817. Such receivers shall have the same power to 
 settle any controversy that may arise between them and 
 debtors or creditors of such corporation by a reference, 
 as given by law to trustees of insolvent debtors with like 
 proceedings and effect; and referees may be appointed 
 and shall proceed and file their report with like effect as 
 in case of insolvent debtors." The receivers shall be sub- 
 ject to all the duties and obligations as trustees of insolv- 
 ent debtors so far as applicable except where otherwise 
 provided by law and Shall call a general meeting of cred- 
 itors within four mouths of their appointment when all 
 accounts in favor of and against such corporations shall 
 be adjusted and all open and existing contracts ascertain- 
 ed and adjusted so far as may be and the amount of mon- 
 eys in the hands of the receivers declared.'^® 
 
 The receivers may with consent of the other contract- 
 ing party cancel all contracts in the matters of insurance 
 or contingent liability by refunding the premium paid 
 or g,n equitable proportion thereof and the contract shall 
 on payment in such manner be Cancelled and discharged.^® 
 
 § 818. The receiver, in addition to actual disburse- 
 ments shall be allowed such commission as the court may 
 direct not exceeding those of executors and administra- 
 torSj^" and shall retain sufficient moneys to pay for 
 cancelling and discharging apen or subsisting engage- 
 ments,^^ or to pay the necessary costs of any suit pend- 
 ing against the corporation or the receivers or to be dis- 
 tributed in a further dividend,^^ and shall distribute the 
 residue among those creditors whose claims have been 
 exhibited and ascertained as follows: 
 
 1. All debts entitled to a preference under the laws 
 of the United States. 
 
 16— C. L., Sec. 10866; see C. L., 19— C. L., See. 10869. 
 
 Chap. 265. 20— C. L., Sec. 10870. 
 
 17— C. L., Sec. 10867. 21— C. L., See. 10871. 
 
 18- C. L., Sec. 10868. 22— C. L., Sec. 10872. 
 
828 stage's MICHIGAN CHANCEBY PEACTICB AND FOBMS 
 
 2. Executions actually levied against such corpora- 
 tions to the extent of the property on which they shall 
 respectively be levied and according to their legal 
 priority. 
 
 3. Creditors having made spepial deposits, if such 
 deposits remain in kind. ' 
 
 4. All other creditors in proportion to their respec- 
 tive demands without any preference to debts due on 
 specialties.'** 
 
 §819. If the whole estate of the corporation be not 
 distributed on the first dividend the receivers shall with- 
 in one year thereafter and within sixteen months of their 
 appointment make a second dividend notice whereof, 
 and that the same will be a final dividend, shall be pub- 
 lished qnce in each week for three successive weeks,^* 
 the second dividend shall be made in the same manner as 
 the first and no o.ther shall be made unless ordered by 
 the court except to creditors having suits against it, 
 or against the receiver pending at the time of such sec- 
 ond dividend and as to moneys retained to pay such 
 creditors. 
 
 § 820. Every creditor who has neglected to exhibit 
 his demand before the first dividend and who shall de- 
 liver his accounts to the receiver before said second 
 dividend shall receive the sum he would have been en- 
 titled to on the first dividend before any distribution 
 to the other Qreditors.^' 
 
 After such second dividend the receiver shall not be 
 answerable to any creditor or claimant who has failed 
 to present his demand,^^ and after the final dividend 
 is made the receivers shall distribute the surplus if any 
 among the stockholders in proportion to the amounts 
 paid by them respectively on their stock.^'' 
 
 § 821. When any suit pending at the time of the 
 final dividend shall be terminated the receivers shall 
 
 23— C. L., See. 10873. 26—0. L., Sec. 10876. 
 
 24— G. L., Sec. 10874. 27— C. L., Sec. 10877. 
 
 25— C. L., Sec. 10875. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND POEMS 829 
 
 apply the moneys retained for that purpose to the pay- 
 ment of the amount recovered and their necessary costs 
 and expenses and if nothing be recovered shall distribute 
 such moneys after deducting their expenses and costs 
 among the creditors and stockholders in the same man- 
 ner as in the second dividend.^* 
 
 § 822. The receivers shall be subject to the control of 
 the court and may be compelled to account at any time; 
 they may be removed by the court and any vacancy by 
 removal death or otherwise may be supplied by the 
 court.^^ 
 
 § 823. "Within three months after the time for the 
 second dividend the receivers shall make a full and ac- 
 curate account of their proceedings to the court which 
 shall be referred to a Circuit Court commissioner to ex- 
 amine and report thereon.^"* Previous to rendering such 
 account the receivers shall publish a notice of their inten- 
 tion so to do once in each week for three weeks success- 
 ively, specifying time and place where such account will 
 be rendered.^ ^ 
 
 The Circuit Court commissioner shall hear and ex- 
 amine the proofs, vouchers and documents offered for or 
 against such accounts and report thereon fully to the 
 court. ^2 
 
 §824. Upon the coming in of such report the court 
 shall hear the allegations of all concerned therein and 
 shall allow or disallow the account and decree the same to 
 be final and conclusive upon all creditors, claimants and 
 stockholders,^* the receivers shall also account from time 
 to time for all moneys that shall come into their hands 
 after the rendering of such account and of all moneys re- 
 tained by them and shall pay into court all unclaimed 
 dividends.^* 
 
 28— C. L., Sec. 10878. 32—0. L., Sec. 10882. 
 
 29— C. L., Sec. 10879. 33— C. L., Sec. 10883. 
 
 30— C. L., Sec 10880. 34—0. L., Sec. 10884. 
 31— C. L., Sec. 10881. 
 
830 STAGERS MICHIGAiT CHANCERY PfeAC*ICE AND FOBMS 
 
 § 825. The provisions of this chapter shall not extend 
 to any incorporated library or lyceiun society, to any re- 
 ligious corporation or any incorporated academy or select 
 school nor to the proprietors of any burying grounds in- 
 corporated under the laws of this state.^* 
 
 § 826. Appeal to the Supreme Court may be taken by 
 any person or corporation clainjing to be aggrieved by 
 any decree or final order in these proceedings, by a writ- 
 ten claim delivered or transmitted within forty days from 
 the entry thereof to the register of the court and filing 
 with the register a bond naming such register as obligee 
 with such penalty and sureties as the circuit judge or 
 court or a Circuit Court commissioner of the same county 
 shall approve, conditioned for the diligent prosecution 
 of such appeal and for the performance or satisfaction 
 of any final order of the Supreme Court against the ap- 
 pellant, and for the payment of all costs that may be 
 awarded against the appellant in the Supreme Court in 
 the matter of said appeal. The motion for such approval 
 shall be on a notice to whom it may concern of at least 
 six days to be filed in the office of such register contain- 
 ing the penalty and the names of the sureties of the pro- 
 posed bond. 
 
 At the hearing of the motion any person or corpora- 
 tion claiming to be interested shall be heard 9,s to the 
 sufficiency of the penalty named and the sureties pro- 
 posed and in case of such motion being before a Circuit 
 Court commissioner, the circuit judgq may on special 
 motion of any person or corporation claiming to be in- 
 terested, order g,n additional bond and fix the penalty 
 and approve the sureties thereof. On filing said bond 
 with approval the appeal shall be perfected and the reg- 
 ister in chancery shall, on payment of five dollars to him 
 on behalf of the appellant, make returii to the Supreme 
 Court, and the Supreme Court shall have power to hear 
 and determine such appeal and all matters concerning 
 
 35— C. L., Sec. 10885. 
 
stage's MICHIGAN CHANCEEY PKACTICE ANT) FOBMS 831 
 
 the same, and to reverse, affirm or alter the order or de- 
 cree appealed from and to make such other order or de- 
 cree therein as shall be just, in like manner and effect as 
 in other appeals in chancery. The Supreme Court "while 
 any suit is pending therein may on special motion, give 
 such directions as to it shall seem proper concerning any 
 stay qf proceedings caused by the appeal. After the ap- 
 peal is perfected the Supreme. Court or judge of the 
 court where such decree or order was made may on 
 special motion and proper showing order an additional 
 bond and fix the penalty and approve the sureties thereof 
 or refer such approval to a Circuit Court commissioner 
 of the county wherein the cause shall have been pending. 
 The Supreme Court or Circuit Court may order a suit to 
 be brought on any such bond for the benefit of ^ny per- 
 son, persons or corporation that the court may direct and 
 all moneys collected on such suit shall be disposed of as 
 the court shall direct.*^ 
 
 § 827. A Court of Chancery cannot take the control 
 and management of the property and 9,ffairs of a corpora- 
 tion from its directors and officers and vest the same in a 
 receiver except under the provisions of this chapter and 
 chapter 269 of the Compiled Laws.^^ 
 
 § 828. A corporation cannot dissolve itself except by 
 taking proceedings under this chapter.^* 
 
 After the corporation has been dissolved and a re- 
 ceiver appointed and a partial distribution had a creditor 
 cannot maintain a suit against the corporation.** 
 
 The receiver takes the property subject to the liens of 
 judgment creditors who have made valid levies thereon.*" 
 
 36 c. L., Sec. 10890. 39— Jacobs v. E. Bement's Sons, 
 
 37— Railway Co. v. Cir. Judge, 161 Mich. 415. 
 
 31 Mich. 456; but see Torrey v. 40— Travis v. McBride, 166 Mich. 
 
 Cement Co.j 150 Mich. 86. 126. 
 
 38 — Town V. Bank, 2 Doug. Mich. 
 531; Calkins v. Bump, 120 Mich. 
 335. 
 
832 stage's MICHIGAN CHANCEEY PRACTICE AND -FOEMS 
 
 PETITION FOB VOLUNTARY DISSOLUTION OF COR- 
 PORATION. 
 
 (Add/ress,) 
 
 The petition of A. B. of in the County of , 
 
 and C. D., of etc., (giving names amd residences of each of the 
 petitioning directors or trustees) directors (or trustees or as the 
 
 case may he) of , (naming the corporation correctly) 
 
 respectfully shows unto the Court. 
 
 1. That the (name of corporation) is a corporation 
 
 organized and existing ujider the laws of the State of Michigan, 
 
 and that the same was organized on or ab»Qt the day 
 
 of , A. D. 19 . . , under an Act of the legislature of this 
 
 State entitled An Act (give title of act in full) approved 
 
 , A. D , and the acts amendatory thereto, for the 
 
 purpose of (state purpose and object of incorporation) and 
 that ever since that time the said corporation has been engaged 
 in the business of (state business) in this State and that its 
 
 principal ofSce for the transaction of business is at in 
 
 the said County of in this State. 
 
 2. And your petitioners are the directors (or a majority of 
 the directors or trustees or as the case may be) of the said cor- 
 
 poratiQp, company, duly elected and a.cting as such and 
 
 have the management of the concerns thereof. 
 
 3. And that the stock, property and effects of the said cor- 
 poration have been so far reduced by losses and otherwise that 
 it vill not be able to pay all just demands to which it is liable, 
 and that your petitioners deem it beneficial to the stockholders 
 of the said corporation, that the said corporation should be dis- 
 solved. 
 
 4. And the reasons wbich induce your petitioners to desire a 
 dissolution of the said corporation are as follows : (state, reasons 
 fully.) 
 
 5. And that Schedule "A" hereto annexed ig a full, just and 
 true inventory of all the estate both real and personal in law and 
 equity of the said corporation, and of all the books, vouchers 
 and securities relating thereto. 
 
 6. And that Schedule "B" hereto annexed is a full, just ajad 
 true account of the capital stock of the said corporation, specify- 
 ing the names and residences of the stockholders so far as known 
 to your petitioners, the number of shares belonging to each 
 stockholder, the amounts paid in upon such shares respectively 
 and thg g,mounts still due thereon respectively. 
 
 7. And that Schedule "C" hereto annexed is a true statement 
 of all incumbrances on the property of the said corporation. 
 
 8. And that Schedule "D" hereto annexed is a full and 
 true account of all the creditors of the said corporation, aijd 
 of all engagements entered into by the said corporation which 
 have not been fully satisfied and cancelled, specifying the names 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 833 
 
 and places of residence of each creditor and of every person to 
 whom such engagements were made so far as known to your 
 petitioners, and where not known stating that fact, and stating 
 the sum owing to each creditor and the nature of each debt and 
 demand, and the true cause and consideration of the indebted- 
 ness in each case. 
 
 I. Your petitioners therefore pray that the said corporation 
 may be decreed to be dissolved and that some proper person may 
 be appointed receiver of the estate and effects thereof and that 
 such proceedings, may be had thereon as are prescribed by the 
 statute in such case made and provided, and as shall be agreeable 
 to equity. 
 
 And your petitioners will ever pray, etc. 
 
 (Signatures of. Petitioners.) 
 X.Y., 
 
 Solicitor for Petitioners and of Counsel. 
 [Annex Schedules "A," "B," "G," and "D," setting forth 
 in detail the facts above required.] 
 
 (Schedule "A" annexed to petition.) 
 
 INVENTORY. 
 
 An inventory of estate and assets of company, a 
 
 corporation: (state fully in tabular form, all the property and 
 assets of the corporation, including as well as the real and per- 
 sonal property in possession, ail notes, bonds, securities and 
 evidences of indebtedness, and all book ascounts of debts owing 
 to it, including all assets, setting estimated value opposite eaeh.) 
 
 (Schednde "B" annexed to petition.) 
 
 ACCOUNT OF CAPITAL STOCK. 
 
 (State fully in tabulated form the names and residences of 
 each stockholder, the number of shares of stock held by each, the 
 amount thereof at par value, the a-mount actually paid in thereon, ■ 
 and the amount due thereon thus: 
 
 Name Residence 
 
 John Doe, Detroit, Wayne Co., Mich. 
 
 No. Shares. Par Value. Amt. paid in. Amt. due. 
 10 $1000. $500. $500 
 
 (Schedule "G" annexed to petition.) 
 
 LIST OF INCUMBRANCES ON THE PROPERTY. 
 
 (Set forth each of the incumbrances separately, stating in 
 each case the property encumbered, the kind of incumbrances, 
 whether mortgage, mechanic's lien or otherwise, the amount of 
 the lien, when the same falls dnie, and rate of interest, and all 
 particulars.) 
 
834 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 (Schedule "D" annexed to -petition.) 
 
 LIST OF CRBDITORSs 
 
 (Give names and residences of all creditors with amount owing 
 to each, the nature of each debt and demand, and all unper- 
 formed contracts and Bngagertients, setting forth briefly the 
 terms and conditions of each, and the names and residences of 
 each person contracted with, and the amount due on each, and 
 the obligation to be performed by the corporation. If any 
 names or residences of any person, or the amount of any demand 
 is not known, state that fact.) 
 
 [The objeat of these schedules is to inform the court and the 
 receiver when appointed qt the condition of the affairs of the 
 corporation; they, should therefore be as exact as possible.] 
 
 (The list of creditors may be tabulated thus) 
 Name Residence Amount owing. Nature of Debt. 
 
 Richard Roe, New York City. $10,000. Goods sold and del. 
 
 (Affidavit to be annexed to petition.) 
 State of Michigan. ) 
 
 County of j **• 
 
 A. B. of, etc., and C. D. Qf , and E. F. of , 
 
 and G. H. of , and I. K., of , (naming all the 
 
 petitioners) being severaly duly sworn, do depose and say, and 
 each for himself says, that they and each of them have read 
 (or heard read) the annexed petition by them subscribed and 
 know the contents thereof and that the facts stated in the said 
 petition and application and in the accounts, inventories and 
 statements contained therein or annexed thereto are just and 
 true so far as these deponents respectively know, or have the 
 means of knowing. 
 
 (Signatures, each of the petitioners must sign.) 
 (Jurat.) 
 
 Assignments for Benefit of Creditors. 
 
 §829. The Circuit Court in chancery in the proper 
 county has general supervisory power of all matters aris- 
 ing under assignments for the benefit of creditors except 
 as otherwise provided by law ; and may on the application ' 
 of the assignee or any person interested, make all neces- 
 sary and proper orders for the management and disposi- 
 tion of the assigned property, the distribution of the 
 assets and avails, the recovery of property claimed by 
 third persons, and to prevent any fraudulent transfer or 
 change in the property or effects of the assignor, or the 
 allowance or payment of any unjust or fraudulent claims 
 out of his estate, and may from time to time require new 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 835 
 
 bonds or sureties. And tlie judge of sucli court may on 
 the application of the assignee or of any creditor, require 
 the assignor upon reasonable notice, to appear before 
 him and submit to an examination on oath upon all mat- 
 ters relating to the disposal of his property, to his trade 
 and dealings with others, and his accounts concerning the 
 same to all debts due or claimed from him and to all other 
 matters concerning his property and estate and the set- 
 tlement thereof according to law which examination may 
 be at the request of any party to the proceedings, reduced 
 to writing and filed with other papers relating to the as- 
 signment in the office of the county clerk. And such judge 
 may at any time before the fing,! settlement of the ac- 
 counts of the assignor require the assignee or any other 
 person to attend before him as a witness and examine 
 him on oath as to all matters appertaining to the estate 
 of the assignor or the administration of the trust, and 
 such judge may make such order as to costs as he shall 
 deem proper.^ 
 
 § 830. It was the intention of the legislature to place 
 common law assignments fully under the control and 
 supervision of Circuit Courts in Chancery. From the 
 time of the filing of the assignment in the office of the 
 clerk it may be said to be a proceeding pending in that 
 court for all the purposes of the act concerning such 
 assignments.^ 
 
 The jurisdiction is statutory and peculiar and not like 
 an ordinary suit in chancery and the proceedings are not 
 removable to a court of merely municipal jurisdiction.* 
 
 § 831. The Circuit Court in Chancery or the judge at 
 chambers may direct the manner in which the assigned 
 property should be sold whether at public auction or 
 private sale, in one parcel or separately, and it is the 
 
 1 — C. L., Sec. 9549. Pickard, 61 Mich. 561 ; Wilhelm v. 
 
 2 — ^Kittbridge v. Cir. Judge, 80 Byles, 60 Mich. 561 ; National Bank 
 
 Mich. 200; In Ee assignment of t. Byles, 67 Mich. 296 ; Smith v. Cir- 
 
 Buggy Co., 89 Mich. 15; Smith's cuit Judge, 84 Mich. 564. 
 Appeal, 86 Mich. 149; Burnham v. 3— Scott v. Circuit Judges, 58 
 
 Dillon, 100 Mich. 352; Angell v. Mich. 311. 
 
836 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 duty of the assignee to apply to the court or judge for 
 directions as to the disposition of the property within 
 ten days after the completion of the inventory by petition 
 in writing stating what in the opinion of the assignee 
 would be the most advantageous method of disposing of 
 the property and twenty days notice of the hearing there- 
 of shall be given by mail to all creditoris whose names 
 appear on the list of creditors. 
 
 The court or judge at chambers may for good reason 
 shown extend the time wherein the assignee shall close 
 his trust beyond the expiration of one year, notice of the 
 application for such extension being given by mail or 
 otherwise as the judge shall direct to all creditors on the 
 list and all such creditors shall have the right to appear 
 and be heard in relation thereto. The powers conferred 
 on the judge at chambers by this act shall not be exercised 
 by a Circuit Court commissioner.* 
 
 §832. Any creditor may apply to the court for an 
 order requiring the assignee to contest any claim by peti- 
 tion verified by oath of some one knowing the facts and 
 showing sufficient reasons and the court may grant such 
 an order.^ 
 
 This act does not give the Circuit Court in chancery 
 exclusive jurisdiction over the property assigned. The 
 rights of third parties claiming the property may be set- 
 tled at law.* 
 
 Escheats. 
 
 §833. It is made the duty of the attorney general, 
 when he shall have good reason to believe that any per- 
 son, firm, copartnership, company or corporation has not 
 made a proper disclosure of all deposits of money, securi- 
 ties or other property which has by law escheated to the 
 state and that there are moneys or securities in their 
 
 4— C. L., Sec. 9541. 6 — Edwards v. Symons, 65 Mieh. 
 
 5— C. L., See. 9546; Scott y. 348. 
 Chambers, 62 Mich. 532; Sweetzer 
 V. Higby, 63 Mich. 13; Funke v. 
 Cone, 65 Mich. 581. 
 
stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 837 
 
 custody wMch have escheated to the state, to apply to the 
 Circuit Court for the proper county by special motion for 
 leave to file a bill in chancery in the name and on behalf 
 of the people of the State of Michigan against such per- 
 soUj firm, copartnership, company or corporation to com- 
 pel a full, complete and truthful statement of the mat- 
 ters required to be contained in such reports and no 
 security for costs shall be required in, any such suit in 
 such reports and no security for costs shall be reqiiired 
 in any such suit or proceeding.^ 
 
 This statute was enacted in 1897. The bill in chancery 
 thereby authorized appears to be a pure bill of discovery 
 as on obtaining the disclosure sought the remedy of the 
 state is by proceedings in the probate court or court of 
 common law.^ 
 
 Bills to Perpetuate Testimony. 
 
 § 834. Bills to perpetuate testimony were formerly 
 used in cases where there was reason to fear that evi-: 
 dence necessary to establish facts, which were liable to 
 come into controversy at a future time, might be lost on 
 account of the death or absence from the country of a ma- 
 terial witness. The sole object of the bill was to obtain 
 the written deposition of the witness whose death or 
 absence was apprehended, to be preserved and used upon 
 any trial of the expected controversy although no suit 
 had as yet been commenced. 
 
 Such a bill is now seldom, if ever, used as the statutes 
 of Michigan and of nearly if not quite every other state 
 provide for a more speedy and convenient means of per- 
 petuating such testimony without the formality and de- 
 lays incident to exhibiting a bill for that purpose.^ The 
 author is not aware that any such bill has ever been filed 
 in Michigan since the enactment of the first statute on 
 that subject. 
 
 1— C. L., Sec. 1221. 1— C. L., Sec. 10140. 
 
 2— See C. L., Sees. 1215, 1216, 
 1222, 1223. 
 
838 stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 
 
 Bills of Discovery. 
 
 § 835. The ancient office of a bill of discovery was to 
 compel a person wlio was plaintiff or defendant in a civil 
 suit at law to disclose the facts in the case so that his 
 answer might be read in evidence in the suit at law. Such 
 a bill was based on the principle of the ancient common 
 law that no person could be a witness in a case in which 
 he was interested and upon the equitable principle that 
 no one ought in conscience to seek to enforce a claim to 
 which a valid defence existed merely for want of a disin- 
 terested witness to such defence, nor to defend against 
 an honest debt simply because the plaintiff had no wit- 
 ness to prove it. 
 
 Such a bill is now made obsolete as the reason for it 
 has ceased to exist. By statute in Michigan, as well as 
 in most if not all the other states in the union, parties to 
 suits and all persons whether interested or not are com- 
 petent witnesses in suits at law as well as in chancery.^ 
 
 §836. But in certain cases a discovery may still be 
 compelled in suits in chancery, as for example in judg- 
 ment creditor's suits,^ and suits for accounting by trus- 
 tees.* The disclosures obtained in such cases it will be 
 observed are used in evidence in the same suits in which 
 they are made. It would be useless to devote more space 
 to this subject. 
 
 Sale of Land by Executors in Certain Cases. 
 
 §837. Whenever any lands, tenaments or heredita- 
 ments are held by any executor in trust for others, the 
 Court of Chancery for the county in which such property 
 is wholly or in part situated, may upon the bill or peti- 
 tion of such executor or any person interested, whenever 
 it shall be made to appear for the best interests of the 
 persons for whom such property is so held in trust, order, 
 
 l^C. L., Sec. 10210-10211; Rio- 463; Hubbard v. McNaughton, 43 
 
 pelle V. Doellner, 26 Mich. 102 ; Shel- Mich. 223. 
 
 don V. Walbridge, 44 Mich. 251. 3 — Loud v. Winchester, 64 Mich. 
 
 2— MeCreerjr v. Cobb, 93 Mich. 23. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND POBMS 839 
 
 direct and authorize the executor to sell, grant and con- 
 vey such property at public or private sale, and the sale 
 and conveyance made pursuant to such order when ap- 
 proved by the court, shall be effectual to pass the title to 
 said property to the purchaser thereof."^ 
 
 § 838. Upon the filing of such bill or petition the pro- 
 ceedings thereon shall be the same as in ordinary suits 
 in chancery as far as practicable^ The court may make 
 such orders as may be necessary therein. Guardians 
 shall be appointed for all infant parties, and no sale shall 
 be made until the executor shall have executed and filed 
 with the register of the court, a bond in such penalty and 
 with such sureties- as shall be approved by the circuit 
 judge, for the faithful discharge of his duties, and the 
 proper disposition of the proceeds of the sale as may be 
 ordered by the court.^ 
 
 The court shall make all proper orders and directions 
 from time to time for the management, investment and 
 disposition of the moneys received from such sale and 
 the interest and income therefrom.* 
 
 Under chancery rule 1 the proceeding should be by bill. 
 All the beneficiaries under the trust should be made 
 parties. 
 
 Sale of Lands Conveyed or Devised for Life. 
 
 § 839. Lands, tenements or hereditaments conveyed 
 by deed or devised by will to any person for life with or 
 without power of appointment or sale, or to any person 
 in trust without power of sale, or any part thereof, may 
 be, by the Circuit Court in chancery for the county wljj^e- 
 in such property is situated, on petition of such person 
 having a life estate, ordered to be sold under the direc- 
 tion of the court, whenever by a proper showing by wit- 
 nesses produced before the court it shall appear that" the 
 rights of the interested parties will otherwise be jeop- 
 ardized.^ 
 
 l^C. L., Sec. 9243. 1— C. L., See. 9234, as am. hy 
 
 2— C. L., Sec. 9244. Act No. 56, Pub. Acts of 1909, p. 92. 
 
 3— C. L., Sec. 9245. 
 
840 ■ stage's MICHIGAN" CHANCEBT PRACTICE AND FOEMS 
 
 N. R Previous to the amendment of this sectioniin 
 1909 the petition might be by the person holding the estate 
 in trust as well as the life tenant.^ 
 
 §840. The petition must be on oath and filed in the 
 Circuit Court in chancery for the county in which the 
 property is situated and must state the facts, a descrip- 
 tion of the property to be affected, and the names, resi- 
 dences and interests of all persons who are or may be 
 interested therein so far as known to the petitioner and 
 praying that the lands, tenements and hereditaments 
 therein described may be sold and the proceeds invested 
 under the order of the court and thereafter treated as 
 real property and subject to the same disposition as 
 would have been made of the property if not sold.^ 
 
 § 841. The court shall thereupon enter an order re- 
 quiring all persons interested in the property to appear 
 before the court at a time to be therein named not less 
 than six weeks nor more than twelve weeks from the date 
 thereof, and show cause if any exist why the prayer of 
 the petition should not be granted. A copy of the order 
 must be personally served upon all persons interested 
 if found in the State of Michigan at least ten days before 
 the day of hearing and must be published once in each 
 week for three successive weeks before the day of hear- 
 ing in a newspaper printed and circulating in the county 
 where the property is situated and in the county in which 
 the petitioner resides and in such other place or places 
 as the court may direct. Provided that when the applica- 
 tion is made by a trustee a copy of the order ahall also be 
 personally served on the cestui Que trust at least ten days 
 before the day of hearing.* 
 
 It will be observed that personal service on all persons 
 known to b? interested does not dispense with publica- 
 tion in a newspaper, the obvious reason is that there may 
 
 2— C. L., Sec. 9234 and Pub. Act 4— C. L., See. 9B37, as am. by Act 
 No. 55 of 1901, p. 85. No. 56 Pub. Acts of 1909, p. 92. 
 
 3— C. L., Sec. 9236. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 841 
 
 be persons who are interested who are not known to be 
 so by the petitioner. 
 
 § 842. At the hearing any person interested may ap- 
 pear and show cause against the prayer of the petition 
 and proofs may be taken and hearing had in such manner 
 as the court may direct, and if it shall satisfactorily ap- 
 pear that the interests of the persons interested will be 
 substantially promoted by the sale of the property on 
 account of the same being exposed to waste or dilapida- 
 ^tion, or on account of its being unproductive, or for any 
 other peculiar reasons or circumstances, the court shall 
 order that such property be sold under its direction and 
 that the proceeds stand in lieu thereof.^ 
 
 § 843. The manner of showing cause is not prescribed 
 and should therefore be the same as in ordinary cases, 
 by affidavit in answer to the facts stated in the petition, 
 the statute evidently contemplates a summary hearing 
 and that the proofs be taken without delay in open court 
 or on reference to a Circuit Court commissioner as the 
 court may direct. While there is no express provision for 
 an adjournment beyond the day fixed for the hearing of 
 the petition there can be no doubt of the power of the 
 court to grant a postponement when necessary to pro- 
 mote a fair trial of the issues presented. 
 
 § 844. Upon the making of such order of sale the peti- 
 tioner, or other person or persons appointed trustee or 
 trustees by the court to receive the proceeds of such sale 
 shall give bond in such penalty and with such sureties 
 and in such form as the court shall direct, running to the 
 register of the court for the use and benefit of any person 
 who may be or become interested in such property or its 
 proceeds, conditioned for the investing of and accounting 
 for the proceeds of such lands, tenements and heredita- 
 ments, and for the observance of all orders of the court 
 in relation thereto.^ 
 
 5— C. L., Sec. 9238. 
 6 — C. L., Sec. 9240, as am. by 
 Pub. Act No. 55 of 1901, p. 85. 
 
842 stage's MICHIGAN CHANCEBY PEACTICB AND FORMS 
 
 This section evidently contemplates that the court may 
 find it necessary to appoint a trustee to take charge of 
 the fund created by such sale. No direct authority to 
 appoint such trustee is mentioned in the statute but the 
 power to appoint a trustee to carry a trust into effect is 
 inherent. 
 
 § 845. All sales made in pursuance of such order shall 
 be reported to the court, and when confirmed the peti- 
 tioner shall execute a conveyance of the property, which 
 shall be as good and effectual in law, and shall convej 
 the same title as if the person making the same were 
 seized of the title in fee to such lands, tenements and 
 hereditaments.'^ 
 
 It wiJl be observed that the statute does not prescribe 
 the manner in which the sale shall be made nor the person 
 who shall make it except it shall be by direction of the 
 court. This leaves the entire matter in the discretion of 
 the court. 
 
 §846. Upon the confirmation of such sale, the pro- 
 ceeds thereof shall thereafter stand in lieu of said prop- 
 erty and the court shall make such order as to the invest- 
 ment thereof as may be necessary. And from time to 
 time thereafter such further orders may be made on the 
 application of any person interested as the circumstances 
 may require.® 
 
 This gives the court full power to dispose of the fund 
 and the income thereupon as shall be equitable between 
 all parties interested. 
 
 No sale or conveyance of any kind shall be made of any 
 property contrary to any specific provisions in regard 
 thereto contained in the deed of conveyance or in the will 
 under which the petitioner holds the property." 
 
 This act has been adjudged to be constitutional and 
 valid.i" 
 
 7— C. L., Sees. 9239 ajid 9235. 10— Garrison v. Heeker, 128 Mich. 
 
 8— C. L., Sec. 9241. 539. 
 
 9 — C. L., Sec. 9242, as am. by Act 
 No. 56 Pub. Acts 1909, p. 93. 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 843 
 
 Sale and Disposition of Real Estate of Infants and 
 Incompetent Persons. 
 
 § 847. It is provided by statute that the estate of any- 
 infant, idiot, lunatic or other incompetent person in lands, 
 "whether in fee, for life or for years, may be sold and dis- 
 posed of under the direction of the Court of Chancery 
 "when it shall be for the interest of such infant or incom- 
 petent person to do so. If the infant, idiot, lunatic or 
 other incompetent person be a non resident of the state 
 application shall be made to the Circuit Court in chancery 
 for the county "wherein the lands are situated, but if a 
 resident it must be to the court for the county in "which 
 he resides. If the party has a guardian, the application 
 must be made by the guardian. If he has nq guardian or 
 if the guardian be a non resident the application may 
 be made by a next friend "who may be authorized to act as 
 such by such court; if the application be on behalf of 
 an idiot, lunatic or other incompetent, his next friend 
 shall be appointed on the petition of the person or per- 
 sons ha"ping the custody of the person of the idiot, luna- 
 tic or incompetent person, and if by an infant, on the 
 petition of such infant, but the court, before authorizing 
 a next friend to act for an infant, shall require proof that 
 his guardian, if he has one, or his parents, qr other near 
 relatives if he have no parents, have knowledge of the 
 intention to make such application, and unless it shall 
 appear that such persons have such kno"wledge, may 
 direct notice of such application- to be given to such guar- 
 dian, parents or relatives.^ 
 
 § 848. On such application the court shall, if neces- 
 sary, appoint one or more suitable persons to be guar- 
 dians of such infant, idiot, lunatic or other incompetent 
 person in relation to the proceedings on such applica- 
 tion.2 
 
 Such guardians shall give bonds to such infant, idiot, 
 lunatic or other incompetent person in such penalty and 
 "with such sureties and in such form as the court shall 
 
 1— C. U, See. 534. • 2— G. L., Sec. 535. 
 
844 stage's MICHIGAN CHANCEKY PBACTICB AND FOBMS 
 
 direct, conditioned for the faithful performance of the 
 trust reposed, for the paying over, investing arid ac- 
 counting for all moneys that shall he received by s.uch 
 guardian according to the order of any court having 
 authority to give directions in the premises, and for the 
 observance of the orders of the court in relation to the 
 said trust. The bond will be filed with the register in 
 chancery.^ 
 
 On filing such bond the court may proceed in a sum- 
 mary manner, on oral or other testimony, by reference 
 to a Circuit Court commissioner, to inquire into the 
 merits of such application.* 
 
 §849. Whenever it shall appear satisfa,ctorily that a 
 disposition of any part of the real estate of such infant, 
 idiot, lunatic or other incompetent person or of his inter- 
 est in any term of years, is necessary and proper, either 
 for his support and maintenance or for his education, or 
 that his interest requires, or will be substantially pro- 
 moted by such disposition, on account of any part of his 
 said property being exposed to waste or dilapidation, or 
 on account of its being wholly unproductive or for any 
 other peculiar reasons or circumstances, the court may 
 order the letting for a term of years, the sale, exchange 
 of other disposition of such real estate or interest, to be 
 made by the guardian of such infant, idiot, lunatic or 
 other incompetent person, in such manner and- with such 
 restrictions as shall be deemed expedient.^ But no real 
 estate or term for years .shall be sold, leased or disposed 
 of in any manner against the provisions of any last will, 
 or any conveyance by which such estate or term was de- 
 vised or granted to such infant, idiot, lunatic or other 
 incompetent person.* 
 
 Upon an agreement for a sale, leasing or other dis- 
 position of such property being made in pursuance of 
 such order, the same shall be reported to the court on the 
 oath of the guardian making the same ; aijid if it be con- 
 
 3— C. L., See. 536. 5— C. L., Sec. 539. 
 
 4— C. L., Sec. 538. 6— C. L.,. Sec. 541. 
 
stage's MICHIGAN CHANCEBY PEACTIOE AND FOBMS 845 
 
 firmed, a lease or conveyance shall be executed under 
 the direction of the courts 
 
 §850.. All sales, leases, dispositions and conveyances 
 made in good faith by the guardian in pursuance of such 
 order when so confirmed shall be valid and effectual as 
 if made by such infant, idiot, lunatic, or other inoom- 
 petent person when of lawful age and Sound mind.* 
 
 § 851. From the time of such application to the court 
 the infant, idiot, lunatic or other incompetent person 
 shall be considered as a ward of the court as far as re- 
 lates to such property, its proceeds and income, and 
 the court shall mate orders for the application .and dis- 
 position of the proceeds of such property and for the in- 
 vestment of the surplus belonging to such infant, idiot, 
 lunatic or other incompetent person, so as to secure the 
 same for his benefit, and shall direct a return of such 
 investment and disposition to be made on oath as soon 
 as may be, and shall require accounts to be rendered 
 periodically, by any guardian or other person who may 
 be intrusted with the disposition of the income of such 
 proceeds.^ 
 
 § 852. If such real estate or any part thereof be sub- 
 ject to dower, and the dowress shall consent to accept a 
 gross sum in lieu thereof or the permanent investment 
 of a reasonable sum in such manner that the interest be 
 made payable to the dowress during her life, the court 
 may direct the payment of such sum in gross or the in- 
 vestment of such reasonable sum as shall be acceptable 
 to such dowress as above stated, which sum so paid or 
 invested shall be taken out of the proceeds of the sale 
 of such real estate," but before any such sum shall be 
 paid or investment made the court shall be satisfied that 
 a.n effect\ial release of dower has been executed.^ ^ 
 
 7— C. L., Sec. 542. 10— C. L., See. 546. 
 
 8— C. L., Sec. 543. 11— C. L., Sec. 547. 
 
 9— C, L., Sec. 544. 
 
846 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 §•853. Whenever it shall be made to appear to the 
 court that it will be manifestly for the interest and ad- 
 vantage of any infant or infants that any incumbrance 
 upon the real estate of such infants shotdd be purchased 
 and discharged in whole or in part, the court may autho- 
 rize the guardian of such infants to purchase and dis- 
 charge' the same, and if necessary to sell and dispose of 
 such part of the real estate of such infants as may be 
 necessary for that purpose ; provided such purchase and 
 discharge shall in no way be construed as vesting in said 
 guardian any right, title or interest in such premises 
 to the injury of such infants." 
 
 § 854. These proceedings being statutory and in dero- 
 gation of the common law must be strictly followed. The 
 statute does not in terms declare the form of the applica- 
 tion but in practice it has been by petition which seems 
 the appropriate method as there are no parties defend- 
 ant. The petition must set forth fully the facts and cir- 
 cumstances rendering a sa.le or other disposition of the 
 property necessary so that the court may be able to 
 judge as to the necessity and propriety of the measure.'^ 
 Courts of Equity are bound officially to take care of the 
 interests of infants whether protected by their guardian 
 or not.*-* A special guardian appointed under this act 
 can make a sale only at the price and on the terms fixed 
 by the order and purchasers are presmned to have 
 knowledge of the proceedings.** 
 
 § 855. The agreement to sell must be approved by the 
 court and an order of sale made before aiiy conveyance 
 is made, a deed made before the order of sale will iiot 
 be ratified.*® 
 
 §856. Contingent estates ia remainder may be sold 
 under this statute.*^ 
 
 1?— C, L., Sec. 540. 15— Petition o( Aitell, 95 Mich. 
 
 13— Petition of Dorr, Walk. Ch. 244. 
 
 145. 16— Petition of Don, Walk. Ch. 
 
 14— Sheahan v. Cir. Judge, 42 145; Jennesa v. Smith, 58 Mich. 280. 
 
 Mich. 69 ; Westbrook v. Comstock, 17— Hovey v. Nellia, 98 Mich. 374. 
 Walk. Ch. 314. 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 847 
 
 § 857. The proceeding must be in good f aitli as when 
 tainted by fraud it may be set aside by the infant after 
 attaining full age,^* or by an incompetent person on re- 
 covering sound mentality.!* 
 
 The court will not allow money to be paid to a guar- 
 dian or guardian ad litem until he has given security.^" 
 
 The proceedings are summary and proofs are usually 
 taken on reference to a Circuit Court commissioner but 
 the courts are especially careful in these cases to guard 
 the interests of the infants or incompetent persons and 
 the proofs should be full, convincing and satisfactory. 
 
 The petition and application must be on oath. 
 
 PETITION FOR SALE OP REAL ESTATE OF INFANT. 
 (Address.) 
 
 The petition and application of A. B., of , in the 
 
 county of , and State of Michigan, the guardian (or, 
 
 next friend) of C. D., of , in the said county of 
 
 , in this state, an infant under the age of twenty-one 
 
 years, respectfully shows: 
 
 1. That the said C. P. is an infant under the age of twenty- 
 one years and is of the age of , and is a resident of the 
 
 of , in said county of in this state, 
 
 and that heretofore and on the day of , A. D. 
 
 19.. ., your petitioner was duly appointed guardian of the said 
 
 C. D. by the probate court for the county of , as by the 
 
 letters of guardianship, issued by the said probate court to your 
 petitioner, bearing date the same day and year last aforesaid, 
 and now in possession of your petitioner, and whereto reference 
 is prayed, will fully appear, and that ever since that time your 
 petitioner has been, and still is, acting as such guardian and 
 makes this petition on behalf of the said infant, C. D., as such 
 guardian (or if no guardian has been appointed, after stating 
 the residence of the infant, say, and that no person has been 
 appointed guardian of the said infant, C. D., and that your 
 
 petitioner was by an order of this court made on the 
 
 day of , A. D. 19 . . , appointed the next friend of the 
 
 said infant, C. D., and makes this petition on behalf of the said 
 infant, C. D., as such next friend). 
 
 2. Your petitioner further shows that the said infant, C, D., 
 
 18 — ^Wohlscheld v. Bergrath, 46 20— Westbrook v. Comstock, Walk, 
 
 Mich. 46. Ch. 314; Ch. Eule 33. 
 
 19 — ^King V. Sipley, 166 Mich. 
 258. 
 
848 stage's MICHIGAN CHANCEBY PEACTICB AND FOEMS 
 
 is the owner in his own right in fee simple of that certain piece 
 
 or parcel of land situate ia the of , in the 
 
 said county of , and described as follows : (describe the 
 
 land accurately), and that he holds the same by inheritance from 
 
 his father, B. D., late of , deceased, who died seized 
 
 thereof, and that the same is of the value of dollars 
 
 as nearly as your petitioner can estimate (if subject to incumb- 
 rance, state it, e. g., and that the same is subject to a mortgage 
 made thereon by the said B. D. in his lifetime whereon there is 
 
 now owing and unpaid the sum of dollars, or thereabout, 
 
 as nearly as your petitioner can ascertain the amount). 
 
 3. Your petitioner further shows that a disposition and sale 
 of the said real estate of the said infant is necessarj' and proper 
 for the support, maintenance and education of the said infant 
 (or, that the interest of the said infant wiU be substantially 
 promoted by a disposition and sale of the said real estate, stating 
 the reasons fully and in detail). 
 
 I. Your petitioner therefore prays that he may be empow- 
 ered and authorized by this court to contract for the sale of the 
 said real estate of the said infant for a fair price to be approved 
 by this court. 
 
 And your petitioner will ever pray, etc. 
 
 A. B. 
 
 Solicitor for Petitioner and of Counsel. 
 (Add verification.) 
 
 OEDER OF REFERENCE ON PETITION. 
 
 (Title of court.) 
 (Caption!) 
 
 In the matter of the Petition of 
 A. B., guardian (or, next friend) 
 of C. D., an infant for the sale 
 of certain real estate of the said 
 •infMit. 
 
 On reading and filing the petition of A. B., guardian (or, next 
 
 friend) of C. D., an infant, bearing date the day of 
 
 , A. D. 19. ., praying for reasons therein stated that 
 
 certain of the. real estate of the said infant may be sold and dis- 
 posed of, ordered that it be referred to J. K, Esq., Circuit 
 
 Court commissioner of the said county of , to take 
 
 proofs as to the matters alleged in the said petition and report 
 the same, with his opinion, thereon, to this court with all con- 
 venient ^eed. 
 
 •'•* ) 
 
 Circuit Judge. 
 
stage's MICHIGAN CHANCEEY PEACTICE AND EOEMS 849 
 
 ORDER THAT GUARDIAN CONTRACT. 
 
 (Title of court.) 
 (Caption.) 
 
 In the matter of the petition of A. B., guardian {or, next 
 friend) of C. D., an infant, for the sale of certain real estate of 
 the said infant. ' 
 
 In this cause, on reading and filing the report of J. K., Esq., 
 
 a Circuit Court commissioner of said county of , to 
 
 whom is was referred to take proofs of the matters alleged and 
 set forth in the said petition, which report bears date the 
 
 day of , A. D. 19 . . , from which report it 
 
 appears (or in case proofs ivere taken in open Qourt without 
 reference to a commissioner, say, after examination of witnesses 
 and taking proofs in open court touching the matters set forth 
 in the said petition, from which examination and proofs, taken 
 in open court, it appears) that a disposition and sale of the real 
 estate of the said infant, mentioned in the said petition is neces- 
 sary and proper for the support and maintenance and education 
 of the said infant {or, that the interest of the said infant re- 
 quires, or will be sul)stantially promoted, by the disposition and 
 sale of the real estate mentioned in said petition for the reason 
 (state reason fully), and it appearing that the parents (or other 
 near relatives, naming them and their relationship respectively 
 to the infant), of the said infant have full knowledge of the said 
 petition and application : 
 
 It is ordered and adjudged that the said petitioner, A. B., 
 be and he hereby is authorized and empowered to contract for 
 the sale of the said real estate for an amount not less than 
 
 doUars, not less than (one-half) whereof to be paid in 
 
 cash and the balance to be secured by mortgage on said prem- 
 ises, payable in years with interest at per cent 
 
 per annum, payable annually and that he, the said 
 
 A. B., report such contract to this court without delay. 
 
 And that the said A. B. do make and execute to the said C. 
 D., and file with the register of this court, a bond in the penal 
 
 sum of dollars, with sufficient sureties to be approved 
 
 by this court, conditioned for the faithful performance of the 
 trust reposed in him and for the paying over, investing and ac- 
 counting for all money that shall be received by him according 
 to the order of any court having authority to give dii^ection in 
 the premises 9.nd for the observance of the orders of the court 
 
 in relation to the said trust. , , , 
 
 Circuit Judge. 
 
 BOND OP GUARDIAN TO INFANT ON SALE OF REAL 
 
 ESTATE. 
 
 Know all men by these presents, that we, A. B. of , 
 
 as principal, and L. M. of , and N. 0. of , as 
 
850 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 sureties, are held and firmly bound unto C. D. of , in 
 
 the sum of dollars, lawful money to be paid to the said 
 
 C. D., his certain attorney, executors, administrators or assigns, 
 for which payment well and truly to be made, we bind ourselves, 
 our heirs, executors and administrators, jointly and severally 
 firmly by these presents. 
 
 Sealed with Our seals, dated this day of , 
 
 A. D. 19.. „ 
 
 The condition of this obligation is such, that whereas the above 
 bounden A. B. has filed his petition in the Circuit Court for the 
 
 county of : In Chancery, as guardian of the above 
 
 mentioned C. D., an infant, praying, for reasons therein stated, 
 that he may be authorized to sell certain real estate of said in- 
 fant, and whereas, by an order of the said court, made on the 
 day of , A. D. 19 . . , the said A. B. was author- 
 ized and empowered to contract for the sale of such real estate : 
 
 Now therefore, the condition of this obligation is such that if 
 the above boundem A. B. shall well and faithfully perform the 
 trust reposed in him, and shall pay over, invest and account for 
 all moneys and securities received by him on account of such 
 sale, according to the order of any court having authority to give 
 directions in the premises, and shall observe and perform all 
 orders of this court in relation to the said trust, then this obliga- 
 tion to be void, otherwise to remain in full force and effect. 
 
 (L. S.) 
 
 (L. S.) 
 
 (L. S.) 
 
 APPROVAL OF BOND. 
 I do hereby approve of the foregoing bond and of the penalty 
 thereof and the sureties thereto. 
 Dated this day of , A. D. 19 . . . 
 
 Circuit Judge. 
 
 EEPOET OF GUARDIAN THAT HE HAS CONTRACTED 
 FOR SALE OF LAND OF INFANT. 
 
 State of Michigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 In the matter of the petition of A. B., guardian {or, next 
 friend) of C. D., an infant, for the sale of certain real estate of 
 the said infant. 
 
STAGE *S MICHIGAN CHANCEBY PBACTICE AND FOBMS 851 
 
 Of the day of , A. D. 19. .. 
 
 To the Circuit Court for the County of ' : 
 
 In Chancery. 
 
 The above named A. B. who was, by an order of this court, 
 
 made on the day of A. D. 19. ., authorized 
 
 and empowered to contract for the sale of the real estate of the 
 said infant described as (describe the land) respectfully reports 
 unto the court that he has made a contract with one G. H., of 
 
 for the sale of the said land to the said G. H. for the 
 
 consideration o.f dollars, to be paid as follows : one- 
 half thereof on the delivery of a deed of the said land after the 
 approval and confirmation of the said contract by this court, 
 
 and the balance in years thereafter, with interest at 
 
 the rate of per cent per annum, payable annually from 
 
 date, to be secured by a mortgage on the said land, as well as by 
 the note of the said G. H. and the said A. B. presents herewith 
 the contract, in writing, with the said G. H. for the said sale, 
 and prays the approval thereof by this court. 
 
 A. B. 
 (Add verification.) 
 
 ORDER APPROVING AND CONFIRMING CONTRACT. 
 (Title of court.) 
 (Caption.) 
 
 In the matter of the petition of A. B., guardian (or, next 
 friend) of C. D., an infant, for the sale of certain real estate of 
 the said infant. 
 
 In this cause, on reading and filing the report of the said A. 
 B„ bearing date the day of ....,...., A. D^ 19 .. , show- 
 ing that he has made a contract for the sale of the land of the 
 said infant, described as follows, viz: (describe the land) unto 
 one G. H., of , for the consideration of dol- 
 lars, to be paid as follows (state terms of payment and. security) 
 and it appearing to the court that the said contract is for the 
 best interests of the said infant, and no objection thereto being 
 made. 
 
 It is ordered and adjudged that the said contract be, and the 
 same hereby is, approved and ia all things confirmed and that 
 the said A. B. be, and he hereby is authorized and empowered 
 to execute and deliver to the said G. H., a deed of eonyeyahce 
 of the said land pursuant to the statute in like case provided, 
 upon the payment by said G. H. of (one-half) of the purchase 
 price thereof and the execution and delivery by the said G. H. 
 of a note and mortgage to secure the remainder of siieh purchase 
 price, pursuant to the terms of the said contract. 
 
 Circuit Judge. 
 
852 stage's MICHIGAlJr CHANCEEY PBACTIOE AND FOBMS 
 
 FINAL REPORT OF GUARDIAN ON SALE OF REAL 
 
 ESTATE. 
 
 State of Mitjhigan. 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 
 In the matter of the petition of A. B., guardian {or, next 
 friend) of C. D., an infant, for the sale of certain real estate of 
 the said infant. 
 
 Of the day of , A. D. 19. .. 
 
 To the Circuit Court for the County of : 
 
 In Chancery. 
 
 I, the above mentioned A. B., guardian of the above men- 
 tioned infant, C. D., do respectfully report to this court that in 
 
 pursuance of the order of this court, made on the day 
 
 of , A. D. 19 . . , I did, on the day of , 
 
 A. D. 19. ., make, execute and deliver unto G. H. in the said 
 order named, a deed of conveyance of the real estate in said 
 order mentioned and described as (describe real estate as in the 
 order) and thereby conveyed to the said G. H. all the right, 
 title, estate and interest of the said C- D- of, in and to the said 
 
 real estate for the consideration of doUars, then to me 
 
 paid by the said G. H., and that for the payment of the said 
 consideration, the said G. H. then paid to me the sum of 
 dollars in cash, and at the same time made, executed aild de- 
 livered to me his promisscwy note in writing for the sum of 
 
 dollars, bearing date the said day of 
 
 , A. D. 19. ., payable to . . . , or order 
 
 years from the date thereof, with interest at per eent 
 
 per annum, payable annually, frpjn date, and did also 
 
 then make and execute and deliver to me a mortgage on the same 
 
 land above conveyed, bearing date the said day of 
 
 , A. D. 19 . . , conditioned for the payment Y)y the said 
 
 G. H. to the said or his leg9,l representatives or assigns, 
 
 the said sum of dollars fpart of the purchase price 
 
 aforesaid) in years from the date thereof, with interest 
 
 thereon at the rate of per cent per annum, payable 
 
 annually from the date thereof, according to the- pro- 
 visions of the said promissory note. 
 
 I do further report that from the said sum of dol- 
 lars so received by me aforesaid, I have necessarily paid, laid 
 out and expended the sums of money, following, that is to say : 
 (make full statement of all expenditures) and that I now have 
 
 in my hands for the benefit of the said C. D. the sum of 
 
 dollars, and the said note and mortgage above mentioned. 
 
 A.B. 
 (Add verification.) 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 853 
 
 ORDER CONFIRMING FINAL REPORT OF SALE OF 
 GUARDIAN. 
 (Titte of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this cause, on reading and filing the final report of thp 
 
 above named A. B., bearing date the day of , 
 
 A. D. 19 . . , from which report it appears that in pursuance of 
 
 an order of this court, made on the ........ day of , 
 
 A. D. 19.., he, the said A. B., did, on the ., day of 
 
 , A. D. 19 . . , make, execute and deliver to one G. H. a 
 
 deed of conveyance of the real estate of the said infant described 
 
 •as (describe land) for the consideration of dollars, and 
 
 did then receive of and from the said G. H. he sum of , 
 
 dollars in cash and the promissory note of the said G. H., bear- 
 ing date the said day of , A. D. 19 . . , for the 
 
 sum of dollars, payable to or order 
 
 years after the date thereof with interest at the rate of 
 
 per cent per annum, payable annually from date, to- 
 gether with a mortgage on the same land of even date with the 
 said note, conditioned for the payment of the said sum of 
 
 dollars, with the interest thereOn, according to the 
 
 terms of the said note, and also setting forth his expenditures 
 in relation to the matter of such, sale and showing that he, the 
 said A. B., now has in his hands, for the benefit of the said C. 
 D., the sum of dollars cash and the said note and mort- 
 gage. 
 
 It is ordered and adjudged that the said report be, and the 
 same hereby is, in all things approved and confirmed, and that 
 from the funds now in his hands, that the said A, B. be allowed 
 
 to retain the sum of dollars as compensation for his 
 
 services to the date of this order. 
 
 And that the said A, B. have leave to- apply to this court fgr 
 further directions as to the application and disposition of the 
 funds and securities derived from such sale as he shall be 
 advised. 
 
 Circuit Judge. 
 
 Transfer of Causes. 
 
 §858. When the judge of the court is. interested as 
 a party or a member of any corporation which is a party 
 or has been consulted or employed as counsel jn the sub- 
 ject matter ito be litigated in the suit, or when he is re- 
 
854 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 lated by consanguinity or afSnity to any of the parties, 
 the suit may be transferred to some other Circuit Court.^ 
 The application for such transfer may be made to the 
 judge of any adjoining circuit who is not disqualified. It 
 must be in writing, and set forth specifically the grounds 
 for such transfer. Such judge will appoint a time and 
 place of hearing and direct the manner in which notice 
 shall be given to all parties interested. At the hearing 
 the judge, to whom the application was made shall hear 
 the application and the evidence of witnesses or other 
 evidence produced by any of the parties, and if satisfied 
 that the judge of the circuit court wherein such suit is 
 pending, is disqualified he shall grant an order, reciting 
 briefly the proceedings before him, and transferring the 
 cause to the circuit court for some other county to be 
 specified in the order. 
 
 § 859. If the parties agree on the court to which the 
 suit shall be transferred, it shall be transferred to that 
 court, but if there be no such agreement the judge hearing 
 the application shall transfer the cause to the court in 
 which in his judgment the cause can be tried with the 
 most convenience, expedition and economy to the parties 
 and in which the judge is not disqualified. 
 
 §860. The parties may in such case by stipulation 
 in writing, consent to such transfer without any applica- 
 tion to any judge, in which case the stipulation shall have 
 the same effect as an order duly made for such transfer. 
 
 § 861. On filing the order with the register of the 
 court to which the suit is directed to be transferred, the 
 last mentioned court shall have jurisdiction of the same 
 to the same extent as if the cause had been legally com- 
 menced therein and may make such orders as may be 
 necessary to procure the transfer of the existing files and 
 orders thereto and to cause due notice of the transfer 
 to be given.^ 
 
 1— C. L., Sec. 10105; Fellows v. 2— C. L., Sees. 1Q106, 1Q107, 
 Canney, 75 Mich. 4^5; r»aser v. Qir. 10108, 10109 and 10110, as am. by- 
 Judge, 48 Mich. 176; Kittridge v. Act No. 211, Pub. Acts of 1903, p. 
 Cir. Judge, 80 Mich. 200. 313, 
 
stage's MICHIGAN CHANCEKY PEACTICE AND FOBMS 855 
 
 § 862. On delivering to the register of tHe court 
 wherein such cgiuse was pending, before such transfer, a 
 certified copy of the order of transfer such register shall 
 attach together the originals of all papers filed in said suit 
 and rnake true copies of all orders made therein which 
 are entered in books of record and shall transmit the 
 same duly certified to the register of the court to which 
 the transfer is made, which files and copies when filed 
 with the register last named shall have the same force 
 and effect in all respects and be subject to the rules and 
 order of the court to which it is transferred as other 
 original proceedings therein. 
 
 The register making the transfer is entitled to six 
 cents pfer folio for all Qopies of orders and proceedings 
 and one dollar in addition for his fees.^ 
 
 § 863. The application must show the facts constitut- 
 ing the disqualification of the judge and affirmative proof 
 thereof must be made at the hearing, as well as of the 
 fact that the judge of the court to which it is proposed 
 to transfer the suit is not disqualified.* 
 
 §864. The court in which the suit was commenced 
 may, upon good cause shown, change the venue, in the 
 cause and direct the cause to be tried in the Circuit Court 
 of another county, and may make all necessary orders 
 for the certifying and removing such cause and all mat- 
 ters relating thereto.* 
 
 APPLICATION FOE THE TEANSFBR OP A CAUSE. 
 State of Michigan. 
 
 Suit Pending In the th Judicial Circuit in the Circuit 
 
 Court for the County of : In Chancery. 
 
 A. B., Complainant, 1 
 
 C. D., Defendant. J 
 
 Of the day of , A. D. 19. .. 
 
 To the Hon , Circuit Judge of the th Judi- 
 cial Circuit, 
 
 Now eomes the above ijamed complainant, A- B., {or, defend- 
 
 3---C. X;., S^s. 10111 and 10112. 5— C. L., Sec. 309, as am. by Act 
 
 4— 5elley v. Qir. Judge, 79 Mich. No. 161 Pub. Acts of 1907, 
 39?. 
 
856 stage's MICHIGAN CHANCEKY PEACTICE AND FOBMS 
 
 ant, C. D., as the case may he) and makes application that the 
 above entitled cause be transferred and removed from the Cir- 
 cuit Court for the county of : in Chancery, wherein 
 
 the same is pending, to the Circuit Court for the county of 
 : in Chancery, or to such other Circuit Court in Chan- 
 cery, as shall be found to be proper, for the reasons following, 
 that is to say : 
 
 1, Because the Hon , the circuit judge of the said 
 
 Circuit Court for the county of : in Chancery, wherein 
 
 said cause is now pending, is interested as a partyin said cause, 
 {or, is a member of a corporation (naming it) which is a party 
 in said cause or, has heretofore been consulted or employed as 
 counsel in the subject matter to be litigated in the said suit or, 
 
 is related by consanguinity or, afiSnity to , one of the 
 
 parties to the said cause, that is to say (set forth the relation- 
 ship or affinity) and would thereby be excluded from sitting as 
 a juror in a suit at law wherein the said was a party. 
 
 2. Because the said cause can be tried in the said Circuit 
 
 Court f qr the- county of , in Chancery (naming the 
 
 court to which a transfer is sought) with the most convenience, 
 expedition and economy to the parties interested. 
 
 This application is based on the records, and files of this cause 
 and on the affidavit of herewith presented. 
 
 Solicitor for 
 
 [The provision prior to 1903 that the suit should be trans- 
 ferred to the county in which one of the parties or solicitors 
 resides does not now, exist, that provision being omitted from the 
 statute as amended in 19Q3.] 
 
 tne «. 
 mt, 1 
 
 t. J 
 
 ORDEE APPOINTING TIME AND PLACE OF HEARING. 
 State of Michigan. 
 
 Suit Pending in the th Judicial Circuit in the Circuit 
 
 Court for the County of : In Chancery. 
 
 A. B., Complainant, " 
 
 V. 
 
 G. D., Defendant. 
 
 At Chambers. 
 
 Of the day of , A. D. 19. .. 
 
 Application having been made by the above named (complain- 
 ant) to me, the undersigned, circuit judge of the th 
 
 judicial circuit, for the transtfer and removal of the above en- 
 titled cause from the Circijit Court for the county of , 
 
 in Chancery, wherein the same is now pending, to the Circuit 
 
 Court for the county of , in Chancery, or such other 
 
 Circuit Court in Chanc^y as shall be found to be proper, for 
 reasons stated in such application. 
 
stage's MICHIGAN GHANCEBY PBAGTIGB AND POBMS 857 
 
 It is ordered that the said application be heard before me 
 
 at my chambers at ■. . ., in the of , in the 
 
 CQunty of and State of Michigan, on the day 
 
 of , A. D. 19. ., at o'clock in the 
 
 noon ; and that a copy of this order and of the said application 
 arid of the affidavits presented therewith be served upon the 
 
 solicitor for the (defendant) at least days before the 
 
 time above specified for sueh hearing. 
 
 Judge of the Judicial Circuit. 
 
 ORDER TRANSFERRING CAUSE. 
 State of Michigan. 
 
 Suit Pending in the th Judicial Circuit in the Circuit 
 
 Court for the County of : In Chancery, 
 
 A. B., Complainant, 1 
 
 G. D., Defendant, f 
 
 At Chambers. 
 
 Before the Hon , Circruit Judge of the th 
 
 judicial circuit, on this .... day of , A. D. 19 . . . 
 
 Application in writing having been duly made to me by the 
 
 above named (complainant) on the day of , 
 
 A. D. 19 . . , for a transfer of the above entitled cause from the 
 Circuit Court for the county of , in Chancery, where- 
 in the same is now pending, to the Circuit Court for the county 
 
 of , in Chancery, or to such other Circuit Court in 
 
 Chancery as should be found to be. proper and an order having 
 been made on the said last mentioned day that the said applica- 
 tion should be heard before me at my chambers at , in 
 
 the .. ^ . . of , in the county of and State 
 
 of Michigan, on the day of , A. D. 19 . . , at 
 
 o'clock in the noon, and the said parties hav- 
 ing appeared before me by their respective solicitors {or counsel) 
 at the time and place last named (if an adjournment was had 
 insert and said hearing having been then adjourned at request 
 
 of the said until the day of A. D. 
 
 19.,, at o'clock in the noon at my said 
 
 chamberg, and the said parties having appeared before me at the 
 said last mentioned time and place), and thereupon the said 
 parties having respectively produced evidence in relation to the 
 matter qf the said application arid having heard the same and the 
 arguments of counsel thereon, I have become satisfied and find 
 as matier of fact that the said (complainant) has shown a good 
 and valid cause for a transfer of the said cause fro.m the said 
 
 Circuit Court for the county of , in Chancery, for the 
 
 reasons stated in such application and that the Circuit Court 
 for the county of , in Chancery, is the court in which 
 
858 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 the said cause can be tried with the most convenience, expedition 
 and economy to the parties interested and that the judge thereof 
 is not disqualified to hear the same, therefore : 
 
 It is ordered that the said cause be removed and transferred 
 
 from the Circuit Court for the county of , in Chancery, 
 
 to the Circuit Court for the county of , ia Chancery. 
 
 And that the register of the Circuit Court for the county of 
 
 , in Chancery, do forthwith transmit to the register of 
 
 the Circuit Court for the county of , in Chancery, all 
 
 and singular the original papers and files in the said cause to- 
 gether with certified copies of all rules and orders and calendar 
 entries made in the said cause and that he duly notify the solic- 
 itors of the respective parties of such transfer. 
 
 I 
 
 Circuit Judge of the th Judicial Circuit. 
 
 Maxims in Equity. 
 
 §865. "He who seeks equity must do equity."^ 
 "He who committed iniquity shall not have equity."* 
 "He who seeks equity must come into court with clean 
 hands." ' 
 
 "A tortious act can never be the foimdation of an equit- 
 able right."* 
 
 1 — Sehwarz v. Sears, Harr. Oh. pion v. G. E. & G. H. & M. E. Co., 
 
 440; Morris v. Hoyt, 11 Mich. 9; 145 Mich. 676; Gates v. Oornett, 72 
 
 Mich. State Bank v. Drummond, 1 Mich. 420; Young v. Toledo & S. H. 
 
 Doug; Mich. 527; Flaser v. little, E. Co., 76 Mieh. 485 ; Long v. Kaiser, 
 
 13 Mich. 125; Palmer v. Napoleon, 81 Mich. 518; Dwight v. Lumber 
 
 16 Mich. 176; Smith v. Aud. Gen., Co., 82 Mich. 624; McKisson v. Dav- 
 
 20 Mich. 398; Merrill v. Aud. Gen., enport, 83 Mich. 211; Ayres v. Dut- 
 
 24 Mich. 170; Prout v. Wiley, 28 ton, 87 Mich. 528; Mining Co. v. 
 
 Mich. 164; MeCredie v. Buxton, 31 Aud. Gen., 37 Mich. 391; Burt v. 
 
 Mich. 383; Goodenow v. Curtis, 33 Wadsworth, 39 Mich. 126. 
 
 Mich. 505; Connors v. Detroit, 41 2 — Cedar Springs v. Schlich, 81 
 
 Mich. 128; Terry v. McClintock, 41 Mich. 405; MeCredie v. Buxton, 31 
 
 Mich. 492; Bumpus v. Bumpus, 59 Mich. 383. 
 
 Mich. 95; Toms v. Boyes, 59 Mich, 3 — Hoflf v. Hofif, 48 Mich. 281; 
 
 386; Wallace v. McBride, 70 Mich. Baker v. Grand Bapids, 142 Mich. 
 
 596; Hawes v. Pire, etc. Ins. Co., 687. 
 
 109 Mich. 324; Aud. Gen. v. Hutch- 4 — Campau v. Campau, 19 Mich, 
 
 inson, 113 Mich. 245; Croskery v. 116; MeCredie v. Buxton, 31 Mich. 
 
 Busch, 116 Mich. 288; Coe v. Dick- 383; Putnam v. Eeynolds, 44 Mich. 
 
 ersoH, 129 Mich. 61; Maloue v. 113; Hanold v. Bacon, 36 Mich, 1. 
 Dansforth, 137 Mich. 227; Chanj- 
 
stage's MICHIGAN CHANCEBY PBACTICE AND FOEMS 859 
 
 "Equality is equity."'' 
 "Equity follows the law."« 
 
 § 866. But when the law stops short of securing the 
 rights of the parties equity continues the remedy until 
 complete justice is done, 
 
 "Equity is the perfection of the law."'^ 
 "Where equities are equal the prior equity prevails." * 
 "Equity considers that as done which ought to have 
 been done."* 
 
 "Once a mortgage, always a mortgage."*" 
 "He who keeps silent when he ought to speak shall not 
 be heard to speak when he ought to keep silent."** 
 
 So where a complaiuant stood by and allowed the court 
 to proceed in ignorance of the facts instead of taking an 
 inexpensive course by which the court might have been 
 correctly informed, and afterwards filed a bill to set the 
 proceedings aside he was not allowed his costs.** 
 
 §867. "Where one of two innocent parties must suf- 
 fer, that one, through whose act or neglect a third party 
 was enabled to do the wrong must be the one to suffer. " *' 
 
 "Courts cannot create a contract."** 
 
 "Equity regards substance rather than form and en- 
 forces the actual intent if lawful and just." *'' 
 
 5 — Hollister V. Loud, 2 Mich. 309; 9 — Grand Lodge A. O. V. W. v. 
 
 TurnbuU v. Lumber Co., 55 Mioh. Child, 70 Mich. 163; Near v. Don- 
 
 387. nely, 80 Mich. 130. 
 
 6 — ^Abbott V. Godfrey's heirs, 1 10 — Thompson v. Mack, Harr. Ch. 
 
 Mich. 178; Thurston v. Prentiss, 1 150; Batty v. Snook, 5 Mich. 239; 
 
 Mich, 193; Loekwood t. Beckwith, 6 Emerson v, Atwater, 7 Mich. 12. 
 
 Mich. 168; Mich. Ins. Co. v. Brown, 11-^Peters v. Canfield, 74 Mich. 
 
 11 Mich. 265; Grand Lodge A. O. 498; McKee v. Grand Bapids, 137 
 
 U. W. y. Child, 70 Mich. 163; Beau- Mich- 260. 
 
 bien V. Beaubien, 23 How. U. S. 190; 12 — ^WUcke v. Duross, 144 Mich. 
 
 Grammel v. Carmer, 55 Mich. 201. 243. 
 
 7_^rand Lodge A. O. U. W. v. 13 — Zucker v. Earpeles, 88 Mich. 
 
 Child, 70 Mich. 163. 413. 
 
 g — Wing V. McDowell, Walk. Ch. 14— Wood v. Truai, 39 Mich. 628. 
 
 175; Norris v. Showerman, Walk. 15 — Stuart v. Worden, 42 Mich. 
 
 Ch. 206. IH 
 
860 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 "Equity will not relieve against the consequences of a 
 risk voluntarily assumed."^® 
 
 "Equity will not enlarge exceptions to the statute of 
 frauds."^'' 
 
 "A court of equity is not to be made an instrument of 
 wrong. ' ' ^^ 
 
 "Equity will not interpose between parties engaged in 
 illegal transactions." ^' 
 
 "Equity will not relieve a debtor from an honest debt 
 by changing the security." ^^ 
 
 "Equity wUl not aid an unconscionable defence."*^ 
 
 "One should reap what he has sown."** 
 
 In Conclusion. 
 
 §868. There are several matters in equity practice 
 which cannot be classified, but which are nevertheless 
 important to the modern practitioner, such as the en- 
 forcement of the personal liability of stockholders of a 
 corporation for labor or materials furnished in certain 
 eases, or for the unpaid balance on shares of stock held 
 by them. The interference by labor unions with the work- 
 men and business of manufacturers and other capitalists 
 has become a not infrequent ground of application for in- 
 junction. There are also several other proceedings 
 which cannot well be defined as coming under any par- 
 ticular head but which are likely to arise in. practice. The 
 following forms have therefore been added as useful in 
 many cases. 
 
 16 — MoCredie v. Buxton, 31 Mich. 20 — Goodenow v. CurtiB, 33 Mieh. 
 
 383. 505. 
 
 17 — ^Webster v. Gray, 37 Mich. 21— Waldron v. Murphy, 40 Mich. 
 
 37. 668. 
 
 18— Miller v. Comwell, 71 Mich. 22 — ^Luoas v. Parks, 84 Mich. 202. 
 270. 
 
 19— Thurston v. Prentiss, 1 Mich. 
 192. 
 
stage's MICHIGAN CHANCERY PEACTlCE AND FOBMS 861 
 
 ADDITIONAL FORMS. 
 BILL BY CREDITOR TO ENFORCE PERSONAL 
 LIABILITY OF STOCKHOLDER. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of , A. 
 
 D. 19 . . , at a regular term of the Circuit Court for the county 
 
 of , then held at in said last mentioned 
 
 county, your orator recovered a judgment in the said court in 
 an action of assumpsit against the company, a. corpo- 
 ration organized and existing under the laws of thjs state and 
 having its principal office for the transaction of business at 
 
 , in the county of , in this state, one of the de-. 
 
 fendants hereto, for the sum of dollars damages and 
 
 costs of suit, whereof the said company stands con- 
 victed, as by the record of the said judgment in the said court, 
 whereto reference is prayed, fully appears and which said costs 
 
 were afterwards and on the day of , A. D. 
 
 19 . . , duly taxed at the sum of dollars, as by the rec- 
 ords of the said court, whereto reference is prayed, fully appears. 
 
 2. And that afterwards and on the day of , , 
 
 A. D. 19. ., the said judgment remaining in full force and effect 
 and the damages and costs aforesaid being wholly unsatisfied, 
 your orator for the purpose of obtaining satisfaction thereof, 
 sued and prosecuted out of the said court a writ of fieri facias 
 
 directed to the sheriff of the said county of that being 
 
 the county wherein the principal office of the said com- 
 pany was then located, by which writ, said sheriff was com- 
 manded that of the goods, chattels, lands and tenements of the 
 
 said defendant, the company, in his county he should 
 
 cause to be made the said sum of dollars for which your 
 
 orator had in the said court recovered judgment as aforesaid, 
 and that he should have that money before the said court by the 
 day of , A. D. 19 . . , to satisfy the said judg- 
 ment, and that he should have then and there that writ. 
 
 3. And that the said writ of fieri facias before the delivery 
 thereof was duly endorsed, and was afterwards and on the 
 
 day of , A. D. 19 . , , delivered to the said 
 
 sheriff to be by him executed in due form of law. 
 
 4. And that afterwards and on the day of , 
 
 A. D. 19. ., the said sheriff returned the said writ of fieri facias 
 to the said Circuit Court for the county of , wholly un- 
 satisfied, with a return endorsed thereon under his hand that 
 (set forth return of sheriff), as by the said writ of fieri facias 
 and the said return of the said sheriff thereon, now on file in the 
 records and files of the said court, and whereto reference is 
 prayed, will fully appear. 
 
 5. And that the s.aid judgment still remains in full force ajid 
 effect, not reversed, satisfied or otherwise vacated, and that there 
 
862 STAGERS MICaGA» CHANCteKY PEACTICE AND FOSMS 
 
 is now actually and equitably due to your orator thereon the 
 
 sum of dollars, together with interest thereon, from 
 
 the date of the rendition thereof, at the rate of per 
 
 cent per annum, over and above all claims of the said defend- 
 ant, the company, by way of set-ofE or otherwise. 
 
 6. And that the indebtedness of the said company 
 
 to your orator whereon the said judgment was recovered, was 
 
 incurred between the day of , A. D. 19 . . , 
 
 and the day of , 19 • • , and is for goods, wares 
 
 and merchandise sold and delivered by your orator to the said 
 company, and for work and labor performed and ma- 
 terials for the same furnished by your orator for the said 
 company, and that the particulars of suoh indebted- 
 ness are as follows : (set forth the items of the indebtedness, giv- 
 ing dates and amounts as w.ell as specifying the goods sold or 
 work done, and if the amount of the cla/im was reduced by partial 
 payments or setoff before judgment, state the same and state 
 that the judgment vms for the balance after deducting such 
 partial payments and set-offs.) 
 
 7. And that the said company is a corporation 
 
 organized under (state the act under which the corporation was 
 
 organized) and that it was organized on or about the 
 
 day of , A. D. 19... 
 
 8. And that the capital stock of the said company, 
 
 as stated in its articles of association is the sum of 
 
 dollars, consisting of shares of the par value of 
 
 each, and that it appears from the said articles of as- 
 sociation that the amount of such capital stock actually paid in 
 at the tiipe of the execution of said articles was dol- 
 lars, and that the names and residences of the incorporating 
 stockhnlders and the number of shares subscribed for each were 
 as follows : 
 
 Name Residence Shares 
 
 (Give names and residence and number of shares as stated in 
 Articles, and if any amendment has been filed increasing the 
 capital stock it should be stated, giving time and particulars of 
 increase), and your orator is informed and believes and charges 
 the fact to be that no amendment to the said articles relative 
 
 to such capital stock has since been adopted by the said 
 
 company. 
 
 9. And your orator further shows that at the time of or after 
 
 the organization qf the said company and previous to 
 
 the time when the indebtedness above mentioned was incurred 
 
 by the said company, one C. D., of , received 
 
 from the said company, and became and was the 
 
 owner of a large number of shares of the capital stock of the 
 said company, and your orator is informed and believes and 
 charges the fact to be that the said C. D. has not ia any manner 
 
STAGE S MICHIGAN CHAK^CEEY PBACTICE AND FOBMS 863 
 
 up to the present time paid to the said company the 
 
 full amount of the par value of the shares of stock so received 
 and owned by him, and that he has not transferred the same in 
 good faith to any responsible person. 
 
 10. And your orator further shows that at the time of or 
 after the organization of the said company and pre- 
 vious to the time when the indebtedness above mentioned was 
 
 incurred by the said company, one E. F., of 
 
 received from, etc., (conclude as in last pamgraph and proceed 
 with a similar allegation as to each known stockholder, each in 
 a separate paragraph. If any are known, to have in good faith 
 transferred their shares to bona fide, responsible holders, instead 
 of the last clause of paragraph 9, insert) and your orator is also 
 informed and believes and charges the truth to be that the said 
 C. D. has since that time transferred and assigned his said stock 
 
 to one I. K., of . , , who is now the owner thereof, and that 
 
 at the time of such transfer the said I. K. well knew that the said 
 shares of stock were not fully paid up, and assumed all liabil- 
 ity for the amount thereon remaining unpaid, (and the conclud- 
 ing paragraphs of the stating part should be as follows:) 
 
 And your orator further shows that he sold and delivered the 
 
 goods, wares and merchandise aforesaid to the said 
 
 company and performed the work aud labor and furnished the 
 
 materials aforesaid for the same to the said company 
 
 and extended credit for the same, relying upon the capital stock 
 
 issued by the said company prior to the time when the 
 
 said indebtedness was incurred and believing that the same was 
 issued in good faith and represented actual capital paid in (and 
 that your orator is informed and believes and charges the fact 
 
 to be that other creditors have given credit to the said 
 
 company, relying upon the said capital stock, and that the same 
 was issued in good faith and represented actual capital paid in, 
 and he exhibits this his bill of complaint on lais own behalf, as 
 well as on bphalf of all other creditors of the said com- 
 pany who shall elect tq come in and make themselves parties 
 hereto, upon such terms and in such manner as this court shall 
 direct). 
 
 And your orator further shows that the unpaid balance upon 
 
 the stock of the said defendant, the company, held by 
 
 the defendants, C. D., B. F., I. K., (naming all the stockholders 
 who hold stock nbt fully paid up) which balance amoupts to the 
 difference between the par value of the stock and the amount 
 actually paid in thereon, constitutes an equitable asset of the 
 
 said defendant, the company, which is liable and 
 
 should be subjected, so far as is neoessary, to the payment of the 
 
 debts qf the said company, and constitutes a trust fund 
 
 for the payment of the creditors thereof. And your orator fur- 
 ther shows and avers that this bill is not exhibited by collusion 
 
864 stage's MICHIGAN CHANGEBY PEAGTIGE AND FORMS 
 
 or agreement with the defendants hereto, or any of them, nor to 
 
 protect the propeFty and effects of the said company 
 
 or any part thereof against the claims of other creditors, but is 
 filed merely for the purpose of compelling payment of your 
 oratxjr's said judgment. 
 
 Forasmuch therefore as your orator is without remedy in 
 the premises save only in a court of equity. 
 
 I. And to the end that the said company, and 
 
 C. D. and E. F. and I. K. and (name all the stockholders before 
 mentioned) may upon their several and respective corporal 
 oaths, full, true, diTcet and perfect answer make to all and 
 singular the premises and that as fully and particularly as if 
 the same were here repeated, and they thereunto respectively 
 specifically interrogated. 
 
 II. And that the defendant, the company, may 
 
 be required to fully disclose the names and residences of all 
 persons to whom any of the capital stock thereof has been is- 
 sued prior to the day of , A. D. 19 . . , (date 
 
 when first item of indebtedness was incurred) and the number 
 of shares then held by each and the amount actually paid in by 
 
 them respectively and received by the said company 
 
 thereon. 
 
 III. That the defendants, C. D., B. F., I. K. (naming each 
 of the stockholder defendants) may respectively disclose the 
 number of shares of stock held by each of them respectively on 
 
 the said day of , A, D. 19 . . , and how much 
 
 has been paid thereon by them respectively to the said 
 
 company and in what manner such payments were made. 
 
 IV. And that an account may be taken of the amount due 
 to your orator upon the judgment afojesaid and that the de- 
 fendant, the company, be decreed to pay the same to- 
 gether with the costs of this suit to your orator forthwith. 
 
 V. And that in default of such payment an account may be 
 
 taken of all the stock issued by the said defendant, the 
 
 company, prior to the said day of , 19 . . , 
 
 and the amount actually paid in upon such stock by the stock- 
 holders respectively. 
 
 VI. And that some suitable person may be appointed by 
 this court as a receiver to receive and collect all assets of the 
 
 said company, with the usual powers and authority 
 
 of receivers. 
 
 VII. And that the said defendants, C. D., B. F., I. K., 
 (naming all the stockholders defendants) may respectively be 
 decreed to pay to such receiver the several amounts that shall 
 appear to be due from them respectively on said account, to 
 make up the full par value of the shares of stock held by them 
 
 respectively prior to the said day of , . . . , A. D. 
 
 19.., in order that the judgment aforesaid of your orator 
 
stage's MICHIGAN CHAKCEKY PBACTICE AND FOEMS 865 
 
 with the interest thereon and the costs of this suit (and the 
 claims of all other creditors who may come in and be made 
 parties hereto), may be satisfied therefrom. 
 
 VIII. And that your orator may have such further or such 
 other relief in the premises as shall be agreeable to equity and 
 good conscience. 
 
 And your orator will ever pray, etc 
 
 A. B. 
 T. Z., 
 
 Solicitor for Complainant and of Counsel. 
 (Add verification.) 
 
 BY RECEIVER. 
 (Address and introduction.) 
 
 1. That heretofore and on the day of 
 
 A. D. 19.., the (name of hank), a corporation organized and 
 existing under the laws of this state as a (commercial or sav- 
 ings) bank was, and for a long time, to-wit, years 
 
 prior thereto, had been engaged in business as a (commercial 
 
 or savings) bank in the city of , in said county of 
 
 , and that on the said last mentioned day, X. Y., Esq., 
 
 the commissioner of the banking department of the State of 
 Michigan, took possession of the books, records and assets of the 
 said bank, for the reason (state reason), and afterwards on the 
 
 day of , A. D. 19 . . , the said X. Y. as such 
 
 commissioner as aforesaid, made application to this court for 
 the appointment of a receiver for the said bank who should, 
 under the direction of this court, take possession of the books, 
 records and assets of every description Qf the said (name of 
 hank), and collect all debts, dues and claims belonging thereto, 
 and sell or compound all bad or doubtful debts, and sell all 
 the real and personal property of the said bank on such terms 
 as this court should direct, and should, if necessary to pay the 
 debts of the said (name of lank), enforce all individual liabili- 
 ties of the stockholders thereof, and to pay over all moneys so 
 collected and received to the state treasurer of this state, pur- 
 suant to the statute in such case made and provided, and that 
 
 upon such application and on the day of , 
 
 A. D. 19 . . , your orator was by this court duly appointed as 
 such receiver, and duly qualified as such receiver, as by the 
 records and files of this court in that behalf. Whereto reference 
 is prayed, fully appears. 
 
 2. And that your orator thereupon forthwith entered upon 
 his duties as such receiver, and took possession of the books, 
 records and assets of the said bank and proceeded, to collect all 
 debts, dues and claims belonging to the said bank, and has col- 
 lected all thereof that could be coliected, and has sold or com- 
 
866 stage's michiga:u chanceby pbactice and fobms 
 
 pounded all bad and doubtful debts, and has sold all the real 
 and personal property of the said bank under the direction of 
 this court, and has paid all moneys so collected and received to 
 the said state treasurer, as by the report of your orator as such 
 
 receiver, dated the day of , A. D. 19 . . , new 
 
 on file in this court, and whereto reference is prayed, fully 
 appears. 
 
 3. And that the amount of all moneys so collected and re- 
 ceived by your orator as such receiver is the sum of 
 
 dollars, and that to realize that sum he has exhausted all the 
 available assets of the said bank (save the personal liabilities 
 of the stockholders thereof), and that as appears from the books 
 and records of the said bank the amount of the indebtedness 
 
 thereof to depositors on the said day of , 
 
 (date of suspension) was the sum of dollars, and that 
 
 the expenses of collecting and disposing of the assets thereof 
 together with the reasonable compensation of your orator as 
 
 such receiver amount at the present time to the sum of 
 
 dollars, and that the amount so received by your orator as afore- 
 said is insufficient to pay the said indebtedness and expenses, 
 
 and that the amount of such deficiency is dollars and 
 
 upwards. 
 
 4. And that it appears by the records of the said bank that 
 
 the same was organized on or about the day of ....!... 
 
 A. D. 19 . . , with a capital stock of dollars, in 
 
 shares of one hundred dollars each, and that on the said 
 
 day of , A. D. 19. ., (day of suspension), the names 
 
 and residences of the stockholders thereof and the number o.f 
 shares held by each and the par value of such shares, st) far as 
 can be ascertained by your orator from the records of the said 
 bank or otherwise, are as follows: 
 
 Name. . Eesidence. Number of Shares. Par Value 
 
 C. D. Detroit, Mich. 50 $5,000. 
 
 (and so on naming each stockholder with residence, numjber of 
 shares ctnd par value sa for as known). 
 
 5. And that the amounts due to depositors of the said bank 
 on the day last mentioned, so far as can be ascertained by your 
 orator, are as follows: 
 
 Name. Residence. .^mornit. 
 
 E. F. Detroit, Mich. $500.00. 
 
 (and so on giving names and residences where known and 
 amounts due each). 
 
 6. And that in. order to pay and satisfy the amounts so due 
 and owing to tlie said depositors respectively, it is necessary 
 that the individual liability of the said stockholders respectively 
 
stage's MICHIGAN CHANCERY PEACTICB AND FOBMS 867 
 
 be enforced to the amount of ( per cent of) the par 
 
 value of the stock held by them respectively. 
 
 I. Your orator therefore prays the aid of this court that the 
 said C. D. and (name all the stockholders), the defendants hereto, 
 may, if they can show why your orator should not have the re- 
 lief hereby prayed, without oath, all answer upon oath being 
 hereby waived, full, true and perfect answer make to all and 
 singular the matters herein stated and charged. 
 
 II. And that the said defendants may be respectively decreed 
 to pay to your orator as such receiver an amount equal to 
 
 ( per cent) of the par value of the shares of stock held 
 
 by them respectively, within such reasonable time as this court 
 shall direct, to be applied to the payment of the said debts due 
 to the said depositors as aforesaid, the surplus, if any, to be re- 
 turned to them, the said defendants, pro rata, and that your 
 orator as such receiver have execution for the collection thereof 
 against said defendants respectively. 
 
 III. And that your orator may have such further or such 
 other relief as shall be agreeable to equity. 
 
 And your orator will ever pray, etc. 
 
 A. B., 
 Receiver of (name of bank). 
 J. K^ 
 
 Solicitor for Complaijiant and of Counsel. 
 
 (If any stockholder has assigned his stock before the suspen- 
 sion to an irresponsible party in order to avoid liability, insert 
 the following after paragraph 4:) and your orator further 
 
 shows that recently before the said day of , 
 
 A. D. 19 . . , (date of stispension) that is tp say on the 
 
 day of A. D. 19 . . , (d^te of assignment) the , 
 
 of shares of stock above mentioned as now standing in the name 
 of and held by N. 0. were held and owned by one, P. Q., and 
 that on the said last mentioned day the said P. Q-, well know- 
 ing that the said bank was then insolvent, and with the intent 
 to avoid his liability as a stockholder thereof, fraudulently as- 
 signed and transferred his said shares to the said N. 0., and that 
 the said N. 0. then was and still is pecuniarily, wholly irre'- 
 sponsible and has no property liable to execution within this 
 state; whereas he, the said P. Q., was and still is fully pecu- 
 niarily responsible, and your orator shows that such assignment 
 and transfer was and is fraudulent and void as to the said de- 
 positors, creditors of the said bank, and that the said P. Q. is 
 as to such creditors the owner and holder of the said last men- 
 tioned shares aud is equitably liable on account thereof. 
 
 (And in the prayer insert) and that the said P. Q. be de- 
 creed to pay to your orator an amount equal to ( per 
 
 cent of) the par value of the said shares now stand- 
 ing in the name of the said N. 0., in like manner ns if the 
 
868 STAGERS MICHIGAN CHAN OBEY PBACTICE AND FOBMa 
 
 transfer and assignment thereof to the said N. 0. bad not been 
 made. 
 
 N. B. — [Suits for this purpose have been usually instituted 
 at law. G. R. Sav. Bank v. Warren, 52 Mich., 557 and Bissel 
 V. Heath, 98 Mich., 472, but C. L., § 6135, provides in terms 
 that "such liability may be enforced in a suit at la-w or m equity 
 by any bank in process of liquidation, or by any receiver, etc. ' '] 
 
 BILL TO ENJOIN INTBRFEEBNCB BY TRADES UNIONS 
 WITH WORKMEN. 
 
 (Address.) 
 
 Complaining, your orators, A. B., C. D., and E. F., of (state 
 residence), respectfully show unto the court: 
 
 1. That your orators are co-partners in business under the 
 
 partnership name of A. B. & Co., and are, and for 
 
 years now last past have been engaged in the business of manu- 
 facturing boilers (or as the case may he), and have a manu- 
 facturing plant and factory at (state location), in the city of 
 
 , in the said county of , in this state, 
 
 and that the amount of capital invested in the said manu- 
 facturing plant and the machinery therein is upward of 
 
 dollars, and that the said business requires the Use of upwards 
 
 of dollars of working capital, and that in the conduct 
 
 of the said business your orators employ about per- 
 sons as (moldei's or as the case may ie). 
 
 2. And that prior to the day of , , 19 . . , 
 
 your orators had in their employ as (molders or as the case 
 
 may be) about men, among whom were I. K., L. M., 
 
 N. 0., P. Q. and R. S., and that on the said last mentioned day 
 the said I. K., L. M., N. 0„ P. Q., and R. S. were and still are 
 union men and members (insert here name of union) and of the 
 
 local branch thereof hereinafter named, and the other 
 
 (molders or as the case may he) then were and still are non-union 
 men, not members of the said (insert mime of union), or of any 
 branch thereof. 
 
 3. And your orators are informed and believe and charge 
 the truth to be that the said (insert name of union) is a volun- 
 tary association such as is generally known and spoken of as a 
 "Trade Union," and that the same is in existence in the State 
 of IVDchigan and in others of the United States, and that it has 
 a number of local branches and among others has a local branch 
 
 in the city of , , called local branch No , of 
 
 the (insert name), and that the names of the officers of the (in- 
 sert name), so far as your orators have been able to ascertain 
 are T. N„ president; V. W., first vice-president; X. Y., second 
 vice-president; Z. A., third vice-president and B. C, secretary; 
 
 and that the officers of the said local branch No , of 
 
 the (insert name) are, so far as your orators have been able to 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 869 
 
 leam, D. E., president ; F. G., financial secretary and H. J., re- 
 cording secretary. 
 
 4. And your orators further show that on or about the 
 
 said day of , A. D. 19.., the said Z. A., 
 
 third vice-president of the said (insert name) called upon your 
 orators at the place of business of your orators aforesaid, and 
 then desired your orators to "unionize" their shop, that is to 
 say, induce all the (name the trades) then in the employ of 
 your orators to become members of the said (insert names of 
 unions), and then and there stated to your orators that by 
 so doing they would avoid trouble, but your orators declined to 
 accede to such request. 
 
 5. Your orators further show that afterwards and on some 
 
 day prior to the day of , A. D. 19. ., your 
 
 orators employed as a (molder or as the case may he) one K. 
 L., a non-union man, who was not and is not a member of the 
 said (insert name of union), nor of any branch thereof, and the 
 said K. L. immediately entered the employ of your orators 
 as a (insert name of trade) and that thereupon the said I. K., 
 L. J\I., N. 0., P. Q. and B. S. requested, desired and required 
 your orators to discharge the said K. L. becailse he was a non- 
 union man and not a member of the said (insert natme of union) 
 or of any branch thereof, and also then requested your orators 
 to "unionize their shop," that is to say, to agree not to employ 
 any (insert name of trade) who were not members of the said 
 (insert name of union) or of some branch thereof, and then 
 threatened your orators that unless such request was complied 
 with, your ora,tors would have trouble with (insert name of 
 union) and your orators declined to accede to or grant the 
 said requests or either of them, and shortly thereafter and on 
 
 the said day of , A. D. 19 . . , the said I. K., 
 
 L... M., N. O., P. Q., and E. S., each and every one of them 
 "went on strike" and left the employ of your orators, and after- 
 wards and on the day of , A. D. 19 . . , F. G., 
 
 financial secretary of the local branch No , of the 
 
 (insert name pf union) and H. I., recording secretary thereof, 
 called upon your orators at the said place of business of your 
 orators and stated that they had come for the purpose of ad- 
 justing the trouble between your orators apd the said (mold- 
 ers, or as the case may be) who had, as aforesaid, left the em- 
 ploy of your orators on the said day of , A. 
 
 D. 19.., and urged that your orators should agree to "union- 
 ize" their said shops and not to employ any person or persons 
 as (state trade) who were not members of the said (insert 
 narne of union), and stated that in this manner all such diffi- 
 culties might be settled, but your orators declined to make any 
 Buch agreement. 
 
 6. And your orators further show that th&reupon the said 
 
870 stage's mighigan chanceby peactice and foems 
 
 (insert name of union) and its officers, T. N., V. W., X. Y., Z. 
 A., and B. C. and members, and the said local branch No. 
 
 , of the (insert name of union) and its officers D. E., 
 
 F. G., and H. J., and members, and the said I. K., L. M., N. 0., 
 P. Q., and E. S., the defendants hereto, did unlawfully com- 
 bine and conspire together to force your orators to "unionize" 
 their said shop and factory, and to employ as (insert name of 
 trade), no person or persons who were not members of the said 
 (insert name of union), and with the illegal intent and unlaw- 
 ful purpose of compelling your orators so to do, and in further- 
 ance of such unlawful combination and conspiracy, the said 
 defendants did for a long time, that is to say for a period of 
 (two months) and upwards, daily picket the premises, plant and 
 factory of your orators and linger and loiter about, on and in 
 the neighborhood of the premises of your orators, and did un- 
 lawfully threaten and intimidate the (molders, or as the case may 
 be) then in the employ of your orators, and did threaten them 
 with violence unless they left the employ of your orators and 
 refused to work longer for your orators, and did also threaten 
 with violence and intimidate other (insert name of trade), who 
 were seeking employment with your orators, all to the great 
 detriment and loss of your orators and contrary to the rights 
 of your orators to the lawful use and enjoyment of their 
 property. 
 
 7. Your orators further show that from about the 
 
 day of , A. D. 19. ., to the day of , 
 
 19 . . , because and by reason of said unlawful acts of the said 
 defendants and because of the unlawful threats and intimida- 
 tions used by the said defendants and the unlawful assaults 
 of the said defendants, or some of them, toward and upon the 
 (insert name of trade) then in the employ of your orators, it 
 became and was necessary for your orators to convey the (insert 
 name of trade), then in their employ to and from their homes 
 and to and from the premises of your orators in vans and 
 wagons, and at various intervals during said last mentioned 
 period it became and was necessary for your orators to obtain 
 the aid of the police of the said city of , for the pur- 
 pose of protecting the (molders, or as the case may be) in their 
 employ from the unlawful and illegal threats, intimidations 
 and assaults of the said defendants or of some of them. 
 
 8. Your orators further show that on the day of 
 
 , A. D. 19. ., at o'clock, in the forenoon of 
 
 that day, the said defendants and members of the said (insert ■ 
 
 name of union) and local branch No , of the (insert 
 
 name of union), to the number of did approach the 
 
 premises of your orators, and did station themselves in the 
 path of the (molders, or as the case may be) then in the employ 
 of your orators, and who were then on their way to commence 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 871 
 
 tlieir day's work in the shops of your orators, and did then 
 and there in pursuance of the said illegal combination and con- 
 spiracy to force your orators to unionize their said shops, and 
 to employ no (insert name of trade) who were not members of 
 the said (insert name of union) or of some branch thereof, with 
 great force and violence throw bricks and stones and other 
 missiles at the (insert name of trade) then in the employ of 
 your orators, and did then and there beat, bruise and otherwise 
 illtreat the said (insert name of trade), and did then and there 
 threaten to beat, smash, kill and otherwise injure the said (in- 
 sert name of trade) then in the employ of your orators should 
 they, the said (insert name of trade) continue to work for 
 your orators or continue in their employ and thereby did 
 unlawfully and forcibly compel the (insert name of trade) 
 then in the employ of your orators to cease and refrain from 
 working for them, and to leave their employ and to break the 
 contracts then existing between them and your orators. 
 
 9. And your orators further show that (state 
 
 number) of the (insert name of trade) in their employ on the 
 
 said day of , 19 • ■ > were so as aforesaid 
 
 forced and compelled by the said threats and intimidations, 
 and through fear of violence at the hands of the said defend- 
 ants and the members of the said (insert name of union), to 
 refuse to work longer for your orators and to break the con- 
 tracts then existing between them and your orators, and thus 
 your orators were illegally deprived by the said defendants of 
 their just rights in the premises. 
 
 10. And your orators further show that they are informed 
 and believe and charge the truth to be that by reason of such 
 threats and intimidations, and by reason of fear of violence 
 that the said defendants and the members of the said union 
 and local branch may offer to any person or persons seeking 
 employment (insert name of trade) with your orators, your 
 orators will be unable to obtain (insert name of trade) and will 
 be thereby unlawfully damaged by the said actions of the said 
 defendants and the members of the said union and local branch. 
 
 11. And your oratprs further show that many of the (in- 
 sert name of trade), who were so prevented from returning to 
 the employ of your orators are desirous of working for and 
 continuing in the employ of your orators, and your orators are 
 desirous of having them work for them and of having them 
 again enter in their employ, but your orators show that they, 
 the said (insert name of trade), will not again enter employ 
 or continue to work for them unless the said defendants and 
 the members of the said union and, local branch are enjoined 
 and restrained from threatening them with violence, or other- 
 wise unlawfully interfering with them should they enter or 
 attempt to enter the employ of your orators, or work or at- 
 
872 stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 
 
 tempt to work for your orators, and your orators show that 
 they are advised and verily believe that such threats and in- 
 terference constitute an unlawful interference with the just 
 rights of your orators. 
 
 12. And your orators further show that because of the said 
 unlawful and illegal combinations and conspiracy and said 
 illegal acts on the part of the said defendants and the members 
 of the said union and local branch, and all of which have been 
 done iu pursuance of the said unlawful combination and con- 
 spiracy to oblige or force your orators to "unionize" their shop 
 and to employ no (insert name of trade), who are not members 
 of the said (insert name of union) or of some branch thereof, 
 your orators have suffered great financial loss to the amount 
 of upwards of one hundred dollars and to the amount of many 
 thousands of dollars, the exact amount whereof your orators 
 cannot with certainty estimate, and your orators further show 
 that if the said defendants shall be permitted to continue such 
 acts, or acts of a similar nature, great and irreparable damage 
 will be done to the business of your orators. 
 
 I. Wherefore your orators pray the aid of tMs court that the. 
 (insert name of union) and its officers, T. N., V. W., X. Y., Z. 
 A., and B. C, and members, and the said local branch No. 
 
 , of the (insert name) and its officers, D. E., F. G., 
 
 and H. J., and members, and the said I. K., L. M., N. 0., P. Q., 
 and R. S., the defendants hereto, may without oath, all answer 
 upon oath being hereby waived, full, true, direct and perfect 
 answer make to all and singular the matters and things here- 
 inbefore stated and charged. 
 
 II. And that the combination and conspiracy of the said 
 defendants and of either or any of them for the purpose of com- 
 pelling by threats, intimidations or force, your orators to accede 
 to the demands of the said defendants, and ta harass and in- 
 timidate the employees of your orators and to interfere with 
 the free employment and free service of employees of your 
 orators, and to impede, obstruct, interfere with, or destroy the 
 regular operation and conduct of the business of your orators, 
 and to deprive your orators of the free use of their property, 
 may be decreed to be a violation of the rights of your orators 
 and contrary to the law of the land. 
 
 III. And that the said defendants, each and all of them may 
 be perpetually and forever restrained by the order and injunc- 
 tion of this court from in any manner interfering with the 
 persons now in the employ of your orators, or with any of them, 
 and from threatening, or intimidating such persons^ or any of 
 them, and from using any threat or intimidation whatever to 
 induce such persons, or any of them, to leave the employ of 
 your orators, or to cease to remain in the employment of your 
 orators, and from using any threat or intimidation whatever to 
 
stage's MICHIGAN CHANCEKY PBACTICE AND FOBMS 873 
 
 any person or persons desiring to enter the employ of your 
 orators to prevent or hinder such person or persons from 
 entering such employ, and from "picketing" the premises and 
 factory of your orators, and from interfering with or annoy- 
 ing in any manner, any of the employees of your orators or 
 any person or persons seeking employment of your orators 
 while going to or returning from the premises and factory of 
 your orators, and from interfering with or obstructing in any 
 manner the carrying on of the work and business of your 
 orators, and from doing any act or thing in furtherance of the 
 said combination, confederacy and conspiracy or otherwise to 
 compel your orators to "unionize" their said shop and factory. 
 
 IV. And that the said defendants each and all of them may 
 be in the meantime so restrained during the pendency of this 
 suit. " 
 
 V. And that your orators may have such further or other 
 relief as shall be agreeable to equity and good conscience. 
 
 (Add, if thought advisable, prayer for subpoena and prayer 
 for injunction.) 
 
 And your orators will ever pray, etc. 
 (Signature of Solicitor and Counsel.) 
 
 (Signatures) 
 (Add verification.) 
 (Attach affidavit of person knowing the facts.) 
 
 (This form should he varied according to the facts.) 
 
 BILL TO ENJOIN BOYCOTT. 
 (Address.) 
 
 Complaining, your orators, A. B., C. D., and E. F., all of. 
 the city of (state residence) respectfully show unto the court: 
 
 1. That your orators are partners doing business as whole- 
 sale dealers in (insert kind of business), in the city of , 
 
 in this state, under the firm name of A. B. & Co., and that 
 their place of business is located at (state where), in the said 
 city, and that they have, and for several years last past have 
 had, a large business established thereat, and that m carrying 
 on the said business your orators have always used and still 
 use a large number of horses, trucks and wagons (or as the 
 case may be) in carrying from the elevators, railroad car^ and 
 other places, the (insert the article) in which they are engaged 
 and dealing, to their said place of business and in delivering the 
 
 same when sold to their eaistomers, in the city of and 
 
 elsewhere. 
 
 2. And your orators have built up and established a large 
 and valuable city trade and have a large number of regular 
 customers in different parts of the said city, who make purr 
 chases almost daily of your orators of some of their said (state 
 kind of article) and who for the most part rely on your orators 
 
874 stage's MICHIGAN CHANCEEY PEACTIOB AND FORMS 
 
 to deliver the same, and that the said trade so built up and 
 established is a valuable one. 
 
 3. Your orators further show that in the month of , 
 
 A. D. 19 . . , they had in their employ six teamsters (or as the 
 case may be) named respectively G. H., I. K., L. M., N. 0., 
 P. Q„ and R. S., who had all been in the employ of your orators 
 
 for some time, and that on or about the day of said 
 
 month of , A. D. 19 . . , the above named teamsters 
 
 came together to your orators and requested to be paid higher 
 wages, and stated the amount they desired, whereupon your 
 orators enquired of them if they would be satisfied if given 
 those wages, to which the said G. H., speaking for all the said 
 six teamsters replied that they desired your orators to sign a 
 certain scale of wages and produced a written agreement 
 already prepared, whereof tlie following is a copy (insert copy 
 of proposed agreement), and then stated to your orators that 
 the same was a scale determined upon by the (insert name of 
 union), a voluntary association of which the said six teamsters 
 claimed to be members, and your orators not having examined 
 the same stated that they would examine the same and deter- 
 mine whether or not they would sign the same, and that 
 
 thereafter and on or about the day of , A. 
 
 D. 19 . . , one T. N. and one N. W. and one X. Y., claiming to 
 be a committee representing the said union, called upon your 
 orators and requested your orators to sign the said agr-eement 
 or scale, but so to do your orators declined, and thereupon the 
 said G. H., I. K., L. M., N. 0., P. Q., and R. S., left the employ 
 
 of your orators, but afterwards and on or about the 
 
 day of . . . .... ., A. D. 19. ., the said G. H., I. K., L. M., and 
 
 N. 0., returned and applied to your orators for employmeivt, 
 stating that they had withdrawn from the said (insert name 
 of union), and your orators thereupon again took the said G. 
 H., I. K., L. M., and N. 0., into their employ as teamsters. 
 
 4. And your orator further shows that soon thereafter and 
 
 on or about the day of , A. D. 19 . . , the said 
 
 T. N. and N. W. and X. Y., with a large number of other per- 
 sons to the number of , or thereabout, who were repre- 
 sented by the said T. IS', and N. W. and X. Y. to belong to the 
 said (insert name of union), and to be members thereof, or of 
 some committee thereof, whose names your orators have as yet 
 been unable to learn, appeared and assembled in the street in 
 front of your orator's said place of business, and the said 
 T. N. and N. "W., and X. Y. and others of those there so as- 
 sembled stated and declared that the purpose of them and their 
 said associates, and the purpose of the said (insert name of 
 union), was, by threats, persuasions and organized efforts and 
 by boycotting, to prevent all persons from having any business 
 relations or dealing with your orators, and to prevent any 
 
stage's MICHIGAN CHANCEET PRACTICE AND FOBMS 875 
 
 teams of customers of your orators from visiting your orators' 
 said place of business and also to prevent any teamsters from 
 continuing in or entering the employment of your orators 
 until your orators should sign the agreement called a "scale" 
 hereinbefore mentioned. And your orators are advised a^d 
 charge, that the said T. N. and N. "W. and X. Y. as represen- 
 tatives of the said (insert name of ■union), and the said (insert 
 name of union), acting through its representatives and members 
 and its committees and committee-men are unlawfully and 
 wrongfully combining, conspiring and confederating together 
 to prevent, by intimidation and threats, all persons from pat- 
 ronizing your orators, and from buying any merchandise from 
 your orators, and from visiting their said place of business for 
 business purposes, and that the said (insert name of union), 
 the said T. N. and the said N. W. and the said X. Y., and their 
 associates and confederates, whose names are at the present 
 time unknown to your orators, then began and have ever since 
 that time constantly pursued and still continue to pursue, a 
 course of persuasion and threats and intimidation toward the 
 customers of your orators, and toward all persons desirous of 
 doiDg business with your orators for the purpose by means of 
 such threats, intimidation and fear of preventing customers 
 from purchasing goods or merchandise from your orators, and 
 also to intimidate and prevent the employees of your orators 
 from continuing in their employ, and from peaceably or other- 
 wise performing their work in and about the business of your 
 orators, and your orators further show that the said T. N., N. 
 W., and X. Y., and the said (insert name of union) and its 
 
 members have, from time to time, since the day of 
 
 , 19 . . , intruded into the place of business and premises 
 
 of your orators where the men employed by your orators were 
 at work, and have solicited the said men who were peacefully 
 performing their vocations and who were satisfied to remain in 
 the employment of your orators, and have also threatened and 
 attempted to intimidate them to induce them to quit the em- 
 ployment of your orators with the purpose and intent of pre- 
 venting your orators from continuing their said business, and 
 thus to force your orators to submit to the terms proposed in 
 the said scale, and your orators are advised and charge that 
 such solicitation of the employees of your orators and such in- 
 trusion into the places where such men are to work on the 
 premises and in the place of business of your orators, consti- 
 tuted an unlawful interference with the business of your 
 orators, and that the names of the persons who have been so 
 soUeiting, threatening and intimidating the said employees of 
 your orators, and who have been guilty of such intrusion and 
 interference with the business of your orators are, except the 
 said T. N., N. W. and X. Y., unknown to youv orators. 
 
876 stage's MICHIGAN CHANCEBY PBACTICE AND F0BM8 
 
 5. Your orators further show that on the day of 
 
 , A. D. 19. ,, one Z. A., who is, as your orators are in- 
 formed and believe and charge the truth to be, president of the 
 
 executive board of the council of trades and labor 
 
 unions, and one B. C, who is, as your orators ore informed and 
 
 believe, an officer of the said council of trades and 
 
 labor unions, and is also an officer of the said (insert name of. 
 union), called upon your orators at their said place of business 
 and then and there demanded that your orators should accede 
 to and sign the said scale, and then and there threatened your 
 orators that unless your orators did accede to and sign the said 
 
 scale, that they, the said council of trades and labor 
 
 unions and the (insert name of union), their officers and mem- 
 bers^ would ruin the business of your orators, and your orators 
 aver that at this time there was no one in their employ, either 
 teamster or laborer, who was asking for any raise in their wages, 
 and that so far as known to your oratoss, all of their employees 
 w&re satisfied with the terms of their employment and are still 
 satisfied therewith. 
 
 6. Your orators further show that the said (insert name of 
 union) is an organization existing in this state, and that such 
 organization is a voluntary association, whose proceedings are 
 secret, and your orators are informed and believe and charge 
 the truth to be that the said T. N. is president of the said (in- 
 sert name of union), and that the said N. W. is the secretary 
 thereof, and that the said X. Y. is an officer thereof styled a 
 
 traveling delegate, and that the said council of trades 
 
 and labor unions is a voluntary association, whose proceedings 
 are secret, and that your orators are informed and believe and 
 charge the truth to be, that the said Z. A. is the president 
 thereof and the said B. C. is the secretary thereof. And your 
 orators show that the said last mentioned association is, through 
 its officers and members, co-operating, combining, confederating 
 and conspiring with and assisting the said (insert name of 
 union), its officers and members, in their efforts by threats and 
 intimidation to compel your orators to accede to and sign the 
 agreement and scale aforesaid, and also to prevent those of the 
 employees of your orators who are not members of the said (in- 
 sert name of union) from continuing in the employ of your 
 orators as teamsters, and also to boycott and interfere with and 
 ruin the business of your orators by driving away their cus- 
 tomers, and by the means aforesaid to prevent the public and 
 all persons whomsoever from dealing with or purchasing from 
 your orators. 
 
 7. And your orator further show that the persons who have 
 been so assembling and congregating in front of and near the 
 place of business and premises of your orators and so soliciting, 
 threatening and intimidating the customers and employes of 
 
stage's MICHIGAN CHANCBBY PRACTICE AND FOBMS 877 
 
 j'our orators and who are so guilty of the threats and intimida- 
 tions as herein set forth, and who are guilty of such intrusions 
 and interference with the business of your orators, are, with 
 the exceptions hereinbefore mentioned, unknown to your 
 orators, and are too numerous to be made parties by name to 
 this bill of complaint. But your orators show and aver that all 
 of the members of the said (insert name of union), and all of 
 
 the members of the said council of trades and labor 
 
 unions are in combination and are associated together in an 
 unlawful enterprise as aforesaid, and that your orators should 
 not be obliged to make all of the members of the said associa- 
 tions, who may from time to time be guilty of such interference 
 with the business of your orators, parties to this bill of com- 
 plaint, but that your orators should be permitted to proceed 
 
 against the said (insert name of union) and the said 
 
 council of trades and labor unions as voluntary associations, 
 and their said officers and representatives, the said T. N., N. 
 W., X. Y., Z. A. and B. C., and such other niembers of the said 
 several associations as may be known to your orators, or whose 
 names may be ascertained from time to time and who are guilty 
 of the unlawful practices herein mentioned and charged. 
 
 8. And your orators further show, as circumstances show- 
 ing the purpose and intent of the said council of 
 
 trades and labor unions and the said (insert name of union) 
 and the said T. N., N. W., X. Y., Z. A., and B. C, and other 
 members and officers of the said council and of the said union 
 who are all, as they state, combining together for the purpose 
 of ruining the business of your orators on (state facts and cir- 
 cumstances of the acts and proceeding of the_ defendants and 
 the statements made by them as fully as expedient), 
 
 9. Your orators further show that the said council 
 
 of trades and labor unions and the said (insert name of union) 
 and the said T. N., N. W., X. Y., Z. A. and B. C and of the 
 other officers and members of the said council and of the said 
 union have, in pursuance of their combination and conspiracy 
 
 aforesaid, on or about the day of , A. D. 
 
 19 . . , and on other days sjibsequent thereto, distributed and 
 
 circulated in the said city of and vicinity and other 
 
 places wherein your orators have customers a certain circular or 
 handbill whereof the following is a copy (insert copy of boycott 
 circular), and your orators show and aver that they have never 
 made any agreement with or promise to the said (insert name 
 of union) or any other person that they would employ none but 
 union men, and they further show and aver that they have not 
 discharged any union men and hired pon-union men in their 
 places (here deny untrue allegations in the boycott circular 
 categorically), 
 
 10. And youp orators further show that by reason ot the 
 
878 stage's MICHIGAN CHANCEEY PBACTICE AND FOBMS 
 
 said unlawful and wrongful acts of the said (insert name of 
 
 union), and of the said council of trades and labor 
 
 unions and of the said T. N., N. W., X. Y., Z. A. and B. C, an3 
 the other persons, officers and members of the said council and 
 of the said union, done in pursuance of the unlawful combin- 
 ation, confederacy and conspiracy aforesaid, the business and 
 trade of your orators has been and is greatly impaired, injured 
 and diminished, insomuch that whereas before the commence- 
 ment of the said unlawful and wrongful acts on the 
 
 day of • , 19 . . , aforesaid, the daily sales of merchandise 
 
 of your orators were from dollars to dollars 
 
 per day, since that time and in consequence of such unlawful 
 acts and proceedings the business of your orators has greatly 
 fallen off, insomuch that the daily sales since that time do not 
 
 exceed dollars per day, and on some days since that 
 
 time did not exceed doUars, and should the said com- 
 bination, confederacy and conspiracy and the said actions of 
 the persons above mentioned continue, your orators have 
 reason to fear and do fear, that such sales and business will 
 be still more impaired and diminished; all of which is to 
 the great injury of your orators, and your orators have thereby 
 already been injured to the amount of more than one hundred 
 
 dollars, and to the amount of more than dollars, and 
 
 should the same be permitted to continue your orators would 
 necessarily suffer a further loss to the extent of many thou- 
 sands of dollars and would suffer irremediable injury. 
 
 11. An.d your orators further show and charge the truth to 
 
 be that the said (insert name of union) and the said 
 
 council of trades and labor unions and the said T. N., N. W., 
 X. Y., Z. A. and B. C, and the officers and members of the said 
 union and of the said council, have been and still are, wilfully 
 and maliciously combining, conspiring and confederating, to-, 
 gether to intimidate and threaten persons in the employ of your 
 orators to prevent them from continuing in such employ, and. 
 also to boycott and injure and destroy the business of your 
 orators by means of intimidation of the customers, and of all 
 those persons who desire to become customers of, or to do busi- 
 ness with, your orators, and by means of the distribution of the 
 circulars or handbills aforesaid and by visiting the customers 
 of your orators and threatening such customers of your orators 
 with boycott in case they should continue to do business or 
 trade with your orators, and by gathering in threatening 
 crowds in front of and in the neighborhood of the place of 
 business and premises of your orators, and by threatening with 
 violence the employees of your orators, and generally injuring 
 your orators in their business, and interfering with and hinder- 
 ing and preventing them from carrying on the same. 
 
 12. And that from their unlawful and wrongful acts in the 
 
stack's MICHIGAN CHANCEEY PRACTICE AKD FOBMS 879 
 
 premises the constant attendance of several policemen has been 
 
 and is rendered necessary for the last past days in 
 
 order to prevent violence and to enable your orators in any 
 manner to use their teams and wagons and carry on their busi- 
 ness, and your orators charge that if the said (iiisert name of 
 
 union) and the said council of trades and labor unions 
 
 and the said T. N., N. W., X. Y., Z. A., and B. C, and the other 
 members and ofi&cers of the said union and of the said council 
 be allowed to continue in the said unlawful acts which they are 
 now committing, or allowed to interfere as they have with the 
 customers and employees of your orators, or allowed to gather 
 as they have in threatening crowds in front of and in the neigh- 
 borhood of your orators' place of business and premises, that 
 the business carried on by your orators will be seriously injuTcd 
 and the good will thereof, which is of large value, will be greatly 
 impaired and injured, if not destroyed. 
 
 I. Your orators therefore pray the said aid of this court that 
 
 the said (insert name of union) and the said council 
 
 of trades and labor unions and the said T. N., N. W., X. Y., 
 Z. A. and B. C, and their confederates when discovered, the 
 defendants hereto, may, without oath, all answer upon oath 
 being waived, full, true, direct and perfect answer make to all 
 and singular the matters hereinbefore stated and. charged. 
 
 II. And the said defendants and the members, officers and 
 agents of the said (insert name of union) and of the said 
 council of trades and labor unions, be forever re- 
 strained by the order and injunction of this court from in any 
 manner interferring with the persons now in the employ of 
 your orators or with any of them, and from in any manner in- 
 terfering with any person or persons who may desire to enter 
 the employment of your orators, by the way of threats, personal 
 violence, intimidation or other means calculated or intended to- 
 prevent such persons from entering or continuing in the ^m^ 
 ployment of your orators, or calculated or intended to induce 
 any employee of your orators to leave the employment of your 
 orators. 
 
 III. And from boycotting your orators, either by means of 
 the distribution of circulars or handbills or otherwise, 
 
 IV. And from interfering with, intimidating, boycotting, 
 molesting or threatening in any manner the customers of your 
 orators or any other person or persons, with the purpose of in- 
 ducing them or any of them not to deal or trade with or do busi- 
 ness with your orators. 
 
 V. And from congregating or loitering a,bout or in the neigh- 
 borhood of the premises of your orators or from accosting the 
 employes of your orators to interfere with the prosecution of 
 their work, or to iuterfere with or intimidate the employees of 
 your orators with intent to cause them to leave the employment 
 
880 stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 
 
 of your orators, or to interfere with or obstruct in any manner 
 the business or trade of your orators, or to prevent or induce 
 the public not to trade or deal with your orators. 
 
 VI. And from interfering with the free access of the em- 
 ployees of your orators te the premises of your orators and the 
 free return of such employees to their liomes. 
 
 VII. And from impeding, obstructing or in any manner in- 
 terfering with by boycott, threat or otherwise, the trade or cus- 
 tomers of your orators with the purpose of inducing them not 
 to patronize or deal with your orators. 
 
 VIII. And from giving any directions, orders or instruc- 
 tions to committees, members of unions, associations or other 
 persons, for the performance of any such acts, or threats here- 
 inbefore enjoined, and from in any mariner impeding, obstruct- 
 ing or interfering with the regular operation and conduct of 
 the business of your orators, and from employing or instruct- 
 ing any other, person or persons so to do. 
 
 IX. And that the said defendants may be so restrained and 
 enjoined in the meantime during the pendency of this suit. 
 
 X. And that your orators may have such further or such 
 other relief As shall be agreeable to equity and good conscience. 
 
 (And if deemed advisable, prayer for suipcBna and prayer 
 for injunction.) 
 
 And your orators will ever pray, etc. 
 
 BILL TO CARRY DEGREE INTO EXECUTION. 
 
 (Address and introduction.) 
 
 1. That heretofore and on or about the day of 
 
 , 19. ., your orator filed his bill of complaint in this 
 
 honorable court against one C. D. stating (set forth the sub- 
 stance of the stating part of the Mil here supposed to be for par- 
 tition) and praying (set forth prayer). 
 
 2. And that the said C. D. duly appeared in this court and 
 answered the said bill, and your orator filed his replication to 
 such answer and that thereafter such proceedings were had that 
 the said cause came on to be heard before this honorable court 
 
 and thereupon on the day of , 19 . . , a decree 
 
 of this honorable court was made therein that (recite decree) 
 which decree has been duly filed and enrollednn this honorable 
 court and remains of full force, not reversed nor modified in 
 whole or in part, as by the said bill, answer, replication, pro- 
 ceedings and decree now remaining of record in this honorable 
 court, and whereto reference is prayed, will fully appear. 
 
 3. And that the said decree has never been carried into 
 execution for that the tjommission thereby awarded has never 
 been issued on account of the continued absence from-this state 
 and from the jurisdiction of this court of B. F., one of the com- 
 missioners named in the said decree, but that the said E. P. has 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 881 
 
 lately now returned, and the inconvenience and grievance men- 
 tioned in the said former bill of your orator still continuing to 
 exist, your orator is desirous of having the. same forthwith car- 
 ried into execution, but the said C. D, refuses to concur therein, 
 and from th.e length of time which has elapsed and the refusal 
 of the said C. D. to concur therein, your orator is advised that 
 the same cannot be done without the assistance of this honorable 
 court. 
 Your orator therefore prays: 
 
 I. Tha;t the said C, D., the defendant to this bill, may, with- 
 out oath, all answer on oath being hereby waived, full, true, 
 direct and perfect answer make to dll g,nd singular the matters 
 in this bill stated and charged.. 
 
 II. And that the said decree may be directed to be forthwith 
 carried specifically into execution; and that the said C. D. may 
 be ordered to do and concur in all things necessary for that 
 purpose. 
 
 III. Apd that your orator may have such further or such 
 other relief as shdll be agreeable to equity and good conscience. 
 
 And your orator will ever pray, etc. 
 
 (Signature.) 
 Signature of Solicitor and Counsel. 
 
 (Add verification.) 
 
 CLAUSE IN BILL STATING GROUND FOR NE EXEAT. 
 And youi; orator further shows that the said defendant, C. 
 D., is now thre'atening and intending to leave the jurisdiction 
 of this court and to leave the State of Michigan,, and your 
 orator has reason to fear and does fear that unless restrained 
 from so doing by the writ of ne exeat reipuWicae the said de- 
 fendant, C. D., will forthwith and before this cause can be 
 brought to hearing go out of g,nd leave and remain out of the 
 State of Hichigan, and go out of and remain beyond the jur- 
 isdiction of this court, and that should he do so your orator 
 will be without remedy, for the reason, (state reason in full). 
 
 ALLOWANCE OF WRIT OF NB EXEAT BY CIRCUIT 
 JUDGE ENDORSED ON BILL. 
 
 Let e writ of ne exeat reipuMkd-e issue, in this cause against 
 the defendant, CD., ancj let the said writ be marked in the 
 
 sum of dollars, apd an grder entered to that effect. 
 
 ) 
 
 Circuit Judge. 
 
882 stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 
 
 BY CIRCUIT COURT COMMISSIONER. 
 (Title of court and cause.) 
 (Caption.) 
 
 On reading and filing the bill of complaint in this cause and 
 the affidavits thereto annexed, and on motion of , solic- 
 itor for the complainant: It is ordered that a writ of ne exeat 
 reipuhlicae issue in this cause against the defendant, C. D., and 
 that the said writ be marked in the sum of dollars. 
 
 Circuit Court Commisisoner, 
 County, Michigan. 
 
 AFFIDAVIT ANNEXED TO BILL FOR NE EXEAT. 
 State of Michigan, { 
 County of j ^*- 
 
 of the of , in the county of 
 
 and state of , being duly sworn, says that he 
 
 has read (or heard read) the annexed bill of complaint and 
 knows the contents thereof, and that he is familiar with all the 
 material matters stated in the said bill and has actual knowledge 
 thereof and that from such knowledge he knows that the matters 
 of fact therein stated are true, and this deponent further says 
 that he has no interest whatever in the event of the suit, com- 
 menced by the filing of the said bill. 
 
 (Jurat.) 
 
 WRIT OF NE EXEAT. 
 
 In the name of the people of the State of Michigan: 
 L. S. 
 
 To the Sheriff of the County of , Greeting : 
 
 "Whereas it is represented to us in our Circuit Court for the 
 county of : In Chancery, on the part of A. B., com- 
 plainant, against C. D., defendant, among other things that the 
 said C. D., defendant, (state the grounds on which the writ is 
 issued), and that the said defendant, C. D., designs quickly to 
 go into parts without this state which tends to the great prejudice 
 and damage of the. said complainant : Therefore, in order to pre- 
 vent this injustice, we hereby command you that you do without 
 delay cause the said defendant, C. D., personally to come before 
 
 you and give sufficient bail and security in the sum of 
 
 dollars, that he, the said C. D., will not go, nor attempt to go, 
 into parts without our State of Michigan, without leave of our 
 said court. 
 
 And in case the said C. D. shall refuse or neglect to give such 
 bail or security, then you are hereby commanded to arrest the 
 said C. D. and commit him to the common jail of your county, 
 
stage's MICHIGAN OHANCEEY PEACTICB AND POEMS 883 
 
 there to be kept in safe custody until he shall give such bail and 
 security, and when you have taken such bail and security you 
 are forthwith to make and return a certificate thereof to us in 
 
 our said Circuit Court for the county of : In Chancery, 
 
 distinctly and plainly under your hand together with this writ. 
 
 Witness the Hon judge of our said Circuit Court 
 
 for the county of : In Chancery, and the seal of the 
 
 said court, this day of , in the year of our 
 
 Lord one thousand nine hundred and 
 
 J 
 
 Register in Chancery. 
 
 BOND TO SHERIFF ON NE EXEAT. 
 
 Know all men by these presents : That we, C. D., of (state 
 residence) as principal, and E. F. and G. H., of the same place 
 as sureties, are held and firmly bound unto I. K., sheriff of the 
 
 county of ,in the State of Michigan, in the sum of 
 
 dollars, to be paid to the said I. K., sheriff as afore- 
 said or to his assigns. For which payment well and truly to be 
 made we bind ourselves, our heirs, executors and administrators, 
 jointly and severally, firmly by these presents^ 
 
 Sealed with our seals and dated this day of , 
 
 A. D. 19... 
 
 Whereas, the above bounden C. D. has been arrested upon a 
 virrit of ne exeat reipublicae, issued out of and under the seal of 
 
 the Circuit Court for the county of : In Chancery, in 
 
 a certain cause therein pending, wherein A. B. is complainant 
 and the said C. D. is defendant, and the said C. D. is now in 
 custody of the said sheriff by virtue thereof. 
 
 Now, therefore, the condition of this obligation is such that if 
 the said C. D. shall not depart from or leave this state without 
 the permission of the said Circuit Court for the county of 
 
 : In Chancery, then this obligation to be void ; otherwise 
 
 to remain in full force and virtue. 
 
 C. D. L. S. 
 
 B. F. L. S. 
 
 G. H. L. S. 
 
 BOND TO OBTAIN DISCHARGE OF NE EXEAT. 
 
 Know all men by these presents : That we, C. D., of (state 
 residence) as principal, and E. F. and G. H. of (state residence), 
 as sureties, are held and firmly bound unto A. B., of (state res- 
 idence), in the sum of dollars to be paid to the said A. 
 
 B., or his legal representatives. For which payment well and 
 truly to be made we bind ourselves, our heirs, executors and ad- 
 ministrators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, dated this day of ,., 
 
 A. D. 19. .. 
 
884 stage's MICHIGAN CHANCEKY PRACTICE AlfD FOEMS 
 
 Whereas, the above bounden C .D. has been arrested upon a 
 writ of ne exeat reipublicae, issued out of and under the seal of 
 
 the Circuit Court for the county of : In Chancery, in a 
 
 certain cause therein pending wherein the said A. B. is complain- 
 ant and the said C. D. is defendant : 
 
 Now, therefore, the condition of this obligation is such that if 
 the said C. D. shall cause his appearance to be entered in the said 
 suit, and shall at all times render himself amenable to the pro- 
 cess of the said court during the pendency of the said suit, and 
 to such process as may be issued to compel a performance of the 
 final decree therein, then this obligation to be void, otherwise to 
 remain in full force and virtue. 
 
 (L. S.) 
 (L. S.) 
 (L. S.) 
 
 ORDER TO SHOW CAUSE ON PETITION. 
 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this cause, on reading and filing the petition duly verified 
 of A. B., the above named complainant {or, defendant, as the 
 case may he; if affidavits are appended add, and the aflSdavits of 
 G. H. and J. K. thereto appended^, and on motion of N. 0., 
 Esq., of counsel for the said petitioner, it is ordered that K. D., 
 the above named (defendant, or complainant, as the case may 
 
 ie), appear before this court on the day of , 
 
 A. D. 19. ., at the opening of the court on that day {or, at 
 
 o'clock in the noon of that day) and show 
 
 cause why the prayer of the said petition should not be granted. 
 
 And it is further ordered that a certified copy of this order, 
 together with a copy of the said petition (if affidavits are ap- 
 pended add, and copies of the said affidavits) be served upon 
 the said defendant (or, complainant, as the case may ie), at 
 least days before the time above specified for his ap- 
 pearance to show cause as aforesaid. 
 
 Circuit Judge. 
 
 ON MOTION. 
 (Title of court.) 
 (Caption.) 
 (Title of cause.) 
 
 In this cause, B. 0., Esq., of counsel for the above named 
 (complainant), having made and entered a motion that (state 
 substance of motion) on reading the affidavits of A, B. and G. 
 H., on file in support of the said motion, it is ordered that C. D., 
 the above named (defendant), appear before this court on the 
 
stage's MICHIGAN CHANCEEY PEACTICE AKD FOBMS 885 
 
 day of , A. D. 19. ., at o'clock in 
 
 the noon of that day {or, at the opening of the court on 
 
 that day) and show cause, if any there be, why the said motion 
 should not be granted. 
 
 And it is further ordered that a certified copy of this order 
 and a copy of the said motion and copies of the said affidavits 
 be served upon the said (defendant) at least days be- 
 fore the time above specified to show cause as aforesaid. 
 
 Circuit Judge. 
 
 ORDER DIRECTING AN ISSUE OP FACT TO BE TRIED 
 
 BY JURY. 
 (Title of court.) 
 (Title of cause.) 
 (Caption.) 
 
 This cause came on to be heard upon pleadings and proofs 
 taken therein and the court having heard the arguments of coun- 
 sel for thfi respective parties: It is ordered that the following 
 issues of fact be made and tried at the next term of the Circuit 
 
 Court for the county of , or as soon thereafter as the 
 
 same can be brought on for trial, by a jury for that purpose to 
 be empanneled and sworn ; that is to say : 
 
 1. (e. g.) Was the deed of conveyance mentioned in the 
 biU otf complaint (describe it) obtained by fraud of the defend- 
 ant? 
 
 2. (State any question to he tried by the jury, if more than 
 one state each question distinctly). 
 
 [ ss.: 
 
 WRIT OF EXECUTION. 
 State of Michigan, 
 County of 
 
 In the Name of the People of the State of Michigan. 
 To the Sheriff of the County of , Greeting : 
 
 Whereas, on the day of , in the year , one 
 
 thousand nine hundred and , by a certain decree (or, 
 
 order) made in the Circuit Court for the county ol : 
 
 In Chancery, in a certain cause then pending in the said court, 
 wherein A. B. is complainant and C. D. is defendant, it was 
 among other things ordered, adjudged and decreed (or, ordered) 
 that the said defendant, C. D., should pay to the said complain- 
 ant, A. B., the su;n of dollars, besides the costs of the 
 
 said suit to be taxed, as by the said decree remaining of record 
 in the said court doth fully appear ; and whereas, the said costs 
 
 have been duly taxed in the said court at the sum of 
 
 dollars (or, should pay to the said complainant, A B., the sum 
 
 of dollars, being the amount of costs mentioned in the 
 
 said order as taxed in the said court, as by the said order re- 
 
886 stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 
 
 maining of record in the said court doth fully appear) ; and 
 whereas, the said defendant, C. D., hath neglected to pay the 
 same or any part thereof: Now, therefore, in order that fuU 
 and speedy justice may be done in the premises, you are hereby 
 commanded that of the goods and chattels and, for want thereof, 
 of the lands and tenements of the said defendant, C. D., in your 
 
 county you cause to be made the said sum of dollars so 
 
 decreed to be paid to the said A, B. as aforesaid, and also the 
 sum of dollars for his costs so decreed to him as afore- 
 said, with interest thereon at the rate of per cent per 
 
 annum from the (insert the day the decree or order was dock- 
 eted). And have, you those moneys before the said court on the 
 
 day of , A. D. 19. ., to render to the said A. B. 
 
 according to the decree (or order) aforesaid, and have you then 
 there this writ; 
 
 Hereof fail not but of this writ, with a certificate of the man- 
 ner in which you have executed the same, make due return. 
 
 Witness the Hon , Circuit judge and the seal of the 
 
 said court at the courthouse in the of 
 
 in said county of , this 
 
 (L. S.) day of , in the year one thou- 
 sand nine hundred and 
 
 Register in Chancery. 
 Solicitor for Complainant. 
 
 FILING TO BE ENDORSED. ON PAPERS 
 BEFORE FILING. 
 No. (Insert court official number.) 
 
 The Circuit Court for the County of : 
 
 In Chancery. 
 A. B., Complainant, 
 
 (if more than one coniplainant state), 
 A. B., et al Complaiuants, 
 
 V. 
 
 CD. 
 
 (or C. D. et al. as the case may ie), Defendant, 
 (or Defendants.) 
 Bill of Complaint 
 
 (or Answer or Demurrer or Petition or as the case may 
 
 be describing the paper), 
 (At the foot insert) 
 
 Solicitor for Complainant, 
 
 (or Defendant as the case may ie.) 
 
stage's MICHIGAN CHANCEBY PRACTICE AND EOEMS 887 
 
 APPENDIX. 
 
 Chancery Rules. 
 Rule 1. 
 
 (a) Suits in chancery shall be commenced by bills of 
 complaint, setting forth the facts relied on, the names of 
 the defendants therein, the relief desired, and shall be 
 addressed to the court, and signed by the complainant, or 
 his agent or solicitor. 
 
 (b) Every bill of complaint shall be divided into para- 
 graphs numbered consecutively, and each paragraph shall 
 contain, as near as may be, a separate and distinct allega- 
 tion. The prayer of every bill of complaint shall also 
 be divided into paragraphs numbered consecutively, and 
 shall specify the particular relief which the complainant 
 shall conceive himself entitled to, and may also contain a 
 prayer for general relief. 
 
 (c) The prayer for process heretofore common in a 
 bill of complaint may be omitted, and the complainant 
 shall be entitled to the process of subpoena on the filing 
 of the bill of complaint, and to other process when ordered 
 by competent authority. 
 
 (d) A bill of complaint which shall not comply with 
 the rule in respect to paragraphs shall be stricken from 
 the files on motion, unless the court shall deem it proper 
 to allow amendments thereto to cure the defect. 
 
 Rule 2. 
 
 (a) Sworn bills may be verified by the oath of the 
 complainant, or in case of his absence from the state, or 
 other sufficient cause shown, by the oath of his agent, 
 attorney or solicitor. 
 
 (b) In bills which are to be verified by the oath of the 
 party, the several matters stated shall be stated posi- 
 tively, or upon information or belief only, according to 
 the fact. The oath administered to the party shall be, in 
 substance, that he has read the bill, or has heard it read, 
 and knows the contents thereof and that the same is true 
 of his own knowledge except as to the matters which are 
 
888 stage's MICHIGAN CHANCEEY PEACTIOE AND FOEMS 
 
 therein stated to be on his information and belief, and as 
 to those matters he believes it to be true; and the sub- 
 stance of the oath shall be stated in the jurat. 
 
 (c) The bill may be sworn to before any officer author- 
 ized by the law of this state to administer oaths or take 
 affidavits. It may also be sworn to before any notary 
 public or other person authorized by the laws of any 
 state or territory to administer oaths ; but if sworn to in 
 any other state or territory, there shall be added the 
 certificate of the clerk of some court of record of the 
 county, under the seal thereof, showing the official char- 
 acter of the person administering the oath and the 
 genuineness of his signature. The bill may be sworn to 
 in any foreign country before any minister or other diplo- 
 matic agent or consul of the United States, or any notary 
 public; but the certificate of such notary shall be made 
 under his notarial seal. 
 
 Rule 3. 
 
 In all cases where the complainant is not a resident of 
 this state, before process shall issue, a bond in the penal 
 sum of one hundred dollars, with one or more sufficient 
 sureties, shall be filed with the register, to be approved 
 by him, conditioned to pay all such costs as shall be de- 
 creed against the complainant in such case; or there shall 
 be endorsed on the bill a general undertaking, by one or 
 more responsible sureties, to pay all costs for which the 
 complainant may become liable, and the register shall en- 
 dorse his approval of such surety or sureties 
 
 Rule 4. 
 
 (a) All process, unless otherwise directed, shall be 
 made returnable on a day certain (except Sunday) either 
 in vacation or in term, not less than ten days from the 
 issuing thereof; and if process is not executed on or 
 before the return day, further process may be taken out 
 of course, as often as may be necessary. 
 
 (b) The names of all the defendants in a cause shall 
 be inserted in the subpoena. It may be served by deliv- 
 
stage's' MICHIGAN CHANCEEY PEAGTICE AND FOEMS 889 
 
 ering a copy of the writ subscribed by the complainant, 
 his solicitor, or the officer or person serving the same, 
 and inscribed "copy" and showing the original under 
 seal of the court, at the time of such delivery to the de- 
 fendant. The service may be on or before the return day 
 mentioned in the subpoena. 
 
 (c) The subpoena in a suit in chancery shall notify 
 the defendant that a bill of complaint has been filed 
 against him by the complainant {naming him), and that if 
 he desires to defend the same he is required to cause his 
 appearance to be filed or entered in the cause, in accord- 
 ance with the rules and practice of the court, in person 
 or by solicitor, within fifteen days after the service of 
 the subpoena upon him, and the return day thereof shall 
 be indicated at the foot of the subpoena, and there shall 
 be an underwriting designating against what defendant, 
 if any, a personal decree is asked. The business address 
 of the complainant's solicitor shall appear upon the 
 subpoena. 
 
 (d) The form of the subpoena may be as fallows : 
 
 State of Michigan. 
 The Circuit Court of the County of : In Chancery. 
 
 In the Name of the People of the State of Michigan. 
 To 
 
 Greeting: You are hereby notified that a bill of complaint 
 has been filed against you in the Circuit Court for the county 
 
 of , in Chancery, by , as complainant, and that 
 
 if you desire to defend the same, you are required to have your 
 appearance filed or entered in the cause, in accordance with the 
 rules and practice of the court, in person or by solicitor, within 
 fifteen days after the service of this subpoena upon. you. Hereof 
 fail not, under the penalty of having said bill taken as confessed 
 against you. 
 
 The return dav of this writ is the day of , 
 
 A.D. 19... 
 
 Witness, the Honorable , circuit judge, at the 
 
 , this day of , A. D. i9. . 
 
 Underwriting: A personal decree is sought against the de- 
 fendants and , , and the bill is filed to reach 
 
 interests in property, and not to obtain any further relief against 
 
 the remainder of the defendants. , 
 
 Solicitor for Complainant. 
 
 Business address 
 
890 stage's MICHIGAN CHANCEBY PBACTICE ANP FOBMS 
 
 Rule 5. 
 
 (a) A defendant desiring to defend a cause, or to have 
 notice of the proceedings therein, shall cause notice of his 
 appearance to be filed or entered in the office of the regis- 
 ter of the court within fifteen days after service of the 
 subpoena upon him, and within the same time shall serve 
 notice of such appearance upon the complainant's solici- 
 tor. Such appearance, whether followed by answer or 
 not, shall entitle him to notice of all future proceedings 
 in the cause. 
 
 (b) Such notice of appearance shall be entitled in the 
 cause and addressed to the complainant's solicitor, and 
 may be in substance as follows : 
 
 Take notice, that the defendant , hereby appears 
 
 in the above entitled cause and demands a copy of the bill of 
 complaint therein. 
 
 Dated, 
 
 Yours, etc., 
 
 Solicitor for said Defendant. 
 Business address : 
 
 (c) The complainant shall cause a copy of the bill of 
 complaint to be served on the solicitor so appearing, with- 
 in fifteen days after receiving the notice and demand 
 above mentioned. (But he shall not be required to serve 
 more than one copy of the bill upon any one solicitor, 
 although such solicitor may appear at different times for 
 more than one defendant, and in such case service of a 
 copy of the bill shall be deemed to have been made on the 
 fifteenth day after receiving a subsequent notice of 
 appearance.) 
 
 (d) The defendant shall file his demurrer, plea or 
 answer to the bill of complaint within fifteen days after 
 receiving a copy of the bill of complaint. 
 
 Ride 6. 
 
 The circuit judge (or a Circuit Court commissioner, in 
 the absence of the judge of the court from the county, or 
 in case of his inability) for a good cause shown, on spec- 
 
stage's MICHIGAN CHAKCEKY PEACTICE AND FOEMS 891 
 
 ial motion, after notice to the opposite party, may extend 
 the time for putting in or serving any pleading, or for 
 taking any other step which is required by the rules to 
 be taken within a limited time. 
 
 Rule 7. 
 
 (a) If either party shall make default in flHng or 
 serving any pleading or notice, within the time limited 
 by these rules, or the special order of the court in the 
 cause, the opjxjsite party may have the default entered 
 in the common order book, or filed, in vacation or in 
 term time. 
 
 (b) If the defendant has failed to appear or to plead, 
 answer or demur, the complainant may enter or file an 
 order taking the bill of complaint as confessed, and re- 
 ferring the cause to a commiasloiier or to the court for 
 proofs. 
 
 (c) If the complainant has faile.d to serve a copy of 
 the bill of complaint, the defendant may, on filing an 
 affidavit of the service of the required notice, and show- 
 ing the complainant's neglect, enter or file an order dis- 
 missing the bill of complaint. 
 
 (d) Any prder entered under these rules may be set 
 aside on special motion, for cause shown., in the discre- 
 tion of the court, on such terms as may be deemed just 
 and proper. But to entitle a defendant to an order set- 
 ting aside his default for want of appearance or answer, 
 he shall proffer a sworn answer showing a defense on 
 the merits as to the whole or a part of the complainan.t's 
 case. And in cases where personal service shall have 
 been made upon a defendant, and proceedings taken after 
 default on the strength thereof, his default shall not be 
 set aside unless the application shall be made within six 
 months after such default is regularly entered- And in 
 any case where personal service shall have been made 
 upon a defendant an order setting aside his default shall 
 be conditioned upon his payment to the complainant of 
 the taxable costs incurred in reliance on said default, and 
 the court may impose such other conditions as sh3,ll be 
 deemed proper. 
 
892 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 Rule 8. 
 
 (a) No ptea shall be allowed to be filed to any bill 
 unless upon a certificate of counsel that in his opinion it 
 is well founded in point of law, and supported by the 
 affidavit of the defendant that it is not interposed for 
 delay merely, and that he knows or has good reason to 
 believe it to be true in point of fact. 
 
 (b) The defendant may plead to the whole or any 
 part of the bill, but in every case in which the bill spe- 
 cially charges fraud or combination, g, plea to such part 
 must be supported by an answer explicitly denying the 
 fraud and combination and the several facts on which 
 the charge is founded. 
 
 (c) The complainant may set down the plea to be 
 argued, or he may take issue on the plea, and in default 
 of the complainant taking any action within twenty days 
 the defendant shall be entitled as of course to a decree, 
 dismissing the bill or so much thereof as is covered by 
 the plea, unless the court allow defendant (quere com- 
 plainant) further time for the purpose. 
 
 (d) If upon the argument, the plea is overruled, the 
 defendant shall be required to answer within such time 
 as the court, shall deem reasonable, and if the defendant 
 make default, the bill, or so much thereof as the plea 
 covered, shall be taken pro confesso, and the matter 
 thereof proceeded in and decreed accordingly. 
 
 (e) • If, upon the argument, the plea is allowed, com- 
 plainant may, within ten days after notice of such allow- 
 ance, take issue upon the plea on payment of the costs 
 of hearing thereon, unless he shall, within such ten days, 
 move for leave to amend the bill, on which motion the 
 court may allow such amendment on such terms as it may 
 deem reasonable. Within ten days after the determina- 
 tion of such motion for leave to amend, the claimant 
 (quere complainant) may take issue on the plea upon the 
 terms above provided. In default of such motion for 
 leave to amend or In case such leave is denied, and in 
 default of taki^lg issue on the plea, the bill, or so much 
 thereof as is covered by the plea, shall be dismissed. 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOEMS 893 
 
 (f ) If, upon an issue, the facts stated in a plea be de- 
 termined for the defendant, they shall avail Mm as far 
 as in law and equity they ought to avail him ; if the facts 
 are determined for the complainant, the effect shall be 
 the same as though the bill or so much thereof as is cov- 
 ered by the plea was taken pro confess©. 
 
 (g) No plea shall be held bad and overruled upon 
 argument only because it Shall not cover so much of the 
 bill as it might by law have extended to. 
 
 (h) No plea shall be held bad and overruled upon 
 argument only because the answer of the defendant may 
 extend to the same matter as may be covered by such 
 plea. 
 
 Rule 9. 
 
 (a) The form of a demurrer may be as follows : 
 
 The defendant says that the complainant has not stated 
 such a case in his bill as entitles him to relief in, a court of 
 equity for the following reasons: {adding briefly but 
 plainly the special reasons in matters of substance in a 
 general demurrer, as well as matters of form in a spe- 
 cial demurrer). 
 
 (b) If any pleading shall be adjudged bad for any 
 cause which is not plainly specified in the demurrer, the 
 party pleading shall be allowed to amend without costs. 
 
 (c) To every demurrer there shall be added the in- 
 dividual certificate of counsel having principal charge of 
 the cause in behalf of the party filing the demurrer, to 
 the effect that the demurrer is not interposed for delay 
 and that in his opinion it is well founded, And a demur- 
 rer not aqcompanied with such a eertiificate shall be 
 stricken fnom the files on motion, unless the court shall 
 deem it propei* to allow the certificate to be added. 
 
 (d) A joinder in demurrer shall not be necessary, and 
 either party paay g,t once notice a demurrer for argument 
 at the next term of court Such notice shall be served at 
 least ten days befpre the first day qf suph term. But if 
 the cause is not in readiness for hearing in time to so 
 notice it, it may be noticed for a subsequent day in term, 
 
894 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMB 
 
 not less than ten days after such notice, and placed at 
 the foot of the calendar. 
 
 (e) If the demurrer be overruled, the court shall, on 
 such terms and conditions as are reasonable, permit the 
 defendant to answer, and if the demurrer be sustained 
 the court shall likewise permit the complainant to amend 
 the bill. 
 
 Rule 10. 
 
 (a) Whenever in a cause a sworn bill of complaint is 
 filed and a sworn answer demanded, the defendant shall 
 be required to file such sworn answer. But neither a 
 sworn bill nor a sworn answer shall have the force of evi- 
 dence except as to admissions, and except on the hearing 
 of motions and petitions. Provided, however, that when 
 a cause is heard on bill and answer, the allegations of 
 the answer shall be taken as true. 
 
 (b) An answer may be sworn to before the persons 
 and in the matter specified in the rule governing verifica- 
 tion of bills of complaint. 
 
 (c) An answer shall be divided into paragraphs, num- 
 bered consecutively, .and each paragraph shall contain 
 as near as may be a seperate and distinct allegation, ad- 
 mission or denial. An answer not complying with this 
 rule shall be stricken from the files on motion, unless 
 the jcourt shall deem it proper to allow amendments 
 thereto to cure the defect. 
 
 (d) Every answer shall contain an explicit admission 
 or denial of each allegation in the bill of complaint as to 
 which the defendant has knowledge or belief. But as to 
 matters charged in the bill 9,3 to which the defendant 
 avers he has no knowledge sufiicient to form a belief, he 
 shall not be required to admit or deny the same, but shall 
 state his want of such knowledge. And every material 
 allegation in the bill to which the defendant shall not 
 make answer shall be taken as admitted by the defendant. 
 
 (e) An answer shall be signed by the defendant, or 
 by his agent or solicitor. 
 
 (f ) All objections to an answer heretofore raised by 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 895 
 
 exceptions shall be disposed of by the court on special 
 motion. 
 
 Rule 11. 
 
 (a) In any case in equity where a defendant shall 
 claim from the coniplainant any relief which, according 
 to th-e established course and practice of courts of chan- 
 cery, might be had by cross-bill, such defendant shall be 
 at liberty by his answer to present the facts upon which 
 his equity rests, and to claim by such answer the benefit 
 of a cross-bill, and the court shall have power to give 
 relief upon snch answer to the same extent that it might 
 have given it had a cross-bill been filed. But if the cause 
 be such that, if a cross-bill had been filed, the practice 
 of the court would have required it to be sworn to, the 
 answer claiming such relief shall be under oath, not- 
 withstanding an oath thereto may be waived by the bUl. 
 
 (b) In such case the defendant shall first answer the 
 allegations of the bill in accordance with the foregoing 
 rule, before entering upon an allegation of additional 
 matters upon which he shall claim affirmative relief. 
 And his allegations of additional matters and his prayer 
 for affirmative relief shall comply with the rule govern- 
 ing the form of bills of complaint. 
 
 (c) The complainant shall, within fifteen days after 
 service of such answer in the nature of a cross-bill, file 
 and serve a demurrer, plea or answer to the matters 
 therein contained upon which the defendant prays affirm- 
 ative relief, which pleading and the practice thereon shall 
 comply with the rules governing similar pleadings. But 
 the defendant shall not be required to file a replication 
 to any such plea or answer. 
 
 Ride 12. 
 
 (a) The complainant shall file a replication to the 
 defendant's answer within fifteen days after service of 
 such answer. Otherwise the cause shall stand for hear- 
 ing on such bill and answer, unless the time for filing a 
 replication shall be extended. 
 
896 stage's MICHIGAN CHAIfCEBY PEACTICE AND FOBMS 
 
 (b) The form of replication may be in substance as 
 follows : 
 
 "The complainant says that, notwithstanding the an- 
 swer of the defendant, he is entitled to the relief prayed 
 in his bill of complaint." 
 
 (c) A special replication shall not be filed except by 
 leave of the court, for cause shown, on motion. 
 
 Rule 13. 
 
 (a) Every cause shall be deemed at issue of fact or of 
 law on filing a plea or demurrer, or on filing a replication 
 to the answer, or in a case where an answer in the nature 
 of a cross-bill is filed, when a replication and a demurrer, 
 plea or answer is filed to such answer in the nature of 
 a cross-bill. 
 
 (b) If there be more than one defendant the cause 
 shall be deemed at issue when replications have been filed 
 to all answers filed, and when an order pro confesso has 
 been filed or entered as to all those defendants who have 
 not answered, or when the cause is discontinued or dis- 
 missed as to such defendants. 
 
 Rule 14. 
 
 (a) In causes where there are more than one defend- 
 ant the complainant shall, when the cause is at issue, 
 serve upon the solicitors for such defendant or defend- 
 ants who have appeared and answered, and whose an- 
 swers have been replied to, a notice that such cause is at 
 issue, or the solicitor for any defendant may serve like 
 notice upon the complainant and the other defendants 
 who have appeared, and the time for either party to give 
 notice of intention to claim the right to examine witnesses 
 in open court shall commence from the time such notice 
 is served. In cases where the notice of such intention is 
 given by a defendant he shall serve the same upon the 
 solicitors of all co-defendants who have answered, as 
 well as upon the complainant's solicitor. Proof of ser- 
 vice of such notice shall be filed with the register in 
 chancery. 
 
stage's MICHIGAN CHANCEBY PRACTICE AND FOBMS 897 
 
 (b) If either party shall elect to have the testimony 
 taken in open court, under the statute, and the cause is 
 at issue as to all parties, the cause may thereafter be 
 noticed for trial and hearing in open court by either 
 party. Such notice may be countermanded in the same 
 manner and with like effect as a notice of trial in an action 
 at law. 
 
 (c) If neither party so elects, the testimony shall, 
 without further order, be taken before a Circuit Court 
 commissioner, unless the parties shall stipulate to take it 
 before some other person authorized to administer oaths. 
 The complainant shall put in his testimony in chief within 
 thirty days after the time limited by law for electing to 
 take the proofs in open court ; the defendant shall put in 
 his testimony within forty days thereafter ; and the com- 
 plainant shall have ten days thereafter in which to put 
 in his rebutting testimony. At least four days' notice 
 shall be given by each party of the time and place of 
 taking such testimony. Each party shall pay in the first 
 instance the fees for taking down and transcribing his 
 own examinations or cross-examinations. 
 
 (d) The time for taking testimony may, on motion, 
 for cause shown, be extended. But the party making ap- 
 plication for such extension shall be required to show 
 under oath the specific character of the testimony desired. 
 
 (e) Process of subpoena to compel the attendance of 
 witnesses before a commissioner shall issue of course, 
 and the time and place of attendance shall be specified in 
 the writ; and such witnesses may be punished by the 
 court as for contempt if they fail to attend and submit 
 to examination. But no witness shall be compelled to 
 appear before a commissioner more than one hundred 
 miles from his place of residence, unless by special order 
 of the court. 
 
 (f) The testimony shall be taken, as near as prac- 
 ticable, in the manner provided by statute for the taking 
 of depositions, and the commissioner may adjourn the 
 same from day to day as may be deemed proper. 
 
 (g) Within five days after the testimony shall be con- 
 cluded, the commissioner, on being applied to for that 
 
898 stage's MICHIGAN CHANCEEy PBACTICB AND FOEMS 
 
 purpose by either party, shall cause the testimony and 
 exhibits taken or produced before him to be returned 
 and filed with the register of the court. 
 
 (h) At the expiration of the time for taking testi- 
 mony, the testimony shall be considered closed without 
 order, and either party may thereupon notice the cause 
 for hearing at the next term of court. Such notice shall 
 be given at least ten days before the first day of the next 
 term. But if the cause is not in readiness for hearing 
 in time to so notice it, it may be noticed for a subsequent 
 day in term, not less than ten days after such notice, and 
 placed at the foot of the calendar. 
 
 (i) If the complainant shall fail to take any testi- 
 mony within the forty days above specified, or within the 
 time allowed him by extension, the defendant may notice 
 the cause for hearing on pleadings. 
 
 Rule 15. 
 
 (a) The following rules governing practice in cases 
 at law shall apply also to practice in chancery causes so 
 far as the same are not inapplicable, viz : 
 
 Rule 11, relative to common and special orders and 
 rules. 
 
 Rule 16, relative to the filing of notes of issue. 
 
 Rule 18, relative to the making of a term calendar. 
 
 Rule 19, relative to motions and petitions. 
 
 Rule 20, relative to stay of proceedings to make mo- 
 tions. 
 
 Rule 22., relative to motions for continuance. 
 
 Rule 23, relative to genuineness of documents. 
 
 Rule 25, relative to the court requiring parties to 
 testify. 
 
 Rules 28, 29, 30, 31, 32 and 34, relative to the manner 
 of the service of papers. 
 
 Rule 35, relative to when service required. 
 
 Rule 36, relative to how time computed on service of 
 papers. 
 
 Rule 37, relative to entitling papers, etc. 
 
 Rule 38, relative to the court files. 
 
stage's MICHIGAN- CHANCEBY PEACTICE AND FOKMS 899 
 
 Eule 39, relative to agreements to be in writing. 
 
 Rule 40, relative to affidavit of genuineness of accept- 
 ance of service^ 
 
 Rule 41, relative to depositions. 
 
 Rule 43^ relative to compelling return of process. 
 
 Rules 50 to 57 inclusive, relative to discovery of books 
 and papers. 
 
 (b) In interpreting said rules in chancery causes, 
 wherever the word "attorney" is used, the word "solici- 
 tor" shall be substituted, and wherever the word "plain- 
 tiff" is used, the word "complainant" shall be substi- 
 tuted, and in like manner othqr words conamonly used in 
 chancery causes, as distinguished from cases at law, shall 
 be substituted in interpreting said rules. 
 
 Ride 16. 
 
 (a) The complainant may amend his bill, if it is not 
 required to be sworn to, at any time before a plea, answer 
 or demurrer is put in, without leave of court, and without 
 costs. 
 
 (b) He may also amend his bill, without leave of 
 court and without costs, at any time within fifteen days 
 after answer is filed, if by the amendment a new or fur- 
 ther answer is not rendered necessary. 
 
 (c) The complainant may also amend, without leave 
 of court, a bill required to be sworn to, in like manner as 
 bills not required to be sworn to, if the amendments are 
 merely in addition to and not inconsistent with what is 
 contained in the original bill. But such amendments 
 shall be verified by oath. 
 
 (d) If the defendant demurs to the bill for want of 
 parties, or for any other defect -w^hich does not go to the 
 equity of the whole bijl, the complainant may amend of 
 course, without costs, at any time before the demurrer is 
 noticed for argument, or within ten darys after receiving 
 a copy of the deinurrer. 
 
 (e) I,f a plea or demurrer to the bill be overruled, the 
 complainant may, within ten days thereafter, amend his 
 bill without leave of court and without costs. 
 
900 stage's MICHIGAN CHANCBEY PRACTICE AND FOEMS 
 
 (f ) After an answer is pnt in, it may be amended with- 
 out leave of court in any matter or form, or by filling up 
 a blank, or correcting a date or reference to a document, 
 and may be re-sworn, at any time before a replication is 
 put in, or the cause is set down for a hearing upon bill 
 and answer. 
 
 (g) But, after replication, or such setting down for 
 a hearing, it shall not be amended in any material mat- 
 ters, as by adding new facts or defenses, or qualifying 
 or altering the original statements, except by leave of 
 the court, upon cause shown, after due notice to the ad- 
 verse party. 
 
 Rule 17. 
 
 (a) No rule or order need be entered on the filing of 
 amendments which are authorized without leave of court. 
 
 (b) In every case of amendment, without leave of 
 court, the party making it shall either file a new engross- 
 ment of the pleading or an engrossed or printed copy of 
 the amendment, containing proper references to the pages 
 and lines in the original pleading on file, where such 
 amendments are to .be inserted or made. 
 
 (c) No amendment shall be considered as made until 
 the same is served on the adverse party if he has ap- 
 peared in the cause. 
 
 (d) If at the time the complainant amends his bill, 
 without leave of court, the answer has not been filed, or 
 if a further answer is necessary, the defendant shall have 
 the same time to answer after such amendment as he 
 originally had. 
 
 Rule 18. 
 
 (a) All parties accounting before a commissioner 
 shall bring in their accounts iu the form of debtor and 
 creditor; and any of the other parties who shall not be 
 satisfied with the accounts so brought in shall be at lib- 
 erty to examine the accounting party upon interroga- 
 tories, as the commissioner may direct. On any reference 
 to take or state an account, the commissioner shall be at 
 
stage's MICHIGAN CHANCEBY PEACTICB AND FOEMS 901 
 
 liberty to allow interest as shall be just and equitable, 
 without any special direction for that purpose unless a 
 contrary direction is contained in the order of reference. 
 And every charge, discharge, or state of facts brought 
 in before a commissioner shall be verified by oath as 
 true, either positively or upon information and belief, 
 (b) It shall be the duty of every such Circuit Court 
 commissioner to procure and keep in his office a register, 
 which shall be delivered over to his successor in office, in 
 which he shall make any order and a complete memoran- 
 dum of his doings therein. And every commissioner shall 
 file with the register of the court all orders made by him, 
 together with all papers on which the same are based, 
 immediately upon the making of such order. 
 
 Rule 19. 
 
 (a) In all matters referred to a commissioner, he 
 shall be at liberty, upon the application of any party in- 
 terested, to make a separate report or reports, from time 
 to time, as he shall deem expedient; the costs of such 
 separate reports to be in the discretion of the court. And 
 where the commissioner shall make a separate report of 
 debts or legacies, he shall be at liberty to make such cer- 
 tificate as he thinks fit, with respect to the state of assets ; 
 and any person interested shall thereupon be at liberty 
 to apply to the court as he shall be advised. 
 
 (b) After the report is filed either party may file or 
 enter an order of course to confirm the same, unless 
 cause to the contrary thereof be shown in eight days 
 after notice of its being filed; and if no exceptions are 
 filed and served within that time, the order shall become 
 absolute of course, without further order; or either party 
 may file exceptions, and have an order of course to con- 
 firm the report, so far as the same is not excepted to, 
 and with the like effect. 
 
 (c) If either party shall file exceptions to a commis- 
 sioner's report, such exceptions shall be determined by 
 the court on motion of either party, and the costs thereon 
 shall be in the discretion of the court. 
 
902 stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 
 
 Rule 20. 
 
 (a) Any person conceiving himself aggrieved by an 
 order made by any Circuit Court commissioner, in any 
 suit in chancery, may appeal therefrom to the Circuit 
 Court of the county in which such suit is pending : Pro- 
 vided, (1) that such appeal shall be claimed and entered 
 within fifteen days from the time of making such order; 
 and (2) that the appellant shall, within that time, execute 
 a bond to the appellee in such penal sum, not less than 
 $100, as the commissioner shall prescribe, with sufficient 
 surety, to be approved by the commissioner, conditioned 
 to pay, satisfy and perform the order which by the Cir- 
 cuit Court may be made in the premises, and to pay all 
 costs in case the order appealed from shall be affirmed. 
 But no such appeal shall operate as a stay of proceed- 
 ings, unless a special order to that effect shall be made 
 by the circuit judge or by such Circuit Court commis- 
 sioner, on proper cause shown. 
 
 (b) The appeal bond mentioned in the preceding rule 
 shall be filed with the Circuit Court commissioner ap- 
 proving the same, and shall be returned with the appeal 
 papers. 
 
 (c) It shall be the duty of the appellant under these 
 rules to file with the Circuit Court commissioner, within 
 the time above limited for claiming and entering his ap- 
 peal, his reasons for such appeal. Whereupon it shall 
 be the duty of such commissioner, within twenty days 
 thereafter, to transmit to the clerk of the Circuit Court 
 said bond and all papers upon which the motion or pro- 
 ceeding may have been founded or which may have been 
 used on such motion or proceeding, unless already so 
 filed, certified by him, or in case the original pleadings 
 or files shall have been used, he shall certify such fact 
 to the court, with a description of the original papers so 
 used. 
 
 Rule 21. 
 
 The general powers conferred upon commissioners are 
 hereby restricted in the following particulars : 
 
stage's MICHIGAN CHANCEEY PBACTICE AND FORMS 903 
 
 1. No Circuit Court commissioner shall be empowered 
 to vacate any order or decree of the Circuit Court, or 
 any order made by a circuit judge. 
 
 2. Nor shall he grant any injunction to stay pro- 
 ceedings at law unless reasonable notice of the time and 
 place of hearing the application therefor shall have been 
 previously given to the adverse party. 
 
 3. Nor shall he grant injunction without such notice 
 in any case, unless the judge of the Circuit Court in which 
 the application is made shall be absent from the county 
 at the time of such application, or is disqualified from 
 granting an injunction in the cause, or unless, in the 
 opinion of such commissioner, the peculiar exigencies of 
 the case require it for manifest reasons to be shown by 
 affidavit of the facts and circumstginces. 
 
 4. Nor shall he grant any injunction restraining the 
 execution or performance of any public improvement, nor 
 to compel a defendant to refrain from doing any act 
 where the injunction will necessarily produce great and 
 irreparable injury to the defendant, if the claim of the 
 complainant is not sustained. Nor shall he grant any in- 
 junction in any case where no special provision is made 
 by law for security, except where the injunction prayed 
 for is against a judgment debtor who is made defendant 
 in a creditor's bill, unless the officer granting the same 
 shall take from the complainant or his agent a bond to 
 the party enjoined, in such sum as shall be deemed suffi- 
 cient, and in not less than $500, with sufficient surety or 
 sureties, to be approved of by the officer allowing the in- 
 junction, conditioned to pay the party enjoined such 
 damages as he may sustain by reason of the injunction, 
 if the court shall eventually decide that the complainant 
 was not equitably entitled to such injunction, such dam- 
 ages to be ascertained by a reference to a Circuit Court 
 commissioner, or by the court having jurisdiction of the 
 cause in which the injunction issued, as such court shall 
 direct. Such officer allowing the injunction shall, before 
 the register shall issue the writ, file such bond with such 
 register in chancery, who shall carefully preserve the 
 same for the benefit of the obligee therein named. 
 
904 stage's MICHIGAN CHANCEEY PEACTICE AND FOBMS 
 
 Rule 22. 
 
 The following costs shall be allowed to the prevailing 
 parties, viz: 
 
 In all cases determined by final decree on pleadings and 
 proofs, thirty dollars. 
 
 In all cases determined by final decree on bill and an- 
 swer, plea or demurrer, twenty dollars. 
 
 In all cases where the decree is taken on the bill as 
 confessed, or where the bill is voluntarily dismissed by 
 complainant after appearance and before the cause is at 
 issue, fifteen dollars. 
 
 Upon all special motions, such sum, not exceeding ten 
 dollars, as the court shall deem just. When a bill is dis- 
 missed for default at the hearing, or for wapt of prosecu- 
 tion, or voluntarily by the complainant, after the same 
 is at issue, the defendant shall be entitled to the same 
 costs as if the cause had been heard. 
 
 When the bill is dismissed upon payment of the claim 
 or performance of the relief sought before decree, the 
 complainant shall be entitled to the same costs as if the 
 case had been heard. If such payment or performance 
 is made before plea, demurrer or answer, the costs shall 
 be as on bill taken pro confesso ; if after any pleading is 
 put in and before proofs, they shall be as on a hearing 
 upon pleadings; and if proofs are taken, the costs shall 
 be as on a hearing upon pleadings and, proofs. 
 
 In divorce cases the costs shall be under the direction 
 of the court. 
 
 Where there are several defendants entitled to costs, 
 the CQsts granted by this rule shall be apportioned among 
 them as the court may deem proper. 
 
 Rule. 23. 
 
 The register of the court shall have power to tax the 
 costs in a cause, including his own fees therein, subject 
 to re-taxation by the court on motion of either party. 
 But on such re-taxation, no affidavit or objection which 
 was not presented to the register shall be heard or al- 
 lowed. 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FORMS 905 
 
 Rule 24. 
 
 (a) No process shall be issued or other proceedings 
 had on any final decree, to enforce the same, until the 
 same is duly enrolled pursuant to statute. 
 
 (b) The register shall include in such enrollment, all 
 papers filed in the cause. 
 
 (c) If the decree authorizes the sale of real estate, 
 notice of such sale may be given in advance of such en- 
 rollment, but no conveyance shall be executed by a com- 
 missioner or other officer on such sale until such enroll- 
 ment is had. 
 
 Rule 25. 
 
 (a) A petition for a rehearing shall state the special 
 matter or cause on which such rehearing is applied for, 
 and the particular points in which the decree or order is 
 alleged to be erroneous, but it shall not be necessary to 
 state the proceedings anterior to siich decree or order 
 sought to be reversed; and the facts, if they do not ap- 
 pear from the records of the court, shall be verified by 
 affidavit of the party, or of some other person. It shall 
 also be accompanied by the certificate of two counsel 
 that they have examined the case, aild that in their opin- 
 ion the decree or order is erroneous in the particulars 
 mentioned in the petition. And a copy of the petition, 
 with usual notice of presenting the same, shall be served 
 on the adverse party, but the. rehearing shall not be 
 considered as a matter of course in any case. 
 
 (b) If a rehearing is granted, the petitioner shall lose 
 the benefit thereof, unless he shall, within ten days there- 
 after, deposit with the register fifty dollars, to answer 
 the costs and damages of the adverse party, if the decree 
 or order shall not be materially varied. 
 
 Rule 26. 
 
 It shall not be necessary, in any bill of revivor or 
 supplemental bill, to set forth any of the statements in 
 the original suit, unless the special circumstances of the 
 case require it. 
 
906 stage's MICHIGAN CHANCEBY PEACTICB AND FOBMS 
 
 Rule 27. 
 
 On filing a bill of review, or other bill in the nature of 
 a bill of review, the complainant shall make the like 
 deposit, or give security to the adverse party in the same 
 amount which is or would be required on an appeal from 
 an order or decree complained of ; and no such bill shall 
 be filed,, either upon the discovery of new matters, or 
 otherwise, without special leave of the court first ob- 
 tained, nor unless the same is brought within the time 
 allowed for bringing an appeal, except upon newly-dis- 
 covered facts or evidence, unless upon reasons satisfac- 
 tory to the court. 
 
 Rule 28. 
 
 (a) In a bill for foreclosure or satisfaction of a mort- 
 gage, it shall not be necessary to set out at large the 
 rights and interests of the several defendants, who are 
 purchasers of, or who have liens on, the equity of re- 
 demption in the mortgaged premises, subsequent to the 
 registry or recording of complainant's, mortgage, and 
 who claim no right in opposition thereto ; but it shall be 
 sufficient for the complainant, aft^r setting out his own 
 right and interest in the premises, to state generally that 
 such defendaijts have or claim some interest in the 
 premises, as subsequent purchasers or incumbrancers, 
 or otherwise. 
 
 (b) If a bill to foreclose a mortgage is taken as con- 
 fessed, or the right of the complainant, as stated in his 
 bill, is admitted by the answer, he may have an order of 
 course, referring it to a cpmmissioner , to compute the 
 amount due to the complainant, and to such of the de- 
 fendants as are prior incumbrancers of the mortgaged 
 premises. 
 
 (c) If the defendant is an infant, and has put in a 
 general answer by his guardian, ox any of the defendants 
 are absentees and have not been personally served, the 
 complainant may have a similar order .of course, referring 
 it ±0 a Gonjmissioner to take proof of the facts and .cir- 
 cumstances stated in the complainant's bill, and to com- 
 
stage's MICHIGAN CHANCEBY PEACTICE AND FOEMS 907 
 
 pute the amoimt due on the mortgage, preparatory to 
 the hearing of the cause. But every such cause shall be 
 regularly brought to hearing at term after the coming in 
 of the commissioner's report, before a final decree is 
 entered therein. 
 
 (d) If the bill has been taken as cornfessed, the com- 
 plainant shall show to the court, at the hearing, by affi- 
 davit, that the proceedings to take the bill as confessed 
 have been regular, according to the rules and practice of 
 the court, and whether the bill has been taken as con- 
 fessed against all of the defendants upon service of 
 subpoena, or after an appearance, or whether some of 
 them have been proceeded agaijist as absentees. 
 
 (e) Sales under decrees of foreclosure shall not be 
 ordered on less than six full weeks or forty-two days' 
 notice, and publication shall not commence until the time 
 fixed by decree for payment h.as expired, nor within six 
 months after commencement of suit. 
 
 (f ) On the coming in and confirmation of the com- 
 missioner's report of the sale of mortgaged premises, if 
 it shall appear there is any surplus money remaining in 
 court after satisfying the amount due the complainant, 
 any defendant, upon filing an affidavit that such surplus 
 has been paid into court, and that he is entitled to the 
 same, or some part thereof, may have an order of course, 
 referring it to a commissioner to ascertain and report 
 the amount due to such defendants, or to any other per- 
 son, and which is a lien upon such surplus moneys ; and 
 to ascertain the priorities of the several liens thereon, 
 to the end that on the coming in and confirmation of the 
 report, such further order and decree may be made for 
 the distribution of surplus moneys as may be just; and 
 every defendant who has appeared in the cause, and 
 every person who has left a written notice of his claim 
 to such surplus moneys with the register, with whom the 
 same are deposited, shall be entitled to notice to attend 
 the commissioner on such reference. And any person 
 making a claim to such surplus moneys, and who shall 
 fail to establish his claim on the hearing before the com- 
 missioner, may be charged with such costs as the other 
 
908 stage's MICHIGAN CHANCEBY PEACTICE AND FOBMS 
 
 parties have been subjected to by reason of such claim; 
 and the parties succeeding on such reference may be al- 
 lowed such costs as by the court may be deemed reason- 
 able ; but no costs unnecessarily incurred on such refer- 
 ence, or previous thereto, by any of the parties, shall be 
 allowed on taxation or paid out of such surplus. 
 
 Rule 29. 
 
 (a) All bills for the purpose of obtaining divorce, 
 whether the husband or wife is complainant, -shall be 
 duly verified by oath, in the usual manner of verifying 
 bills, where, by the course and practice of the court, an 
 oath is required. In a bill for a divorce on the ground 
 of adultery, the complainant must also positively aver 
 that the adultery charged in the bill was committed with- 
 out the consent, connivance, privity or procurement of 
 the complainant ; and that the complainant has not volun- 
 tarily cohabited with the defendant since the discovery 
 of such adultery. And in all such bills, and in all bills 
 for divorce upon any ground, the complainant shall also 
 positively aver that the act done or cause charged in the 
 bill for which divorce is sought was committed without 
 the consent, connivance, privity or procurement of the 
 complainant, and that such bill is not founded on or ex- 
 hibited in consequence of any ooUusion, agreement or un- 
 derstanding whatever between the parties thereto, or 
 between the complainant and any other person. 
 
 (b) If any such bill is taken as confessed, or the facts 
 charged therein are admitted by the answer, the com- 
 plainant may have an order of course entered or filed for 
 reference to a commissioner, to take proof of all the 
 material facts charged in the bill, and to report such 
 proof to the court, with his opinion thereon. 
 
 (c) If such bill is taken as confessed, the complainant 
 shall show to the court by affidavit whether or not the 
 defendant was personally served with process or order 
 of app6arq,njce, and that the proceedings to take the bill 
 as confessed have been regular according to the rules 
 and practice of the court. 
 
stack's MICHIGAN CHANCEBY PBACTICE AND FORMS 909 
 
 (d) No sentence or decree of nullity declariiig void a 
 marriage contract, or decree for a divorce, or for a 
 separate or limited divorce, shall be made of course by 
 the default of the defendant; or in consequence of anj^ 
 neglect to appear at the hearing of the cause, or by con- 
 sent. And every such cause shall be heard after the trial 
 of the issue, or upon the coming in of the commissioner's 
 report, at a stated term of the court. 
 
 RiUe 30. 
 
 (a) A creditor's bill, to reach equitable interests of a 
 debtor, shall show the true sum actually and equitably 
 due the complainant on his judgment or decree, over and 
 above all just claims of the debtor by way of set-off or 
 otherwise, and that the debtor has equitable interests, 
 exceeding one hundred dollars in value, which the com- 
 plainant is unable to reach by execution, which has been 
 duly issued and returned unsatisfied, and that the bill is 
 not exhibited by collusion with the defendant, or for the 
 purpose of protecting thQ property or effects of the debtor 
 against the claims of other creditors, but for the sole pur- 
 pose of compelling payment and satisfaction of the com- 
 plainant's own debt. 
 
 (b) When the complainant in such creditor's bill shall 
 have a right by statute to a discovery and disclosure of 
 facts from the defendant, the defendant shall in his an- 
 swer fully and explicitly set forth the particular facts 
 called for. If he fail so to do, the complainant may have 
 his right to a further answer and disclosure determined 
 by the court on special motion, and the court may en- 
 force its order thereon by the attachment of the defend- 
 ant, and may strike such insufficient answer from the files. 
 
 (c) Every such creditor's bill shall be verified as pro- 
 vided by rule. 
 
 (d) The proceedings in such a suit shall, except as 
 otherwise provided by rule or statute, be governed by the 
 general cha.ncery rules, and the court may appoint a 
 receiver therein pending the determination of the suit, 
 wheja it shall be deemed necessary for the protection of 
 the rights of the complainajit. 
 
9l0 STACfE's MICSlGAlf CHANCEBY PBACtlCfi AND FOEMS 
 
 Rule 31. 
 
 (a) Every receiver of the property and effects of the 
 debtor, appointed in a suit upon a creditor's bill, shall, 
 unless restricted by the special order of the court, have 
 general power and authority to sue for and collect all 
 the debts, demands and rents belonging to such debtor, 
 and to compromise and settle such as are unsafe and of 
 a doubtful character. He may also sue in the name of 
 the debtor, where it is necessary or proper for him to 
 do so, and he may apply for and obtain an order of course 
 that the tenants of any real estate belonging to the debtor, 
 or of which he is entitled to the rents and profits, attorn 
 to such receiver and pay their rents to him. He shall also 
 be permitted to make leases from time to time as may 
 be necessary, for terms not exceeding one year. And it 
 shall be his duty, without unreasonable delay, to convert 
 all the personal estate and effects into money; but he 
 shall not sell any real estate to the debtor without the 
 special order of the court. He is not to be allowed for 
 the costs of any suit brought by him against an insolvent 
 from whom, he is unable to collect his costs, unless such 
 suit is brought by order of the court, or by the consent 
 of all persons interested in the funds in his hands. But 
 he may sell such desperate debts, and all other doubtful 
 claims to personal property, at public auction, giving at 
 least ten days ' notice of the time and place of such sale. 
 
 (b) Where several bills are filed by different creditors 
 against the same debtor, no more than one receiver of 
 his property and effects shall be appointed, unless the 
 first appointment has been obtained by fraud or collu- 
 sion, or unless the receiver is an improper person to exe- 
 cute the trust. The receiver shall give security sufficient 
 to cover the whole property and effects of the debtor 
 which may come into his hands by virtue of his office ; 
 and he shaU hold such property and effects for the benefit 
 of all creditors who have commenced, or shall commence, 
 similar suits, during the continuance of his trust, to be 
 disposed of according to their legal or equitable priori- 
 ties. He shall not pay over the funds in his hands to the 
 
stage's MICHIGAN CHANCEKY PBACTICE ANl) FOKMS 911 
 
 parties, or to any other person, without being specially 
 authorized to do so by an order or decree of the court; 
 nor shall he be discharged from his trust without special 
 order, to be obtained upon a written consent of all the 
 parties interested in the property in his hands, or upon 
 notice of the application. 
 
 (c) When another suit is commenced after the ap- 
 pointment of a receiver the same person may be appointed 
 receiver of such subsequent suit, and shall give such fur- 
 ther security as the court shall direct. He shall keep a 
 separate account of any property or effects of the debtor 
 which may have been acquired since the commencement 
 of the first suit, or which may be assigned to such re- 
 ceiver under the appointment in the last cause. 
 
 Rule 32. 
 
 (a) The accounts of the register with the banks in 
 which the moneys are directed to be deposited shall be 
 kept in such a manner that in the cash books of the banks, 
 and in the bank books of the register, it shall appear in 
 what particular suit, or on what account, the several items 
 of money credited or charged were deposited or paid out. 
 
 (b) Orders upon the banks for the payment of moneys 
 out of court shall be made payable to the order of the 
 person entitled thereto, or of his solicitor or his attorney 
 duly authorized, and shall specify in what particular suit, 
 or on what account, the money is to be paid out, and.'the 
 time when the decree or order authorizing such payment 
 was made. 
 
 Rule 33.. 
 
 No guardian ad litem for an infant defendant, or next 
 friend of an infant complainant, unless he has given 
 security to the infant according to law, shall, as such 
 guardian, receive any money or property belonging to 
 such infant, or which may be awarded to him in the suit, 
 except such costs and expenses as may be allowed by the 
 court to the guardian out of the fund or received by the 
 infant in the suit. Neither shall the general guardian of 
 
912 stage's MICHIGAN CHANCEBY PBACTICE AND FOBMS 
 
 an infant receive any part of the proceeds of the sale of 
 real property belonging to such infant, sold under a de- 
 cree or order of the court, until the guardian has given 
 such further security for the faithful discharge of his 
 trust as the court may direct. 
 
 Rule 34. 
 
 Whenever the complainant in a chancery suit, wherein 
 the right is under existing rules of law and equity assign^ 
 able, shall have transferred his interest in the subject- 
 matter of the litigation, either voluntarily or by process 
 of law, the suit shall not thereby be abated, but the trans- 
 feree may present his petition to the court in which said 
 suit is pending, setting up the fact of such transfer, and 
 asking to be substituted as complainant in said suit. The 
 facts, if they do not appear from the records of the court, 
 shall be verified by the affidavit of the party or some other 
 person. If at the hearing it appear to the court that such 
 transfer has been made, an order shall be made substi- 
 tuting the transferee as complainant in said suit, and 
 said suit shall continue for the benefit of said transferee 
 as though no transfer had been made. A copy of the 
 petition and affidavits, with the usual notice of presenting 
 the same, shall be served on the defendant or his solicitor ; 
 and in making such order the court may, in its discretion, 
 require the transferee to file security for costs. 
 
 Rule 35. 
 
 In cases where no provision is made by statute or by 
 these rules, the proceedings of this court shall be accord- 
 ing to the customary practice as it has heretofore existed 
 in cases not provided for by statute or the written rules 
 of the court. 
 
 Rule 36. 
 
 These rules shall take effect January 1st, 1897, as to all 
 causes commenced on or after that date, and also as to 
 any cause commenced previous to that date, so far as con- 
 cerns proceedings therein subsequent to the date when the 
 
stage's MICHIGAN CHAN OBEY PRACTICE AND FOBMS 913 
 
 same shall be at issue. All rules not herein contained are 
 hereby repealed, except as above provided. 
 
 Rule 37. 
 
 (a) In all causes and proceedings in chancery after 
 final order or decree where the testimony shall have been 
 taken by a stenographer in open court, or by deposition, 
 or before a Circuit Court commissioner, or in any other 
 manner, any party shall be entitled to make and settle 
 a case setting forth the substance of all the evidence 
 taken or read at the hearing, and such case when so made, 
 settled and filed, shall be deemed and held to be the evi- 
 dence therein for all purposes of review on appeal to the 
 Supreme Court. 
 
 (b) The person or party desiring to appeal to the 
 Supreme Court shall, within sixty days after service upon 
 him or his solicitor of record, of written notice of the 
 filing and entry of the final order or decree sought to be 
 appealed from, serve upon the adverse party, or his 
 solicitor of record, a copy of the proposed case on appeal 
 together with the original copies of such exhibits, papers, 
 writings or documents as he shall desire to incorporate 
 into said case on appeal and also such portions of the 
 stenographer's minutes of the testimony taken in open 
 court as shall have been procured by him, for the inspec- 
 tion and use by such adverse party in the preparation of 
 amendments to the said proposed case on appeal; Pro- 
 vided, said party so seeking to appeal, on application be- 
 ing made to the judge who heard said cause or proceed- 
 ings, or in his absence or disability, then, to such other 
 judge as may be authorized by the provisions of this rule 
 to act in any matter in connection with settling cases for 
 review on appeal, may be required to furnish a copy of 
 such further portions of the stenographer's minutes of 
 the testimony taken in open court and the originals or 
 copies of all other exhibits, depositions, papers, writings 
 or documents used in evidence on the hearing and in his 
 possession as shall be deemed necessary by guch judge to 
 the settlement of said case. 
 
914 stage's MICHIGAN CHANCERY PEACTICE AND FOEMS 
 
 (c) Within thirty days after such service upon him or 
 his solicitor of record, said adverse party, or his solicitor 
 of record shall cause to be served upon the party so seek- 
 ing to appeal, or his solicitor of record, a copy of such 
 amendments as he proposes to the case on appeal pro- 
 posed by the party seeking to appeal and also the origi- 
 nals or copies of such exhibits, depositions, papers, writ- 
 ings or documents used in evidence on the hearing and in 
 his possession as he desires to have incorporated in the 
 case on appeal and shall accompany said amendments 
 and exhibits and papers aforesaid with all of the stenog- 
 rapher's minutes previously served upon him, together 
 with such other exhibits, papers, documents, or writings, 
 if any, as shall have been served upon him, and shall like- 
 wise serve upon said party seeking to appeal or his 
 solicitor of record, a notice that the said case on appeal 
 as proposed and the said proposed amendments thereto 
 will be presented to the judge who heard said cause or 
 proceedings, or in case of his absence or disability, then 
 to such other judge as may be authorized to adt in any 
 matter in connection with the settling of cases for review 
 on appeal, either in open court OT at chambers as the case 
 may be, and to be specified in said notice at some date, 
 not less than four or more than six days from the date 
 of the service of said proposed amendments arid papers 
 in connection therewith. 
 
 (d) The jtidge before whom the settlement of said 
 case on appeal shall have been noticed shall, at the time 
 specified in said notice, or at such other time as he shall 
 fix or shall be agreed upon in open court, or by the writ- 
 ten stipulation of the parties, proceed to consider the 
 matter and to settle and sign said case on appeal : Pro- 
 vided, not more than one year from the date of the filing 
 and entry of the final order or decree sought to be ap- 
 pealed from, shall in any case be allowed to take all the 
 steps, do all the acts and perform all things required to 
 be taken, done and performed in and about the making, 
 settling, signing and filing of the case on appeal. 
 
 (e) In case of the failure of the adverse party to pre- 
 pare and serve his amendments to the proposed ease on 
 
stage's MICHIGAN CHANCERY PBAGTICB AND FOEMS 915 
 
 appeal together with the exhibits and other papers re- 
 quired by this rule to be served in connection therewith, 
 the judge who heard said cause or proceeding, or in the 
 event of his absence or disability, then any other judge 
 authorized to act in any matter in connection with the 
 settling of cases for review on appeal as provided by 
 this rule, upon its being made to appear by affidavit, or 
 otherwise, to his satisfaction that due service of the 
 papers required to be served by the party or his solicitor 
 of record, and that all steps required by this rule to be 
 taken by the party so seeking to appeal have been so taken 
 by him within the time required, and of the expiration of 
 the time herein limited for the service of the proposed 
 amendments by said adverse party, shall certify and 
 settle the case in the manner and form as proposed by 
 the party seeking to appeal as the case on appeal therein. 
 
 (f) It shall, however, in all cases be lawful for the 
 parties, or their solicitor, to agree upon a statement of 
 the facts without procuring the stenographer's minutes 
 of the testimony taken at the trial and in case of such 
 agreement, and if satisfactory to him, the judge who 
 heard said cause or proceedings or any other judge with 
 authority in the premises by virtue of this rule, shall sign 
 and certify to such statement, and such statement so 
 signed and certified, shall stand as the case for review 
 on appeal to the Supreme Court in such cause, 
 
 (g) Whenever the judge who heard said cause or pro- 
 ceeding shall die, resign or vacate the office before the 
 expiration of his term, or whenever such judge shall be 
 unable to settle such evidence by reason of sickness, ab- 
 sence from the state or for any other cause whatsoever 
 within the time prescribed by this rule, such evidence may 
 be settled by any other Judge of the court presided over 
 by the judge who heard said cause or proceeding and 
 in case there shall be no such other judge of such court, 
 or in case of his or their absence or disability from any 
 cause, then such evidence may be settled by any circuit 
 judge of an adjoining circuit. 
 
 (h) The judge who heard such cause or proceeding, 
 or any other circuit judge holding court within the judicial 
 
916 stage's MICHIGAN CHANCBEY PBACTICE AND FOEMS 
 
 district and duly qualified to preside over the court where 
 such cause or proceeding was heard, may grant an ex- 
 tension or extensions of the time for making, settling, 
 signing and filing such case on appeal for such a period in 
 addition to the time hereinbefore allowed as shall not 
 make the whole time in which to settle said case exceed 
 one year from and after the filing and entry of the final 
 order or decree sought to be appealed from, but such 
 extensions shall only be granted upon cause shown and 
 due notice to the adverse party or his solicitor of rec- 
 ord, of the hearing of the application therefor. 
 
 LAW RULES MADE APPLICABLE TO CHANCERY. 
 
 Ride 11. 
 
 (a) Every rule to which a party would, according to 
 the practice of the court, be entitled of course, without 
 showing special cause, shall be denominated a common 
 rule ; and every other rule shall be denominated a special 
 rille. All common rules and all rules by consent of parties 
 shall be entered with the clerk at his ofifioe in a book to be 
 provided by him for that purpose, to be called "common- 
 rule book," and may be entered at any time, as well in 
 vacation as during term ; and the day when the rule shall 
 be entered shall be noted therein, and the party may 
 enter such rule as he may conceive himself entitled to, 
 of course, but at his peril. 
 
 (b) Except as required by statute, such rules may be 
 filed with the clerk with the like effect as if entered as 
 above provided.. 
 
 (c) All orders, made by the direction of the court, 
 shall be entered in the record of the proceedings of the 
 court, and all orders made by the judge at chambers shall 
 be signed by the judge and filed in the cause. 
 
 Rule 16. 
 
 (a) The party noticing a cause for trial shall, at least 
 twelve days before the first day of the term, file with the 
 clerk a note of issue, giving the title of the cause, the 
 
stage's MICHIGAN CHANCEEY PRACTICE AND FOKMS 917 
 
 names of the attorneys, the date of joining issue or of 
 filing appeal, and the cause of action. If a jury has pre- 
 viously been demanded the same shall also appear in the 
 note of issue-. Provided, that, in the court's discretion, 
 for cause shown, the court may, not later than the first 
 day of the term, add to the term calendar a cause which 
 has been regularly noticed for trial, although a note of 
 issue was not filed. And in appeal causes, the note of 
 issue shall be filed eight days before the first day of the 
 term. 
 
 Rule 18. 
 
 (a) Previous to each term, the clerk shall prepare a 
 calendar of causes for the term. The same shall be made 
 up in the following order: 1. Criminal cases. 2. Jury 
 civil cases. 3, Non-jury civil cases, 4. Issues of law. 
 5. Chancery cases, including issues of law in such cases. 
 
 (b) Criminal cases shall have precedence. Jury and 
 non-jury and chancqry cases shall have precedence in the 
 order of the respective dates of joining issue, or, in ap- 
 peal causes, the respective dates of filing the appeal. 
 
 Rule 19. 
 
 (a) All petitions and special motions (except mo- 
 tions for continuance and motions to strike causes from 
 calendar) shall be in writing and shall be signed by the 
 attorney, or counsel, of the party in whose behalf the 
 same are entered, and shall set out briefly but distinctly 
 the grounds upon which the same are founded, and with 
 the affidavits supporting the same shall be filed in the 
 office of the clerk of the court on or before the day on 
 which they are noticed for argument. 
 
 (b) NoticQ of the argument of motions and petitions 
 (except motions for continuance and motions to strike 
 causes from calendar), together with a copy thereof and 
 of the affidavits on which they are based, shall be served 
 on the opposite attorney at least four days before the 
 time noticed for hearing the same. Provided, that for 
 good cause the court may hear such argument on shorter 
 notice. 
 
918 stage's MICHIGAN CHANCEKY PBACTICE AND FOBMS 
 
 (c) Motions and petitions shall be argued on the day 
 for which they are noticed, if the party has an opportunity 
 to be heard on that day, unless the court (or Circuit Court 
 commissioner, in a matter pending before him) shall 
 otherwise direct If there is not sufficient time to finish 
 the business noticed for any day, it may be continued 
 from day to day until it is completed; or it may be ad- 
 journed to some subsequent day. And motion? and peti- 
 tions which cannot be heard on the day for which they 
 are noticed shall, in the absence of special order, stand 
 continued from day to day without any special continu- 
 ance. 
 
 (d) Not more thon one counsel on each side shall be 
 heard on the argument of any petition or motion, the 
 mover being entitled to open the argument and to reply 
 to the argument of the opposite counsel. 
 
 Rule 20. 
 
 Whenever a stay of proceedings may be necessary in 
 order to make a special motion, the judge may grant an 
 order for that purpose ; and service of such order, with 
 copies of the affidavits on which it is grounded, and the 
 notice of the motion, shall operate as a stay of proceed' 
 ings until the order of the court is had in the premises, 
 unless the judge shall in the meantime supersede or set 
 aside such order. But the proceedings shall not be stayed 
 for a longer time than to enable the party to make his 
 motion according to the practice of the court, and if made, 
 until the decision of the court thereon. 
 
 Rule 22. 
 
 (a) No motion for the continuance of a cause made 
 after the first day in term shall be heard unless a suffi- 
 cient excuse is shown for the delay, and on a second ap- 
 plication by a party for the continuance of a cause, the 
 party so applying shall state, in addition to the usual 
 requisites, the facts which he expects to prove by the 
 absent witness, and shall also state with particularity the 
 diligence he has used to procure his attendance. In case 
 
stage's MICHIGAN CHANCEEY PBACTICB AND FOBMS 919 
 
 it is admitted by the opposite party in a civil cause that 
 the witness named, would, if placed on the stand, testify 
 as stated in such affidavit, the motion for a continuance 
 shall be denied, -unless the court, for the furtherance of 
 justice, shall deem a continuance necessary. 
 
 (b) If the party receiving notice of trial shall serve 
 a notice on the opposite party that he will move for a 
 continuance of the cause at the term for which it is 
 noticed, together with a copy of the affidavits upon which 
 he intends to found the motion, he shall not be liable to 
 such party for any posts of preparing to try the cause, 
 accruing after the service of such notice and affidavits, 
 in case a continuance is granted on the papers so served, 
 excepting such as may be unavoidable. 
 
 (c) When a continuance is granted upon payment of 
 costs, such costs may be taxed summarily by the court., 
 and on being taxed shall be paid on demand of the party, 
 his agent or attorney ; and if not so paid, on affidavit of 
 the fact, such continuance may be vacated, or the court 
 may grant an attachment therefor, with the accruing 
 costs. 
 
 Rule 23. 
 
 Either party may exhibit to the other or to his attor- 
 ney, a,t any time before the trial, any paper material to 
 the action, and request an admission in writing of its 
 genuineness. If the adverse party or his attorney fail to 
 give the admission within four days after the request, 
 and the delivery to him of a copy thereof, if such copy be 
 required, and if the party exhibiting the paper be after- 
 ward put to expense in order to prove its genuineness, 
 and the same be finally proved or admitted on the trial, 
 such expense, to be ascertained and summarily taxed at 
 the trial, shall be paid by the party refusing the admis- 
 sion, unless it shall appear to the satisfaction of the court 
 that there were good reasons for the refusal, and an 
 attachment or execution may be granted to enforce pay- 
 ipent of such expenses. 
 
920 stage's MICHIGAN CHAN OBEY PEACTICE AND FOBMS 
 
 Rule 25. 
 
 In any suit, whether contested or not, the court may, 
 for the furtherance of justice, call upon any or all of the 
 parties to such suit, or any witness therein, to testify 
 orally in open court, and may continue or keep open the 
 cause for that purpose, and may issue process to compel 
 the appearance of such party or witness before the court. 
 
 Rule 28. 
 
 "When the attorney for the adverse party resides or has 
 his office in the same city, village or township as the 
 attorney making the service, papers shall be served as 
 follows : 
 
 (a) By delivering the same to the attorney personally. 
 
 (b) Or, by leaving the same in his office with his clerk, 
 or with a person having charge thereof. 
 
 (c) Or, when no person is to be found in his office, by 
 leaving the same, between the hours of six in the morning 
 and nine in the evening, in some suitable and conspicuous 
 place in such office. 
 
 (d) Or, if the office be not open, so as to admit of 
 service therein, then by leaving the same at the residence 
 of the attorney with some person of suitable age and 
 discretion. 
 
 (e) Or, by depositing the same in the postoffice of the 
 city, village or township, inclosed in an envelope, plainly 
 addressed to such attorney, with postage fully prepaid. 
 
 Rule 29. 
 
 When the attorney resides or has his office in a differ- 
 ent city, village or township than the attorney making 
 the service, papers shall be served as follows : 
 
 (a) By delivering the same to the attorney personally, 
 or by leaving the same in his office with his clerk or with 
 a person having charge thereof. 
 
 (b) Or, by depositing the same in some postoffice 
 directed to the attorney at his business address, with 
 postage fully prepaid, such address to be ascertained ac- 
 
stage's MICHIGAN OHANCEBY PBACTICE AND FQBMS 921 
 
 cording to the best information and belief of the person 
 making- such service. And in such case the time of serv- 
 ice must be increased one day for every one hundred 
 miles distance, or fraction thereof, between the place of 
 deposit and the place of address. 
 
 Rule 30. 
 
 (a) In cases where there are two or more defendants, 
 who appear by different attorneys, service of all papers 
 in behalf of the plaintiff shall be made on the attorney for 
 each of the other defendants. 
 
 (b) And in such case service of all papers in behalf 
 of any defendant shall be made on the attorney for each 
 of the other defendants, and upon the attorney for the 
 plaintiff. 
 
 (c) In case two or more attorneys appear for the same 
 party or parties, service on any one of said attorneys, 
 whether they be partners or not, shall be sufficient. But 
 this shall not apply to attorneys appearing as "counsel" 
 only. 
 
 Rule 31. 
 
 When a party prosecutes or defends his cause in per- 
 son, service of papers may be made on him in the man- 
 ner hereinbefore provided for service, on attorneys, 
 whether such party be a licensed attorney or not 
 
 Rule 32. 
 
 In all cases where service of papers cannot reasonably 
 be made on account of the lack of an attorney of record, 
 or the inability to find a party, or for any other reason, 
 the court in which such cause is pending, or judge thereof 
 at chambers, upon an ex parte application, on cause 
 shown, may direct in what manner and on whom service 
 may be made. 
 
 Rule 34. 
 
 (a) When the object is to bring the party into con- 
 tempt for disobeying any rule or order of the court, the 
 
922 stage's MICHIGAN CHANCEBY PEAOTICB AND FOBMS 
 
 service shall be on such party personally, unless other- 
 wise specially ordered by the court. 
 
 (b) When the defendant is returned imprisoned for 
 want of bail, a copy of the declaration shall be delivered 
 to him or to the sheriff or jailer in whose custody he shall 
 be, and when an exception is entered to and no notice of 
 retainer of an attorney to defend is given, notice of 
 such exception shall be delivered to the sheriff or one 
 of his deputies. 
 
 Rule 35. 
 
 No service of papers shall be necessary on a defendant 
 who has not regularly appeared, except as specially re- 
 quired by rule or statute. But a defendant who has ap- 
 peared by notice of retainer or appearance shall be en- 
 titled to notice in advance of all future proceedings in 
 the cause, although he may not have followed his appear- 
 ance by plea or demurrer. 
 
 Rule 3G. 
 
 (a) The day on which any rule shall be entered, or 
 order, notice, pleading or paper served, shall be excluded 
 in the computation of the time for complying with the 
 exigency of such rule, order or notice, pleading or paper, 
 and the day on which a compliance therewith is required 
 shall be included, except where it shall fall on Sunday, 
 in which case the party shall have the next day to comply 
 therewith. 
 
 (b) When, by the terms of any order, an act is di- 
 rected to be performed instanter, it shall be done within 
 twenty-four hours. 
 
 Rule 37. 
 
 (a) All papers and the copies thereof for service shall 
 be fa,irly and legibly written or printed, and be indorsed 
 as hereinafter provided, and the clerk shall not file such 
 as do not conform to this rule. 
 
 (b) All papers, except process and pleadings by 
 which the cause is commenced, shall be entitled in the 
 
BTACe's MICHIGAN CiJANCEEY PEACTICE AND FORMS 923 
 
 court and cause, and the plaintiff 's name shall be placed 
 first. Provided, that affidavits annexed to and referring 
 to another paper which is properly entitled in the court 
 and cause need not he entitled. 
 
 (c) In cases where there are two or more plaintiffs 
 or two or more defendants, it shall be sufficient in en- 
 titling papers to name the first-named plaintiff and the 
 first-named defendant with the usual indication of other 
 parties, provided there be added the official number of 
 the cause. Provided, further, that in all orders and 
 notices required to be published the full names of all 
 parties shall appear in the title of the cause. 
 
 (d) All papers for filing or service shall also contain 
 on the outside an abbreviation at least of the title of 
 the court and cause and the character of the paper. 
 
 Rule 38. 
 
 The clerk shall endorse on every paper the day on 
 which the same is filed, and shall not suffer or permit 
 any writ, pleading, affidavit, deposition, or other paper 
 whatever, on file in his office, to be taken therefrom with- 
 out the order of the court or judge thereof; but parties 
 interested in any such may inspect the same in his office 
 and take copies thereof. 
 
 Rule 39. 
 
 No private agreement or consent between the parties 
 to a cause, or their attorneys respecting the proceedings 
 in a cause which shall be denied by either party, shall be 
 binding, unless the same shall have been made in open 
 court, or unless evidence thereof shall be in writing sub- 
 scribed by the party or his attorney against whom the 
 same is alleged. 
 
 Rule 40. 
 
 When a defendant accepts or acknowledges in writing 
 the service of any process, pleading or notice, and an 
 affidavit is filed therewith, showing the genuineness of 
 
924 stage's MICHIGAN CHANCEEY PEACTICE AND FOEMS 
 
 Ms signature, the same shall have the same effect as a 
 return or other legal proof of service. 
 
 Rule 41. 
 
 (a) When a deposition has been taken by either party, 
 it may at any time be read by the other party on the trial. 
 
 (b) Objections to notices of and objections to the 
 manner of taking, certifying or returning depositions 
 shall bq noticed for hearing before the court, by motion 
 to suppress or otherwise by the party making the same, 
 within five days after such objections are made, and if 
 not so noticed for hearing the same shall be considered 
 waived. 
 
 Rule 43. 
 
 If any sheriff or coroner shall fail to return any pro- 
 cess to him directed and delivered, on or before the return 
 day therein specified, any party interested in procuring 
 a return may cause a rule to be filed or entered in 
 the book of common rules, requiring such officer to re- 
 turn the process within five days after service of notice 
 of such rule ; and if such process be not returned within 
 the time specified in such rule, on filing with the clerk an 
 affidavit of the service of such notice, and of the delivery 
 of such prpcess to such officer to be served, the default of 
 such officer in not making such return may be entered, 
 and thereupon an .attachment may be issued of course 
 against such sheriff or coroner to compel such return. 
 
 Rule 50. 
 
 Application may bQ made by petition to any Circuit 
 Court in term time or to the judge thereof in vacation, to 
 compel the production and discovery of books, papers and 
 documents relating to the merits of any suit pending in 
 such court, or of any defense to such suit, in the following 
 cases. 
 
 (a) By the plaintiff, to compel the discovery of papers 
 or documents in the possession or under the control of 
 the defendant, which may be necessary to enable the 
 
stage's MICHIGAN CHANOfiEY PEAdTICfi AND E'oKMS 925 
 
 plaintiff to declare or answer to any pleading of the 
 defendant. 
 
 (b) The plaintiff may be compelled to make the dis- 
 covery of papers or documents, where the same shall be 
 necessary to enable the defendant to answer any plead- 
 ing of the plaintiff. 
 
 (c) The plaintiff may be compelled, after declaring, 
 and the defendant, after pleading, to produce and dis- 
 cover all papers or documents on which the action or 
 defense is founded. 
 
 (d) After issue joined in any action, either party may 
 be compelled to produce and discover all such books, 
 papers and documents as may be necessary to enable the 
 party applying for such discovery to prepare for the 
 trial of the cause. 
 
 Rule 51. 
 
 The petition for such discovery shall state the facts 
 and circumstances on which the same is claimed, and 
 shall be verified by affidavit, stating that the books, papers 
 and documents whereof discovery is sought are not in 
 the possession or under the control of the party apply- 
 ing therefor, and that the party making such affidavit is 
 advised by his counsel and verily believes, that the dis- 
 covery of the books, papers or documents, mentioned in 
 such petition, is necessary to enable him to declare, or 
 answer, or to prepare for trial, as the case may be. 
 
 Rule 52. 
 
 The rule granting the discovery shall specify the mode 
 in which the same is to be made, which may be either by 
 requiring the party to deliver sworn copies of matters 
 to be discovered, or by requiring him to produce and de- 
 posit the same with the clerk of the court in which the 
 trial is to be had. The order shall also specify the tiene 
 within which the discovery is to be made ; and when the 
 papers are required to be deposited, the order shall 
 specify the time for which the deposit shall continue. 
 
926 stage's MICHIGAN CHANCEEY PRACTICE AND FOEi^S 
 
 Rule 53. 
 
 The court, or presiding judge thereof, in granting such 
 order, shall be governed by the principles and practice of 
 the Court of Chancery in compelling discovery, except 
 that the costs of such proceedings shall always be awarded 
 in the discretion of the court. 
 
 Rule 54. 
 
 Every such order may be vacated by the court, or the 
 judge granting the same: 
 
 (a) Upon satisfactory evidence that it ought not to 
 have been granted. 
 
 (b) Upon the discovery sought being obtained. 
 
 (c) Upon the party required to make discovery deny- 
 ing on oath the possession or control of the books, papers 
 or documents ordered so to be produced. 
 
 Rule 55. 
 
 The order directing the discovery of books, papers or 
 documents, shall operate as a stay of all other proceed- 
 ings in the cause, until such order shall have been com- 
 plied with or vacated ; and the party obtaining such order, 
 after the same shall have been complied with or vacated, 
 shall have the like time to declare, plead or answer, to 
 which he was entitled at the time of making the order. 
 
 Rule 56. 
 
 In case the party refusing or neglecting to obey such 
 order for a discovery, within such time as the court shall 
 deem reasonable, the court may nonsuit him, or may 
 strike out any plea or notice he may have given, or may 
 debar him from an yparticular defense in relation to 
 which such discovery was sought ; and the power of the 
 court to compel such discovery shall be confined to the 
 remedies herein provided, and shall not extend to au- 
 thorize any other proceedings against the person or prop- 
 erty of the party so refusing or neglecting. 
 
stage's MICHIGAN CHANCERY PEACTICE AND FOBMS 927 
 
 Rule 57. 
 
 The books, papers and documents, or sworn copies 
 thereof, produced under any order made in pursuance of 
 the preceding rules, shall have the same effect, when 
 used by the party requiring them, as if produced upon 
 notice, according to the practice of the court. 
 
 SUPREME COURT RULES APPERTAINING TO 
 CHANCERY APPEALS. 
 
 Rule 1. 
 
 The clerk of this court shall reside and keep the office 
 at the city of Lansing, and he shall not practice either as 
 attorney or counselor iia this court or in any other court 
 while he shall continue to be clerk of this court. He shall 
 indorse on every paper the day on which the same is filed, 
 and shall not permit any original record or paper to be 
 taken from the courtroom or from the office without an 
 order from the court, or by the permission of one of the 
 justices thereof; but parties interested in any such may 
 inspect the same in his office and take copies thereof. 
 
 Rule 2. 
 
 The clerk shall be entitled to six dollars upon entering 
 any case in the Supreme Court, which amount shall be 
 in full for all fees in such case. Provided, that an addi- 
 tional sum of two dollars shall be paid to the clerk upon 
 the entry of any motion upon the motion docket except 
 in cases of mandamus, where the motion fee shall be 
 four dollars. 
 
 The foregoing fees may be taxed by the prevailing 
 party where costs are allowed by order of the court. The 
 clerk shall also be allowed the sum of fifteen cents per 
 folio for certified copies of any entries or papers in any 
 suit or proceeding when required for any other purpose 
 than for one connected with the progress or disposition 
 of such suit or proceeding. 
 
 The clerk's fees for all proceedings relative to the ad- 
 
928 stage's MICHIGAN CHANCEEt PEACTICB AND FOEMS 
 
 mission of any person to the bar, including the proper 
 certificate, shall be the sum of two dollars. 
 
 Rule 14. 
 
 In chancery appeals the appellant shall, within twenty 
 days after perfecting his appeal, give notice of such ap- 
 peal and of the time when the appeal bond was filed, 
 which notice shall be served on all of the other parties, 
 whether joint or adverse, who have appeared m such 
 cause, by serving a copy of such notice on such parties 
 or their solicitors in the court below, and a copy of such 
 notice with proof of service thereon shall be filed in the 
 clerk's office within ten days after such service. 
 
 Rule 15. 
 
 In all cases of appeal in chancery the register shall 
 transmit the record and proceedings in the court below 
 to the clerk of the Supreme Court within forty days after 
 the filing of the appeal bond in such case. 
 
 Ride 16. 
 
 The time for returning the record in an appeal case 
 may be extended by one of the justices of the Supreme 
 Court or a circuit judge for good cause shown, and the 
 order granting such extension shall be returned with the 
 other papers to the clerk of this court. Such extension 
 shall be had only upon proper notice to the adverse party. 
 
 RiUe 21. 
 
 All notices shall be in writing g,nd shall be served on 
 the attorney or solicitor in the cause. Where a party, 
 who is also an attorney of this court, shall prosecute in 
 person, or if the defendant shall give notice that he is 
 an attorney and will defend in person, all notices and 
 other papers shall be served on him in like manner. And 
 where the object is to briijg a party into contempt for 
 dispbeying any rule or order of the court, the service 
 
STAGERS MICHIGAN CHANCBBY PEACTICE AND FOBMS 929 
 
 shall be on such party personally unless otherwise or- 
 dered by the court. 
 
 Rule 22. 
 
 Notices and papers may be served on an attorney or 
 solicitor as follows : (a) By delivering the same to him 
 personally, (b) By leaving the same in his office with his 
 clerk or with a person having charge thereof, (c) When 
 no person is to be found in his office, by leaving the same 
 between the hours of six in the morning and nine in the 
 evening in some suitable and conspicuous place in such 
 office, (d) If the office be not open so as to admit of 
 service therein, then by leaving the same at the residence 
 of the attorney or solicitor with some person of suitable 
 age and discretion, (e) By depositing the same in a 
 postoffice inclosed in a sealed envelope plainly addressed 
 to such attorney or solicitor at his place of business (ac- 
 cording to the best possible information and belief of the 
 person making the service), with postage thereon fully 
 prepaid. 
 
 Rule 23. 
 
 Such service by mail shall be lawful where the attorney 
 or solicitor resides in the same city, village or township, 
 as well as where he resides in a different city, village or 
 township. In case of service by mail, the time of service 
 shall be increased one day for every one hundred miles 
 distance, or fraction thereof, between the place of de- 
 posit and the place of address. 
 
 Rule 24. 
 
 Where a party other than an attorney of this court 
 prosecutes or defends in person, the service of notices 
 and papers shall be made in the same manner as pro^ 
 vided in this rule ; and no service of papers in the ordi- 
 nary proceedings in a case shall be necessary to be made 
 on a defendant who has not appeared therein. 
 
930 stage's MICHIGAN QHANCEEY PEAOTICB AND POBMS 
 
 Rule 25. 
 
 The day on wMch any rule shall be filed, or order, 
 notice, pleading or paper served, shall be excluded in 
 the computation of time for complying with the exigency 
 of such rule, order or notice, pleading or paper, and the 
 day on which a compliance therewith is required shall be 
 included, except where it shall fall on Sunday, in which 
 case the party shall have the next day to comply there- 
 with. When, by the terms of any orde.r an act is directed 
 to be performed instanter, it shall be done within twenty- 
 four hours. 
 
 Rule 26. 
 
 In aU cases where service of papers cannot reason- 
 ably be made on account of the lack of an attorney of 
 record, or the inability to find a party, or on account of 
 the absence of the attorney of record from his usual 
 place of abode, residence or office, or for any other rea- 
 son, this court or one of the justices thereof, upon an 
 ex parte applica.tion, on cause shown may direct in what 
 manner and on whom service may be made. 
 
 Rule 27. 
 
 All motions and aflSdavits in support thereof ghall be 
 typewritten or printed and filed with the clerk. Such 
 motions shall contain a brief statement of the grounds 
 and objects of the same. All papers flle^ by either party 
 on motions sha,ll qontain proof of service df the same on 
 opposing counsel. No oral arguments shall be had on 
 motions unless by special permission of the court first 
 obtained. When oral arguments are permitted they shall 
 be limited to fifteen minutes oh each side, unless further 
 time is granted by the court before the argument begins. 
 
 Rule 28. 
 
 Notice of the arguments of motions, together \^th 
 copies thereof J and the affidavits ofi which they .are based, 
 shall be served on the opposite attorney at ie&st tout 
 
stage's MICHIGAN CHANCERY PBACTICE AND FOBMS 931 
 
 days before the time noticed for hearing the same, unless 
 the attorney for the adverse party resides outside the 
 city of Lansing, in which case the time of service shall be 
 increased one day for every additional one hundred 
 miles, or fraction thereof, distance between his place of 
 residence and the city of Lansing. 
 
 Rule 29. 
 
 The motion day shall be Tuesday of each week, on 
 which days motions shall have preference over calendar 
 causes, and all special motions shall be noticed for one 
 of these days. They shall be heard on. the day for which 
 they are noticed, unless adjourned over to a subsequent 
 motion day, or unless there is not time to hear the same 
 on the day for which they are noticed, in which case they 
 shall be heard on the next succeeding day. 
 
 Rule 30. 
 
 In addition to oral arguments, each party shall sub- 
 mit a printed or typewritten brief at the time such argu- 
 ment is made. 
 
 Ride 81. 
 
 The clerk shall keep a motion docket and shall enter 
 the motions filed under this rule on said docket in the 
 order ia which they ar.e delivered to him, and will, on 
 the opening of the court on motion days, present such 
 docket to the court. Motions will be called for argument 
 in their order, and no motions will be entertained unless 
 brought forward as provided by these rules. 
 
 Rule 32. 
 
 The time limited by these rules for making motions or 
 applications or giving any notice or taking any action 
 may be shortened or extended in any case by the court or 
 any justice thereof, unless such time is limited by statute. 
 
932 stage's MICHIGAN GHANCEBY PEACTIGE AND FOEMS 
 
 Rule 33. 
 
 No private agreement or consent between the parties 
 or their attorneys in respect to the proceedings in a cause 
 shall be binding unless evidence thereof shall be in writ- 
 ing, subscribed by the party or his attorney against whom 
 the same shall be alleged, and filed in the office of the 
 clerk. 
 
 Rule 34. 
 
 After the record of an appeal case has been filed and 
 the time for filing the same has elapsed, and after the 
 filing of a case made or the return to a? writ of error, or 
 issue joined, in cases requiring a formal issue, either 
 party may notice the cause for hearing. Said notice shall 
 be given at least thirty days before the first day of the 
 term at which the argument is desired. 
 
 Rule 35. 
 
 The party removing a cause into the Supreme Court 
 by a writ of error, appeal, certiorari, case made or other- 
 wise,, shall prepare a printed record for the use of court 
 and counsel, which shall contain all of the testimony and 
 so much of the pleadings, record and proceedings (and 
 no more) as are necessary to present the questions raised. 
 The date of the official filing of each pleading set out or 
 referred to in the record shall be stated. All records, 
 arguments and briefs printed for the use of the court 
 shall be in small .pica, type, twenty-four pica ' ' ems ' ' to 
 a lincj thirty-five lines to a page, leaded with four-to- 
 pica leads. The record siall have a suitable cover con^ 
 taiiiing the title of the court and cause and the court 
 from which the case is brought into this court; the size 
 of the pages of thq records and briefs to be nine and one- 
 quarter by six and one-quarter iiiches. 
 
 Rule 3-6. 
 
 The record shall contain a complete index of the names 
 of the witnesses whose testimony appears in such record 
 
stage's MICHIGAN CHANCERY PRACTICE AND FORMS 933 
 
 and the pages whereon the examination, cross- examina- 
 tion or re-examination is found; also the pages whereon 
 any exhibit appears ; and in hrief form the substance of 
 such exhibit ; and in cases at law, the page of the record 
 where any exception relied on may be found. Such index 
 shall be printed in the front of the record 
 
 Rule 38, 
 
 In all cases the appellant shall cause the record to 
 be printed as soon as practicable after the filing of the 
 return in this court ; and as soon as the printing is com- 
 pleted, the appellant shall serve on the appellee at least 
 two copies of the printed record, and, before the first day 
 of the term at which the cause shall be noticed for argu- 
 ment, the appellant shall file with the clerk of this court 
 at least eighteen printed copies thereof. In any case the 
 appellant shall cause the printed record to be served upon 
 the appellee within thirty days after the filing of the 
 return in this court, and within the tinie allowed by rule 
 for the service of the first brief, unless further time 
 therefor shall be granted. Provided, that this shall not 
 be constraed to give to the appellant thirty days in every 
 case, but only so much time as is reasonably necessary 
 after the filing of the return in this court. 
 
 If the appellant shall fail to print and serve the record 
 within the time above required, or within such further 
 time as shall be granted on motion, the court may, on 
 motion of the appellee, dismiss the case and award costs 
 to the appellee, or further time ma,y be granted for com- 
 pliance with said requirements, on such terms as shall 
 be proper. If the appellant shall fail to have the printed 
 record filed before the first day of the term for which the 
 cause is regularly noticed for argument, the cause shall 
 be stricken from the calendar on the first day of the 
 term, and further dealt with as justice may require. 
 
 Rule 39. 
 
 Six copies of the printed record and briefs in all state 
 or criminal cases shall be served on the attorney general 
 
934 stage's MICHIGAN CHAUCEBY PBACTICB AND FOEMS 
 
 at least twenty days before the first day of the term at 
 which such case is to be heard, and a like number of rec- 
 ords and briefs in all other cases in which the state is a 
 party or interested shall be served upon the attorney 
 general within the time now fixed by rule. 
 
 Bule 40. 
 
 The brief of a party bringing a cause into this court 
 shall contain a clear and concise statement of the facts 
 of the case, distinct from argument, and of the errors 
 manner in which they are raised. The court will con- 
 upon which he relies, the questions involved, and the 
 sider such statement sufficient and accurate unless the 
 opposite party shall point out in his brief wherein the 
 statement is insufficient or inaccurate. 
 
 Rule 41. 
 
 Two copies of the appellant's brief shall be served 
 upon the appellee as soon as printed, and at least twenty 
 days before the first day of the term at which the cause 
 is regularly noticed for hearing. Two copies of the ap- 
 pellee's brief shall be served upon the appellant as soon 
 as printed and at least five days before the first day of the 
 term, at which the cause is regularly noticed for hearing. 
 Provided, however, that if the printed record and ap- 
 pellant's brief shall be served thirty days before the first 
 day of the term, the appellee's brief shall be served at 
 least fifteen days before the first day of the term. In 
 chancery appeals when the complainant is also appellant, 
 or when the defendant appeals from an order overruling 
 a demurrer, the foregoing shall apply. In other chancery 
 appeals heard on pleadings or on pleadings and proofs, 
 when the complainaut is appellee, his brief shall be served 
 upon the defendant at least fifteen days before the first 
 day of the term at which the cause is regularly noticed 
 for hearing (or within ten days after service of the 
 printed record by appellant, if the same is not served at 
 least twenty-five days before the first day of the term) ; 
 aud the appellant's brief shall be gerved at least five days 
 
stage's MICHIGAN CHANOEEY PEACTIOE AND FOBMS 935 
 
 before the first day of the term (or within ten days after 
 the service of complainant's brief). 
 
 The briefs above mentioned shall fairly present the 
 cause on each side. Supplemental briefs may be printed 
 and served at any time before the cause is placed upon 
 the call for argument, but subsequently by special per- 
 mission of the court only. If the brief of either party is 
 not served within the time above required, the opposite 
 party may, at his option, on the first day of the term, 
 have the cause placed at the foot of the calendar, or con- 
 tinued, and the court may in proper cases order the pay- 
 ment of a counsel fee by the party in default. 
 
 Rule 42. 
 
 Eighteen copies of all briefs shall be filed at least 
 forty-eight hours before the case has been placed on call ; 
 and no oral argument will be heard on behalf of a party 
 failing to comply with this provision. 
 
 Rule 43. 
 
 Writs of error and certiorari, appeals in chancery, 
 cases made, bill of exceptions in criminal oases, and all 
 other cases which are to be heard on the merits, are 
 calendar causes, and to be heard at any term must be 
 placed on the calendar for that term. Criminal cases 
 may be placed on the calendar during the first two weeks 
 of term by consent of the attorney-general. 
 
 Rule 44. 
 
 The priority of causes on the calendar as first made 
 shall depend upon the date of filing notice of hearing with 
 the clerk. The party noticing a cause for hearing shall, 
 at least twenty days before the first day of the term for 
 which the same is noticed for hearing, give notice to the 
 clerk to place such cause on the calendar for the term. 
 No cause shall be entered on the calendar by the clerk 
 imtil the return, record on appeal, case made, or excep- 
 tions in criminal cases shall have been filed in this court, 
 
936 stage's MICHIGAN CHANCEBY PEACTIOB AND FOBMS 
 
 nor without the notice to the clerk hereinbefore men- 
 tioned. Upon filing stipulation with the clerk not later 
 than the Saturday before the first day of the term, cases 
 may be placed lower down on the calendar and grouped 
 to suit the convenience of counsel. After such re-arrange- 
 ment of causes by the clerk, no further changes can be 
 made by counsel, except to continue or place at the foot 
 of the cg,lendar. In cases where counsel are not present 
 in court, notice of motions for continuance, to be heard 
 on the first day of term, shall be given at least twenty-four 
 hours previous thereto, and, if for any subsequent day, 
 two days' notice shall lae given. 
 
 Rule 45. 
 
 The court on the first day of each term, after motions 
 are disposed of, will commence ealUng the eases for 
 argument in the order in which they stand on the calen- 
 dar as rearranged, and proceed from day to day during 
 the term in the same order, and if the parties, or either 
 of them, shall be ready when the case is called, the same 
 wiU be heard ; and if neither party shall be ready to pro- 
 ceed in the argument, the case will be regarded as sub- 
 mitted on briefs. No cause after being placed on the call 
 shall be withdrawn therefrom except to continue the 
 same and a continuance will be allowed only upqn a suffi- 
 cient showing of the death or illness of counsel. Fifteen 
 cases only shall be considered liable to be called on each 
 day during the term, including the one under argument, 
 if the same shall not have been concluded on the preced- 
 ing day. No cause shall be taken up out of its order or 
 set down for a particular day, except under special and 
 peculiar circumstances to be shown to the court. On 
 motion days, motions will take precedence of calendar 
 causes. 
 
 Rule 46. 
 
 In the argument of calendar causes two counsel may 
 be heard on a side. The time allowed for argument on 
 each side shall not exceed one hour unless by special per- 
 
stage's MICHIGAN CHANCEEY PEACTICE AND FORMS 937 
 
 mission of the court on cause shown, granted before argu- 
 ment begins. 
 
 Rule 47. 
 
 Any cause may be submitted upon briefs by stipulation 
 at any time. 
 
 Rule 48. 
 
 The necessary expense of printing the record and brief 
 required by these rules may be taxed as disbursements 
 in favor of the party prevailing in the cause. 
 
 Rule 49. 
 
 A counsel fee shall be awarded to the prevailing party 
 unless otherwise ordered by the court (excepting in 
 criminal cases), in addition to such other costs as such 
 party may be entitled to, as follows : 
 
 (a) On motions which do not finally dispose of the 
 case, ten dollars ; (b) on mandamus and certiorari, heard 
 as motions, fifteen dollars; (c) on motions which finally 
 dispose of the case, twenty dollars; (d) on calendar 
 causes, thirty dollars. 
 
 Rule 50. 
 
 Costs shall be taxed by the clerk upon notice of not 
 less than four days. If the party upon whom such no- 
 tice is served shall reside outside the city of Lansing, the 
 time of service of such notice shall be increased one day 
 for every additional one hundred miles distance, or frac- 
 tion thereof, between his place of residence and the city 
 of Lansing. Provided, that no notice need be given of 
 more than ten days. Such notice shall be accompanied 
 by a copy of the bill proposed to be taxed and the affi- 
 davits to be read in support thereof. 
 
 Rule 51. 
 
 No application for rehearing will be considered by the 
 court unless the moving party, at as early a date as may 
 be practicable, ghall cause any papers upon which it is 
 
938 stage's MICHIGAN GHANCERY PBAOTICE AND FOBMS 
 
 based, together with his reasons for granting the same, 
 to be printed, and twelve copies thereof to be filed with 
 the clerk of this court, nor unless a copy thereof shall be 
 served upon the counsel for the opposite party. Proof 
 of this service shall also be filed with the clerk, and the 
 court, after tlie expiration of not less than four days 
 from such service, will examine the papers, and without 
 further argument, unless specially ordered, will pass 
 upon the application. The party opposing will be at 
 liberty to file with the clerk his objections to the applica- 
 tion, either printed or typewritten, as he may prefer, at 
 any time before the application is decided. In motions 
 for rehearing, if denied, the opposing party shall be en- 
 titled to tax a motion fee of fifteen dollars and the ex- 
 pense of printing a brief, if one has been furnished. 
 
 Rule 55. 
 
 Causes where the record fails to show that the amount 
 involved, exclusive of costs, is more than five hundred 
 dollars, and all motions, shall be submitted on briefs, 
 unless otherwise ordered by the court. 
 
 Rule 57. 
 
 Whenever an appeal to this court is taken and per- 
 fected under the provisions of Section 10,823, 10,834, 3 
 Oomp. Laws, if either party desires to take further tes- 
 timony, notice of such d6sire shall be given in writing 
 to the opposite party within ten days after the filing of 
 the return in this court and proof of service of such notice 
 shall be filed with the clerk of this court, if no such notice 
 be given, the cause shall stand for hearing upon the 
 record returned. In all other cases, the cause shall 
 stand for hearing after the filing in this court of any dep- 
 ositions taken after said appeal is perfected. In any 
 event, the appellant shall cause the record to be printed 
 and served within thirty days after the cause shall so be 
 for hearing and shall within ten days thereafter cause 
 two printed briefs to be served upon the appellee. The 
 appellee shall have ten days thereafter in which to print 
 and serve upon the appellant two copies of the brief. 
 
INDEX TO FORMS 
 
 FOR GENERAL INDEX 
 
 SEE PAGE 971 
 
INDEX TO FORMS 
 
 [EEFEEENCES ABE TQ PAGES] 
 
 ADDRESS 
 
 Of bill in Federal Court, 11 
 State Court, 6 
 AFFIDAVIT 
 
 Annexed to bill of costs, 303 
 
 for injunction or ne exeat, 356 
 
 ne exeat, 882 
 of review, 241 
 petition for voluntary dissolution of corporation, 834 
 Denying coUusion in interpleader, 623 
 For attachment for non-payment of alimony, 781 
 other contempts, 384 
 injunction ex parte before Circuit Court Commis- 
 sioner, 358 
 order of publication, defendant absent from state, 43 
 concealed within state, 43 
 non-resident of state, 42 
 residence unknown, 42 
 ^ unknown defendant, 44 
 
 security for costs, 307 
 under rule, 307 
 In support of motion for alimony, 776 
 Of death of a complainant, 264 
 defendant, 264 
 failure of defendant to answer, 58 
 interpreter, 16 
 non-appearance of defendant, 57 
 
 after publication, 57 
 posting notice of sale, 483 
 printer of publication of order, 46 
 939 
 
940 INDEX TO FORMS 
 
 [rEFEEENCGS ABE TO PAGES] 
 
 Of regularity in divorce, 56 
 foreclosure, 55 
 
 as to several defendants, 56 
 service of notice, 200 
 
 of appeal, 291 
 subpoena, 37 
 signature, 332 
 On motion that complaiilant elect, 321 
 Showing cause why attachment should not issue, 783 
 That no guardian ad litem has been appointed, 330 
 
 original and cross suits are both at issue, 140 
 To be annexed to bill for injunction or ne exeat, 882 
 plea, 90 
 obtain extension of time for taking proofs, 168 
 order to vacate default, 62 
 AGENT 
 
 Signature to bill by, 14 
 Verification by, 14 
 AGREEMENT 
 
 Between solicitors to submit case on written argument, 202 
 ALIMONY 
 
 Affidavit on motion for, 776 
 
 showing cause why attachment should not issue, 783 
 to obtain attachment for non-payment of, 781 
 Attachment for non-payment of, 785 
 Decree for permanent, 798 
 Demand for payment of temporary, 781 
 Order confirming report of circuit court commissioner, 779 
 for to complainant, 780 
 defendant, 780 
 attachment for non-payment of, 784 
 of reference to circuit court commissioner concerning, 
 777 
 
 to show cause why attachment should not issue for non- 
 pajTnent of, 782 
 Petition for by complainant, 775 
 defendant, 775 
 
index to forms 941 
 
 [eefebences are to pages] 
 Report of circuit commigsioner on, 777 
 in limited divorce, 778 
 AMENDMENT 
 To answer, 127 
 
 order allowing, 127 
 
 petition for leave to make, 126 
 
 to correct mistake, 126 
 bm, 190 
 
 petition for leave to make after replication, 193 
 
 to sworn, 191 
 order allowing after demurrer filed, 194 
 sustained, 195 
 plea to part of bill allowed, 195 
 to sworn biU, 193 
 under Rule 16, b, 191 
 decree, order allowing, 229 
 plea, 195 
 sworn bill, 194 
 
 transcript of substance of evidence, 287 
 ANSWER 
 
 Amendment to, 127 
 And disclaimer, 103 
 By formal party, 115 
 
 infant, 113 
 Clause in claiming benefit of demurrer, 116 
 for want of equity, 117 
 plea, 117 
 
 statute of frauds, 117 
 Combined with plea to part of biU, 95 
 Commencement of, 113 
 Commencement of by infant, 113 
 
 one of several defendants, 115 
 several defendants, 114 
 sole defendant, 114 
 short form, 113 
 Conclusion, old form, 116 
 short form, 116 
 
942 index to fokms 
 
 [references are to pages] 
 
 Further, after amendment of bill, 129 
 
 by order of court, 129 
 Motion for further, 128 
 
 to expunge scandal from, 130 
 Order allowing amendment to, 127 
 
 denying motion for further, 129 
 
 expunging scandal from, 130 
 
 for further, 128 
 
 that plea stand for, 99 
 
 pro conf esso and reference on failure to file, 58 
 Petition for leave to amend, 126 
 
 and correct mistake in, 126 
 Short form of, 117 
 
 Statement in, claiming benefit of cross bill, 124 
 Title of, 112 
 To biU of interpleader, 118 
 
 for specific performance, 119 
 With demurrer to part of bill, 77 
 ANSWERS 
 
 To interrogatories in proceediugg for contempt, 386 
 APPEAL 
 
 Affidavit of service of notice of, 291 
 Amendments to transcript of evidence on, 290 
 Approval of bond on, 287 
 Bond on, 286 
 Claim of, 285 
 Notice of, 286 
 
 amendments to transcript of evidence for use on, 290 
 
 Filing claim of, 290 
 
 settling transcript of evidence for use on, 289 
 Transcript of substance of evidence for use on, 287 
 APPEARANCE 
 
 Of defendant, 64 
 APPLICATION 
 
 By commissioner of banking department for receiver, 821 
 For injunction, notice of, 359 
 
 transfer of cause, 855 
 
INDEX TO f OEMS 943 
 
 [references are to pages] 
 
 APPOINTMENT 
 
 Of guardian ad litem, 332 
 
 nisi on motion of complainant, 329 
 absolute, 330 
 petition for, 331 
 
 by complainant, 329 
 next friend, 327 
 petition for, 326 
 APPEOVAIi 
 
 Of bond on sale of land of infants, etc., 850 
 ASSIGNEE 
 
 Petition of to be substituted as complainant, 340 
 Order substituting, 340 
 ASSISTANCE 
 
 Motion for writ of, 491 
 Order for writ of, 492 
 Petition for writ of, 489 
 Writ of, 493 
 ATTACHMENT 
 
 Affidavit for, non-payment of alimony, 781 
 other contempts, 384 
 showing cause against issue of, 783 
 For non-payment of alimony, 785 
 Order for, 385 
 
 to show cause against for non-payment of alimony, 782 
 for other contempts, 384 
 BILL 
 
 Amendments to, 190 
 
 under Rule 16, b, 191 
 sworn, order allowing, 193 
 For contribution, 612 
 
 dissolution of partnership, 725 
 
 accounting and injunction, 728 
 divorce for adultery, 767 
 impotency, 765 
 other causes, 768 
 from bed and board, 774 
 
944 index to foems 
 
 [befekences are to pages] 
 partition between heirs, 704 
 and accounting, 705 
 dower, 709 
 settlement and accounting after dissolution of partner- 
 ship, 730 
 specific performance, 675 
 of land contract, 676 
 
 vs. administrator or executor and heirs, 678 
 of land contract, vendor vs vendee, 682 
 verbal, 680 
 subrogation, 536 
 In aid of execution, 582 
 
 and with double aspect, 589 
 In nature of bill of review, 244 
 ■revivor, 269 
 supplemental bill, 251 
 Judgment creditor's, 585 
 
 with double aspect, 589 
 Of posts, 302 
 
 foreclosure against corporation, 477 
 executor and heirs, 447 
 by bondholder, 471 
 corporation, 463 
 
 as trustee on bonded debt, 464 
 executor or administrator, 445 
 heir or distributee, 446 
 full form by assignee, interest, insurance and tax 
 
 clauses, 431 
 indebtedness not all due, 440 
 land may be sold in parcels, 441 
 niaking senior mortgagee party, 448 
 of deed intended as a mortgage, 451 
 land contract, 460 
 mechanic's lien by contractor, 455 
 laborer, 459 
 material man, 459 
 subcontractor, 456 
 vendor's lien, 452 
 
index to forms 945 
 
 [references are to pages] 
 short form, money all due, 441 
 interpleader adverse claimants of life insurance, 627 
 executor and assignee, 623 
 vendor and claimant of purchase money, 621 
 review for errors of law, 239 
 upon new matter, 240- 
 and supplement, 244 
 
 petition for leave to file, 241 
 affidavit annexed to, 241 
 demurrer to, 76 
 order for leave to file, 239 
 and supplement, 243 
 petition for leave to file for errors of law, 237 
 new matter, 238 
 Order allowing amendment of, after demurrer filed, 194 
 
 sustained, 195 
 plea to part allowed, 195 
 sworn, 193 
 Original bill in nature of supplemental, 251 
 Petition for leave to amend after replication filed, 193 
 
 sworn, 191 
 Signature to, 13 
 Supplemental, 256 
 
 to judgment creditor's biU, 257 
 order for leave to file, 255 
 petition for leave to file, 254 
 where title to property has changed, 258 
 To carry decree into effect, 880 
 To correct mistake in deed, 646 
 
 enforce liability of stockholders, by creditor, 861 
 
 receiver, 865 
 enjoin boycott, 873 
 
 interference with employees by trade unions, 868 
 proceedings in suit at law, 635 
 probate foreign will, 741 
 quiet title and cancel fraudulent deed, 662 
 illegal tax, 661 
 recorded land contract, 665 
 
946 index to foems 
 
 [references are to pages] 
 redeem from deed intended as mortgage, 551 
 mortgage, 548 
 
 and make application of payments, 550 
 goods pledged, 554 
 remove trustee under deed, 607 
 
 will, 603 
 restore destroyed deed, 640 
 restrain waste, 559 
 vacate decree for fraud, 244 
 judgment, 637 
 Verification of, 14 
 BOND 
 
 Approval of, 287 
 
 Exception to sureties on, 310 
 
 For discharge on ne exeat, 883 
 
 Justification of sureties on, 310 
 
 Notice of fiUng, 309 
 
 Of guardian on sale of land of infant, 849 
 
 receiver, 376 
 On appeal, 286 
 
 On injunction in lieu of deposit, 363 
 after judgment, 362 
 to stay proceedings at law, 361 
 after judgment, 363 
 in ejectment, 364 
 Security for costs, 309 
 
 To infant by next friend or guardian ad litem, 328 
 To sheriff on ne exeat, 883 
 BOYCOTT 
 
 Bill to enjoin, 873 
 CAPTION 
 
 Of deposition, 186 
 
 Of decrees and orders in open court, 210 
 Of orders of circuit court commissioner, 154 
 Circuit Judge at chambers, 856 
 CAUSE 
 
 Order to show on petition, 884 
 motion, 884 
 
iwdex to foems 947 
 
 [refeeences are to pages] 
 CERTIFICATE 
 
 Of circuit court commissioner to proofe, 163 
 counsel to cross bill, 139 
 demurrer, 73 
 plea, 90 
 sale by county treasurer in tax case, 511 
 register to copy of decree, 795 
 Of sale in foreclosure of tax lien, 511 
 To deposition, 183, 186 
 CIRCUIT COURT COMMISSIONER 
 Affidavit for injunction before, 358 
 Caption of orders by, 154 
 Certificate to proofs, 163 
 Common order of reference to, 54 
 after failure to answer, 58 
 
 publication, 54 
 in divorce, 58 
 Deed on sale by, 487 
 Depositions and proofs before, 162 
 Exceptions to report, 165 
 Notice by of preparation of report, 157 
 of reference to, 157 
 sale by, 482 
 
 taking testimony before, 167 
 Objections to report of, 165 
 Order for injunction by, after notice, 360 
 ex parte, 35S 
 of reference to as to alimony, 777 
 in divorce, 58 
 
 partition, 710 
 
 petition for sale of real estate of infants, 848 
 of plea of former suit, 94 
 Report of amount due, 479 
 as to alimony, 777 
 
 in limited divorce, 778 
 in case pro confesso, 160 
 
 divorce pro confesso, 161 
 partition, 158 
 
948 index to fokms 
 
 [eepeeencbs are to pages] 
 proceedings to dissolve corporation, 159 
 of proofs, 160 
 
 sale on foreclosure, 483 
 Summons of, 157 
 
 Testimony taken before, under Rule 14, 163 
 COMMISSION 
 
 To take testimony, 185 
 
 notice of application for, 184 
 petition for, 184 
 COMMISSIONERS IN PARTITION 
 Decree confirming report of, 713 
 Oath of, 712 
 Order appointing, 711 
 Report of, 712 
 COMMISSIONER OP BANKING DEPARTMENT 
 
 Application for receiver by, 821 
 COMMON ORDER 
 
 Pro confesso and reference to circuit court commissioner, 54 
 court, 54 
 after publication, 54 
 for failure to answer, 58 
 in divorce, 58 
 CONFIRMATION 
 
 Of report of circuit court commissioner nisi, 169 
 of sale, 489 
 commissioners in partition, 713 
 CONTEMPT 
 
 Order convicting defendant of, 387 
 CONTRIBUTION 
 
 Bill for, 612 
 CORPORATION 
 
 Petition for voluntary dissolution of, 832 
 COSTS 
 
 Afadavit to bill of, 303 
 Bill of, 302 
 
 Register's itemized bill of, 304 
 CREDITOR 
 
 Bill by to enforce liability of stockholders, 861 
 
index to forms 949 
 
 [references are to pages] 
 CROSS BILL 
 
 Affidavit that both suits are at issue, 140 
 Answer claiming benefit of, 124 
 By partner against partner, 135 
 Certificate of counsel to, 139 
 
 Motion that proceedings be stayed until answer to is filed, 139 
 Order that proceedings be stayed until answer to is filed, 139 
 Order that both causes be heard together, 140 
 Puis darrein continuance, 137 
 DEATH 
 
 Of complainant, affidavit of, 264 
 
 defendant, affidavit of, 264 
 
 party, suggestion of, 264 
 DECREE 
 
 Amendment to, order allowing, 229 
 Bill to carry into effect, 880 
 
 vacate, 244 
 Cancelling for fraudulent deed, 216 
 Caption of, 210 
 
 Confirming report of commissioners in partition, 713 
 Dismissing bill at hearing, 224 
 Dissolving corporation, 218 
 EnroUment of, 230 
 For accounting in partnership, 222 
 
 dissolution of partnership, 223 
 
 redemption, on proofs in open court, 221 
 
 and reference to circuit court commissioner, 219 
 
 permanent alimony, 798 
 
 separate maintenance, 813 
 
 specific performance, vendee v. vendor, 213 
 vendor v. vendee, 214 
 General form of, 210 
 Interlocutory in interpleader, 211, 630 
 Motion to rectify before entering, 225 
 Nunc pro tunc, clause in, 225 
 Of divorce after contest, 795 
 
 from bed and board, 797 
 
 on verdict of jury, 796 
 
950 index to foems 
 
 [references are to pages] 
 pro conf esso on report of circuit court commissioiier, 793 
 
 proofs taJken in open court, 794 
 foreclosure of meclaanic's lien, 212 
 
 mortgage on proofs in open court, 481 
 
 report of circuit court commissioner, 479 
 tax lien, 506 
 partition, 710 
 Order to vacate as to defendant not personally served, 61 
 Petition to rectify error in, 228 
 
 vacate by defendant not personally served, 59 
 Quieting title to land, 217 
 That complainant's debt be paid by receiver, 215 
 Vacating deed, in aid of execution, 216 
 DECRETAL ORDER 
 Allowing plea, 100 
 Confirming sale in partition, 715 
 For execution for deficiency, 495 
 Overruling demurrer, 78 
 
 plea, 100 
 Sustaining demurrer, 78 
 DEED 
 
 Bill to restore lost or destroyed, 640 
 Of circuit court commissioner in foreclosure, 487 
 DEFAULT 
 
 Aifldavit on motion to vacate, 62 
 Motion to vacate, 61 
 Order vacating, 63 
 DEMAND 
 
 For temporary alimony, 781 
 DEMURRER 
 
 Because remedy is at law, 75 
 By one of several defendants, 74 
 Certificate of counsel to, 73 
 Clause in answer, 116 
 
 for want of equity, 117 
 Form of, 73 
 For multifariousness, 74 
 
index to forms 951 
 
 [references are to pages] 
 want of parties, 74 
 privity, 74 
 Order overruling, 78 
 
 sustaining, 78 
 To bill of interpleader not negativing collusion, 75 
 showing claim in defendant, 75 
 bill of review, 76 
 supplemental bill, 76 
 With plea and answer, 77 
 DEPOSITION 
 
 And proofs before circuit court commissioner, 162 
 
 Cfertificate to, 183 
 
 Notice of application for commission to take, 184 
 
 taking, 181 
 Of witness, form of, 182 
 Petition for commission to take, 184 
 Stipulation to take, 180 
 en interrogatories, 181 
 DESTROYED DEED 
 Bill to restore, 640 
 DISCLAIMER 
 
 With answer, 103 
 DIVORCE 
 
 Affidavit of regularity in, 56 
 Bill for because of adultery, 767 
 physical impotency, 765 
 on other grounds, 768 
 verification of, 15 
 Common order pro con. and reference, 58 
 Decree of after contest, 795 
 on verdict of jury, 796 
 pro confesso on proofs in open court, 794 
 
 report of circuit court commissioner, 793 
 Fi-om bed and board, bill for, 774 
 
 decree for, 797 
 Order that issue in be tried by jury, 796 
 Report of circuit court commissioner in, 161 ■ 
 
952 nsTDBx TO forms 
 
 [eEPERENCES ABE TO PAGES] 
 
 DOCUMENTS 
 
 Order to produce, 323 
 Petition for production of, 321 
 DOWER OF INSANE WIFE 
 
 Petition to bar, 816 
 ENROLLMENT 
 
 Of decree, 230 
 EXCEPTIONS 
 
 To report of Circuit Court Commissioner, 165 
 
 notice of hearing of, 166 
 Order allowing, 167 
 overruling, 166 
 To sureties on bond, 310 
 notice of, 310 
 EXECUTION 
 
 Bill in aid of, 582 
 
 'For deficiency, decretal order for, 495 
 petition for, 494 
 writ of, 496 
 Writ of, 885 
 EXECUTORS AND HEIRS 
 
 Bill for specific performance against, 678 
 EVIDENCE 
 
 Transcript of substance of, 287 
 amendments to, 290 
 notice of settling, 289 
 FILING 
 
 To be endorsed on papers, 886 
 FORECLOSURE 
 
 See bills of foreclosure 
 AfQdavit of regularity in, 55 
 
 as to several defendants, 56 
 Circuit court commissioner's deed on sale, 487 
 report of amount due, 479 
 sale, 483 
 Decree of on proofs in open court, 481 
 
 report of circuit court commissioner, 479 
 Motion for writ of assistance, 491 
 
INDEX TO FORMS 953 
 
 [references are to pages] 
 Order confinning report of sale, 489 
 for execution for deficiency, 495 
 writ of assistance, 492 
 Petition for execution for deficiency, 494 
 writ of assistance, 489 
 FOREIGN WILL 
 
 BiU to probate, 741 
 FRAUD 
 
 Bill to vacate decree for, 244 
 judgment for, 637 
 FRAUDS, STATUTE OF 
 
 Clause in answer claiming benefit of, 117 
 FRAUDULENT DEED 
 BiU to vacate, 662 
 Decree vacating, 216 
 GOODS PLEDGED 
 
 Bill to redeem, 564 
 GUARDIAN AD LITEM 
 
 Affidavit that no one is appointed, 330 
 Order appointing, 332 
 nisi, 329 
 
 register of court, 330 
 Petition for appointment of by complainant, 329 
 infant defendant, 331 
 relative of infant, 332 
 HEARING 
 
 Affidavit of service of notice of, 200 
 
 And examination of witnesses in open court, Notice of, 200 
 Notice of, 199 
 
 Of exceptions to report, notice of, 166 
 Of motion for further directions, notice of, 166 
 INFANTS AND INCOMPETENTS 
 
 See sale of lands of infants and incompetents 
 INFANT COMPLAINANT 
 
 Appointment of next friend, 327 
 
 Petition of for appointment of next friend, 326 
 
 Signature to bill by, 13 
 
954 index to foems 
 
 [eeferences are to pages] 
 INFANT DEPENDANT 
 
 Affidavit to signature of, 332 
 Order appointing guardian ad litem, 332 
 nisi, 329 
 register guardian ad litem, 330 
 Petition for appointment of guardian ad litem, 331 
 by complainant, 329 
 by relatives, 332 
 INJUNCTION 
 
 Affidavit annexed to bill for, 346 
 
 for, ex parte before Circuit Court Commissioner, 358 
 Bond On in lieu of deposit, 363 
 after judgment, 362 
 restraiaing proceedings at law, 361 
 after judgment, 363 
 in ejectment, 364 
 Motion to dissolve, 364 
 Notice of application for, 359 
 Order allowing after notice, by circuit judge, 357 
 at chambers, 360 
 ex parte by circuit judge, 356 
 
 Circuit Court Commissioner, 358 
 on condition, 356 
 
 bill of interpleader, 359 
 denying application for, 360 
 
 motion to dissolve, 365 
 dissovling, 365 
 modifying, 366 
 
 to show cause why it should not issue, 357 
 Prayer for, 13 
 
 Eeturn of sheriff of personal service of, 361 
 Writ of, 360 
 INSOLVENT BANK 
 
 Order for receiver for, 372 
 INTERFERENCE WITH WORKMEN 
 
 Bill to enjoin, 863 
 INTERPLEADER 
 
 Answer to bill of, 118 
 
ihdex to forms 955 
 
 [eefekences aee to pages] 
 BiU of, 621 
 
 against contesting claimants of life insurance, 627 
 executor and assignee, 623 
 Interlocutory decree in, 211, 630 
 INTERPRETER 
 
 Affidavit of, 16 
 INTERROGATING 
 Part of bm, 12 
 
 answer on oath, waived, 12 
 specific interrogatories, 13 
 to one defendant, 12 
 INTERROGATORIES 
 
 In proceedings for contempt, 386 
 answer to, 386 
 order for, 385 
 To be annexed to commission, 184 
 INTRODUCTION 
 To biU, 11 
 
 another form, 11 
 by adult under guardianship, 11 
 corporation, 12 
 
 creditor on behalf of himself and others, 12 
 husband and wife, 11 
 infant, 11 
 
 several complainants, 11 
 in federal court, 12 
 ISSUE 
 
 Note of, 201 
 Notice cause is at, 144 
 JUDGMENT AT LAW 
 Bill to vacate, 637 
 JUDGMENT -CREDITORS 
 Bill by, 585 
 
 in aid of execution, 582 
 with double aspect, 589 
 supplemental bill to, 257 
 order appointing receiver in, 374 
 
956 index to forms 
 
 [keferbnces are to pages] 
 JURAT 
 
 To bill (or answer, or petition), 14 
 of divorce, 15 
 JURY 
 
 Order that issue of fact be tried by, 885 
 in divorce, 796 
 LAND CONTRACT 
 
 Bill for specific performance of against heirs and execu- 
 tors or- administrators, 678 
 vendee v. vendor, 676 
 vendor v. vendee, 682 
 verbal, 680 
 to foreclose, 460 
 
 quiet title against, 665 
 LIMITED DIVORCE 
 
 BiU for, 774 
 MECHANIC'S LIEN 
 
 Decree in foreclosiire of, 212 
 See bills to foreclose mechanic's lien 
 MISTAKE IN DEED 
 Bill to correct, 646 
 MORTGAGE 
 
 Bill to redeem from, 548 
 
 and compel application of payments, 550 
 See bills of foreclosure 
 MOTION 
 
 For appointment of receiver, 373 
 further answer, 128 
 
 order of reference to appoint receiver, 373 
 security of costs, 306 
 UH-der rule, 306 
 writ of assistance, 491 
 That complainant elect between law and equity, 320 
 
 defendant pay money into court, 323 
 To dissolve injunction, 364 
 
 expunge scandal from answer, 130 
 rectify deeree, 225 
 
INDEX TO FOEMS. 957 
 
 [references are to pages] 
 
 stay proceedings until cross bill is answered, 139 
 vacate default, 61 
 MULTIFABIOUSNESS 
 
 Demurrer for, 74 
 NE EXEAT 
 
 Affidavit to bill for, 882 
 
 Allowance of by circuit court commissioner, 882 
 
 circuit judge, 881 
 Bond to obtain discharge from, 883 
 
 sheriff on, 883 
 Clause in bill for, 881 
 Prayer for, 13 
 Writ of, 882 
 NISI 
 
 Order of confirmation, 169 
 NON-PAYMENT OP ALIMONY 
 Affidavit of, 781 
 Attachment for, 785 
 NOTICE 
 
 Affidavit of service of, 200 
 
 By circuit court commissioner of reference to him, 157 
 that he has prepared report, 157 
 county treasurer to owner of land that tax is delin- 
 quent, 500 
 purchaser at tax sale to owner of land, 516 
 Of amendments to transcript of substance of evidence, 290 
 appeal, 290 
 application for commission, 184 
 
 extension of time to take proofs, 168 
 injunction, 359 
 claim for examination of witnesses in open court, 179 
 exceptions to sureties, 310 
 filing bond, 309 
 hearing, 199 
 
 and examination of witnesses in open court, 200 
 
 of petition for alimony, 776 
 
 on exceptions to report, 166 
 
 or report for further directions, 166 
 
958 index to forms 
 
 [repbeences are to pages] 
 interrogatories to be annexed to commission, 184 
 motion or petition, 318 
 
 for security for costs, 308 
 sale by circuit court commissioner, 482 
 settling transcript of substance of evidence, 289 
 taking deposition, 181 
 
 proofs before circuit court commissioner, 167 
 That cause is at issue, 144 
 NUNC PRO TUNC 
 
 Clause in decree, 224 
 OBJECTIONS 
 
 To report of circuit court commissioner, 165 
 ORIGINAL BILL 
 
 In nature of bill of review, 269 
 supplemental bill, 251 
 ORDER 
 
 Allowing amendment to answer, 127 
 
 bill after demurrer filed, 194 
 sustained, 195 
 plea to part allowed, 195 
 decree, 229 
 sworn biU, 193 
 biU of review, 239 
 exceptions, 167 
 injimctions, conditional, 356 
 
 ex parte by circuit court commissioner, 358 
 endorsed on bill, 356 
 on bill of interpleader, 359 
 after notice by circuit judge, 357, 360 
 ne exeat by circuit court commissioner, 882 
 
 circuit judge, 881 
 plea, 100 
 
 supplemental bill, 255 
 Appointing commissioners to make partition, 711 
 guardian ad litem, 332 
 nisi, 329 
 
 register of court, 330 
 next friend for infant complainant, 327 
 
index to foems 959 
 
 [eepeeences aee to pages] 
 
 time and place of hearing application for transfer of 
 cause, 856 
 Approving contract for sale of land of infant, 851 
 By consent, 320 
 
 Caption of by circuit court commissioner, 154 
 circuit judge at chambers, 856 
 in open court, 210 
 Confirming final report of sale of land of infant, 853 
 report of circuit court commissioner on alimony, 779 
 of sale nisi, 169 
 
 sale on foreclosure, 489 
 so far as not excepted to, 166 
 sale in partition, 715 
 Convicting defendant of contempt, 387 
 Denying injunction, 360 
 
 motion to dissolve injunction, 365 
 
 that defendant make further answer, 129 
 Directing issue to be tried by jury, 885 
 
 in divorce, 796 
 Dissolving injunction, 365 
 Expunging scandal from answer, 130 
 Extending time to take proofs; 169 
 For alimony and expenses to complainant, 780 
 defendant, 780 
 attachment for non-payment of alimony, 784 
 
 other contempts, 385 
 execution for deficiency in foreclosure, 495 
 further answer, 128 
 hearing of application for transfer of cause, 856 
 
 petition of auditor general for foreclosure of tax 
 lien, 501 
 interrogatories in contempt, 385 
 for leave to amend answer, 127 
 bill after demurrer filed, 194 
 sustained, 195 
 
 after plea to part allowed, 195 
 sworn bill, 193 
 production of documents, 323 
 
960 index to foems 
 
 [bepeeences are to pages] 
 
 rehearing before enrollment of decree, 228 
 
 receiver of insolvent bank, 372 
 in creditor's suit, 374 
 partnersMp case, 375 
 
 sale of land in partition, 714 
 
 security for costs, 305 
 
 transfer of cause, 857 
 
 writ of assistance, 492 
 General form of confirmation nisi, 169 
 
 on motion contested, 319 
 not contested, 319 
 Modifying injunction, 366 
 Of publication, 44 
 
 unknown defendants, 45 
 
 reference as to alimony and expenses, 777 
 
 of petition for sale of land of infant, 848 
 
 in partition, 710 
 
 of plea of former adjudication or suit pending, 94 
 On motion or petition contested, 319 
 
 not contested, 319 
 Overruling demurrer, 78 
 
 exceptions, 166 
 
 plea, 100 
 Pro confesso and reference to circuit court commissioner, 54 
 court, 54 
 
 after publication, 54 
 
 in divorce, 58 
 
 on default for not answering, 58 
 Retaining bill with leave to bring action at law, 225 
 Staying proceedings until cross bill is answered, 139 
 Substituting assignee as complainant, 340 
 Suggesting death of party and that suit proceed, 364 
 Sustaining demurrer, 78 
 That cause stand over to add parties, 224 
 supply proofs, 225 
 
 complainant elect between law and chancery, 321 
 
 defendant pay money into court, 324 
 
 guardian contract for sale of land of infant, 849 
 
index to foems 961 
 
 [references are to pages] 
 issue of fact be trifed by jury in divorce, 796 
 original and cross suits be heard together, 140 
 representatives of deceased complainant be made de- 
 fendants, 269 
 To revive against representatives of deceased defendant, 267 
 in favor of representatives of deceased complainant, 268 
 To show cause against motion, 884 
 prayer of petition, 884 
 why attachment should not issue, 384 
 for non-payment of alimony, 782 
 injunction should not issue, 357 
 Vacating decree as to defendant not personally served, 61 
 default, 68 
 PAETITION 
 
 BiU for between heirs, 704 
 and for accounting, 705 
 dckver, 709 
 Decree of and reference to circuit court commissioner, 710 
 
 confirming report of commissioners, 713 
 Decretal order confirming sale, 715 
 Oath of commissioners, 712 
 Order appointing commissioners, 711 
 
 of sale in, 711 
 Report of circuit court commissioner in, 158 
 commissioners making partition, 712 
 PARTNERSHIP 
 
 Bill for dissolution, 725 
 
 and account and injunction, 728 
 settlement between partners after dissolution, 730 
 Decree for dissolution of, 223 
 Order for receiver in, 375 
 
 of reference to take account, 222 
 PETITION 
 
 For aUmony and expenses by complainant, 775 
 defendant, 775 
 commission to take testimony, 184 
 dissolution of corporation, 832 
 execution for deficiency, 494 
 
962 index to forms 
 
 [references are to pages] 
 guardian ad litem by complainant, 329 
 infant defendant, 331 
 relative of infant defendant, 332 
 leave to amend answer, 126 
 
 by correcting mistake, 126 
 bill after replication filed, 193 
 sworn bill, 191 
 file bill of review for errors of law, 237 
 new matter, 238 
 and supplement, 241 
 supplemental bill, 254 
 next friend, 326 
 production of documents, 321 
 rehearing, 227 
 
 revivor against representatives of deceased defendant, 
 265 
 
 deceased co-complainant, 267 
 For revivor by representatives of deceased complainant, 266 
 sale of real estate of infants, 847 
 separate maintenance of wife, 810 
 writ of assistance, 489 
 General form of, 317 
 Notice of, 318 
 
 Of assignee to be substituted as complainant, 340 
 To bar dower of insane wife, 816 
 rectify error in decree, 228 
 
 vacate decree, by defendant not personally served, 59 
 PRAYER 
 
 For general relief, 8 
 injunction, 13 
 ne exeat, 13 
 subpoena, 8 
 receiver, 13 
 PROBATE OF FOREIGN WILL 
 
 Bill for, 741 
 PRO CONPESSO AND REFERENCE 
 
 Common order to circuit court commissioner, 54 
 court, 54 
 
INDEX TO rOKMS 963 
 
 [kefeeences ake to pages] 
 after publication, 54 
 in divorce, 58 
 on failure to answer, 58 
 PRODtlCTION OF DOCUMENTS 
 Order for, 323 
 Petition for, 321 
 PROOFS 
 
 Certificate of circuit court commissioner to, 163 
 Order that cause stand over to supply, 225 
 Report of circuit court commissiener of, 160 
 
 in case pro eonfesso, 160 
 Report of circuit court commissioner of in divorce, 161 
 Taken before circuit commissioner, 163 
 PUBLICATION 
 
 Affidavit for order of, defendant absent from state, 43 
 concealed within state, 43 
 non-resident of state, 42 
 residence unknown, 42 
 unknown defendant, 44 
 Order of, 44 
 
 unknown defendants, 45 
 QUIET TITLE 
 
 Bill to, against fraudulent deed, 662 
 illegal tax, 661 
 recorded land contract, 665 
 Decree to, 217 
 RECEIVER 
 
 Application for by commissioner of banking department, 821 
 BiU by, to enforce liability of stockholders, 865 
 Bond of, 376 
 
 Decree that complainant's claim be paid by, 215 
 Motion for appointment of, 373 
 Order appointing for insolvent bank, 372 
 in creditor's suit, 374 
 partnership case, 375 
 of reference to appoint, motion for, 373 
 Prayer for in bill, 13 
 
964 iNDfiX TO FORMS 
 
 [references are to pages] 
 REDEMPTION 
 Decree for, 219 
 
 on proofs taken in open court, 221 
 See bills to redeem 
 REFERENCE TO CIRCUIT COURT COMMISSIONER 
 Common order pro confesso, 54 
 after publication, 54 
 in divorce, 58 
 on failure to answer, 58 
 Of plea of former suit pending, 94 
 REGISTER 
 
 Itemized bill of costs of, 304 
 Petition to for commission, 184 
 REHEARING 
 Order for, 228 
 Petition for, 227 
 REPLICATION 
 To bUl, 142 
 plea, 101 
 REPORT OF CIRCUIT COURT COMMISSIONER 
 As to alimony, 777 
 
 in limited divorce, 778 
 order confirming, 779 
 Exceptions to, 16^ 
 In partition, 158 
 
 On petition for voluntary dissolution of corporation, 159 
 Objections to, 165 
 Of amount due in foreclosure, 479 
 Of proofs, 160 
 
 in divorce, 161 
 Of sale in foreclosure, 483 
 REPORT OF COMMISSIONERS 
 In partition, 712 
 
 decree confirming. 711 
 REPORT OF GUARDIAN 
 
 Of contract for sale of land of infant, 850 
 Final, of sale of land of infant, 852 
 
ikdex to fobms 965 
 
 [references are to pages] 
 RESTORE DESTROYED DEED 
 
 BiU to, 641 
 RETURN OP SHERIFF 
 
 To injunction personally served, 361 
 subpoena, 36 
 writ of assistance, 494 
 REVIEW 
 
 Affidavit annexed to bill of, 241 
 And supplement, bill of, 244* 
 Bin of for errors of law, 239 
 new matter, 240 
 order granting leave to file, 239 
 petition for leave to file for errors of law, 237 
 new matter, 238 
 REVIVOR 
 
 Against representatives of deceased defendant order for, 267 
 petition for, 265 
 
 In favor of representatives of deceased complainant order 
 for, 268 
 
 complainant petition for, 266 
 Original biU in nature of bill of, 269 
 SALE 
 
 Affidavit of posting notice of, 483 
 
 Decree for, in foreclosure on proofs in open court, 481 
 
 report of circuit court commissioner, 479 
 Decretal order confirming ia partition, 715 
 Deed of circuit court commissioner upon, 487 
 Notice of by circuit court commissioner in foreclosure, 482 
 Order for in partition, 714 
 
 of confirmation of in foreclosure, 489 
 partition, 715 
 Report of by circuit court commissioner, 483 
 SALE OP LAND OP INFANTS AND INCOMPETENTS 
 Approval of bond of guardian, 850 
 Bond of guardian on, 849 
 Pinal report of sale by guardian, 852 
 Order approving contract of sale by guardian, 851 
 
 confirming final report of, 853 
 
966 index to foems 
 
 [eeferences aee to pages] 
 of reference on petition for, 848 
 that guardian make contract for, 849 
 Petition for, 847 
 
 Report of guardian that he has made contract for, 850 
 SCANDAL 
 
 Motion to expunge from answer, 128 
 Order to expunge from answer, 130 
 SECURITY FOR COSTS 
 
 Affidavit for under rule 3, 307 
 
 in other cases, 307 
 Bond for, 309 
 
 Exceptions to sureties on, 310 
 General undertaking for, 308 
 Justification of sureties, 310 
 Motion for under rule 3, 306 
 
 in other cases, 306 
 Notice of exceptions to sureties, 310 
 filing bond, 309 
 motion for, 308 
 Order for, 305 
 SEPARATE MAINTENANCE 
 Decree for, 813 
 Petition for, 810 
 SERVICE 
 
 Of injunction, sheriff's return, 361 
 notice, affidavit of, 200 
 subpoena, affidavit of, 37 
 Sheriff's return, 36 
 SIGNATURE 
 
 Affidavit of, 332 
 To bill, 13 
 
 by agent or attorney, 14 
 corporation, 13 
 infant, 13 
 
 religious corporations, 14 
 several complainants, 14 
 SPECIFIC PERFORMANCE 
 Answer to bill for, 119 
 
INDEX TO POBMS 967 
 
 [EEFERENCEa AEB TO PAGES] 
 
 Bill for — see bill for specific performance 
 
 Decree for vendee v vendor, 213 
 vendor v vendee, 214 
 STATING PART OF BILL 
 
 Last paragraph in, 23 
 STATUTE OF FRAUDS 
 
 Clause in answer claiming benefit of, 117 
 STATUTE OF LIMITATIONS 
 
 Clause in answer claiming plea of, 94 
 STAY OF PROCEEDINGS 
 
 Motion for, until cross bill is answered, 139 
 
 Order for, until cross biU is answered, 139 
 STIPULATION 
 
 To take deposition of witness, 180 
 by interrogatories, 181 
 STOCKHOLDERS 
 
 Bill by creditor to enforce liability of, 861 
 receiver to enforce liability of, 865 
 STYLE OF COURTS 
 
 Federal and State, 4 
 SUBPOENA 
 
 To appear and answer rule 4, d, appendix, 889 
 
 For witnesses, 179 
 duces tecum, 180 
 
 before circuit court commissioner, 180 
 SUBROGATION 
 
 BiU for, 536 
 SUBSTITUTION AS COMPLAINANT 
 
 Petition of assignee for, 340 
 
 Order for, 340 
 SUMMONS 
 
 Of circuit court commissioner, 157 
 SUPPLEMENTAL BILL 
 
 Demurrer to, 76 
 
 Order for leave to file, 255 
 
 Original bill in nature of, 251 
 
 Petition for leave to file, 254 
 
968 index to forms 
 
 [befeeenoes aee to pages] 
 Title to property changed, 258 
 To judgment creditor's bill, 257 
 TAX LIEN FORECLOSURE 
 
 Certificate of sale by county treasurer, 511 
 Decree in, 506 
 
 Notice by county treasurer to owner that land is delin- 
 quent, 500 
 by purchaser to owner to redeem, 516 
 Order of hearing and publication of petition of auditor 
 general for foreclosure, 501 
 TO SHOW CAUSE 
 
 Order on petition, 884 
 motion, 884 
 TESTIMONY 
 
 Commission to take, 185 
 Taken by circuit court commissioner, 163 
 TITLE 
 
 Of answer, 112 
 cause, 337 
 demurrer, 73 
 plea, 89 
 TRADES UNIONS 
 
 Bill to enjoin boycott hy, 873 
 interference by, 868 
 TRANSCRIPT 
 
 Of substance of evidence, 287 
 Amendments to, 290 
 Notice of settling, 289 
 TRANSFER OF CAUSE 
 Application for, 855 
 
 order for hearing of, 856 
 Order for, 857 
 TRUSTEE FOR BONDHOLDERS 
 
 Bill of foreclosure by, 464 
 TRUSTEE 
 
 Under deed, bill to remove, 607 
 will, biU to remove, 603 
 
index to fobms 969 
 
 [references are to pages] 
 UNKNOWN DEPENDANTS 
 
 Affidavit for order of publication as to, 44 
 Order of publication as to, 45 
 VENDOR'S LIEN 
 
 BiU to foreclose, 452 
 VERIFICATION 
 Of bill, 14 
 
 by agent, 14 
 
 foreigner, 16 
 
 one of several complainaints, 15 
 for divorce, 15 
 VOLUNTARY DISSOLUTION OF CORPORATION 
 Decree for, 218 
 Petition for, 832 
 
 Report of circuit court commissioner on, 159 
 WASTE 
 
 Bill to restrain, 559 
 WIFE 
 
 Petition of, for separate maintenance, 810 
 to bar dower of insane, 816 
 WILL 
 
 Foreign, bill to probate, 741 
 WITNESSES 
 
 Absent, notice of taking deposition of, 181 
 Application for commission to take testimony of, 184 
 Claim for examination of, in open court, 179 
 Commission to take testimony of, 185 
 Deposition of, 182 
 Subpoena for, 179 
 
 before circuit court commissioner, 180 
 duces tecum, 180 
 WRIT 
 
 Of assistance, 493 
 execution, 885 
 injunction, 360 
 ne exeat, 882 
 
GENERAL INDEX 
 
 FOR INDEX TO FORMS 
 
 SEE PAGE 939 
 
INDEX 
 
 [kefebences are to sections] 
 
 A 
 
 Abatement in equity, 229 
 Account stated, plea of, 109 
 Accounting, bill for, 477 
 
 before Circuit Court Commissioner, 162 
 between partners, 667, 669 
 barred by delay, 665 
 Real Estate, how regarded, 667 
 by executor of deceased guardian, 695 
 managing partner, 670 
 surviving partner, 668, 672 
 trustees, 551, 552 
 defendant may attend, 65 
 
 may have after foreclosure sale, 76 
 without cross bill, 147 
 exceptions to, 163 
 in bill to restrain waste, 501 
 jurisdiction in, 667 
 manner of, 163 
 
 partners entitled to, 663, 664, 668 
 when not ordered, 666 
 
 ordered, 163 
 who bound by, 163 
 Action on official bond ordered for, 49 
 Admission by pleadings, 175 
 
 of genuineness of documents, 174 
 solicitors cannot make in contempt,' 343 
 Administrators of judgment creditor may file creditor's bill, 514 
 mortgagee may foreclose, 358 
 mortgagor may redeem, 32, 478 
 
 971 
 
972 INDEX 
 
 [eepekences are to sections] 
 Acquiescence, defence in divorce, 748 
 
 Adjournment of court sine die when destroys jurisdiction in 
 tax case, 452, 453 
 proceedings to sell lands of tenant for life, 843 
 taking proofs before Circuit Court Commissioner, 158 
 Adultery, amendment of bill for divorce for, 774 
 ■ cohabitation of divorced parties is, 772 
 divorce for, 709, 774 
 
 vfhen barred, 776, 777, 778 
 evidence in ease of, 726, 775, 776 
 husband and wife cannot testify to, 726 
 Advertisement of sale on foreclosure, 372 
 Affidavit, answer on oath may be used as, 330 
 copy of to be served in contempt case, 338 
 counter, on motions and petitions, 274 
 entitling, 275 
 
 for order of publication, 51, 52, 54 
 how facts to be stated in, 278 
 in support of motions and petitions, 272, 279 
 jurat to, 275 
 
 not signed by affiant, 278 
 of interpreter, 19 
 
 of loss of certificate to tax sale, 426 
 publication of notices, 376, 452 
 regularity, 58 
 
 in divorce, 729 
 
 foreclosure, 367 
 on motion for receiver, 330 
 
 security for costs, 269 
 to dissolve injunction, 320 
 
 vacate order pro confesso, 67 
 to bill of costs, 251, 266 
 verify plea. 111 
 venue of, 275 
 Affirmation, by witnesses, 172 
 Affinity, marriage void for, 698 
 Agent, when not competent witness, 170 
 
iSTDEx 973 
 
 [references are to sections] 
 Agreement as to transfer of cause, 859 
 
 between solicitors to be in writing, 295 
 Alimony, 755 
 
 non-payment of is contempt, 334, 336 
 permanent after death of husband, 761 
 allowed in gross, 760 
 
 contract to pay percentage of to solicitors void, 762 
 decree for appealable, 762 
 enforcement of, 758, 763 
 may be ordered to cease, 765 
 no vested right in, 762 
 on divorce from bed and board, 764 
 Keal Estate, iu lieu of, 760 
 temporary, 736, 737, 738 
 at final decree, 739 
 ends at final decree, 740 
 enforcement of, 739, 742 
 
 on bill to annul marriage, 708 
 
 poverty of husband complainant no excuse for non- 
 payment, 741 
 « Supreme Court may order, 740 
 Amended Bill, answer to, 138 
 
 defence to, 183 
 Amendment of Answer by leave of court, 140, 181 
 without leave, 180 
 bill after death of complainant, 232 
 demurrer sustained, 97 
 plea, 118, 121, 176 
 by leave of court, 177 
 for divorce, 178, 725 
 
 partition, 637, 638 
 not to introduce matters subsequent to filing original, 
 
 178 
 of costs, 265 
 
 judgment creditors, 533 
 review, 219 
 
 parties added by, 178 
 to foreclose mechanics lien, 408 
 
974 INDEX 
 
 [eefeeences are to sections] 
 quiet title, 611 
 vacates order pro confesso, 62 
 without leave, 176 
 clerical errors, 178 
 plea, 117, 179 
 
 when considered as made, 182 
 Ancient practice. Introduction 
 Ancillary receivers, 329 
 Annoyance not amounting to cruelty, 785 
 Answer, 82, 130, 131 
 
 admits allegations not answered, 132 
 after death of complainant, 232 
 defendant, 232 
 demurrer overruled, 97 
 amendment of, 140, 180, 181 
 
 claiming benefit of cross-bill for affirmative relief, 142, 
 146, 411 
 taken pro confesso, 148 
 demurrer clause in, 136 
 frame of, 132, 133, 137 
 
 how signed, 137 * 
 
 in divorce, 715, 743 
 
 claiming benefit of cross-bill, 743, 750, 751 
 support of plea. 111, 112, 113 
 motion for further, 141, 805 
 
 must be profferred on motion to vacate order pro con- 
 fesso, 66 
 must show grounds of cross-bill, 143 
 objections to, 141 
 of infants, 139 
 
 officers of corporations, 802, 803, 805 
 right to, after amendment of bill, 637 
 sworn, foundation for motion to dissolve injunction, 320 
 
 used to oppose motion for receiver, 330 
 to accompany disclaimer, 126 
 amended bill, 138 
 
 supersedes plea, 123 
 answer claiming benefit of cross-bill, 142 
 
INDEX 075 
 
 [references are to sections] 
 bill of foreclosure, 364 
 
 may claim benefit of cross-bill, 395 
 bill of interpleader, 570 
 review, 221 
 in aid of execution, 519 
 to foreclose mechanics lien, 411 
 interrogatories in contempt proceedings, 341 
 judgment creditor's bills, 522, 529 
 petition to bar dower of insane wife, 794 
 waives right to demur or plead, 134 
 when need not be on oath, 130 
 plea to stand for, 119 
 Appeal, bill of review not to take place of, 221 
 bond on, 239 
 briefs on, 244, 245 
 costs on, 249, 250 
 final process after decree on, 254 
 from decree for permanent alimony, 762 « 
 of divorce, 769 
 of separate maintenance, 789 
 on voluntary dissolution of corporation, 826 
 foreclosure of tax lien, 424, 466 
 order of Circuit Court Commissioner, 166 
 taxation of costs, 251 
 hearing on, 243, 244, 246 
 in partition cases, 658 
 
 none from order for temporary alimony, 762 
 notice of hearing on, 243 
 printed record on, 242 
 proceedings in Supreme Court on, 240, 241 
 rehearing on, 253 
 settlement of evidence for, 239 
 time for, 238 
 
 to Supreme Court, 9, 234, 235 
 how taken, 238 
 when it lies, 235, 236 
 when proceedings stayed on, 237, 239 
 
976 INDEX 
 
 [repeeences are to sections] 
 
 Appearance of defendant, T7 
 
 after order pro conf4sso on publication, 71, 72, 75 
 effect of, 72, 75, 79, 80 
 subsequent ex parte proceediags void, 79 
 Application for sale of lands of infants and incompetents, 847 
 transfer of cause, 858 
 what to state, 863 
 Approval of bend on appeal, 239 
 Argument of case in Supreme Court, 244, 245, 247 
 motions in Supreme Court, 247 
 setting plea down for, 115 
 Assignee for benefit of creditors, 32, 831 
 to be examined on oath, 829 
 contest claims, 832 
 in bankruptcy may redeem, 478 
 of agreement proper complainant, 32 
 
 complainant substituted as complainant, 297 
 judgment proper complainant, 32 
 mechanic's lien may foreclose, 418 
 mortgage takes it subject to equities, 363 
 when not competent witness, 170 
 Assignment for benefit of creditors, creditor may apply to 
 court to interfere, 832 
 is a proceeding in chancery, 830 
 management of property, 329 
 manner of sale of property, 831 
 
 prevention of fraudulent transfer or judgment, 829 
 receiver in, 328 
 supervision of, 829, 831 
 time for closing up, how extended, 831 
 Assignor for benefit of creditors examination of, 829 
 
 of judgment not necessary party to creditors bill, 34 
 Assistance, Writ of, see "Writ of Assistance 
 Attaching creditors may attack fraudulent conveyance, 510 
 Attachment of officer for failure to return process, 47, 48 
 in contempt proceeding, 339 
 
 service of, 340 
 when vacated, 577 
 
INDEX 977 
 
 [references are to sections] 
 Attorney, may be made party to a bill for fraud, 35 
 Attorney General may file bill of discovery for escheats, 833 
 six copies of records and briefs to be served on in state 
 
 cases, 245 
 to appear in case against a corporation, 799 
 Auditor General to designate newspaper to publish tax peti- 
 tions, 422 
 
 execute deeds in tax lien cases, 425, 458 
 make petition in tax lien cases, 420 
 when proper complainant, 32 
 defendant, 32 
 Award of arbitrators obtained by fraud, 689 
 
 B 
 
 Bank insolvent, receiver in, 328 
 
 Beneficiaries not necessary parties to bill by trustee, 35 
 
 may follow trust fund, 550 
 Bill, allegations of when taken as admitted, 132 
 
 amendment of, 118, 611. See "Amendments." 
 
 by judgment creditor, 521 
 
 cannot be taken as confessed by infants or incompetents, 
 63 
 
 copy of to be served, 78 
 
 dismissal of, 64, 81 
 
 for accounting, 551 
 
 for contribution, 560 
 
 for discovery, 521, 835, 836 
 
 for dissolution of partnership. See "partnership." 
 
 for divorce, 709, 715, 718 
 
 for partition, 635, 636 
 
 for sale of land by executor, 837 
 
 for specific performance, 624 
 or cancellation, 626 
 
 for subrogation, 474 
 
 form of, 19 
 
 in aid of execution, 504, 511, 512, 514, 515, 520 
 answer to, 519 
 
978 INDEX 
 
 [references are to sections] 
 burden of proof on, 520 
 laches bars right to file, 513 
 parties to, 518 
 prayer of, 518 
 of foreclosure of land contract, 396 
 mechanics lien, 408 
 mortgage, 349 
 vendors lien, 394 
 review, see "Review, bill of," 209 
 revivor and supplement, 227 
 parts of, 17 
 parties to, 29 
 Bill praying for injunction, 315, 317 
 receiver, 330 
 relating to trusts, 551, 552, 553 
 stating part of, 20, 24, 26 
 to affirm marriage, 701 
 
 annul marriage, 701, 702, 703, 707 
 establish lien, 475 
 perpetuate testimony, 834 
 quiet title, 595, 596, 597, 598, 601 
 defence to, 610, 611 
 hearing and decree, 613 
 parties to, 612, 613 
 
 when it lies, .599, 602, 603, 604, 605, 607, 608, 609 
 to restrain waste, 502 
 redeem, 477, 487, 488 
 costs on, 493 
 decree on, 492 
 effect of dismissal of, 492 
 parties to, 491 
 proofs in, 491 
 
 who may file, 478, 479, 480, 482, 483, 484, 486, 493 
 verification of, 18, 19 
 voluntary dismissal of, 264 
 when taken as confessed, 56 
 with double aspect, 536 
 Bona fide purchaser protected, 506 
 
INDEX 979 
 
 [kefebences are to sections] 
 Bond for security for costs, 268 
 
 in contempt proceedings, 340, 347 
 
 of guardian of insane wife, 794 
 
 on appeal, 166, 239, 424 
 
 injunction against judgment, 582 
 
 suits at law, 307, 308, 309, 310, 312 
 Bondholders may foreclose mortgage, 360 
 Boobs of account not to be printed in record, 242 
 Boycott, injunction against, 305 
 Briefs in Supreme Court, 244, 245 
 
 how filed and served, 245 
 
 motions submitted on, 247 
 
 supplemental, 245 
 
 when case submitted on, 246, 247 
 Burden of proof, 506, 520 
 Burial lot not subject to partition, 646 
 
 Calendar of Court, 188, 194 
 
 Supreme Court, 246 
 
 when case stricken from, 242 
 Caption of orders by Circuit Court Commissioner, 165 
 Certificate of counsel to demurrer, 95 
 petition for rehearing, 205 
 plea. 111 
 
 sale for taxes, 426 
 Chattel mortgage, redemption of, 483 
 Children cannot attack the divorce of parents, 767 
 
 legitimacy of not affected by divorce, 773 
 
 provision for in divorce case, 731, 733, 755, 756 
 Choses in action reached by creditor's bill, 523 
 Circuit Court Commissioners, accounting before, 163 
 
 appeal from, 166 
 
 auxiliary judicial officer, 160 
 
 caption of order of, 155 
 
 deed by, 376 
 
 examination of receivers account by, 823 
 
980 INDEX 
 
 [references are to sections] 
 
 examination of witnesses before, 158, 159, 160, 730 
 
 fees of, 258 
 
 injunction by, 160, 311 
 
 notice of report by, 167 
 sale by, 374 
 
 orders of, 204, 313 
 
 powers and duties of, 160, 162 
 
 proofs before, 155, 157, 810 
 
 reference to, 59 
 
 register to be kept by, 164 
 
 reports of, 157, 165, 167, 377 
 
 sale by, 161, 164, 372 
 
 subpoena for witnesses by, 155 
 
 when disqualified who to act, 161 
 Circuit judge is judge of the Court in Chancery, 3 
 
 injunction by, 311, 316 
 Claim of appeal when to be filed, 238 
 Clerical errors, correction of, 178 
 Cloud on title, 608 
 Co-defendants, contribution between, 554, 558 
 
 cross-bill between, 145, 570 
 Co-sureties, contribution between, 554 
 Co-tenant, redemption by, 493 
 Co-habitation of parties after divorce, 772 
 
 when a bar to divorce, 777 
 Collection of judgment when enjoined, 306 
 
 note when enjoined, 304 
 Collusion fatal to divorce, 714, 749 
 
 must be negatived in bill for divorce, 714, 722 
 of interpleader, 568 
 creditor's bill, 522 
 Commissioners in partition, 642 
 Common orders, 203, 271 
 Compensation to parties in partition, 646 
 Complainant, assignee of substituted, 297 
 
 attorney general to be when, 30, 32 
 
 death of, how suit revived, 232 
 
 default of, 81 
 
INDEX 981 
 
 [eefeeknces are to sections] 
 does not own debt, defence of, 363 
 in divorce must not be likewise guilty, 714, 721 
 may purchase at foreclosure sale, 879 
 may take issue on plea, 116, 121 
 must answer answer in nature of cross-bill, 142 
 parted with interest, plea of, 109 
 plea to person of, 107 
 
 when not to have specific performance, 621, 622, 623 
 when to give security for costs, 268, 269 
 pay costs, 264 
 serve copy of biU, 78 
 several may join, 686 
 who is proper, 32 
 who may join as, 31 
 Condonation, 744, 745 
 Confirmation of report order nisi, 165 
 
 sale, 651 
 Connivance, divorce barred by, 776 
 Consanguinity, 698 
 Consent, no divorce by, 729 
 Contempt, 333 
 
 affidavit for, 338 
 attachment for, 340 
 commitment for, 338, 347 
 criminal, 333 
 
 interrogatories on, 341, 342, 343 
 judgment on, 344, 345, 346 
 order to show cause in, 339 
 ordinary, 313, 334, 335 
 
 failure by receiver to obey order, 336 
 non-payment of alimony, 334, 336, 742 
 second application for injunction, 313 
 violation of injunction, 336 
 proceedings for, 338 
 purgation of, 348 
 
 when failure to execute deed is not, 337 
 when non-payment of money is not, 337 
 women not exempt from imprisonment for, 345 
 
982 INDEX 
 
 [eeferences are to sections] 
 Contingent estate of infants, sale of, 856 
 Continuance of case, motion for, 274 
 
 of motions and petitions, 273 
 Contract, reformation of, 594 
 
 specific performance of, 614, 615, 616, 617, 618, 619 
 Contractor may obtain lien, 397 
 
 principal need not serve notice of filing lien, 405 
 to furnish sworn statement, 397, 402 
 Contribution, 554 
 
 between co-defendants, 554, 558 
 co-sureties, 554 
 
 joint tenants and tenants in common, 555 
 legatees and devisees, 556 
 partners, 556 
 parties to bill for, 560 
 Conveyances, fraudulent vacated, 504, 505 
 not when for value, 506 
 valid between parties, 510 
 of real estate when enjoined, 304 
 Conviction of crime not to disqualify witness, 168 
 Corporations Banking, proceedings against, 799 
 
 caimot dissolve themselves except under statute, 828 
 
 creditors to present claims against, 804 
 
 franchise of when enjoined, 798 
 
 liability of directors and stockholders, 801 
 
 officers to disclose stock and assets, 802 
 
 proceedings against, 797, 805 
 
 voluntary dissolution of, see "Voluntary Dissolution of 
 
 Corporations," 807 
 when subrogated, 473 
 Costs, affidavit to bill of, 251, 266 
 appeal from taxation of, 251, 265 
 by rule, 255 
 
 complainant to pay when, 657 
 counsel fee when not allowed, 250 
 extra counsel fee allowed, 250 
 in creditor's suit, 527 
 divorce, 734 
 
INDEX 983 
 
 [rkpebences are to sections] 
 discretion of court, 255 
 interpleader, 571, 574 
 mechanic's lien, 417 
 partition, 645, 651 
 redemption, 493 
 tax cases, 423 
 on re-hearing, 252 
 prospective, 263 
 taxation of by Celrk of Supreme Court, 251 
 register, 264, 267 
 notice of, 251, 264, 267 
 what taxable, 263 
 
 in Supreme Court, 249, 250 
 County Treasurer, certificate of tax sale by, 426 
 not to purchase at tax sale, 457 
 report of tax sale by, 425, 458 
 sales for taxes by, 425 
 Court, computation by in foreclosure, 366 
 files not to be altered without leave, 296 
 removed without leave, 296 
 parties may inspect, 296 
 register to endorse date of filing, 296 
 when withheld from public, 296 
 not to be enjoined, 301 
 
 of Chancery, ancient practice in. Introduction 
 development. Introduction 
 jurisdiction of, 1, 2, 3, 4, 5 
 origin of. Introduction 
 proceedings, 14 
 style of, 7, 8 
 transfer of cause to, 859, 860, 861 
 Courts having equity jurisdiction, 6 
 
 in Michigan, 8 
 Covenants, fraudulently obtained, 690 
 
 violation of injunction against, 304 
 Creditor, diligent to have preference, 527 
 may be receiver of corporation, 331 
 
984 INDEX 
 
 [references are to sections] - 
 file bill against corporation, 799 
 
 officers of corporation, 800 
 make application to court in assignment case, 829, 832 
 proper complainant to enforce assignment, 32 
 Creditors may join as complainants, 31' 
 of corporation meeting of, 817 
 
 presentation of claims by, 804, 817, 820 
 suit by barred, 828 
 Cross Bill, Answer in nature of, 142 
 
 complaiaant to answer, 142 
 taken as confessed, 148 
 answer must show grounds of, 143 
 fails when defence on same ground fails, 144 
 frame of, 146, 148 
 iu divorce, 750 
 
 to annul marriage, 704 
 mechanic's lien, 408, 411 
 quieting title, 610 
 must be germane to original, 144 
 not necessary in interpleader, 570 
 object and use of, 143 
 subpoena in, 148 
 when at issue, 144 
 
 becomes original, 144 
 heard, 190 
 
 may be filed, 143, 145 
 necessary, 143 
 
 proceedings in original case not delayed by, 148 
 Cruelty, divorce for, 709, 710 
 instances of, 782, 787 
 must be aggravated, 785 
 not confined to physical violence, 781 
 not good countercharge to adultery, 746 
 opprobrious names, 783, 784, 785 
 refusal to cohabit, 784 
 what is without physical violence, 783, 784 
 when divorce for denied, 782, 788 
 
INDEX 985 
 
 tKEFERENCES ARE TO SECTIONS] 
 
 Cumulative evidence not ground for rehe^riag, 206 
 bill of review, 214 
 
 D 
 
 Dam, erection of enjoined, 682 
 Death of claimant of mechanic's lien, 418 
 complainant, 232 
 debtor in creditor's suit, 530 
 defendant, 232 
 
 either party in divorce, 199, 752 
 partner, 662 
 party to suit, 232 
 purchaser at tax sale, 427 
 suggestion of, 232 
 Debtor may prefer creditor, 507 
 
 wife to other creditors, 507 
 to corporation to account to receiver, 816 
 Decree, enrollment of, 201, 202 
 final, 195, 197 
 
 for accounting between partners, 476, 479 
 by trustees, 548 
 afSrmance or annulment of marriage, 706 
 separate maintenance, 789, 791 
 specific performance, 617, 618, 619 
 how prepared and signed, 200 
 in divorce, 754, 755, 756, 761, 763, 767, 768, 769 
 appeal from, 769 
 as to children, 755, 766, 
 effect of, 770, 771, 772, 773 
 for alimony, 757, 759, 760 
 appealable, 762 
 enforcement of, 758 
 revision of, 758, 763, 765 
 vacation of, 766, 767, 768 
 interpleader, 574 
 partition, 640, 644, 645 
 interlocutory, 19^ 
 
 in interpleader, 571 
 
986 
 
 INDEX 
 
 [BEFEKENCES ABE TO SECTIONS] 
 
 lost may be restored, 199 
 must conform to bill, 195 
 of foreclosure mechanic's lien, 415, 416, 417 
 execution on, 417 
 mortgage, 366, 369, 370 
 
 for deficiency, 383, 384, 385, 386, 387 
 tax lien, 423, 424, 454 
 effect of, 455 
 when avoided, 453, 456 
 supreme court, 248 
 on bill taken as confessed, 60, 61, 70 
 confirmation of, 74 
 vacation of, 72 
 bill to quiet title, 613 
 
 redeem, 492 
 issue of fact on plea, 121 
 voluntary dissolution of corporation, 824 
 parts of, 198 
 relief given by, 195 
 that corporation be dissolved, 811 
 what appealable, 236 
 
 when to relate back to time of hearing, 199 
 Deed, establishment of by cross bill, 145 
 on foreclosure sale, 351, 371,. 376 
 of tax lien, 425, 452 
 
 Auditor General to execute, 425, 458 
 effect of 426, 464, 465 
 holder of to prove validity, 465 
 when void, 458, 465 
 sale in partition, 651 
 vacated for fraud, 690 
 Default, amendment of bill vacates, 52 
 
 application to vacate must be prompt, 69 
 
 facts showing must appear from records and files, 57 
 
 of complainant, 8l 
 
 of defendant, 56 
 
 setting aside discretionary, 68 
 
 when set aside, 67, 71, 72 
 
INDEX 987 
 
 [repebences ake to sections] 
 Defence, 77, 82 
 
 in contempt proceedings, 338 
 
 divorce, 743, 744, 745, 746, 747, 748, 749 
 foreclosure, 362, 363 
 partition, 636 
 not stated in answer not available, 133 
 that bill states no ground for relief, 133 
 to bill of review, 220 
 
 creditor's suit, 529, 530 
 Defendant, appearance by, 77 
 
 after decree pro confesso on publication, 71, 72, 73 
 effect of, 72, 75, 78, 80, 81 
 entitled to copy of bill, 78, 81 
 
 notice of all proceedings, 389 
 cross bill against, 145 
 default of, 56 
 
 set aside, 66, 67, 71, 72 
 forcibly dispossessed bars suit to quiet title, 601 
 in divorce when prohibited to marry, 755 
 foreclosure when may not deny title, 362 
 interpleader allowing bill to be taken pro confesso 
 
 effect of, 573 
 judgment creditor's suit examination of, 535 
 may attend accounting after bill taken pro confesso, 65 
 
 establish claim to land by cross bill, 610 
 must sign and verify plea. 111 
 representative of deceased when to be made, 232 
 
 complainant when to be made, 232 
 surreptitious entry by when not possession, 601 
 to answer when demurrer overruled, 97 
 
 plea overruled, 120 
 no personal decree against one not personally served, 60 
 unknown how proceeded against, 613 
 when may notice for hearing on pleadings, 157 
 
 must proffer answer on motion to vacate default, 66 
 party may become on his own motion, 613 
 Defendants, all persons against whom relief is sought are, 33 
 all persons interested besides the complainant, 33, 35, 36 
 
988 INDEX 
 
 [references are to sections] 
 cannot be joined for separate and distinct frauds, 37 
 contribution between, 554, 558 
 in interpleader claims of to be shown by answer, 570 
 may be legal or equitable, 562 
 cross bill between not necessary, 570 
 issues between, 572 
 may demur, 570 
 
 when may indemnify complainant and take fund, 574 
 names of all to be in subpoena, 39 
 
 proceedings against absent or concealed, 50, 51, 52, 53, 54 
 when all parties interested need not be named as, 34 
 who are proper, 33, 35, 36 
 who need not be made, 34 
 Deficiency in foreclosure, decree upon, 352 
 execution for, 384, 385, 386 
 to be reported, 282 
 Delay, when bars right to redeem, 482 
 Demurrer, 83 
 
 cannot disclaim by, 126 
 
 certificate of counsel to, 95 
 
 clause in answer, 136 
 
 for multifariousness, 88 
 
 frame of, 91, 98 
 
 general, 84 
 
 hearing of, 97 
 
 if overruled defendant may answer, 97 
 
 if sustained complainant may amend, 97, 176 
 
 joinder in not necessary, 96 
 
 joiut, 87 
 
 may be amended, 184 
 
 noticed for argument, 96 
 to whole bill or to part, 89, 93 
 order overruling general appealable, 235 
 "ore tonus," 85 
 overruled if too general, 90 
 several reasons for may be assigned, 91 
 speaking, 94 
 special, 85, 88 
 
INDEX 989 
 
 [references are to sections] 
 sustained if complainant shows no interest, 92 
 to amended-bill, 183 
 
 bill of interpleader, effect of sustaining, 570 
 bill of review, 220 
 
 bill to quiet title when not sustained, 606 
 Deposit in ease rehearing is granted, 205 
 
 on granting injunction against suit at law, 307, 308, 309 
 when dispensed with, 310 
 Deposition of absent, infirm or sick witness, 154 
 how taken, 158 
 when not affected by death of party, 170 
 Desertion, actual abandonment is, 712 
 divorce for, 709, 710, 780 
 
 proofs may be taken forthwith, 713 
 Devisees, contribution between, 559 
 
 of mortgaged land when entitled to subrogation, 473 
 Directors of corporations, liability of determined, 801 
 may file petition for dissolution, 808 
 when proper parties to bill against corporation, 800 
 when not deprived of management by injunction, 301 
 Disclaimer cannot be made by demurrer, 126 
 what is, 125 
 when accompanied by answer, 126 
 
 release, 127 
 may be to part of bill, 128 
 Discovery in creditor's suit, 521 
 other cases, 836 
 of escheats, 833 
 Dismissal of bill after death of party, 232 
 Dissolution of corporation at law, 747 
 voluntary, 808 
 injunction, 320 
 partnership, bill for, 677 
 how effected, 662 
 Distribution of assets of corporation, 818, 819, 820, 821 
 
 second, 819 
 Divorce, acquiescence when a defence to, 748 
 affidavit of regularity in, 729 
 
990 INDEX 
 
 [refeeences are to sections] 
 alimony, permanent, decree for, 757,. 758, 759 
 in gross, 760 
 is appealable, 762 
 
 permanent, decree for, revision of, 758, 763, 765 
 temporary, order for, 736 
 petition for, 737, 738 
 answer in nature of cross bill to be on oath, 743 
 
 need not be on oath but may be, 715, 743 
 bill for, 717, 718, 719, 720 
 amendment of, 725 
 must be on oath, 717 
 
 verification and jurat must negative collusion, 722 
 essential but may be supplied by amendment, 724 
 children, custody of pendente lite, 731, 733 
 
 decree concerning may be altered from time to time, 
 
 755 
 decree concerning when divorce granted for force or 
 fraud, 756 
 decree in, 754, 755, 756, 757, 758, 759, 760, 761, 763, 767, 
 768, 769 
 
 effect of, 770, 771, 772, 773 
 
 may be on answer in nature of cross bill, 750, 751 
 
 prohibit marriage of defendant for a time, 755 
 not granted by consent, 729 
 in collusion, 714 
 pro confesso without proof, 726 
 solely on admissions, 726 
 when complainant equally guilty, 714 
 rescission of, 767 
 defence in, 743 
 
 grounds of, acquiescence, 748 
 condonation, 744, 745 
 provocation, 747 
 recrimination, 746 
 that marriage was void, 743 
 disposition of property by husband enjoined when, 732 
 evidence in, 726 
 
 how taken before Circuit Court Commissioner, 730 
 
INDEX 991 
 
 [references are to sections] 
 expenses of wife, order for, 734 
 from bed and board, grounds of, 709 " 
 not favored, 711 
 bonds of matrimony grounds of, 709, 710 
 injunction on disposition of property by husband, 732 
 jury trial in. Court may order, 753 
 order of reference in, 727 
 as to alimony, 738, 757 
 prayer of bill when not to be amended, 17.8 
 proceedings how conducted, 716, 723 
 proofs when to be taken, 713, 729 
 prosecuting attorney to appear in case of minor children, 
 
 724 
 receiver of husband's property when appointed, 328 
 residence of complainant jurisdictional, 712 
 
 when cause arose out of state, 712 
 restraint of wife by husband pendente lite enjoined, 731, 
 733 
 Documents, admission of genuineness, effect of refusal, 174 
 
 request for, 174 
 Double aspect, bill with, 536, 626 
 Dower, after decree of divorce, 770, 771 
 
 compromise of, equity will determine, 695 
 in suit for partition, 645 
 
 value of inchoate how settled, 655 
 of insane wife, proceedings to bar, 793, 794 
 
 sale of, 795 
 release of in lands of infants and incompetents, 852 
 Dowress, share of proceeds of sale in partition, 657 
 Drunkenness habitual ground for divorce, 709 
 Duress avoids marriage when, 699, 703 
 may be physical or moral force, 703 
 
 E 
 
 Eaves overhanging when a nuisance, 682 
 Ejectment, bill to quiet title not to take place of, 609 
 when may be enjoined, 303. 
 
992 INDEX 
 
 [references abb to sections] 
 Enrollment of decree, 201 
 effect of, 202 
 
 must be made before final process, 201 
 sale on foreclosure, 372 
 Equitable assets of debtor reached by creditor's bill, 521, 523 
 assignment of mortgage supports foreclosure, 355 
 estoppel how stated in answer, 135 
 interest of defendant defeats bill to quiet title, 609 
 interest subject to execution, 511 
 owner of land when entitled to subrogation, 473 
 Equities priority of, established on cross bill, 145 
 Equity, Courts oi, 6 
 jurisdiction of, 1 
 
 exclusive in partition, 632 
 inherent, 4 
 
 In cases of fraud, 687 
 when will not interfere in cases of fraud, 687, 691 
 will not adjust equities between wrongdoers, 691 
 interfere when remedy at law complete, 2, 687 
 Errors, of law, \iill of review for, 212 
 Escheats, bill of discovery for, 833 
 
 disclosure of, 833 
 Establishment of liens, 475 
 
 bill for, 475, 476 
 Estate in possession, what is, 631 
 Estates of decedents, jurisdiction in, 694, 695 
 construction of wills, 696 
 probate of foreign wills, 697 
 Evidence, 168 
 
 admissibility of not ruled upon by circuit court com- 
 missioner, 159 
 admissibility of not ruled upon by court until hearing 
 173 
 admission of genuineness of document, 174 
 before circuit court commissioner, 158 
 
 commissioners in partition, 642 
 bill in foreclosure of mechanic 's lien is, when, 168, 408 
 
INDEX 993 
 
 [references are to sections] 
 confidential communications between husband and wife, 
 170 
 
 to attorneys, 169 
 physicians, 169 
 priests, 169 
 cumulative not ground for bill of review, 214 
 depositions how taken, 158 
 
 not affected by death of either party, 170 
 objections to, 174 
 
 taken by one party may be used by either, 174 
 documents how admission of genuineness obtained, 174 
 in divorce, 713, 728, 729 
 
 for adultery, 726, 775, 776, 
 accounting by trustees, 551 
 
 in partnership, 676 
 cases of fraud, 694 
 tax foreclosure, 423 
 newly discovered, biU of review on, 214 
 
 rehearing on, 206 
 of matters within knowledge of deceased party, 170, 171 
 
 opposite party right to take, 173 
 pleadings, effect of, 175, 408 
 privileged communicatidns, 169, 170 
 
 waiver of, 171 
 rules of same as at law, 168 
 settlement of for purpose of appeal, 239 
 reference to take, 59 
 statements of deceased party, 628 
 Exaioination of witnesses before circuit court commissioner, 
 155, 158 
 in open court, 153 
 
 when right to be claimed, 152 
 when may be taken stenographically, 158 
 Exceptions, how brought to hearing, 165 
 not to be taken to answer, 141, 805 
 to report of circuit court commissioner, 167 
 commissioners in partition, 643, 645 
 
994 INDEX 
 
 [ees^renoes ake to sections] 
 Bxeeution, bill in aid of — see Bill in aid of execution, 504 
 for deficiency in foreclosure, 352, 354, 386, 387 
 
 defence to, 387 
 in mechanic's lien, 417 
 
 return of, to sustain judgment creditor's -bill, 521, 526 
 Executor of judgment creditor may file creditor's bill, 514 
 mortgagee may foreclose, 358 
 sales of land by, 837 
 when not proper party to accounting, 36 
 Ex parte application for injunction, 316 
 
 proceedings when void, 79 
 Expenses of wife in divorce husband to pay, 734 
 taxable as costs, 255, 263 
 
 F 
 
 Failure by husband to support wife, divorce for, 709, 710 
 
 separate maintenance for, 789 
 Fees of circuit commissioner, 258 
 printers, 261 
 
 register in chancery, 238, 256 
 register of deeds, 260 
 sheriff, 257 
 witnesses, 259 
 Fictitious debts, judgment on, vacated in creditor's suit, 523 
 Final decree, 197 
 Folio, what is, 262 
 Force invalidates marriage, 699 
 Foreclosure of land contract, 395 
 bill for, 396 
 
 proceedings and sale on, 396 
 mechanic's lien, 408, — see "Mechanic's lien." 
 bUl for, 409 
 
 by sub-contractor, laborer, or material man, 410 
 parties to, 410 
 fraud defeats, 398 
 receiver in, 328 
 
INDEX 995 
 
 [eeferknces are to sections] 
 mortgage, affidavit of regularity in, 367 
 bill for by assignee, 355 
 
 bondholder, 360 
 
 executor or administrator, 358 
 
 legatee, 358 
 
 surviving mortgagee, 357 
 
 trustee, 359, 360 
 
 parties to, 352, 355, 356 
 bill of review on must offer security, 218 
 
 prayer of, 354 
 
 what to state, 353 
 
 when not on oath, 361 
 
 when to be filed, 364 
 bill foi- wher« to be filed, 350 
 
 who may file, 356, 357, 358, 359, 360 
 computation of amount due, 365, 366 
 confirmation of sale, 377 
 decree for execution for deficiency, 352 
 payment on sale, 369, 370 
 
 when not made pro confesso without proofs, 366 
 
 when personal against guarantors, etc., 370 
 deed upon, 376 
 
 to be deposited with register of deeds, 376 
 
 when operative, 351, 371 
 
 when delivered to purchaser, 376 
 defence to, 362 
 
 must be stated in answer, 364 
 
 what defendant entitled to, 363 
 deficiency application for execution for, 384 
 
 execution for, 352, 386 
 
 personal decree for, 370, 383, 384, 385 
 
 report of, 382 
 exceptions to report of sale, 377, 378 
 hearing, 368 
 
 may be on answer in nature of cross bill, 365 
 notice lis pendens, 368 
 
 of sale, 374 
 
 publication of, 371 
 
996 INDEX 
 
 [references are to sections] 
 petition on default in subsequent instalments, 391 
 proof of publication and posting notice of sale, 376 
 purchaser at sale, rights of, 379 
 receiver not appointed in, 332 
 redemption after sale, 371 
 
 proceedings on, 376 
 reference to compute amount due and take proofs, 365 
 relief to defendant on answer in nature of cross bill, 
 
 365 
 relief to defendant without cross bill, 147 
 report of amoimt due, 162, 365 
 sale, 377 
 
 confirmation of, 377 
 exceptions to, 377, 378 
 sale, adjournment of, 374 
 
 by whom and how made, 372 
 
 when of entire property although debt not all 
 
 due, 392 
 when not aflPected by appearance of defendaiit 
 
 after default on publication^ 76 
 when resale to be made, 375 
 when stayed by appearance of defendant after 
 
 default on publication, 75 
 when to be made, 351, 371 
 when vacated, 378 
 where to be made, 372 
 whp may be purchaser at, 379 
 suit retained to enforce subsequent instalments, 388 
 so retained is substantially new case, 389 
 proceedings upon, 389 
 surplus disposition of, 381 
 
 to be reported and brought into court, 377 
 writ of assistance to purchaser, 380 
 tax lien, 420 
 
 annulment of deed or certificate of sale, 427 
 appeal from, 424, 467 
 
 auditor general to designate newspaper fpr publi- 
 cation, 422 
 
[refekences are to sections] 
 cancel deed, 459 
 make deeds, 425, 458 
 make petition for, 420 
 cancellation of sale, 426, 464 
 certificate of sale, 426 
 
 proceedings when lost, 426 
 redemption, 426 
 circuit judge to make order for hearing and publi- 
 cation of petition, 422 
 confirmation of sale, 425, 458 
 county treasurer to make sales, 425 
 notify owners, 421 
 receive redemptions, 426 
 report redemptions, 426 
 sales, 458 
 court jurisdiction of, 420, 423 
 
 when lost, 452, 454 
 decree, 423 
 
 aOirms validity of tax, 455 
 appealable, 424 
 how entered, 424 
 need not be enrolled, 454 
 when avoided, 456 
 when cannot be made, 452 
 when ineffectual, 453, 454 
 deed, effect of, 426, 464, 465 
 when to be executed, 458 
 defence, by objections, 423 
 evidence on contest how taken, 423 
 hearing, 423 
 
 lands of infants and incompetents, proceedings as 
 to, 424 
 
 state tax, not to be -included in petition, 466 
 when bid off to state, 424, 425 
 when may be readvertised, 425 
 
998 INDEX 
 
 [references are to sections] 
 notice to owner by county treasurer, 421 
 purchaser, 449 
 
 sheriff to serve and return, 459 
 objections to be filed with county clerk, 423 
 to sale and hearing of, 458 
 to validity of tax when to be made, 451 
 order and petition how published, 423, 452 
 order of hearing how made, 422 
 owner, duty to watch tax proceedings, 452 
 
 may pay part of tax and contest remainder, 466 
 may redeem, 458 
 petition of auditor general, 420 
 
 not to include state tax lands, 466" 
 part of tax record, 420 
 to vacate sale, 463 
 proceedings, how far to follow chancery practice, 424 
 on death of purchaser, 427 
 when sale set aside, 426 
 proof of publication of order and petition, 421 
 proeecuting attorney to prosecute petition, 423 
 publication of order and petition, 422, 423, 452 
 effect of, 452 
 
 purchaser at sale, certificate to, 426, ' 
 
 if dispossessed, entitled to pay for improvements, 
 
 427 
 may restrain waste, 448 
 proceedings on death of, 427 
 when entitled to deed, 458 
 possession, 450, 461 
 must demand possession, 461 
 to pay back taxes on land, 425 
 redemption, 426, 450, 458 
 effect of, 450 
 favored by courts, 460 
 sales, certificate of, 426 
 confirmation of, 458 
 
 county treasurer not to purchase at, 457 
 how, when and where made, 425 
 
INDEX 999 
 
 [eepebences are to sections] 
 objection to, 458 
 report of, 425 
 when not vacated, 425, 426 
 who may not purchase at, 457 
 sheriff to serve notice of purchaser on owner, 459 
 tax must be paid pending an appeal, 424 
 tax record how made up, 420, 421, 422, 423, 425 
 
 to have copy of decree annexed, 424 
 tax title, deed not prima facie evidence of, 465 
 when valid, 466 
 void, 465 
 writ of assistance, petition for, what to state, 462 
 when issued to purchaser, 426, 449 
 vendor's lien, 3.93 
 
 bill for what to state, 394 
 proceedings in, 394 
 Fraud, 687 
 
 avoids marriage, 699, 703 
 bill of review for, 213 
 
 to cancel deed for, 598 
 details of, when need not be stated in bill, 516 
 equity has inherent jurisdiction of, 687 
 will not aid party equally guilty, 691 
 
 interfere when remedy at law ample, 687 
 evidence, great latitude allowed in 693 
 in obtaining mortgage good defence to foreclosure, 362 
 party defrauded must act promptly, 692 
 what transactions vacated for, 688, 689 
 when will defeat mechanic 's lien, 398 
 when sufficiently charged in bill, 582 
 vitiates sale of land of infants and incompetents, 857 
 Frauds, statute of, plea of, 109 
 Fraudulent conveyances, 505, 508 
 
 all need not be attacked in same bill, 516 
 bona fide purchasers protected, 506 
 burden of proof to show good faith, 506 
 criterion of, 506 
 valid between parties thereto, 510 
 
1000 
 
 INDEX 
 
 [references abb to sections] 
 what are not, 507 
 when set aside in favor of creditors, 506 
 
 void as to subsequent creditors, 510 
 who may attack, 509, 510 
 Fraudulent execution of trust may be enjoined, 302 
 Fund to be paid into court in interpleader, 567 
 
 G 
 
 Grantee in mesne conveyance when not necessary defendant, 36 
 Grantor of trust deed when not necessary defendant in cred- 
 itor's suit, 34 
 Guarantor of debt proper party defendant in foreclosure, but 
 
 not necessary party, 34 
 Guardian ad litem, appointment of, 285, 286, 287 
 in partition, 334 
 
 appointment of for insane wife, 794 
 circuit court commissioner may appoint, 162 
 for unknown defendants, 613 
 to sell la'ud of infants and incompetents, 848 
 for infants or incompetent, bond to be given by, 848 
 may petition for sale of land of ward, 847 
 not to receive money until security given, 857 
 takes no right or title to land, 853 
 to report agreement for sale, 849, 855 
 when to make deed on sale, 849, 855 
 insane wife, duties of, 794, 795 
 may join husband in deed, 795 
 sell right of dower, 795 . 
 to apply income as directed by court, 795 
 Guardian in bill by executor for sale of land, 838 
 Guardians represent their wards in partition, 634, 651, 653 
 
 when may consent to partition, 653 
 Guilt of wife no defence to temporary alimony, when, 738 
 
 H 
 
 Hearing, either party may notice case for, 157 
 final, what is, 185 
 
INDEX 1001 
 
 [references are to sections] 
 former orders, how disposed of at, 192 
 in foreclosure, 368 
 
 partnership case, 679 
 partition, 640 
 supreme court, 244 
 interlocutory, 185 
 notice of, 186 
 
 how served, 187 
 of bill to quiet title, 613 
 
 motions and petitions, 273 
 original and cross bill together, 190 
 petition for leave to file bill of review, 216 
 tax lien foreclosure, 423, 424 
 may be adjourned, 424 
 on pleadings when defendant may notice case for, 157 
 and proofs, I9l 
 retaxation of costs, 251, 265 
 order of proceedings at, 191 
 Holidays when included in time for giving notice, 293 
 Homestead, conveyance of not fraudulent as to creditors, 507 
 contract to convey void if not signed by wife, 628 
 levy on, vacated by bill to quiet title, 602 
 rights do not preclude partition, 631 
 wife necessary party to foreclosure of, 36 
 Husband and wife when proper co-complainants, 31 
 answer of to petition for separate maintenance, 789 
 to pay expenses of wife in divorce, 734 
 temporary alimony in divorce, 736 
 how compelled, 739 
 may be compelled to pay expenses of wife in divorce 
 suit, 734 
 
 suit for separate maintenance, 789 
 temporary alimony, 739 
 when may be decreed to provide separate maintenance for 
 
 wife, 789 
 may file petition to bar dower of insane wife, 793 
 not necessary party to bill by wife, 35 
 to testify against wife, 170 
 
1002 INDEX 
 
 [ekferences are to sections] 
 
 I 
 
 Idiots, marriage of void, 698 
 Imprisonment for contempt, 344, 345 
 
 commitment what to specify, 347 
 
 limitation of, 347 
 
 women not exempt from, 345 
 Inadequacy of price when no defence to bill for specific per- 
 formance, 628 
 Incapacity, physical, when ground for divorce, 709, 779 
 Incompatibility not ground for divorce, 720 
 Incompetent persons, answers of, 139 
 
 bill cannot be taken pro confesso against, 63 
 
 guardian ad litem for, 285, 286, 287 
 
 lands of, cancellation of sale of for tax lien, 464 
 withheld from sale for tax lien, 424 
 
 proceedings by and against, 281 
 
 sale of lands of, 847 — See "Sale of lands of infants and 
 incompetents. ' ' 
 Incumbrance on land of infants or incompetents when 
 
 ordered to be paid and discharged, 853 
 Indemnity from defendants to complainant in interpleader, 574 
 
 parties in partition, 652 
 Indorsers when not necessary parties to bill in aid of execution, 
 341 
 
 foreclosure bill, 34 
 Infants, agreement to sell lands of to be approved by court, 
 855 
 
 allowance for support of, 695 
 
 answers of, 139 
 
 application to sell land of, 847 
 
 bill cannot be taken as confessed against, 63 
 
 court careful of rights of, 857 
 
 guardian ad litem appointment of, 285, 286, 287 
 
 is ward of court when, 851 
 
 lands of, when tax sale of cancelled, 464 
 
 marriage of when void, 699 
 
INDEX 1003 
 
 [references are to sections] 
 next friend, appointment of, 282 
 
 to be filed with register, 284 
 when to give security, 283 
 proceedings by and against, 281 
 sale of land of, application for how heard, 848 
 contract for, 849 
 approval of, 855 
 report of, 849 
 effect of conveyance, 850 
 must be in accordance with order, 854 
 order for, 849 
 petition for, 854 
 
 petition for must be sworn to, 857 
 proceeds, how disposed of, 851 
 proceedings if subject to dower, 852 
 
 incumbrance, 853 
 report of, 849 
 
 security to be given by person making sale, 857 
 statute for to be strictly followed, 854 
 what may be sold, 856 
 when deed to be made, 849, 855 
 infant may vacate for fraud, 857 
 Injunction against corporations, 798, 804 
 husband in divorce casa, 732, 790 
 judgment at law, 577, 579, 582 
 suit at law, 578, 306 
 
 bond and deposit of money on, 307, 308, 309. 310 
 when dispensed with, 310, 311 
 trade unions, 305 
 allowance of by circuit court commissioner, 311, 312 
 
 judge endorsed on bill, 316 
 bill for, must be on oath, 315 
 
 how facts to be stated in, 315 
 prayer of, 315 
 dissolution of, discretionary, 319 
 hearing of motion for, 320 
 motion for, 320 
 
1004 INDEX 
 
 [refbkences are to sections] 
 notice of motion to dissolve, 320 
 when reviewed by supreme court, 321 
 granting of is discretionary, 300 
 
 order to show cause, 317 
 in creditor's suit, 531 
 
 interlocutory or preliminary, object and intent of, 302 
 when granted, 299, 302, 303, 304, 305, 306, 
 
 ex parte 299, 312, 316 
 who may grant, 311, 314, 318 
 mandatory not granted as interlocutory, 298 
 not to be served before issue of subpoena, 43 
 notice of application for, 317 
 
 motion to dissolve, 320 
 on bill for divorce, 731, 732, 
 of interpleader, 567 
 
 when dissolved, 565 
 prayer for, see form § 19 
 prelimiaary, see "interlocutory" 
 remedy is purely equitable, 298 
 to restrain nuisance, 681, 682, 685 
 threatened injury to land, 303 
 waste, 497 
 violation of is contempt, 336 
 when dissolved before answer, 319, 320 
 Injunction Master, circuit court commissioner to perform 
 
 duties of, 160 
 Insane persons, marriage of void, 698 
 no laches imputed to, 796 
 wife, dower of how barred, 793 
 Insolvent co-sureties not necessary parties to bill for contri- 
 bution, 560 
 Insolvent debtors not necessary parties to creditor's bill, 34 
 
 stockholders not necessary parties when, 34 
 Instalments of mortgage not yet due in foreclosure, 388, 389, 
 
 390, 391 
 Interest does not disqualify witness, 168 
 Interference with business, when enjoined, 305 
 
 process or proceedings of court when contempt, 334, 335 
 
INDEX 1005 
 
 [references are to sections] 
 Interlocutory decree is not appealable, 235 
 
 what is, 196 
 Interpleader, bill in nature of, -5 64 
 bill of when it lies, 561, 565 
 
 must negative collusion on oath, 568 
 prayer, 569 
 
 pure or strict what is, 562, 563, 565 
 what must state, 566 
 claims of defendants to be set forth in answers, 570 
 complainant must bring all defendants into court, 574 
 to have costs out of the fund if bill sustained, 571 
 to pay costs if bill dismissed, 574 
 costs to be paid as ordered by the court, 574 
 decree between complainant and defendants, 571 
 effect of, 571, 572 
 between defendants according to their respective 
 rights, 574 
 dismissal of bill leaves all parties as they were, 576 
 
 when demurrer sustained, 570 
 effect of allowing bill to be taken as confessed, 573 
 entire controversy, when between defendants, 572 
 fund to be brought into court, 565 
 injunction when proper, 567 
 issue between defendants, how formed, 572 
 proofs taken between defendants, 574 
 when one defendant to take fund on indemnifying com- 
 plainant, 574 
 Interrogatories in contempt proceedings, 341 
 when necessary, 342, 343 
 not necessary in criminal contempt, 343 
 Intervention by creditor of insolvent bank, 37 
 Investment of proceeds of sale of land of infants and incom- 
 petents, 851 
 Irregularity, bill of review for, 213 
 Issue, cause at when, 152 
 cross bill at when, 148 
 note of to file with register, 193 
 
10f06 INDEX 
 
 [references ABE TO SECTIONS] 
 
 notice that cause is at, 152 
 proceedings after cause at, 152 
 
 J 
 
 Joinder in demurrer not necessary, 96 
 Joint complainants, contribution between, 554 
 defendants, contribution between, 554 
 demurrer, effect of, 87 
 tenants, contribution between, 555 
 
 partition between, 630 
 Judge of adjoining circuit, allowance of injunction by, 318 
 to sign decrees, 200 
 
 orders when, 204 
 when interested cause to be transferred, 858 
 
 to render opinion, 200 
 Judgment, bill to enjoin, 582, 583 
 
 discharge of when compelled, 581 
 for tort when becomes a debt, 511 
 fraudulent may be enjoined, 577 
 
 vacated, 523 
 in proceedings for contempt, 344, 346 
 jurisdiction of equity over, 576 
 laches, bars relief against, 580 
 
 motion for new trial does not bar relief in equity, 581 
 to support creditor's suit, 525 
 when chancery will not interfere, 580 
 
 enjoined as against sureties, 579 
 
 vacated by cross bill, 145 
 Judgment creditor diligent to have precedence, 527 
 may attack conveyance of debtor for fraud, 509 
 on judgment for tort, bill in aid of execution by, 511 
 when subrogated to mortgagee, 471 
 may not redeem homestead of debtor, 481 
 Judgment creditor's bill, 503, 521 
 
 allegations necessary in, 522, 524 
 
 amendment of, 533 
 
 answer to when on oath, 522 
 
 defence to, 529 
 
 equitable interests reached by, 521, 523 
 
INDEX 1007 
 
 [eefebences are to sections] 
 fraudulent judgment and fictitious debts vacated by, 
 
 523 
 injunction on, 531 
 may be on behalf of all others as well as complainant, 
 
 527 
 must be on oath, 522, 528 
 parties to, 527 
 prayer of, 528 
 proceedings on, 535 
 receiver in, 324, 532 
 
 powers and duties of, 325, 326, 327 
 to give security, 326, 327 
 when to keep separate accounts, 327 
 supplemental bill to, 534 
 what execution and return will support, 526 
 
 judgment will support, 525 
 when defendant may be examined on oath, 535 
 entitled to costs, 527 
 may be filed, 521, 528 
 who may be complainants, 31, 521, 527 
 suit, when death of debtor ends, 530 
 Junior mortgagee may be subrogated to senior, 471 
 substituted as complainant in foreclosure, 37 
 when may redeem, 482 
 Jurat to bill, 19 
 
 for divorce, 19, 722 
 to annul marriage, 704 
 Jurisdiction of courts of equity, 1 
 constitutional provisions, 1, 3 
 in federal courts, 1, 2 
 inherent, 4 
 in Michigan, 3 
 statutory, 5 
 supreme court, appellate only, 234 
 
 plea to, 106 
 
 unlimited as to amount in tax cases, 433 
 
1008 INDEX 
 
 • [BEPEEENCES ABE TO SECTIONS] 
 
 Jury in divorce eases, 753, 774 
 
 mechanic's lien cases, 412 
 partition, 636, 649 
 to try legality of marriage, 705 
 
 Labor debts, receiver for collection of, 328 
 Laborers' lien of, 397 
 
 Laches bars bill for specific performance, 627 
 in aid of execution, 513 
 of review, 214 
 relief against judgment obtained by fraud, 580 
 
 not imputed to infants or iacompetents, 63 
 iasane wife, 796 
 Land contract, specific performance of, 617, 618, 619 
 
 of infants and incompetents, sale of, 847 
 
 ownership of after divorce, 771 
 
 to be sold iu inverse order of alienation, 695 
 Lease, defence of in partition, 638 
 
 injunction agaiast violation of, 304 
 Leave to amend bill, 184 
 
 file bill of review, 210, 211 
 supplemental bill, 223 
 Lawful owner of claim against decedent substituted for false, 
 
 695 
 Legatee of mortgagee may foreclose, 358 
 
 proper complainant to subject land to payment of legacy, 32 
 Legatees, contribution between, 559 
 Legitimacy of children on divorce for adultery, 773 
 Lien of leAry of execution not lost by death of debtor, 514 
 
 on land to secure legacy, 695 
 Liens, establishment of, 475 
 Life estate, in partition, 645, 650 
 Life tenant, sale of land held by, 839 
 Limitations, statute of may be pleaded, 109 
 Lis pendens in foreclosure, 368 
 
 mechanic's lien, 408 
 
 partition, 635 
 
INDEX 1009 
 
 [references are to sections] 
 Lost deeds, etc., restoTation of, 584, 585, 586 
 Lunatic, may file bill for divorce when, 766 
 proceedings by and against, 281 
 
 M 
 
 Mandatory injunction not granted pendente lite, 298 
 Manure, removal of from farm is waste, 500 
 Marriage, annulment of may be decreed on cross bill, 704 
 bill to annul or affirm, 701 
 decree upon, 706 
 differs from divorce, 702 
 grounds of, how stated, 702, 703 
 must be verified like bill for divorce, 704 
 on account of nonage, who may file, 707 
 
 must negative cohabitation after arriving at full 
 age, 707 
 temporary alimony and expenses in, 708 
 dissolved by sentence to imprisonment for life, 709 
 issues as to legality of to be tried by jury, 705 
 of partners, dissolves partnership, 652 
 valid where contracted, valid everywhere, 700 
 void where contracted, void everywhere, 700 
 when void, 698 
 
 voidable, 699 
 who may contract, 698 
 Material men, lien of, 397 
 Maxims in equity, 865 
 
 Mechanic's lien, assignable, assignee may enforce, 418 
 claim of how made, 397 
 must be on oath, 404 
 
 filed with register of deeds, 403 * 
 
 what to state, 403 
 
 when to be served on owner, 403, 404, 405 
 defence to, 411 
 defeated by fraud, 398 
 duration of, 407 
 enforcement of, see "Foreclosure of Mechanic's Lien," 408 
 
1010 INDEX 
 
 [eEFEKENCES ABE TO SECTIONS] 
 
 extent of and how obtained, 397, 400, 401 
 
 not waived by taking other security, 418 
 
 particulars of, to be served on demand, 406 
 
 payments to principal contractor, when no defence, 399, 
 
 402 
 principal contractor must make sworn statement of amount 
 
 due material men and laborers, 402 
 right of to descend to representatives on death of claimant, 
 
 418 
 when does not attach to land held by entireties, 401 
 
 not due, notice of intention to claim may be given, 418 
 Misconduct, when a contempt, 334 
 
 Misjoinder of defendants for separate frauds, when fatal, 37 
 Mistake, bill to correct, 596 
 
 who may maintain, 588, 591 
 in description of land in deed or mortgage, 587, 588 
 name of grantee, 587 
 
 written instrument, when corrected, 587, 588, 589 
 must be admitted or conclusively proved, 592 
 have been mutual, 591 
 Money, non-payment of according to order, when a Contempt, 
 
 334 
 Mortgage, assignment of, what constitutes, 355 
 by purchaser in partition, 648 
 considered in equity as mere security, 349 
 foreclosure of, see ''Foreclosure of Mortgage," 349 
 on death of mortgagee goes to ejsecutor or admiaistrator, 
 
 358 
 owner of debt is owner of in equity, 352 
 purchaser at defective statutory foreclosure becomes owner 
 
 of, 356 
 redemption from, 357. See "Bills to Redeem," 477 
 Mortagee, when to b-e made party ia partition, 649 
 Motion for contiauance, 274 
 further answer, 141 
 security fox costs, 269 
 general, what is, 271 
 how made, 270 
 
INDEX 1011 
 
 [references are to seostions] 
 special, how made, 272 
 heard, 273 
 notice of, 273 
 to dismiss for default of complainant to serve copy of 
 bill, 81 
 
 file security for costs, 268 
 dissolve injunction, 320 
 
 vfhen supreme court will review, 321 
 Motion days in supfeme court, 246 
 Motions and petitions, 270 
 Multifariousness, demurrer for, 88 
 
 what is, 27 
 Municipal corporation may maintain bill agaiust nuisance, 686 
 
 N 
 
 Negotiation of note or bill of exchange, when enjoined, 304 
 Newly discovered evidence, bill of review on, 214 
 
 rehearing on, 206 
 Next friend, appointment of for infant, 281 
 
 circuit court commissioner may appoint, 162 
 order appointing to be filed before suit commenced, 284 
 to be appointed before suit commenced, 281 
 when to give security, 283 
 Note of issue to t»e filed with register, 189, 193 
 Notice of application for appointment of next friend or guar- 
 dian, when to be given to parents or relatives, 847 
 approval of appeal bond, 239 
 decree for subsequent instalments in foreclosure, 
 
 390 
 injunction, 317 
 receiver, 323 
 transfer of cause, 858 
 argument of demurrer, 96 
 common orders not given before entering, 292 
 filing claim for mechanic's lien, 403 
 
 surplus in foreclosure, 381 
 hearing, 157, 187 
 
 in supreme court, 243 
 
1012 INDEX 
 
 [eeperences are to sections] 
 of motions and petitions, 373 
 
 on whom to be served, 157, 186, 295 
 intention to claim mechanic's lien, 397 
 motions and petitions, 273 
 motion to dissolve injunction, 320 
 petition for leave to file bill of review, 285 
 rehearing, 205 
 
 substitution of complainant, 297 
 of auditor general for foreclosure of tax liens, 421 
 redemption of land sold for taxes, 426 
 sale on foreclosure, 371, 374 
 
 in partition, 651 
 taking deposition (form ....), 175 
 
 testimony before circuit court commissioner, 165 
 taxation of costs, 251, 264 
 
 copy of bill and affidavit to be annexed, 251, 266, 
 267 
 that cause is at issue, to whom given, 152 
 to creditors by receiver, 814 
 
 owner of land by purchaser at tax sale, 449, 450 
 contents of, 459 
 service of, 459 
 when void, 458 
 when defendant entitled to, of all proceedings, 77, 292 
 not entitled to, 282 
 to be served on the party, 290, 291 
 solicitor, 292 
 Nuisance, complainant need not establish right to abate at law, 
 683 
 grounds of jurisdiction of equity as to, 680 
 may be enjoined, 303 
 
 no defence that other similar nuisances exist, 684 
 remedy must be proportioned to injury, 685 
 what will be enjoined, 682 
 when equity will not interfere, 685 
 who may maintain suit to enjoin or abate, 686 
 Nunc pro tunc clause in decree, when made, 199 
 
INDEX 1013 
 
 [hepebences are to sections] 
 
 
 Oath to witnesses; 172 
 
 Objections to answers disposed of on special motion, 141 
 deposition, 174 
 
 report of circuit court commissioner, 167 
 tax, owner entitled to five days in court to file, 453 
 when and how filed and served, 423 
 to be heard, 458 
 may be taken, 451 
 taxation of costs, 251, 265 
 Obstructions to public way, injunction against, 304 
 Offensive trades, when a nuisance, 682 
 Officer, falsely assuming to be, is contempt, 334 
 
 of corporation, answer of is eidence against corporation, 
 303 
 
 may be receiver of corporation, 331 
 to make discovery, 802, 803 
 when not competent to testify, 170 
 Officers of the court, circuit court commissioner, 11 
 register, 10 
 sheriff, 12 
 solicitor, 13 
 Opprobrious language, when it constitutes cruelty, 783, 784, 
 
 785 
 Order for attachment, 339 
 
 hearing petition of auditor general in tax case, 422 
 publication of, 423 
 when new order made, 454 
 transfer of cause, 861 
 of circuit court commissioner, caption of, 165 
 confirmation nisi, 165 
 
 of sale nisi, 377 
 revivor on the death of a party, 232 
 publication, affidavit for, 51, 52, 54 
 
 circuit court commissioner may make, 162 
 
 proofs of publication of, 55 
 
 when and how made, 50 
 
 when, where and how published, 53, 55 
 
1014 
 
 INDEX 
 
 [REPEEENCES ABE TO SECTIONS] 
 
 on filing petition for voluntary dissolution of corporation, 
 809 
 of tenant for life for sale of land, 841 
 publication of, 841 
 pro confesso, 56 
 
 amending bill when vacates, 62 
 cannot be taken against infant or incompetent, 63 
 decree on, must conform to bill, 61 
 how vacated when defendant brought in by publica- 
 tion, 71, 72 
 no personal decree for payment of money on, 60 
 reference to take proofs on, 69 
 when defendant must move to vacate, 73 
 may be entered, 56, 57 
 proofs unnecessary, 59 
 set aside, 66, 67 
 
 vacated by supplemental bill, 226 
 vacating default and order pro confesso, 66 
 after publication, 71, 72 
 application for, must proffer answer, 66 
 effect of, 72, 75, 76 
 when in discretion of court, 68 
 when right to, absolute, 72 
 Orders, common, 203 
 
 how entered, 271 
 disobedience of is contempt, 334 
 in tax eases, how entered, 423 
 special, 204 
 
 how disposed of at final hearing, 192 
 Ore tenus amendment to demurrer, 85 
 Origin of courts of equity, Introduction 
 Original bill, 15 
 
 and amended form but one record, 184 
 cross bill heard together, 190 
 Owner of building may require sworn statement of contractor, 
 397, 402 
 
 notice of claim of mechanic's lien to be served on, 397, 
 403 
 
INDEX 1015 
 
 [eepbkences are to sections] 
 recoupment of damages by, under mechanic's lien, 397 
 when may act on sworn statement of contractor, 397 
 retain money under mechanic's lien law, 402 
 not to pay contractor under mechanic's lien law, 
 .398, 399 
 debt owns the mortgage, 352 
 
 land must watch the tax foreclosure proceedings, 452 
 Owners of separate properties, when may join as complain- 
 ants, 31 
 unknown interests in subject matter when are not nec- 
 essary parties defendants, 34 
 
 Papers, entitling of, 294 
 
 not to be filed unless entitled, 294 
 service of, computation of time on, 293 
 
 necessary on defendant who has appeared, 292 
 not on defendant who has not appeared, 292 
 pendente lite, 288, 289, 290 
 to bring party into contempt, 291 
 Parishioners enjoined from interference with church oiScers, 
 
 304 
 Particeps criminis, evidence of should be corroborated, 775 
 Parties interested may inspect and take copies of files, 296 
 to bill, 29 
 
 added by amendment, 173 
 
 all persons interested in subject-matter are 
 
 proper, 33 
 for contribution, 560 
 partition, 632 
 restoration of lost deeds or other documents, 
 
 586 
 sale of land by executors, 838 
 specific performance, 624 
 in aid of execution, 518 
 
 relation to trusts, 552 
 of foreclosure, 352, 355, 384 
 of land contract, 396 
 
1016 INDBK 
 
 [eefeeences are to sections] 
 of mechanic's lien, 408, 410 
 ( vendor's lien, 394 
 review, 221 
 
 revivor and supplement, 227 
 to quiet title, 612, 613 
 redeem, 491 
 restrain waste, 502 
 judgment creditor's bill, 527 
 supplemental bill, 224, 225 
 when auditor general necessary, 603 
 not competent to testify, 170 
 who have appeared entitled to notice of all proceedings, 
 292 
 not appeared not entitled to notice, 292 
 Partition at common law, 629 
 bill for, 635 
 
 amendments to, 637, 638 
 parties to, 632, 633 
 burial lot not subject to, 646 
 commissioners to make, appointment of, 642 
 proceedings and report of, 642 
 when new appointment made, 643 
 complainant in, must have estate in possession, 630 
 
 legal title, 631 
 costs in court to adjudge payment of 645 
 
 complainant to pay if bill is dismissed, 657 
 decree for, 644 
 
 appeal from, 658 
 what not to affect, 645 
 when partition cannot be made equally, 646 
 will be for sale if land cannot be divided without 
 prejudice to owner, 648 
 deed to purchaser at sale, 651 
 defence to suit for, 636 
 equity has exclusive jurisdiction of, 632 
 exceptions to report of commissioners, 645 
 guardian may be authorized to consent to, 653 
 when may be appointed, 634 
 
INDEX 1017 
 
 [references are to sections] 
 hearing interests of parties determined at, 640 
 incumbrances, how satisfied in case of sale, 649 
 jury to try issues may be ordered, 636 
 lienors on undivided shares to be made parties before sale, 
 
 649 
 notice of sale, how given, 651 
 of lands devised to trustees, 659 
 proceedings in are statutory, 630 
 
 case of life tenants or dower, 650, 655 
 
 unknown part owners, 633 
 when original parties are dead, 654 
 state is a party, 646 
 
 stayed until complainant perfects his title at law,- 
 636 
 where to be instituted, 630 
 who may take, 630, 653, 659 
 proceeds of sale, how disposed of, 651 
 proofs, how taken, 639 
 receiver, when may be appointed, 328, 656 
 reference to enquire into situation of land, 641 
 
 take proofs on order pro eonfesso, 639 
 report of commissioners when may be vacated, 643 
 report of sale, 651 
 sale, when to be decreed, 648 
 
 where and how made, 651 
 trustee, when may apply for, 653, 659 
 unknown parties, how brought in, 633 
 when court may require indemnity, 652 
 not decreed in partnership case, 676 
 Partners, contribution between, 556 
 Partnership, accounting in, how taken, 669 
 bill for dissolution of and accounting, 677 
 prayer of, 678 
 where to be filed, 667 
 decree, final, after accounting, 679 
 interlocutory for accounting, 679 
 
 when accounting not ordered, 665 
 when partnership not proved, 666 
 
1018 INDEX 
 
 [eEFEEENCES ABE TO SECTIONS] 
 
 dissolution of, how effected, 662 
 
 evidence on accounting in, 676 
 
 on dissolution partners entitled to mutual accounting, 663 
 
 one partner selling out the other is entitled to accounting, 
 
 664 
 partition not decreed in bill for accounting, 676 
 partners cannot sue each other at law, 661 
 real estate regarded as personal assets, 667 
 receiver appointed in suit for dissolution, 324 
 
 not to take property from surviving partner, 324 
 to take charge of assets, 675 
 usually prayed for in bill, 674 
 when not ordered, 674, 675 
 when not to collect debts due firm, 324 
 remedy of partners against each other is in equity, 661 
 representatives of deceased partner are entitled to ac- 
 counting by surviving partner, 668 
 shares of partners presumed equal unless otherwise proved 
 
 673 
 surviving partner, duties of, 672 
 not entitled to compensation, 672 
 
 to wind up business, 668 
 what is, 660 
 
 when managing partner entitled to compensation, 671 
 must account, 670 
 partners are entitled to an accounting, 664 
 real estate held by partners as tenants in common, 676 
 Payment, defence of in foreclosure, 362 
 Petition by tenant for life for sale of land, 839 
 cause against, how shown, 843 
 order to show cause on, 841 
 proceeds, how disposed of, 846 
 
 • to stand in lieu of land, 842 
 proofs, how taken, 843 
 sale conveys fee simple, 845 
 how made, 844 
 report of, 845 
 when ordered, 842 
 
INDEK 1019 
 
 [eeperences are to sections] 
 what to set forth, 840 
 when sale not ordered, 846 
 who may show cause against, 842 
 wife for separate maintenance, 789, 792 
 proceedings on, 789, 790 
 for execution for deficiency in foreclosure, 386 
 when denied, 387 
 leave to file bill of review, 215 
 
 supplemental bill, 223 
 probate of foreign will, 697 
 rehearing, 205 
 
 rehearing in supreme court, 252 
 resale of land in foreclosure, 378 
 sale of land of infants or incompetents, 854 
 voluntary dissolution of corporation, 808 
 writ of assistance in foreclosure, 380 
 on tax sale, 462 
 in foreclosure as to instalments falling due after decree, 
 
 390, 891 
 of auditor general for foreclosure of tax lien, 420 
 
 order and proceedings on, 422, et seq. 
 to bar dower of insane wife, 793 
 guardian for wife on, 794 
 
 may sell dower right, 795 
 
 join husband in deed, 795 
 hearing on, 794 
 proceedings on, 793, et seq. 
 vacate sale of land on tax foreclosure sale, 463 
 Petitions, affidavits ia support of, 272 
 hearing of, 273 
 
 counter affidavits may be used at, 274 
 may be continued, 273 
 how addressed, entitled and signed, 280 
 facts stated in, 279 
 
 notice of hearing of and how served, 273 
 to be in writing, 272 
 what are, 270, 279 
 must show, 272 
 
1020 INDEX 
 
 [eefeeences aee to sections] 
 
 when to be made, 270 
 
 to be supported by affidavit, 279 
 Physical incapacity, divorce for, 709, 779 
 
 marriage annulled for, 698, 702 
 Plank road companies, when enjoined, 304 
 Plea, affirmative and negative, 101 
 
 benefit of, when saved to the hearing, 124 
 decree on determination of issue of fact on, 121 
 how facts to be stated in, 100, 103, 110 
 in bar, account stated, 109 
 
 complainant parted with his interest, 109 
 release, 109 
 res judicata, 109 
 statute of frauds, 109 
 limitations, 109 
 may be good in part and bad in part, 102 
 several to distinct parts of bill, 101 
 to amended bill, 183 
 must be signed by defendant, 110 
 single, 99. 
 
 verified by affidavit, 111 
 have certificate of counsel, 111 
 not to be held bad, when, 122 
 replication to, effect of, 116 
 right to, waived by answer, 134 
 setting down for argument, 115 
 superseded by answer to amended bill, 123 
 to bill of review, 220 
 
 relief or discovery, or both, 105 
 the bill, 108 
 
 jurisdiction, 106 
 person of complainant, 107 
 what it is, 99 
 
 when allowed complainant may take issue on or move for 
 leave to amend bill, 121, 176 
 may be amended, 117 
 must be filed and served, 114 
 
INDEX 1021 
 
 [eeferences are to sections] 
 overruled, defendant to answer, 120 
 to be supported by answer, 111, 112 
 when to stand for answer, 119 
 Pleadings as evidence, 175 
 Possession of land not to be changed by injunction, 301 
 
 wrongfully obtained will not support bill to quiet title, 601 
 Prayer for general relief, 8 
 injunction, 315 
 process, 9 
 receiver, 330 
 special relief, 8 
 in bill of interpleader, 569 
 
 to enjoin judgment at law, 583 
 of bill in aid of execution, 518 
 of foreclosure, 354 
 of review, 218 
 Preliminary injunction, granting of is discretionary, 300 
 
 when granted pendente lite, 299 
 Printer, fees of, 261 
 
 Priority of equities may be established by cross bill, 145 
 Probate order vacated for fraud, 690 
 Pro confesso in divorce does not authorize decree, 726 
 taking bills after personal service, 56 
 publication, 55, 71 
 for want of answer after appearance, 56 
 Proceedings after cause is at issue, 152 
 order of revivor, 232 
 for sale of land of infants and incompetents, 847, et seq. 
 
 tenants for life, 841, et seq. 
 prescribed by statute to be strictly followed, 854 
 when order of revivor cannot be served, 232 
 Process, admission of service of, 46 
 final, from supreme court, 254 
 service of, 39, 41, 42, 43 
 subpoena is regular, 38 
 Prompt action required in case of fraud, 692 
 
1022 INDEX 
 
 [references are to sections] 
 Proof, burden in meclianic's lien cases, 413 
 of publication, 374 
 
 of order and petition in tax lien foreclosure, 423 
 Proofs, how taken on petition to sell land of infants, 848 
 in divorce, when to be taken, 713 
 how taken on reference in case taken pro confesso, 59 
 reference to take on order pro confesso, 59 
 taken by circuit court commissioner to be filed in the case, 
 
 157 
 when to be taken by circuit court commissioner, 155, 162 
 Prosecuting atorney to prosecute tax lien foreclosure, 423 
 
 when to oppose divorce, 724 
 Provocation, when a defence in divorce, 747 
 Public money, misappropriation of enjoined, 303 
 
 officers, unauthorized acts of, when enjoined, 302 
 ways, obstructions to, when enjoined, 304 
 Publication of notice of sale, 371, 374 
 
 order of appearance of absent, non-resident or concealed 
 defendants, 53, 58 
 proof of, 55 
 order to show cause against petition of tenant for life, 841 
 of appearance of unknown defendants in bill to quiet 
 title, 613 
 
 unknown part owner in partition, 633 
 petition of auditor general and order in tax lien cases 
 equivalent to personal service, 423, 452 
 Punishment for contempt, 333, 344, 345 
 
 Purchaser at sale of land of infants, etc., presumed to have 
 knowledge of all proceedings, 854 
 at void foreclosure sale obtains rights of mortgagee, 379 
 tax sale dispossessed has lien for improvements, 427 
 may maintain bill to restrain waste, 448 
 when entitled to possession, 461 
 
 writ of assistance, 462 
 when must demand possession, 461 
 of reversion, when entitled to subrogation, 471 
 
INDEX 1023 
 
 [references are to sections] 
 Q 
 
 Quarrying by tenant holding over is waste, 500 
 Quiet title and cancel deed, bill for, what must show, 598 
 establish lost deed, what bill for must show, 597 
 bill to, 595 
 
 what must show, 596 
 
 R 
 
 Railroad Company in possession of part of mortgaged land 
 
 proper party defendant in foreclosure, 35 
 Real estate regarded as personal assets in partnership account- 
 ing, 667 
 Re-advertisement of land not sold on tax lien foreclosure, 425 
 Re-argument in supreme court, 252 
 Receiver, ancillary to receiver in another state, 329 
 appointment of discretionary, 323 
 how made, 330 
 not exparte, 323 
 bill should pray for, 330 
 
 broad discretion to appoint in creditor's suit, 332 
 called the "hand of the court," 322 
 for collection of labor debts, 328 
 hearing of motion for, 330 
 
 affidavits and sworn answer read at, 330 
 in assignments for benefit of creditors, 328 
 creditor's suits, 324, 532 
 
 powers and duties of, 325, 326 
 same in successive suits against same debtor, 327 
 to give security, 326, 327 
 when to keep separate accounts, 327 
 divorce cases, 328 
 foreclosure of mechanic 's lien, 328 
 partition, 328, 656 
 partnership cases, 324, 674, 675, 676 
 
 not against surviving partner, 324, 475 
 
 prayer for, 678 
 
 when not necessary, 678 
 
1024 INDEX 
 
 [references are to sections] 
 proceedings against banking, etc., corporations, 328 
 voluntary dissolution of corporations, 811 
 accounting by, 823, 824 
 powers and duties of, 811, et seq. 
 to call meeting of creditors, 817 
 collect unpaid stock, 813 
 give notice to creditors, 814 
 settle controversies, 817 
 not appointed in foreclosure of mortgage, 332 
 
 without notice, 323 
 of debtor in mechanic's lien necessary party and how made 
 
 so, 410 
 when guilty of contempt, 336 
 
 may continue business, 328, 812 
 not appointed, 330, 332 
 
 officer, stockholder or creditor may be of corporation, 
 331, 811 
 Kecord on appeal to supreme court to be printed, 241 
 statement of facts in brief should refer to, 245 
 what to contain, 242 
 when and how filed and served, 242 
 Recrimiaation, defence of in divorce, 746 
 Redeem, laches bars right to, 482 
 
 right to only cut off by foreclosure, 477 
 when junior mortgagee may, 478, 482 
 remainder man may, 480 
 tenant for life may, 480 
 who cannot, 478, 482 
 
 has the right to, 477, 478 
 Redeemer entitled to subrogation, 472 
 Redemption favored by the courts, 460, 477 
 
 from regular statutory foreclosure when allowed, 492 
 tax sale, 426, 450, 458, 484 
 certificate of, 426 
 
 may be recorded, 427 
 what is sufficient, 485, 486 
 not allowed after sale on foreclosure of land contract, 296 
 of mortgage of a mortgage, 493 
 
INDEX 
 
 1025 
 
 [eeperenoes are to sections] 
 on foreclosure of mortgage, 357, 371, 376 
 
 proceedings on, 376 
 only to be cut off by foreclosure, 477 
 pro tanto when co-tenant purchases mortgage, 493 
 Reference for accounting, 153 
 in divorce, 727 
 
 as to alimony, 738 
 foreclosure, 345, 390, 391 
 partition, 639, 641 
 order of, when may be taken, 59 
 to circuit court commissioner to take proofs, 59 
 Reformation of deeds, etc., and correction of mistakes, decree 
 for, 587, 591 
 
 instrument reformed to conform to actual agreement, 
 
 589 
 judgment for damages, when no bar to, 593 
 mistake of law no ground for, 590 
 
 must be admitted or conclusively proved, 591 
 have been mutual, 591 
 voluntary conveyance when not corrected, 590 
 what mistakes will be corrected, 587, 588, 589 
 when decreed when no actual mistake existed, 594 
 
 quit claim to third person no bar, 593 
 who may maintain bill for, 588 
 Register in chancery, county clerk is ex officio, 10 
 duties of, 10 
 fees of, 256 
 
 on appeal, 238 
 on transfer of cause, 862 
 may prohibit use of pen and ink in making copies, 296 
 not to file papers not entitled, 294 
 to endorse day of filing on papers filed, 296 
 enroll decree, 201 
 issue process, 39 
 tax costs, 264 
 
 transmit record on appeal, 240 
 transfer of cause, 862 
 Register of deeds, fees of, 260 
 
1026 INDEX 
 
 [repeeences are to sections] 
 Eegistered holder of stock, when not necessary party to bill 
 
 for transfer, 35 
 Registered letter, when good service in tax case, 459 
 Regularity, affidavit of, when necessary, 52 
 Rehearing, application for, 205, 207, 208 
 
 when to be made to supreme court, 208 
 deposit in case of, 205 
 in supreme court, 252 
 petition for, 205 
 
 in supreme court, 252 
 certificate of counsel to, 205 
 when granted, 206 
 not granted, 207 
 Release, plea of, 109 
 
 when to accompany disclaimer, 127 
 Relief given by decree, 195 
 
 sought may be varied by supplemental bill, 222 
 when granted to defendant without cross biU, 147 
 Religious opinions do not disqualify witness, 168 
 Remainder men, when may redeem, 480 
 Remedy at law bars relief in equity, 2 
 
 must be exhausted before creditor's bill is filed, 524 
 Replication, effect of, 150 
 form of, 151 
 
 not required to answer of complainant to defendant's an- 
 swer claiming benefit of cross bill, 142 
 special, not allowed, 149 
 to plea, effect of, 116 
 
 unsworn answer waives answer on oath, 150 
 what is it and when to be filed, 149 
 Report, circuit court commissioner to make, 165 
 confirmation of nisi, 165 
 exceptions to and how heard, 165 
 notice of proposed to be given, 167 
 of commissioners in partition, 642 
 when vacated, 643 
 
INDEX 
 
 1027 
 
 [references are to sections] 
 sale in foreclosure, 377, 382 
 
 confirmation of, 377 
 exceptions to, 378 
 of tax lien, 425 
 partition, 651 
 of lands of infants, 845 
 taken as true when no exceptions taken, 167 
 when should not embody evidence, 167 
 Representatives of deceased complainant made complainants, 
 232 
 
 defendants, 232 
 defendant made defendants, 232 
 trustee proper defendant iu accounting, 36 
 Res adjudicata, plea of, 109 
 Re-sale in foreclosure, 375, 378 
 
 petition for, 378 
 Rescue is a contempt, 334 
 
 Residence of complainant to support bill for divorce, 712 
 Restoration of lost deeds or other documents, bill for, 586 
 decree for, when may made, 584 
 on condition, 585 
 refused, 585 
 and quieting title, bill for, 597 
 life insurance policy, 586 
 mortgage discharged by mistake, 586 
 
 fraudulently obtained and destroyed, 586 
 Re-taxation of costs, 265 
 Return of process, how completed, 47, 48 
 Review, bill of, defence to, 320 
 for errors of law, 212 
 
 irregularity or fraud, 213 
 newly discovered evidence, 214 
 is original as to new parties therein, 221 
 leave to file, discretionary, 210 
 
 when must be by supreme court, 211 
 may be amended, 219 
 must be verified, 219 
 not to take place of appeal, 221 
 
1028 INDEX 
 
 [references are to sections] 
 
 parties to, 221 
 
 petition for leave to file, 215 
 
 hearing of, 216 
 prayer of, 218 
 
 proceedings on when issue taken, 220 
 security to be offered with, 218 
 what to state, 217 
 when to be filed, 209 
 Revivor, 229 
 
 bill of, formerly necessary, 230 
 
 statements of, 231 
 
 when still necessary, 233 
 court may order, 232 
 proceedings after order of, 232 
 Revivor and supplement, bill of, 227 
 
 S 
 
 Sale by corporation after filing petition for dissolution, when 
 void, 615 
 receiver of corporation, 812 
 Sale of land by executors, 837 
 decree for, 838 
 parties to bill for, 838 
 proceedings for, 838 
 in foreclosure of land contract, 296 
 mechanic's lien, 416 
 mortgage, adjournment of, 374 
 how made, 372 
 notice of, 371, 374 
 report of, 377 
 
 vacated on sustained exceptions, 378 
 when absolute, 377 
 
 not affected by subsequent appearance of de- 
 fendant after publication, 74 
 resale to be made, 375 
 
 stayed by appearance of defendant after pub- 
 lication, 75 
 subject to be opened, 377 
 
INDEX 
 
 1029 
 
 [references are to sections] 
 to be in parcels, 370, 373 
 to be made, 351, 371 
 tax lien, 425 
 
 certificate of, 426 
 confirmation of, 425 
 
 grounds of attack after confirmation, 458 
 petition to vacate, 463 
 report of, 425 
 when confirmed, 458 
 
 when vacated improvements to be valued, 426 
 who cannot set up against owner, 457 
 partition, how made, 648, 651 
 
 may be on credit secured by mortgage, 648 
 report and confirmation of, 651 
 Sales of real estate by circuit court commissioner, 161, 162, 164 
 commissioner may complete after term of office has 
 expired, 161 
 when vacated, 689 
 Scandal in bill, what is, 25 
 School district, when proper complainant, 32 
 Security for costs, when and how to be given, 268, 269 
 
 to be given on granting injunction against suit at law, 
 
 307, 308, 309 
 when dispensed with, 310 
 Separate maintenance of wife, alimony on petition for, 789 
 appeal from decree of, 789 
 decree and how enforced, 791 
 defence to, 789 
 
 injunction on, petition for, 790 
 petition for, 789 
 
 must be distinguished from bill for divorce, 792 
 proceedings on, 789, 790 
 proofs on, 792 
 when not sustained, 792 
 when to be decreed, 789 
 Service of papers during pendency of suit, 288 
 computation of time on, 293 
 extra time on, 289 
 
1030 INDEX 
 
 [repebences are to sections] 
 on party when appearing in his own proper person^ 
 290 
 
 to bring him into contempt, 291 
 solicitor after appearance by solicitor, 292 
 for several defendants, 289 
 when court may direct manner of, 290 
 need not be made, 292 
 Shares of partners, when presumed equal, 675 
 
 stock, when cancelled, 690 
 Sheriff, fees of, 257 
 
 is the officer of the court, 12 
 
 return of service of notice in tax case not conclusive, 459 
 Solicitor, analogous to attorney-at-law, 13 
 appearance by, 77 
 fee by rule, 255 
 
 in supreme court, 249 
 in interpleader, 571 
 papers to be served upon, 272 
 to sign answer, 137 
 bill, 17 
 
 demurrer (form) 98 
 petition, 280 
 plea, 110 
 Solvent stockholders proper defendants to creditor's biU 
 
 against corporation, 35 
 Speaking demurrer, what is, 94 
 Special motions, what are. See Motions 
 
 orders, what axe, 204 
 Specific performance, 614 
 bill for, 624 
 
 by vendor, 621 
 biU may be with double aspect for cancellation or, 626 
 
 parties to, 624 
 complainant must be without default, 620 
 decree for must be on contract set up in bill, 628 
 defence to, 628 
 
 denied if complainant has not performed and cannot be 
 compelled to perform, 622 
 
INDEX 
 
 1031 
 
 [references ake to sections] 
 laches, a bar to, 627 
 
 vendee may have against grantee of vendor, 625 
 vendor may have, 625 
 
 what contract must be to authorize, 615, 616 
 when decreed, 619 
 
 when decreed on verbal contracts to convey land, 618 
 not barred by lapse of time, 621 
 not decreed, 616, 617, 623 
 State, lands bid off to on tax sales, 424, 425 
 held by, not included in tax petition, 460 
 when tenant in common, partition may be had, 646 
 Stating part of bill, 20, 24 
 
 federal court rule concerning, 26 
 Statute concerning proceedings on appeal, 240 
 Statute of charitable uses not in force in Michigan, 549 
 frauds, plea of, 109 
 
 •when not a bar to specific performance for sale of 
 land, 618 
 limitations, defence in foreclosure, 362 
 plea of, 109 
 
 when not applicable to trusts, 553 
 Stay of proceedings for hearing of petition or motion, 273 
 
 in partition for establishment of complainant *s title, 636 
 on appeal, 239 
 
 as to non-appealing defendants, 238 
 limited unless bond given, 240 
 Stipulation between solicitors to be in writing, 245 
 
 for transfer of cause, 860 
 Stockholders, contribution between, 587 
 liability of determined, 801 
 may be receiver of corporation, 331 
 when parties to bill against corporation, 80O 
 Stranger not entitled to subrogation, 472 
 Subcontractors, lien of, 397 
 
 when not bound by agreement of contractor with owner, 
 419 
 Subpoena, form of, 38 
 
 how and when issued, style and text, 38, 39 
 
1032 INDEX 
 
 [references ABE TO SECTIONS] 
 
 by whom, when and where served, 39, 41, 42 
 is the regular process against all defendants, 38 
 must be issued and served on filing cross bill, 148 
 names of all defendants must be inserted in, 39 
 service of, how admitted, 46 
 
 to be served before, or simultaneously with injunction, 43 
 to be served on prosecuting attorney in divorce when there 
 are minor children, 724 
 on attorney general when state is a party, 641 
 underwriting in, 40 
 when to be made returnable, 44 
 Subpoena for witnesses before circuit court commissioner, 155 
 Subrogation, 468 
 
 bill for, what should state, 474 
 doctrine of, never applied to work injustice, 468 
 not allowed to mere voluntary payer, 472 
 who entitled to, 469, 470, 471, 472, 473 
 Suit at law, when enjoined, 303, 306, 578 
 in ejectment, when enjoined, 303 
 security to be given, 309 
 Sundays, when included in computation of time for service 
 
 of papers, 293 
 Supplemental bill is addition to original bill, 224 
 original as to new parties, 224 
 leave of court to file necessary, 223 
 petition for, 223 
 when granted ex parte, 223 
 uses of, 222 
 
 vacates order pro confesso to original bill, 226 
 what must show, 222, 223, 224 
 when may be filed after decree, 228 
 
 in creditor's suit, 553 
 who may file, 225 
 
 with revivor when may be filed, 227 
 Supreme court, appeal to, 9, 234 
 
 proceedings on. See "Appeal" 
 hears case de novo, 234 
 jurisdiction appellate only, 234 
 
INDEX 
 
 1033 
 
 [eEPEKENCES ABE TO SECTIONS] 
 
 may order temporary alimony pending appeal, 740 
 
 motion days in, 246 
 
 powers of, on appeal from decree of voluntary dissolution, 
 
 826 
 when will grant leave to file bill of review, 211 
 preliminary injunction, 314 
 rehearing, 208 
 not review granting injunction, 300 
 review decision as to dissolution of injunction, 321 
 granting injunction, 300 
 Sureties, contribution between, 554 
 on bond, approval of, 230 
 
 when collection of judgment against enjoined, 579 
 suit at law against enjoined, 578 
 Surety, when subrogated to rights of creditor, 469, 470 
 
 not subrogated, 470 
 Surplus in foreclosure claimed for, how filed, 381 
 
 how disposed of, 377, 381 
 Surplusage is not multifariousness, 28 
 
 Surveyor may be employed by commissioners in partition, 642 
 Surviving mortgagee may foreclose, 357 
 
 when may foreclose for his separate debt only, 357 
 Surviving partner,- duty of, to wind up business, 668 
 must account to representative of deceased, 672 
 not entitled to compensation for services, 672 
 on death of, his representatives do not succeed to his 
 rights, 672 
 
 T 
 
 Taxation of costs, 264, 267 
 in supreme Court, 251 
 affidavit for, 268, 251 
 appeal from, 251 
 notice of, 251 
 
 copy of bill and affidavit annexed to, 251, 267 
 objections to, 251 
 
1034 INDEX 
 
 [eEFEEENCES ABE TO SECTIONS] 
 
 what costs taxable, 249, 250, 255, 263 
 
 in supreme court, 249, 250 
 when deduction made by supreme court, 250 
 Taxes, court may separate on lands assessed together, 423 
 foreclosure by state of lien for, 420 
 when become a lien on land, 420 
 charged back to county, 426 
 
 included in decree for foreclosure of mortgage, 369 
 may be vacated in part, 423 
 purchaser of state tax land must pay, 425 
 Tax deed, effect of, 426, 464 
 
 fraudulently obtained, how vacated, 605 
 is not prima facie evidence of title, 465 
 may be vacated by bill to quiet titl«, 603 
 when holder cannot maintain bill to quiet title, 603 
 issued by auditor general, 426 
 redemption may be decreed against holder of, 604 
 Tax payer may pay part of tax and contest balance, 466 
 
 proper complainant, 32 
 Tax payers, when may join as to complainants, 31 
 Tax record, haw filled up, 425 
 made up, 420 
 redemption to be noted in, 426 
 what it is, 420 
 
 what to be noted in, 420, 425, 426 
 when to be delivered to county treasurer, 424 
 Tenant, when may be enjoined from committing waste, 497, 500 
 
 for life, sale of land of, 839 
 Tenants in common after partition become purchasers, 644 
 contribution between, 555 
 may have partition, 630 
 
 partners become after dissolution and settlement, 676 
 when not necessary party, 35 
 Testimony, how taken by circuit court commissioner, 155, 158 
 may be taken stenographically, 158 
 to be read to and signed by witness, 158 
 
 returned by commissioner and filed in court, 157 
 
INDEX 
 
 1035 
 
 [references are to sections] 
 unwarrantably taken, no motion to suppress needed, 156 
 when closed, 157 
 
 to be taken before circuit court commissioner, 155 
 Threatened injury may be restrained by injunction, 303, 305 
 Timber, cutting of, when waste, 497, 498, 500 
 
 value when not important in bill to restrain waste, 500 
 Time, computation of in service of papers, 293 
 for perfecting appeal, how extended, 238 
 taking testimony, 155 
 application for extension of, 156 
 how extended, 155, 156 
 to answer amended bill, 183 
 when not of essence of contract, 621 
 Title to land in partition, proof of, 639 
 
 to be tried at law, 636 
 Township iiot proper party in suit to enjoin drain tax, 34 
 Township treasurer, when ma.y maintain bill to restrain waste, 
 
 448, 498 
 Trades unions, injunction against, 305 
 Transactions contrary to equity, when vacated, 688, 694 
 Transfer of eases, application for, 858 
 grounds of, 858 
 notice of, 858 
 to what court made, 859 
 proceedings upon, 861 
 what must show, 863 
 may be by stipulation, 860 
 when ordered, 861 
 
 register to tr^ansfer records and files, 862 
 when venue changed by court in which suit com- 
 menced, 864 
 personal property, when may be enjoined, 304 
 Trespass to land continuous, may be enjoined, 303 
 Trust and deposit Co., when receiver appointed for, 328 
 Trust, fraud in breach of, 690 
 
 fraudulent executioja of will be enjoined, 302 
 
1036 INDEX 
 
 [eeferences are to sections] 
 Trufitees, courts hold dishonest to strict liability, 547 
 
 of equity will giv^e directions to, 552 
 
 protect honest, 54'7 
 may foreclose mortgage, 356, 359 
 must account to beneficiaries, 548 
 not to benefit by trust, 547 
 to sell land of tenant for life, 844 
 when all must join in execution of trust, 546 
 
 and how may resign, 543 
 
 cannot withdraw after acceptance, 547 
 
 court will remove and appoint new, 545, 546 
 
 title to trust estate vests in, 539 
 Trusts, 537 
 
 beneficiary may pursue misappropriated trust fund, 550 
 
 charitable, must be clearly defined, 549 
 
 courts of equity will interpret and give directions on, 552 
 
 creator has no power to change, 547 
 
 do not descend on death of trustee, 543 
 
 express in land, how shown, 541 
 
 what are and how created, 539, 540 
 vest title in trustee, 539 
 
 personalty, 540 
 executed parol in land cannot be questioned, 541 
 implied, 542 
 
 resulting in favor of creditors, 542 
 testamentary, chancery has jurisdiction of, 544 
 what are and how created, 537 
 
 when court will remove trustee and appoint another, 543, 
 545 
 
 it ceases, 543 
 who may be beneficiaries, 538 
 
 create, 538 
 
 U 
 
 Unknown claimants, defendants in bills to quiet title, 613 
 how brought in, 613 
 
INDEX ' 1037 
 
 [keperences a-re to sections] 
 
 when guardian ad litem appointed, 613 
 in partition, 633 
 parties in partition, shares of, how disposed of, 651 
 
 Vacating default and order pro confesso, 66 
 when right to, absolute, 72 
 discretionary, 68 
 Vendee in land contract, when may have specific performance, 
 
 614, 625 
 Vendor in land contract, when may have specific performance, 
 
 614, 621, 625 
 Vendor's lien, foreclosure of, 394 
 
 what it is, 393 
 Venue when changed, 860 
 
 Verbal contract to convey land, when enforced, 618 
 Verification of answer, 137 
 bill for divorce, 722 
 
 cannot be waived, 724 
 may be supplied by amendment, 724 
 Violation of injunction is contempt, 336 
 Voluntary conveyance, when set aside, 506 
 
 dismissal of bill by complainant, he must pay costs, 264 
 dissolution of corporations, 807 
 
 appeal to supreme court, 826 
 decree of dissohition and for receiver, 811 
 directors may file petition for, 808 
 final decree in, 824 
 order of distribution, 818 
 
 reference on filing directors' petition, 809 
 petition, what to state, 808 
 powers of supreme court on appeal, 826 
 proceedings on order of reference, 810 
 
 termination of pending suit, 821 
 receiver appointment of, 811 
 
 may be removed by court, 822 
 powers and duties of, 812, 813, 817 
 
1038 INDEX 
 
 [references are to sectionb] 
 to call meeting of creditors, 817 
 collect unpaid stock, 813 
 dissolution of corporations, 807 
 
 receiver to distribute monies by order of court, 818 
 give notice to creditors, 814 
 make second distribution, 819, 820 
 
 Waste, 494 
 
 bill to restrain, what should state, 502 
 
 parties to, 502 
 diligence and promptitude ia seeking remedy required, 501 
 ■what it is, 494, 495, 500 
 
 when accounting for the injury decreed as ancillary rem- 
 edy, 501 
 bill to restrain will be sustained, 497, 499 
 will be enjoined, 302, 448, 496, 497, 499 
 township treasurer may maintain bill to enjoin, 498 
 "Water right, interference with enjoined, 303 
 
 when determined on cross bill, 145 
 Wife, contract with by solicitor for percentage of alimony 
 void, 762 
 
 compelled by husband 's cruelty to leave him, not guilty of 
 desertion, 780 
 dower of, after decree of divorce, 770, 771 
 
 none if for her own misconduct, 771 
 failure by husband to maintain suitably, 709, 710 
 has no vested right in alimony, 762 
 insane; proceedings to bar dower of 793 
 is necessary party to foreclosure of mortgage on home- 
 stead, 36 
 proper complainant as to her separate property, 32 
 may exhibit bill for divorce in her own name, 715 
 
 redeem homestead, 478 
 of deceased partner, when proper party to accounting, 36 
 
INDEX 1039 
 
 [refeeences are to sections] 
 when not proper party to bill against husband for specific 
 performance, 36 
 
 to testify against her husband, 170 
 to join husband as complainant, dl 
 Wills, courts of equity will construe, 696 
 
 foreign, probate of in court of chancery, 697 
 petition for, 697 
 Witness, competency of not destroyed by interest or crime, 168 
 detention of, when is contempt of court, 334 
 husband and wife, when incompetent against each other. 
 
 170 
 manner of administering oath to, 172 
 physicians, when incompetent to testify, 169 
 priests and ministers not to disclose confessions, 169 
 prohibition to testify, how waived, 171 
 refusing to testify, when guilty of contempt, 334 
 when excused from answering, 172 ' 
 
 one party is deceased, incompetency of survivor, etc., 
 170 
 has right to call and cross examine opposite party, 
 173 
 Witnesses before circuit court commissioner, how examined, 
 155 
 
 subpoena for 155 
 
 testimony to be read to and signed by, 158 
 depositions of absent, sick or infirm may be taken after 
 claim made for examination of witnesses in open court, 
 154 
 fees of, 259 
 
 examination of in open court, how right claimed, 153 
 when to be claimed, 152, 153 
 when claimed how noticed for trial, 153 
 
 reference for accounting may be ordered notwith- 
 standing, 153 
 Writ of assistance in foreclosure, 380 
 petition for, 380 
 of tax liens, 426, 449, 462